Town of Hammonton v. Varsaci

• Decision Date: 08 May 1962
• Docket Number: No. A--467,A--467
• Citation: 74 N.J.Super. 251,181 A.2d 181
• Parties: TOWN OF HAMMONTON, Plaintiff-Respondent, v. Anthony VARSACI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 251

74 N.J.Super. 251

181 A.2d 181

TOWN OF HAMMONTON, Plaintiff-Respondent, v. Anthony VARSACI, Defendant-Appellant.

No. A--467.

Superior Court of New Jersey Appellate Division.

Argued April 30, 1962.

Decided May 8, 1962.

Isaac C. Ginsburg, Atlantic City, for defendant-appellant (Vincent A. DeMarco, Hammonton, attorney).

David R. Brone, Atlantic City, for plaintiff-respondent (Samuel A. Donio, Hammonton, attorney).

Before Judges CONFORD, GAULKIN and KILKENNY.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

Varsaci was a patrolman in the police department of the Town of Hammonton, appointed May 16, 1958. He was removed from office by the mayor and council August 9, 1960, after hearing and determination of his guilt by that body on four of six separate charges. On September 2, 1960 Varsaci appealed this action to the Atlantic County Court, where the charges were tried De novo, as provided by N.J.S.A. 40:47--10. The County Court found Varsaci guilty on three, but not the fourth, of the charges. The judgment, dated January 5, 1961, affirmed Varsaci's removal from his position. Thereafter, on appeal to this court, we determined that the proofs did not justify a finding of guilt on charges numbered bered 5 and 6, which grew out of a single incident, but did support the adjudication of guilt of charge numbered 3. In our opinion, filed July 12, 1961, we conclude that since we had not sustained all the findings of guilt by the County Court, that court should 'fix anew the penalty to be imposed for Varsaci's violation as specified under charge 3.'

The County Court did not act on the mandate until December 14, 1961, at which time, after hearing the parties, it filed its determination that Varsaci should stand removed from service as penalty for guilt under charge 3.

In the interim, however, the Town of Hammonton adopted the provisions of the Civil Service Act by referendum of the voters held November 7, 1961. This circumstance constitutes the basis for the first ground of the present appeal by Varsaci from the most recent decision of the County Court. The contention is that as a result of the prior adoption of the Civil Service Act in the municipality the County Court was bereft of any further jurisdiction to pronounce a judgment in the cause, even by way of compliance with the mandate of this court. Specific reliance is had upon R.S. 11:21--4, N.J.S.A., which provides:

'After the adoption of the civil service act of 1908 or this subtitle by any county, municipality or school district, no person shall be appointed, transferred, reinstated, promoted, reduced or dismissed as an officer, clerk, employee or laborer in the civil service of such county, municipality or school district in any other manner or by any means other than those prescribed by this subtitle.'

However, in passing upon the issue here presented, it is necessary also, and primarily, to give consideration to the specific act governing rights of review of policemen convicted of disciplinary transgressions in municipalities not operating under civil service, N.J.S.A. 40:47--10, which provides, so far as here material:

'Any member of any police department * * * in any municipality in this State not operating under the provisions of subtitle three of Title 11 of the Revised Statutes who has been convicted of any violation of any of the rules or regulations of such (department) by the official * * * empowered to try members of such police department * * * may obtain a review of such conviction by the County Court of the county in which such municipality is stipulated. * * *'

The effect and operation of the quoted provision and of the applicable provisions of Title 11 in respect of review of local disciplinary determinations is discussed in detail in City of Wildwood v. Neiman, 44 N.J.Super. 209, 129 A.2d 906 (App.Div.1957) . It was there held that where the municipality adopted the Civil Service Act in the interim between the service of charges against a patrolman and his adjudication of guilt and removal by the local tribunal, review could not be had before the County Court, pursuant to N.J.S.A. 40:47--10, but solely before the Civil Service Commission under the pertinent provisions of Title 11. The court held that the absence of civil service in the municipality at the time of commission of the offense and service of the charges was not a sufficient basis to found jurisdiction in the County Court, the determinative consideration being that the municipality was operating under civil service 'at the time of the conviction.' (44 N.J.Super., at p. 212, 129 A.2d at p. 908.)

If the controlling date is that of the initial conviction before the local tribunal, as intimated in Neiman, Varsaci's...