author: Dwyer, J. S. C.

text:
    ANTHONY BARRES, PLAINTIFF, v. HOLT, RINEHART AND WINSTON, INC., A CORPORATION OF THE STATE OF NEW YORK AND RON PORAMBO, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided November 18, 1974.

      Barry H. Evenchick for plaintiff (Schapira, Steiner & Wolder, attorneys).

      David S. Litwin for defendant Holt, Rinehart and Winston, Inc. (Pitney, Hardin & Kipp, attorneys).
   Dwyer, J. S. C.

Before filing an answer defendant Holt, Einehart and Winston, Inc. (publisher) moved to dismiss the complaint of Anthony Barres filed on May 31, 1974, charging publisher and Eon Porambo (author) with libel based on certain statements made about Barres in the book, No Cause For Indictment. The motion was made on the grounds that court lacked subject matter jurisdiction and the complaint failed to state a cause of action in that the accompanying affidavit of publisher's officer showed that the book was released in accordance with general trade practices on November 15, 1971, and hence any cause of action was barred on November 16, 1972, citing N. J. S. A. 2A:14-3 (one-year period of limitation for libel). Alternatively, publisher moved for summary judgment.

Barres contended that no dates were set forth in the complaint; hence, the defense of statute of limitation could not be raised by motion. He further contended that each sale of the allegedly libelous book gave rise to a new cause of action; hence, the fact that there had been a general release of the book on November 15, 1971 should not result in a holding that all claims were barred by the one-year statute of limitation.

This motion presented a question of novel impression for decision under New Jersey law, namely, when does the period of limitation commence to- run on a libelous statement made in a book distributed in many states on a general release date where the publisher thereafter sells copies of such book for several years.

There are two rules. The older rule is that each repetition of a libel, in this case sale of the book, creates a new cause of action — the multiple publication rule. However, in recent years the American courts have held that where an issue of a newspaper, magazine or edition of a book contains a libelous statement, plaintiff has a single cause of action and the number of copies distributed is considered as relevant for damages but not as a basis for a new cause of action — the single publication rule. See Prosser, Torts (4 ed. 1971), § 113.

Since Barres had had no opportunity for discovery, the court treated the matter as one for summary judgment, B. 4:6 — 2, and allowed plaintiff to take the deposition of the affiant and examine the records of publisher. See Community Development Co., Inc. v. Seaside Gardens, Inc., 7 N. J. 153 (1951); cf. Rappeport v. Flitcroft, 90 N. J. Super. 578 (App. Div. 1966). The deposition was taken and supplemental briefs were submitted. Counsel did not refer the court to, and the court has not found, any New Jersey case that has decided which of the aforementioned rules should apply.

The following axe uncontxovexted facts. Author wrote the manuscript for No Cause For Indictment based upon events and persons involved in the community life of the City of Newark in the period preceding and following the riot in 1967. Barres was and is a resident of Newark and still is active in the Newark Police Department. He is chief of police and has served as acting director of police.

Publisher acquired certain rights to the manuscript from Author through his New York literary agent. Publisher, a nationally known publishing house, is a New York corporation with offices in New York. It maintains warehouses for distribution in several states, including one in Clifton, New Jersey, and it has a registered agent in New Jersey.

In the late summer of 1971 publisher prepared the manuscript for printing. Based on business judgment, publisher placed an order with a third-party printer in Massachusetts for the printing of 6,000 copies. It later placed an order with a corporation related to the printer and located in Massachusetts for the binding of said 6,000 copies in hard cover.

By October 19, 19-71 publisher knew that the books would be ready for distribution. It accordingly sent copies to reviewers and buyers for book outlets, listed the book in its fall catalog, and arranged for newspaper advertising in the Bergen Record and the Newark Star-Ledger in November and December 1971.

Pursuant to established trade practice, publisher released the book to the trade and to book stores on November 15, 1971. It also filled all prerelease date orders on that date. By December 31, 1971 publisher had sold 3,773 hard cover copies and had also distributed several hundred copies to reviewers. Publisher on January 21, 1972 advertised the book in the New York Times. Sales of the aforesaid 3,773 copies were regarded as good. In February 1972 publisher placed an order with the same printer and binder for an additional 2,500 hard cover copies.

However, sales of the hard cover copy slackened. In July 1972 publisher ordered hard covers removed from 2,500 copies and paper covers substituted. There is nothing in the record to indicate that there was any general announcement or release to the trade or public concerning the paperback edition.

Beginning in July 1972 Publisher had 2,500 paper cover copies. It sold 454 in 1972, 306 in 1973 and 243 to September 1974 and, after distributing copies to reviewers, bookstore employees and others, presumably has about 1,373 paperback copies currently remaining. It fills requests for the book from this stock.

In respect to the hard cover copies, publisher received back 186 more copies than it sold in 1972. In August 1973 it sold approximately all of its inventory, totaling 1,857 copies, to a remainder outlet at less than' 50 cents a copy. The invoice for this transaction indicates that it was part of a disposition of several titles that were not then moving. The sale was final. The remainder outlet sells by mail as well as through a few specially selected retail outlets. Publisher has no information concerning the remainder outlet’s disposition of these 1,857 books. Publisher has no more hard cover copies.

There is no question that Barres had a cause of action on November 15, 1971 when publisher released the book, assuming for the purposes of this motion that the statement was libelous. See Johnson v. Asbury Park Press, Inc., 14 N. J. Misc. 282 (Sup. Ct. 1936), aff’d 117 N. J. L. 533 (E. & A. 1973). In that case plaintiff moved to strike the defense that the one-year period of limitation for libel enacted by the Legislature on April 30, 1934, L. 1934, c. 98, barred the complaint filed February 25, 1936. The libel was published March 7, 1934 when there was no express statutory period of limitation for libel. The court rejected the argument based on constitutional grounds that the one-year period of limitation could not be applied retroactively. It held that the cause of action arose when the alleged libelous article appeared in the issue of the Asbury Park Press of March 7, 1934, and plaintiff, therefore, had ten months to sue before the new general rule prevented suit. See also, Zuck v. Interstate Publishing Corp., 317 F. 2d 727 (2 Cir. 1963), where, after determining that only New York or New Jersey law could apply, the court held that under New York law the period of limitation commenced to run from the date a magazine was delivered for sale to the public, and said that in the absence of any New Jersey decisions, the period of limitations under N. J. S. A. 2A:l4h-3 did not commence to run at any date earlier than the date of sale to the public.

In New York, as in most other jurisdictions, the statute of limitations for libel actions is unusually short. To fix as the date of legal publication even the time that the offending matter is placed on sale to the public may create a trap for unwary plaintiffs; magazines are often post-dated several weeks or months after the actual date they are placed on sale to the public. To fix the accrual date prior to receipt, by the public of the libelous material, however, is normally to begin the running of the statute of limitations before the time that the offending publication has been brought to the victim’s attention, and, indeed, prior to the occurrence of any harm to his reputation. The result, thus, is an effective shortening of an already short limitation period. Moreover, under the single publication rule, victims of mass publication libel are given but one action in which to recover for all harm produced by a single edition of a newspaper, magazine, or book. The earlier that sole cause of action must be commenced, the greater the likelihood of post-judgment distributions of the offending material for which the victim is denied any relief whatever, [at 731]

The question, then, is what is the nature of the right that Barres had on November 15, 1971.

In Duke of Brunswick v. Harmer, 14 Q. B. 185, 177 Eng. Rep. 75 (1849), the court held that plaintiff was not barred by statute of limitations in bringing an action for libel based on defendant’s sale of a single copy of newspaper printed in 1830 when the sale occurred in 1847. Each sale of the newspaper created a new cause of action, and each repetition of a libel or slander to a person other than the person defamed damages the reputation of plaintiff and gives rise to a new cause of action. See Restatement, Torts, §577 (1938); 1 Harper and James, Law of Torts, §5.16 (1956).

Applying that rule to the facts of this case> Barres would have a cause of action based on each sale that occurred in the year preceding the filing of the complaint on May 31, 1974, i. e., from June 1, 1973. What disposition would he made in respect to sales made after the complaint was filed? What, if any, consideration should be given to the sales ou and before May 30, 1973? What Law is to apply to the sales made in foreign states ? The attempt to solve such problems led to the development of the single publication rule. See Harper and James, supra, and Prosser, supra, where the author of the latter states:

* * s The majority of the American courts, however, have developed, in cases involving venue or the statute of limitations, a “single publication [” ed.] rule, under which an entire edition of a newspaper, magazine or book is treated as only one publication, and the plaintiff is permitted to plead and prove merely a general distribution of the libel and show the extent of the circulation as evidence bearing on the damages. Under this rule the publication has been treated as complete when “the finished product was released by the publisher for sale in accord with trade practice.” * * * [Prosser, op. cit. at 769]

The decisions developing the single publication rule suggest the following reasons for its development: To prevent the constant tolling of the statute of limitations and thereby support the legislative determination for a short period of limitation of libel, Wolfson v. Syracuse Newspapers, Inc., 254 App. Div. 211, 4 N. Y. S. 2d 640 (App. Div. 1938), aff’d per curiam with a strong dissent, 279 N. Y. 716, 18 N. E. 2d 676 (Ct. App. 1939); Gregoire v. G. P. Putnam’s Sons, 298 N. Y. 119, 81 N. E. 2d 45 (Ct. App. 1948); convenience to the parties and courts in consolidating into one action all the damage to plaintiff, Wolfson, supra; Gregoire, supra, and Zuck, supra; also Ogden v. Ass’n of United States Army, 177 F. Supp. 498 (D. C. D. C. 1959).

In Gregoire v. G. P. Putnam's, supra, plaintiff instituted suit on July 2, 1946 against the author and publisher of a book containing an alleged libelous statement. The publisher commenced distribution of the book in November 1941 and thereafter made seven additional printings of the same edition, the last in December 1943. After 1943 all sales were from stock. In the year preceding the filing of the complaint 20 copies were sold in the United States.

