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

NOT FOR PUBLICATION WITHOUT THE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