text:
    STEVEN FREEDMAN AND ROBERT DURREL, PLAINTIFFS, v. NEW JERSEY STATE POLICE, SEBASTIAN “BENNY” A. SORBELLO, ET AL., DEFENDANTS.
    Superior Court oí New Jersey Law Division
    June 26, 1975.

      Ms. Margaret M. Hayden for plaintiffs (American Civil Liberties Union).

      Mr. John Tomasello for defendant Sebastian “Benny” A. Sorbello (Messrs. Tomasello & Driscoll, attorneys).
   Miller, J. C. C.,

Temporarily Assigned. This summary judgment motion concerns itself with the rights of newspaper reporters to visit and interview migrant farm laborers living in housing provided on a farm by the farmer. Manifestly there are likewise involved the rights of the farmer who provides snch housing and there must be delimited the scope of legitimate public inquiry with relationship to rights of privacy to which the farmer is entitled. The facts have been stipulated and all remaining factual and legal issues were disposed of at earlier stages of the original suit.

Plaintiffs Freedman and Durrel wore students at Princeton University. Freedman was a reporter and Durrel a photographer for the Daily Princetonian, the university newspaper. Seeking to write an article about migrant farmworkers in South Jersey, they contacted Douglas Jones, an investigator in the Farmworkers Division of Camden Eegional Legal Services for assistance in acquainting themselves with the farmworkers and their problems.

On May 15, 1973 plaintiffs and Jones proceeded to the farm of defendant Sorbello for the purpose of seeking out migrant labor camp conditions. (Two research analysts from the U. S. Labor Department’s Bureau of Standards were also present doing random checks on work conditions on the farm; whether their presence was significant or not is unexplained.) Upon arriving at the migrant labor camp site located on the Sorbello farm, Jones went to look for defendant Sorbello to seek his cooperation while the rest of the party remained at the camp site.

While waiting Durrel began taking pictures of the camp site and of defendant. Sorbello demanded that Durrel cease and surrender to him the film. When plaintiffs refused, defendant called the police. A member of the New Jersey State Police responded and requested that the two rolls of film involved be turned over to him. Plaintiffs surrendered the film but maintained that they had a right to keep it. The film at present is in the possession of a municipal magistrate pending the disposition of this suit.

Manifestly there is required here a refinement of the principles enunciated in State v. Shack, 58 N. J. 297 (1971). Sorbello in his argument seeks to limit the access permitted in Shack to “governmental services”; Freedman and Durrel seek to embed the press within the penumbra of Shade. They rely on the first amendment to the Federal Constitution although this is entirely unnecessary. The N. J. Const. (1947) Art. 1, par. 6, affords identical rights as does the Federal Constitution. It seems unnecessary to invoke federal authority when the protection of our New Jersey system is more than adequate. Cf. National Freight v. Ostrof, 133 N. J. Super. 554, 558 (Law Div. 1975). As a matter of fact, the declaration of rights and privileges in the New Jersey Constitution is far more complete and extensive than its federal counterpart. See, for example, Art. 1, par. 19.

One wonders why parties routinely and without reflection attach themselves to federal constitutional provisions, disregarding identical, and frequently more liberal principles of state constitutions. Anyone who compares the Bill of Rights of the Federal Constitution with the declaration of rights and privileges of the New Jersey Constitution will inexorably be drawn to the conclusion that the State Constitution provides greater protection to individual rights and liberties than the federal. Moreover, there is no tenable thesis that the federal judiciary is more capable of exercising its functions than is the judiciary of this State. This matter, therefore, will be treated as within the scope of the New Jersey constitutional periphery and not of the Federal Constitution, the applicability of which is redundant.

In Shade the Supreme Court required access to farm workers by representatives of “federal, State or local services, or from recognized charitable groups.” Shade, 58 N. J. supra at 307. To this was added visitors of the worker’s choice and members of the press.

Sorbello does not deny this but points out that the access of the press must be “reasonable” and asks this court to define what is reasonable and to provide guidelines for such access. He points out that the farmer in question has not opened his land to the public; that the visit in question was disruptive and without the ambit of Shade and, being without notice and during the business day, was unreasonable.

It is impossible not to feel sympathetic with the farmer in this case. While the Daily Princelonian may be a legitimate member of what plaintiffs call the “non-establishment press” (whatever that is), and there is no doubt that its reporters and other authorized representatives are entitled to, and are, accorded status as legitimate reporters, see Lee v. Board of State Colleges, 306 F. Supp. 1097 (W. D. Wis., 1969), aff’d 441 F. 2d 1257 (7 Cir. 1971); Branzburg v. Hayes, 408 U. S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972); Stanford Daily v. Zurcher, 353 F. Supp. 124 (N. D. Cal. 1972), neither the law nor its courts operate in a vacuum. The Daily Princetonian is a newspaper primarily for the students and faculty of Princeton University. Merely to compare it with such newspapers as the New York Times, the Philadelphia Inquirer, or, in a slightly different field, Time Magazine or Newsweek, is to demonstrate the difference. The Daily Princetonian is, in the vernacular, a “house organ,” having a limited appeal to its particular constituency. It is decidedly not a newspaper of general circulation. When a farmer sees representatives of such a publication invade his property, unannounced and accompanied by a lawyer during the normal hours of work, it is completely understandable why he loses his temper and judgment. The court believes that these young people were more interested in creating news than they were in reporting it.

Nevertheless, the farmer cannot prevail. Granted that the privileges of the press were strained, if not actually abused, the fact remains that the scope of the constitutional protection of Art. I, par. 6, encompasses the representatives of the Daily Prinaetonian.

This farmer and those who provide housing for persons other than their own families, be they tenants, licensees, migrant laborers or whatever status they may enjoy, must recognize that one who today provides such housing is sailing in waters that have been clearly charted as within the public interest. The statute books are replete with examples demonstrating that one who resides on the property of another is accorded rights and privileges that -would have been undreamed of half a century ago. To recite all such authorities would be burdensome, but a mere examination of such statutes as the Fair Eviction Notice Act, N. J. S. A. 2A 42-10. 15 et seq., the provisions dealing with civil actions for re-entry, N. J. S. A. 2AA2-10.1 et seq., N. J. S. A. 2A AS-IO.16, the statute dealing with security deposits, N. J. S. A. 46:8-21.1, and other similar acts demonstrates with clarity the proposition that it is the public policy of this State that the furnishing of lands and buildings for dwelling purposes by the owner to another constitutes an activity the regulation of which is as much in the public interest as the regulation of public utilities. The farmer may have a constitutional right to employ those whom he chooses, but he does not, if he chooses to house such employees, have a constitutional right to act in disregard of public policies hereinabove expressed or of his employees to assert their own rights.

The farmer is not entirely helpless, however. As Shack points out, these rights of the workers (and of the press or other visitors) must be exercised reasonably. Here, while the rights of the press may be recognized, these rights were exercised unreasonably. A minimum framework within which such rights must be exercised reasonably embrace: (1) the visiting of workers during nonworking hours (lunch included). (It must be recalled that farming is a seasonal occupation and the farmer ought not to be compelled to sit by and have his production disrupted. No one would pretend that the press should be able to stop an automobile assembly line (in media res) to interview workmen whom it could easily interview after hours); (2) a giving of reasonable notice to the farmer; (3) a confinement of such visitation and interview rights to the tenants themselves and the area where they live and work. (The worker’s kitchen might be the subject of legitimate inquiry; the farmer’s kitchen is not unless he feeds the tenants out of it); (4) consent of the interviewees, freely given, free from pressure from anyone, including the interviewer and the farmer.

Manifestly, where a reporter can go, his photographer can go. The courts will not attempt to inhibit either; the constitutional cloak covers both.

In the instant case, both parties acted without guidelines. The narrow issue presented is whether the photographs taken must be destroyed or returned. They must be returned as improperly withheld. No costs.


source: Caselaw Access Project

author: Harth, J. C. C.,

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. FERNANDO VASQUEZ, DEFENDANT.
    Superior Court of New Jersey Law Division
    June 27, 1975.

      Mr. Robert L. Gerefice, Esq., Assistant Prosecutor, for the State (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney) .

      Mr. Samuel Raffaelo for defendant.
   Harth, J. C. C.,

Temporarily Assigned. Defendant

brings a motion to dismiss Indictment Ho. 1065-74, which charges him and a codefendant with possession of a controlled dangerous substance, to wit, cocaine, on April 33, 1974.

On March 30 and again on March 31, 1974 defendant distributed cocaine to Lewis Gonzales from his apartment located in Newark, New Jersey. He was arrested for distribution on May 3 and a two-count indictment was returned on May 33, 1974. Pound guilty by a jury on October 11, he received a custodial sentence on November 30, 1974.