The matter for decision by the 'Court of Appeals concerned the following question certified by the Appellate Division:

* * * Do sales from stock by a book publisher of copies of a book containing libelous material constitute republications of the libelous matter, so as to give rise to new causes of action within the meaning of Section 51, subdivision 3, of the Civil Practice Act, where the copies sold are from an impression made and released for wholesale distribution more than one year prior to the dates of such sales?

The Court of Appeals was divided four to three. The majority adopted the single publication rule and said in its opinion:

The rule of Duke of Brunswick v. Harmer, supra — that each delivery to a third person of a defamatory article constituted a new publication of the libel, which in turn gave rise to a new cause of action — had its origin in an era which long antedated the modern process of mass publication and nationwide distribution of printed information. That rule also gave scant heed to the public policy which underlies statutes of limitation, long regarded as “statutes of repose” designed to outlaw stale claims. * * * [81 N. E. 2d at 46-47; citations omitted]

The court noted that the Appellate Division, in certifying the question, had indicated a different rule should apply to books than to newspapers and magazines. The court stated that if there was a cause of action for libel, that cause was subject to the same period of limitation whether in a news-papei’, magazine or book since the technology for printing and distribution was the saxne. It concluded:

* * * Otherwise, although a book containing libelous material may have been the product of but one edition or printing fifty years ago, if, by sale from stock or by display, the publisher continues to make unsold copies of the single publication available to the public today, such conduct would amount to a republication of any libel the book contains and thereby would become actionable. Under such a rule the Statute of Limitation would never expire so long as a copy of such book remained in stock and is made by the publisher the subject of a sale or inspection by the public.
Although it may not be said that the publication and dissemination of books has reached that degree of mass production and widespread distribution now prevalent in fields invaded by newspapers and periodicals, it is our view that the publication of a libelous book, involving styling, printing, binding and those other acts which enable a publisher on a given date to release to the public thousands of copies of a single printing or impression, affords the one libeled a legal basis for only one cause of action which arises when the finished product is released by the publisher for sale in accord with trade practice. [at 48-49; emphasis supplied]

In his dissenting opinion, Judge Desmond said:

* * * Since nothing is so dead as last week’s newspapers, it is not unreasonable to hold that nothing that afterwards is done with them can be deemed a “publication” in law. But a book’s existence is not intended to be, and is not, for any such brief time. The book publisher keeps his stock on his shelves and sends out books as called for. When, a year or two or ten years after first printing, he deliberately puts out new copies of the defamatory writing, how can it be said that he is not, in fact and in law, republishing the libel? And, since the common law is plain and just, and the statute certainly has not changed it, why should we extend to the whole field of books an exception appropriate to periodicals only?

* * * The producer of libelous matter can start the statute running in his favor at anytime by refraining from sending out any more libeling books. The Statute of Limitations is intended as a statute of repose but it is not intended to furnish a license for continued wrongdoing. [81 N. E. 2d at 50-51]

In Ogden v. Ass’n of United States Army, supra, plaintiff on June 25, 1959 sued defendant for alleged libelous statements contained in a book written by defendant and published in November 1955. Defendant moved for summary judgment on the ground that if the single publication rule were applied to determine when the cause of action accrued, the action was barred under the one-year statute of limitation for libel in the District of Columbia. Noting that the issue presented was one of novel impression, Judge Holtzhoff examined the cases concerning newspapers and magazines which developed the single publication rule, and referred to the decision in Gregoire v. G. P. Putnam’s Sons, supra. He also noted that only a minority of states adhered to the English rule exemplified in Duke of Brunswick v. Harmer, supra. The opinion stated:

* * * Books attain a distribution far beyond that likely a hundred years ago. Mass production has entered the printing and publishing field. To say that every sale or delivery of a copy of a publication if it contains defamatory matter, gives rise to a new cause of action may seem logical from a purely technical standpoint, but to adhere to this doctrine would be to sacrifice reality to strict technical logic. Under modern conditions the original common-law rule would give rise to an unnecessary multiplicity of suits and would practically destroy the statute of limitations as a statute of repose in actions for libel. [177 F. Supp. at 500]

That the cause of action that exists on the general release date embraces not only the copies then sent out but all copies that are associated with that date, including those to be released in the future, i. e., all claims related to that issue or edition, is made clear in Zuck v. Interstate Publishing Corp., supra:

New York’s single publication rule as laid down in Wolfson and Gregoire v. G. P. Putnam’s Sons, supra, however, constitutes no mere modification of agency principles in New York jurisprudence. In both cases the application of the rule was held to cut off or “to engross” causes of action for distributions made by the publisher itself after the date of original “publication.” To fix the time of delivery to independent distributors as the time of legal publication under the rule, therefore, would be to burden the rule with a conceptual scheme foreign to its rationale.
We hold that under the New York single publication rule appellant’s cause of action accrued no earlier than December 22, 1960, the date on which the March 1961 issue of “Movie World” went on sale to the public at newsstands throughout the United States. [317 F. 2d at 733]

The courts have held that where there has been a separate edition, or continued massive printing and distribution, after the general release date, there is a cause of action based on the later edition or republication.

In Wheeler v. Dell Publishing Co., 300 F. 2d 372 (7 Cir. 1962), the widow and minor daughter of man shot by police officer appealed from a judgment of dismissal of a libel complaint in favor of the author and publisher of Anatomy of a Murder, entered on grounds that the action was barred by one-year statute of limitation of Illinois under the single publication rule. The book was published in June 1957. In April 1959 the publisher printed the “best seller” in a paperback edition and thereafter made several reprintings of the paperback edition. The Circuit Court of Appeals reversed as to the holding based on the statute of limitations. It said:

There is no need to attempt to distinguish between a reprinting and an edition. The significant factor in deciding against Dell’s contention is the repeating of the defamation. It makes little essential difference to a defamed person whether the material is a new paper-bound edition of an original publication or a new printing of the paperbound, if the defamation is repeated. What matters is the new wound to reputation by the new defamation. A libel is a written slander. Just as each repetition of the slander is actionable, so saying it again in writing is actionable.
The reprintings were not “miscellaneous copies” of the original printing, but were the result of a “conscious act.” Winrod v. Time, Inc., 334 Ill. App. 59, 78 N. E. 2d 708 (1948). The “leading” ease of Gregoire v. G. P. Putnam’s Sons, 298 N. Y. 119, 81 N. E. 2d 45 (1948) is not controlling in Dell’s favor. There, suit was based on a single copy of a book sold a year after first publication. A divided court dismissed the suit. The single book was part of the first printing and is well within the “miscellaneous copies” rule. Single books and miscellaneous copies are part of the original publication. There is no new conscious act. They are like echoes of spoken defamation, [at 373]

In Mack, Miller Candle Co. v. MacMillan Co., 239 App. Div. 738, 269 N. Y. S. 33 (App. Div. 1932), aff’d 266 N. Y. 489, 195 N. E. 167 (Ct. App. 1934), the court held that where book originally published in 1927 was continuously reprinted and distributed through 1931, the then two-year period of limitations of New York had not run when the complaint was filed in 1932. The majority opinion in Gregoire v. G. P. Putnam's Sons, supra, distinguished this case from the single publication rule on the ground that there was republication. See Dodd v. Harper & Brothers, 3 A. D. 2d 548, 162 N. Y. S. 2d 419 (App. Div. 1957) (distribution of 25,000 copies of magazine article reprint considered separate publication from single publication of magazine, but single publication in itself to which one year period of limitation might apply).

Reference to the concept of “no new conscious act” in the quotation from Wheeler, supra, is found in Winrod v. Time, Inc., 334 Ill. App. 59, 78 N. E. 2d 708 (App. Ct. 1948), which held that the sending of copies of magazines to replace those damaged in the mail, to start new subscriptions or to fill special requests, should be treated as “passive” acts within the meaning of the decision in Wolfson v. Syracuse Newspapers, Inc., supra, which had taken the expression from Seelman, The Law of Libel and Slander in New York (1933). The decision in Winrod v. Time, Inc., supra, quoted the following from Seelman:

“The test of whether the article is a republication or a repetition should not depend on an interval of time, or a separate sale but upon the answer to the question. Was- the act of the defendant a conscious independent one? The individual who sends the same letter to different persons at the same or another time, consciously and intentionally and independently does so. Bach separate mailing is a separate conscious act. Bach would then be provable as showing conscious intent. Whereas, in the case of a newspaper, as the circulation is considered one of the chief items of damage, and plaintiff recovers for all the distribution, no conscious intent arises until the defendant consciously as a second edition republishes the article. In each case it is the conscious act which determines. If these simple rules are followed, the plaintiff will be compelled, as he should, to litigate in one action all his claims for damage arising from all libelous publications of the defendant, up to and including the trial, (except libelous publications of a different character arising after the action has been commenced) ; and the question of - malice or intent from repetition of the libel can be submitted to the jury, as it should be, upon the conscious act of republication by the defendant.”
It thus appears that the majority in the Wolfson ease supported their conclusion and reasoning on the theory enunciated in Seelman that only where there is a new edition or reprinting of a certain issue of a newspaper or magazine the oomoious intent of the defendant to republish the libel becomes effective. [78 N. E. 2d at 713]

The decisions after Winrod v. Time, Inc., supra, and the commentary to the Restatement, Torts 2d, Tentative Draft No. 20, § 577A (April 24, 1974), have not used the expressions “passive” and “conscious” acts hut have stated the concept of a single publication in terms suggesting production runs that are related to the general release date.

