This matter is before me on motion of defendant City of Bridgeton to dismiss plaintiff's complaint in lieu of prerogative writs upon the ground that it does not state a claim against defendant upon which relief can be granted. R. 4:6-2(e). Parenthetically, it should be noted that another description of defendant's motion is that the Superior Court lacks jurisdiction over the subject matter of plaintiff's complaint. R. 4:6-2(a). Alternatively, the motion seeks summary judgment in favor of defendant city upon the ground there exists no genuine issue as to any material fact and defendant is entitled to judgment as a matter of law. R. 4:46-2; Judson v. Peoples Bank and Trust Co. of Westfield , 17 N.J. 67 (1954).
The facts relevant to this present motion can be stated quite simply. Plaintiff, a sergeant in the Bridgeton Police Department, was served on August 16, 1972 with charges against him for neglect of duty in that he had failed to answer a call. Notice that a departmental hearing would be
conducted on September 16, 1972 was accompanied by the charges. The hearing, without stenographic record, was held on September 26, 1972, at which time the hearing examiner, Director of Police and Fire of the City of Bridgeton, sustained the charges and suspended plaintiff for five days.
The gravamen of plaintiff's complaint is that he was denied a fair and impartial hearing.
Plaintiff seeks either a trial de novo before the Superior Court, or a reversal of the departmental decision and a remand for a new hearing to be stenographically recorded.
Defendant's principal legal argument is that plaintiff is attempting to appeal a departmental hearing decision by way of a complaint in lieu of prerogative writs and that such procedure is prohibited under the laws of New Jersey. Specifically, defendant asserts that since the City of Bridgeton is a civil service municipality, any review of a departmental hearing would be pursuant to provisions under Title 11 and not pursuant to N.J.S.A. 40A:14-150 (" Review of Disciplinary Convictions in Non-Civil Service Municipalities ").
It further contends that since N.J.S.A. 11:2A-1 provides that
No employee of the State, or of any county, municipality or school district of the State shall be suspended, fined, or demoted more than 3 times in any 1 year, nor for more than 5 days at any 1 time, nor for a period of greater than 15 days in the aggregate in any 1 year or discharged without the same right of appeal to the [Civil Service] commission, * * *
the negative implication is presented that there exists no right of appeal where punishment is of a lesser degree than that specified in N.J.S.A. 11:2A-1.
Thus, the problem reduces itself to the jurisdictional question of whether the implication embodied in N.J.S.A. 11:2A-1 prohibits this court from reviewing the ...