On January 7, 1975 defendant was indicted for possessing cocaine in the same- apartment on April 33, 1974. He seeks to dismiss the indictment, contending that since the possession offense was fully known to the prosecutor prior to the return of the indictment and trial for distribution, he should have presented all the charges in one indictment. Citing the recent case of State v. Gregory, 66 N. J. 510 (1975), defendant claims that “such withholding and later prosecution smacks of harassment and oppression and should be barred.”

Additionally, he claims that the indictment should be dismissed because the cocaine was seized during the execution of a search warrant, and the affidavit in support of the warrant sets forth the March sales which were the subject of his conviction. He alleges that this constitutes double jeopardy.

A review of the facts in State v. Gregory and the instant case reveal significant differences.

On December 27, 1971 Gregory sold heroin to an undercover officer who saw him go into a bathroom and remove a glassine envelope from a stack of similar envelopes in a medicine cabinet. Upon leaving the apartment the purchaser notified other Newark police officers who returned immediately and seized the remaining envelopes. On April 20, 1972 Gregory was indicted for the single sale to the officer. He was convicted on October 21, 1972 and sentenced on January 3, 1973. On December 6, 1972 the grand jury returned two indictments against Gregory, one for possession and the other for possession with intent to distribute.

In the present case the series of events leading up to the indictment now under review are as follows. A search warrant was executed on April 23, 1974 to search defendant’s premises at 15 Chestnut Street, Newark, New Jersey. The affidavit in support of the warrant recounted the March sales that were the subject of the defendant’s conviction and, in addition, alleged an April 9, 1974 sale of cocaine from the same premises. A search of the premises disclosed the presence of cocaine, and defendant was placed under arrest for possession.

Thus, unlike the Gregory case, this defendant was the subject of separate arrests and separate bail for offenses that occurred on different days. The possession indictment charges a date over a month after the sales were made. Though the prosecutor is unable to offer an explanation as to the delay in obtaining the latter indictment, there is no evidence to indicate it was the result of unfair play.

Section 1.07(2) of the American Law Institute’s Model Penal Code (proposed official draft 1962) has been incorporated into the body of New Jersey criminal law. State v. Gregory, supra. That section provides:

* * * a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.

In State v. Gregory this was applied to effectuate the prohibition against double jeopardy by placing the emphasis on the underlying policy of fairly protecting the State’s vital interest in bringing the guilty to justice, while at the same time protecting the accused from multiple trials and punishment when in substance there had been but a single wrongdoing. The primary consideration is fairness and fulfillment of reasonable expectations in light of constitutional and common law goals.

In making the determination based on these principles the key question is whether the transactions or acts involved the same conduct or arose from the same criminal episode.

Does the indictment herein, alleging the possession of cocaine on April 23, 1975, charge an offense “based on the same conduct or arising from the same criminal episode” as the illegal sales of cocaine on March 20 and 21, 1975?

Gregory involved a conviction for the sale of heroin followed by a subsequent indictment and conviction for possession with intent to distribute. The purchase and subsequent seizure of the narcotics occurred on the same day, with the seizure closely following the purchase. The heroin purchased, was a portion of that quantity which was subsequently seized by the police officers, and the quantity of heroin seized was known to the police officers at the time of the purchase. The actual sale and the possession with intent to distribute both involved the same bulk of narcotics within a relatively short time span. When defendant was brought to trial for the sale, his reasonable expectations were that there would be no further prosecution on the basis of his possession and sale on that day. In this context it can be understood how these offenses arose from the same criminal episode.

In a situation where there is lacking a nexus between the sale and the possession, it cannot be said that the charge of possession, following a previous indictment for distribution of narcotics, involves the same conduct or the same criminal episode. Here, there was no evidence that defendant, at the time of the sales, had possession of any drugs other than that which he sold to the agent on March 20 and 21, 1974. Therefore, there was no overall offense, but rather two separate offenses, since the seizure of the contraband upon which the possession charge was based occurred approximately one month after the sales. Moreover, the recitation of the previous sales offenses in the search warrant affidavit does not provide the nexus that would bring the second offense within the same criminal episode as the first, since the affidavit merely stated previous separate acts as information within the officer’s knowledge which created the basis for probable cause to issue the warrant. The warrant led to discovery of new evidence of crime. The fact that that evidence was the basis of the second indictment does not extend or continue the first offense to encompass the second within the same episode. There is no evidence that drugs possessed on April 23, 1975 were drugs from which the smaller quantity sold on March 20 and 21 was taken. Accordingly, the present case has neither the closeness in time nor the identity in the bulk of the contraband which existed in Gregory.

In addition, and perhaps more importantly, there could be no reasonable expectations by defendant that he would not be subjected to an independent later prosecution for the possession charge, for there was a separate arrest on each charge. It was clear to him that he was being charged with two separate and distinct offenses, unrelated in time and in circumstance; indeed, the only similarity was that both involved the same narcotic substance, cocaine. See State v. Currie, 41 N. J. 531, 540 (1964); State v. Gregory, 66 N. J. at 517.

There being, then, no multiple offenses based on the same conduct or arising from the same criminal episode, there is no violation of the underlying policies of the prohibition against double jeopardy. Accordingly, defendant’s motion to dismiss the indictment is denied.


author: Heine, J. S. O.

text:
    NEW JERSEY CIVIL SERVICE ASSOCIATION, CAMDEN COUNCIL NO. 10, PLAINTIFF, v. THE MAYOR AND CITY COUNCIL OF THE CITY OF CAMDEN AND THE CITY BUSINESS ADMINISTRATOR, DEFENDANTS.
    Superior Court of New Jersey Law Division
    June 30, 1975.

      Mr. Joseph A. Carmen for plaintiff.

      Mr. Michael J. DiCola for defendants (Mr. Martin F. McKernan, Jr., attorney).
   Heine, J. S. O.

This action in lieu of prerogative writs raises the issue whether a municipality can agree in a collective bargaining agreement to provide dental services to its employees.

The facts are not disputed. On July 2, 1974 the City of Camden entered into two collective bargaining agreements with Council Ho. 10, New Jersey Civil Service Association, acting in behalf of the supervisory personnel and the blue collar workers of the city. Each of the agreements provided as follows:

The City of Camden agrees to adopt a dental plan for the City employees effective July 1, 1974.
(a) From July 1, 1974 said dental plan shall cover the City employees only.
(b) During the contract year, January 1, 1975 to December 31,
1975, said dental plan shall cover City employees and their spouses.
(c) During the contract year, January 1, 1976 to December 31,
1976, said denial plan shall cover the City employees, their spouses and children.

On July 18, 1974 the city council adopted a resolution authorizing the city business administrator to enter into a contract with North American Dental Plans, Inc. for dental services for the city employees. Information regarding the nature and scope of the benefits was distributed to the city employees. Pursuant to the plan the employees were treated during parts of July and August at the dental clinic established by North American.

On August 22, 1974 city council adopted a resolution rescinding the resolution of July 18 and discontinued the dental plan services.

The complaint challenges the resolution of August 22 and seeks the re-establishment of the dental plan and damages. The city resists on the theory that because there is no statutory authority for the agreement to provide the dental plan, the agreement was ultra vires. Cross-motions for summary judgment ripen the issue for decision.

In support of its position the city argues that it has no express authority to contract to provide the dental plan. It concedes that it has not only the powers expressly conferred upon it but also those of necessary or fair implication, incidental to the powers expressly conferred or essential thereto. Inganamort v. Fort Lee, 62 N. J. 521, 533 (1973); N. J. Const: (1947), Art. IV, § VII, par. 11.

H. J. S. A. 40:69A-29(a) provides:

Each municipality governed by an optional form of government pursuant to this act shall, subject to the provisions of this act or other general laws, have full power to:
(a) organize and regulate its internal affairs, and to establish, alter, and abolish offices, positions and employments and to define the functions, powers and duties thereof and fix their term, tenure, and compensation.

Camden is a Faulkner Act city governed by optional form of government. N. J. S. A. 40:69A-49 et seq.