The authors of Restatement, Torts 2d, Tentative Draft No. 20, § 577A, supra, have suggested the following addition to the Restatement:

■'r sis * *
(3) Any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture, or similar aggregate communication, is a single publication.
(4) As to any single publication,
(a) only one action for damages can be maintained;
(b) all damages suffered in all jurisdictions can be recovered in the one action; and
(c) a judgment for or against the plaintiff upon the substantive merits of any action for damages bars any other action for damages between the same parties in all jurisdictions.
Comment on Subsection (3) :
c. The single publication rule applies also to the issue of any one edition of a newspaper, magazine or book; to any one broadcast over radio or television; to any one exhibition of a motion picture; to any one theatrical performance or other presentation to an audience; and to any similar aggregate communication which reaches n large number of persons at the same time. The rule is justified by the necessity of protecting defendants and the courts from the numerous suits which might be brought for the same words if each person reached by such a large-scale communication could serve as the foundation for a new action. The necessity becomes obvious when it is realized that there are today magazines whose circulation approaches four million, and that a television broadcast may be seen by as many as ten million people.
d. So far as the cases heretofore decided indicate, the single publication rule stated in Subsection (3) does not include separate aggregate publications on different occasions. Thus if the same defamatory statement is published in the morning and evening editions of a newspaper, each edition is a separate single publication, and there are two causes of action. The same is true of a rebroadcast of the defamation over radio or television, or a second run of a motion picture on the same evening. In these cases the publication reaches a new group, and the repetition justifies a new cause of action. The justification for this conclusion usually offered is that in these cases the second publication is intended to and does reach a new group.
At the same time, the single publication rule is obviously to be administered to accomplish its purpose of avoiding multiplicity of suits, as well as harassment of defendants, and possible hardship upon the plaintiff himself. The examples given in Subsection (3) are not in any sense intended as limitations. The printing and distribution of extra copies of the first edition of a book may properly be treated as mere continued circulation of the first edition, and hence as still part of the single publication, if it is done not long after the original publication as soon as the supply is exhausted. If it occurs ten years later, it is indistinguishable from a second edition, and there is a new cause of action.

The conference of Commissioners on the Uniform Laws has also prepared a statute based on the single publication rule. The Uniform Single Publication Act, 9C U. L. A. at p. 173, states in relevant part:

§1. No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one edition of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.
§2. A judgment in any jurisdiction' for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication or exhibition or utterance as described in Section 1 shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication or exhibition or utterance.

Under the principles outlined in the abovementioned decisions, on Fovember 15, 1971 Barres had a right to institute an action for libel to recover damages to his reputation which would encompass, or “engross,” all action taken by publisher and author up to the date of filing of the complaint and thereafter based on the printings up to the date the action was commenced.

The cases concerning books which the court has found and examined give no consideration to the facts posed by the present case, i. 6., a stockpile: of books totaling 1,373 which are selling at the rate of about 300 a year. In Gregoire v. G. P. Putnam’s Sons, supra, the quantity of the stockpile is not disclosed but the sales from seven printings between 1941 and 1943 were at a level of 20 copies a year in the year preceding filing of the complaint. The commentators suggesting the provisions for Restatement, Torts 2d, §577A, supra, indicate that the printing of extra copies close to the first printing and general release date should be treated as part of the cause of action based on the first publication. The decision in Wheeler v. Dell Publishing Co., supra, is based on a paperback edition printed two years after the general release at a time when a first-run feature movie with the same title was being released across the nation. The court treated this as a republication because the re-printings were not simply “miscellaneous copies” of the-original printing.

On these facts, the application of the single publication rule to bar Barres from an action to recover damages from libel leaves publisher free to sell what may, or may not, be libelous material. Indeed, in all situations where the publisher of a book has a quantity on hand, a rigid application of the single publication rule will permit him to continue to sell material which may be libelous, particularly whore as in the case at bar plaintiff cannot learn of the stockpile until discovery is had.

The reasons underlying the single publication rule are consistent with present public policy in Few Jersey, such as the Legislature’s determination for a short period of limitation N. J. S. A. 2A:14 — 3 (one year for libel) and the provisions in the New Jersey courts permitting plaintiff to ioin all causes of action against a defendant in one action. R. 4:27-1.

Nevertheless, some courts recently have refused to adopt the single publication rule because of dangers which they see in it. In Lewis v. Reader’s Digest Ass’n, Inc., Mont., 512 P. 2d 702 (1973), pursuant to procedure provided in the rules of the Supreme Court of Montana, that court, in answering a question certified by the United States District Court for Montana hearing a diversity case, adopted the multiple publication rule. There individual and corporate plaintiffs were residents of Montana engaged in running a “health mine.” In August 1969 Good Housekeeping printed an allegedly libelous article critical of the “health mine” and mailed the issue to Montana subscribers. In January 1970 Reader’s Digest Association printed a condensed version and sent it to subscribers in Montana totaling one-half the families in the state. Defendants were foreign corporations which were not registered to do business and which had no offices or property in Montana. The magazines were printed in other states.

The Supreme Court of Montana said:

* * Generally in cases of multi-state libel, the greatest harm to a person’s reputation will occur in the state of domicile. To promote the underlying purpose of libel laws some courts have seen fit to apply the law of the plaintiff’s domicile. This is a better rule than that which would restrict the plaintiff to the place of printing'. Dale System, Inc. v. Time, Inc., D. C., 116 F. Supp. 527; Fouts v. Fawcett Publications, D. C., 116 F. Supp. 535; Hazlitt v. Fawcett Publications, D. C., 116 F. Supp. 538. This rule has the positive effect of restricting forum shopping by the plaintiff cited as a problem with multi-publication rule. In addition, it would prevent the publishing company from choosing as a place of printing a state with favorable libel laws, [at 705]

The court also noted that under the single publication rule some courts have suspected that an unscrupulous publisher might make a small distribution at a remote place from a person’s domicile to start the period of limitations running and then make a massive distribution later. The person libeled might not sue at the time of the initial publication because of cost and limited damage, and then find himself barred when the massive distribution occurred. These are factors to be considered.

In recent years the Supreme Court of New Jersey has given a broad interpretation to R. 4:4-1 et seq. to establish jurisdiction in the courts of New Jersey. See Avdel Corporation v. Mecure, 58 N. J. 264 (1971), which states:

Our long-arm rule, unlike statutes in some other states, permits service on nonresident defendants subject only to “due process of law.” R. 4:4-4(e). In other words, we will allow' out-of-state service to the uttermost limits permitted by the United States Constitution. See Roland v. Modell’s Shoppers World of Bergen Cty., 92 N. J. Super. 1, 7 (App. Div. 1966). [at 268]

In Buckley v. New York Post Corp., 373 F. 2d 175 (2 Cir. 1967), Judge Friendly held that distribution of an alleged defamatory article in plaintiff’s home state of Connecticut was tortious conduct committed in that state, and defendant was subject to jurisdiction of a court in Connecticut by service under the state’s long-arm statute. He concluded that the single publication rule was not to be used, nor was it its purpose, to deprive a plaintiff defamed in his home state of a privilege to sue there even if the newspaper was printed elsewhere.

To hold that the single-publication rule exempts a publisher of a newspaper or magazine or a broadcaster from a long-arm statute that would otherwise have been applicable would be quite as artificial as the “last event” approach of the first Conflicts Restatement and the separate publication concept of Duke of Brunswick v. Harmer, 14 Q. B. 185, 117 Eng. Rep. 75 (1849), which the new rule was intended to overcome. Elliptical statements that a libel by newspaper is “complete” upon publication, though often accurate enough in their particular context, should not obscure that the purpose of the single publication rule is not to deprive a plaintiff defamed in another state of a privilege to sue there which the legislature had granted generally to persons injured by wrongful conduct wtihin its borders, but rather to protect the defendant •— and the courts — from a multiplicity of suits, an almost endless tolling of the statute of limitations, and diversity in applicable substantive law. [at 179-180]

The court concluded there was no violation of due process of law concepts in holding the long-arm statute applicable to the New York Post.

In respect to the problem of a publisher departing from normal trade practices in releasing publications to establish a defense under the statute of limitations, equity has long recognized that a defendant may be estopped from pleading the statute of limitations if he is guilty of inequitable conduct. Cf. Partrick v. Groves, 115 N. J. Eq. 208 (E. & A. 1933); State v. United States Steel, 22 N. J. 341, pp. 356—359 (1956).

This court concludes that the principles which underlie the single publication rule are in accord with the public policies of this State, and the potential problems referred to above are manageable under existing New Jersey law.

The court finds that the general release date of the book herein was November 15, 19'71; that publisher followed trade practices in the general release of the book and subsequent sales; that the printing of the 2,500 hard cover copies in February 1972 was sufficiently close to the first printing to be considered as part of it and not a second publication or a republieation; and that the cause of action for damages for libel which Barres had on November 15, 1971 embraced or engrossed said 2,500 copies.

The court further finds that the bulk sale in August 1973 to a remainder outlet was not the equivalent of a republieation but a recognition by publisher that the book had in that form come to the end of its circulation. This act was also performed in accordance with trade practice.

However, there are facts present in this case which distinguish it from any examined by the court. By reason of the default of author, Barres may establish and obtain judgment in his proof action that the material complained of is libelous. This court does not intend to suggest what is proper to the court which may hear that action, but notes there are decisions suggesting that author in such an action may not plead the statute of limitations, for it is an affirmative defense. See Perry v. Crunden, 79 N. J. Super. 285 (Cty. Ct. 1963). Under such circumstances Barres may recover a money judgment on the basis that the offensive material is libelous. Whether Barres will be able to collect the judgment is not now known.

Furthermore, publisher will still he filling orders for the book if the single publication rule is applied to bar all relief against it. As the cases have noted, the single publication rule has been developed by the courts and should not be applied mechanically to produce results at variance with broader purposes of the law such, as here, protection of reputation.

