Michael P. Ryan v. Hammonton Town Board of Education

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0662-23

MICHAEL P. RYAN

and NADINE RYAN,

Plaintiffs-Respondents,

v.

HAMMONTON TOWN BOARD OF

EDUCATION,

Defendant-Appellant,

and

TOWNSHIP OF EASTAMPTON,

EASTAMPTON POLICE

DEPARTMENT, CHIEF JOSEPH

IACOVETTI, and MICHAEL

MUSSER, jointly, severally, and

individually,

Defendants.

________________________________

Submitted May 8, 2025 – Decided July 10, 2025

Before Judges Natali and Vinci.

On appeal from the Superior Court of New Jersey, Law

Division, Atlantic County, Docket No. L-2208-19.

Cooper Levenson, PA, attorneys for appellant (Rebecca

D. Winkelstein and William S. Donio, on the briefs).

Jacobs & Barbone, PA, attorneys for respondents

(Louis M. Barbone, on the brief).

PER CURIAM

On October 16, 2023, the trial court entered judgment in favor of plaintiffs

Michael P. Ryan and Nadine Ryan,1 awarding them $364,472.20 in back pay

under N.J.S.A. 18A:6-30. Defendant Hammonton Town Board of Education

appeals from various orders, including the January 19, 2021 order that granted

partial summary judgment to plaintiffs and determined plaintiff was entitled to

back pay. Defendant also appeals from several orders barring it from arguing

mitigation and other related defenses.2 After careful consideration of the record

and the governing legal principles, we affirm in part, vacate in part, and remand

for further proceedings.

1

For clarity, throughout this opinion we refer to Michael Ryan as "plaintiff,"

and respondents collectively as "plaintiffs."

2

Specifically, defendant appeals from the: March 29, 2023 order in which the

court found defendant was barred from arguing mitigation of damages with

respect to plaintiff's retirement and pension benefits; May 30, 2023 order in

which the court held plaintiff's early retirement application did not terminate his

entitlement to back pay; July 21, 2023 order denying reconsideration of the May

30 order; August 25, 2023 order granting in part and denying in part defendant's

second motion for reconsideration; and the civil action order of disposition dated

September 18, 2023.

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2

I.

The dispute between the parties began when Eastampton Township Patrol

Officer Michael Musser swore a municipal complaint alleging plaintiff, a

tenured guidance counselor employed by defendant, committed an act of

lewdness on September 11, 2015, in violation of N.J.S.A. 2C:14-4(a).3 Because

lewdness is a disqualifying offense for public school employment, see N.J.S.A.

18A:6-7.1, the same month plaintiff was charged, defendant suspended him with

pay pending adjudication of the charges.

The municipal court ultimately convicted plaintiff on the lewdness charge,

and he filed a timely de novo appeal of his conviction with the Law Division.

As a consequence of plaintiff's conviction, defendant converted his suspension

to be without pay. Shortly thereafter, the Criminal History Review Unit

(CHRU) of the Department of Education informed plaintiff he was "permanently

disqualified" from employment with any public school in the state. In

accordance with the CHRU's determination, defendant terminated plaintiff's

employment on January 19, 2017.

3

The State issued two additional complaint-summonses charging plaintiff with

an additional act of lewdness on September 20, 2015, N.J.S.A. 2C:14-4(a), and

one count of disorderly persons obstructing the administration of law, N.J.S.A.

2C:29-1(a). The municipal court dismissed the charges associated with those

complaint-summonses, and they are accordingly not relevant to this appeal.

A-0662-23

3

On de novo review, the Law Division found plaintiff guilty and entered a

judgment of conviction against him. Before judgment was entered, and out of

what he contended was "financial necessity," plaintiff filed an application for

retirement, effective June 1, 2017. He later appealed his conviction, and by

order dated December 5, 2017, we remanded the matter for a new trial. 4 The

Law Division vacated the judgment of conviction and remanded to the municipal

court. By letter, the prosecutor's office informed the municipal court it "declined

to continue the prosecution," and the lewdness charge had been dismissed.

After corresponding with the CHRU, plaintiff requalified for public

school employment and defendant rehired him to the same position he had

previously occupied. While plaintiff and defendant were able to agree on his

reinstatement, the parties were unable to reach an agreement concerning

plaintiff's entitlement to back pay.

4

We remanded based on newly discovered evidence. Specifically, after

plaintiff's conviction, he became aware Musser had been the subject of an

Internal Affairs investigation and subsequently terminated by the Eastampton

Township Police Department for misusing departmental sick time and for being

untruthful during the investigation.