N. J. S. A. 40A:9-13 provides, in pertinent part, as follows:

Any municipality * * *’ herein referred to as employers, may enter into contracts of * * * hospitalization, medical, surgical, major medical expense or health and accident insurance with any insurance company or. companies authorized to. do business in this State or may contract with a * * * medical service corporation with respect to the benefits which they are authorized to provide respectively. Such contract or contracts shall provide any one or more of such coverages for the employees of such employer and may include their dependents. “Dependents” shall include an employee’s spouse and the employee’s unmarried children. * *' *

The city concedes' that the services or benefits enumerated in N. J. S. A. 40A:9-13 are mere forms of compensation or additional compensation which the city is expressly authorized to fix under N. J. S. A. 40:69A-29. Accord, Hayes v. Hoboken, 93 N. J. L. 432 (E. & A. 1919); Riddlestorffer v. Rahway, 82 N. J. Super. 35 (Law Div. 1963); Maywood Ed. Ass’n, Inc. v. Maywood Bd. of Ed., 131 N. J. Super. 551 (Ch. Div. 1974). Compensation is surely part of terms and conditions of employment which are subject to negotiation within the contemplation of the Employer-Employee Relations Act. N. J. S. A. 34:13A — 5.3. Englewood Bd. of Ed. v. Englewood Teachers, 64 N. J. 1, 6-7 (1973). The city urges, however, that since N. J. S. A. 40A:9-13 does not specifically mention “dental insurance”, or “a dental service acorporation” it may not contract to provide those services or benefits; further, it suggests that the absence of an express authority should be' interpreted as an implied prohibition.

The court holds that providing dental services is expressly authorized in the statute, N. J. S. A. 40A :9-13. The diagnosis, treatment and care of human teeth, gums, and all that pertains to the oral cavity (cf. N. J. S. A. 45:6-19, defining “Practicing dentistry”), may be considered as included and forming part of the “medical, surgical or health coverages” for which the municipality is allowed to contract.

Even if this be not so, the contract is sustainable under N. J. 8. A. 40:69A — 29(a), which authorizes the fixing of the compensation of municipal employees, as well as N. J. S. A. 34:13A-5.3. This additional compensation may take the form of reimbursement of the cost to the employee. On the other hand, as an alternative to cash payments, it may be in the best interest of the municipality, economically or administratively, to contract that dental service be furnished to its employees either by an insurance policy or clinical dental treatment. By providing dental service or benefits the municipality is, in a sense, merely substituting the service or benefits for the payment of the additional compensation agreed to in the contract. The agreement to provide these benefits was not, therefore, ultra vires the city.

The city further argues that the omission of specific mention of “dental insurance” or “dental service” in N. J. S. A. 40A:9 — 13 should be interpreted as a prohibition against municipalities providing such insurance or service to its employees, which finds support in the doctrine of expressio umus est exdusio alterius. This maxim doctrine has been said to be

* * * a mere aid to interpretation [which] usually serves to describe a result rather than to assist in reaching it. The final question is whether in a given context an express provision with respect to a portion of an area reveals by implication a decision with respect to the remainder. The issue is one of intention. The answer resides in the common sense of the situation. [Reilly v. Ozzard, 33 W. J. 529, 539 (1960)]

Maywood Ed. Ass’n, Inc. v. Maywood Bd. of Ed., supra; 2A Sutherland, Statutory Construction (4 ed. C. D. Sands 1973), 127.

The Legislature has not restricted a municipality’s power to provide dental service. In the absence of an express legislative restriction against bargaining for that benefit of employment, the authority to provide those benefits resides in the municipality under the broad powers and duties delegated by the statutes. Were it otherwise a municipality would not be able to bargain collectively and to make agreements concerning terms of employment with its employees unless specific statutory authority for each provision of the agreement existed. See Teachers Ass’n, Cent. H. S. D. No. 3 v. Board of Ed., etc., 34 A. D. 2d 351, 312 N. Y. S. 2d 252, 256 (App. Div. 1970).

In further support of its argument of negative implication, the city points out that in 1972 the Legislature adopted Senate Bill Ho. 163. This bill attempted to amend N. J. S. A. 40:11-15.1 (now 40A:9-13) by adding the terms “dental” and “dental service.” That bill was vetoed by Governor Cahill on December 14, 1972. Ho further action was undertaken by that Legislature to override the veto or by any subsequent Legislature to re-enact the bill. From these facts the city argues that there was a clear legislative intent to exclude those terms.

This argument does not follow necessarily. It may be that the Legislature did not act further in the matter because it may have considered that the law did in fact include the purposes of the proposed amendment, so there was no need to further act in the matter or that the proposed legislation was objectionable for other reasons. Hilton Acres v. Klein, 64 N. J. Super. 281, 294 (App. Div. 1960), mod. 35 N. J. 570 (1961); Moore v. Bd. of Freeholders, 39 N. J. 26, 30 (1962); 2A Sutherland, op. cit., § 48.18 at 224.

Judgment is entered in favor of plaintiff, without costs.


author: Doan, J. S. C.

text:
    JOSEPH A. MUCCIO, PLAINTIFF, v. CLINTON E. CRONIN, ACTING COUNTY PROSECUTOR, DEPUTY ATTORNEY GENERAL IN CHARGE OF PASSAIC COUNTY PROSECUTOR’S OFFICE, BOARD OF CHOSEN FREEHOLDERS OF PASSAIC COUNTY, AND BURRELL IVES HUMPHREYS, PROSECUTOR OF PASSAIC COUNTY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    July 2, 1975.

      Mr. Philip H. Mizzone, Jr. for plaintiff.

      Mr. Burrell Ives Humphreys, Prosecutor of Passaic County, for defendants Clinton E. Cronin and Burrell Ives Hum-phreys (Mr. John P. Goceljak, Assistant Prosecutor, on the brief.)

      Mr. Martin Verp, Passaic County Counsel, for defendant Board of Chosen Freeholders of Passaic County.
   Doan, J. S. C.

Plaintiff brings this action in lieu of prerogative writs seeking judgment: (a) declaring null and void his termination as a Passaic County investigator, (b) compelling his reinstatement to that position, (c) declaring him tenured in the position, and (d). awarding him counsel fees and costs.

The basic facts are neither disputed nor complex. On June 16, 1951 plaintiff was appointed a special investigator for the Passaic County Prosecutor’s Office by then Prosecutor Donald G. Collester. The appointment was denoted “unclassified.” Thereafter, pursuant to L. 1951, c. 274 (N. J. 8. A. 2A:157-10), plaintiff was designated a county investigator by Prosecutor Collester on September 12, 1951 and continued as such until receipt from then Acting Prosecutor Clinton E. Cronin of a notice of termination, dated June 13, 1975, effective June 20, 1975. Defendant Humphreys, who took office as Passaic County Prosecutor on June 23, 1975, has notified plaintiff that he will not reappoint him as a county investigator.

From August 11, 1946 to December 9, 1953 plaintiff served as a volunteer fireman in the Borough of West Paterson. On December 17, 1953 he received an exempt fireman certificate from the West Paterson Fire Co. No. 1 which was filed in the Passaic County Clerk’s office the following day, December 18, 1953.

Letter opinions of then county counsel dated February 10, 1954, addressed to the board of freeholders, and May 6, 1970, addressed to plaintiff, concluded that Muccio had acquired tenure as a county investigator by virtue of 12. 8. 40:47-60 (entitled “Tenure of exempt firemen”). Plaintiff so claimed in a letter to Prosecutor Collester dated January 19, 1954. This claim was subsequently forwarded to the board of freeholders who, in turn, notified the Civil Service Commission, by letter dated March 9, 1954, of it and the confirming opinion of county counsel (that dated February 10, 1954). The Commission, after noting receipt of the transmitted materials on Muccio’s file, concluded it had no jurisdiction over R. 8. 40:47-6 matters and took no action thereon.

Cross-motions for summary judgment have been filed. At oral argument defendants questioned whether plaintiff had served continuously since 1951 without reappointment, as he claimed, and whether the exempt fireman certificate was duly issued. N. J. S. A. 40A :14-55, 56 and 59; R. S. 40:47-52, 53 and 58. However, for purposes of their motion, these facts were conceded.

Plaintiff contends he has tenure as an exempt fireman under N. J. S. A. 40A:14-64 and that he cannot be removed absent a finding of good cause made after a fair and impartial hearing. Defendants posit that the Exempt Firemen’s Tenure Act is inapplicable and Muccio is subject to summary removal by any incumbent prosecutor, N. J. S. A. 2A:157-10.

I

Initially, judgment dismissing the complaint must be entered in favor of defendant board of chosen freeholders inasmuch as it lacks any authority to continue plaintiff in his position or to reappoint him to it. Cetrulo v. Byrne, 31 N. J. 320 (1960); N. J. S. A. 2A:157-10. In Getrulo it was said:

The Legislature as well as the courts have long recognized the strong policy considerations which dictate that since the county prosecutor is charged with heavy enforcement responsibilities he must be given broad powers to appoint his own personnel; thus he appoints his own assistant prosecutors and investigators within the maxima prescribed by statute * * *. * * * Nowhere have we found any statutory language which supports the notion that an outside legislative agency such as the board of freeholders has the right to appoint assistants to the prosecutor * * *. [at 329]

Though Getrulo dealt specifically with the freeholders’ inability to appoint legal assistants, the holding there was clearly intended to apply to other assistive positions such as investigator and is dispositive of the action against the board here.

