author: Allcorn, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES NICHOLS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted July 7, 1975
    Decided September 12, 1975.

      Before Judges Carton, Allcorn and Morgan.

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

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Peter S. Hamerslag, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Morgan, J. A. D. Defendant was indicted, along with co-defendants Lawrence Pierce and William DeShields, Jr. for an armed robbery (N. J. S. A. 2A:141-1 and 2A:151-5) which occurred on November 15, 1971, and a first degree murder (N. J. S. A. 2A:113-1 and 2) which occurred during the course of the robbery. Defendant’s plea of guilty to the armed robbery charge and non vult to the murder count were entered pursuant to an agreement between defendant and the State in which the State offered to recommend concurrent sentences on all charges in exchange for defendant’s pleas of guilty and non vult. The promised recommendation was made, honored by the trial judge and defendant was sentenced to concurrent terms of 10 to 12 years for robbery, 2 to 3 years for being armed in the commission of the robbery, and life imprisonment on the murdeT charge.

On direct appeal, the Appellate Division, in an unreported opinion, held that the non vult plea was to a felony murder and the lesser included offenses of robbery and armed robbery merged therein. Accordingly, the conviction for murder was affirmed. The armed robbery conviction was vacated subject, however, to leave given defendant to apply to tlie trial court for a withdrawal of the non vult plea to the murder count of the indictment and the entry of a not guilty plea thereto. In the event defendant’s application was successful, then the entire plea bargain would be set aside and what was said concerning merger of the robbery and armed robbery offenses would not apply. In such an event (success in having the entire plea bargain set aside), defendant would be permitted to withdraw his non vult plea to the murder charge and to plead again to all counts of the indictment, including those relating to robbery and armed robbery.

Pursuant to the leave afforded him, defendant did apply to the trial judge for leave to withdraw his plea of non vult to murder. He contended that all participants to the plea, judge, prosecutor and counsel, had been unaware that the armed robbery conviction would merge in the murder conviction and that, consequently, defendant could not be sentenced, as he feared, to consecutive terms of life imprisonment and a custodial term for the armed robbery charge. The maximum term which could have been imposed was life imprisonment, and had defendant been made aware of this circumstance, he would not have pleaded non vult, since he had nothing to gain by entry of the plea. The instructions of the. Appellate Division, in the event defendant made an application for withdrawal of his non vult plea, were for the trial judge to conduct a hearing to determine (1) whether the plea to murder, in conjunction with the pleas to robbery and armed robbery, was entered pursuant to a meaningful bargain with a full appreciation by defendant of the legal consequences, and (2) whether the State would be prejudiced by permitting a withdrawal of the plea to murder.

In accordance with those instructions a testimonial hearing on defendant’s application was held during which defendant and the attorney who represented him at the plea and at the negotiations preceding the plea both testified that the primary inducement to plead was defendant’s concern as to a custodial term for the armed robbery conviction consecutive to a life term for murder. It was that concern which motivated the bargain for concurrent sentences in exchange for the plea. At the conclusion of the hearing the trial judge found it unnecessary to make a finding concerning whether the plea to murder was entered pursuant to a “meaningful bargain with a full appreciation by the defendant of the legal consequences” because he concluded that the State would be prejudiced by permitting a withdrawal of the plea to murder. Accordingly, the motion to withdraw the plea was denied and defendant appeals.

In its opinion on the direct appeal the Appellate Division entertained “no doubt as to his (defendant’s) guilt of all of the charges.” A review of the factual basis for the plea defendant now seeks to have vacated persuades us to agree with that conclusion. Defendant admitted to the trial judge in connection with his plea that he was at the scene of the robbery on November 15, 1971 with Lawrence Pierce and William DeShields. “We were there to commit robbery.” They had come from Salem and defendant had first become aware that Pierce had a gun after they had already arrived at the scene and about five minutes before the robbery occurred. “As we entered the store, like I stood by the door and, you know, Pierce asked him to, he wanted to buy some cold cuts, and as he was getting the cold cuts and on his way back to the counter, Pierce went around the counter * * *. And he said: This is a stickup, you know. And Mr. Andras, his back was to Pierce. And as he turned around, he (Pierce) fired.” Defendant was standing by the door as a lookout, about 10 or 15 feet from where Andras was shot. After being shot, Andras “like he staggered to the left and he fell. And I ran over to him and looked at him. And I asked Pierce why he did it. He didn’t have to do that, I told him come on, let’s go.” They left after taking money from the register which was later divided among the three of them. Much of the same material was repeated by defendant immediately before the sentence was imposed. Even on this appeal from the denial of his application to withdraw his non vult plea to murder, defendant does not assert his innocence.

The Appellate Division further entertained “no doubt” but that the pleas were “voluntary, intelligently and understandingly made; that defendant fully understood their consequences including the life imprisonment sentence that the court would probably impose; and that he knowingly waived his right to jury trial and was satisfied with this counsel’s preparation and representation.” Here, again, a review of the plea and colloquy preceding imposition of sentence provides irrefutable support to the conclusion that defendant was fully aware that the trial judge would “probably” impose a term of life imprisonment.

