State v. Burten

• Decision Date: 27 January 1986
• Citation: 207 N.J.Super. 53,503 A.2d 907
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Marvin F. BURTEN, Richard A. Burten and Howard L. Kaskel, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 53

207 N.J.Super. 53

503 A.2d 907

STATE of New Jersey, Plaintiff-Appellant, v. Marvin F. BURTEN, Richard A. Burten and Howard L. Kaskel,

Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 6, 1986.

Decided Jan. 27, 1986.

John A. Craner, Scotch Plains, for plaintiff-appellant (Craner, Nelson, Satkin & Glazner, attorneys; John A. Craner and Lori M. Skoller, Scotch Plains, on the brief).

Lawrence P. Platkin, Newark, for defendant-respondent Howard L. Kaskel and Marvin M. Goldstein, for defendants-respondents Marvin F. Burten and Richard A. Burten (Robinson, Wayne, Levin, Riccio & LaSala, Newark, attorneys for defendant-respondent Howard L. Kaskel; Arnoff & Merin, New York City, of counsel; Grotta, Glassman & Hoffman, Roseland, attorneys for defendants-respondents Marvin F. Burten and Richard A. Burten; Lawrence P. Platkin, Marvin M. Goldstein, Roseland, and Jerome L. Merin, New York City, on the brief).

Before Judges MORTON I. GREENBERG, J.H. COLEMAN and LONG.

The opinion of the Court was delivered by

GREENBERG, P.J.A.D.

This matter comes before the court on appeal from an order of the Law Division dismissing an appeal de novo from the Municipal Court of the Township of Union on the ground that it was untimely. The proceedings though quasi -criminal have been prosecuted by a private attorney retained on behalf of the complainant. See R. 3:23-9(d); R. 7:4-4(b).

The case originated when George Serio, administrator of the Trustees of Joint Welfare Fund of Employers and Local 478, IBT, filed municipal court complaints in Union Township in the name of the State of New Jersey as plaintiff charging defendants Marvin F. Burten, Richard A. Burten and Howard L. Kaskel, officers of Branch Motor Express Co., with the disorderly persons offense of failing to contribute under the company's collective bargaining agreement to the Local 478 Trucking and Allied Industries Pension Fund on behalf of the company's employees in violation of N.J.S.A. 2A:170-90.2. ¹ Plaintiff's attorney has indicated that this prosecution was triggered by our decision in Trustees of Local 478 Pension Fund v. Pirozzi, 198 N.J.Super. 318, 486 A.2d 1299 (App.Div.1984), affirming 198 N.J.Super 297, 486 A.2d 1288 (Law Div.1983), holding that violation of N.J.S.A. 2A:170-90.2 does not create a civil liability. According to plaintiff's attorney, Branch Motor Express is in bankruptcy and presumably is unable to make the contributions. Thus the complaints were filed in the expectation, as set forth in plaintiff's brief, that if defendants were found guilty the court "would, as a condition of any sentence it might impose, require restitution of the trust funds ..." owed to the trustees.

Defendants moved to dismiss the complaint in the municipal court on the grounds that the court lacked territorial and subject matter jurisdiction and the prosecution was barred by preemption of N.J.S.A. 2A:170-90.2 by federal law, the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. § 1001 et seq. They also contended that the privately retained attorney appearing for plaintiff was disqualified from representing it. Comprehensive briefs were filed in support of and in opposition to the motion. Inasmuch as the municipal court judge did not require the attorneys to appear when the motion was listed on June 17, 1985, they did not do so. The record reflects that on that day the following proceedings, which we quote in their entirety, took place in the municipal court:

THE COURT: Is there anyone here on the Castell [sic ] or Burten matters?

(NO RESPONSE)

THE COURT: All right. In these matters I've read the briefs and the argument--

Can you please take the child outside, ma'am? Take the child outside?

I've read the briefs and the memorandums of counsel and the reply briefs. I'm satisfied that this Court does not have jurisdiction by reasons of ERISA pre-emption as well as the place of the commission of the offense and I do not think that Mr. Craner would otherwise be disqualified. However, the matter is dismissed today.

Send a copy of the original I've signed to all the attorneys and enter it on the docket.

On the same day the judge signed an order dismissing the complaints.

Insofar as we can ascertain from the record, a copy of the order was not sent to plaintiff's attorney by the court. Further the prosecuting attorney did not then know that this disposition had been made. It appears, however, that the order was sent to the attorneys for one of the defendants as on July 2, 1985 he forwarded a copy of it to plaintiff's attorney who received it that day or the next day. Plaintiff's attorney contends that he did not know of the disposition of the case until that time. On July 12, 1985 plaintiff appealed to the Superior Court, Law Division, Union County.

