MONA WEISS VS. STATE OF NEW JERSEY DEPARTMENT OFCORRECTIONS (L-919-15, CUMBERLAND COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R.1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5448-15T1
    MONA WEISS,
    Plaintiff-Appellant,
    v.
    STATE OF NEW JERSEY
    DEPARTMENT OF CORRECTIONS,
    Defendant-Respondent.
    _____________________________
    Submitted August 8, 2017 – Decided August 15, 2017
    Before Judges O'Connor and Whipple.
    On appeal from Superior Court of New Jersey,
    Law Division, Cumberland County, Docket No.
    L-919-15.
    Chance & McCann, LLC, attorneys for appellant
    (Beth White, on the brief).
    Christopher S. Porrino, Attorney General,
    attorney for respondent (Melissa Dutton
    Schaffer, Assistant Attorney General, of
    counsel; Peter H. Jenkins, Deputy Attorney
    General, on the brief).
    PER CURIAM
    Plaintiff Mona Weiss appeals from an April 29, 2016 order
    dismissing her complaint against defendant New Jersey Department
    of Corrections (DOC).    We dismiss the appeal.
    Plaintiff was employed as a social worker for the DOC from
    2004 until 2011, most recently at Southern State Correctional
    Facility.   Investigators from the DOC obtained Commissioner's
    subpoenas for plaintiff's phone records after the DOC received a
    tip plaintiff had a sexual relationship with a parolee.            The
    investigators   identified   approximately   thirty-three   telephone
    calls between plaintiff and the parolee.     The DOC interviewed the
    parolee, who disclosed he had engaged in a sexual relationship
    with plaintiff after his release on parole in 2010, but plaintiff
    ended the relationship in 2011.
    The DOC investigator interviewed plaintiff on June 28, 2011.
    The investigator read plaintiff her Weingarten1 rights; plaintiff
    orally declined union representation but checked the box on the
    waiver form indicating she wanted union representation.        During
    the interview, plaintiff conceded she had four or five encounters
    with the parolee after his release but denied having a sexual
    relationship with him.
    1
    Nat'l Labor Relations Bd. v. J. Weingarten, Inc., 
    420 U.S. 251
    ,
    