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4

Plaintiffs then filed a complaint for declaratory judgment against

defendant seeking back pay under N.J.S.A. 18A:6-30.5 Specifically, plaintiffs

sought: (1) entry of "[a]n [o]rder confirming plaintiff's exoneration on all

criminal charges and declaring that [his] dismissal by [defendant] was 'illegal'

pursuant to N.J.S.A. 18A:6-30"; (2) "[a]n [o]rder declaring that [defendant] is

mandated to supply the [p]ension [b]oard with particular accounting and

enumeration of salary, benefits[,] and emoluments of office . . . so that plaintiff

can be reenrolled into the pension system"; and (3) an order compelling

defendant to compensate plaintiffs "for the entire period covered by [the] illegal

dismissal."

Plaintiffs later moved for partial summary judgment "on the issue of

[plaintiff's] entitlement to back pay pursuant to [N.J.S.A.] 18A:6-30." In its

response to plaintiffs' statement of material facts, defendant admitted to most of

plaintiffs' allegations, with the following relevant exception: defendant disputed

plaintiff's characterization that his retirement application was submitted out of

"financial necessity."

5

Plaintiffs also sought relief against the Township of Eastampton, Eastampton

Police Department, Chief Joseph Iacovetti, and Musser. Except for Musser, the

claims against the other defendants were dismissed with prejudice on summary

judgment, and Musser later settled with plaintiffs.

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5

After considering the parties' submissions and oral arguments, the court

granted plaintiffs' application and issued a conforming order on January 19,

2021. In its oral decision, the court concluded "[w]ith respect to the . . . issue

of back pay[,] I'm going to grant that motion. I think that . . . plaintiff[s are]

entitled to back pay." The court, however, made clear its ruling did not address

how plaintiff's retirement affected his right to back pay or whether it could be

used to mitigate his damages: "[p]laintiff is entitled, in my judgment, to back

pay for the time periods involved. Defendant is entitled to attempt to offset that

back pay award by whatever argument that . . . defendant wants to make that . . .

defendant believes will offset the total amount of the payment."

Notably, before rendering its decision, the court observed:

I don't think anybody, and I've read [plaintiffs'] brief, is

suggesting that there was bad faith on the part of

[defendant], or [that defendant] did anything other than

what it was required to do at the time that the

[m]unicipal [c]ourt convicted [plaintiff]. But I think

[plaintiffs'] argument is that even though [defendant]

acted consistent with what it was told by the State[,]

that given the ultimate dismissal of the charges that

under the statute [plaintiffs are] entitled to back pay.

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6

Plaintiffs later filed a motion in limine seeking an order barring defendant

from arguing at trial that plaintiff's retirement benefits mitigated his damages. 6

By order and written opinion dated March 29, 2023, the court granted plaintiffs '

application and ordered that "[d]efendant [was] barred from arguing mitigation

of damages with regard to unemployment benefits and retirement/pension

benefits."

In its written decision, the court relied upon Model Jury Charges (Civil),

2.33(A)(8), "Mitigation of Economic Damages – Back Pay" (rev. Apr. 2014),

which provides:

Although the back pay award should be reduced

by any actual earnings, it should not be reduced by any

unemployment benefits or other unearned income the

plaintiff may have received. This means that the

plaintiff had an obligation to use reasonable and

diligent efforts to seek other comparable employment,

and to accept it, if it were offered.

The court further noted the charge cited Sporn v. Celebrity, Inc., 129 N.J.

Super. 449, 453-60 (Law Div. 1974), and Craig v. Y & Y Snacks, Inc., 721 F.2d

77, 83 (3d Cir. 1983). It interpreted these cases to mean that "a negligent party

responsible for another person's damages should not be able to avoid financial

6

Plaintiffs' motion also sought the court's recusal, which was granted, and the

matter was assigned to a different judge.

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7

responsibility for damages because the plaintiff had a source which already paid

the plaintiff some benefits." Additionally, the court took note of the collateral

source rule and explained two rationales for the rule "are that plaintiff may have

paid for the benefits and a preference that windfalls go to victims rather than

wrongdoers."

Based on those authorities, the court found "[p]laintiff's receipt of

retirement benefits [was] irrelevant to the [factfinder's] determination of

damages." It explained defendant provided no authority for the proposition that

plaintiff's back pay could be reduced by the amount of retirement benefits he

received. It further noted "the parties both acknowledge[d] that once [p]laintiff

receives his back pay, he will be legally obligated to reimburse the Division of

Pensions . . . . As such, there would be no windfall to [p]laintiff."

Before the court rendered its decision on plaintiffs' first motion in limine,

plaintiffs filed a second motion seeking an order as to "whether plaintiff's

application for retirement terminate[d] his entitlement to back pay . . . as a

matter of law." By order entered on May 30, 2023, the court granted plaintiff's

application and concluded plaintiff's "retirement [did] not terminate his

entitlement to back pay."

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8

Defendant moved for reconsideration of the court's May 30 order. The

court held oral argument on defendant's motion, denied reconsideration on both

procedural and substantive grounds, explained its decision in both an oral and

written opinion, and issued a conforming order on July 21, 2023.

