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Borough of Stone Harbor v. Wildwood Local 59

Decided: December 17, 1980.

THE BOROUGH OF STONE HARBOR, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILDWOOD LOCAL 59, POLICEMEN'S BENEVOLENT ASSOCIATION OF NEW JERSEY AND DANIEL LLOYD, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Cape May County.

Matthews, Morgan and Morton I. Greenberg.

Per Curiam

Plaintiff Borough of Stone Harbor brought this action originally on August 1, 1977 in the Chancery Division to restrain binding arbitration requested by the P.B.A. under its collective bargaining agreement and for a declaratory judgment that defendant Daniel Lloyd failed to file his appeal of his discharge from the police department to the County Court (now Superior Court, Law Division) pursuant to N.J.S.A. 40A:14-150 in a timely manner. The Chancery Division, by order dated December 27, 1977, refused to enjoin the arbitration proceeding and retained jurisdiction of the remaining issues, including whether Daniel Lloyd was "out of time" in filing his statutory appeal to the County Court.

On October 3, 1978 the Appellate Division reversed the trial court and restrained binding arbitration of the dispute over the merits of the discharge of Patrolman Lloyd from the police department. See Stone Harbor v. Wildwood Loc. 59, P.B.A. , 164 N.J. Super. 375 (App.Div.1978).

On July 21, 1979 the Chancery Division ordered the matter transferred to the Law Division for a decision on the remaining issues, particularly on whether defendant Lloyd had given timely notice of his application of appeal of the conviction pursuant to N.J.S.A. 40A:14-150 to the County Court.

On July 18, 1979 plaintiff Borough of Stone Harbor obtained summary judgment in its favor adjudicating the untimeliness of Lloyd's appeal to the County Court.

The facts are not substantially in dispute. On June 2, 1977 the Stone Harbor chief of police personally served a notice of disciplinary action upon Patrolman Daniel Lloyd, scheduling a hearing before the police committee of the borough council for June 27, 1977. Lloyd's counsel, obtained through codefendant Wildwood Local 59, Policemen's Benevolent Association of New Jersey, participated in the disciplinary hearings which followed. Lloyd and his counsel were present when the decision convicting him of a number of charges and removing him from the force

was announced at the conclusion of the hearing on July 5, 1977. Thereafter the notice of conviction was sent on July 7, 1977 by certified mail, return receipt requested, to defendant's home in Stone Harbor. This certified notice did not include postal instructions to deliver to "addressee only."

On July 8, 1977 Lloyd's wife signed for and received the letter containing the notice of conviction at their home in Stone Harbor. Lloyd contends that he did not actually receive this notice of conviction until July 12, 1977, because he had gone to Chester, Pennsylvania, after he was removed from the police department because his parents and family were very upset by the loss of his job. It was only on his return to his home on July 12, 1977 that he was confronted with the letter.

On July 12, 1977 Lloyd took this notice of conviction to his attorney. It was not until July 21, 1977, however, that the attorney for defendant sent a written notice of application for review of the disciplinary conviction to Stone Harbor by certified mail, return receipt requested. Defendant Lloyd personally served copies of the notice on July 22, 1977.

The trial judge granted Stone Harbor's motion for summary judgment, concluding that Lloyd's failure to file a notice of appeal, or any other kind of application for review, with the County Court (now the Superior Court) deprived ...


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