author: Wood, William Fillmore, J. C. C.

text:
    GIACOMO ZANCHI, PETITIONER-APPELLANT, v. S & K CONSTRUCTION COMPANY, RESPONDENT-APPELLEE.
    Union County Court Law Division
    Argued November 19, 1971
    Decided December 14, 1971.

      Mr. Alfred G. Osterweil, argued the cause for Petitioner-Appellant (Schreiber and Osterweil, attorneys).

      Mr. Edwin J. McCreedy, argued the cause for Respondent-Appellee (Conant, Halberstadter & McGuire, attorneys).
   Wood, William Fillmore, J. C. C.

This compensation claim arose out of a heart attack (myocardial infarction) petitioner suffered during his employment as a construction laborer for respondent.

Respondent admitted the employment. The compensation judge found that there was a causal relationship between the heart attack and the employment; and respondent does not contest that finding. Indeed, a contrary finding would have been almost inconceivable, since the medical experts for both parties testified that such relationship existed and the circumstances (i. e. the strenuousness of petitioner’s work, his pre-existing arteriosclerotic heart condition and the proximity of the attack to the work effort) unmistakably supports the experts’ testimony.

The only issue on the appeal is the amount of the award. Even that issue is not as broad in scope as it might be. The compensation judge, on the basis of his assessment of the extent of petitioner’s injury, made an award of 25% of total. Petitioner does not quarrel with the award insofar as the injury itself is concerned. Petitioner’s dissatisfaction with the award is due to the fact that the trial judge rejected the contentions that, because of other or non-medical factors, petitioner is now unemployable. In other words, petitioner takes the position that, under the so-called “odd lot” doctrine, the award should have been 100%. In rejecting that position the judge stated:

The only evidence submitted by the petitioner in support of his allegation of unemployability was the testimony by Dr. Goodman (petitioner’s medical expert) * *' *. X was not impressed with Dr. Goodman’s cursory exclusion of the petitioner from the job market, absent any evidence that he had, at least, attempted to secure some kind of employment.

In accordance with my well-established duty as the appellate county court judge, I have carefully considered de novo or independently the issue here involved. Close v. Kordulak Bros., 44 N. J. 589 (1965). I firmly disagree with the conclusion of the trial judge. However, my disagreement does not rest upon any difference with the trial judge as to the credibility of any of the witnesses. Hence, there is no occasion for me to defer, or to give consideration, to his superior opportunity to assess credibility.

My disagreement with the trial judge’s conclusion is based upon a difference of opinion as to whether petitioner’s allegation of unemployability is sufficiently supported by undisputed evidence. The trial judge expressed the view that the allegation is supported only by Dr. Goodman’s “cursory exclusion of petitioner from the job market.” The judge’s use of the adjective “cursory” suggests that he considered the doctor’s assertion to be evidentially unsupported. If that was true, the judge properly rejected the doctor’s testimony as to employability, not only because it was cursory but, more importantly, because it would have exceeded the realm of the doctor’s expertise. Petitioner’s claim of total unemployability is based, for the most part, upon non-medical reasons. There is no contention that petitioner is medically unemployable. In order to determine the value and meaning of the doctor’s answer as to unemployability, one must examine the question which preceded the answer. That question asked the witness to assume that petitioner had no skills other than for work as a laborer in the agricultural or construction fields. In light of that assumption, the doctor’s testimony must be understood to mean only that petitioner was unemployable because he was physically unable to do hard labor, the only work which (by assumption) he was capable of doing. The medical experts were in agreement that petitioner could not do hard labor.

The task of determining whether the assumption as to petitioner’s capabilities was justified was for the trial court, not the doctor. The court itself must decide, on the basis of other evidence and its own common knowledge, whether circumstances unrelated to the accident in question, coupled with the disability arising from the accident, rendered petitioner unemployable. In approaching that task the court should keep in mind the extent to which the respective parties have the burden of proof.

New Jersey adopted the odd-lot doctrine as part of its Workmen’s Compensation law in Rodriguez v. Michael A. Scatuorchio, Inc., 42 N. J. Super. 341, 353 (App. Div. 1956), certif. denied 23 N. J. 140 (3957). The court there stated that "inability to get work, traceable directly to the compensable injury, may be as effective in establishing disability as is inability to perform work.” The thrust of this doctrine goes to the question as to the degree of probability the particular claimant will be able to secure regular employment in a competitive market place. Larson, in his work on Workmen’s Compensation Law, stated the doctrine as follows :

The essence of the test is the probable dependability with which claimant can sell his services in a competitive labor market, undistortod by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his crippling handicaps. (2 Larson, § 57.51 at 88.1)

The petitioner in any workmen’s compensation ease bears the burden of proving in the first instance that an award of compensation in a particular amount is probably justified. Lightner v. Cohn, 76 N. J. Super. 461 (App. Div. 1962), certif. denied 38 N. J. 611 (1962). However, I believe that the judge of compensation was in error when he held (at least by implication) that, in order to sustain his burden of proof, the petitioner, whore he seeks 100% disability, must come forward with evidence that he unsuccessfully sought employment. Such evidence would, of course, he valuable to a petitioner; but it is not essential where (as here) other circumstances indicate that the search for employment would probably be fruitless. Moreover where (as here) a claimant has produced evidence which brings him within the ambit of the odd-lot doctrine, the burden is then on the respondent “to come forward with proof that work within the capacity of such an employee is, in fact, within reach.” Lightner v. Cohn, supra at 468. The rationale for this principle is that the employer, and not the employee, especially where the latter’s intellectual capacity, employment experience, and physical condition are limited, can more readily obtain information with respect to the availability of employment within the capacity of the petitioner.

In the Lightner case the petitioner, as the result of an accident, had three fingers and part of the thumb amputated. He also suffered, to some degree, adverse psychological reaction from the accident. He claimed total disability. Three of his four doctors testified that he was unemployable or would encounter great difficulty in obtaining work. The fourth doctor felt that such an inquiry was not in his field or expertise. The two doctors who testified for respondent stated, in essence, that plaintiff could be rehabilitated and then he could probably get some job. The Appellate Division held there was sufficient evidence to sustain a finding of 100% total disability even though petitioner’s efforts to find work were “somewhat limited.”

In the instant case, the petitioner produced evidence which showed him to be probably within the “odd-lot” category. Petitioner stated that he still sees the doctor every two weeks and that he has heavy breathing after climbing the steps in front of his house. Thus there is a question as to whether he had the physical strength to go out and look frequently or extensively for a job. Therefore, the burden was upon the respondent to come forward with evidence to show that there was reasonably available to the petitioner the type of employment that he was physically and otherwise able to do. The respondent never produced such evidence:

Whether an individual is totally disabled is a “mixed question of law and fact,” and its determination rests within the sound discretion of the court, guided by established principles of law. Cleland v. Verona Radio Inc., 130 N. J. L. 588, 596 (Sup. Ct. 1943). The court in making such a determination must look at the whole man, including such things as his background, education, mental capacity, his ability or inability to communicate in English, his present physical condition and his vocational aptitudes. Rodriguez v. Michael A. Scatuorchio, Inc., supra, 42 N. J. Super. at 354, 355; 2 Larson, supra, § 57.51, p. 88.4.

The petitioner presently is approximately 60 years old. Though American born, he has lived a substantial portion of his life in Italy and he speaks and reads very little English. He is, to all intents and purposes, functionally illiterate. His educational training is meager, and his employment record indicates only highly strenuous labor of the unskilled variety. He suffered an inferior wall myocardial infarction in July 1969 and his present condition is hypertensive cardiovascular disease. At the time of trial (16 months after the attack) he was still seeing a doctor every two weeks. And though he would take two walks each day, he still suffered from heavy breathing after climbing the 38 steps in front of his house. The medical evidence proved that he could never do heavy or strenuous work again and that, on the contrary, he must restrict himself to light or sedentary work. There is a strong probability that the latter type of work is not available to him.

This means that he is unemployable and totally disabled within the meaning of the odd-lot doctrine. Kalson v. Star Elec. Motor Co., 15 N. J. Super. 565 (Essex County Ct., Law Div., 3951), aff'd 21 N. J. Super. 15 (App. Div. 1952); Cleland v. Verona Radio Inc., supra; Jersey City Printing Co. v. Klochansky, 8 N. J. Super. 186 (App. Div. 1950). There is no evidence that petitioner is a malingerer or one who seeks a voluntary retirement from the labor market.

This court concludes therefore that the petitioner is entitled to an award of 100% disability. The judgment of the Compensation Court is modified accordingly.


source: Caselaw Access Project

author: Belopolsky, J. C. C.,

license: Public Domain

text:
    DONNA L. HOWELL, PLAINTIFF, v. THE OHIO CASUALTY INSURANCE COMPANY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided June 12, 1973.

      Mr. Robert A. Porter on the Brief for the Plaintiff. (Messrs. Hartman, Schlesinger & Sclüosser, Attorneys.)