II

We turn, then, to the heart of the controversy. N. J. S. A. 40A :14-64 pertinently reads as follows:

Whenever an exempt fireman holds a * * * county * * * office not created by the Constitution, he shall hold such office during good behavior and shall not be removed unless for good cause after a fair and impartial hearing, provided he has or shall have served in said office for a term of 3 [three] consecutive years * * *

Since N. J. S. A. 2A:157-10 denotes county investigator as an “office or position” the above statute seems applicable to Muceio’s case. Furthermore, even were it not an “office” for 40A:14-64 purposes, plaintiff’s circumstances could bring him within N. J. S. A. 40A :14-60, which provides:

Whenever any person possessing an exempt fireman certificate holds an office, position or employment of * * * a county * * * for an indeterminate term, such person shall hold his office, position or employment during good behavior and shall not be removed therefrom for political reasons but only for good cause after a fair and impartial hearing.

These two statutes find their immediate source in R. 8. 40:47-60, 63 and 64; L. 1911, c. 212; L. 1938, c. 385. N. J. S. A. 40A :14-64 is an amalgam of R. S. 40:47-63 and 64 of the old statutory scheme and employs similar language. N. J. S. A. 40A .T4-60 combines elements of R. S. 40:47-60 and 63 with the language paralleling B. S. 40 :47-63. Substantively, the protection afforded holders of exempt fireman certificates is the same. As the Appellate Division said in Bialkowski v. Ridgefield, 120 N. J. Super. 194 (1972) :

Contrary to the contention of the plaintiff, there is nothing in the 1970 revision of Chapter 47 of Title 40, and specifically the sections dealing with tenure of persons holding exempt fireman certificates * * * which indicates any legislative intent to “change the preexisting scheme.” [at 197]

It appears evident that were this the only body of law to be applied to the instant facts, plaintiff would prevail. Plaintiff is a holder of an exempt fireman certificate who has occupied the county position to which he was appointed continuously for over 24 years. It is not necessary that he have had the certificate when appointed, Grimm v. Sussex Bd. of Chosen Freeholders, 118 N. J. L. 210 (Sup. Ct. 1937), and it has been held that a term coextensive with the appointing agency’s pleasure, as is the case under N. J. 8. A. 2A:157-10, is an indefinite one for purposes of the Exempt Eiremen’s Tenure Act, Maxwell v. Wildwood, 111 N. J. L. 181, 184 (Sup. Ct. 1933). The requirements of the act have patently been met here and tenure would normally attach in the absence of other considerations.

Other considerations exist, however. Our courts have long recognized the existence of exceptions to the scope of general tenure acts. As noted in Brennan v. Byrne, 31 N. J. 333 (1960):

It is well settled that the general terms of .[the Veterans’ Tenure Act] may not properly be applied to employments under later specific enactments which adequately evidence a legislative purpose of excluding them from its tenure protection, [at 337]

Tlie provisions of tlic Veterans’ and Exempt Firemen’s Tenure Acts being equatable as to form and substance, Maxwell, supra 111 N. J. L. at 184, it follows that the restriction to the former’s applicability enunciated in Brennan pertains to the latter as well. See Ackley v. Norcross, 123 N. J. L. 569 (Sup. Ct. 1939), aff’d o.b. 124 N. J. L. 133 (E. & A. 1940).

Brennan concerned a terminated county investigator claiming veteran’s tenure in his reinstatement effort. Though lengthy, quotation of the court’s rationale in rejecting that claim is appropriate:

In 1931 tlio Legislature adopted a supplement to earlier enactments relating to county detectives in counties of the first class *' * ; it expressly authorized prosecutors in counties of the first class to appoint county investigators * * * and it provided that county investigators shall hold office at the pleasure of the prosecutor and shall be excluded from the classified service under the Civil Service Act. See L. 1931, c. 164. A statement attached to the bill which * * * became L. 1931, c. 164 noted that the prosecutor’s appointees would hold office ‘‘only during the pleasure of the prosecutor” and that the bill gave to the prosecutor the right to appoint during his term “persons in ivhom he has the degree of confidence resulting from personal, intimate knowledge” [The court then reviewed provisions dealing with a veteran investigator’s eligibility for a detective position.] In 1937 the aforementioned provisions were carried over into the Revised Statutes. See R. S. 2:181-6, 2:181-4. In 1951 the Legislature adopted an act revising the law concerning county detectives and comity investigators and repealing certain enactments including R. S. 2:181-6 and R. S. 2:181-4. See L. 1951, c. 274, N. J. S. A. 2A:157-1 et seq. This revision provided for the appointment of county detectives in the classified service of the civil service and for the appointment in the unclassified service of county investigators to serve at the pleasure of the prosecutor and subject to removal by him. L. 1951, c. 274, p. 944; N. J. S. A. 2A:157-10. [The court again referred to the eligibility of veterans employed as county investigators for county detective appointments.]
All of the foregoing enactments were subsequent to the adoption of our present Veterans’ Tenure Act. L. 1907, c. 14; N. J. S. A. 38:16-1. They evidence to us the olear legislative purpose and plan of affording to the county prosecutor a confidential investigatory staff serving at his pleasure and removable at his ivill notwithstanding the terms of any earlier tenure enactments. Thus the 1931 enactment pointedly stipulated not only that the county investigator should hold office, at the prosecutor’s pleasure but also that he should be excluded from the classified service which would have given him tenure pro teetion under the Civil Service Act (L. 1931, e. 164) **'*•. and while the comprehensive 1951 revision continued the protection of county detectives under the Civil Service Act, it deliberately reaffirmed the legislative intent of withholding tenure protection to county investigators by placing them in the unclassified service of the civil service * * * and directing that they shall serve at the pleasure of the prosecutor and be subject to removal by him. See L. 1951, o, 274, p. 944; N. J. S. A. 2A :157-10. [31 N. J. 335-336; emphasis supplied]

Finding these legislative expressions to embody “adequate evidence of a legislative intent to afford a power of removal free from the provisions of earlier tenure statutes,” the court (at 338) held the Veterans’ Tenure Statute inapplicable and that plaintiff had been properly removed.

As earlier noted, the Veterans’ Tenure Act and the Exempt Firemen’s Tenure Act are similar in substance and language. Further, the 1951 revision of the county detectives’ and investigators’ law followed the 1938 revision of the Exempt Firemen’s Act which was in effect when plaintiff was appointed and Brennan decided. The language and rationale of that case, then, make manifestly clear that at that time the Exempt Firemen’s Act, like the Veterans’ Tenure Act, did not cloak county investigators with tenure.

Plaintiff’s brief implicitly concedes this. He argues, however, that amendments to the Exempt Firemen’s Act in 1967 and 1970 and its reenactment into its present form in 1971 override the Brerman holding and reveal a legislative intention that the position of county investigator is not to be excluded from the Exempt Firemen’s Act’s coverage. Stress is laid on the language in Brerman observing that the specific enactments evidencing the exclusionary legislative purpose were subsequent the enactment of the Veterans’ Tenure Act there under consideration and stating that the general terms of that act may not be applied to employments “under later specific enactments which adequately evidence a legislative purpose of excluding them from its tenure protection.” 31 N. J. at 336 (emphasis supplied). Noting that similar phraseology was utilized in Perrella v. Jersey City Bd. of Ed., 51 N. J. 323, 339 (1968), and Schroeder v. Essex Cty. Bd. of Freeholders, 63 N. J. 124, 126 (1973), it is argued that the reversed chronology of the specific act, N. J. S. A.. 2A :157-10, and the general Firemen’s Act occasioned by the-latter’s 1971 revision and reenactment necessitates a finding-that the Legislature intended to reverse Brennan as to exempt firemen; that county investigators are intended to be covered by the Firemen’s Act and that Muccio is so tenured.

Plaintiff’s emphasis on chronology is misplaced. The central inquiry in Brennan and the cases therein cited and following is whether the total legislative scheme before the court reveals a purpose and intent to exclude a particular employment from the protections afforded by a general tenure statute. The answer requires examination of the purpose and intended effect of the pertinent statutes as expressed by the Legislature in the statutory language, context, legislative history and other relevant circumstances bearing thereon in light of the pertinent rules of statutory construction. Chronology of passage is but one factor to be considered in gleaning the legislative will, and it cannot be deemed conclusive. To give later passage the effect urged by plaintiff would be to abdicate the court’s responsibility in such instances. As recently restated in Lawrence v. Butcher. 130 N. J. Super. 209 (App. Div. 1974) :

Where statutes in some apparent conflict relate to the same subject matter, it is the duty of the court to construe them together as a unitary and harmonious whole insofar as that may be possible in order that each may be fully effective. Clifton v. Passaic Cty. Bd. of Taxation, 28 N. J. 411, 421 (1958). [at 212]

No preliminary drafts, reports, hearings, annexed statements of purpose or other such express indication of the Legislature’s intentions regarding the 1971 revision and. reenactment of the Exempt Firemen’s Tenure Act has beem offered by counsel or uncovered by the court’s own research.. Resort must be made, then, of the maxims of construction which embody reasonable inferences as to legislative intent. In re Posey, 89 N. J. Super. 293, 304 (Cty. Ct. 1965), aff’d o. b. 92 N. J. Super. 259 (App. Div. 1966).