Since the abolition of the Star Chamber Court, the courts have refused to issue injunctions to prevent the circulation of alleged libels or slanders. They have done this to avoid interference with free speech and the right of defendants to have juries pass on the question of whether the material is libelous or slanderous. The courts have also felt that the sanction of civil damages, and the criminal penalties, for libel or slander are sufficient deterrents to protect reputation. See Kwass v. Kersey, 139 W. Va. 497, 81 S. E. 2d 237, 47 A. L. R. 2d 695 (Sup. Ct. 1954). However, some courts have said that if a plaintiff in an action for personal defamation recovers a judgment on the ground that the material complained of is libelous, then such plaintiff might be entitled to an injunction against further circulation of the same material in order to avoid a multiplicity of suits for damages. See the dictum in Wolf v. Harris, 267 Mo. 405, 184 S. W. 1139 (Sup. Ct. 1916) where the court reversed the granting of an injunction before trial to restrain circulation of printed matter about a physician, stating:

* * * Or, even if plaintiff had joined a count at law for . damages for libel with a count for injunction on the theory of a threatened continuance of the false publication, and had alleged and proved, either the inadequacy of remedy by reason of the libeler’s insolvency, or the legal necessity of the remedy sought in order to avoid a multiplicity of suits, the court nisi, upon a finding by the jury of the libel, and by the court of the said necessary facts on the equity side, could have enjoined continued publication thereof. Since, however, there is in the instant case neither conspiracy nor threats to others, nor a verdict of a jury upon the fact of libel, we are constrained to say that this judgment cannot stand.
Let it be reversed. All concur, [at 1142]

See, also the dicta in Birnbaum v. Wilcox-Gay Corp., 17 F. R. D. 133, 139-140 (N. D. Ill. 1953); Ryan v. Warrensburg, 342 Mo. 761, 117 S. W. 2d 303 (Sup. Ct. 1938); Flint v. Hutchinson Smoke Burner Co., 110 Mo. 492, 19 S. W. 804 (1892); Pound, “Equitable Relief Against Defamation and Injuries to Personalty,” 29 Harv. L. Rev. 640 (1916).

As noted by Judge Desmond in his dissent in Gregoire v. G. P. Putnam’s Sons, supra, “The book publisher keeps his stock on his shelves and sends out books as called for * * *” (81 N. E. 2d at 50), and as stated in Wheeler v. Dell Publishing Co., supra, such books are not simply “* * * like echoes of spoken defamation,” (300 F. 2d at 375). The facts in this case indicate that circulation is occurring and may continue even if a judgment is entered on the basis that the material is libelous. This court does not know whether a judgment against author is realizable. The decision in Kwass v. Kersey, supra, (Annotation 47 A. L. R. 2d 715 (1956)), indicates the need for caution in considering granting of injunctions in respect to libel or slander. In the development of the single publication rule, particularly in respect to a stockpile of books that may circulate for years, consideration should be given to the application of equitable principles where appropriate to complete the relief envisioned by those developing the rule, i. e., resolution of all matters in one action.

Eor the reasons stated previously, the court grants partial summary judgment in favor of publisher based on the one-year statute of limitations as to the claim for damages based on libel, without prejudice to Barres seeking leave to amend the complaint for equitable relief in the event that Barres is able to obtain a judgment against author on the ground that the disputed material is libelous, and without prejudice to publisher filing an answer asserting any defenses to any relief sought by Barres, including defenses based on truth, privilege (including fair comment) and lack of a right to or need for an injunction. In view of the brevity of the material complained of, publisher may consider whether the need for an injunction may be defeated by deletion of the material.

To decide otherwise may result in Barres obtaining a judgment based on a determination that the material is libelous, while publisher would remain free to circulate such material. Although this court does not now express an opinion as to the merits of any possible claim by Barres for equitable relief, the result reached herein would leave the court hearing the matter free to determine what relief, if any, should be granted as against publisher in order to achieve a result consistent with any adjudication pertaining to author, and not as suggested by Judge Desmond in Gregoire v. G. P. Putnam’s Sons, supra, 81 N. E. 2d at 51, granting “a license for continued wrongdoing.”

Against this consideration the court hearing the matter must weigh the maxim that equity follows the law and will normally deny relief where no action at law may be maintained. Cf. Hedges v. Dixon County, 150 U. S. 182, 14 S. Ct. 71, 37 L.Ed. 1044 (1893); Giberson v. First National Bank of Spring Lake, 100 N. J. Eq. 502 (Ch. 1927), Mullany v. Mullany, 4 N. J. Eq. 16 (Ch. 1837). As stated in 2 Pomeroy, Equity Jurisprudence (5th ed. 1941), § 425:

* * * As a practical rule [that equity follows the law], and not a mere verbal theory, it is wholly restrictive in its operation, and its only object is to keep the jurisdiction of equity from overstepping the boundaries which have been established by the prior course of adjudication. * * Equity follows the law, * * * whether contained in the common or in the statute law. * * * [at 188]

It is further stated therein that:

* * * [C]ourts of equity frequently refuse relief where it appears that the complainant has delayed seeking the aid of the court for a period comparable to the one appearing in the statute of limitations. * * * [at 193]

It is for the court hearing the matter to resolve these issues.

Submit appropriate order.

       This ground was abandoned at the first hearing on the motion. Author failed to enter an appearance or answer. Default was entered as to him. Author was a resident of Newark and was served in Newark.

       The court invited supplemental briefs on the question of whether any problem existed under conflict of laws. Neither plaintiff nor defendant contends that any law other than the law of New Jersey applies. There is no problem of jurisdiction, since author and publisher were served in New Jersey. Barres and author are residents of New Jersey. Publisher distributed the book in New Jersey from its warehouse in New Jersey and advertised the book in New Jersey newspapers. The books concerned events in New Jersy and Barres as a public official in New Jersey.
      The court concludes that no other state has a more substantial interest in this matter than New Jersey.
      This is consistent with the position of Restatement, Conflict of Laws 2d, § 150 at 455 (1971), which states:
      (1) The rights and Habilites that arise from defamatory matter in any one edition of a book or newspaper, or any one broadcast over radio or television, exhibition of a motion picture, or similar aggregate communication are determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
      (2) When a natural person claims that he has been defamed by an aggregate communication, the state of most significant relationship will usually be the state where the person was domiciled at the time, if the matter complained of was published in that state. The court has not given any further consideration to the problem
      under the conflict of law principles. Cf. Zuch v. Interstate Publishing Corp., 317 F. 2d 727 (2 Cir. 1963) ; Hartmann v. Time, Inc., 166 F. 2d 127 (3 Cir. 1947) ; Cassius v. Mortimer, 161 F. Supp. 74 (S. D. N. Y. 1957) ; 1 Harper & James, Law of Torts, § 5.16.

       At least the following states have adopted the statute: Arizona. California, Idaho, Illinois, New Mexico, North Dakota, Panama Canal Zone and Pennsylvania.

      “The Question deals with whether or not the defendants in this case are subject to the jurisdiction of [the Montana federal court] because ‘ * * * The cause of action [is] * * * one which arises put of, or results from the activities of the defendant within the forum * * * ’ Brecht v. RMK-BRJ, 24 St. Reptr. 761, 763 (Dist. of Mont. 1967); L. B. [D.] Reeder Contractors of Arizona v. Higgins Industries, Inc., 265 F. 2d 768 (9th Cir. 1959) ; Rule 4(e), Federal Rules of Civil Procedure; and Rule 4B(1), Montana Rules of Civil Procedure. If Montana follows what is defined below as the multi-publication rule, the cause of action in this case arose upon the arrival and sale of the defendants’ periodicals in Montana. If, on the other hand, Montana follows what is defined below as the single publication rule, one cause of action arose upon the first publication or printing of the articles, and no other cause of action can arise out of the publication of the articles.” [512 P. 2d at 703-704]

       An early ease establishing this principle is Brandreth v. Lance, 8 Paige (N. Y.) 24 decided in 1839, and cited in Kwass v. Kersey, 139 W. Va. 497, 81 S. E. 2d 237, 243, 47 A. L. R. 2d 695, 704 (Sup. Ct. 1954). The following appears in the latter decision, with the quotation coming from Brandreth, supra:
      “This bill presents the simple case of an application to the court of chancery to restrain the publication of a pamphlet which purports to be a literary work, undoubtedly a tale of fiction, on the ground that it is intended as a libel upon the complainant. The court of star chamber in England, once exercised the power of cutting off the ears, branding the foreheads, and slitting the noses of the libellers of important personages. (Hudson’s Star Chamber, 2 Collect Jurid 224.) And, as an incident to such a jurisdiction, that court was undoubtedly in the habit of restraining the publication of such libels by injunction. Since that court was abolished, however, I believe there is but one case upon record in which any court, either in this country or in England, has attempted, by an injunction or order of the court, to prohibit or restrain the publication of a libel, as such, in anticipation. In the case to which I allude the notorious Scroggs, chief justice of the court of king’s bench, and his associates, decided that they might be safely entrusted with the power of prohibiting and suppressing such publications as they might deem to be libellous.” The House of Commons of the Parliament of Great Britian impeached Scroggs for the exercise of such power. [81 S. E. 2d at 243, 47 A. L. R. 2d at 704]. But see Pound, Equitable Relief Against Defamation and Injuries to Personalty, 29 Harv. L. Rev. 640, 650 (1916) where historical accuracy of foregoing is questioned.


source: Caselaw Access Project

author: Rosenberg, J. S. C.

license: Public Domain

text:
    THOMAS F. X. MAGURA, PLAINTIFF, v. ELIZABETH VAN DUYNE SMITH, LEONARD SIMON, PAUL P. GENUALDO, BIANCA HANCOCK, J. GEORGE AUPPERLEE AND JOHN TROMMELEN, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 4, 1974.

      Mr. William, J. Bate for plaintiff.

      Mr. Jerome A. Vogel for defendant Trommelen (Messrs. Jeffer, Walter, Tierney, DeKorte, Hopkinson and Vogel, attorneys; Mr. Herman Jeffer on the brief).
   Rosenberg, J. S. C.

