On appeal from the Superior Court, Law Division, Union County.
Morton I. Greenberg, J. H. Coleman and Long. The opinion of the Court was delivered by Greenberg, P.J.A.D.
This matter comes before the court on appeal from an order of the Law Division dismissing an appeal de novo from the Municipal Court of the Township of Union on the ground that it was untimely. The proceedings though quasi -criminal have been prosecuted by a private attorney retained on behalf of the complainant. See R. 3:23-9(d); R. 7:4-4(b).
The case originated when George Serio, administrator of the Trustees of Joint Welfare Fund of Employers and Local 478, IBT, filed municipal court complaints in Union Township in the name of the State of New Jersey as plaintiff charging defendants Marvin F. Burten, Richard A. Burten and Howard L. Kaskel, officers of Branch Motor Express Co., with the disorderly persons offense of failing to contribute under the company's collective bargaining agreement to the Local 478 Trucking
and Allied Industries Pension Fund on behalf of the company's employees in violation of N.J.S.A. 2A:170-90.2.*fn1 Plaintiff's attorney has indicated that this prosecution was triggered by our decision in Trustees of Local 478 Pension Fund v. Pirozzi, 198 N.J. Super. 318 (App.Div.1984), affirming 198 N.J. Super 297 (Law Div.1983), holding that violation of N.J.S.A. 2A:170-90.2 does not create a civil liability. According to plaintiff's attorney, Branch Motor Express is in bankruptcy and presumably is unable to make the contributions. Thus the complaints were filed in the expectation, as set forth in plaintiff's brief, that if defendants were found guilty the court "would, as a condition of any sentence it might impose, require restitution of the trust funds . . ." owed to the trustees.
Defendants moved to dismiss the complaint in the municipal court on the grounds that the court lacked territorial and subject matter jurisdiction and the prosecution was barred by preemption of N.J.S.A. 2A:170-90.2 by federal law, the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. § 1001 et seq. They also contended that the privately retained attorney appearing for plaintiff was disqualified from representing it. Comprehensive briefs were filed in support of and in opposition to the motion. Inasmuch as the municipal court judge did not require the attorneys to appear when the motion was listed on June 17, 1985, they did not do so. The record reflects that on that day the following proceedings, which we quote in their entirety, took place in the municipal court:
THE COURT: Is there anyone here on the Castell [sic] or Burten matters?
THE COURT: All right. In these matters I've read the briefs and the argument --
Can you please take the child outside, ma'am? Take the child outside?
I've read the briefs and the memorandums of counsel and the reply briefs. I'm satisfied that this Court does not have jurisdiction by reasons of ERISA pre-emption as well as the place of the commission of the offense and I do not think that Mr. Craner would ...