      Mr. Ernest F. Picknally on the Brief for the Defendant. (Messrs. Schuenemann & Picknally, Attorneys.)
   Belopolsky, J. C. C.,

Temporarily Assigned. This matter comes before the court on cross-motions for Summary Judgment. The defendant, The Ohio Casualty Insurance Company, seeks to deny payment to a wife, who played no part in her house being destroyed by fire, under a fire insurance policy, because her spouse intentionally set fire to their home. The house was destroyed and the husband took his own life while the building was in flames.

The policy in question was issued in the name of plaintiff and her husband. It contained the standard provision, required by N. J. 8. A. 17:36-5.20, that the policy shall be void because of fraud by the “insured.”

It is undisputed that the intentional burning of one’s own house is fraud, 44 Am. Jur. 2d, Insurance, § 1365. The sole question in issue here, and one which is novel in New Jersey, is whether the intentional burning by one spouse of a homestead, held in tenancy by the entirety, will bar the recovery by the innocent spouse under a fire insurance policy.

The insurance company asserts that the insured interest here was joint, arising both from the legal identity of husband and wife, and the legal estate which they possessed. This joint interest or identity, it is argued, creates, in law, but one insured under the policy. Therefore, the fraudulent act of one spouse would necessarily become the act of both and bar the innocent spouse’s recovery. Kosior v. Continental Ins. Co., 299 Mass. 601, 13 N. E. 2d 423 (Sup. Jud. Ct. 1938); Matyuf v. Phoenix Ins. Co., 27 Pa. D. & C. R. 2d 351 (Cty. Ct. 1933); Jones v. Fidelity & Guaranty Ins. Corp., 250 S. W. 2d 281 (Tex. Civ. App. 1952); Bridges v. Commercial Standard Ins. Co., 252 S. W. 2d 511 (Tex. Civ. App. 1952); California Ins. Co. v. Allen, 235 F. 2d 178 (5 Cir. 1956); Klemens v. Badger Mut. Ins. Co., 8 Wis. 2d 565, 99 N. W. 2d 865 (Sup. Ct. 1959); 44 Am. Jur. 2d, Insurance, § 1365; See also-, Monaghan v. Agricultural F. Ins. Co., 53 Mich. 238, 18 N. W. 797 (Sup. Ct. 1884), dealing with joint ownership by a mother and her children; Federal Ins. Co. v. Wong, 137 F. Supp. 232 (D. C. Cal. 1956), dealing with joint ownership of a truck.

Plaintiff points out that where the interests of the coinsureds are several, the innocent party has not been precluded from recovering, notwithstanding the fraudulent acts of the other. Mechanics’ Ins. Co. v. Inter-Southern L. Ins. Co., 184 Ark. 625, 43 S. W. 2d 81 (Sup. Ct. 1931); Mercantile Trust Co. v. New York Underwriters Ins. Co., 376 F. 2d 502 (7 Cir. 1967); Rent-A-Car Co. v. Globe & Rutgers Fire Ins., 158 Md. 169, 148 A. 252 (Ct. App. 1930); Hoyt v. New Hampshire Fire Ins. Co., 92 N. H. 242, 29 A. 2d 121 (Sup. Ct. 1942); see also the annotation in 24 A. L. R. 3d 450.

Plaintiff contends that New Jersey has abolished the common law legal identity of husband and wife, the most recent evidence of this being Immer v. Risko, 56 N. J. 482 (1970), which abolished interspousal immunity. Therefore, the insured interest under the fire insurance policy should be interpreted to be several and not joint, thus allowing the wife to recover as any innocent coinsured would.

Whether there is a joint or several interest'present requires an examination of the status of the legal identity of husband and wife in New Jersey. The New Jersey Married Women’s Act, N. J. S. A. 37:2-1 et seq., secured a separate legal identity for married women, Sillery v. Fagan, 120 N. J. Super. 416 (Cty. D. Ct. 1972), and released them from the disabilities of coverture, Patusco v. Prince Macaroni, Inc., 50 N. J. 365 (1967).

The concept of an identity of husband and wife has come under criticism. Justice Haneman, in Long v. Landy, 35 N. J. 44, 50 (1961), referred to the legal identity of husband and wife as ^artificial and technical.” In Immer v. Risko, supra, Justice Proctor explored the question at great length and concluded (56 N. J. 488) that the legal identity of husband and wife was a "metaphysical concept” which "cannot be seriously defended today.”

Justice Proctor’s pronouncement in Immer is dictum, yet it recognizes the existence of an outmoded legal fiction which continues to produce harsh and inequitable results.

The manner in which the husband and wife held the property in question is of particular importance, because it has a bearing on the legal identity issue. Here the property was held in tenancy by the entirety, an estate which at common law connotes ownership by one person, McDermott v. French, 15 N. J. Eq. 78 (Ch. 1862); Thomas v. DeBaum, 14 N. J. Eq. 37 (Ch, 1861). Defendant has expressed the fear of the demise of this: ancient common law estate, if the rationale of Immer is applied; yet a review of the case law suggests that such a result may be well on its way already. See "Weeding Out the Troublesome Plant of Tenancy by the Entirety,” 2 Seton Hall L. Rev. 415 (1971).

In King v. Greene, 30 N. J. 395, 413 (1959), Chief Justice Weintraub, in a vigorous dissent, called the estate a "remnant of other times”, which "rests upon the fiction of a oneness of husband and wife.”

Over a decade later, in Fort Lee S. & L. Ass’n v. LiButti, 106 N. J. Super. 211 (App. Div. 1969), rev’d 55 N. J. 532 (1970), our Supreme Court, in reversing the Appellate Division, adopted the opinion of Judge Carton, speaking below in dissent. That case dealt with an action by a judgment creditor of one spouse against the excess left after a mortgage foreclosure, held by a couple in tenancy by the entirety. The court held that a judgment creditor should not be made to wait and "gamble” for the prior death of the other spouse but should be allowed to sever that portion of the estate which belonged to the debtor spouse. Judge Carton stated, at 106 N. J. Super. 216, that to extend the estate of tenancy by the entirety to the personal property which replaces the realty would be to indulge in a “further fiction” (emphasis supplied), which “serves no useful purpose and acts to frustrate justice.”

An opinion by the highest court of New York State also sheds light on this inquiry. In Hawthorne v. Hawthorne, 13 N. Y. 2d 82, 242 N. Y. S. 2d 50, 192 N. E. 2d 20 (Ct. App. 1963), an action by a wife against her husband sought a division of the proceeds of a fire policy on realty owned by the entirety. The court allowed the division holding that

The unity of person of husband and wife [expressed through the tenancy by the entirety] gives no clue to the relationship that ought properly to obtain between the owners of the proceeds of insurance. * * * [242 N. Y. S. 2d at 51, 192 N. S. 2d at 21]

The court also looked at the insurance contract and held that the policy proceeds were fruits of the insurance contract and the premiums paid under it. While the loss could be said to be involuntarjq the policy itself was a product “of their voluntary contractual act and is held by them in the same way as any personal property voluntarily acquired.” Ibid. 242 N. Y. S. 2d at 52, 192 N. E. 2d at 22.

The case of Miller & Dobrin Furniture Co. v. Camden Fire Ins. Ass’n, 55 N. J. Super. 205 (Law Div. 1959), has been cited by defendant in support of its position. There, recovery under a fire insurance policy was denied to an innocent copartner where the dominant and controlling partner set fire to the insured’s property. This court is of the opinion that Miller is distinguishable on the facts because of the dominant position held by the wrongdoing partner. It is also noted that the Miller court (at 218) recognized the rule that the intentional burning of property by an insured’s agent would not defeat recovery where the insured was not implicated in the act, citing 29 Am. Jur., Insurance, § 1028.

The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. [Sillery v. Fagan, supra, 120 N. J. Super. at 426, citing Long v. Landy, 35 N. J. 44, 50 (1961) ]

In view of the foregoing cases it might well he said that while the legal identity of husband and wife may still exist, it has been severely eroded in recent years. The estate of tenancy by the entirety, with its inherent doctrine of the identity of spouses, has been delimited by King and Fort Lee Savings.

In the present case defendant’s argument, to consider the husband and wife as a single “insured,” goes against both the policy of recent cases and the facts herein. Even if it could be said that the realty was owned jointly, certainly the contract rights under the fire policy could not be said to be in the same category. This court views those rights as personal property able to be possessed separately and individually by both spouses. Hawthorne v. Hawthorne, supra.

Indeed, the policy was issued in both names, and it is fair to say the contract was a product of the voluntary actions of each and held in the same way as any voluntarily acquired personal property. Hawthorne v. Hawthorne, supra.

This court finds that the rights and interests under this policy can be said to be several, not joint, and thus not subject to divestment or forfeiture by the unilateral actions of one spouse. Since the interest is several, recovery should be had to the extent of the wife’s interest. Hoyt v. New Hampshire Fire Ins. Co., supra.

