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Nemeth v. Otis Elevator Co.

Decided: October 17, 1958.

JOSEPH NEMETH, PETITIONER-RESPONDENT,
v.
OTIS ELEVATOR CO., INC., RESPONDENT-APPELLANT



On appeal from the Department of Labor and Industry, Division of Workmen's Compensation.

Duffy, J.c.c.

Duffy

This is an appeal by the employer from an order of the Division of Workmen's Compensation which reinstated a claim petition previously dismissed for lack of prosecution. The petitioner has in turn moved to dismiss the appeal for alleged procedural defects.

The question involved in the motion is whether the appellate procedure provided in R.R. 2:2-3(a) applies to an appeal to the County Court from an interlocutory determination of the Division below. Was the respondent-appellant required to apply to this court for leave to appeal within ten days of the order of reinstatement of the petition?

It may be observed that R.R. 2:2-1 enumerates the causes in which appeals may be taken to the Appellate Division from "final judgments." R.R. 2:2-3(a), on the other hand, provides for the discretionary grant of permission by that court to take appeals from "interlocutory" judgments, orders, decisions or actions. Specifically excepted from the operation of this latter rule are appeals governed by R.R.

5:2-5 (which regulates appeals to the County Court from judgments of the Workmen's Compensation Division). From this exception in R.R. 2:2-3(a) it may be presumed that the unqualified term "judgment" in R.R. 5:2-5 embraces both final and interlocutory determinations.

The reported cases do not throw much light on the problem. In Stone v. Dugan Brothers of N.J. , 1 N.J. Super. 13 (App. Div. 1948), a similar order of reinstatement was reviewed pursuant to a writ of certiorari allowed by the former Supreme Court. In Skislak v. Continental Mining & Smelting Corp. , 1 N.J. 167 (1948), the appeal of an order of the Compensation Bureau vacating an earlier order of dismissal was taken first to the Court of Common Pleas. The official report of Skislak v. Continental Mining & Smelting Corp., supra , does not disclose whether that appeal was taken as of right or upon leave of the Court of Common Pleas.

Notwithstanding the opinion in Grogan v. William J. Scully, Inc. , 42 N.J. Super. 174 (App. Div. 1956), which is advanced by the petitioner as authority for applying interlocutory appellate procedure herein, I am not of the opinion that the rules, as presently written, require leave of court for the prosecution of an appeal from an interlocutory determination of the Workmen's Compensation Division. The Grogan case, supra , was an enforcement by the Appellate Division of a rule (R.R. 2:2-3(a)) specifically established for that tribunal. While I share with that court its judicial abhorrence for piecemeal appeals, and perceive their effects to be even more undesirable in workmen's compensation litigation, nevertheless R.R. 5:2-5 does not contain an effective counterpart to R.R. 2:2-3(a). If compensation appeals to the County Court are to conform to appellate practice generally in this respect, an amendment to the rules will be necessary.

Considering next the merits of the appeal, a resume of the events leading to the challenged order is appropriate.

The claim petition was filed on June 12, 1954. It alleged the occurrence of a compensable accident on January 4, 1954.

After a series of adjournments the petition was marked "not moved" on February 28, 1956. On March 7, 1957 it was dismissed for lack of prosecution. On March 4, 1958 the order of dismissal was vacated ...


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