Plaintiff in the instant matter is the unsuccessful candidate for mayor of Prospect Park. Defendants include the superintendent of elections of Passaic County, members of the Passaic County board of elections and the successful mayoral candidate. By complaint filed November 12, 1974 plaintiff seeks to have set aside the election for mayor of Prospect Park held on November 5, 1974 and to have the court declare a new election. Argument was heard on November 27, 1974 on the return of an order to show cause. At that time this court determined that the matter should be set down for a plenary hearing pursuant to R. 4: 67-5. Such a hearing was held on December 4, 1974.

The basic facts giving rise to plaintiff’s challenge are not in dispute. Prospect Park, the smallest municipality in Passaic County, was comprised of four election districts on November 5, 1974, each district containing one polling place. Por a period of approximately %y2 hours commencing at 7 a.m., the time at which the polls were to open, voters in district three were unable to cast ballots because of a malfunction in the only voting machine at the polling place. Plaintiff avers in an uncontradicted affidavit that when this came to Ms attention at approximately 8:45 a.m. he telephoned defendant Smith, the superintendent of elections, and requested an extension of the hours of voting in the third district to compensate for the time lost while the polling place was closed. Mrs. Smith refused this request. Thereafter the machine was repaired and the polling place remained open until 8 p.m. A count of the total vote for all districts showed defendant Trommelen winning the election by a vote of 929 to 911. These figures were confirmed on a recount. It is plaintiff’s contention that as a result of the closing of the third district polling place a number of voters were turned away from the polls and were unable to return later in the day because of other committments. In view of the closeness of the vote he claims that the inability of these voters to cast their ballots cost him the eleiction. He thus contests the election and seeks a new one.

In N. J. S. A. 19 :29-l el seq. the Legislature has provided a comprehensive scheme by which election contests may be initiated and pursued. Jurisdiction of this court in such matters is founded in N. J. 8. A. 19 :29-2. Procedure governing commencement, trial and disposition of an election contest is governed by N. J. 8. A. 19:29-2 to 19:29-14. Grounds for such a contest are laid out in N. J. 8. A. 19: 29-1. With jurisdiction established the court must first determine whether sufficient grounds exist upon which plaintiff can base a contest. This requires consideration of the instant facts in view of the requirements of N. J. 8. A. 19 :29 — 1.

N. J. 8. A. 19:29-l provides a number of alternative grounds upon which the outcome of an election or nomination may be contested. Two provisions of that section are applicable to the instant ease:

19:29-1. Grounds stated
The nomination of election of any person to any public office or party position, or the approval or disapproval of any public proposition, may be contested by the voters of this State or of any of its political subdivisions affected thereby upon 1 or more of the following grounds:
a. Malconduct, fraud or corruption on the part of the members of any district board, or of any members of the board of county canvassers, sufficient to challenge the result;
e. When illegal votes have been received, or legal votes rejected at the polls sufficient to change the result;
* # *

In this case plaintiff does not allege any fraud, corruption or illegality on behalf of any of the defendants. Rather, his argument is that the breakdown of the machine in the third district and the resulting shutdown of the polls there eonsti-tuted an irregularity meriting declaration of a new election. There appears to be no reported ease in this State in which an election contest has been based on the mechanical breakdown of a voting machine and a subsequent disruption in balloting. Therefore this ease is one of first impression.

Applying the standards of N. J. 8. A. 19:29-l to the present situation indicates a number of potential grounds upon which plaintiff’s action may rest. Since the complaint is founded on the fact that certain voters allegedly were denied their right to vote, subsection (e) appears to be on point. The effect of the language used therein is to open to contest an election where illegal votes are cast or bona fide votes are “rejected.” A proper reading of this passage encompasses the present situation in which various legal voters were turned away from the polls because of a mechanical breakdown. The statute does not define the term “rejected” nor does it limit its application to any particular circumstances. Thus it is properly read to include any situation in which qualified voters are denied access to the polls including a denial because of shutdown of a voting machine.

N. J. 8. A. 19:29-1 (a) affords a second basis for plaintiff’s action in that there appears to have been “malconduct” on the part of election officials in their handling of the Prospect Park election. This position takes an expansive view of “malconduet” interpreting that term to mean a failure -to follow affirmative statutory requirements and not “bad” or illicit conduct. Such a reading was adopted in Richards v. Barone, 114 N. J. Super. 243 (Law Div. 1971), where the court observed that failure by election officials to publish a public question in accordance with statute could be construed as “malconduet” for the purpose of supporting an election contest. Under N. J. 8. A. 19:15-2 the election board is under an obligation to open the polls at 7 a.m., close them at 8 p.m. and keep them open at all times between those hours. This clearly was not done in the third district. Also, the fact that the machine was inoperative at 7 a.m. when voting was to commence leads to the inescapable con-elusion that the machine was not in proper working order before the polls opened. This is in violation of the express mandate of N. J. 8. A. 19 :48-6 that "The county board of elections or the superintendent of elections * * * shall have the machine or machines * * * at the proper polling place * * * in good and proper order for use at such election.” Such failures comprise serious deviations from the standards of conduct set out by the Legislature for election officials, and therefore comprise "malconduct” on their part.

In addition to the requirement that voting machines be put in good working order, the statute also provides procedures in the event that a machine should malfunction. N. J. 8. A. 19:48-7 is designed to avoid the precise situation encountered in the instant case where voters were unable to cast their ballots:

19:48-7 Voting machine out of order
If any voting machine being used in any election district shall, during the time the polls are open, become damaged so as to render it inoperative in whole or in part, the election officers shall immediately give notice thereof to the county board of elections or the superintendent of elections or the municipal clerk, as the ease may be, having custody of voting machines, and such county board of elections or such superintendent of elections or such municipal clerk, as the case may be, shall cause any person or persons employed or appointed pursuant to section 19:48-6 of this Title to substitute a machine in perfect mechanical order for the damaged machine. At the close of the polls the records of both machines shall be taken and the votes shown on their counters shall be added together in ascertaining and determining the results of the election. Unofficial ballots made as nearly as possible in the form of the official ballot may be used, received by the election officers and placed by them in a ballot box in such case to be provided as now required by law, and counted with the votes registered on the voting machines. The result shall be declared the same as though there had been no accident to the voting machine. The ballots thus voted shall be preserved and returned as herein directed with a certificate or statement setting forth how and why the same were voted.

Both the language and spirit of this section indicates an attempt by the Legislature to provide a reasonably prompt and efficient method for dealing with the unforeseen but inevitable breakdown of voting machines. Perhaps the most distressing aspect of the situation which occurred in Prospect Park was the failure of Passaic County officials to effectively cope with the machine’s malfunction once it arose. The language of the statute is mandatory in directing that a working machine be substituted for the inoperative one. Speedy repair of the damaged machine would also fall within the mandatory language of the section, but repair some two hours after the malfunction was noted clearly is unsatisfactory. As for the use of unofficial ballots, although the language authorizing their use is discretionary, they would appear to offer an economical and efficient manner of coping with unexpected mechanical troubles like those experienced here. This is particularly true in light of the required printing of facsimile sample ballots per N. J. 8. A. 19 :1L-21 ei seq. which seem well suited for emergency purposes and would be readily obtainable for such use. It does not seem unreasonable to charge election officials with a duty to anticipate the breakdown of voting machines and adequately plan for such a contingency. There is no question but that defendant officials did not do that here. A desirable solution may be for the Legislature to make mandatory the availability of unofficial ballots wherever voting machines are used. In any event, the conduct of officials in coping with the problem once it arose constituted “malconduet” sufficient upon which to ground an election contest.

With the grounds for plaintiff’s contest established the question becomes whether the instant facts are compelling enough to merit the relief sought. The standard of proof to be borne by the contestant is laid out in N. J. 8. A. 19:29-1(a) and 19:29-l(e) as evidence “sufficient to challenge the result” and “sufficient to change the result” respectively. In earlier cases involving election contests this language has been interpreted to require a definitive showing that the number of votes irregularly cast or rejected was sufficient to have altered the outcome of the election. Application of Murphy, 101 N. J. Super. 163 (App. Div. 1968); In re Hunt, 15 N. J. Misc. 331, 191 A. 437 (Cir. Ct. 1937); Lehlbach v. Haynes, 54 N. J. L. 77 (Sup. Ct. 1891). Applying this standard to the instant ease, since the margin of victory for Trommelen was 18 votes, plaintiff must prove that at least that many voters were frustrated in their access to the polls.

Consideration of plaintiff’s proofs shows that he has failed to sustain his burden. At the time he filed his complaint plaintiff submitted two affidavits, one from a voter who averred that he was turned away from the polls while the machine was inoperative and was unable to return to vote later in the day because of prior committments, and the other from a poll worker who alleged that "dozens of people” came to the district three polling place to vote but were unable to do so, and that to the best of her recollection "many of those who wanted to vote but could not did not return to vote later in the 'day.” Largely because of the assertion in this second affidavit the plenary hearing was set down in order to give plaintiff leave to produce proof of the "many” disgruntled voters alluded to. At the time of the hearing plaintiff’s counsel represented to the court that only three voters in addition to the first affiant could be located who were turned away and were unable to return. Even giving plaintiff’s proof the most indulgent treatment it is clear that he has failed to sustain his burden. As regrettable as the conduct of the election officials may have been in dealing with the machine breakdown, in light of the evidence offered it can only be viewed as the equivalent of harmless error. Since it can not be said that the result of the election contravened or thwarted a free expression of the popular will the election of defendant Trommelen must stand and plaintiff’s contest must fail. Wene v. Meyner, 13 N. J. 185, 196 (1953); Sharrock v. Keansburg, 15 N. J. Super. 11, 17 (App. Div. 1951).

The complaint is dismissed.


author: Morton I. Greenberg, J. S. C.

text:
    JEANETTE ZYGMANIAK, INDIVIDUALLY, AND AS ADMINISTRATRIX AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF GEORGE ZYGMANIAK, DECEASED, PLAINTIFF, v. KAWASAKI MOTORS CORP. U. S. A., A DELAWARE CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    December 4, 1974.