Judgment is ordered for plaintiff in the amount of one-half of the damages within the limits of the policy.


author: Per Curiam. Handler, J. A. D. (dissenting) :

text:
    E. J. FRANKEL, BENJAMIN FRANKEL, WILLIAM FRANKEL, LEONARD FRANKEL, MAURICE J. GUTRADT AND PAUL NALEN, CO-PARTNERS, t/a PLAZA APARTMENTS, PLAINTIFFS-APPELLANTS, v. CITY OF ATLANTIC CITY, A MUNICIPAL CORPORATION AND GEFTMAN ENTERPRISES, INC., JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 9, 1973
    Decided May 23, 1973.

      Before Judges Lora, Allcorn and Handler.

      Mr. Ronald Berman argued the cause for the appellants (Warren, Goldberg & Berman, attorneys).

      Mr. Daniel J. Dowling argued the cause for the respondent City of Atlantic City.

      Mr. Isaac C. Ginsbwrg argued the cause for the respondent G-eftman Enterprises, Inc. (Weinberg & Ginsburg, attorneys).
   Per Curiam.

By ordinance adopted in 1964, the City of Atlantic City created a new zone, designated as an E Residential zone. The district thus created was and is composed of a strip zone 16 blocks long, which borders the ocean and beach on the east and Atlantic Avenue on the west, and is only one block (approximately 500 feet) in depth.

Among the uses permitted in the E zone were high-rise apartment dwellings, with various lot size, lot coverage, height and yard requirements and restrictions. In addition, the ordinance required a minimum of “215 sq. ft. of gross lot area” for each dwelling unit in a high-rise apartment. On October 7, 1971 the city adopted an ordinance amending its zoning ordinance to provide, in effect, that in calculating the gross lot area to determine the permissible number of dwelling units in high-rise apartments proposed to be erected in the E Residence zone, in the case of any lot which “fronts upon and is contiguous to” the beach, the “gross lot area * * * shall include, in addition to * * * the lot being built upon, that land lying oceanward [i. e. the beach] * * * to the high water mark” for the full width of the lot.

The present proceeding was brought to challenge the validity of the 1971 amending ordinance, and joined as defendants the corporate defendant (the owner of land in the E zone adjoining the beach front) and the city. After hearing, the Law Division upheld the ordinance as a proper and lawful exercise by the municipality of its zoning authority. The present appeal followed.

Zoning regulations limiting or restricting the number of dwelling units in high-rise apartments on the basis of the land area of the premises on which the apartment is erected, manifestly are designed for the purpose of avoiding the overcrowding of land or buildings and assuring against undue concentration of population —• an eminently proper concern of zoning. N. J. S. A. 40:55-32; San-Lan Builders, Inc. v. Baxendale, 28 N. J. 148, 158 (1958); 1 Anderson, American Law of Zoning (1968), § 7.06. Such regulations, however, must be so shaped that “all property in like circumstances be treated alike. * * * Undue discrimination in treatment and classification vitiates the regulation.” Katobimar Realty Co. v. Webster, 20 N. J. 114, 123 (1955).

We can perceive here no rational distinctions, factual or legal, which singly or in sum reasonably justify the difference in treatment granted by the ordinance amendment to properties which immediately abut upon the beach and to those which do not. All of the various considerations advanced in justification for the more liberal treatment which the amendment accords to properties abutting the beach, are equally applicable to the non-beach front properties in the zone. The beach is equally accessible to all persons residing in the zone and, to the extent that the regulation here in question serves legitimate zoning concerns, the beach advantages similarly all properties situated within the zone, both beach front and non-beach front.

The single fact that residents occupying high-rise apartments constructed on non-beach front properties might be required to walk a few more steps to avail themselves of the beach facilities, does not constitute a sufficient basis upon whch to sustain the difference in treatment under this ordinance. Cross v. Planning Board of Chelmsford, 345 Muss. 618, 189 N. E. 2d 189 (Sup. Jud. Ct. 1963). In short, the classification as between the properties immediately adjacent to the beach front and those which are not, bears no reasonable relation to the purposes legitimately to be served by zoning. Roselle v. Wright, 21 N. J. 400 (1956).

The ordinance amendment is invalid as offending the equal protection requirements of both the Federal and blew Jersey Constitutions, as well as the proscription of uniformity contained in N. J. S. A. 40 :55--31.

Reversed.

Handler, J. A. D. (dissenting) :

I would affirm substantially for the reasons set forth in the opinion below of Judge Francis.

It is noted further that land which is contiguous to a beach or waterfront may be regarded as unique and therefore subject to special regulations, not otherwise appropriate for other property. Such controls may be exercised through zoning regulations and be more restrictive than those applicable to other land. McCarthy v. Manhattan Beach, 41 Cal. 2d 879, 264 P. 2d 932 (Sup. Ct. 1953), cert. den. 348 U. S. 817, 75 S. Ct. 29, 99 L. Ed. 644 (1954); Watson v. Mayflower Property, Inc., 223 So. 2d 368 (Fla. D. Ct. App. 1969); City of Miami Beach v. Lachman, 71 So. 2d 148 (Fla. Sup. Ct. 1953), cert. den. 348 U. S. 906, 75 S. Ct. 292, 99 L. Ed. 711 (1955). Frequently, in this context, the public interest has been equated wth a curtailment of the use of naturally endowed property to the end that it may be preserved and enhanced for the benefit of the community at large. Cf. Palisades Properties, Inc v. Brunetti, 44 N. J. 117 (1965); vide, Crawford v. McLaughlin, 172 Colo. 366, 473 P. 2d 725 (Colo. Sup. Ct. 1970).

It does not follow from such considerations that property possessed of singular characteristics may not reasonably be employed to foster economic growth or serve utilitarian ends provided this be consistent with the overall objectives of zoning. Ward v. Montgomery Tp., 28 N. J. 529 (1959) ; Kozesnik v. Montgomery Tp., 24 N. J. 154 (1957). It has been recognized that distinctions or classifications even within a single use district, which are predicated upon special suitability or characteristics, may be drawn provided they are reasonable. Cf. Quinton v. Edison Park Development Corp., 59 N. J. 571 (1971); United Advertising Corp. v. Metuchen, 42 N. J. 1 (1964); State v. Gallop Building, 103 N. J. Super. 367 (App. Div. 1968).

Here the municipality by its amended ordinance has endeavored to stem the loss of population, to increase its revenues and to stimulate and revivify the development of its ocean front, concededly a unique resource. It has done so by liberalizing density requirements with respect to ocean front property within the “E” zone. It was not, in the pursuit of these objectives, required to go beyond what was reasonably necessary in its judgment to accomplish its goal. The city, therefore, was entitled to differentiate between those properties withn the E zone directly proximate to the ocean and those which lie inland.

      Indeed, there is serious question as to the validity of the amendment, even were it to be effective as to all properties within the zone, without regard to whether they do or do not adjoin the beach. See, Loveladies Property, etc. v. Barnegat City, etC., Co., 60 N. J. Super. 491, 499 (App. Div. 1960), certif. den. 33 N. J. 118 (1960).


author: Mintz, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DAVID VALENTINE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted June 4, 1973
    Decided June 26, 1973.

      Before Judges Carton, Mintz and Seidman.

      Messrs. Van Riper, Belmont & Villanueva, attorneys (Mr. Alfred C. De Cotiis, of counsel and on the brief), for defendant-appellant.

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney (Mr. Ralph J. Jabbour, Assistant Prosecutor, of counsel and on the brief), for plaintiff-respondent.
   The opinion of the court was delivered by

Mintz, J. A. D.

Defendant was tried to a jury and convicted of possession of a revolver, in violation of N. J. 8. A. 2A.T51-41 (carrying a weapon on his person or in his possession in a public place without first having obtained a permit to cany the same). He was sentenced to 60 days in the Esesx County Correctional Center.

On the evening of April 10, 1971 two' police officers of the City of Orange were on routine radio patrol duty when they received a radio message. As a consequence of that message they proceeded to Dave’s! Glass Bar and spoke with defendant, the manager of the bar. One of the officers asked defendant if he had a gun, to which defendant responded negatively. The officer then inquired of defendant whether there was a gun on the premises. Defendant again replied negatively and invited the police to come behind the bar and check. One of the officers then searched defendant and removed a loaded revolver from his pocket.

A barmaid in the tavern, David Kozlow the owner, as well as defendant testified concerning defendant’s employment status and the nature of his duties. Their testimony was to the effect that defendant was in complete charge of the business from 6 n.ar. to 2 a.m. when the owner was not present.

At the close of the evidence defendant moved for a judgment of acquittal on the ground that he came within the exception prescribed by N. J. S. A. 2A:151-42(a), which provides that:

Nothing contained in section 2A:151-41 shall be construed:
a. to prevent a person from keeping or carrying about his place of business, dwelling house, premises, or on land possessed by him, any firearm or from carrying the same from any place of purchase to his dwelling house or place of business, or from his dwelling house or place of business to or from any place where repairing is done, to have the same repaired * *

Arguably, since a small business man can defend his premises bj armed force, the owner should be permitted to delegate this power to the one he leaves in charge of the premises. Cf. dictum in State v. Bloom, 11 N. J. Misc. 522, 524 (Sup. Ct. 1933).

