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Hodes v. Oak Flooring Co.

Decided: January 31, 1964.

ALBERT HODES, BY HIS GUARDIAN AD LITEM, MARIAN KALB, PETITIONER-RESPONDENT,
v.
OAK FLOORING CO., RESPONDENT-APPELLANT



Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

The question here is whether the Union County Court erred in denying, on the asserted basis solely of lack of jurisdiction to do so, an extension of time for the filing of an untimely appeal by the respondent employer to the County Court from a judgment of the Division of Workmen's Compensation, and consequently dismissing the appeal.

The judgment was entered in the Division April 26, 1963. The original notice of appeal was filed by the respondent employer with the Division of Workmen's Compensation by messenger in Trenton on June 10, 1963, but a copy was not filed with the clerk of the Union County Court that day, but only on June 11, 1963. This was due to the circumstance that because of a series of mischances the messenger did not arrive at the office of the court clerk on June 10 until after the closing hour thereof that day. Thus the appeal was not filed within 45 days, as required by N.J.S.A. 34:15-66, and this was the ground of dismissal of the appeal. (The statute requires the filing of the appeal with both the Division and the County Court within the 45 days.) The County Court indicated,

and we assume for purposes of the issue presented to us, that if there were power to do so, the court might well have validated the appeal on either of the grounds that the lateness was "the result of excusable neglect" or that there was "a clear showing of a good cause and the absence of prejudice." (R.R. 1:27B(a)(2) or (d).) The question before us thus resolves itself into an inquiry as to whether the County Court possessed power under the rules of court to apply either of the rule provisions just cited to excuse the lateness of the filing of the appeal.

Insofar as the statute authorizing the appeal to the County Court is concerned, N.J.S.A. 34:15-66, no power in the County Court of enlargement of time to appeal is derivable therefrom as it is not set forth in the statute, and legislative limitations of time to appeal or seek judicial relief are ordinarily strictly construed. Cf. In re Pfizer's Estate , 6 N.J. 233 (1951); Alberti v. Civil Service Comm'n , 41 N.J. 147, 154 (1963); Scrudato v. Mascot S. & L. Ass'n , 50 N.J. Super. 264 (App. Div. 1958).

R.R. 1:27B(a)(2) and (d), upon which respondent relies in the alternative, read as follows:

"When an act is required or allowed to be done at or within a specified time, --

(a) The court in which the matter is pending, for cause shown, may at any time in its discretion: * * * (2) Upon motion permit the act to be done after the expiration of the specified period if the failure to act was the result of excusable neglect.

(d) Neither the court nor the parties may enlarge the time for taking any action under Rules 1:3-1; 1:3-2; 1:10-4; 1:10-5; 2:3; 2:12-2; 4:99-6 and 5:3-4, except that extension for a period not exceeding 30 days from the expiration of the time permitted in the said rules may be granted by the court in which the matter is pending upon a clear showing of a good cause and the absence of prejudice. The application for extension may be made at any time; provided that the action required to be taken within the specified time was in fact taken within that time as extended by the court."

We first consider the respondent's claim to the extent that it is premised on paragraph (d). That provision by its

very terms is not here applicable for the reason that its subject matter is enlargement of time for taking any action under or pursuant to certain specifically designated rules of court. In the present situation the time for appeal is specified not by any of the rules mentioned but by a statute. Lamastra v. Montgomery Ward & Co., Inc. , 25 N.J. Super. 14 (App. Div. 1953). It was there expressly held that the time to take a workmen's compensation appeal is fixed by the statute and not by the predecessor of R.R. 1:3-1(b). Cf. Barry v. Wallace J. Wilck, Inc. , 65 N.J. Super. 130 (App. Div. 1961). If (and we do not so assume) there was an oversight in the drafting of paragraph (d) in not making the 30-day discretionary extension power exercisable in respect of time limitations for appeals specified by statute as well as those specified by court rules, this is a matter for remedy ...


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