At oral argument, the court began its decision by detailing the extensive

motion practice in the matter and concluded its May 30 order resolved all issues

in the case. Therefore, it found defendant's motion for reconsideration under

Rule 4:42-2 was untimely.

Addressing the substance of defendant's motion, the court noted the

parties disputed whether plaintiff's retirement cut short the period for which he

was entitled to back pay. That is, "[p]laintiff[s sought] payment from

[d]efendant for two[-]and[-]a[-]half . . . years, from December 15, 2016, . . . to

June 6, 2019," while "[d]efendant sought to pay [plaintiffs] for six . . . months[,]

from December 15, 2016 . . . to June 1, 2017." The court found "no logical basis

to exclude [p]laintiff's back pay during the time of his retirement," in part,

because plaintiff was required to reimburse the Division of Pensions for all

money expended on his behalf during his suspension and dismissal.

On August 25, 2023, the court revisited defendant's motion for

reconsideration, granted it in part, denied it in part, explained its reasoning in a

A-0662-23

9

written decision, and issued a conforming order that same day. The court

explained it "erroneously concluded that once the timeline of the back[ ]pay was

determined via court order filed on May 30, 2023, that there were no further

issues to be resolved." It found the May 30 order was not a final order and

reversed that portion of its July 21 order that found defendant's motion for

reconsideration was untimely. The court, however, concluded the substantive

portion of its decision remained in full effect.

At a pretrial conference, the parties informed the court they had agreed on

the amount of compensation due to plaintiffs of $364,472.20. The court

accordingly entered a final judgment reflecting that amount on October 16,

2023.

II.

On appeal, defendant contends the court erred in "granting plaintiff[s]

partial summary judgment on the issue of [plaintiff's] entitlement to

compensation under N.J.S.A. 18A:6-30." Relying on the "plain language" of

the disqualification statutes for public school employees convicted of certain

offenses, N.J.S.A. 18A:6-7.1 to -7.5, defendant argues plaintiff's "paid

suspension pending [the] outcome of the charges, and the termination of his pay

and employment upon his conviction, were legal."

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10

Anticipating plaintiffs would contend "that N.J.S.A. 18A:6-7.1 must be

construed in pari materia with N.J.S.A. 18A:6-8.3 to make illegal for purposes

of N.J.S.A. 18A:6-30 both the suspension of [plaintiff's] pay after his conviction

and [his] automatic disqualification and termination before disposition of the

appeal of his conviction," defendant argues such a construction is flawed

because the statutes "were enacted for entirely different purposes." It maintains

the statutes are not in pari materia because the purpose of N.J.S.A. 18A:6-8.3

"was to protect the salary of a suspended school employee after a period of 120

days following the certification of charges and pending their resolution."

Additionally, defendant notes N.J.S.A. 18A:6-7.1 "was not made part of [the

State's] laws until fifteen years" after the enactment of N.J.S.A. 18A:6-8.3.

Even if the statutes are in pari materia, defendant argues plaintiff's unpaid

suspension and subsequent termination still would not be "illegal" under

N.J.S.A. 18A:6-30. It contends in enacting N.J.S.A. 18A:6-7.1, the

"[L]egislature intentionally did not define a conviction as 'the final disposition

of a criminal complaint after appeal' or use any language similar to that in

N.J.S.A. 18A:6-8.3, which references 'pending any . . . appeal therefrom.'"

(Omission in original) (quoting N.J.S.A. 18A:6-8.3). Rather, the statute

mandates the disqualification of an employee "upon conviction 'at any time.'"

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11

N.J.S.A. 18A:6-7.1. In further support, defendant notes N.J.S.A. 18A:6-7.1(f)

"govern[s] what happens when charges are pending, not when an appeal of a

conviction is pending." (Emphasis omitted).

Defendant further argues plaintiff's termination was legal for purposes of

N.J.S.A. 18A:6-30 because it "was simply following the instructions of the

CHRU." As N.J.S.A. 18A:6-7.3 provides "[i]f the pending charge results in

conviction, the employee shall not be eligible for continued employment,"

defendant contends it was legally required to terminate plaintiff's employment

upon his conviction. (Emphasis omitted).

Further, because plaintiff never challenged his dismissal or unpaid

suspension as being without good cause before filing suit, defendant argues no

good cause determination as required by N.J.S.A. 18A:6-30 has been made. It

notes the summary judgment court did not make a good cause determination in

rendering its decision, and even acknowledged it did not believe either party was

"suggesting that there was bad faith on the part of [defendant], or [that

defendant] did anything other than what it was required to do at the time that the

[m]unicipal [c]ourt convicted [plaintiff]."

Defendant further contends plaintiffs' claim for back pay is "time-barred"

because they did not make written application for compensation within thirty

A-0662-23

12

days after a good cause determination. Putting aside the fact no good cause

determination was ever made, defendant maintains the "triggering event for the

thirty-day period" was not the prosecutor's dismissal letter, but rather, the Law

Division's order vacating the lewdness conviction because, at that point, plaintiff

was no longer convicted.