However, the overriding philosophy of our Legislature is to limit the use of guns as much as possible. The bar was not defendant’s business. He held no proprietary interest therein. By extending the statutory exception to include a manager, the door is opened to a multiplicity of situations where the term manager might be invoked to sanction possession oí a weapon otherwise proscribed by N. J. S. A. 2A:151-41. Moreover, there was not a scintilla of evidence produced that the revolver was acquired by Kozlow and in the possession of defendant in connection with the operation of the business. The motion for a judgment of acquittal was properly denied.

Defendant further urges that the 60-day custodial sentence was excessive in view of the novelty of the issue presented, defendant’s minimal prior record consisting of a municipal court conviction for trespassing for which he received a suspended sentence, and his family situation. However, as the sentencing, judge stated, defendant lied to the police when they arrived at the bar. Additionally, we note from the presentence report that the weapon was stolen from Verona. Furthermore, defendant gave his probation officer a statement to the effect that the weapon in question fell to the floor from the pocket of a patron who defendant asked to leave the premises because of his profanity. He picked up the gun and put it in his pocket. In view of the totality of the circumstances we find no abuse of discretion in the sentence imposed.

Affirmed.


author: Carton, P. J. A. D.

text:
    IN THE MATTER OF LOUIS ANTHONY MANNA, CHARGED WITH CIVIL CONTEMPT OF THE STATE COMMISSION OF INVESTIGATION.
    Superior Court of New Jersey Appellate Division
    Argued June 11, 1973
    Decided July 3, 1973.

      Before Judges Carton, Mintz and Seidman.

      Mr. Donald B. Conway argued the cause for appellant Louis Anthony Manna.

      Mr. Charles D. Sapienza argued the cause for respondent New Jersey State Commission of Investigation (Mr. Martin G. Holleran, Executive Director, of counsel).
   The opinion of the court was delivered by

Carton, P. J. A. D.

Louis Anthony Manna appeals from orders denying his motion to suppress a subpoena directing him to appear before the State Commission of Investigation (S.C.I.), incarcerating him “until such time as he purges himself of contempt by proceeding as ordered,” and denying his motion to terminate S.C.I. proceedings against him.

Manna was served with a subpoena on April 13, 1972 to appear before an executive hearing of the State Commission of Investigation on April 19, 1972. The subject of the investigation was:

* * * Whether the laws of New Jersey are being faithfully executed and effectively enforced, with particular reference to organized crime and racketeering; whether public officers and public employees have been properly discharging their duties with particular reference to law enforcement in relation to criminal elements; and whether and to what extent criminal elements have infiltrated the political, economic, and business life of New Jersey.

After several postponements Manna appeared before the Commission on May 31, 1972 but refused to be sworn or to testify. On July 19, 1972, after additional adjournments, Manna again appeared and refused to testify.

Meanwhile, Manna moved to suppress the subpoena. Judge Larner denied the motion but ordered that a statement of the geographical area or areas which are the subject of investigation be served upon Manna prior to his appearance. The Commission apparently specified a certain county or counties.

On July 19, after Manna again refused to testify, the S.C.I. petition that a warrant issue for Manna’s arrest, directing that he be brought before the court to answer charges of contempt. Judge Lenox ordered that Manna, be committed until he purged himself as already indicated.

Manna’s motion of July 18, 1972 for determination of all proceedings against him on federeal and state constitutional grounds was heard and denied by Judge Lamer on September 8, 1972. Bail was also refused. Judge Lamer stated:

In this ease, there is no issue of innocence or guilt. There is no accusation. I find a blatant refusal of the defendant to comply with the Court orders. Without any justification. And therefore, I feel that any appeal taken would merely give him what he’s looking for, the freedom and refusal to testify. This, to my mind, thwarts and frustrates the entire purpose of this order, incarcerating him at this lime.

Manna has also applied for leave to appeal from the refusal to grant bail. The three appeals have been consolidated. Admission to bail was also denied.

The crucial issue — whether a witness can be incarcerated indefinitely for refusing to testify before the S.C.I. as an investigatory body when he has been granted testimonial immunity — has been dcfinitiveli' resolved by our courts in In re Zicarelli 55 N. J. 249 (1970), aff’d 406 U. S. 472, 92 S. Ct. 1670, 32 L. Ed. 2d 234 (1972). Almost all of Manna’s numerous arguments advanced on this appeal have all been directly or implicitly decided adversely to Ms present contention.

There is no merit to his contention that he is entitled to bail pending appeal pursuant to R. 2:9-5. That rule and its companion, R. 2:9-4, provide that bail shall be granted “unless * * * it appears that the appeal is taken on insubstantial grounds or for [the] purposes of delay * * Manna’s only new ground of appeal is that the indefinite incarceration is a cruel and unusual punishment. That argument is frivolous. The recalcitrant witness can end his incarceration at any time. Bail was, therefore, properly denied.

The contention that the statute establishing the S.C.I. (N. J. 8. A. 52:9M-1 et seq.) offends Art. Ill, par. 1 of the New Jersey Constitution mandating a separation of governmental powers among three branches, is likewise devoid of merit. Our Supreme Court in Zicarelli said:

The power to investigate reposes in all three branches. * *
A separation-of-powers issue would arise only if the Legislature authorized the S. O. I. to go beyond investigation and to take action which invades an area committed exclusively to another branch; So, for example, if the S. O. I. were empowered to indict or to adjudicate charges of violation of our criminal laws, there would be an encroachment upon the judicial branch * * *, and if the S. O. I. were authorized itself to prosecute criminal charges, the executive power would be involved. But the S. O. I. does none of this. Its investigations will at most yield material which may also be of interest to executive officials and be referred to them for handling. This being so, the S. O. I. is not vested with authority peculiarly executive in the sense of the separation-of-powers doctrine. * * * [at 263-264]

For does the statute offend the constitutional directive that every law shall embrace only one object that shall be expresed in the title. Art. IV, § YII, par. 4 of the State Constitution reads:

To avoid improper influences which may result from the intermixing in one and the same act such act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title. This paragraph shall not invalidate any law adopting or enacting a compilation, consolidation, revision or rearrangement of all or parts of the statutory law.

The purpose of this provision is to prevent frauds upon the legislative body by means of uncertain, misleading or deceptive titles to statutes. Kline v. New Jersey Racing Comm’r, 38 N. J. 109 (1962). It does not require a resumé of all the provisions of the act. It simply requires that the members of the Legislature who are considering the proposed bill be given adequate notice of its subject matter. See Ahto v. Weaver, 39 N. J. 418 (1963).

The title of the legislation in question is, “An Act Creating a Temporary State Commission of Investigation; prescribing its functions, powers and duties; making an appropriation thereof.” L. 1968, c. 266. The title clearly suggests that the object of the legislation is to create a temporary investigation agency.

Appellant’s challenge on First Amendment grounds has also been decided by the State Supreme Court in Zicarelli, supra:

Zicarelli and Occhipinti charge that the questions put to them offended their freedom of association guaranteed by the First Amendment. Sweezy v. New Hampshire by Wyman, 304 U. S. 234, 77 S. Ct. 1203, 1 L. Ed. 2d 13.11 (1957), which they cite, dealt with a legislative inquiry into political associations. Here the questions relate to an allegedly massive criminal organization, and to the witness’s associations in that contest. The subject matter is incontestably criminal and the interest of the State is manifest. We see no affront to the values protected by the First Amendment. [55 N. J. at 273]

The cases cited by Manna for the proposition that disclosure of group affiliation may constitute a restraint on freedom of association, Gibson v. Fla. Legislative Investigation Committee, 372 U. S. 539, 83 S. Ct. 889, 9 L. Ed. 2d 929 (1963), and N.A.A.C.P. v. Button, 371 U. S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963), concern groups who pursue lawful interests, not illegal ones. See Button, at 429, 83 S. Ct. 328 and N.A.A.C.P. v. Alabama, 357 U. S. 449, 460, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958).

The Zicarelli court also addressed itelf to the argument that the S.C.I. investigation permits or constitutes an invasion of privacy:

Appellants complain that the questions “sought to probe into the most secret recesses of the witness’ minds and to expose these private thoughts to public view,” and this they say is barred by the Fourth Amendment, alone or in conjunction with the First and Fifth Amendments. Granted the right of the Legislature to inquire, the pertinency of the questions and the sufficiency of the immunity with respect to self-incrimination, all of which must be accepted for the immediate purpose, the proposition advanced, simply stated, is that the Constitution prohibits a subpoena to a mere witness. It is plainly frivolous. [In re Zicarelli, supra 55 N. J. at 273-274]

Nor does tibe statute deprive individuals being investigated of equal protection of the laws. This argument assumes that the statute in question, and/or its practical application, singles out individuals of a particular ethnic background, as well as those persons whom the Commission believes to be involved in racketeering and organized crime, for investigation.

