Kloss v. Parsippany-Troy Hills Tp., PARSIPPANY-TROY

• Decision Date: 26 July 1979
• Docket Number: PARSIPPANY-TROY
• Parties: George KLOSS, Wayne R. Loudon, Alfred E. Slaska, Robert Rizzolo, Edward J. Wisniefski, Joseph S. Moore, William C. Makowitz, John C. DeYoung, Russell P. Miller, Plaintiffs-Appellants, v. TOWNSHIP OFHILLS, a municipal corporation of the State of NewJersey, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 153

170 N.J.Super. 153

406 A.2d 170

George KLOSS, Wayne R. Loudon, Alfred E. Slaska, Robert Rizzolo, Edward J. Wisniefski, Joseph S. Moore William C. Makowitz, John C. DeYoung Russell P. Miller, Plaintiffs-Appellants, v. TOWNSHIP OF PARSIPPANY-TROY HILLS, a municipal corporation of the State of NewJersey, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued April 30, 1979.

Decided July 26, 1979.

Jack L. Wolff, Morristown, for plaintiffs-appellants (Scerbo, Kobin & Wolff, Morristown, attorneys).

Roy R. Claps, Mountain Lakes, for defendant-respondent (Pendleton & Latzer, Mountain Lakes, attorneys; Bertram J. Latzer, Mountain Lakes, and Roy R. Claps on the brief).

Before Judges ALLCORN, SEIDMAN and BOTTER.

The opinion of the court was delivered by

BOTTER, J. A. D.

Plaintiffs, nine police officers employed by Parsippany-Troy Hills, commenced this action in May 1976 to compel defendant to grant them prior service credits pursuant to N.J.S.A. 40A:9-5 based upon their past employment by municipal or county governments. They sought retroactive pay differentials, vacation and longevity pay, and preference in promotional examinations calculated on the basis of their years of prior service in relation to their employment by defendant. Some of the issues raised are the same as those decided by us this day in Giorno v. South Brunswick Tp., 170 N.J.Super. 162, 406 A.2d 175.

The relevant employment history of each plaintiff was established by the testimony and stipulations as follows:

                                       Date
                      Name and         Hired by          Prior                  Prior
                      Position         Defendant       Employment             Employer
                ---------------------  -----------  ----------------  -------------------------
                George Kloss           1/70         2/69 to 1/70      Sheriff's Office
                Detective                                             Morris County
                Wayne R. Loudon        7/71         7/67 to 7/71      Police Dept
                Detective                                             Town of Boonton
                Alfred A. Slaska       8/74         12/19/66 to       Police Dept
                Patrolman                            2/8/74           City of Garfield
                                                    2/8/74 to         Police Dept
                                                     8/19/74          Tp. of Rockaway
                Robert Rizzolo         12/72        3/23/70 to        Police Dept.
                Patrolman                            12/29/72         City of Newark
                Edward J. Wisniefski   6/75         10/19/71 to       Passaic Cty. Park Police*
                Patrolman                            11/5/73
                                                    11/5/73 to        City of Passaic
                                                     6/1/75           Police Dept.
                Joseph S. Moore        7/74         8/73 to 7/74      Defendant as radio
                                                                      dispatcher
                William S. Makowitz    7/74         1/31/72 to        City of Newark
                Patrolman                            7/8/74           Police Dept.
                John C. DeYoung        2/75         8/73 to 2/75      Defendant as
                Patrolman                                             dispatcher
                Russell P. Miller      8/73         9/64 to 8/73      Essex Cty. Park Comm'n
                Patrolman
                Note * The testimony of plaintiff Wisniefski reveals that his employer was the
                       Passaic County Park Commission.
                

According to the testimony, when defendant hired plaintiffs as police officers plaintiffs were not aware of N.J.S.A. 40A:9-5 ¹ or its predecessor, N.J.S.A. 40:11-5, and plaintiffs did not know they could claim credit for their prior public service. Defendant's business administrator and comptroller also testified that neither he nor other township employees, to his knowledge, were aware of these statutes. The policy followed in hiring police officers with experience who had previously completed the six or eight-week training course at the State Police Academy was to pay them a salary starting at the second step of the salary range. In fact, some of the plaintiffs, Kloss, Loudon, Slaska and Makowitz, for example, did start at the second pay step.