Initially,

It is familiar law that where a statute construed by the courts has been reenacted in the same or substantially the same terms, the Legislature is presumed -to have been familiar with its construction, and to have adopted it as part of the law, unless it expressly provides for a different construction [Cox v. Hruza, 54 N. J. Super. 54, 61 (App. Div. 1959)]

And in In re Keogh-Dwyer, 45 N. J. 117 (1965), the court noted in construing the election laws:

*■ ® # ikg election laws have been amended several times since 1930 but no substantial change has been made in the pertinent requirements of the statutes since In re Lavallette, supra [9 N. J. Misc. 25]. In construing a statute it is to be assumed that the legislature is thoroughly conversant with its own legislation and the judicial construction placed thereon. Borringer v. Miele, 6 N. J. 139, 144 (1951). And the construction of a statute by the courts, supported by long acquiescence on the part of the Legislature or by continued use of the same language or failure to amend the statute, is evidence that such construction is in accord with the legislative intent. [at 120]

See Egan v. Erie R. Co., 29 N. J. 243, 250 (1959); Lemke v. Baily, 41 N. J. 295, 301 (1963); Bialkowski v. Ridgefield, 118 N. J. Super. 354, 358-359 (Law Div. 1972), aff’d 120 N. J. Super. 194 (App. Div. 1972); 82 C. J. S. Statutes § 370(b) at 848. “The rule applies in the construction of a statute enacted after a similarly [worded] or cognate statute has been judicially construed”. Ibid, at 851. Cf. In re Posey, supra; Ciuba v. Irvington Varnish & Insulator Co., 27 N. J. 127, 137-138 (1958) (where, in construing the term “injury by accident” in the' Workman’s Compensation Act, the court presumed the Legislature intended the antecedent construction given a similar clause in the English prototype by the English courts).

Comparing R. S. 40 :47 — 60, 63 and 64 with N. J. S. A. 40A :14-60 and 64, one finds that while there are differences in arrangement, phraseology and sentence structure, the sum and substance are the same. As respectively observed by the two tribunals in Bialkowski, supra, “the language and context of [the latter] do not reveal * * * a radical departure from [the former],” 118 N. J. Super, at 358, nor “any legislative intent Ho change the pre-existing scheme’,” 120 N. J. Super. at 197. As earlier noted, much of the key language is similar. The Legislature may be presumed to know the judicial effect given the language of the Veterans’ Tenure Act and the Firemen’s Act’s lingüistica! parallelism thereto. The absence of any radical alteration in the language of N. J. S. A. 40/1:14.-60 and 64 expressing legislative repudiation of Brennan, or a comment or statement annexed to the bill so doing, is indicative that the result there is in accord with the legislative intent as to 40A:14-60 and 64. Nor are the technical changes made sufficient to constitute such a disavowal :

While the Revision is a wholly independent enactment and supersedes all pre-existing general laws, State v. Czarnicki (Supreme Court 3940), 324 N. J. L. 43, 45; nevertheless, it is the rule that a rearrangement of the statutes, in a general revision of the law, does not change the statute’s significations. Pomeroy v. Mills (Court of Errors, 1883), 37 N. J. Eq. 578, 580. Moreover a mere change in words or phraseology in a general revision does not change its effect, unless there is evidence of a legislative intention to work a change. Leonard v. Leonia Heights Land Co. (Court of Errors and Appeals, 1913) 81 N. J. Eq. 489, 492.
There is a presumption against legislative intent to effect a change in substance by a revision of the general laws. Mere changes in phraseology and even omissions of words, does not of necessity overcome the presumption. The intention to effect a change in substance must he expressed in language excluding a reasonable doubt 1?’ *. [Murphy v. Zink, 136 N. J. L. 235, 244-245 (Sup. Ct. 1947), aff'd o.b. 336 N. J. L. 635 (E. & A. 1947)]

See Greggio v. Orange, 69 N. J. Super. 453, 476 (Law I)iv. 1961), aff’d o.b. 37 N. J. 462 (1962). Further indicative of the Legislature’s view of the 1971 reenactment is N. J. S. A. 40A : 1-5, which provides that

The provisions of Title 40A not inconsistent with those of prior laws shall be construed as a continuation of such laws.

Nothing, then, in either the passage or content of the 1971 reenactment of the Exempt Firemen’s Tenure Act permits reasonably inferring an intent on the Legislature’s part to overrule Brennan and allow county investigators tenure as exempt firemen. All presumptions and indicators lead to the opposite conclusion of continued nonapplicability.

This conclusion is further buttressed by utilization of the constructionary rule that where one statute deals with a subject in general and comprehensive terms and another deals with a portion of the same subject in a more minute and definite way, any unharmonizable conflict between the two will be resolved in favor of the latter’s prevalence, absent a contrary legislative intent appearing. Kingsley v. Wes Outdoor Advertising, 55 N. J. 336, 339 (1970), Lawrence v. Butcher, supra 130 N. J. Super, at 212; 82 C. J. S. Statutes § 369 at 839. The rule has been employed as a tool in determining tenure questions such as that here: Brennan, supra, 31 N. J. at 337-338; Perrella, supra, 51 N. J. at 339; Ackley v. Norcross, supra, 122 N. J. L. at 572. It may, in fact, be argued that the tenure rule, earlier quoted from Brennan, 31 N. J. at 337, is merely a particularized variant of the general rule. * * The rule is applicable without regard to the respective dates of passage.” 82 C. J. S. Statutes at 843. The author there continues:

It is a fundamental rule that where the general statute, if standing alone, would include the same matter as the special act, and thus conflict with it, the special act will be construed as an exception1 to, or qualification of, the general statute, whether it was passed before or after such general enactment. * * * where the general statute is later; the special statute will be construed as remaining an exception to its terms, unless it is repealed in express words or by necessary implication, [at 843-844]

See Smith v. Livingston Tp., 106 N. J. Super. 444 (Ch. Div. 1969), aff’d o. b. 54 N. J. 525 (1969) (the general initiative provisions of the Faulkner Act, L. 1950, c. 210, p. 460, were held subordinate to the more detailed provisions of the Zoning Act, N. J. S. A. 40:55-35, enacted in 1948); Ackley, supra.

Applying the foregoing to the instant facts leads to a conclusion of nontenure. N. J. S. A. 40A:14-60 and 64 are general in language and scope, making no specific reference to county investigators. N. J. S. A. 2A:157-10, unchanged since Brennan, deals specially with county investigators’ appointment, removal, salary and duties. The provisions of N. J. S. A. 2A:157-10, then, are to be considered an exception to the general provisions of N. J. S. A. 40A: 14-60 and 64, the court having previously found no intention on the part of the Legislature to make the general act controlling. That being so, the Exempt Firemen’s Tenure Act cannot shield plaintiff from termination.

The court also takes cognizance of the failure of the Legislature to enact bills introduced in the 1971, 1972 and 1974 sessions (the latter two, of course, being subsequent to the 1971 reenactment of the Exempt Firemen’s Tenure Act) which would have amended N. J. S. A. 2A:157-10 to place county investigators in the classified and tenured status of the Civil Service. This, along with the failure to otherwise alter that statute, evidences that the legislative purpose and plan found in Brennan of affording the county prosecutor a confidential investigatory staff serving at his pleasure and removable at his will notwithstanding the terms of any tenure enactments, remains unchanged and viable.

For the foregoing reasons, it is the conclusion of the court that the Exempt Firemen’s Tenure Act, N. J. S. A. 40A:14-60 and 64, does not operate to confer tenure on county investigators who hold exempt fireman certificates and that such investigators serve at the pleasure of the incumbent prosecutor and are subject to removal by him. N. J. S. A. 2A:157-10.

Ill

Plaintiff lastly contends that the letter opinions of prior county counsel, finding him tenured and which were ■unquestioned during his long period of service under numerous prosecutors, operate to estop the incumbent prosecutor from taking a contrary position and terminating him. The court has considered this and finds it totally devoid of merit.

Accordingly, the motion of defendants Cronin and Hum-phreys for summary judgment is granted and that of plaintiff denied.

Judgment of dismissal is entered in favor of defendant Board of Chosen Freeholders of Passaic County.


author: King, J. C. C.,

text:
    ELLEN HAFNER, PLAINTIFF, v. OTTO HAFNER AND JANE HAFNER, HIS WIFE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    July 3, 1975.

