Ballurio v. Castellini

• Decision Date: 19 January 1954
• Docket Number: No. A--40,A--40
• Citation: 102 A.2d 662,29 N.J.Super. 383
• Parties: BALLURIO v. CASTELLINI et al. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 383

29 N.J.Super. 383

102 A.2d 662

BALLURIO v. CASTELLINI et al.

No. A--40.

Superior Court of New Jersey.

Appellate Division.

Argued Dec. 14, 1953.

Decided Jan. 19, 1954.

Nathaniel Rogovoy, Millville, for appellant (Greenblatt & Greenblatt, Vineland, attorneys).

Lawrence N. Park, Camden, for respondents (D. Joseph Novaria, Vineland, attorney).

Before Judges JAYNE, FRANCIS and SMALLEY.

The opinion of the court was delivered by

FRANCIS, J.A.D.

The basic issue presented here is whether an employee in the public service, who has met the statutory conditions as to veteran status, age and length of service, must be retired on pension when he applies therefor even though there are serious charges pending against him at the time, which, if proved, will justify his dismissal from the service.

N.J.S.A. 43:4--2 provides:

'When an honorably discharged soldier, sailor or marine has or shall have been for twenty years continuously or in the aggregate in office, position or employment of this State or of a county, municipality or school district or board of education, the body, board or officer having power to appoint his successor in case of vacancy may, with his assent, order his retirement from such service, or he shall be retired on his own request.'

N.J.S.A. 43:4--1 imposes the additional qualification that the veteran shall have attained the age of 62 years, and R.S. 43:4--3, N.J.S.A. provides that a person who complies with sections 1 and 2 'shall be entitled' to a pension.

On or about March 28, 1953 appellant James L. Ballurio was arrested on complaints charging him with the crime of abortion in violation of N.J.S. 2A:87--1, N.J.S.A. At this time he was in the employ of the City of Vineland as a foreman in the street department. He was an honorably discharged veteran of World War I, then 62 years of age, and he had been employed in the qualifying public service continuously for more than twenty years.

On April 2, 1953 Ballurio was suspended from his employment for a period of 30 days from March 31, 1953. The reasons assigned in the notice of suspension were:

'* * * You have been arrested and are being held for the Grand Jury on the charge of committing the crime of abortion and further are charged of conspiring to commit abortion and thereby your conduct is unbecoming an employee in the public service.'

He was further informed that he was subject to removal in the absence of a satisfactory explanation or defense and that a hearing would be held on April 23, 1953 before respondent Albert Castellini, the Director of Streets, Roads and Public Property.

On April 8, 1953 Ballurio served upon the director (he being the officer empowered to appoint a successor) a written request for retirement under N.J.S.A. 43:4--1 et seq. An earlier application for such retirement, made two days after the arrest, was filed in error with the city clerk.

No action was taken on the request for retirement because of the pending charges, and on April 18 and 22, 1953 appellant filed a complaint and amended complaint in lieu of Mandamus, seeking a judgment directing that he be pensioned.

The hearing before the director was held as scheduled and on May 5, 1953, Ballurio was notified that his explanation of the alleged criminal offenses was not satisfactory and he was therefore suspended until their final determination in the Gloucester County Court.

After taking some testimony in the prerogative writ proceeding, the trial court concluded that appellant had met the age, length of service, and veteran status conditions of the statute. However, on the authority of McFeely v. Board of Pension Commissioners, 1 N.J. 212, 62 A.2d 686 (1948), he held that respondent director was justified in withholding action on the pension demand pending the outcome of the criminal charges. And he declared that acquittal would result in the granting of the pension but conviction would require denial thereof. The action thus being premature, judgment was entered for respondent. 27 N.J.Super. 113, 98 A.2d 902 (Law Div.1953).

On this appeal, the parties are in agreement that the McFeely case is not applicable because the forfeiture statute which was involved (R.S. 2:160--9, now N.J.S. 2A:135--9) relates only to persons holding an elective or appointive office or position. Ballurio, being an ordinary municipal employee, is not in this category. However, if the result in the trial court was correct, the duty of this court is plain. In such case there must be an affirmance even though an incorrect reason formed the foundation for the judgment.