      Mr. Robert N. Wilentz lor plaintiff (Messrs. Wilentz, Goldman and Spitzer, attorneys).

      Mr. John I. Lisowski for defendant (Messrs. Morgan, Melhuish, Monaghan, McCoid and Spielvogel, attorneys).
   Morton I. Greenberg, J. S. C.

Plaintiff, individually and as administratrix and administratrix ad prosequendum of the estate of her husband George Zygmaniak, brings suit against Kawasaki Motors Corp. U.S.A. charging that defects in a motorcycle manufactured by Kawasaki allegedly caused decedent to lose control of the vehicle on June 17, 1973 and to be grievously injured. Plaintiff asserts survivorship (N. J. S. A. 2A:15-3) and wrongful death actions (N. J. S. A. 2A:31-1). The gravamen of the wrongful death claim is that decedent’s injuries were so extreme and permanent that at his request his brother, Lester Zygmaniak, shot him on June 20, 1973 with a sawed-off shotgun, thus causing his death on June 22, 1973. Defendant now moves for partial summary judgment seeking a dismissal of the wrongful death count on the grounds that defendant had no duty to control Lester Zygmaniak and thereby protect decedent from him, and that decedent’s death was as a matter of law not proximately caused by the alleged defects. There is no suggestion that Lester’s action in killing his brother was motivated other than by the injuries and entreaties of decedent. The court has been advised that Lester was indicted for murder but acquitted by reason of insanity temporarily existing at the time of the shooting. Disposition of this motion compels the court to make no finding of Lester’s mental state, for the applicable standard only requires a determination as to the existence of a dispute as to a material fact, so that if the same should be resolved in favor of plaintiff, defendant would not be entitled to a judgment as a matter of law. See Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67 (1954).

In Goldberg v. Housing Authority of Newark, 38 N. J. 578 (1962), the Supreme Court, dealing with an effort of plaintiff to impose a duty on the authority to supply police protection for the benefit of its residents and visitors, pointed out that liability required a showing of both foreseeability and a violation of duty. In terms of foreseeability the court indicated that criminal conduct was foreseeable in many situations but that the proposed duty could not be imposed under the circumstances shown and thus there was no liability on the authority for a criminal assault bjr a third party. Goldberg is instructive as to a method of analysis on disposition of this motion as it teaches that the court must determine whether a jury might be allowed to find in the wrongful death action that defendant violated a duty owed decedent. It follows that consideration is necessary of whether the duty relates to the condition of the motorcycle or protection against the action of the brother. Defendant argues that since the motion is directed to the wrongful death and not the survivorship aspect of the complaint the court should isolate the immediate cause of death and, there obviously being no duty of defendant to guard against the shooting, grant the motion.

But the approach of defendant would invite a legal regression, for liability is frequently imposed for consequences not controllable by a defendant in fact or in law happening both before and after the violation of a duty owed some person. Thus, the law defines the duty owed as relating to a risk of harm and not an obligation to guard against preexisting and subsequently occurring acts which aggravate what would otherwise be the less severe consequences of a tort or breach of warranty. The state of the law is apparent from cases holding that a wrongdoer is liable for all harm caused by his wrongful act, even though it is increased by an unknown physical condition which could not have been anticipated or discovered prior to the wrongdoing, Dalton v. Gesser, 72 N. J. Super. 100 (App. Div. 1962); Hahn v. Delaware, L. and W. R.R. Co., 92 N. J. L. 277 (Sup. Ct. 1918), aff’d per curiam, 93 N. J. L. 463 (E. & A. 1919); or by superimposed medical malpractice, Knutsen v. Brown, 96 N. J. Super. 229 (App. Div. 1967). Goldberg is thus distinguishable from the case at bar since the duty sought to be required there, police protection, could not as a matter of judicial policy be imposed and the violation thereof in itself could cause no harm since the subsequent criminal conduct of the third party was prerequisite to injury. Quite distinguishably, plaintiff herein asserts a violation related to the condition of the motorcycle which, if established, unquestionably caused severe harm. Since it coitld hardly be argued that any Goldberg-stjle policy considerations forbid imposing a duty on a manufacturer with respect to a product placed in commerce, it follows that defendant’s motion may not be granted on the basis of the absence of duty. See Scanlon v. General Motors Corp., 65 N. J. 582 (1974).

The more substantial question raised is whether the court must rule as a matter of law that the alleged defect did not proximately cause the death, but rather that the death was attributable to an intervening act. Consideration of this proposition immediately lajus bare its basic implicit inequity. Damages are ordinarily measured by comparing the condition a plaintiff would have been in had a defendant not been negligent and thus includes compensation for bodily injuries; pain and suffering, past, present and future; the effect of injuries upon health depending on their degree and probable duration; permanent disability; medical expenses, both past and future, reasonably necessary to cure or alleviate a plaintiff’s injuries and disability, and all other pecuniary losses suffered or to be suffered in the future as the result of a plaintiff’s inability to engage in his usual occupation. Gleitman v. Cosgrove, 49 N. J. 22 (1967); Thedbold v. Angelos, 40 N. J. 295 (1963). While undoubtedly the death of George Ztygmanialc materially eliminated certain aspects of these damages relating to future medical bills and pain and suffering, the item of future pecuniary loss of earnings must, for purposes of this motion, be considered not affected by the death because the allegations of the seriousness of his injuries leading to permanent disability are supportable. Thus, acceptance of defendant’s argument would result in this defendant being in a better position should it be held liable than if the intervening act had not occurred. But from the viewpoint of plaintiff there would be no offsetting gain since the future pecuniary loss of earnings would have been similar without the death. The fact that the recovery, in the absence of death, would have belonged to George Zygmaniak rather than the statutory beneficiaries designated by the wrongful death statute, makes no difference, for the latter persons are simply persons dependent on decedent or his heirs at law who thus would likely have benefited by his inter vivos pecuniary recovery. N. J. S. A. 2A:31-4. Thus, extinguishment of the right to recover future loss of earnings would advantage defendant, to the inequitable detriment of plaintiff.

This injustice could substantially be eliminated by a different computation of damages under the survivorship statute. N. J. 8. A. 2A :15-3. It is implicit thereunder that if a plaintiff dies from legally unrelated causes prior to a trial but after the injury, the Jury will only compute damages for the time of his actual life. Auer v. Sinclair Refining Co., 103 N. J. L. 372 (E. & A. 1927); Budd v. Erie Lackawanna R.R. Co., 98 N. J. Super. 47 (App. Div. 1967). Elimination from the consideration of the Jury of the subsequent death attributable in fact but not in law to defendant’s conduct for purposes of assessing loss of earnings beyond the actual death would tend to overcome the inequity and perhaps generate factual problems no more speculative than those in a wrongful death action since in either ease the Jury would consider decedent’s hypothetical life expectancy. But such a result is not desirable because it allocates the recovery for loss of earnings to the estate of decedent and not to the beneficiaries designated by the wrongful death statute and thus Legislatively preferred. The heirs or devisees of the estate may not necessarily be the persons dependent on the beneficiary during his lifetime or those designated by the wrongful death statute. See Soden v. Trenton and Mercer County Traction Corp., 101 N. J. L. 393 (E. & A. 1925).

Defendant’s position further suffers in that it is not in accord with the appellate decisions in the State. In Rappaport v. Nichols, 31 N. J. 188 (1959), the Supreme Court held that a jury question was presented by a claim that a tavern wrongfully sold alcoholic beverages to a minor who caused an injury to a third party by reason thereof. The court declared:

* *' * The defendants contend that, assuming their conduct was unlawful and negligent as charged in the complaint, it was nevertheless not the proximate cause of the injuries suffered. But a tortfeasor is generally held answerable for the injuries which result in the ordinary eourse of events from his negligence and it is generally sufficient if his negligent conduct was a substantial factor in bringing about the injuries. * * * The fact that there were also intervening causes which were foreseeable or were normal incidents of risk created would not relieve the tortfeasor of liability. * * * Ordinarily these questions of proximate and intervening cause are left to the jury for is factual determination. * * * [at 203]

In Picco v. Fords Diner, Inc., 113 N. J. Super. 465 (1971), the Appellate Division held that a jury could reasonably conclude that a diner had an obligation to provide illumination in its parking areas for the protection of its patrons, and its failure to do so could generate liability for damages suffered by one in a criminal assault. The Appellate Division in Zinck v. Whelan, 120 N. J. Super. 432 (1972), announced that a defendant who left keys in an automobile and thereby facilitated the theft could be liable to persons injured three days after and 50 miles away from where defendant had left the car, even though the car had been taken by a thief and was thus driven without his consent. The basis of liability was defendant’s own negligence rather than vicarious responsibility for the driver. The court indicated that the proximate cause issue was for the jury. In Seidel v. Greenberg, 108 N. J. Super. 248 (Law Div. 1969), in a nonjury trial the court imposed liability on defendants guilty of arson as a result of which plaintiff was wrongfully charged with the crime.

If the defendants in Rappaport, Picco, Zinck and Seidel were not exonerated as a matter of law, it is difficult to comprehend why a different result should be reached for defendant herein. Indeed, defendant’s position is weaker than that of the defendants in any of these cases, since its breach of duty, if it be shown at trial, indisputably caused proximately related injuries, while in Rappaport, Picco, Zinck and Seidel the existence of any injury proximately attributable to the breach of duty was reasonably disputed as a matter of law. Thus, this court is precluded on this motion from holding that a person with severe injuries will seek death so rarely that the shooting in this incident must be deemed an intervening cause. In fact, this case is similar to the settled law imposing liability on a prime tortfeasor for the subsequent medical malpractice. See Knutsen v. Brown, supra.