    95 S. Ct. 959
    , 
    43 L. Ed. 2d 171
    (1975).
    2                           A-5448-15T1
    On July 1, 2011, the DOC served plaintiff with a preliminary
    notice   of   disciplinary      action,   charging   her   with   conduct
    unbecoming a public employee, in violation of N.J.A.C. 4A:2-
    2.3(a)(6); other sufficient cause, in violation of N.J.A.C. 4A:2-
    2.3(a)(12);2 conduct unbecoming an employee, in violation of HRB
    84-17 C-11; improper or unauthorized contact with inmate, undue
    familiarity with inmates, parolees, their families or friends, in
    violation of HRB 84-17 D-4; and violation of a rule, regulation,
    policy, procedure order or administrative decision, in violation
    of HRB 84-17 E-1.
    The DOC served plaintiff with a final notice of disciplinary
    action   on   September   20,    2011,    terminating   her   employment.
    Plaintiff contested the decision by filing a grievance, and the
    matter was submitted to arbitration pursuant to the collective
    bargaining agreement.     The arbitrator conducted a hearing on March
    12 and 23, 2015.     On July 21, 2015, the arbitrator denied the
    grievance and upheld plaintiff's termination.
    Plaintiff filed a notice of appeal with the Appellate Division
    on September 2, 2015.        In a letter dated October 8, 2015, the
    clerk of the Appellate Division instructed plaintiff to establish
    2
    We note the arbitration award indicates plaintiff was charged
    under N.J.A.C. 4A:2-2.3(a)(11); however, the correct regulation
    is N.J.A.C. 4A:2-2.3(a)(12).
    3                            A-5448-15T1
    a basis for this court to exercise jurisdiction over the appeal
    of an arbitration award or withdraw her appeal.        By letter of
    October 15, 2015, plaintiff acknowledged the erroneous filing and
    requested the court transfer her appeal to the Law Division.
    Although the record supplied to us is unclear, it appears the
    matter was not transferred; thereafter, plaintiff filed a verified
    complaint against the DOC and order to show cause in the Law
    Division on December 23, 2016.   The record contains a December 23,
    2015 letter by plaintiff's counsel submitted with the complaint
    stating:
    This matter is an appeal from an agency
    arbitration decision issued on July 21, 2015.
    Said appeal was misfiled in the Superior Court
    Appellate Division on September 4, 2015.
    Request was made to transfer the appeal to the
    Superior Court Law Division in Cumberland
    County pursuant to New Jersey Court Rule 1:5-
    6 (d). It is respectfully requested that the
    matter be given the filing date it received
    from the Appellate Division.
    The DOC moved to dismiss the complaint for failure to state
    a claim upon which relief can be granted pursuant to Rule 4:6-
    2(e).   The motion was granted because the complaint was filed
    beyond the three months an appeal from an arbitration award must
    be filed pursuant to N.J.S.A. 2A:24-7, absent an extension agreed
    upon by the parties, and the complaint failed to state a claim for
    which relief could be granted.       According to the motion judge's
    4                           A-5448-15T1
    decision, plaintiff filed a complaint and order to show cause as
    a summary action on December 23, 2015.3    Plaintiff asserts she had
    a right to rely on the filing date of her misfiled appeal as within
    the three months because the Appellate Division is bound by the
    rules of general application.        She cites to Rule 1:1-2(a) to
    support this assertion.4
    Based on the incomplete record, we cannot address plaintiff's
    arguments concerning either the merits of the case or whether
    plaintiff was justified in relying upon Rule 1:5-6(d),5 because
    3
    We have not been provided with a copy of plaintiff's complaint,
    order to show cause, or the order denying the order to show cause.
    4
    Rule 1:1-2(a) provides,
    The rules in Part I through Part VIII,
    inclusive, shall be construed to secure a just
    determination,   simplicity    in   procedure,
    fairness in administration and the elimination
    of unjustifiable expense and delay.     Unless
    otherwise stated, any rule may be relaxed or
    dispensed with by the court in which the
    action is pending if adherence to it would
    result in an injustice.
    5
    Rule 1:5-6(d), which plaintiff has not cited in her brief on
    appeal, and which was not discussed in the trial court's oral
    opinion, provides the following:
    If papers are sent to the wrong filing office,
    they shall be stamped "Received but not yet
    filed (date)" and transmitted by that office
    to the proper filing office and a notice shall
    be sent by the transmitting office to the
    filer   of   the   paper   advising   of   the
    5                           A-5448-15T1
    although    we   know   plaintiff   filed   a   notice   of   appeal   in   the
    Appellate Division, we do not know what plaintiff filed in the Law
    Division.    Moreover, plaintiff was directed by the clerk of the
    Appellate Division to withdraw her appeal, so she could file her
    papers in the correct court well within the time permitted under
    N.J.S.A. 2A:24-7, but she failed to do so.
    Pursuant to Rule 2:6-1(a)(1)(A), an appendix prepared by
    appellant or jointly by the appellant and the respondent shall
    contain pleadings.       Moreover, "[a] party on appeal is obliged to
    provide the court with 'such other parts of the record . . . as
    are essential to the proper considerations of the issues.'"              Soc'y
    Hill Condo. Ass'n, Inc. v. Soc'y Hill Assocs., 
    347 N.J. Super. 163
    , 177 (App. Div. 2002) (quoting R. 2:6-1(a)(1)(H); R. 2:6-3).
    Here, plaintiff failed to provide copies of the necessary pleadings
    to entitle us to properly review this matter.            Accordingly, we are
    constrained to dismiss the appeal.
    Dismissed without prejudice.
    transmittal. The stamped received date shall
    be the date of the filing.
    6                                A-5448-15T1
    

Document Info

Docket Number: A-5448-15T1

Filed Date: 8/15/2017

Precedential Status: Non-Precedential

Modified Date: 8/15/2017