The facts in this matter were stipulated.
Plaintiff William E. Pfeffer began working as a patrolman for the Township of Riverside, Burlington County, New Jersey, on April 1, 1968. On February 15, 1971, preferring to work in the community where he resided, plaintiff obtained new permanent employment as a patrolman with the Township of Delran in the same county. Some consideration was given to his prior service in Riverside: he received a $500 increment and was allowed to carry forward accumulated vacation and sick days. Delran did not require him to serve a probationary period and could not thereafter terminate his employment without cause. The remaining terms of the employment remained negotiable, within reason.
During the years 1971 through 1973, inclusive, police salaries and fringe benefits were established by ordinance and not by contract. Thereafter, these terms of employment were arrived at through collective bargaining between the township and the Delran Patrolman's Association. Beginning in 1974 the employment contracts were for terms of two years.
On July 1, 1971 the Legislature adopted N.J.S.A. 40A:9-5, which provides for "tacking" periods of municipal employment. Neither party was aware of the statute or of any decision construing it until about February 28, 1977. On that date plaintiff's counsel wrote to the mayor and chief of police of Delran, referring to the statute and requesting additional benefits to which he would be entitled by reason of his service in Riverside. That demand was refused by letter of April 20, 1977. If plaintiff had been permitted to add his Riverside service to his Delran contract, he would have been entitled to additional payments of salary and to other fringe benefits, including improved seniority.
Plaintiff filed his complaint on June 3, 1977. Initially, defendant argues that the suit is barred under R. 4:69-6(a) which provides: "No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to review, hearing or relief claimed * * *." The question is whether the "right to review, hearing or relief" accrued at the time the statute was adopted, or at some later date prior to April 18, 1977, or on April 20, 1977 when Delran refused the plaintiff's demand for his statutory rights.
The complaint in this action could not be sustained until after a demand by plaintiff and a refusal by the defendant, since no breach of defendant's obligation to plaintiff would have occurred until then. Consequently, I find that plaintiff's right to relief from this court did not accrue until April 20, 1977. See Taureck v. Jersey City , 149 N.J. Super. 503, 507-508 (Law Div. 1977). The complaint was filed 44 days after that date -- within the time required by the Rule. Even if this were not so, I would enlarge the time restrictions in the interest of justice, as permitted by R. 4:69-6(c); we are dealing with two parties innocent of any knowledge concerning the statute until the time of plaintiff's demand; neither should be barred by technical time requirements. It may be noted that most, if not all, of the cases dealing with this statute did not enforce the 45-day condition.
The first case to construe the statute, Libby v. Union Cty. , 125 N.J. Super. 471 (App. Div. 1973), held that a municipal employee, voluntarily obtaining employment in county government, was entitled to the tacking benefits provided by the statute. The court approved the judgment of the trial court awarding longevity pay for the years following the date the complaint was filed, reversing and remanding, however, for a plenary hearing on the question of whether the doctrine of waiver or laches should have barred benefits for the time prior to the commencement of the suit. These years reflected a time period before the statute in question was adopted.
In Caldwell v. Rochelle Park , 135 N.J. Super. 66 (Law Div. 1975), the court considered the rights of a patrolman, employed by one municipality for about three years, who thereafter voluntarily transferred to another on April 30, 1967. The appointing resolution adopted by the second township established a salary commensurate with that of a patrolman with two years' prior experience. The patrolman filed his complaint in February, 1975, seeking additional longevity and other benefits under the statute. The court, refusing to apply either doctrine of waiver or estoppel, found the patrolman entitled to the benefit of the statute after its effective date. It refused to provide any monetary award which would have reflected "tacking" for years of service prior to the date the statute was adopted, in the absence of a "clear expression of legislative intent." The court said:
Taureck v. Jersey City , 149 N.J. Super. 503 (Law Div. 1977), involved firemen who transferred from one municipal fire department to another. All transfers occurred from 16 to 55 months after the adoption of N.J.S.A. 40A:9-5. Suit against Jersey City was commenced on ...