[149 NJSuper Page 506] The parties move by cross-motions for summary judgment. Plaintiffs, members of the Jersey City Fire Department, commenced an action in lieu of prerogative writs pursuant to R. 4:69 seeking relief from Jersey City's refusal to accede to their request for prior service credit which they allege should be applied to their (a) vacation pay, (b) longevity pay, and (c) retroactive back pay. Plaintiffs
assert that N.J.S.A. 40A:9-5, as a matter of law, entitles them to such credit.
It is conceded that plaintiffs' prior service with either a municipality or county arose as follows:
1. Taureck was employed as a fireman in New Brunswick from July 4, 1974 until September 7, 1975 and commenced employment with defendant as a firefighter on September 29, 1975.
2. Kelly was employed as a fireman in Weehawken from January 6, 1972 until September 28, 1975 and commenced employment with defendant as a firefighter on September 29, 1975.
3. Byers was employed by the Hudson County Board of Freeholders from October 31, 1967 until November 13, 1972 on which date he was appointed to defendant's fire department.
4. Krajnik was employed by the Hudson County Board of Freeholders from May 28, 1970 until January 28, 1976. He was appointed a Jersey City firefighter on September 29, 1975.
5. Cobb was employed by the Weehawken Fire Department from April 6, 1972 until September 25, 1975, and was appointed to the defendant's fire department on September 29, 1975.
Defendant contends that plaintiffs are not entitled to a credit for prior services with other municipalities and counties, raising six affirmative defenses: (1) failure to state a claim upon which relief may be granted; (2) statute of limitations; (3) waiver of statutory rights by acceptance of collective bargaining agreement; (4) estoppel; (5) laches and (6) failure to exhaust administrative remedies.
In its cross-motion for summary judgment, defendant avers that plaintiffs' rights with respect to prior service credit are governed solely by the collective bargaining agreements between the City of Jersey City and the Jersey City Firefighters Association, relying on N.J.S.A. 34:13A-1
et seq. (the New Jersey Employer-Employee Relations Act, hereinafter EERA). Defendant asserts that its position is supported by N.J.S.A. 40A:9-10.1, which provides that the governing body of a municipality may contract with an employee to perform duties at a lesser salary than is "otherwise fixed." Defendant also contends that plaintiffs Krajnik and Byers are not entitled to prior credit because their prior service was not as firemen.
Preliminarily, the court will deal with certain of defendant's ancillary defenses. An action in lieu of prerogative writs will lie in a situation wherein a statutory benefit is demanded from the governmental entity that has the asserted obligation to grant it and it is denied. Cf. Ward v. Keenan , 3 N.J. 298, 308 (1949).
As to the time limits provided for the filing of a complaint in lieu of prerogative writs, R. 4:69-6(a) and (c) are controlling. R. 4:69-6(a) reads as follows:
No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed, except as provided by paragraph (b) of this rule.
The court finds that defendant informally denied plaintiffs' request for prior service credit on April 26, 1976. Plaintiffs filed their complaint on November 15, 1976. Authority to enlarge the 45-day time period where the interest of justice requires can be found in R. 4:69-6(c). See Bernstein v. Krom , 111 N.J. Super. 559, 564 (App. Div. 1970).
Although plaintiffs assert that defendant's violation of N.J.S.A. 40A:9-5 is a continuing one, thereby tolling the limitation period, the court finds that even if that were not the case, i.e. , if the court was to find that plaintiffs' action accrued on April 26, 1976, under Bernstein, supra , the interest of justice requires that plaintiffs' claim be heard. Additionally, disposition on the merits may help clarify the law which appears to be unsettled in this area.
While defendant's claim that plaintiffs failed to exhaust administrative remedies by seeking relief through grievance machinery outlined in the collective bargaining agreement, it is clear that the nature of the controversy is grounded solely in law. Because it would be tantamount to "useless delay," the exhaustion of administrative remedies is not here required. Brunetti v. New Milford , 68 N.J. 576, 589 (1975); Nolan v. Fitzpatrick , 9 N.J. 477, 486 (1952). In any event, the requirement of exhaustion of remedies is neither jurisdictional nor absolute in terms. Discretion is vested in the trial court "to determine whether the interests of justice require that the administrative process be bypassed." Durgin v. Brown , 37 N.J. 189, 202-203 (1962).
N.J.S.A. 40A:9-5 and its judicial treatment will now be considered, followed by a consideration of the EERA and its relevant provisions, particularly N.J.S.A. 34:13A-8.1. Ultimately, the court must determine whether these statutes are to exist side by side.
In Pfitzinger v. Public Employment Retirem't System Bd. of Trustees , 62 N.J. Super. 589 (Law Div. 1960), the court stated:
In construing legislative intent [the court] must look to the objective sought to be attained, the nature of the subject matter, the contextual setting and all statutes in pari materia. The statute must be construed as a whole with reference to the system of which it is a part. [at 601; citations omitted]
The Legislature is presumed to be familiar with its own enactments and to have passed or preserved cognate laws with the intention that they be construed to serve a useful and consistent purpose. Courts have the duty of reconciling apparently conflicting statutes so as to give effect to both expressions of the Legislative will. [ Coast Cigarettes Sales v. Long Branch Mayor & Council , 121 N.J. Super. 439, 449 (Law Div. 1972)]
N.J.S.A. 40A:9-5 reads as follows:
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.
This enactment amended R.S. 40:11-5 in various grammatical respects, the most significant by deleting the article "the" from its place immediately preceding "municipal employment," "county employment" and "municipal government," thus removing the previous restriction on an employee from transferring his prior employment credits when he transfers to a position out of the initial county of employment.
In Libby v. Union Cty. Freeholder Bd. , 125 N.J. Super. 471 (App. Div. 1973), plaintiffs, county employees, sued defendant for longevity pay based on N.J.S.A. 40A:9-5. All plaintiffs had previously been employees of various Union County municipal police departments. Libby arose, like the present controversy, in the context of cross-motions for summary judgment. The court held that the statute in question applied to cases of voluntary transfer where an employee chose to seek new employment, denying defendant's contention that only involuntary transfer triggered operation of the statute. Defendant's theory, the court noted, would render the legislation useless since involuntary transfers are not cognizable on a significant scale.
Libby further held that when a municipal employee leaves his employment and is immediately thereafter appointed to a position in ...