N. J. 8. A. 52 :9M-2 states that the Commission shall have the duty and power to investigate “The faithful execution and effective enforcement of the laws of the State, with particular reference but not limited to organized crime and racketeering.” There is a total absence of any mention of a particular ethnic group. Nor is there anything in the record below of the history of this Commission which indicates, as a practical matter, that it has proceeded along ethnic lines.

On the other hand, the class of persons to which the terms “racketeering” and “organized crime” refer has a reasonable and rational relation to. the fulfillment of the essential legislative purpose. Support for this conclusion may be found in the very cases cited by appellant. Washington National Ins. Co. v. Board of Review, 1 N. J. 545, 552 (1949), states that a statute satisfies the constitutional standards of the Eourteonth Amendment, in that the State may make distinctions of degree having a rational basis “if there be any conceivable state of facts which would afford reasonable grounds for its action.”

Unlawful activities affecting the State as practiced by members of organized crime clearly constitute a “state of facts” that justify the Commission’s investigations.

Petitioner also contends that the immunity provided for in N. J. S. A. 52:9M-17 is unconstitutional. The record is barren of anything indicating that the Commission has failed to promulgate standards or guidelines regarding whom to question or from whom to seek evidence. Nor does the record support the position that the Commission has not provided standards regarding its decision to grant immunity.

The Commission’s jurisdiction is defined by N. J. 8. A. 52 :9M — 2, 3, 4 and 7. Furthermore, N. J. 8. A. 52 :13E-1 et seq. (“Investigating Agencies, Code of Fair Procedure”), establishes standards and guidelines with which the Commission must comply. The S.C.I.’s brief indicates that this Code was served upon petitioner together with a subpoena. There is no statutory requirement to institute contempt proceedings against a recalcitrant witness who invokes the Fifth Amendment. Nor is the refusal to testify penal in nature necessarily calling for criminal contempt prosecution and investigation. The Commission has the alternative option to proceed by way of R. 1:10-5 (“Relief to Litigant”). We see no merit to the contention that a witness can be prosecuted for testimony given after a grant of “use plus fruits” immunity. Explicit in the contention is that the information elicited from a witness under such terms cannot be used against him.

The provision for indeterminate incarceration does not render the statute unconstitutional for failure to provide for jury trial. Appellant’s reliance on Baldwin v. New York, 399 U. S. 66, 69, 90 S. Ct. 1886, 1888, 26 L. Ed. 2d 437 (1970), is misplaced. Baldvoin held that “no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.” As Zicardli points out (at 271-272), incarceration under IV. J. 8. A. 52:9M-1 is the result of a civil contempt proceeding, not a criminal prosecution. Since the incarceration here is a civil one which the appellant may at his pleasure end, the right to trial by jury does not apply.

The indeterminate feature of the contempt procedure does not constitute cruel and unusual punishment. Civil contempt is employed as a coercive sanction to compel the witness to do what the law made it his duty to do. Penfield Co. v. S.E.C., 330 U. S. 585, 590, 67 S. Ct. 918, 91 L. Ed. 1117 (1947). Civil contempt is designed to provide a litigant with a remedy against an opponent’s refusal to do what he ought to do. Criminal contempt has as its purpose the vindication of the authority of the court through punishment of the wrongdoer. United States v. Consolidated Productions, Inc., 326 F. Supp. 603, 606 (D. C. Cal. 1971). This distinction according to purpose indicates that a party incarcerated under a civil contempt order is not enduring a sanction which the Eighth Amendment intended to limit. The principle has aptly been stated that such a man “carries the keys to his prison” in his own pocket. Staley v. South Jersey Realty Co., 83 N. J. Eq. 300, 90 A. 1042 (1914). He need not be incarcerated at all.

In Wyman v. Uphaus, 100 N. H. 436, 130 A. 2d 278 (1957), the New Hampshire Supreme Court considered a similar argument and rejected it. That result was affirmed by the United States Supreme Court sub nom. Uphaus v. Wyman, 360 U. S. 72, 81, 79 S. Ct. 1040, 3 L. Ed. 2d 1090 (1959).

The provisions of N. J. 8. A. 52:13-5 et seq. (“Con-tempts of Joint Legislative Committees”) limiting incarceration to six months do not apply. The language of those statutory sections concerns only “any investigation or inquiry by any committee constituted by joint resolution of the legislature.” The S.C.I. is not a joint legislative committee, but an independent body created by statute.

As to the subpoena, we note, that its words adequately informed the witness of the Commission’s scope of inquiry. The subpoena stated that the general subject of investigation would be organized crime and racketeering in the State of New Jersey, the corruption of law enforcement officials in the State, and the infiltration of the State’s political, economic and business life by criminal elements. This description appears to “be sufficiently limited in scope, relevant in purpose and specific in direction SO' that compliance wifi not be unreasonably burdensome.” See v. Seattle 387 U. S. 541, 544, 87 S. Ct. 1737, 1740, 18 L. Ed. 2d 943 (1967). Appellant fails to show how compliance would be burdensome.

Although the original subpoena in this case did not specify any geographic location within the State as the locus of the acts which would be investigated, it fairly apprised appellant of what information was expected from him. The subpoena in ZicarelK specified the City of Long Branch. Here the court ordered the S.C.I. to inform Manna which geographical subdivision or subdivisions of the State would be involved. This, coupled with the specification of a certain county or counties, is adequate compliance with due process requirements in this respect.

Affirmed.


text:
    MURIEL ROSE LEONARD, PLAINTIFF-RESPONDENT, v. FLOYD JOHN LEONARD, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 18, 1973
    Decided July 5, 1973.

      Before Judges Canton, Mintz and Seidman.

      Mr. Stanley Yacker argued the cause for appellant (Messrs. DeMaio & Yacker, attorneys).

      Mr. Thomas T. Warshaw argued the cause for respondent (Messrs. Drazin, Warshaw, Auerbach & Rudnick, attorneys).

      Mr. Thomas J. Baldino, Jr. (court-appointed commissioner) appeared pro se.

   The opinion of the court was delivered by

Mintz, J. A. D.

In this partition proceeding we granted leave to defendant to appeal from an order confirming the sale of three parcels of real property. The parties to this action were formerly husband and wife. As a consequence of their divorce they became cotenants in common of five separate properties situate in this State. One parcel at 32 Rochester Drive in Bricktown is a residence presently occupied by defendant. Three noncontiguous parcels are situate in Union Beach and consist of (a) a business property on Union Avenue in which defendant conducts his business; (b) a residence at 204 Morningside Avenue in which plaintiff resided, but apparently moved therefrom in 1972, and (c) a one-family residence at 620 Morningside Avenue, apparently a rental property formerly occupied by defendant’s parents. The fifth parcel is a vacant lot on Holmdel Eoad in Holmdel.

On June 3, 1971 summary judgment in partition was entered on motion of plaintiff, and Thomas J. Baldino, Jr. was appointed commissioner to effect sales of the properties. On July 28, 1972 the commissioner entered into contracts to sell the premises at 620 Morningside Avenue in Union Beach, and 32 Bochester Drive, Bricktown. The respective contracts were negotiated through a real estate agency and subject to the payment of a commission of 7%.

On August 4, 1972 defendant moved for a physical partition of the respective parcels between the parties in lieu oí a sale of all five properties through the commissioner. He filed a supporting affidavit in which he requested that he be permitted to retain his home and the business property; that plaintiff be allotted the other two residential properties, and that the vacant lot be sold and the proceeds utilized to make financial adjustments between the parties. The court denied the application stating:

Partition applies to a particular piece of property and in this case partition applies to five pieces of property. There is no question that no one of these pieces of property can be divided so that the husband will have part and wife will have part. Therefore the only thing that can be done is to sell.

The court further indicated that defendant was desirous of retaining the properties in which he resides and the business property, that plaintiff should receive the other two residences, and that the Holmdel property be sold and the proceeds used to equalize the values. The court also alluded to the commissioner’s view that a physical partition was not equitably feasible. The matter was adjourned until August 18, 1972. At that time the court considered a motion to confirm the sale of the vacant lot subject to a 10% real estate commission, as well as the other two properties under contracts for sale. The motion was granted notwithstanding the fact that defendant expressed a willingness to meet the price offered for his residence and the business property.

At oral argument we were advised that only one contract still subsisted, namely, that pertaining to the sale of 32 Rochester Drive for $27,500.

We are mindful of the trial judge’s observations respecting defendant’s obstructive tactics pertaining to the support payments required to be made, and his alleged failure to repair defendant’s residence. However, these factors are irrelevant to the problem here presented. Simply stated, the basic issue is whether the court erred in refusing to make a physical allotment of the five noncontiguous properties. Although the application for such a disposition was belatedly made, we conclude that the trial court erred in holding that since no single parcel was capable of physical partition, a sale of all five properties was required. We do not believe that such a determination was mandated by N. J. S. A. 2A:56-2.

