Ballurio v. Castellini, L--6141

• Decision Date: 30 July 1953
• Docket Number: No. L--6141,L--6141
• Citation: 27 N.J.Super. 113,98 A.2d 902
• Parties: BALLURIO v. CASTELLINI, Director of Streets, Roads and Public Property of City ofVineland, et al.
• Court: New Jersey Superior Court

Page 113

27 N.J.Super. 113

98 A.2d 902

BALLURIO v. CASTELLINI, Director of Streets, Roads and Public Property

of City ofVineland, et al.

No. L--6141.

Superior Court of New Jersey Law Division.

July 30, 1953.

M. Joseph Greenblatt, Greenblatt & Greenblatt, Vineland, attorneys for plaintiff.

D. J. Novaria, Vineland, attorney for defendants.

WOODS, J.S.C.

The plaintiff, James L. Ballurio, has been an employee of the County of Cumberland, the Borough of Vineland and the City of Vineland for an aggregate period of 25 years. He was an employee of the County of Cumberland from November 5, 1927 until December 31, 1944. From January 1, 1945 until July 1, 1952 he was an employee of the Borough of Vineland, and when Vineland Borough became merged with the Township of Landis (July 1, 1952) he continued as an employee of the merged municipality (the City of Vineland) until March 31, 1953. He alleges that on July 30, 1952 he attained the age of 62 years. He is a veteran and was honorably discharged on May 28, 1919. The last job he held with the City of Vineland was foreman of the street department.

On March 30, 1953 he filed a written request for retirement to take effect April 1, 1953 and for pension pursuant to the provision of R.S. 43:4--1 et seq., N.J.S.A., with the city clerk of the City of Vineland. Upon learning that the director of streets, roads and public property was the proper person to notify of his request for retirement, he served a notice dated April 8, 1953 requesting retirement and pension effective April 8, 1953, on Albert Castellini, the director. R.S. 43:4--1, N.J.S.A., provides:

'This chapter shall apply to and include persons serving in and honorably discharged from the military or naval service of the United States, including nurses, in any war in which the United States is or has been engaged and in connection with the American punitive expedition or other intervention campaign or trouble with the Republic of Mexico during the administration of President Woodrow Wilson; provided, such designated persons shall have attained the age of sixty-two years or become incapacitated after twenty years of continuous or aggregate service for the duties of their office or position or employment.'

Also, R.S. 43:4--2, N.J.S.A., provides, in part, as follows:

'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.'

Neither the municipal council nor the director of streets, roads and public property has acted upon plaintiff's request and he brings this action to obtain an order directing either of the defendants to act upon his retirement and directing the City of Vineland to pay him one-half of his annual compensation of $4,500 for the term of his life pursuant to the provisions of the statute R.S. 43:4--3, N.J.S.A., which provides, Inter alia, as follows:

'A person so retired shall be entitled, for and during his natural life, to receive by way of pension, one-half of the compensation then being received by him for his service, which shall be paid in the same way and in the same installments as his compensation has been payable.'

The defendants admit all the allegations of the complaint with the following exceptions:

1. Plaintiff's age at the time of his application.

2. That the plaintiff is entitled to a pension as a matter of law.

Testimony was taken on June 2, 1953 and counsel have filed briefs.

It appears that on April 2, 1953 the plaintiff was served with a notice from the director of streets, roads and public property which read in part as follows:

'You are hereby suspended as of eight A.M., March 31, 1953, for a period of 30 days for the following reasons: You have been arrested and are being held for Grand Jury on the charge of committing the crime of abortion and, further, you are charged with conspiring to commit abortion and thereby your conduct is unbecoming an employee in the public service.'

The notice also stated

'You are subject to removal.'

And it gives notice that

'The hearing will be held at 10 a.m., Thursday, April 23, 1953, at City Hall, Vineland, New Jersey'.

It was after the receipt of this notice, that the plaintiff served upon the director of streets, roads and public property his request for retirement and pension as of April 8, 1953.

On May 5, 1953 a notice was served upon the plaintiff by the defendant, Albert Castellini, director of streets, roads and public property, whereon appears the following:

'Under date of April 2, 1953, notice was sent to you stating that pending a hearing you had been suspended for 30 days as of March 31, 1953, for the following reasons: '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 with conspiring to commit abortion and thereby your conduct is unbecoming an employee in the public service.' On April 23, 1953, a hearing was held at which time you presented your defense of the above charges. Your explanations are not considered satisfactory and you are, accordingly, hereby notified that the following disciplinary action has been taken against you: Suspended until the final determination of the criminal charges now pending against you in the Gloucester County Court.' (Emphasis the court's.)

At the time these proceedings were instituted on April 22, 1953, and up to the date of the trial on June 2, 1953, the plaintiff had not been convicted, nor had he entered a plea to the crimes with which he was indicted by the Gloucester County Grand Jury. N.J.S. 2A:135--9, N.J.S.A., provides as follows:

'Any person holding an office or position, elective or appointive, under the government of this state or of any agency or political subdivision thereof, who is convicted upon, or pleads guilty, non vult or nolo contendere to, an indictment, accusation or complaint charging him with the commission of a misdemeanor or high misdemeanor touching the administration of his office or position, Or which involves moral turpitude, shall forfeit his office or position and cease to hold it from the date of his conviction or entry of plea. If the conviction of such officer be reversed, he shall be restored to...