Cerniglia v. City of Passaic

• Decision Date: 16 May 1958
• Docket Number: No. A--262,A--262
• Citation: 50 N.J.Super. 201,141 A.2d 558
• Parties: Peter CERNIGLIA, Petitioner-Appellant, v. The CITY OF PASSAIC, Respondent-Appellee. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 201

50 N.J.Super. 201

141 A.2d 558

Peter CERNIGLIA, Petitioner-Appellant, v. The CITY OF PASSAIC, Respondent-Appellee.

No. A--262.

Superior Court of New Jersey Appellate Division.

Argued May 12, 1958.

Decided May 16, 1958.

Joseph P. Piscopo, Passaic, for appellant.

James J. Skeffington, Bloomfield, for respondent (Skeffington, Haskins & Skeffington, Bloomfield, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Petitioner appeals from a County Court judgment reversing a determination and award in petitioner favor by the Workmen's Compensation Division and ordering that the petition be dismissed.

The County Court's order of dismissal was dated November 21, 1957 and filed the same day. On December 16, 1957 there was filed in the Superior Court Clerk's Office a petition for leave to appeal In forma pauperis (Docket AM--50--57). As a matter of courtesy--such petition is an Ex parte matter and does not require notice to opposing counsel, R.R. 1:2--7(a); R.R. 2:2--5--petitioner served notice of motion for leave to proceed as an indigent, dated December 26, 1957, upon counsel for respondent. Thereafter, an order granting leave to appeal In forma pauperis, dated January 10, 1958, was filed on January 13, 1958. Notice of appeal was then filed on January 28, 1958.

Respondent contends, preliminarily, that the appeal should be dismissed as out of time, apparently under the misapprehension that December 26, 1957, the date on which it was served with the notice of motion, was the actual filing date of the petition for leave to proceed as an indigent. The point is without merit. Only 25 days elapsed from the County Court's order of dismissal to the filing of the petition for leave to appeal In forma pauperis. The running of the usual 45-day period for taking the appeal, R.R. 1:3--1(b), was tolled during the pendency of the petition, and sharted to run again on January 10, 1958, the date of the determination of the application, R.R. 1:3--3(b). The notice of appeal was filed 18 days later, so that only 43 days of the permitted 45 had expired.

At the heart of this appeal lies the question of whether petitioner was in the employ of respondent at the time of the accident. We turn to the operative facts.

Prior to 1952 there were no suitable baseball recreational facilities for boys between the ages of 12 and 15 in the City of Passaic. There was a Little League for those under 12, and adequate facilities for those over 15. Thomas Cavanagh, the city recreation director, discussed the matter with Commissioner Cruise, Director of Public Parks and Public Property of Passaic, and the latter approved the setting up of a local Little Bigger League to serve boys in the 12--15 age group. However, Cruise specifically told Cavanagh there was no money in the budget to support such a special program, and unless funds could be raised by voluntary charitable contributions the project could not be undertaken.

Before the beginning of the 1952 baseball season Cavanagh got in touch with some civic-minded citizens who contributed money for the purchase of uniforms, bats, baseballs, and other needed equipment. Incidentally, this money was not sufficient to defray all expenses, and additional funds to meet the deficit were thereafter obtained by 'passing the hat' at each game.

The Little Bigger League was in operation in 1952. A few full-time Recreation Department employees served as managers for some of the teams as part of their employment, since in any event they had to be at the parks during their summer schedule. In addition, a number of public-spirited citizens volunteered their services as managers or coaches for the remaining teams. None of them expected to be compensated for his services; in fact, it was definitely understood that no volunteer manager was to receive pay for his time and effort. It should be mentioned that umpires (whose services could not be obtained gratis) were paid out of monies allocated to the Recreation Department, since the voluntary contributions of sponsoring citizens and monies collected at games did not meet league expenses. Cavanagh acted as executive director of the league and was in full charge of its operation, under the authority given him by his superior, Commissioner Cruise.

Petitioner's connection with the Little Bigger League began in 1953 when the manager of the team on which his son played was unable to continue in that capacity. Petitioner sought out Mr. Cavanagh and volunteered his services in managing the team. Like the other volunteer managers, he neither sought nor was allowed any payment or other consideration for his activities as manager; his name did not appear, either directly or indirectly, as an employee of the City of Passaic, nor was he approved as an employee by Civil Service.

Petitioner was in the cleaning and pressing business, and had a one-third interest in Clayton Cleaners, of Clifton, New Jersey. It appears that during the 1953 Little Bigger League season he requested Cavanagh to give him the season-end contract for dry cleaning the boys' baseball uniforms. However, the job went to another contractor at the end of the season. Cavanagh testified that in order to avoid criticism from prospective patrons of the league, he obtained prices from several cleaning establishments and gave the contract to the one with the lowest price.

Piqued because Clayton Cleaners had not gotten the 1953 cleaning contract, petitioner failed to show up for the annual spring practice of the league in 1954, nor did he appear at the first few games. Cavanagh thereupon got in touch with him to inquire whether he was planning to volunteer his services again. When petitioner told him he felt slighted because the cleaning contract had gone elsewhere after he had given all his time to the league gratis, Cavanagh explained that the practice was to give the contract to the lowest bidder. He urged petitioner to come back and work with the boys and take the team for the 1954 season; 'I assured him that I would see what I could do, all in my power, to see that he got the cleaning for that year.' Cavanagh testified to similar effect on recross-examination. A reading of the entire typewritten record makes it quite clear that Cavanagh did not definitely promise petitioner that he would get the cleaning business in 1954. Indeed, he was completely without authority to make such a promise. All that he promised was, in his words, that he would do all in his power to see that he got the work.

Petitioner managed and coached the Little Bigger League team until August 29, 1954. The All-Star game between the best players of Passaic and Clifton was scheduled for that evening. Petitioner was present without previous arrangement, others having been designated to coach the All-Stars on that occasion. Although not listed as manager or coach, petitioner was pitching warm-up batting practice prior to the actual game. He lunged for a hit ball and immediately felt a pain in his chest. He was taken to the hospital and found to have sustained a coronary thrombosis and to have developed a myocardial infarction. He has been treated for that condition down to the present time. There was medical testimony connecting the heart attack with his efforts at the game.

This factual account should be completed by noting that at the close of the 1954 season the cleaning of the baseball uniforms was given to Clayton Cleaners, whose price this time was right.

The deputy director concluded there was an employment relationship between petitioner and respondent city and made an award....