      Mr. John A. Yacovelle, Jr., for plaintiff.

      Mr. Jeffrey I. Kessler for defendants {Messrs. Melmk, Morgan, Weinberg and Weiner, attorneys).
   King, J. C. C.,

Temporarily Assigned. Defendants move for summary judgment on the ground that this action is barred by New Jersey’s Heart Balm Act, N. J. S. A. 2A: 23-1, which abolishes a right of action for alienation of affections, criminal conversation, seduction and breach of contract to marry. The court must determine whether all of the allegations in the complaint, taken together, actually state the proscribed cause of action for alienation of affections, or whether any other causes of action for which plaintiff might recover are pleaded. It is now elementary that all pleadings shall be liberally construed, B. 4:5-7, and the essence of an actionable claim will be pieced out and sustained where the pleading is unclear. Wheeler v. Wheeler, 48 N. J. Super. 184, 197 (App. Div. 1957).

The complaint, drawn in one count, alleges that plaintiff was married to Fred Hafner, now deceased, on December 30, 1966. Defendant Otto Hafner is Fred Hafner’s son by a previous marriage, and defendant Jane Hafner is Otto Haf-ner’s wife. While plaintiff was on a trip to California in June of 1971, her husband suffered a stroke and was removed to his son’s residence. Plaintiff returned to New Jersey on June 27, 1971 and discovered her husband’s whereabouts after some investigation, but was refused permission to visit him by defendants. Plaintiff alleges that her husband was being detained by defendants against his will and would have returned to his marital home if permitted to do so. A court order, rendered on October 1, 1972, permitted plaintiff to visit her husband at defendants’ residence and enjoined defendants from interfering in any way with the visits. Plaintiff alleges that during visitations pursuant to that order she was subjected to harassment and ridicule by defendants, and was interfered with in her attempted conversations with her husband. Ultimately, on February 23, 1972 defendants were ordered by the court to deliver Fred Hafner to the custody of plaintiff, which they did on February 24, 1972. Fred Hafner died on February 25, 1972.

Also set forth in the complaint is the allegation that plaintiff was deprived of support and maintenance for an eight-month period as a result of defendant Otto Hafner’s intentional and wrongful acts. Defendant allegedly obtained a power of attorney in a fraudulent manner over the property and funds of Ms father Ered Hafner on August 4, 1971. Until February 24, 1972 plaintiff received only two checks in the sum of $50 each from defendant, while her monthly expenses during that period amounted to approximately $750 a month. As damages plaintiff seeks compensation for Moss of consortium” and “severe emotional distress,” as well as punitive damages for the intentional tort, counsel fees and costs, and “whatever other relief may be adjudged proper.”

The cause of action for alienation of affections consists of wrongful conduct by a defendant which interferes with the marital relationship between spouses to the extent of causing a loss of consortium. Grobart v. Grobart, 5 N. J. 161 (1950); 42 C. J. S. Husband and Wife § 664 at 319; 41 Am. Jur. 2d, Husband and Wife, § 466 at 393; see also, Prosser on Torts (3 Ed. 1964), § 118 at 895; Restatement, Torts, § 683 et seq. (1938). The gravamen of the action is the loss of consortium, that is, the loss of marital affections, comfort, society, assistance and services of a spouse who has been wrongfully enticed away. Grobart v. Grobart, supra; Devine v. Devine, 20 N. J. Super. 522 (Ch. Div. 1952).

Plaintiff admits that paragraphs 17 and 18 of the complaint arguably fall within the right of action abolished by N. J. S. A. 2A:23-1, but urges that the gist of the action, taken as a whole, is for the tort of intentional infliction of emotional distress. This tort has not yet gained express recognition in New Jersey. A distinction must be drawn between recovery for emotional distress as an element of damages that may be recovered for an underlying tort, and the intentional infliction of emotional distress as a tort itself. Recovery has been routinely allowed for mental anguish or emotional distress where some independent tort could be made out which would seiwe as a “peg upon which to hang the mental damages.” Prosser, op. cit., § 11 at 44; Harris v. D. L. & W. R. R. Co., 82 N. J. L. 456 (1912) (Conductor liable in trespass de bonis asportatis for the indignities caused by the wrongful conversion of a railroad ticket); Spiegel v. Evergreen Cemetery Co., 117 N. J. L. 90 (1936) (recovery for ensuing mental distress supported, by the tort of malicious interference with plaintiff’s right to bury the dead and inter the remains); Kuzma v. Millinery Workers Union Local 24, 27 N. J. Super. 579 (App. Div. 1953) (recovery for mental anguish and emotional distress supported by the tort of malicious interference with employment); Morris v. MacNab, 25 N. J. 271 (1957) (defendant’s action in fraudulently inducing plaintiff to enter into a marriage which he knew would be bigamous supported recovery for plaintiff’s “sham, humiliation and mental anguish”). See also, Gray v. Serruto Builders, 110 N. J. Super. 297 (App. Div. 1970). The courts traditionally strive to discover some familiar and precedential basis of liability. In Spiegel, for instance, the right to bury the dead and inter the remains is characterized as a “quasi-right of property.” 117 N. J. L. at 93. Prosser, in discussing the newly developing tort of the intentional infliction of mental distress, comments on Spiegel and similar cases dealing with the mishandling of dead bodies as follows :

In most of these cases the courts have talked of a somewhat dubious “property right” to the body, usually in the next of kin, which did not exist while the decedent was living, cannot be conveyed, can be used only for the one purpose of burial, and not only has no pecuniary value but is a source of liability for funeral expenses. It seems reasonably obvious that such “property” is something evolved out of thin air to meet the occasion, and that it is in reality the personal feelings of the survivors which are being protected, under a fiction likely to deceive no one but a lawyer.

Where the tort has been recognized it is generally agreed that the wrongful conduct must be so extreme and outrageous “as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Restatement, Torts 2d, § 46, Comment (d) at 73. See, e. g., Papieves v. Lawrence, 437 Pa. 373, 263 A. 2d 118 (Sup. Ct. 1970); Cornblith v. First Maintenance Supply Co., 268 Cal. App. 2d 564, 74 Cal. Rptr. 216 (D. Ct. App. 1968); Korbin v. Berlin, 177 So. 2d 551 (Pla. D. Ct. App. 1965); Pretsky v. Southwestern Bell Tel. Co., 396 S. W. 2d 566 (Mo. Sup. Ct. 1965). The court finds as a matter of law that the conduct alleged does not amount to the type of outrage necessary to establish a cause of action. This case cannot serve as the vehicle to recognize expressly the tort of intentional infliction of emotional distress for the first time in New Jersey. Rather, the court finds that the gist of the action is for alienation of affections. Recovery is barred by the Heart Balm Act, and summary judgment is granted to defendants to the extent that the pleadings seek recovery under that theory.

The inquiry does not end here, however. Plaintiff alleges that defendant fraudulently obtained control over his father’s finances and wrongfully deprived her of support for an eight-month period. The novel question presented is whether the Heart Balm Act bars recovery for wrongful interference with a wife’s common law and statutory right to receive support from her husband. Some guidance may be found on this point in the Grobart decision, supra. Plaintiff there sued her brothers and sisters-in-law for maliciously conspiring to injure plaintiff in her marital relations with her husband. Plaintiff claimed they fraudulently and deceitfully reprived her of certain rights in her husband’s real and personal property, prevented her from pursuing a suit for maintenance against her husband, forced her to compromise certain claims she had as her husband’s spouse for less than their true value, and engaged in other actions which suggested elements of malicious prosecution, libel and slander. The Supreme Court concluded that the complaint, although imperfectly drafted, asserted causes of action which were outside the purview of the Heart Balm Act. The court construed the statute as follows:

The intention of the lawmakers was to prevent extortion and blackmail that often accompanied the institution of the actions specifically-outlawed by the statute, but it was not intended to reach further and prohibit all actions involving property and personal rights not subject to those abuses in which actions married people are concerned. [5 N. J. at 167]

In essence, the court held that where recovery is not sought for loss of the conjugal society and services of a spouse, the action is not barred. Similarly, in Morris v. MacNab, 25 N. J. 211 (1952), the Supreme Court, citing Teinsinger, “Legislative Attack on Heart Balm,” 33 Mich. L. Rev. 979, 1000 (1935), iterated its position with respect to the Heart Balm Act as follows:

* * * courts cannot escape the burden of construing legislation as sweeping as this, so as to eliminate the evils aimed at without destroying rights not considered by the legislative, whose continued existence may be important to society and to individuals, [at 276]

See also, Stickles v. Manss, 36 N. J. Super. 95 (1955) (valid claim of libel not barred where allegations might support action for alienation of affections); Devine v. Devine, supra (injunctive relief to restrain third person from alienating the affections of a spouse not barred by statute).