We review the disposition of a summary judgment motion de novo,

applying the same standard used by the motion judge. Townsend v. Pierre, 221

N.J. 36, 59 (2015). Like the motion judge, we view "the competent evidential

materials presented . . . in the light most favorable to the non-moving party, [and

determine whether they] are sufficient to permit a rational factfinder to resolve

the alleged disputed issue in favor of the non-moving party." Town of Kearny

v. Brandt, 214 N.J. 76, 91 (2013) (quoting Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995)); see also R. 4:46-2(c). If "the evidence 'is so

one-sided that one party must prevail as a matter of law,'" courts will "not

hesitate to grant summary judgment." Brill, 142 N.J. at 540 (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

N.J.S.A. 18A:6-7.1(a) provides, in relevant part:

An individual . . . shall be permanently disqualified

from employment or service under this act if the

individual's criminal history record check reveals a

A-0662-23

13

record of conviction for any crime of the first[-] or

second[-]degree; or

a. An offense as set forth in chapter 14 of Title

2C of the New Jersey Statutes . . . .

N.J.S.A. 18A:6-7.1(d) states "a conviction exists if the individual has at

any time been convicted under the laws of this State or under any similar statutes

of the United States or any other state for a substantially equivalent crime or

other offense." Under subsection (f) of the statute, "[w]hen charges are pending

for a crime or any other offense enumerated in this section, the employing board

of education shall be notified that the candidate shall not be eligible for

employment until the commissioner has made a determination regarding

qualification or disqualification upon adjudication of the pending charges. "

Under N.J.S.A. 18A:6-7.3, if an individual is charged with a qualifying

crime under N.J.S.A. 18A:6-7.1, "the commissioner shall notify the employing

board of education or contractor, and the board or contractor shall take

appropriate action. If the pending charge results in conviction, the employee

shall not be eligible for continued employment."

For public school employees illegally dismissed or suspended, N.J.S.A.

18A:6-30 provides the circumstances under which they may be entitled to

compensation:

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14

Any person holding office, position or employment in

the public school system of the state, who shall be

illegally dismissed or suspended therefrom, shall be

entitled to compensation for the period covered by the

illegal dismissal or suspension, if such dismissal or

suspension shall be finally determined to have been

without good cause, upon making written application

therefor with the board or body by whom he was

employed, within [thirty] days after such

determination.

[(Emphasis added.)]

While no precedential authority addresses the requirements for

compensation under this statute, by its plain language, it sets forth three criteria

for back pay: (1) a public school employee must have been "illegally dismissed

or suspended"; (2) their dismissal or suspension must have been finally

determined to have been without good cause; and (3) the employee must have

made a written application to the body by whom they were employed within

thirty days of the good cause determination. See ibid.

When interpreting a statute, the "paramount goal" is to effectuate the

Legislature's intent. DiProspero v. Penn, 183 N.J. 477, 492 (2005) (citing Frugis

v. Bracigliano, 177 N.J. 250, 280 (2003)). "The statute's language is ordinarily

the 'surest indicator' of that intent." Frugis, 177 N.J. at 280 (quoting Cornblatt,

P.A. v. Barow, 153 N.J. 218, 231 (1998)). Courts should "ascribe to the

statutory words their ordinary meaning and significance, and read them in

A-0662-23

15

context with related provisions so as to give sense to the legislation as a whole."

DiProspero, 183 N.J. at 492 (internal citations omitted).

"If the plain language leads to a clear and unambiguous result, then [the]

interpretive process is over." Richardson v. Bd. of Trs., Police & Firemen's Ret.

Sys., 192 N.J. 189, 195 (2007) (citing DiProspero, 183 N.J. at 492). "If,

however, a literal interpretation of a provision would lead to an absurd result or

would be inconsistent with the statute's overall purpose, 'that interpretation

should be rejected' and 'the spirit of the law should control.'" Pfannenstein v.

Surrey, 475 N.J. Super. 83, 95 (App. Div. 2023) (quoting Hubbard v. Reed, 168

N.J. 387, 392-93 (2001)); see also N.J. Republican State Comm. v. Murphy, 243

N.J. 574, 613 (2020) (noting "courts must avoid interpreting . . . statutes in a

way that creates absurd outcomes").

Applying our de novo standard of review and the aforementioned legal

principles, we vacate the January 19, 2021 order granting plaintiffs summary

judgment, vacate the September 18, 2023 civil action order of disposition and

October 16, 2023 final judgment order, and remand for further proceedings. As

a preliminary matter, we are convinced plaintiff was "illegally dismissed" for

purposes of a back pay award under N.J.S.A. 18A:6-30.

