Weaver v. North Bergen Tp., Hudson County

• Decision Date: 19 March 1951
• Docket Number: No. A--93,A--93
• Citation: 79 A.2d 286,6 N.J. 475
• Parties: WEAVER v. NORTH BERGEN TP., HUDSON COUNTY.
• Court: New Jersey Supreme Court

Page 475

6 N.J. 475

79 A.2d 286

WEAVER v. NORTH BERGEN TP., HUDSON COUNTY.

No. A--93.

Supreme Court of New Jersey.

Argued Feb. 26, 1951.

Decided March 19, 1951.

Edward A. Markley, Jersey City, argued the cause for appellant (Markley & Broadhurst, Jersey City, attorneys. James J. Langan, Jersey City, on the brief).

George Rothstein, Union City, argued the cause for respondent.

The opinion of the court was delivered by

WACHENFELD, J.

In 1944 the plaintiff was appointed secretary to the Director of Public Safety of the defendant Township. In 1947 the Township, by referendum, adopted the provisions of the Civil Service Act and thereafter the plaintiff was classified in the exempt division of the classified service pursuant to R.S. 11:22--26(d), N.J.S.A.

On August 3, 1949 the plaintiff's employment was terminated by the then Director of Public Safety on the charge that he had been absent from his duties for five consecutive days without leave of absence and without notice to his superior of the reason for his absence or his intention to return.

The plaintiff demanded and was granted a hearing before the Civil Service Commission and on February 21, 1950 the Commission adjudicated his status as that of an employee in the exempt division entitled to tenure in his position and determined that his dismissal was improper as the alleged grounds had not been proved. It directed his restoration to his pay and position.

The Commission's decision was served on the Mavor and Director of Public Safety of the defendant Township on February 23, 1950. Notice of an appeal to the Appellate Division by the Township was served on the plaintiff's attorney on March 21 and on the Civil Service Commission on March 23. With both acknowledgments of service endorsed thereon, it was forwarded by mail to the Appellate Division and received and filed on March 28, 1950 after the expiration of the thirty-day limit provided in Rules 1:2--5 and 4:2--5.

The plaintiff insists the appeal should be dismissed as out of time. The Appellate Division, however, entertained the appeal, relying on its own decision in In re Pfizer's Estate, 8 N.J.Super. 6, 73 A.2d 192, 194 (App.Div.1950), where it decided, although the appeal was not filed within time, the 'lawyer * * * understood (the rules to be) otherwise' and his belief, although erroneous, was 'plausible' and the appeal had 'merit.' It entered judgment reversing and vacating the order of the Civil Service Commission because it concluded the position in question 'had not been lawfully created' (10 N.J.Super. 96, 76 A.2d 702.) and it did not pass upon the determination of the Civil Service Commission that the discharge was not justified by the evidence.

The judgment of the Appellate Division in the Pfizer case, supra, however was subsequently overruled by this court. In re Pfizer's Estate, 6 N.J. 233, 78 A.2d 80, 82 (1950). There, as here, notice of appeal was served within the prescribed time but was not actually filed with the court until after the period provided for had elapsed. The appeal was dismissed, the court holding 'An appeal is taken by serving a copy of a...