Barry v. Wallace J. Wilck, Inc., A--864

• Decision Date: 13 January 1961
• Docket Number: No. A--864,A--864
• Citation: 167 A.2d 181,65 N.J.Super. 130
• Parties: William T. BARRY, Petitioner-Respondent, v. WALLACE J. WILCK, INC., Respondent-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 130

65 N.J.Super. 130

167 A.2d 181

William T. BARRY, Petitioner-Respondent, v. WALLACE J. WILCK, INC., Respondent-Appellant.

No. A--864.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 28, 1960.

Decided Jan. 13, 1961.

Isidor Kalisch, Newark, for respondent-appellant.

J. Alan Drummond, Newark, for petitioner-respondent (Joseph P. Dunn, Newark, attorney).

Before Judges PRICE, GAULKIN and SULLIVAN.

The opinion of the court was delivered by

GAULKIN, J.A.D.

In June 1955 the Division of Workmen's Compensation made an award in favor of petitioner William T. Barry (Barry) and against respondent Wallace J. Wilck, Inc. (Wilck). In January 1958 Barry filed an application in the Division, pursuant to N.J.S.A. 34:15--27, for a review of the award on the ground that his disability had increased. Barry failed to prosecute his application so Wilck gave notice that on July 23, 1958 it would move to dismiss it. On July 21, 1958, in response to the notice, Barry's counsel wrote Deputy Director Medinets that Barry 'does not wish to proceed with his petition for increased disability * * * we, therefore, do not oppose the respondent's Motion to dismiss this petition. We are proceeding with a petition on behalf of the petitioner in an effort to obtain for him the benefits afforded by the 1% Fund.' Accordingly, by order dated October 16, 1958 Deputy Director Medinets granted the motion and dismissed the application.

On September 17, 1959 Barry's attorney served notice upon Wilck that on October 8, 1959 he would 'move to set aside the dismissal.' The notice gave no reasons, nor was the motion supported at any time by any affidavit or other proof. Merely upon counsel's oral argument, and over Wilck's objection, Deputy Director Napier ordered the dismissal set aside and the application reinstated. Wilck then appealed to the County Court, which dismissed the appeal on the ground that it had no jurisdiction to entertain an appeal from an interlocutory order. The opinion of the County Court is reported in 61 N.J.Super. 299, 160 A.2d 676 (1960). Wilck thereupon secured from this court, pursuant to R.R. 2:2--3, leave to 'appeal from the Order of the Essex County Court dismissing respondent's appeal.' Pursuant to that leave, the case is now brought before us.

Wilck contends that, now that the case is here, it is immaterial whether the County Court did or did not have jurisdiction over it. In either event, says Wilck, we should decide the merits, for, if the County Court did not have jurisdiction, this court does; and if it had jurisdiction, we should not only reverse the County Court but decide the meritorious legal questions as well. Temple v. Storch Trucking Co., 3 N.J. 42, at p. 45, 68 A.2d 828 (1949); cf. Pfahler v. Eclipse Pioneer Division of Bendix Aviation Corp., 38 N.J.Super. 156, 159, 118 A.2d 425 (App.Div.1955), affirmed 21 N.J. 486, 122 A.2d 644 (1956); R.R. 1:5--4.

The meritorious grounds of appeal, says Wilck, are that (1) the application for increased benefits was not made 'within two years from the date when the injured person last received a payment' (N.J.S.A. 34:15--27), and hence the Division had no jurisdiction to entertain the application, or, A fortiori, to reinstate it; (2) Deputy Director Napier had no jurisdiction to set aside the dismissal, because the statute (N.J.S.A. 34:15--54) expressly provides that only the deputy 'before whom the matter was heard,' or the Commissioner of Labor, may do so; and (3), in any event, 'good cause' for the reinstatement was not shown. Nemeth v. Otis Elevator Co., Inc., 55 N.J.Super. 493, 151 A.2d 58 (App.Div.1959).

Barry, on the other hand, contends that neither the County Court nor this court may entertain an appeal from an interlocutory order of the Division of Workmen's Compensation. He says that, in the case at bar, we have only the power to affirm or reverse the dismissal of the appeal by the County Court, and, if we affirm, we have no power ourselves at this time to consider the merits. It is therefore essential that we first consider the jurisdiction of the County Court and of this court with reference to this appeal.

The question of the jurisdiction of the County Court has been raised in several recent cases, with conflicting results. Compare Skislak v. Continental Mining and Smelting Corp., 137 N.J.L. 157, 59 A.2d 9 (Sup.Ct.1948), and Nemeth v. Otis Elevator Co., Inc., 52 N.J.Super. 373, 145 A.2d 525 (Cty.Ct.1958), reversed 55 N.J.Super. 493, 151 A.2d 58 (App.Div.1959) (but this point was not raised on appeal), with Barclay v. Linden Flight Service, Inc., 56 N.J.Super. 434, 153 A.2d 400 (Cty.Ct.1959). See also Bronstein, 'Judicial Review of New Jersey Workmen's Compensation Cases,' 77 N.J.L.J. 181, 185, n. 33 (1954); King v. Western Electric Co., 122 N.J.L. 442, 5 A.2d 490 (Sup.Ct.1939), affirmed 124 N.J.L. 129, 11 A.2d 32 (E. & A.1940); Pfahler v. Eclipse Pioneer Division of Bendix Aviation Corp., supra.