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16

As noted, N.J.S.A. 18A:6-7.1 requires the board dismiss a public school

employee upon conviction for certain enumerated offenses. Under the statute,

offenses contained in Title 14 of the Criminal Code are disqualifying, and a

lewdness conviction is a qualifying offense, N.J.S.A. 2C:14-4(a). As such, upon

plaintiff's conviction by the municipal court and notification from the CHRU he

was disqualified from employment with the public school system, defendant was

required to terminate his employment.

Although defendant was required to terminate plaintiff's employment

upon his conviction and notification from the CHRU, we do not believe that

means his termination cannot be declared "illegal" based on subsequent events.

While the statute does not define what it means to be "illegally dismissed,"

N.J.S.A. 18A:6-30, "[t]he term 'illegal' is defined as 'contrary to or violating a

law or rule or regulation or something else (as an established custom) having

the force of law,'" Appeal of Twp. of Monroe from Determination of Loc. Fin.

Bd., 289 N.J. Super. 138, 149 (App. Div. 1995) (quoting Webster's Third New

International Dictionary Unabridged (1971)).

Here, it is undisputed the conviction that formed the basis of plaintiff's

termination was vacated and later dismissed by the prosecutor's office. We have

previously stated "[c]riminal proceedings are terminated in favor of the accused

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17

by . . . the formal abandonment of the proceedings by the public prosecutor ."

Rubin v. Nowak, 248 N.J. Super. 80, 83 (App. Div. 1991) (alteration and

omission in original) (quoting Restatement (Second) of Torts § 659 (Am. L. Inst.

1977))).

Once we vacated plaintiff's conviction and the prosecutor's office

dismissed the lewdness charge, plaintiff no longer had any pending charges or

convictions for purposes of disqualification under N.J.S.A. 18A:6-7.1. Indeed,

defendant acknowledged this fact when it rehired plaintiff to his original

position. Thus, to the extent plaintiff's dismissal was initially "legal" as it was

mandated by N.J.S.A. 18A:6-7.1, once his conviction was vacated and the State

dismissed the lewdness charge, for purposes of N.J.S.A. 18A:6-30, plaintiff's

dismissal no longer had any legal support and was "contrary to" the

disqualification statute. See Appeal of Twp. of Monroe, 289 N.J. Super. at 149

(quoting Webster's Third New International Dictionary Unabridged). In other

words, plaintiff's dismissal, which was "legal" when done, transformed into an

"illegal" termination for purposes of a back pay award under N.J.S.A. 18A:6-30

once the disqualifying conviction was vacated and the prosecutor's office

dismissed the case.

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18

We simply cannot adopt defendant's position that plaintiff's dismissal was

not "illegal" for purposes of a back pay award because it was statutorily required

to terminate his employment upon conviction by the municipal court and

notification from the CHRU. To accept defendant's interpretation would not

only require that we create a legal fiction and ignore subsequent events which

resulted in the dismissal of the lewdness charge, it would also require us to

construe N.J.S.A. 18A:6-30 in such a way that would lead to absurd results. See

Pfannenstein, 475 N.J. Super. at 95. Under defendant's interpretation of the

statute, so long as a public school employee has been convicted of a

disqualifying offense, they are forever barred from collecting back pay under

N.J.S.A. 18A:6-30, regardless of any subsequent events, which may vindicate

or exonerate the employee.

We find support for our interpretation of N.J.S.A. 18A:6-30 in other

statutes concerned with protecting public school employee's compensation. For

example, N.J.S.A. 18A:6-8.3 was enacted as a supplement to N.J.S.A. 18A:6-

14, which governs the suspension of employees upon certification of any charge

to the Commissioner of Education. See In re Grossman, 127 N.J. Super. 13, 34-

35 (App. Div. 1974) (detailing the legislative history of N.J.S.A. 18A:6-8.3).

N.J.S.A. 18A:6-8.3 protects a public school employee's salary pending any

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19

charges before the Commissioner of Education and expressly provides those

employees must receive their full salary "pending any investigation, hearing[,]

. . . trial[,] or any appeal therefrom." (Emphasis added).

That N.J.S.A. 18A:6-8.3 requires a public school employee be paid their

full salary pending any appeal demonstrates the Legislature has taken into

consideration the possibility that charges, which were initially sustained may

nonetheless be overturned on appeal, and it sought to protect a public school

employee's salary in such circumstances. We discern no principled reason why

the same should not apply to N.J.S.A. 18A:6-30. Indeed, our Supreme Court

has recognized "the importance of back pay awards to public sector labor

relations," State v. Int'l Fed'n of Prof'l & Tech. Eng'rs, Loc. 195, 169 N.J. 505,

537 (2001), and defendant has offered no credible concerns that awarding back

pay to public school employees under these unique circumstances would

unnecessarily burden the public fisc.