Defendants moved to dismiss the appeal in the Law Division as untimely under R. 3:24(c) which requires that appeals by the prosecuting attorney from pre-trial or post-trial judgments of courts of limited criminal jurisdiction dismissing a complaint shall be taken within ten days after entry of the order. Defendants' motion came on for argument in the Law Division on August 2, 1985. At that time plaintiff's attorney contended that to require plaintiff to appeal within ten days of the entry of an order of which he had no notice was intolerable. He contended that under State v. Resorts Internat. Hotel, Inc., 173 N.J.Super. 290, 414 A.2d 269 (App.Div.1980), certif. den. 84 N.J. 466, 420 A.2d 1294 (1980), the time to appeal should be measured from when the order was received by his office. Defendants countered that the time to appeal should be measured from the date of the entry of the order, June 17, 1985, and thus the appeal was untimely. Defendants further asserted under R. 1:3-4 the time could not be enlarged.

The judge agreed with defendants. He indicated that R. 3:24(c) had to be enforced and plaintiff's attorney should have called the municipal court clerk to ascertain when the order was entered. Thus on August 2, 1985 he signed an order dismissing the appeal to the Law Division. Plaintiff has appealed from that order.

We do not find State v. Resorts Internat. Hotel, Inc., supra, 173 N.J.Super. at 290, 414 A.2d 269, to be controlling. There the State on March 9, 1979 filed a "notice of motion for leave to appeal" to the Law Division from what we nevertheless think was a final judgment in a municipal court dismissing a criminal complaint for lack of jurisdiction. At that time R. 3:24 provided that either party could seek leave to appeal to the county court (by then superseded by the Superior Court, Law Division) from an interlocutory order of a municipal court. But when the appeal to the Law Division was filed R. 3:24 included no authorization for appeals from pre-trial or post-trial orders of dismissal, a provision which was added, however, on September 10, 1979 prior to our decision. We reversed the Law Division which found the appeal was untimely. While we indicated that if the ten day period for appeal in R. 3:24 was applicable the appeal may have been one day late, we instead applied the 15 day period in R. 2:5-6 allowed for interlocutory appeals, a result we considered appropriate because of the significant legal issues presented. See 173 N.J.Super. at 294-295, 414 A.2d 269. But we did not hold that under R. 3:24 the State could appeal from an order of dismissal within ten days of its receipt by the prosecuting attorney.

We find it unnecessary to decide whether or not the time to appeal to the Superior Court, Law Division, from a judgment of dismissal should be measured from the entry of the judgment or the prosecuting attorney's notice of its entry. Undoubtedly in practice the attorneys or interested persons are usually present when cases are decided in a municipal court and thus when there is a prosecuting attorney the date of entry of the judgment and the date of his knowledge of its entry is ordinarily the same. Here we will assume without deciding that the ten days runs from entry of the judgment of dismissal even though the prosecuting attorney had no knowledge of the disposition in the municipal court until July 2 or July 3, 1985.

Notwithstanding that assumption we conclude that the Law Division should have enlarged the time to appeal and entertained the appeal on the merits. The parties seem to have assumed that the ten day period in R. 3:24(c) could not be enlarged and thus their briefs have focused on the computation of time under that rule. Their belief is understandable in view of R. 1:3-4 which provides that unless otherwise expressly provided by rule, a period of time for doing an act may be enlarged by the court or by the parties by consent but that neither the court nor the parties may enlarge the time specified by R. 3:24 for appeals to the Law Division from interlocutory orders of courts of limited criminal jurisdiction.

Nevertheless we are satisfied that the time for the State to appeal from pre-trial and post-trial judgments under R. 3:24 may be enlarged. As we have indicated and as noted in State v. Resorts Internat. Hotel, Inc., supra, 173 N.J.Super. at 294-295, 414 A.2d 269, until September 10, 1979, R. 3:24 made no provision for the State to appeal from final judgments of courts of limited jurisdiction. Prior to that date R. 1:3-4(c) prohibited enlargement of time under R. 3:24 for "appeals to the county court from interlocutory orders of courts of limited criminal jurisdiction." But on September 10, 1979 R. 3:24 was amended so as to divide that previously undivided rule into three paragraphs including R. 3:24(b) which for the first time specifically authorized the State to appeal from pre-trial or post-trial judgments of dismissal. At that...