Of crucial significance here is the allegation that defendant, as agent and attorney in fact for plaintiff’s husband, directly and personally interfered with the payment of support to plainitff. It is well established that where an agent has full and exclusive control over the property involved, he is liable to third persons for his tortious acts, even where he received no benefit from his wrong. 3 C. J. S. Agency § 379 at 201-202. In the Devine case, supra, plaintiff brought suit against her mother-in-law alleging, in part, that her husband’s desertion, abandonment and refusal to support were caused by the false and malicious statements and representations made by defendant to her son for the purpose of interfering with and destroying plaintiff’s marriage. The court held that the action was grounded upon alienation of affections and damages were barred by the Heart Balm Act. Recovery for interference with the husband’s duty to support was denied. This proposition is not applicable to the case here under consideration, since defendant in Devine merely influenced the spouse, whereas in the instant case it is alleged that defendants directly and personally interfered with support payments. It is claimed here that defendants actually controlled the husband’s assets and property, preventing plaintiff’s rightful access to them over a period of eight months. If plaintiff’s allegations are provable at trial, they support an economic tort, beyond the scope of the proscription and policy of the Heart Balm Act.

Authority from other jursidictions on the question of whether allegations of wrongful interference with right to support make out a cause of action separate from alienation of affections is sparse. In Lavigne v. Lavigne, 80 N. H. 559, 119 A. 869 (Sup. Ct. 1923), it was held that “the gist of the action [for alienation of affections] is not the deprivation of support, but the loss of consortium of the husband, which includes his affection, conjugal society, aid and cooperation.” 119 A. at 871. See contra, Sebastion v. Kluttz, 6 N. C. App. 201, 170 S. E. 2d 104 (Ct. App. 1969); Nelson v. Nelson, 296 F. 369 (2 Cir. 1924); Restatement, Torts, § 690, Comment (b) at 487 (1938); 42 O. J. 8. Husband and Wife § 665 at 319.

The court finds that plaintiff’s allegation relating to defendant’s wrongful deprivation of support payments constitutes a cause of action which is independent of the causes of action barred by N. J. S. A. 2A:23-1. Analogy may be made to the line of cases allowing recovery for the torts of malicious and unjustifiable interference with contractual rights or business relations, Middlesex Concrete Products, etc., v. Carteret Indus. Ass’n, 37 N. J. 507 (1962), and the tort of wrongful interference with prospective economic advantage. Harris v. Perl, 41 N. J. 455 (1964). See also, Louis Kamm, Inc. v. Flink, 113 N. J. L. 582 (E. & A. 1934), for the general proposition that the law protects parties to contractual and other relations against unjustifiable interference.

Defendants argue alternatively with regard to support that the issue was previously litigated and rejected by the court on February 23, 1971, when defendants were ordered to deliver Fred Ilafner to plaintiff’s custody. However, neither plaintiff’s moving papers seeking the return of her husband nor the opinion of Judge Lowengrub indicate that the precise cause of action alleged here — defendant’s tortious interference with plaintiff’s legal right to obtain support — was in fact previously litigated. Judge Lowengrub merely ordered the payment of $100 a week for plaintiff’s prospective maintenance and support. Accordingly, defendants’ motion for summary judgment on plaintiff’s allegation relating to support payments is denied.

       17. Defendants Otto Hafner and Jane Hafner had enticed, influenced, or advised Fred Hafner to live with them, causing plaintiff the loss of her husband’s services, society and conjugal affection, for which plaintiff is entitled to damages.
      18. The acts of defendants, Otto Hafner and Jane Hafner, aforementioned were a substantial factor in causing plaintiff to lose the services, society, and conjugal affection of Fred Hafner.

      A husband’s duty to support his wife is well established. Capodanno v. Capodanno, 58 N. J. 113, 118 (1971) ; N. J. S. A. 2A:34-23; 2A:34-24.


author: Demos, A. J. S. C.

text:
    DONNA VEDUTIS, AN INFANT BY HER GUARDIAN AD LITEM, ROBERT VEDUTIS, AND ROBERT VEDUTIS, INDIVIDUALLY, PLAINTIFFS, v. ROGER TESI, SOUTH PLAINFIELD BOARD OF EDUCATION, MURIEL KING AND WILLIAM KING, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 3, 1975.

      Mr. Steven D. Altman for plaintiffs (Messrs. Mulligan and Altman, attorneys).

      Mr. Robert F. Colquhoun for defendant South Plainfield Board of Education.
   Demos, A. J. S. C.

This matter comes before the court on motions by infant plaintiff Donna Vedutis and by plaintiff Bobert Vedutis, her father, to file notices of claim with the South Plainfield Board of Education in accordance with the New Jersey Tort Claims Act, N. J. S. A. 59:8-8 and 59:8-9, at a time in excess of two years after the occurrence of the accident.

The present application arises out of certain injuries sustained by infant plaintiff on October 10, 1972 during the course of her participation in a soccer game, while attending a gym class at the Eranklin School located in South Plain-field, New Jersey.

Immediately after the accident the father made numerous attempts to secure payment of the medical bills incurred from the South Plainfield Board of Education and its insurance company. Although no formal notice of claim, as contemplated in N. J. S. A. 59:8-8, was served upon the board of education until April 7, 1975, it appears that both the board and its insurance carrier were notified of the accident shortly after its occurrence. The father indicates that on at least two occasions a representative of the insurance carrier stated over the telephone that the conversations with respect to the claims were being recorded since an agent was unavailable to personally visit with him and discuss the matter.

In early March 1973, after repeated efforts to obtain satisfaction, plaintiff sought assistance from “HELP” editors of the Plainfield Courier News. On March 20, 1973 one Frank Shea, an employee of the insurance carrier for the Board of Education, responded to an inquiry made on March 6, 1973 by the “HELP” editor, stating in part:

Tour letter of March 6, 1973 adressed to the South Plainfield Board of Education has been sent to us for our handling. I can assure you that this matter is receiving adequate attention, the only response I can give you with respect to your inquiry is the fact that there is a liability question involved in this matter * * *

Further evidence of the carrier’s notice of this accident is found in a letter dated February 21, 1973 to the parents of the child with whom infant plaintiff had collided during the soccer game. The carrier suggested that the parents contact their homeowner’s policy carrier in the event that suit was commenced.

It is significant to note at this juncture that plaintiff father’s aforesaid efforts to obtain reimbursement of infant plaintiff’s medical expenses were within one year of the accident. Believing that payment would be forthcoming, he did nothing further until July 22, 1974, when counsel was retained. Plaintiffs’ counsel filed a formal notice of claim with the board of education on April 7, 1975.

Two issues are presented for the court’s consideration. First, may an infant plaintiff be permitted to file a notice of claim, pursuant to N. J. S. A. 59:8-8, over two years after the accident? Second, does an infant plaintiff’s parent have a right to file a late notice of claim for consequential damages by reason of infant plaintiff’s injuries?

Resolution of the first issue calle for a construction of the last sentence in N. J. S. A. 59 :8-8 which states:

Nothing in this section shall prohibit an infant or incompetent person from commencing an action under this act within the time limitations contained herein, after his coming to or being of full age or •sane mind.

It is to be noted that this provision contains no qualifications or reservations as to the tolling of the limitations period with respect to infant claims. Accordingly, the court finds that the statute expressly preserves infant plaintiff’s right to file a notice of claim throughout the period of her minority.

While it may be argued that the aforesaid savings clause relates solely to the tolling of time for the institution of suit rather than the filing of a notice of claim, the wording speaks in terms of “action under this act” — not suit or notice of claim. Inasmuch as a notice of claim is a precondition and an inherent part of maintaining “an action under the act,” the Legislature must have intended to include the claim presentation requirements within the tolling features of the savings clause for infants. This conclusion is bolstered by the fact that the language in N. J. 8. A. 59:8-8 clearly differentiates between the trems “notice of claim” and “suit,” and apparently employs the word “action” to embody the entire procedure for seeking recovery against a public entity. Also, the legislative declaration embodied in the savings clause represents a clear intent to preserve an infant’s right to recover against a public entity during the period of his minority, when he has little or no control over protecting his legal rights.

Having determined that infant plaintiff may file a notice of claim by virtue of the savings clause in N. J. S. A. 59 :8-8, the remaining issue left for resolution is plaintiff parent’s right to assert a late notice of claim for consequential damages. It is noted that no section of the Tort Claims Act is addressed specifically to the time within which a parent’s derivative claim must be asserted. Therefore, the legislative intent must be determined by considering the objective and nature of the subject matter in the Tort Claims Act and the statutes in pari materia. Giles v. Gassert, 23 N. J. 22, 33-34 (1956).