If a finding that a public school employee was "illegally dismissed" was

all that is required to award back pay under N.J.S.A. 18A:6-30, we would not

hesitate to affirm the court's January 19, 2021 order. As noted, however, the

statute also has two other requirements: the dismissal or suspension must have

been finally determined to have been without good cause, and the employee

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20

must have made a written application to the body by whom they were employed

within thirty days of the good cause determination. See N.J.S.A. 18A:6-30.

"Appellate review . . . 'does not consist of weighing evidence anew and

making independent factual findings; rather, our function is to determine

whether there is adequate evidence to support the judgment rendered' by the trial

court." Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 302 (App. Div. 2009)

(quoting Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App.

Div. 1999)). Here, contrary to Rule 1:7-4, the court did not make any factual

findings or legal conclusions with respect to the two remaining requirements

under N.J.S.A. 18A:6-30. Further, the parties' merits briefs focus primarily on

the legality of plaintiff's dismissal, with only a handful of pages dedicated to

N.J.S.A. 18A:6-30's two other requirements.

Under these circumstances, we decline to exercise original jurisdiction to

decide whether plaintiffs can satisfy N.J.S.A. 18A:6-30's remaining

requirements. Est. of Doerfler v. Fed. Ins. Co., 454 N.J. Super. 298, 301-02

(App. Div. 2018) ("Although our standard of review from the grant of a motion

for summary judgment is de novo . . . our function as an appellate court is to

review the decision of the trial court, not to decide the motion tabula rasa."

(internal citations omitted)); see also Price v. Himeji, LLC, 214 N.J. 263, 294

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21

(2013) (noting Rule 2:10-5 "allow[s an] appellate court to exercise original

jurisdiction to eliminate unnecessary further litigation, but discourage[s] its use

if factfinding is involved" (alterations in original) (quoting State v. Santos, 210

N.J. 129, 142 (2012)).

As such, we vacate the court's January 19, 2021 order and remand for it

to reassess plaintiff's summary judgment application, consider the two

remaining requirements for a back pay award under N.J.S.A. 18A:6-30, and state

its factual findings and legal conclusions in accordance with Rule 1:7-4. We

leave it to the court's discretion whether the parties may submit additional

briefing concerning the court's ability to issue a good cause determination or if

the facts and legal principles would excuse either of the remaining requirements

under the facts of this case. Because we vacate the court's order granting

plaintiffs summary judgment on the issue of plaintiff's entitlement to back pay

under N.J.S.A. 18A:6-30, we also vacate the September 18, 2023 civil action

order of disposition and October 16, 2023 final judgment order awarding

plaintiffs $364,472.20 in back pay.

III.

Defendant also contends the court erred in disposing of its mitigation -

based defenses "even though the issue of mitigation involved a question of fact

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22

that was not resolved previously on summary judgment." Specifically,

defendant maintains in opposing plaintiffs' summary judgment application, it

"disputed . . . that [plaintiff] filed an application for retirement benefits

independent of the court proceedings out of financial necessity." (Emphasis

omitted). By granting plaintiffs' motions in limine, defendant contends the court

prevented the parties from addressing "the circumstances surrounding

[plaintiff's] retirement and other mitigation efforts, including the reasons he

retired, whether he rescinded his retirement, whether he was rehired out of

retirement, whether he pursued his right to appeal the CHRU's determination of

his permanent disqualification, and other such facts relevant to the legal issues."

Relatedly, defendant argues the court also erred in "granting plaintiffs'

motions in limine precluding any evidence or argument as to mitigation of

damages." First, defendant relies upon our decision in Mullen v. Board of

Education of Jefferson Township, 81 N.J. Super. 151, 153, 160 (App. Div.

1963), for the proposition "that all claims made by illegally dismissed persons

under N.J.S.A. 18:5-49.1, the predecessor to N.J.S.A. 18A:6-30, are 'subject to

the common law rule of mitigation of damages.'" Further, relying on Willis v.

Dyer, 163 N.J. Super. 152, 165 (App. Div. 1978), defendant maintains

"[u]nemployment compensation falls within the benefits that must be deducted

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from any compensation award due following an illegal dismissal under the

statute."

Defendant additionally contends "[p]recedent likewise dictates that

retirement following the termination of employment—even in the case of an

illegal termination—cuts off the right to any back pay allowed under [N.J.S.A.]

18A:6-30." (Citing Kelty v. State, Dep't of L. & Pub. Safety, Div. of State

Police, 321 N.J. Super. 84, 87 (App. Div. 1999)). Based upon these authorities,

defendant argues the court erred in relying upon Model Civil Charge 2.33

because Sporn and Craig are distinguishable from the instant matter.