It was not until July 1975 that plaintiffs first learned of N.J.S.A. 40A:9-5. In June of that year Caldwell v. Rochelle Park Tp., 135 N.J.Super. 66, 342 A.2d 583 (Law Div.1975), was decided. In that case Judge Petrella correctly read this court's opinion in Libby v. Union Cty. Freeholder Bd., 125 N.J.Super. 471, 311 A.2d 749 (App.Div.1973), as terminating the interpretation given the statute in Carroll v. Caulfield, 80 N.J.Super. 472, 194 A.2d 35 (Law Div.1963). Carroll held that the statute applied to In voluntary transfers only. Carroll apparently had wide acceptance that prevailed despite the Libby decision in 1973, until Caldwell came along. Caldwell was well publicized in police circles and was the subject of articles in the P.B.A. publication, Finest, in the September and November 1975 issues. This inspired plaintiffs, starting in November 1975, to make demands on defendant for back pay adjustments and adjustments in vacation time, longevity benefits and promotional status to reflect their prior service. These demands were referred to the township attorney for his advice and were rejected in January 1976. This action was commenced some months later.

Initially the trial judge rejected the defenses of laches, waiver and estoppel, but he dismissed Miller's claim because his prior service was in the employ of the Essex County Park Commission rather than Essex County itself. For the same reason that portion of Wisniefski's prior service in the employ of the Passaic County Park Commission was disallowed. On reargument, however, judgment was entered in favor of defendant on the ground that contracts entered into between defendant and P.B.A. Local 131 established salaries, vacation and longevity benefits and, as provided by Article XXI, "all wages, rights and responsibilities of the parties which were or could have been the subject of negotiations." Article XXI of the two negotiated agreements covering the years 1973-1974 and 1975-1976 further provided:

During the term of this Agreement, neither party will be required to negotiate with respect to any such matter, whether or not covered by this Agreement, and whether or not within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this Agreement.

Moreover, N.J.S.A. 40A:9-10.1 provides that a county or municipality may contract with any officer or employee "to perform the duties of his office, position or employment at a lesser salary, wage or compensation than otherwise fixed and when the contract shall be entered into, it shall control the amount of such salary." Relying on this statute and the negotiated contracts, the trial judge in a written opinion held that plaintiffs were precluded from claiming any wage or salary adjustments. He further held that plaintiffs were barred on the principle of equitable estoppel from asserting claims for other benefits, such as longevity pay, vacation time and preference for promotional examinations, since (a) the contracts covered "many, if not all, of the rights that are subject matters of collective bargaining," (b) plaintiffs accepted their salaries without protest when they were hired, and (c) defendant "would incur sever(e) detriment if compelled to provide the necessary financing to support some of these claims." The proofs showed that plaintiffs' total claims approximated $28,000, or $20,000 if Miller's and Wisniefski's claims for county park commission service are disallowed. This compares with the total municipal budget for 1976 of about $6,000,000.

We have no doubt that when plaintiffs were first employed they could have expressly agreed to accept salaries and other terms that excluded the benefits provided by N.J.S.A. 40A:9-5. Widmer v. Mahwah Tp., 151 N.J.Super. 79, 376 A.2d 567 (App.Div.1977), so held, and that holding is consistent with N.J.S.A. 40A:9-10.1. But we do not view the contracts negotiated by P.B.A. Local 131 for all patrolmen employed by defendant as expressly waiving the rights and benefits conferred by N.J.S.A. 40A:9-5 on some of its members.

The negotiated contracts embodied general provisions applicable to all police officers governed by its terms, without distinction based on their individual circumstances. Article IV, dealing with salaries for patrolmen, established four ranges, a starting salary, and salaries after the first, second and third year of employment. Similarly, provisions dealing with other benefits, such as vacation time and longevity, which increase with years of service, are in general terms. The contracts do not reflect negotiations on behalf of a particular officer or group of officers based upon their prior municipal or county service elsewhere or other individual characteristics. In our view, resort to the contracts begs the issue in this case. The contracts provide certain benefits for patrolmen according to their years of employment with defendant. But the contracts do not foreclose application of N.J.S.A. 40A:9-5 in determining how those years of employment are to be calculated.

N.J.S.A. 40A:9-5 mandates that the years of employment "shall be computed as if the whole period of (qualifying municipal or county) employment of such employee had been in the service * * * or in the position, to which the said employee had been transferred." The terms of N.J.S.A. 40A:9-5 can be read into the negotiated contract without violence to its terms. Thus, we reject the concept that the contracts negotiated by P.B.A. Local 131 "as the sole and exclusive collective negotiation bargaining agent for all patrolmen employed by" defendant foreclosed plaintiffs' claims.

However, in the circumstances of this case, we will bar on the ground of equitable estoppel plaintiffs' claims for retroactive adjustments in wages, vacation pay, and longevity pay for the period preceding the commencement of this action....