Brenner v. Public Service Production Co., 110 N.J.L. 347 (E. & A. 1932), and Genovay v. Fox, 29 N. J. 436 (1959), rev’g 50 N. J. Super. 538 (App. Div. 1958), are not contrary to the holding herein. In Brenner plaintifE’s decedent committed suicide some months after an accident. The Court of Errors and Appeals sustained a nonsuit since there was nothing to negative a reasonable inference that the cause of the suicide was not related to defendant’s actions. The fact situation at bar is different because on this motion the court cannot say that a reasonable inference that the death was unrelated to defendant’s product may be drawn. In Genovay v. Fox a patron in a tavern sought to impose liability on a bar owner for engaging conduct designed to incite resistance to a bandit who then injured plaintiff. The court held that a finding of such by the jury would be based on pure speculation. Contrariwise, it cannot be said that a finding that George Zygmaniak was shot because of his injuries would be predicated on an illogical inference.

The court is aware that elsewhere the analogous problem of suicide following an accident is resolvable by reference to whether the defendant’s conduct was negligent or was intentionally wrongful and whether the suicide was the result of an irresistible impulse. Such an approach might lead to a different result on this motion. See Annotation, 11 A.L.R. 2d 751 (1950); Comment, 15 Rutgers L. Rev. 134 (1960). The court believes, however, that this motion should be decided on the applicable principles announced by our appellate courts and which therefore bind a trial judge. Further, it is difficult to understand why in this action seeking compensatory damages such considerations and special rules should be adopted. The approach of the court reflects an emphasis on the reality of the cause and effect of the death rather than on a label characterizing conduct and embodies a realization that on this motion the court should consider the death as having limited rather than expanded the otherwise appropriate inter vivos damages. Heavner v. Uniroyal, Inc., 63 N. J. 130, 142-158 (1973). On a summary judgment motion this is not a case in which the damages must be considered expanded rather than contracted by a voluntary suicide.

For the foregoing reasons the motion for partial summary judgment is denied.

      A count of the complaint alleges that the vehicle was intrinsically dangerous but for purposes of this motion this count may be considered as ap allegation of design defect.


author: Bischoff, J. A. D.

text:
    MERRY HEART NURSING AND CONVALESCENT HOME, INC., PLAINTIFF-APPELLANT, v. WILLIAM J. DOUGHERTY, ACTING COMMISSIONER, N. J. STATE DEPARTMENT OF HEALTH; HEALTH CARE ADMINISTRATION BOARD OF THE DEPARTMENT OF HEALTH, STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 18, 1974 —
    Decided December 4, 1974.

      Before Judges Leonard, Seidman and Bisci-ioee.

      Mr. Leonard A. Coyle argued the cause for appellant.

      Mr. Jonathan Weiner, Deputy Attorney General, argued the cause for respondents (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the Court was delivered by

Bischoff, J. A. D.

Plaintiff-appellant operates a private nursing home in Suceasunna, I’oxbury Township, Morris County, and has a licensed capacity of 61 beds. On March 21, 1972 plaintiff submitted an application to the New Jersey Department of Health pursuant to N. J. 8. A. 26 :2H-10, seeking a certificate of need granting permission to add 34 beds to its facilities. By letter dated August 15, 1972 the Commissioner of the Department of Health informed plaintiff he was recommending to the Health Care Administration Board (BCAB) that this application be denied for the reason that there was no need for additional beds of this type in the region where plaintiff’s facilities were located. Plaintiff requested and was granted a hearing pursuant to N. J. 8. A. 26 :2H-9, which was held February 6, 1974. The only issue litigated at the hearing was whether there was a need for additional beds in plaintiff’s region.

The record of the hearing indicates that a state plan for health care services pursuant to N. J. 8. A. 26 :2H — 1 et seq. was published in the New Jersey Register March 9, 1972. This plan contained data compiled through March 31, 1971. Prior to 1973 the plan used for the purposes of this statute was the one developed for participation in the Hill-Burton Program pursuant to 42 U. 8. G. A. § 291d. The plan was reviewed annually thereafter pursuant to 42 U. S. G. A. § 291d(a) (12). The plan published on March 9, 1972 showed a need in plaintiff’s region for 336 additional beds of the type which it proposed to furnish. The plan was thereafter updated annually, the first update being June 29, 1972 (after plaintiff’s application was filed). However, this update was not published in the New Jersey Register as was the original plan. From the time of the compilation of the first plan to the update of «Tune 29, 1972, 460 beds had been added in plaintiff’s region, resulting in an excess of available beds and eliminating the need for the construction of additional facilities. On objection to this evidence the hearing officer ruled that plaintiff’s petition for a certificate of need was to be judged on tbe basis of statistics reflected in tbe plan published on March 9, 1972, and not on the basis of unpublished updated information available as of June 29, 1972. He accordingly recommended to the Commissioner of Health that a certificate of need be issued to plaintiff.

Respondent moved before the HCAB to vacate the recommendations of the hearing officer and for a remand to the hearing officer to permit introduction into evidence of statistics developed after the publication of the plan in March 1972. Respondent made a proffer of facts to the HCAB which it sought to introduce on the remand. This proffer included the following: that on June 29, 1972 the Department’s Office of Health Facilities Services Board updated the figures in the 1971 state plan; that “these updated figures on available services and facilities, their usage and other numerical information provided in the state plan were sent to regional planning agencies having the responsibility of reviewing certificate of need applications at the local level; “that these figures were available to any member of the public wishing to read them, in compliance with N. J. 8. A. 47:1A-1 et seq., the Right to Know Act; that plaintiff’s region “now had an excess of 128 more skilled nursing beds than necessary”; that several planning bodies had recommended that plaintiff not be granted a certificate of need on the basis of current information; that the state plan was again updated on October 1, 1972, with the resulting statistics being made available to regional agencies and the public; that updating of the statistics continues on a quarterly basis and that the 1973 state plan, which was published in the New Jersey Register on May 10, 1973, provides for quarterly and annual updates.

Plaintiff objected to respondents’ motion before the HCAB on jurisdictional grounds and on grounds that the HCAB could not properly consider evidence contained in the proffer of respondent as it was not in the record made before the hearing officer. The HCAB ruled that the record developed before the hearing officer did not contain sufficient competent evidence to permit it to reach a final determination and remanded the matter to the hearing officer with directions to accept testimony regarding the update of the plan.

Plaintiff appeals from that decision.

We note preliminarily that plaintiff appeals from an interlocutory order. Plaintiff should have applied, pursuant to B. 2:2-4, for leave to appeal. We grant such leave nunc pro tunc and proceed to a consideration of the merits.

While this appeal was pending respondent moved to dismiss it on the ground plaintiff had not exhausted its administrative remedies; specifically, that the hearing provided by the Director’s order of remand had not been held. The motion was dismissed. Eespondent again urges that contention and again we reject it. The doctrine of exhaustion of administrative remedies is neither jurisdictional nor an absolute requirement. “Where the disposition of a matter depends solely upon the decision of a question of law, the interests of justice do not require the exhaustion of -administrative remedies before resort may be had to the courts.” Caldaro v. Ferber, 74 N. J. Super. 128, 132 (App. Div. 1962), rev’d on other grounds, 39 N. J. 314 (1963) ; Nolan v. Fitzpatrick, 9 N. J. 477, 486-487 (1952). The issues raised by this appeal are purely legal and the facts raising the issues are undisputed.

The basic contention of plaintiff is that the admission of updated statistics in the remanded hearing would deprive it of due process of law, for to do so would be to admit into evidence an invalid amendment to the state plan not properly promulgated by publishing, filing with the Secretary of State, or by otherwise proceeding in accordance with the Administrative Code.

It is clear that an amendment to any agency rule must be published and filed with the Secretary of State in order to be effective. N. J. S. A. 52:14B-2(e); N. J. S. A. 52:14B-5; Glaser v. Downes, 126 N. J. Super. 10, 18-19 (App. Div. 1973), certif. den. 64 N. J. 513 (1974).

The parties agree that the only change from the published plan by the update of June 1972 is statistical; thus the central issue becomes whether the change in the plan to reflect current statistical data is such an amendment as to require the agency to pursue formal amendment procedures before it can utilize the current information.

We conclude it is not required to do so. The statute in question, N. J. 8. A. 26:2H-1 et seq., establishes a comprehensive plan to carry out the stated public policy that “hospital and related health care services of the highest quality, of demonstrated need efficiently provided and properly utilized at a reasonable cost are of vital concern to the public health.” In this connection, the Commissioner is directed to “cause appropriate surveys and studies to be made concerning the need for health care facilities and Jceep current records and, statistics thereon by designated areas or regions of the State.” N. J. 8. A. 26 :2H — 8 (emphasis supplied) .

The purpose of the state plan is to determine the needs of each region for various types of health care facilities covered by the statute and by comparison with available facilities make a determination concerning additional requirements for each region. It is obvious that construction of new facilities on the one hand, or destruction or closure of existing facilities on the other, effects an immediate change in the needs of the region. Statistics of this type are not static but change from time to time and must be brought up to date. We see no merit to the argument that whenever a statistical change occurs the plan must be amended with the same formality as that which attended its original promulgation. The Commissioner would be derelict in his duty if he did not take into consideration the latest available information in passing on an application for a certificate of need and would be acting contrary to the very intent and purpose of the statute. This same rule should prevail whether changes in statistics indicate the needs of the region have been filled and no additional beds are necessary, or that additional beds have become necessary in order to provide a region with needed health care facilities.

Plaintiff is clearly entitled to “due process of law” in the determination of its application for a certificate of need. However, there is no one form of hearing applicable to all types of administrative proceedings. Present-day concepts of due process require simply that one be given a full opportunity to be heard at a “meaningful time and in a meaningful manner” before any official action is taken, Avant Industries Ltd. v. Kelly, 127 N. J. Super. 550, 553 (App. Div. 1974), and strict adherence to technical rules of evidence is not required. D’Amico v. Blanck, 85 N. J. Super. 297 (App. Div.), certif. den. 43 N. J. 448 (1964).