The precise issue was presented in Ierrobino v. Megaro, 108 N. J. Super. 556, 561 (Ch. Div. 1970), where the court stated:

There is considerable authority in other jurisdictions holding that where the properties sought to be partitioned consist of separate and distinct parcels, the whole may be treated as one estate for the purpose of making division and allotment where no injustice results. Thusj one tract may be allotted to one party and another to another where the values are properly proportionate to their respective interests, or the share to which a party is entitled may be set off to him entirely out of one of several tracts if the rights of the other parties are not thereby prejudiced.

The court iu Ierrobino (at 562) also recognized the principle of “owelty” wherein if one cotenant receives property with a value greater tiran his proportionate share, he will owe to the other cotenant an amount of money which would equalize the partition. In Ierrobino the parties were requested to endeavor to agree upon an equitable allotment, and if no such agreement was presented within a stated period the allocation would be made by the court. The history of this protracted litigation strongly indicates that no such agreement will be reached.

In our judgment defendant should be allotted the business property and the reidence in which he resides, and the wife allotted the remaining three properties. We recognize that the two properties to be allotted the husband probably exceed the value of the three properties to be allotted to plaintiff.

At the oral argument the parties stipulated that the trial court should forthwith appoint a neutral expert to appraise the five properties. We direct that the expert’s appraisal reports be filed with the trial court within 35 days from the date of this opinion, and that copies thereof be furnished the respective attorneys. If, within five days from the receipt of this opinion, the parties can stipulate the value of one or more properties and file said stipulation with the trial court, then obviously no appraisal of such property or properties will be required.

We hereby vacate the order confirming the sales and the order appointing Baldino as commissioner. Baldino is to be paid for his expenses incurred and services rendered in an amount to be fixed by the trial judge. His allowance is to be charged against defendant, or possibly against both parties. Wo leave this issue for determination by the trial judge. The neutral expert’s fee is to be likewise fixed by the trial judge and paid by either one or both of the parties as the trial judge may resolve.

We were further advised that plaintiff claims defendant failed to maintain certain properties. This issue may be adjudicated on the remand of this proceeding to the trial court.

Obviously, one of the parties will receive properties greater in value than his or her proportionate share. The party receiving the greater share will be required to pay the other party the amount required to equalize the partition, within 60 days after the allotments are made by the trial judge, and in the interim to furnish such security for the payment of the same, as the trial judge may determine.

Reversed and remanded for further proceedings consistent with this opinion.


author: Fritz, J. A. D.

text:
    HENRY WILLIAMS, PLAINTIFF-APPELLANT, v. CIVIL SERVICE COMMISSION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted March 19, 1973
    Decided July 6, 1973.

      Before Judges Fritz, Lynch and Trautwein.

      Ms. Randall W. Westreich, Essex County Legal Services, attorney for appellant (Ms. Louise Halper, Mr. Philip N. Brown, and Ms. Randall W. Westreich, on the brief).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for respondent (Ms. Virginia Long Annich, Deputy Assistant Attorney General, of counsel; Mr. John M. Van Bolen, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Fritz, J. A. D.

Appellant was discharged without a hearing from his provisional position as Assistant Dog Warden for the City of Orange. His demand for a hearing was denied in a letter from the Chief Examiner and Secretary of the Department of Civil Service on the ground that “Hearings are only granted for permanent employees in the classified service.” This determination is said to be bottomed on N. J. A. C. 4:1 — 16.8(b) :

A provisional or temporary employee may be terminated at any time at the discretion of the appointing authority. A provisional or temporary employee who has been terminated shall have no right of appeal to the Civil Service Commission.

We reverse.

We recognize that the Fourteenth Amendment concepts of liberty and property, sheltered by the Due Process clause, are not without certain limitations, and public officials may, in the proper circumstance, be' discharged without a hearing. Board of Regents v. Roth, 408 U. S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). But we do not believe that the provisional nature of public employment by itself can justify the denial of a hearing in all cases and without regard for circumstances of the case. As Roth suggests, where these circumstances are such that reemployment is jeopardized, or an individual’s standing and associations in the community are damaged, or his good name, reputation, honor or integrity is at stake, due process requires that he be afforded an opportunity to be heard.

The circumstances of the instant case include a media airing of a. dispute between appellant and the municipal health officer. The newspaper reported that the health officer had charged appellant, in a letter to the Commissioner of Parks and Public Property, with "inability to solve various citizen complaints, inability to comply with dog pound regulations, misuse of the vehicle provided for animal control and inability to furnish the department with accurate daily reports.” We have no way of knowing whether these charges' are true. Nor does, the public, among whom they have had broad dissemination. We believe that due process requires that appellant be given a hearing to defend against them if he desires it. Board of Regents v. Roth, supra.

We also express due process concerns in the context of a different Civil Service rule, N. J. A. G. 4:1-8.14:

(a) The Chief Examiner and Secretary shall take the following actions for. any cause listed in subsection (b) of this Section or for any other good cause:
1. Reject the application of a person for admission to an examination ;
2. Refuse to test an applicant;
3. Refuse to place the name of a person on the employment list;
4. Refuse to certify the name of an eligible person; or
5. Remove from the employment list the name of an eligible person.
(b) Any of the following shall constitute good cause for such action by the Chief Examiner and Secretary against any prospective employee who:
Hi Hi H* HP * ¡'r Hi
6. Has been removed * * *■ from the public service, * * *.

There is no doubt appellant has “been removed” from the public service. The Chief Examiner and Secretary now has “good cause” to invoke all the sanctions of N. J. A. O. 4:1-8.14(a). That this condition might eventuate without an opportunity for a fair hearing offends the conscience. Roth, in its marked concern for future public employment, contains a dictum, with which we are in hearty accord, that it also offends the Due Process clause of the Fourteenth Amendment.

We are not doubting that a provisional employee can be removed without cause. Roth clears the air on this point. There is no entitlement to tenure in the temporary, gap-filling, provisional employment. We address ourselves only to the due process requirement of a hearing, toward the end that the record may be set straight, objectively and at a time when matters are fresh.

The demands on all public servants, permanent, temporary and occasional, are great. See Trap Rock Industries, Inc. v. Kohl, 59 N. J. 471 (1971), cert. den. 405 U. S. 1065, 92 S. Ct. 1500, 31 L. Ed. 2d 796 (1972). No public servant should be relegated to second-class status simply because his tenure is not assured by a permanent classification.

Eeversed and remanded for a hearing.


text:
    CANTERBURY PROPERTIES, INC., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, v. THE MUNICIPAL UTILITIES AUTHORITY OF MT. LAUREL TOWNSHIP, DEFENDANT-APPELLANT, AND MT. LAUREL SEWERAGE CORPORATION, A NEW JERSEY CORPORATION (NOW KNOWN AS SEWEL, INC.), MT. LAUREL WATER CORPORATION, A NEW JERSEY CORPORATION (NOW KNOWN AS WATERMOUNT, INC.), AND RICHARD C. GOODWIN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 4, 1973
    Decided July 11, 1973.

      Before Judges Carton, Mintz and Seidman.

      Mr. John W. Trimble argued the cause for Defendant-Appellant, Municipal Utilities Authority of Mt. Laurel Township (Messrs. Higgins & Trimble, attorneys).

      Mr. John A. Jones argued the cause for Plaintiff-Respondent, Canterbury Properties, Inc. (Messrs. Toll, Friedman, Pinsky and Jones, attorneys).

      Mr. Josiah F. DuBois, Jr. argued the cause for Defendants-Respondents, Mt. Laurel Sewerage Corporation, Mt. Laurel Water Corporation, and Richard C. Goodwin (Messrs. DuBois, Maiale & DuBois, attorneys).
   The opinion of the court was delivered by

Carton, P. J. A. D.

The result in this case turns on the validity of certain covenants made by defendant Municipal Utilities Authority of Mt. Laurel Township in connection with its acquisition of a sewerage and water supply system. An outline of the events leading up to the present litigation will serve to' provide a backdrop for a more detailed consideration of the factual and legal issues involved.

Defendant Municipal Utilities Authority agreed to purchase the sewerage and water systems from defendant utility companies and in conjunction with that acquisition it assumed performance of certain covenants undertaken by the sellers in agreements between them and various land developers fixing the amount of fees to be charged for connecting dwelling houses in these developments to the systems. When defendant Authority adopted a rate schedule increasing the connection fees and attempted to make them retroactive, plaintiff, the owner of one of the developments, objected, claiming the Authority was bound by the terms of the collateral agreements which it had assumed. It brought this action seeking a determination to that effect, recovery of fees paid under protest in accordance with the revised schedule, and restraint against collection of further fees except in accordance with the agreements between it and the sewerage and water companies. The court entered judgment in favor of plaintiff and defendant Authority appeals.

Plaintiff Canterbury Properties, Inc. is the assignee of two agreements between Alan and Harris Kessler, co-partners, and the Mt. Laurel Sewerage Corporation and the Mt. Laurel Water Corporation. The Kessler brothers are land developers who control a 77-acre tract in the Township of Mt. Laurel, a formerly rural municipality rapidly becoming part of suburban Philadelphia. The housing development of single-family residences constructed on that tract is known as Canterbury Greene.

