Petrella, J.c.c., Temporarily Assigned.
This matter is before the court on cross-motions for summary judgment. Both parties agree that the controversy is ripe for summary judgment on the legal issue.
It is undisputed that plaintiff was employed as a patrolman by the Borough of Ramsey from June 1, 1964 to April 30, 1967, when plaintiff voluntarily transferred from the Police Department of Ramsey to that of defendant Township of Rochelle Park. A March 20, 1967 township committee resolution appointed plaintiff a patrolman "effective May 1, 1967 at a salary as provided in the Salary Ordinance for a patrolman having two years prior experience." The appointment was conditioned on an initial one-year probationary period and was expressly subject to the terms and conditions of the salary ordinance adopted March 6, 1967. In February 1975
(apparently after learning in 1974 of certain recent court decisions), and relying on the 1971 enactment of N.J.S.A. 40A:9-5, plaintiff filed a complaint in lieu of prerogative writ*fn1 seeking additional longevity and vacation pay from the township based on his 2 years and 11 months prior experience with the Ramsey Police Department. Apparently he also seeks credit for an additional 11 months of benefits not received under his appointment resolution. Defendant denies plaintiff is entitled to additional compensation or benefits.
The parties agree that the issue before the court is the applicability of N.J.S.A. 40A:9-5 to plaintiff upon a transfer from employment in one municipality to employment in another municipality in the same county.
The Appellate Division has recently ruled on transfers from municipal to county employment under N.J.S.A. 40A:9-5, effective July 1, 1971 in L. 1971, c. 200. This statute provides as follows:
Rights of certain employees transferred to other positions.
Whenever heretofore or hereafter a transfer has been or shall be effected by appointment, assignment or promotion of a municipal employee to any other department or position in municipal employment, or to a position or department of the county government; or of a county employee to any other position or department in county employment, or to a department or position of a 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 transferred.
If the above statute applies to Officer Caldwell then he would be entitled to credit for previous municipal employment, measured from the date of his first employment with
Ramsey, and a salary adjustment from either that date or the effective date of N.J.S.A. 40A:9-5, unless limited by laches or waiver. See Libby v. Union Cty. Bd. of Freeholders, 125 N.J. Super. 471, 474 (App. Div. 1973).
Defendant township contends that N.J.S.A. 40A:9-5 is inapplicable to plaintiff and that while New Jersey cases have held that a transfer described in the statute need not be involuntary, they involved employee transfers from municipal employment to positions in county government, relying upon Libby v. Union Cty. Bd. of Freeholders, supra (voluntary municipal to county employment) and an unreported decision of this court decided in Bergen County on December 6, 1974.
The municipality urges that the statute was not designed to cover individuals employed in one municipality who voluntarily resign and take employment in another municipality. Rather, it contends the statute was designed to cover employees who are involuntarily transferred from one position to another position in the same municipality by appointment, assignment or promotion, or a transfer from municipal to county employment.
Plaintiff argues that N.J.S.A. 40A:9-5 and subsequent case law entitle him to the relief sought. See also Fivehouse v. Passaic Valley Water Comm'n, 127 N.J. Super. 451 (App. Div.), certif. den. 65 N.J. 565 (1974) (transfer between municipal employment and public agency not covered). In addition, plaintiff contends that changes in the wording of N.J.S.A. 40A:9-5 from the source law, N.J.S.A. 40:11-5, as well as the wording of the current statute itself, would support a finding of legislative intent to make the statute applicable where a municipal employee voluntarily transfers to employment in another municipality as opposed to a transfer within the same municipality.
In determining whether plaintiff comes within the statutory provision, the court has examined the source law, case interpretation of the prior statute, the circumstances leading to its amendment in a legislative revision and the changes
made in its wording, to see if they shed light on legislative intent.
The Appellate Division, in construing N.J.S.A. 40A:9-5, did not cite or rely on the case of Carroll v. Caufield, 80 N.J. Super. 472 (Law Div. 1963), as to legislative history or interpretation. In Carroll five Newark employees who voluntarily became members of that city's fire department sought credit for past service with various other city departments from which they had voluntarily resigned after successfully passing Civil Service examinations. The court in Carroll looked to the legislative intent of N.J.S.A. 40:11-5 ...