Plaintiff’s due process rights are fully protected if updated information is used to pass upon its application. The current statistical data is available for inspection at the office of the Director. Further, plaintiff may test the reliability of departmental information at the hearing by examination and cross-examination of witnesses and may introduce its own evidence ■— statistical or otherwise — on the needs of a region. The determination of the Commissioner following such a hearing will then be based upon the consideration of all current available evidence.

For the first time on this appeal plaintiff launches an attack upon the statute on constitutional grounds. Specifically, plaintiff contends:

1. The “Legislature is without authority to regulate the growth and expansion of private proprietary nursing homes,” and

3. The statutory authorization to the Commissioner to issue “Certificates of Heed based upon standards promulgated by the Commissioner is an unlawful delegation of legislative power.”

There is a strong presumption in favor of constitutional validity of a statutory scheme of regulation and “factual support for legislative judgment is to be assumed.” Independent Electricians and Electrical Contractors Ass'n v. N. J. Bd. of Examiners, Electrical Contractors, 48 N. J. 413, 423 (1967).

Plaintiff submits no factual proofs in support of its constitutional attack and has made no effort to carry the burden imposed on one challenging the validity of a legislative enactment to make a contrary showing. It is clear that apart from a factual showing, a challenger may rely on the face of the act or upon facts of which judicial notice may be taken to shift to the defender of the statutory scheme the burden of coming forward with affirmative factual proof in support of the statutory scheme. Id. at 434. However, plaintiff has failed to demonstrate any factual or legal basis in support of its contention that the statute constitutes an illegal exercise of power other than a citation to the case of In re Certificate of Need for Aston Park Hospital, Inc., 282 N. C. 542, 193 S. E. 2d 729 (1973).

Examination of the statute under consideration therein discloses sufficient differences in the statutory scheme to make the holding of that ease inapposite. Moreover, we find the holding of that court not persuasive and at variance with the law of this State.

The power of the State to legislate in the field of public health is no longer open to question. Williamson v. Lee Optical, 348 U. S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955). There are many illustrations of the valid exercise of legislative and judicial control over the various facets of medical, hospital and health care practices and facilities, and this without regard to whether they are private or public. Abelson's, Inc., v. N. J. State Board of Optometrists, 5 N. J. 412 (1950); Greisman v. Newcomb Hospital, 40 N. J. 389 (1963); cf. Borland v. Bayonne Hospital, 122 N. J. Super. 387 (Ch. Div. 1973).

We hold that the certificate oí need requirement of N. J. S. A. 26:2II-1 et seq. is a valid exercise of the police power vested in the Legislature to regulate in the area of public health.

The final argument of plaintiff is that the provision of N. J. S. A. 26:2H — 9 authorizing the issuance of certificates of need by the Commissioner in accordance with “the provisions of this act and based npon criteria and standards therefor promulgated by the Commissioner” is illegal. It argues that the statutory provision delegates to the Commissioner unbridled discretion to establish his own standards and constitutes an unlawful abdication by the Legislature of its duty to establish standards. We find this contention to be without merit. N. J. S. A. 26:2H — 1 establishes the policy to be followed. N. J. S. A. 26 :2II-8 establishes five general criteria for the issuance of certificates of need in the following areas:

1. The availability of other facilities or services which may serve as alternatives or substitutes;
2. The need for special equipment and services in the geographical area of the applicant;
3. The possible economies and improvements which could result from the operation of joint central services;
4. The adequacy of financial resources of the applicant, and
5. The availability of sufficient manpower in the several professional disciplines.

Many cases today sustain standards of legislative delegation no more certain and much less definitive than the one contained in the statute under consideration. Siccardi v. State, 59 N. J. 545 (1971); Wes Outdoor Advertising Co. v. Goldberg, 55 N. J. 347 (1970); Spiegle v. Beach Haven, 46 N. J. 479, cert. den. 385 U. S. 831, 87 S. Ct. 63, 17 L. Ed. 2d 64 (1966); and Cammarata v. Essex County Park Comm’n, 26 N. J. 404 (1958).

We find no unconstitutional delegation of authority.

The decision of the Commissioner to remand for a rehearing is affirmed, such rehearing to be conducted consistent with the principles established herein. We do not retain jurisdiction.

       Plaintiff contended that the HCAB had no jurisdiction to entertain respondent’s motion because N. J. S. A. 26:2H-9 required the HCAB to reach a determination within 30 days, and more than 30 days had passed since the hearing examiner filed his report. This procedural objection has apparently been abandoned on this appeal.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WALTER WAY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 25, 1974 —
    Decided December 9, 1974.

      Before Judges Leonard, Sbidman and Bischoee.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Michael Suffness, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Robert H. Klausner, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

A jury convicted defendant of open lewdness, in violation of N. J. S. A. 2A:115-1, and he was sentenced to an indeterminate term at the Diagnostic Unit of Rahway State Prison Earm. He claims that (1) the judge erroneously denied his motion for a judgment of acquittal, (2) the judge should have sua sponte ordered a plenary hearing regarding the contents of the Diagnostic Center report, and (3) the sentence is illegal.

As for the first argument advanced, a motion for a judgment of acquittal must be denied if “viewing the State’s evidence in its entirety, be that evidence direct or circumstantial,” and giving the State the benefit of all reasonable inferences, “a reasonable jury could find guilt of the charge beyond a reasonable doubt.” State v. Reyes, 50 N. J. 454, 458-459 (1967).

To prove open lewdness under N. J. S. A. 2A :115-1 the State must show that defendant committed an act which (1) is indecent, (2) is open and notorious, and (3) tends to debauch the morals and manners of the people. Furthermore, defendant must have intended that his act be seen. State v. Beckett, 56 N. J. 267, 269 (1970).

The jury here could have found beyond a reasonable doubt that all those elements were proven. The evidence produced in behalf of the State indicated that a police officer on routine patrol and a detective in an unmarked car were dispatched to the parking area in the rear of Immaculate Heart Academy, a girl’s high school in Washington Township. They observed a white Chevrolet which was operated by defendant. It was moving slowly and the driver was looking at the patrol car. The automobile collided with the detective’s vehicle. When both officers approached defendant, who was still seated behind the wheel, they saw that the zipper of his trousers was unfastened and his penis exposed. There was no evidence of his being intoxicated.

Defendant’s automobile was about 25 feet away from the rear of the school building where there were large glass panels through which, according to the police witnesses, students could be seen changing classes or walking through the hallways. The officers also said that when they' arrived at the ¡larking area they saw five girls entering the school.

Defendant argues that the State failed to prove he intended his exposed penis to be seen by anyone and, therefore, the court should not have permitted the jury to consider whether the crime of open lewdness had been committed. The argument lacks merit. The jury could well have concluded from the evidence that defendant’s choice of location and time indicated his intention that his act should be seen by female students at the school. Defendant’s motion for an acquittal was correctly denied.

Defendant contends, further, that his sentence was illegal in that the trial judge failed to specify a maximum term and also to credit him with time spent in custody while awaiting trial and sentence. Defendant was sentenced as a sex offender under N. J. 8. A. 2A: 164-6, which provides that no minimum period of detention shall be specified and that “in no event shall the person be confined * * * for a period of time greater than that provided by law for the crime of which such person was convicted.” There was thus no need to refer to a maximum term in sentencing defendant. State v. Johnson, 91 N. J. Super. 426, 432 (App. Div. 1966).

We agree, however, that defendant should have been given credit for such period, if any, prior to his commitment during which he was confined in the county jail and also in the Diagnostic Center, and we direct a modification of his sentence to that effect. State v. Lee, 60 N. J. 53 (1972).

Lastly, defendant claims that the trial judge failed to offer him an opportunity to contest the Diagnostic Center’s findings by means of a full hearing. The argument advanced is that at the time of sentencing defendant challenged the conclusion in the report submitted by the Diagnostic Center. It is acknowledged, however, that his counsel did not specifically request a hearing. The contention is that the judge should nevertheless have ordered a plenary hearing to test the conclusions in the report.

It is now established that where a defendant duly challenges the sufficiency or any material aspect of the Center’s report he is entitled to be confronted with the witnesses against him, with the right to offer evidence in his own behalf. State v. Horne, 56 N. J. 372, 375 (1970). See R. 3:21 — 3.

The transcript of the sentencing proceedings does not disclose that the report’s contents or its conclusions were “challenged.” All that appears is defense counsel’s statement that the court was not bound by the recommendation to commit defendant as a sex offender, and his request that the court should consider placing defendant on probation conditioned upon bis seeking proper treatment.

However, R. 3:21-3 requires the court, before imposing sentence or making disposition of defendant under the provisions of the Sex Offender Act (N. J. S. A. 2A:li6L-3), to advise defendant of his opportunity to be heard thereon and to afford him such hearing. The record does not indicate that the trial judge complied with the rule by advising defendant as required therein. We cannot determine from what is before us whether defendant would have sought a hearing had he been informed of Ms right to be heard.

Even now defendant does not specifically object to any of the conclusions in the report, nor does he contest any material factual assertion. His only disagreement is with the recommendation that he be confined. Tn the circumstances we deem it unnecessary to remand the matter for the purpose of having the judge below advise defendant of Ms right to be heard. Instead, we shall affirm the conviction and the sentence imposed thereon, but without prejudice to an application by defendant, if he so chooses, for a hearing pursuant to It. 3 :21-3, provided that such application shall be filed and served within 30 days from the date hereof and provided, further, that the hearing shall be limited to a challenge to "the sufficiency or any material aspect of’ the report of the Diagnostic Center, or to the "accuracy or validity of the report’s material factual or conclusional assertions on which the sentence is being based.” See State v. Horne, supra at 377. Ho hearing shall be necessary if defendant intends only to argue, as he did below, that the court should not follow the recommendation.

As modified, and without prejudice to an application for a hearing as set forth hereinabove, the judgment of conviction is affirmed. Jurisdiction is not retained.