The water and sewerage companies referred to above were privately-owned utilities organized and controlled by defendant Kichard C. Goodwin, also a land developer in the township. Goodwin, as part of his business operations, constructs water and sewerage facilities for his housing developments and enters into service agreements with nearby developers. In all, there were 18 sewerage and 11 water contracts entered into in Mt. Laurel.

The agreements between the Kesslers and the sewerage company, which was entered into in April 1967, provided that the first 200 homes in the tract would be connected to the sysxem without any connection charge as such. As to any further homes, a charge of $275 would be made for such connection. The agreement also required the Kesslers to pay the cost of constructing a pumping station and force main, which cost would be returned to the Kesslers over a 15-year period except for the sum of $53,000. This sum was stipulated by the parties to represent a prepayment of connection fees.

In May 1968 the Kesslers assigned the agreement to plaintiff. They completed construction of the pumping station and force main at about the same time at a total cost of $135,000. Housing construction was then begun. By May 1971, 197 homes were completed and connected to the utility systems.

In the Spring of 1969 the Superior Court appointed commissioners to fix compensation for a public taking of the utilities by defendant Authority, a municipal agency formed under N. J. S. A. 40:14B-1 et seq. In July 1969 the commissioners reported a value of $1,182,953 for the sewerage corporation and in August of that year they reported a value of $763,893 for the water corporation. The condemnation action proved abortive because the Authority was unable to float a bond issue in that amount.

On April 9, 1970, however, the Authority and the utility companies reached an agreement of sale by which the Authority agreed to purchase all the facilities of the utility companies and assume all its existing contracts for $1,500,000 cash plus $300,000 in Authority bonds, if the Authority was able to issue bonds in the total amount. The bonds were apparently so issued and the sale completed on June 29, 1970. At that time the Kesslers were reimbursed by the utility companies for their construction expenditures in connection with the utility systems, minus $53,000.

On June 24, 1970 (five days prior to the sale, but a month after it negotiated the purchase agreement) the Authority adopted a ratei schedule which provided for a connection Charge of $100 for water service and $300 for sewerage. A new municipal government was elected in November 1970 and four new appointments were made to the Authority. By letter of January 11, 1971 the Authority informed plaintiff that it would enforce the rate schedule, including connection fees, retroactively to June 24, 1970, notwithstanding any prior agreements. It threatened to deny plaintiff’s houses connection to the utility system and to inform the township committee that certificates of occupancy should not be granted. The township building inspector subsequently did deny a certificate of occupancy and plaintiff was obliged to pay the fees.

Plaintiff paid the sum of $13,000 directly to defendant Authority, representing fees for 30 homes. Plaintiff then instituted this suit against the Authority, the utility companies, and Bichard C. Goodwin, individually. Defendant Authority cross-claimed against Goodwin and the utility companies. On October 20, 1911 the trial judge ordered the establishment of an escrow account for future connection fees. The sum of $11,600 was paid into this account. As part of the stipulation of facts, plaintiff and the Authority agreed to a settlement of their claims against each other before extending the litigation to Goodwin and the utility companies.

The ultimate question thus is whether the Authority’s revised schedule of connection fees is applicable to plaintiff and the houses constructed in its development. We think not.

Defendant Authority’s argument for avoidance of any obligation to comply with the connection fee arrangement between its predecessor and the utility companies (from which it purchased the facilities) is two-fold. It argues first that the original agreements between the private utility companies and the developer were unenforceable because they violated Board of Public Utility Commissioners’ regulations. Secondly, it contends that even if such agreements were valid as between the original parties, they were unenforceable against the Authority because their assumption was ultra vires. In particular, they urge that the agreements violate the mandate of the Municipal Utilities Authority Act, N. J. S. A. 40:14B-1 el seq., that connection fees be uniform within the district.

The first argument is devoid of merit. The agreements accompanied requests by the utility companies for the Board to approve resolutions of the governing body granting municipal consents to service the lands covered by them. They provided for the extension of sewerage and water service within areas already within the franchise of the utilities and were presumably filed under N. J. 8. A. 48:2-27, entitled “Extension of facilities.” The Board, in its decisions approving such municipal consents, specifically referred to the agreements which set forth the schedule of fees for making connections. We find nothing in the record which provides a basis for any contention that the Board exceeded its statutory grant of power. It seems apparent that its action in granting such approval was clearly within the scope of the statutory language which authorized such approval “where, in the judgment of the board, the extension is reasonable and practicable * * *.”

The fact that the procedure followed by the Board may not have followed its own suggested formula for approval of such extensions did not take the Board’s action beyond such grant of power. In any event, such a procedural irregularity before that Board is not subject to collateral attack by a party in this fashion.

We turn to defendant municipal authority’s principal argument, that the agreements between the utility companies and the property owner with respect to connection fees are ultra vires and unenforceable because the Authority had no power to assume such agreements. At the outset it should be noted that defendant Authority does not seeek a rescission of the sale of the sewerage and water plants, but merely to set aside that part of the transaction in which it assumed performance of the agreement relating to connection fees.

The Authority’s reliance upon Spoerl v. Pennsauken Tp., 14 N. J. 186 (1954), is misplaced. We agree that 8poerl supports the general proposition that a municipal corporation need not be bound by an agreement not to charge sewerage fees if that agreement is ultra vires. However, it does not follow that all such agreements are ultra vires. Spoerl holds that only those without adequate consideration are unenforceable.

In Spoerl a municipality conveyed a parcel of real estate to the plaintiffs predecessor in title through a deed containing a covenant running with the land that it “shall not be subject to assessment for the cost of any municipal sewerage facilities which shall be erected or constructed * * The court said:

Our attention is not called to, nor does our research uncover, any statutory provision granting a municipality the authority and power to give a covenant relieving property o£ the burden ordinarily imposed by receipt of benefits, but arrangements giving up the city’s right to collect assessments for benefits have been entered into under appropriate contracts and have been sustained under certain circumstances. In every instance, however, emphasis has been placed upon Hie necessity of determining whether there was adequate consideration for the right relinquished by the municipality. * * * [14 A. J. at 189-190]

The court concluded that where the grantee had conveyed at only $2 a front foot and the assessments totaled $7.10 a front foot, there was a “substantial deficiency in consideration.” Id. at 194.

Defendant Authority’s suggestion that there is likewise a deficiency of consideration here, that the Authority received nothing for its assumption of the agreements, is wide of the mark. The Authority bargained for and obtained the facilities of Mt. Laurel Sewerage Corporation and Mt. Laurel Water Corporation, as well as the benefits of any existing contracts. In exchange it paid $1,500,000 in cash, $300,000 in bonds, and assumed the burdens of any existing contracts.

There is nothing in the record to indicate, nor does the Authority charge, fraud on the part of the sellers. Nor do the circumstances suggest that it was an unconscionable agreeement. The condemnation commissioners, who were apprised of the outstanding contracts, reported that the utility companies had a value of approximately $1,950,000. This amount was some $150,000 more than was actually paid as a result of the later, and apparently extended, negotiations between the utilities and the Authority.

The lower price negotiated by the municipal authority and the circumstance that all parties were aware of the existence of the contracts prompted the inquiry by the trial court whether that reduction did not reflect a credit to be given to reflect the connection fee provisions in the agreement. We agree with the trial court’s conclusion that the credit was not an unlimited one in time or amount. The court correctly pointed out that the obligation to grant credits was limited by the number of homes that could be built on the land. The record shows that plaintiff had only a limited acreage to develop and that the property was already partially developed when the Authority acquired the sewerage and water facilities from the utilities. The pattern of development was therefore clearly discernible and a present value could readily be placd on the burden imposed by the agreements at the time of their assumption.

The Authority makes the subsidiary argument that even if the assumption of the agreement was not ultra vires for lack of consideration, it was ultra vires under N. J. 8. A. 40:14B-21 and 22. These sections of the Municipal Utilities Authorities Act empower the Authority to charge and collect fees “for direct or indirect connection with” the water or sewerage system. Such fees “shall as nearly as the municipal authority shall deem practicable and equitable be uniform throughout the district for the same type, class and amount of use [products] or service” of the water or sewerage system.

Defendant thus argues that the statutory requirement of uniformity prohibits the Authority from assuming agreements which exempt certain property owners from connection fees.

In Airwick Industries, Inc. v. Carlstadt Sewerage Auth., 57 N. J. 107 (1970), our Supreme Court analyzed the parallel section (identical language) of the Sewerage Authorities Law, N. J. 8. A. 40:14A-1 et seq., and concluded that

* * * The statute need not be read to require precise mathematical equality, but rather to contemplate rough equality, keeping in mind that we are in an area in which, as with respect to other tax impositions, absolute equality is neither feasible nor constitutionally vital. The Authority may, therefore, in its discretion, prescribe a schedule of connection fees escalating with the passage of time, requiring a potential user to absorb a fair proportion of the sum theretofore paid by the actual users for principal and interest on the bonds. [At 122]

In that case the Authority required higher fees of later connecting property owners though their property use may have been of the same type as earlier, lower-paying customers. The court’s decision in that case suggests that a pragmatic test must be applied in the interpretation of the requirement for uniformity “as nearly as the municipal authority shall deem practicable and equitable * *

In Airwich the court found it inequitable to require the original customers to pay the lion’s share of initial construction costs when the property value of prospective customers was likewise being enhanced by the utility system. Here it would be inequitable to impose a second connection fee on plaintiff’s properties when its initial prepayment of such was, or ought to have been, reflected in the purchase price of the system.

