dissenting.
I respectfully dissent from the majority’s decision to dismiss the appeal in this case.
The record indicates that class counsel for the plaintiffs timely served the proposed record on appeal. Defendants-appellees did not file any objections. Class counsel asserts he realized the proposed record on appeal became the record on appeal the day it was due in this Court. That same day, class counsel states he conferred with the administrative counsel for this Court and determined that the appellate rules do not provide for an oral motion directed to this Court to extend the time to file the record on appeal. On the following day, 29 September 1999, class counsel states he placed in the mail to this Court the record on appeal and a motion to extend the time to file the record on appeal. However, this mailing was not postmarked until 30 September 1999.
This Court routinely suspends the rules in criminal cases in order to decide the appeal on the merits notwithstanding rule violations. In State v. SanMiguel, 74 N.C. App. 276, 328 S.E.2d 326 (1985), the record on appeal did not contain a copy of the notice of appeal nor an appeal entry showing that appeal was taken orally. This Court treated the purported appeal as a petition for a writ of certiorari in order to decide the case on its merits.
In civil cases, I find this Court to be inconsistent in enforcing rule violations as demonstrated by the following cases: In Wiseman v. Wiseman, 68 N.C. App. 252, 314 S.E.2d 566 (1984), this Court stated that the Rules of Appellate Procedure are mandatory and failure to follow the rules subjects an appeal to dismissal. However, even though the petitioner had violated at least four appellate rules, the Wiseman court suspended the rules stating, “it cannot be said that petitioner’s various rule violations have markedly increased the difficulty of our task in evaluating this appeal....”
In Anderson v. Hollifield, 123 N.C. App. 426, 473 S.E.2d 399 (1996), the judgment was filed on 1 March 1995 and plaintiff’s appeal *666entries were filed 12 May 1995 (42 days late). This Court noted there were numerous rule violations by the plaintiff; however, the appeal was treated as a petition for writ of certiorari in order to “pass upon the merits of the questions raised.” Judge Smith dissented on the grounds that this Court did not have jurisdiction, since the plaintiff had not petitioned for a writ of certiorari; thus, the rules could not be suspended. The Supreme Court agreed that this Court had jurisdiction to review the trial court’s judgment and held the appellate court may issue a writ of certiorari in such a case. 345 N.C. 480, 480 S.E.2d 661 (1997).
In Adams v. Kelly Springfield Tire Co., 123 N.C. App. 681, 474 S.E.2d 793 (1996), Judge Smith, writing for the Court, first noted:
This appeal is flawed by numerous and substantial errors of appellate procedure. Our Rules of Appellate Procedure are mandatory and subject on appeal to dismissal.
This Court then enumerated the numerous errors by both parties to the appeal. However, this Court held:
Notwithstanding the stark errors committed by defendant in presenting the appeal, we exercise our discretion, pursuant to N.C.R. App. P. 2, to suspend the rules and decide the case on the merits.
Later, in Onslow County v. Moore, 127 N.C. App. 546, 491 S.E.2d 670 (1997), Judge Smith, writing for the Court, held:
Because the trial court’s purported extension of time to file the records on appeal was ineffective, and because the records on appeal were not filed within the times mandated by the Rules of Appellate Procedure, both parties’ appeals are dismissed. (J.J. Wynn and Walker concurring).
On appeal, our Supreme Court entered the following order:
The opinion of the Court of Appeals dismissing the appeals is vacated and the matter is remanded to the Court of Appeals for consideration of the appeals on the merits. 347 N.C. 672, 673, 500 S.E.2d 88, 89 (1998).
The majority notes the record on appeal was not filed with this Court until 5 October 1999 (October 2 and 3 were a Saturday and Sunday). However, I find that the defendants-appellees were not prej*667udiced by the late filing of several days and such did not delay this Court’s calendaring the case for argument.
Further, the majority states that class counsel did not petition this Court for a writ of certiorari until 21 November 2000. However, after appellees filed their motion to dismiss the appeal, class counsel moved this Court for “further order as may be just and proper in order to assure that this appeal is properly and fairly heard on its merits.” This was sufficient application under N.C.R. App. P. 2 for this Court to suspend the rules.
I do not excuse class counsel’s failure to timely file the record on appeal in this case. However, I vote to suspend the rules and decide the case on its merits as this case falls within the category of cases that Appellate Rule 2 is directed: “to prevent manifest injustice to a party or to expedite decision in the public interest. . . .” N.C.R. App. P. 2. I would further impose sanctions by taxing class counsel with the costs in this appeal. Having determined that this appeal should be decided on its merits for the reasons stated, I would reverse the trial court’s order of 5 March 1999 and remand the case for further proceedings.
It is apparent from the record and the trial court’s comments that this class action lawsuit caused the City of Lenoir in 1995 to enroll its then current and certain former employees, including 62 law enforcement officers (members of plaintiffs’ class), in the North Carolina Local Government Employees’ Retirement System (LGERS). On remand, the trial court should address this issue of causation in its order.
The trial court, in its order, concluded in part:
4. The Court concludes that the plaintiff members’ interests in present and/or future LGERS benefits to be paid from or into the LGERS as [a] result of the effective July 1, 1995, conversion of the City of Lenoir Pension Plan to LGERS are not an identifiable amount of monies subject to sufficient control of this Court. The Court concludes as a matter of law, it does not exercise control over these benefits to make any disbursements from such benefits or monies, which therefore do not constitute a common fund from which this Court can order the payment of attorneys fees. . . .
I disagree. Based on recent decisions from this Court and our Supreme Court, and the federal courts, I conclude there is a “common *668fund” over which the trial court can exercise control and order the payment of attorney fees. See Bailey v. North Carolina, 348 N.C. 130, 500 S.E.2d 54 (1998); Faulkenbury v. The Retirement System, 345 N.C. 683, 483 S.E.2d 422 (1997); and Simpson v. N.C. Local Gov’t Employees’ Retirement System, 88 N.C. App. 218, 363 S.E.2d 90 (1987), affirmed per curiam, 323 N.C. 362, 372 S.E.2d 559 (1988); Herbert Newberg and Alba Conte, Newbera on Class Actions §§ 13.52, 13.54 (1992).