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Giorno v. Township of South Brunswick

Decided: July 26, 1979.

JOSEPH GIORNO, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF SOUTH BRUNSWICK, DEFENDANT-RESPONDENT



On Appeal from Superior Court, Law Division, Middlesex County.

Allcorn, Seidman and Botter. The opinion of the court was delivered by Botter, J.A.D.

Botter

Plaintiff, a police officer employed by defendant, appeals from a judgment denying him benefits attributable to his prior service as a member of the Middlesex County Park Police. Plaintiff was employed as a patrolman with the County Park Police for 5 1/2 years commencing in May 1962. He was first employed by defendant in December 1967. He came into defendant's service at an annual salary of $6,000, which was the first step of the range for patrolmen at that time of $6,000 to $7,903. At the time he was hired there was no discussion about credit for prior service. (Defendant asserts that at that time the salary range for patrolmen with the County Park Police was $5,226 to $6,554 and that plaintiff's annual salary with the County was then $6,059.)

In September 1977 plaintiff filed this action in lieu of prerogative writs claiming prior service credits pursuant to N.J.S.A. 40A:9-5. He claimed 39 1/2 sick days accumulated while employed by the county, salary differential for each year he was employed by defendant, totalling $14,777.40 as of August 1977, plus credits "for any future salary steps, holiday, and over-time adjustments, back pay and sick days which may accrue during the pendency of this litigation."

In the trial court defendant urged that plaintiff's claim be barred by the doctrines of laches, waiver and estoppel. Defendant's contentions were based in part upon appellant's participation as a member of the P.B.A. negotiating team in 1968 and for several years thereafter in negotiating salaries, longevity, holiday pay and other benefits. These negotiations were reflected in defendant's ordinances and personnel code. In 1971 appellant was promoted to sergeant and thereafter continued to participate in negotiations concerning salary and other benefits reflected in contracts entered into by defendant and the P.B.A. Obviously, the negotiated contracts did not provide additional benefits to transferred employees based upon their prior service.

N.J.S.A. 40A:9-5 provides for carrying over credit for prior periods of employment on transferring from one position to another in municipal or county government on the following terms:

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 in 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.

N.J.S.A. 40A:9-5 became effective on July 1, 1971. However, it continued without substantial change the provisions of N.J.S.A. 40:11-5. Caldwell v. Rochelle Park Tp. , 135 N.J. Super. 66, 73-75 (Law Div.1975).

Relying to some extent upon Widmer v. Mahwah Tp. , 151 N.J. Super. 79, 81 (App.Div.1977), the trial judge held that plaintiff's participation in negotiating employment terms over the years "all combine to effect a waiver or an estoppel or both." Accordingly, judgment was entered in favor of defendant.

In Widmer , we held that the benefits of N.J.S.A. 40A:9-5 could be waived and that the employee there had in fact waived those benefits when he accepted employment after being told that he was starting "fresh, right at the bottom," not as a "lateral transfer," and that his prior service in another municipality "would not be credited him for purposes of longevity and seniority." As an alternate basis for the decision we held that the employee would be estopped from renouncing the terms of employment he had agreed upon.

In the case at hand we find no express waiver of the benefits conferred by N.J.S.A. 40A:9-5 or its predecessor, N.J.S.A. 40:11-5, which was in ...


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