The court notes that parental claims in a non-Tort Claims Act ease are expressly preserved by virtue of N. J. S. A. 2A:14-2.1, which provides that the time period for commencement of an action on the parental claim is coextensive with the limitation period applicable to the infant’s claim so long as the parent’s claim is joined in the same action as that of the infant. The effect of N. J. S. A. 2A.14 — 2.1 upon the limitations period contained in N. J. S. A. 59:8-8 has recently been considered in Rost v. Fair Lawn Bd. of Ed., 130 N. J. Super. 187 (Law Div. 1974), wherein it was held that

The tolling provisions of N. J. S. A. 2A :14-2.1 are directed solely to the extension of the limitation period for institution of a civil action and do not affect notice requirements which must otherwise be met as a condition of liability. Thus, where the parent has given timely notice of his claim under N. J. S. A. 59:8-8, under N. J. S. A. 2A :14-2.1 the period of time in which he may institute his action is the same as that which applied to the infant, [at 191]

Por the reasons to be set forth below this court respectfully disagrees with the above stated conclusion reached in Rost.

Evaluation of this issue must taken into account N. J. S. A. 59 :l-2, the basic policy expression of the Tort Claims Act, which provides in full as follows:

The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carry out the above legislative declaration.

This declaration of Legislative purpose has been construed as a statement of substantive limitation of the liability of a public entity, with rsepect to those areas of governmental activity recognized by Willis v. Dept. of Cons. & Ec. Dev., 55 N. J. 534, 540 (1970), as properly excluded from tort claim susceptibility, such as Legislative and judicial action or in-actions, and decisions calling for the exercise of official judgment or discretion. Maule v. Conduit & Foundation Corp., 124 N. J. Super. 488, 492 (Law Div. 1973). Also see, N. J.

S. A. 59:2-3 to 59:2-8, inclusive, and 59:3-2 to 59:3-13, inclusive, which implement the limitation of liability. The limitation on liability, however, was not intended to be utilized as a procedural bar as to those categories of tort claims for which the State has accepted liability. Markey v. Skog, 129 N. J. Super. 192, 204 (Law Div. 1974).

Although procedural bars are the subject matter of N. J. S. A. 59:8-8, this court finds no mandatory language therein that expressly deals with parental claims for consequential damages. To the extent that N. J. S. A. 59:8-8 preserves infant claims through the period of minority, the Tort Claims Act tracks N. J. S. A. 2A:1A-21, preserving in a similar manner an infant’s right to bring a tort action in a non-Tort Claims Act case. While it may be argued that the Legislature’s silence with respect to parental claims in a Tort Claims Act case must be construed to bar such claims not made in a timely manner pursuant to N. J. S. A. 59:8-8, such literal construction of the statute may lead to an undesirable result, particularly when the time limitations period for assertion of parental claims in a non-T'ort Claims Act case is expressly tolled by virtue of N. J. S. A. 2A: 4-2.1. While this court is mindful of the fact that the Tort Claims Act represents an abrogation of the common law doctrine of sovereign immunity and, therefore, ought to be strictly construed, State v. Mercer Cty Ct. of Common Pleas, 1 N. J. 14, 22 (1948), the court is likewise cognizant of the competing rule of statutory construction that dictates that where literal interpretation would lead to anomalous or absurd results, the spirit of the law controls the letter. Giordano v. Newark City Comm’n, 2 N. J. 585, 594 (1949). Moreover, where a statute, such as the one herein, is unclear or incomplete on its face with respect to time limitations for the assertion of parental claims, judicial interpretation should be a sympathetic response consonant with what one might presume the Legislature would have said had it spoken. N. J. Builders, etc., Ass’n v. Blair, 60 N. J. 330, 339 (1972).

To the extent that the Legislature has expressly preserved parental claims in N. J. S. A. 2A :14-2.1 and remained silent with respect to the same in N. J. S. A. 59 :1-1 et seq., an ambiguity exists. Every effort should be made to harmonize the law relating to the same subject matter. State v. Green, 62 N. J. 547, 554 (1973). Accordingly, where statutes in some apparent conflict relate to the same subject matter, it is the duty of the court to construe them together as a unitary and harmonious whole insofar as it may be possible in order that each may be fully effected. Clifton v. Passaic Cty. Bd. of Tax., 28 N. J. 411, 421 (1958).

But for the fact that the matter herein falls within the coverage of the Tort Claims Act, the infant’s parents would clearly have a right to claim for consequential damages by virtue of N. J. S. A. 2A :14-2.1. To bar the parents from asserting such a claim herein where the infant’s claim is preserved is inconsistent with the statutory purpose of holding a public entity accountable for its purported acts of negligence. This is not a case where the parent is seeking compensation for his own personal injuries, but rather an instance where the' claim derives solely from the injuries sustained by the infant. To permit the infant to press her claim and bar the parent from claiming for consequential damages is totally inconsistent with the legislative mandate as stated in N. J. S. A. 2A:14-2.1, and leads to a potentially absurd result in the event the infant succeeds in her claim. Herein, this court finds no reason or logic to bar a parent’s claim derived solely from an infant’s injuries, where the infant’s right to maintain an action is preserved throughout the period of her minority. To compel a parent to file a notice of claim within the time limitations set forth in N. J. S. A. 59:8-8, in advance of the infant’s claim expressly preserved therein, makes for a multiplicity of actions, which is precisely the evil sought to be cured by the enactment of N. J. S. A. 2A :14-2.1.

Here, as in Markey v. Skog, supra, the court is confronted with the issue of the right to maintain a derivative action. Although the primary claimants in Markey were found to be barred by reason of their failure to file a timely notice of claim, the derivative action for joint tortfeasor contribution was preserved. As hereinabove indicated, unlike Markey, the primary claimant herein is not barred from maintaining an action because of the savings clause in N. J. S. A. 59 :8 — 8. Herein, as in Markey, there exists an independent statute expressly preserving the derivative claim. Although the two cases can be distinguished on the basis of when the derivative action accrues, such is not relevant here since the infant plaintiff’s claim has been determined to be timely and the derivative claim would, therefore, likewise be timely if N. J. S. A. 2A:14-2.1 and the savings clause in N. J. S. A. 59 :8 — 8 are read in pari materia to resolve the uncertainty regarding maintenance of the parent’s derivative claim arising out of an infant’s injuries. Markey and the case herein are also similar in that the Tort Claims Act is silent with respect to any time limitations or other bar to the assertion of a parent’s derivative claim.

Although Markey dealt with the timeliness of filing a contribution claim, the aforesaid similarities are of assistance in ascertaining the likely legislative response to the issue herein. In Markey the existence of a separate statute, namely, the joint Tortfeasors Contribution Law, N. J. 8. A. 2A:53A-1 et seq., was utilized to fill the gap in the Tort Claims Act as to the time period for asserting a derivative claim in the nature of a right of contribution. Similarly, herein a gap exists in the Tort Claims Act as to the time within which a parent’s derivative claim must be asserted. N. J. S. A. 2A:14-2.1 clearly bridges that gap, and reading the two statutes in pari materia serves to harmonize the law relating to the same subject matter. Moreover, this interpretation does no violence to the time limitations set forth in N. J. 8. A. 59 :8 — 8 since the parent’s claim derives solely from the infant’s claim which is expressly preserved.

In the Comment to N. J. S. A. 59 :8-3, it is stated that the purpose of the claims notification requirement is twofold:

1. to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit;

2. provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense.

It is argued by defendants herein that these two purposes would be thwarted if plaintiffs are permitted to file notices of claim, well over two years after the subject incident. The short answer to defendants’ position is that the Legislature apparently considered these policies as not controlling in the instance of an infant claim by reason of the savings clause in N. J. 8. A. 59:8-8. In addition, this court finds on the basis of the record before it that the board of education was advised of the claim and undertook an investigation through its insurance carrier in early 1973. Although no formal notice of claim was admittedly filed until April 7, 1975, there is nothing in the record to controvert plaintiffs’ assertions that the board of education was adequately apprised of plaintiffs’ claims shortly after the accident. Therefore, this court finds that defendant has not been prejudiced by the delay in filing a formal notice of claim. Eurther, plaintiffs’ efforts fall within the spirit of the doctrine of “substantial compliance” announced in Dambro v. Union Cty. Park Common, 130 N. J. Super. 450 (Law Div. 1974).

In light of the aforesaid considerations, this court holds that a parent’s derivative claim attaches to the infant’s claim under N. J. S. A. 59 :8-8 and is accordingly preserved so long as it is asserted at the same time that the infant brings his claim. Therefore, the motions of infant plaintiff and her father to file notices of claims with the board of education pursuant to N. J. S. A. 59:8-8 and 59:8-9 are granted.