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Borough of Verona v. Shalit

Decided: July 6, 1967.

BOROUGH OF VERONA, PLAINTIFF-APPELLANT,
v.
BENJAMIN SHALIT, DEFENDANT-RESPONDENT



Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Gaulkin, S.j.a.d.

Gaulkin

[96 NJSuper Page 21] Defendant Shalit was found guilty in the municipal court of violating an ordinance adopted by the Board of Health of Verona and "fined" $100. The County Court reversed, holding that the ordinance was invalid

because it was more restrictive than the code adopted by the Air Pollution Control Commission pursuant to the Air Pollution Control Act, N.J.S.A. 26:2C-1 et seq., and because it was fatally vague. The opinion of the County Court is reported in 92 N.J. Super. 65 (1966). The Borough of Verona [ sic ] appeals.

The action should have been brought by the Board of Health, N.J.S.A. 26:3-72. The failure to bring it in the name of the proper party may have helped to create the problems which will be discussed hereafter. Cf. State v. Arbus, 54 N.J. Super. 76, 79-80 (App. Div. 1959); Hewitt v. Hollahan, 56 N.J. Super. 372, 377 (App. Div. 1959). Since counsel who appeared for the Borough of Verona in fact spoke for the Board of Health (hereafter board), the board will be considered substituted as the plaintiff-appellant.

I

Defendant argues that the proceedings were criminal or quasi -criminal, and therefore the board has no right to appeal from the judgment of "not guilty" entered by the County Court. For this proposition defendant cites City of Newark v. Pulverman, 12 N.J. 105 (1953), State v. Fiore, 69 N.J. Super. 122 (App. Div.), certification denied 36 N.J. 142 (1961), and City of Englewood v. Geo. M. Brewster Son, Inc., 77 N.J. Super. 248 (App. Div. 1962). Plaintiff answers that this is not a criminal or quasi -criminal case but a civil action for the collection of a penalty and, as such, the acquittal is appealable by it, citing Department of Conservation and Economic Development, etc. v. Scipio, 88 N.J. Super. 315 (App. Div.), certification denied 45 N.J. 598 (1965); Department of Labor and Industry v. Rosen, 44 N.J. Super. 42 (App. Div. 1957), and Sawran v. Lennon, 19 N.J. 606 (1955). We agree with plaintiff and hold that it has the right to appeal from the judgment of the County Court.

The ordinance in question was enacted by the board pursuant to N.J.S.A. 26:3-64 et seq. Section 70 of said act

provides: "The local board may prescribe a penalty for the violation of any provision of a health ordinance or code. Such penalty shall not be more than one hundred dollars nor less than two dollars." Section 72 provides:

"Every municipal court shall have jurisdiction over proceedings to enforce and collect any penalty imposed because of a violation of any provision of a health ordinance or code of a local board, if the violation occurs within the territorial jurisdiction of the court. The proceedings shall be summary and in accordance with the Penalty Enforcement Law (N.J.S. 2A:58-1 et seq.); process shall issue at the suit of such local board and shall be either in the nature of a summons or warrant."

R.R. 5:2-6 recognizes the right to appeal "to the county court from a summary civil proceeding brought in a municipal court for the collection or enforcement of a penalty * * *." We are aware of the fact that R.R. 5:2-6 refers to R.R. 7:13-1 to 7:13-17 and that the latter rules speak of penalties imposed "by any statute." We note also that N.J.S. 2A:58-1 provides:

"Any penalty imposed by any statute heretofore or hereafter enacted, which by direction or authority of such statute may be collected or enforced by summary proceedings or in a summary manner may be collected and enforced in summary proceedings pursuant to this chapter and the rules of the supreme court."

We hold that even though R.R. 5:2-6, R.R. 7:13-1 to 17:13-17, and N.J.S. 2A:58-1 et seq. do not expressly mention ordinances, the plain import of N.J.S.A. 26:3-72, when read together with N.J.S. 2A:58-1, brings the collection of penalties under ordinances passed by boards of health under the governance of R.R. 7:13-1 et seq., and therefore appeals from "acquittals" as well as from "convictions" under such ordinances are governed by R.R. 5:2-6, as are all "convictions" under N.J.S. 2A:58-1. Therefore ...


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