Civil action. On motion for summary judgment.
Sugrue, J.c.c. (temporarily assigned).
This matter is before the court on defendants' motion for summary judgment and plaintiffs' cross motion for the same relief.
On the following facts there is agreement among the adversary parties. Each of the five plaintiffs was an employee of the City of Newark prior to his employment with the Newark Fire Department. Thomas J. Carroll became a member of the department on February 1, 1960 after having been assigned to the Police Telegraph Division since May 1, 1955; David Napoli became a member of the department on March 1, 1959 after serving as a patrolman for the Newark Police Department since April 28, 1958; Bernard Gerrity held the same post from April 28, 1958 until his appointment to the
department on March 1, 1959; Eugene Dixon also joined the department on March 1, 1959 after having served the City of Newark as a patrolman since December 10, 1956; Thomas Kaczka, since July 9, 1951 an employee of the City of Newark assigned to the Fireline Department, became a member of the Newark Fire Department on March 1, 1959.
Basing their claims, diverse as to dollar amounts but the same as to the issue involved, on their previous municipal employment, the plaintiffs invoke R.S. 40:11-5 which reads as follows:
"Whenever heretofore there has been or hereafter there may be effected by appointment, transfer, assignment or promotion, of a municipal employee, to any other department or position in the municipal employ, or to a position or department of the county government; or when there has been or hereafter may be effected by appointment, transfer, assignment or promotion, of a county employee, to any other position or department in the county employ, or to a department or position of the municipal government, in counties of the first or second class, the period of such prior service in said county or municipal employment, for any purpose, whatsoever, shall be computed as if the whole period of employment of such employee had been in the service of the department, or in the position, to which the said employee had been appointed, transferred, assigned or promoted."
Each plaintiff alleges that by virtue of this statute he is entitled to have been paid at a rate reflecting his previous service rather than at the rate provided for new employees of the Newark Fire Department.
It is the contention of defendants that R.S. 40:11-5 is inapplicable to plaintiffs. This contention is based on the Fire Department salary ordinance wherein the salaries paid are based on an "in service" requirement, and the statutes authorizing such ordinances: R.S. 40:48-1, N.J.S.A. 40:46-23, N.J.S.A. 40:69A-29. It is defendants' view that to uphold plaintiffs' position would be to impair seriously the efficacy of those statutes, to interfere seriously with the proper conduct of municipal affairs, to produce unreasonable results and to be beyond the intent of the Legislature.
Specifically alluding to the facts of the case, defendants claim alternatively that plaintiffs are barred by reason of release, waiver and estoppel. They point out that since the time of their employment plaintiffs have accepted checks inscribed,
"ACCEPTED IN FULL PAYMENT FOR ALL SERVICES RENDERED BY ME, LESS AUTHORIZED DEDUCTIONS."
An additional claim is want of diligence on plaintiffs' part in pursuing their claims. In countering defendants' views, plaintiffs contend that their interpretation of R.S. 40:11-5 will lead to no unreasonable result and will not in any way impede muncipalities in performing their duly authorized services. They contend, further, that the statute cited is subject to no judicial construction, being clear on its face and clearly applicable to their circumstances.
As to waiver, release and estoppel, plaintiffs contend that defendants were on notice of their claims, by virtue of the mere existence of R.S. 40:11-5. Further, they deny that they failed to advise an authorized agent of the defendants of those claims. Accepting the checks inscribed as quoted above, was, they contend, an economic necessity for which they should not be penalized.
Finally, in reply, defendants dispute the limited application which plaintiffs attribute to their interpretation. Rather, they contend that such an interpretation will have far-reaching and injurious consequences to municipalities. As defendants read R.S. 40:11-5, it is not designed to apply to those persons (such as plaintiffs herein) who voluntarily resign from municipal employment in one department and accept employment after successfully passing a Civil Service examination to fill vacancies in another department. In addition, they reassert their claim of waiver and estoppel by denying that any protest was ever made to an agent authorized to receive it.
This case must turn, then, on the intent of the Legislature in enacting R.S. 40:11-5. It is clear ...