We review a trial judge's decision on whether to grant or deny a motion

for rehearing or reconsideration for an abuse of discretion. JPC Merger Sub

LLC v. Tricon Enters., Inc., 474 N.J. Super. 145, 160 (App. Div. 2022). "Where

the order sought to be reconsidered is interlocutory, . . . Rule 4:42-2 governs the

motion." Ibid. Under Rule 4:42-2, "interlocutory orders 'shall be subject to

revision at any time before the entry of final judgment in the sound discretion

of the court in the interest of justice.'" Lawson v. Dewar, 468 N.J. Super. 128,

134 (App. Div. 2021) (quoting R. 4:42-2). We likewise review a court's grant

or denial of a motion in limine for abuse of discretion. Brenman v. Demello,

191 N.J. 18, 31 (2007) (citing Green v. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

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However, we review questions of law de novo and "accord no 'special deference'

to the 'trial court's interpretation of the law and the legal consequences that flow

from established facts.'" Jeter v. Sam's Club, 250 N.J. 240, 251 (2022) (quoting

Cherokee LCP Land, LLC v. City of Linden Plan. Bd., 234 N.J. 403, 414-15

(2018)).

A motion in limine is "[a] pretrial request that certain inadmissible

evidence not be referred to or offered at trial." Cho v. Trinitas Reg'l Med. Ctr.,

443 N.J. Super. 461, 470 (App. Div. 2015) (alteration in original) (quoting

Black's Law Dictionary 1109 (9th ed. 2009)). It is well-established that in

limine motions that are summary judgment motions in disguise have been

repeatedly condemned. "Our court rules simply do not countenance the practice

of filing dispositive motions on the eve of or at the time of trial." L.C. v. M.A.J.,

451 N.J. Super. 408, 411 (App. Div. 2017). "When granting a motion will result

in . . . the suppression of a defendant's defenses, the motion is subject to Rule

4:46 . . . ." Cho, 443 N.J. Super. at 471. The motion must comply with all of

the timelines applicable to summary judgment applications. See ibid.

"Mitigation of damages is a concept which takes into account the injured

party's acts or failure to act when computing the amount of [their] recovery."

Ingraham v. Trowbridge Builders, 297 N.J. Super. 72, 82 (App. Div. 1997)

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(citing White v. Twp. of N. Bergen, 77 N.J. 538, 546 (1978)). Mullen addressed

whether the doctrine of mitigation was applicable to N.J.S.A. 18:5-49.1.7 81

N.J. Super. at 153. The issue there was "whether a person holding a position

with a local board of education is entitled to full payment of salary for the entire

period of [their] illegal dismissal, without mitigation, under N.J.S.A. 18:5-49.1."

Ibid. We found the Legislature had intended that "all claims made by illegally

dismissed persons under N.J.S.A. 18:5-49.1 be subject to the common law rule

of mitigation of damages." Id. at 159.

7

N.J.S.A. 18:5-49.1 was the predecessor statute to N.J.S.A. 18A:6-30. It

provided:

Whenever any person holding office, position or

employment with a local board of education or with the

State Board of Education shall be illegally dismissed or

suspended from his office, position or employment, and

such dismissal or suspension shall upon appeal be

decided to have been without good cause, the said

person shall be entitled to Compensation for the period

covered by the illegal dismissal or suspension;

provided, that a written application therefor shall be

filed with the local board of education or with the State

Board of Education, as the case may be, within thirty

days after such judicial determination.

[Mullen, 81 N.J. Super. at 155 (emphasis omitted)

(quoting N.J.S.A. 18:5-49.1).]

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Model Civil Charge 2.33, which applies to statutory discrimination and

retaliation employment claims, provides, in relevant part: "Although the back

pay award should be reduced by any actual earnings, it should not be reduced

by any unemployment benefits or other unearned income the plaintiff may have

received." Model Jury Charges (Civil), 2.33, at 8.

Applying the aforementioned standards of review and legal principles, we

reject defendant's arguments and affirm the court's orders. We are unpersuaded

by defendant's contention the court erred in disposing of its mitigation-based

defenses "even though the issue of mitigation involved a question of fact that

was not resolved previously on summary judgment." Plaintiffs' motions were

not filed on the eve of trial. When the court decided plaintiffs' first motion in

limine on March 29, 2023, trial was scheduled to begin on May 8, 2023. With

respect to plaintiffs' second motion in limine, they filed that application on April

28, 2023, and the trial date at that point was adjourned to July 3, 2023.

Therefore, both motions complied with the timelines as set forth in Rule 4:46-

1, which states "[a]ll motions for summary judgment shall be returnable no later

than [thirty] days before the scheduled trial date."

Additionally, it was not improper for the court to decide the legal issue of

whether plaintiff's retirement could be used to mitigate his damages or act as a

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cutoff date for his entitlement to back pay. Indeed, motions in limine may "be

used effectively to clarify legal issues in advance of trial." Sculler v. Sculler,

348 N.J. Super. 374, 376 (Ch. Div. 2001) (citing Kelly v. Berlin, 300 N.J. Super.

256, 270 (App. Div. 1997)).

