Van Allen v. Board of Com'rs of Bass River Tp.

• Decision Date: 02 July 1986
• Citation: 511 A.2d 1243,211 N.J.Super. 407
• Parties: Barbara J. VAN ALLEN, Plaintiff-Respondent, v. The BOARD OF COMMISSIONERS OF the TOWNSHIP OF BASS RIVER and the Township of Bass River, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 407

211 N.J.Super. 407

511 A.2d 1243

Barbara J. VAN ALLEN, Plaintiff-Respondent, v.The BOARD OF COMMISSIONERS OF the TOWNSHIP OF BASS RIVER and the Township of Bass River, Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued June 10, 1986.

Decided July 2, 1986.

Frank A. Buczynski, Jr., Ship Bottom, for defendants-appellants(Shackleton, Hazeltine & Buczynski, Ship Bottom, attorneys; Robert P. Airgood, Ship Bottom, on brief).

William S. Cappuccio, Hammonton, for plaintiff-respondent(William S. Cappuccio, Hammonton, attorney; William S. Cappuccio, Hammonton, on brief).

Before Judges ANTELL, MUIR and ASHBEY.

The opinion of the court was delivered by,

ANTELL, P.J.A.D.

Plaintiff is and has been the tax collector for defendant Township of Bass River since 1971.In 1980, pursuant to an ordinance, her salary was fixed at $9450 a year.In June 1980plaintiff took on additional employment in a neighboring municipality and advised defendants of this fact by letter dated May 30, 1980, stating therein that she would be willing to continue her services as tax collector at a reduced salary effective July 1, 1980.Defendants agreed and her salary was reduced to $6800 per annum.

In July 1981plaintiff left her outside employment and returned to working full time as a tax collector in the Bass River Municipal Building.Her request for restoration to her full salary of $9450 was answered by an increase from $6800 to only $7650 in 1982.

The first issue we consider on this appeal by defendants is whether the Law Division correctly ordered full restoration of plaintiff's previous salary of $9450.In reaching its result the Law Division principally relied upon N.J.S.A. 40A:9-165¹ which provides, in pertinent part, as follows:

The governing body of a municipality, by ordinance, shall fix and determine the salaries, wages or compensation to be paid to the officers and employees of the chief executive, who by law are entitled to salaries, wages, or compensation.Such salaries, wages or compensation may be from time to time, by ordinance, increased, decreased or altered.No such ordinance shall reduce the salary of, or deny without good cause an increase in salary given to all other municipal officers and employees to, any tax assessor, tax collector or municipal clerk during the term for which he shall have been appointed.Except with respect to an ordinance or a portion thereof fixing salaries, wages or compensation of elective officials or any managerial, executive or confidential employee as defined in section 3 of the New Jersey Employer-Employee Relations Act, P.L.1941, c. 100(C. 34:13A-3)as amended, the ordinance shall take effect as provided therein.In municipalities wherein the provisions of Title 11(Civil Service) of the Revised Statutes are in operation, this section shall be subject thereto.[Emphasis supplied].

Recognizing plaintiff's status as a statutory officer, the court decided by order dated August 20, 1985, that plaintiff's exercise of a "gratuitous and limited forbearance" from collecting her full salary for a period of time did not bar her right thereto in the future by operation of waiver or estoppel.We affirm substantially for the reasons stated by Judge Friedman in his oral opinion of August 8, 1985 for the Law Division, adding only a brief comment.

" 'Waiver' has been defined as a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim, or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it.Thus, a "waiver" occurs where one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to rely upon it; a "waiver" takes place where one dispenses with the performance of something which he has a right to exact."67 Corp. Jur. 289.See, also, Aron v. Rialto Realty Co., 100 N.J.Eq. 513, 136 A. 339;affirmed, 102 N.J.Eq. 331, 140 A. 918;Smith v. National Commercial Title and Mortgage Co., 120 N.J.L. 75, 198 A. 407;Sullivan v. James Leo Co., 124 N.J.Eq. 317, 1 A.2d 400.[McCue v. Silcox, 122 N.J.L. 12, 13-14, 3 A.2d 437(E. & A.1938) ].

SeeLong v. Bd. of Chosen Freeholders, Hudson County, 10 N.J. 380, 386, 91 A.2d 724(1952);Merchants Indem. Corp. v. Eggleston, 68 N.J.Super. 235, 172 A.2d 206(App.Div.1961), aff'd37 N.J. 114, 179 A.2d 505(1962).A waiver must " 'be clearly established and will not be inferred from doubtful or equivocal acts or language.' "5 Williston on Contracts (3 ed. 1961) § 678 at 240(citation omitted)."It may take the form of an agreement founded on a valuable consideration, or ... it may constitute a clear, unequivocal and decisive act showing such a purpose as to amount to estoppel in pais."Merchants Indem. Corp. v. Eggleston, supra, 68 N.J.Super. at 254, 172 A.2d 206;seeWest Jersey Title, etc., Co. v. Industrial Trust Co., 27 N.J. 144, 152-153, 141 A.2d 782(1958).To establish a claim of equitable estoppel, the claiming party must show that the alleged conduct was done, or representation was made, intentionally or under such circumstances that it was both natural and probable that it would induce action.Further, the conduct must be relied on, and the relying party must act so as to change his or her position to his or her detriment.[Miller v. Miller, 97 N.J. 154, 163, 478 A.2d 351(1984).]

Our role in reviewing factual determinations after a non-jury trial is limited.Such findings may not be disturbed unless "they are so wholly insupportable as to result in a denial of justice...."Greenfield v. Dusseault, 60 N.J.Super. 436, 444, 159 A.2d 433(App.Div.), aff'd o.b. 33 N.J. 78, 161 A.2d 475(1960).Our original fact-finding jurisdiction may be exercised only sparingly and only in a clear case where there is no doubt about the matter.Ibid."Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence."Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495(1974).

The issues of waiver and estoppel involve the making of highly factual determinations.Here the trial judge found a lack of intention on plaintiff's part to forego permanently her full salary and no acts of reliance on plaintiff's conduct by defendants involving a detrimental change of position.Although plaintiff was entitled to her full salary of $9450 she voluntarily...