Perrapato v. Rose, No. A--959

• Court: New Jersey Superior Court – Appellate Division
• Writing for the Court: FREUND
• Citation: 83 N.J.Super. 245,199 A.2d 385
• Docket Number: No. A--959
• Decision Date: 09 April 1964
• Parties: Carmine J. PERRAPATO, Plaintiff-Respondent, v. Gotthold ROSE, Mayor of the City of Garfield, and the City of Garfield, a municipal corp. of the State of New Jersey, Defendants-Appellants.

Page 245

83 N.J.Super. 245 199 A.2d 385 Carmine J. PERRAPATO, Plaintiff-Respondent,
v.
Gotthold ROSE, Mayor of the City of Garfield, and the City
of Garfield, a municipal corp. of the State of New
Jersey, Defendants-Appellants. No. A--959. Superior Court of New Jersey
Appellate Division. Argued March 16, 1964.
Decided April 9, 1964.

Page 246

Ralph W. Chandless, Hackensack, for appellants (Chandless, Weller & Kramer, Hackensack, attorneys).

Carmen M. Belli, Garfield, for respondent.

Before Judges CONFORD, FREUND and SULLIVAN.

Page 247

The opinion of the court was delivered by

[199 A.2d 386] FREUND, J.A.D.

Plaintiff Carmine J. Perrapato is the chief of police of the City of Garfield. On December 4, 1962 he was informed by defendant Gotthold Rose, mayor of Garfield, that he was suspended without pay for a period of five days, beginning December 4 and ending December 8, 1962. This action was predicated on the fact that the mayor had found an employee of the Garfield Water Department working at plaintiff's home during regular hours.

In answer to the mayor's request plaintiff had submitted a report stating that although the employee had done 'odd jobs' for him in the past, such work had always been done on Saturdays or during hours when the employee was not working for the city, and that he (plaintiff) had not known that the employee had been working at his home on the day in question, nor had he nor any member of his family ever authorized this person to work there during times when he should have been working for the city. It was following receipt of this report that the mayor notified plaintiff that he was suspended. Defendants concede that no formal charges were ever served upon plaintiff, and that he was not afforded a hearing.

Plaintiff brought an action in lieu of prerogative writs, demanding that his suspension be declared illegal and his salary for the suspension period be paid. The trial court granted his motion for summary judgment on the ground that the suspension violated N.J.S.A. 40:47--6, the relevant portions of which are as follows:

'No person, whether officer or employee in any such police department * * * shall be suspended, removed, fined or reduced from office or employment therein, except for just cause, as hereinbefore provided, and then only after written charge or charges of the cause or causes of complaint shall have been preferred against such officer or employee of said police department * * * signed by the person or persons making such charge or charges and filed in the office of the body, officer or officers having charge of the department in which the complaint arises and a copy thereof served upon such person within fifteen days after the filing thereof and after the charge or charges shall have been publicly examined by the appropriate board

Page 248

or authority upon reasonable notice to the person charged, which examination shall be commenced not less than fifteen days nor more than thirty days after said copy of such charge or charges shall have been so served.

It is the intent of this section to give every person against whom a charge or charges for any cause may be preferred under this article a fair trial upon said charge or charges and every reasonable opportunity to make his defense if any he has or chooses to make and that in event of failure of compliance with any provision of this section, such charge or charges shall be dismissed.'

Defendants contend that N.J.S.A. 40:47--6 is not applicable here because Garfield had adopted the Civil Service Act, N.J.S.A. 11:1--1 Et seq. The mayor based his suspension of respondent upon Civil Service Rule 58, which reads as...