Seven indictments were returned against appellant by the Gloucester County grand jury, one against him alone and the other six against him and his alleged aiders and abetters, all based on an abortion committed prior to the date of his application for retirement. On July 2, 1953 his plea of not guilty was retracted and a plea of Nolo contendere was entered to the one indictment which charged him alone with the commission of the offense. On this plea he was sentenced to New Jersey State Prison for three to five years, but the sentence was suspended subject to a five-year probation term and the payment of a fine of $2,000.

The indictments were not introduced at the hearing in the Law Division, but the opinion shows that they were considered. 27 N.J.Super. 113, 98 A.2d 902 (1953). Likewise, proof of the conviction was not presented although the sentence was imposed 28 days before the opinion was filed. However, on respondent's application prior to the listing of this appeal for argument, we allowed the record of the criminal proceedings to be added to the appendix under R.R. 1:5--4. 28 N.J.Super. 368, 100 A.2d 678 (App.Div.1953).

On the oral argument, a second motion was made to add to the appendix a certified copy of Ballurio's dismissal from employment by reason of the conviction. The dismissal is dated August 23 and was available when the first motion was made. While we disapprove of piecemeal procedure of this type, the incontrovertible nature of the document has moved us to receive it under the same rule.

Obviously, if appellant had been discharged prior to the filing of his application for retirement or was no longer an employee of the city at the time, no right to pension existed. Walter v. Police and Fire Pension Commission of City of Trenton, 120 N.J.L. 39, 198 A. 383 (Sup.Ct.1938). However, he maintains that since he had met all the statutory prerequisites while still in the employ of the city, he was entitled to the pension as a matter of law and the criminal action against him can have no effect upon that right. The claim is that since the legislative conditions of age, length of service and veteran status were satisfied, the application had such dynamic force as to be self-executing and the director's only function was the ministerial one of granting it.

Our attention is called to the fact that unlike the pension statute which was involved in the McFeely case, namely, N.J.S.A. 43:16--1, the qualifying words 'served honorably' do not appear in the Veterans' Pension Act. Therefore, it is urged that only service for the prescribed period is necessary to vest the claim to the pension.

The industry of counsel has supplied us with the statistical data that Title 43, of the Revised Statutes contains 60 separate pension acts. Of these, nine speak of 'honorable service' or use equivalent words, and 51 contain no such reference. In the nine instances, the employees affected are certain categories of policemen and firemen and municipal water department employees. The 51 others include a heterogeneous group of employees, including policemen and firemen. One class cannot be distinguished from the other on any rational basis. Study of the various groups discloses no legislative pattern from which the deduction may be made that a deliberate intention is manifested to demand honorable service in some employments and not in others.

Consideration of all these acts in the light of the Sui generis character of a public pension inevitably leads to the conviction that 'honorable' service is implicit in every such enactment. A pension is a bounty springing from the appreciation and graciousness of the sovereign; it is an inducement to conscientious, efficient and honorable service. And its utility would be destroyed if a person who is properly subject to discharge because of guilt of a crime involving moral turpitude can be said to have an indefeasible claim to a pension simply because he has served the required length of time and reached the necessary age and happens to win a headlong race to file his application for retirement before the public authorities can try him on the charges pending against him arising from such crime.

But we need not read 'honorable' into the statute in order to deny the right to a pension. While Ballurio had Civil Service Act protection and veteran status, he was subject to discharge for cause. R.S. 11:22--38; 11:15--2, 38:16--1, N.J.S.A. Obviously, conviction of a crime involving moral turpitude constitutes such cause. Rule 59 of the Civil Service Department; Plunkett v. Board of Pension Commissioners of City of Hoboken, 113 N.J.L. 230, 233, 173 A. 923 (Sup.Ct.1934), affirmed 114 N.J.L. 273, 176 A. 341 (E. & A.1935). Moreover, in the event of a criminal charge against him, he was liable to suspension until the charge was disposed of. In fact, the Legislature has decreed that 'nothing contained' in the civil service law should limit the power of suspension. R.S. 11:22--23, N.J.S.A. These were incidents of his employment which marched along with it from its very inception.

In our judgment, therefore, in order to make a rational whole of the privileges and conditions of the public employment and pension in the present case, the Veterans Pension Act, supra, and the Civil Service Act, R.S. 11:22--1 et seq., N.J.S.A., must be considered as interrelated at least so far as the...