Finally, the record does not support defendant's claim the court accepted

plaintiff's position he applied for retirement out of financial necessity in

reaching its decisions. The portions of the court's decisions defendant cites are

included in its discussion of the parties' arguments, not its analysis. Indeed,

whether plaintiff filed for retirement out of financial necessity was irrelevant to

the court's decisions.

We also conclude the court did not err in finding that plaintiff's retirement

could not be used to mitigate his damages, or act as a cutoff date for any back

pay to which he may be entitled. With respect to the issue of mitigation, Mullen

makes clear the common law principles of mitigation apply to claims under

N.J.S.A. 18A:6-30. 81 N.J. Super. at 159. The rationale for mitigation,

however, does not apply to the benefits plaintiff received via his early

retirement.

In Mullen, we explained to allow the appellant in that case to receive full

back pay without mitigation based upon his employment would result in a

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"windfall." Id. at 160. Here, as the court noted, there would be no windfall to

plaintiffs. Neither party disputes if plaintiff receives a back pay award, he is

obligated to reimburse the Division of Pensions for all retirement money

received and health insurance premium money expended on his behalf during

the time of his suspension and dismissal. Indeed, if defendant was permitted to

mitigate plaintiff's potential back pay award by the retirement benefits he

received, the absurd result would be plaintiff paying back the retirement benefits

twice.

We further find defendant's reliance on Willis unavailing. In that case,

we concluded "the unemployment compensation benefits [the] plaintiff received

[were] to be deducted by the township from the back pay due him." 163 N.J.

Super. at 165. Unlike Willis, where the plaintiff was not required to repay the

unemployment benefits he received, here, as noted, plaintiff will be required to

reimburse the Division of Pensions should he recover a back pay award.

With respect to defendant's argument plaintiff's retirement should serve to

act as a cutoff date to any potential back pay award, we are similarly

unconvinced. The sole case defendant relies upon for this argument is Kelty.

There, Kelty was suspended from the New Jersey State Police due to his

involvement in a pyramid scheme. Kelty, 321 N.J. Super. at 87-88. After he

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was found guilty, Kelty was required to forfeit his office under N.J.S.A. 2C:51 -

2. Id. at 88. Before his forfeiture took place, however, Kelty submitted an

application for retirement. Ibid. Eventually, we issued an opinion reversing his

conviction. Ibid.

Kelty subsequently filed a complaint seeking, among other things, back

pay. Id. at 88-89. We concluded he was entitled to back pay "from the date of

his court-ordered forfeiture . . . to the date of his retirement." Id. at 93-94.

Essential to our conclusion was the fact that although the Legislature "ha[d]

enacted statutes which allow various public officials to receive compensation or

emoluments of office even when those officials have provided no service, [the

Legislature] ha[d] not so provided for members of the New Jersey State Police."

Id. at 91. Therefore, the basis for our conclusion was not the fact of Kelty's

retirement, but the "common law rule . . . that where no public service is

rendered, no salary may be paid, unless the Legislature has specifically provided

otherwise."8 Id. at 93 (citing De Marco v. Bd. of Chosen Freeholders of Bergen

Cnty., 21 N.J. 136, 143-44 (1956)).

8

We further note, our Supreme Court has since abrogated the common law rule

of "no work, no pay." Int'l Fed'n of Prof'l & Tech. Eng'rs, Loc. 195, 169 N.J. at

540.

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Again, defendant seeks to create a legal fiction by fixing the back pay

analysis at a moment in time. In other words, defendant argues any back pay

award which plaintiff may be entitled to should be limited by virtue of his early

retirement; ignoring the undisputed fact plaintiff is no longer retired.

Defendant's argument also overlooks that plaintiff rescinded his retirement,

defendant rehired him to his previous position, and plaintiff is obligated to

reimburse the Division of Pensions for all money expended on his behalf. All

these facts effectively render plaintiff's retirement a nullity with respect to this

issue, and we discern no reason why it should serve to limit any potential back

pay award.

Here, the Legislature has explicitly provided that a public school

employee who has been illegally dismissed or suspended "shall be entitled to

compensation for the period covered by the illegal dismissal or suspension ."

N.J.S.A. 18A:6-30. As such, should plaintiffs be entitled to back pay under

N.J.S.A. 18A:6-30, plaintiff's retirement does not terminate his entitlement to

back pay. Additionally, because the court correctly found plaintiff's retirement

could not be used to mitigate his damages or terminate his entitlement to back

pay, it correctly denied defendant's subsequent motions for reconsideration.

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In sum, we affirm the trial court's orders dated March 29, May 30, July

21, and August 25, 2023. We vacate the January 19, 2021 order granting

plaintiffs summary judgment, vacate the September 18, 2023 civil action order

of disposition and the October 16, 2023 final judgment order, and remand for

further proceedings. To the extent we have not addressed any of defendant's

remaining arguments, it is because we have concluded they are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, vacated in part, and remanded for further proceedings in

accordance with this opinion. We do not retain jurisdiction.

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