The xffuthority, and thereby its customers, obtained the facilities at a lower price than it otherwise would have because plaintiff had already paid connection fees. The amount the price was lowered should have been equal to the anticipated loss of connection fees due to the assumed agreement.

Essentially, Airwiclc requires that any discrimination in fees between similar property users be justifiable. That holding was recently reaffirmed in S. S. & O. Corp. v. Tp. of Bernards Sewerage Auth., 62 N. J. 369 (1973). Such is the case here.

In this connection it should be noted that section 23 of the act permits authorities to revise their schedule of fees periodically so that they may be adequate to cover the operational costs of the system. (The parallel section of the Sewerage xiuthorities Law says they shall be adequate.) We also note that section 24 of the act permits the municipality serviced by the Authority to loan or donate funds to the Authority which presumably may be used to make up any deficits.

In our estimation, the element of practicability, as well as equitability, was present in the Authority’s assumption of the agreements.

The Municipal Utilities Authorities Act contemplates that such authorities may acquire as well as construct their own facilities. N. J. S. A. 40:14B-2. Assumption of these agreements may very well- have been a necessary precondition to acquisition (or as said previously, at least resulted in a lower, possible to finance, purchase price).

The Municipal Utilities Authorities Act read as a whole gives authorities created under its provisions a definite flexibility in their operations. (They are not, for example, at the present time subject to the Local Bond Law or the Local Public Contracts Law.) The policy expressed in the statute is “to foster and promote by all reasonable means the provision and distribution of an adequate supply of water * * * and the relief of waters * * * from pollution * * (Emphasis added). The stated purpose of the act is to implement this policy by granting to such authorities “discretionary powers” to provide such services. N. J. 8. A. 40:14B-2. The statute specifically confers upon such authorities the power “[t]o enter into any and all contracts * * * convenient or desirable for tire purposes of the municipal authority or to carry out any power expressly given in this act.” N. J. 8. A. 40 :14B-20(12). In apparent harmony with this broad grant of authority is the language of section 23 referred to above, stating that any revision of fees “shall comply with the terms of any contract of the municipal authority * * (Emphasis added).

It would thus appear that, absent any gross inequities, the Legislature contemplated that authorities should be bound by the contract it had the power to make. Since none appears here, the judgment appealed from is affirmed.


author: Per Curiam.

text:
    STATE OF NEW JERSEY IN THE INTEREST OF M. L., JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 2, 1973
    Decided July 12, 1973.
    Before Judges Fritz, Lynch and Fulop.

      Mr. James J. Lee, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Barry G. Evertz, Assistant Prosecutor, argued the cause for respondent (Mr. Sherwin D. Lester, Bergen County Prosecutor, attorney).
   Per Curiam.

Although the juvenile defendant here argues that the State failed to prove its charges beyond a reasonable doubt, whereby the complaint should have been dismissed, an argument we find without merit, the more troublesome question raised is the authority for the imposition of the $15 fine here ordered.

The issue is not without substantial difficulty, and the policy questions can be effectively argued in both directions. We think, however, the legislative intent is clear. This being so, it is neither our obligation nor our prerogative to do other than give effect to that intent.

On an adjudication of guilty the Juvenile and Domestic Relations Court may, among other sanctions, “[p]lace the child on probation * * * upon such terms as the court may deem to be to the best interest of the child.” N. J. 8. A. 2A:4-37(a). (This probation can include terms binding on parents. B. 5:9-9(b) (2) (B)). Probation can be on the imposition and suspension of a sentence involving “the penalty provided by law,” N. J. 8. A. 2A :4-36, and the sentence can, of course, include commitment to an institution. N. J. 8. A. 2A:4-37(b).

N. J. 8. A. 2A:168-1 particularly refers to the Juvenile and Domestic Relations Court and the placement of children on probation. N. J. 8. A. 2A:168-2 enables the imposition of a fine as a condition of probation. Considering the breadth of the sanctions for which provision is thus made, and perhaps more significantly, ■N. J. S. A. 2A:168-1 and 2, read in pari materia, we have no doubt the Legislature intended to entrust the court with the power to levy a fine in connection with an adjudication of guilt and a probationary disposition.

Having thus decided that a fine is within the competency and jurisdiction of the Juvenile and Domestic Relations Court, we adjure that court to caution and the very delicate exercise of its discretion in this regard. A fine has been defined as something intending to punish. State v. DeBonis, 58 N. J. 182, 192 (1971). It is important that with a juvenile, where rehabilitation rather than punishment should be the lodestar, any fine imposed be designed and administered to implement rehabilitation rather than to punish.

Affirmed.


author: Consodine, J. S. C.

text:
    BETTY BALLARD, PLAINTIFF, v. RICHARD A. BALLARD, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided July 6, 1973.

      Mr. Alexander Kushner for plaintiff (Messrs. Tulipan & Indursky, attorneys).
   Consodine, J. S. C.

Plaintiff and defendant live in separate quarters in one building of a multiple-apartment complex. The proof and corroboration satisfy the requirements of N. J. 8. A. 2A:34r-2(d) in all regards except as the construction of the statutory phrase, “in different habitations”, may affect the result.

There are- no reported cases in this State covering this unique factual situation.

The Divorce Law Study Commission’s Pinal Report does not solve the present problem. In its comment on the no-fault ground of separation, it states (at 71-72) : “The separation, unlike the cessation of cohabitation under the desertion ground, cannot take* place under the same roof." (Emphasis added). See also, Comments, “No-Fault Divorce: Modernization Long Overdue For New Jersey,” 2 Seton Hall L. Rev. 63, 88 (1970). Yet Appendix II of the same report deals (at 114) with “Living Apart As a Ground fox Divorce” (Italics added).

Subdivision (d) of the statute, supra, did not adopt the Final Report language of “under the same roof” but rather “separate and apart in different habitations.”

Habitation is defined as “occupancy,” “'dwelling place,” “residence,” “abode.” Webster’s Third New International Dictionary (1961 ed.) While the word has a Latin root, it seems that the Legislature’s intent is closely related to the Erench legal phrase Hobiter avec, “to cohabit.” The New Cassell’s French Dictionary (1967 ed.), 394.

In reviewing the cases of other jurisdictions, this court found certain criteria to be used in determining whether or not the parties were in different habitations or, more precisely, whether or not they had ceased to cohabit as husband and wife. Di Rienzo v. Di Rienzo, 119 N. J. Super. 192 (Ch. Div. 1972). The criteria are a complete cessation of all marital duties and relations and the living separate and apart of husband and wife in such a manner that those in the neighborhood may see that they are not living together, Rogers v. Rogers, 258 Ala. 477, 63 So. 2d 807 (Sup. Ct. 1953); Young v. Young, 225 N. C. 340, 34 S. F. 2d 154 (Sup. Ct. 1945). Living in separate apartments in the same apartment house has been held to be living separate and apart. Stewart v. Stewart, 45 R. I. 375, 122 A. 778 (Sup. Ct. 1923). The essential thing is separate lives, not separate roofs. Boyce v. Boyce, 80 U. S. App. D. C. 355, 153 F. 2d 229 (D. C. App. 1946).

In Di Rienzo, supra, the criteria were not met and divorce under N. J. S. A. 2A:34-2(d) was denied. In Dunston v. Dunston, 124 N. J. Super. 214 (Ch. Div. 1973), divorce was denied because the resumed cohabitation of the parties, after a long period of separation, was of sufficient duration to create a reasonable prospetet of reconciliation, and the parties has resumed their marital duties and relations. Rogers, supra. A transitory cohabitation which does not amount to a true reconciliation would not destroy a cause of action on the ground of separation. Brittner v. Brittner, 124 N. J. Super. 259 (Ch. Div. 1973) Query, how many cohabitations destroy the cause of action?

In our present society where space is at a premium and high-rise living a common place, it is not at all unusual to have hundreds, even thousands of individuals living in one building with an identical address yet still living in separate dwellings while technically “under the same roof.” Obviously it was not the legislative intent to impose a technicality to refuse a divorce when public policy is settled that dead marriages should be legally terminated. Wanser v. Wanser, 119 N. J. Super. 190 (Ch. Div. 1972) “Habitation,” as set forth in the statute, is intended to mean living separate and apart in one’s own private abode and a single dwelling can house multiple abodes.

Here, there was neither a resumption of cohabitation nor a prospect of reconciliation.

Divorce granted.