No appellate court decision prior to Skislak, supra, decided whether an appeal lay to the County Court or the Common Pleas from an interlocutory order of the Division. In Skislak the former Supreme Court held that the Pleas did have jurisdiction of such appeals; but the authority of the case is greatly weakened by the fact that it was reversed, albeit on other grounds, in 1 N.J. 167, 62 A.2d 397 (1948), and by the further fact that it purported to follow Ruoff v. Blasi, 117 N.J.L. 47, 186 A. 581 (Sup.Ct.1936), affirmed 118 N.J.L. 314, 191 A. 877 (E. & A.1937), which, however, involved an appeal not from an interlocutory but from a final order. Cf. Jaudel v. Schoelzke, 95 N.J.L. 171, 176, 112 A. 328 (E. & A.1920).

In King v. Western Electric Co., supra, an application for increased disability had been dismissed, and afterwards the order of dismissal was vacated on the employee's motion. The employer appealed to the Pleas, but, since there the employee 'stipulated for the entry of an order of reversal' (122 N.J.L., at p. 446, 5 A.2d at p. 492), jurisdiction was apparently neither questioned nor decided, but merely assumed by the Pleas. However, the employee thereafter filed another petition for increased disability, and, when the employer's motion to dismiss it was denied, the employer again appealed to the Pleas. This time 'Judge Flanagan ruled that such interlocutory orders were not appealable under the statute, and he accordingly dismissed the appeal 'for lack of jurisdiction." (122 N.J.L., at p. 446, 5 A.2d at p. 492.) The Supreme Court then granted Certiorari, not to review the action of the Pleas but that of the Bureau, and reversed. However, the Supreme Court expressed no opinion on the question of the jurisdiction of the Pleas. Cf. King v. Western Electric Co., 18 N.J.Misc. 199--200, 12 A.2d 151 (C.P.1940).

In Halloran v. Haffner, 25 N.J.Super. 241, 95 A.2d 921, 924 (App.Div.1953), the employer moved to dismiss a petition, challenging the jurisdiction of the Bureau over his person. After his motion was denied, 'the employer not only filed a notice of appeal therefrom to (the Appellate Division), but also instituted a proceeding in lieu of prerogative writ for a review thereof in the Law Division of the Superior Court.' By order of the Appellate Division, further proceedings before the Law Division were stayed (25 N.J.Super. at p. 246, 95 A.2d 921). The Appellate Division said (25 N.J.Super. at pp. 246--247, 95 A.2d at p. 924):

'The employer contends that this court does not have jurisdiction to hear and decide this appeal. Prior to September 15, 1948, * * * review of an order entered in the Division denying a motion for dismissal of a claim petition, based on the ground that the Division lacked jurisdiction, was * * * by means of a writ of Certiorari to the former Supreme Court, even though no final judgment of the Division be involved (Deslauriers Column Mould Co. v. Jackson, 3 N.J.Misc. 258, 127 A. 798 (Sup.Ct.1925). Pursuant to the mandate contained in our 1947 Constitution (Art. VI, Sec. V, par. 4), our new Supreme Court provided in Rule 3:81 for procedure in lieu of prerogative writs. * * * We are satisfied that Rule 3:81--8 was intended to provide an appeal, as a matter of right, to the Appellate Division from any state administrative agency in any case in which, under our former practice, a review by our former Supreme Court was available by means of a prerogative writ. While the language used in Rule 3:81--8 is not free from ambiguity, we construe 'action,' as used in this rule, to include any proceeding not included in 'final decision' but still one which was reviewable under our former practice by means of a prerogative writ. This court does have jurisdiction to hear and decide this appeal.'

In Pfahler v. Eclipse Pioneer Division of Bendix Aviation Corp., supra, the employer had appealed to the County Court from the Division's denial of its motion to dismiss the petition because it had been filed out of time. The County Court affirmed, and the employer appealed. Speaking for the Appellate Division, Judge Speakman questioned whether there was any longer an appeal as of right to the Appellate Division, as Halloran had held, 'in view of the 1954 amendments to R.R. 2:2--3(b) and R.R. 4:88--8,' and also whether the appeal had been properly taken to the County Court. He said (38 N.J.Super. at p. 159, 118 A.2d at p. 426):

'Prior to the change brought about by the adoption of the Constitution of 1947, the former Supreme Court held that it could review by Certiorari the determination of the then Workmen's Compensation Bureau in denying a motion to dismiss a claim petition as having been filed out of time, even though not a final judgment, since the matter was one of jurisdiction. Deslauriers Column Mould Co. v. Jackson, 3 N.J.Misc. 258, 127 A. 798 (1925). * * *

'However, no objection was interposed to the appeal to the County Court, and none has been made here. Since there can be no question that this court would...