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Kenney v. Township of East Brunswick

Decided: January 21, 1980.

JOHN KENNEY, FREDERICK LAURIE AND JOHN J. SOKE, JR., PLAINTIFFS-APPELLANTS AND CROSS-RESPONDENTS,
v.
TOWNSHIP OF EAST BRUNSWICK, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT AND CROSS-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Crane, Milmed and King.

Per Curiam

Plaintiffs John Kenney, Frederick Laurie and John J. Soke, Jr., police officers in the East Brunswick Department of Public Safety, sued defendant Township of East Brunswick (township) seeking to recover from it credit (i.e. , monies and benefits allegedly due them) for prior service pursuant to N.J.S.A. 40A:9-5. Kenney, who received his appointment with defendant effective September 28, 1970, had previously been employed as a patrolman with the Middlesex County Park Police Department from June 17, 1968 through October 9, 1970. Laurie, who was appointed effective February 9, 1970, had previously been employed as a patrolman with the Middlesex County Park Police Department from January 13, 1969 through February 9, 1970. Soke became a police officer with defendant effective May 12, 1969. He had previously been a police officer with the South River Police Department from December 4, 1967 until May 11, 1969.

Following a nonjury trial judgment was entered: (1) in favor of Kenney and against defendant township for $1,185 longevity pay and 12 days vacation pay; (2) in favor of Laurie and against the township for $611 longevity pay and 5 days vacation pay, and (3) in favor of Soke and against the township for $574

longevity pay and 5 days vacation pay. Plaintiffs appeal and defendant township cross-appeals from these judgments.

Plaintiffs contend that pursuant to N.J.S.A. 40A:9-5 and its predecessor, N.J.S.A. 40:11-5, they are entitled to seniority credit from defendant township for the years they spent in the employ of the County of Middlesex or Borough of South River and that "[t]his credit should be longevity pay, vacation days and salary from at least July 1, 1971 if not from the effective date of their employment with the Township." They also contend that their claims are not barred by the labor contracts which were agreed to by defendant township and the Patrolmen's Benevolent Association of which they were members, because the agreements contained a "savings clause" and because they (plaintiffs) were not aware of N.J.S.A. 40A:9-5 when the contract documents were signed; that these labor agreements do not affect their vested seniority rights, and that their claims are not barred by the doctrines of laches, waiver or estoppel.

Defendant township argues that plaintiffs are equitably estopped from asserting a claim for benefits against the township "by entering into the collective bargaining agreements"; "plaintiffs have waived any rights which they might have had under N.J.S.A. 40A:9-5"; the negotiated labor agreement, which covers salary and other benefits, controls the amount of plaintiffs' salaries by virtue of N.J.S.A. 40A:9-10.1; plaintiffs' complaint should have been dismissed because of laches and, additionally, the complaint should have been dismissed because N.J.S.A. 40A:9-5 is unconstitutional.

The trial judge did not consider the township's constitutional attack upon the statute.*fn1 Following oral argument earlier before another Part of this court, however, the parties were directed to file supplemental briefs and the Attorney General

was directed to file a brief on the issue of whether N.J.S.A. 40A:9-5 constituted unconstitutional special legislation. In this regard plaintiffs contend that the township has no standing to question the constitutionality of N.J.S.A. 40A:9-5 and, even if it did, the legislation passes constitutional muster. The Attorney General also argues that the statute is not unconstitutional special legislation. At reargument before us the issue was explored in depth.

N.J.S.A. 40A:9-5, effective July 1, 1971, provides:

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 ...


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