This is not a case in which a trial judge failed to advise defendant of the maximum sentence which could be imposed and defendant claims surprise at the length of the custodial sentence ultimately imposed. See State v. Smith, 109 N. J. Super. 9, 12 (App. Div. 1970), certif. den. 56 N. J. 473 (1970). Here, defendant is contending that the trial court and counsel incorrectly advised him that he could be sentenced to a longer period of confinement than was actually the case. Had he known that the maximum term to which he could have been sentenced was life imprisonment, he would not have pleaded guilty. We have concluded that defendant’s contentions in these circumstances lacks merit.

The standard governing disposition of motions to withdraw pleas of guilty or non vult following imposition of sentence is set forth in R. 3 :21-1, which provides:

A motion to withdraw a plea of guilty or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice.

It is defendant who hears the “strict” burden of proving that a withdrawal of a plea of non vult and a trial of his guilt is necessary to correct a manifest injustice. The “strict” burden imposed upon a defendant is to establish Cfby a fair preponderance of the proofs, not just a doubt but a solid affirmative basis dictating the exercise of judicial discretion in his favor.” State v. Daniels, 38 N. J. 242, 250 (1962), cert. den. 374 U. S. 837, 83 S. Ct. 1885, 10 L. Ed. 2d 1057 (1963).

In exercising its discretion as to whether to vacate a plea of guilty or non vult, the trial judge is required to carefully consider and evaluate not only the submitted materials relevant to the manner in which the plea was entered but also material bearing on the “related pertinent issues,” such as guilt of defendant and prejudice to the State. State v. Tyson, 43 N. J. 411 (1964), cert. den. 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965); State v. Deutsch, 34 N. J. 190, 201 (1961); State v. Johnson, 131 N. J. Super. 252, 256 (App. Div. 1974). In this case defendant’s guilt of the offenses charged was so clearly established that he does not even bother to assert his innocence in this appeal. Not only did he admit his participation in open court during entry of the plea and again before sentencing, but the State had his signed confession and the confession of his codefendant clearly implicating him as a participant in the armed robbery which resulted in the murder. Defendant is, in substance, asking this court to require the State to prove his admitted guilt of the offenses, apparently in the hope that if the State fails, he will need serve no sentence at all.

Such relief is, in our view, well beyond the bounds of “fairness” to which defendant can legitimately claim to be entitled, particularly in the circumstances of this case. The plea was taken on May 8, 1972 and defendant was sentenced on June 9, 1972. The application to withdraw his plea was heard and decided on March 8, 1974 and the new trial which defendant seeks would first take place toward the end of 1975, over three years after entry of the plea. Aside from the fact that witnesses’ memory of the events of November 15, 1971, the date of the robbery-murder, would be dimmed by the passage of an approzimately four-year period of time, the State no longer has any means of insuring the testimony of defendant’s self-confessed accomplice, William DeShields, who has already served his sentence and is presently released on parole. Although the State has protection against DeShields’ actual perjury, it has no way of dealing with convenient lapses of memory, on the part of one who no longer has anything to gain by testifying fully and completely as to matters which can only serve to convict his friend and former accomplice. Defendant’s in-court confession made in connection with his plea would not be evidential at the trial. State v. Boone, 66 N. J. 38 (1974). DeShields’ confession inculpating defendant would not be admissible ezeept, possibly, for neutralization (but see Evict. B. 20), the sole purpose of which is to restore the status prevailing before the witness in question testified upon the particular matters under neutralization. State v. Gallicchio, 44 N. J. 540 (1965). The only eyewitness, Andras, the victim, was dead. Hence, the only hard evidence of guilt upon which the State could safely rely at this late date, almost four years after the event, would be defendant’s uncorroborated confession. In these circumstances we conclude that the trial judge’s finding that the State would be prejudiced by a new trial so far removed from the event to be tried has substantial support, and this consequent denial of defendant’s motion to vacate his non vult plea does not constitute a mistaken exercise of discretion.

We perceive nothing unfair, or even suggesting "manifest injustice,” in requiring one who has clearly admitted his guilt to a felony murder to serve a sentence he not only knew would probably be imposed as a result of his non vult plea, but which he affirmatively bargained for. The motion to vacate the non vult plea was properly rejected.

Affirmed.

Allcorn, J. A. D.

(dissenting). The issue in this case is not defendant’s guilt or innocence. Were culpability in fact the critical concern, it is difficult to conceive of a situation in which a plea of guilt might be withdrawn, attended as it is by the safeguards imposed by R. 3:9-2 and R. 3:21— 4(b).

Rather than guilt or innocence, the issue is whether an accused may be held to a plea of guilt entered by him in the performance of a plea agreement induced as a result of misinformation supplied him as to the number of charges of which he might be convicted, the maximum sentences to which he would be subject were he convicted and the benefits he might expect to receive in return for the plea. Compare State v. Thomas, 61 N. J. 314, 320 (1972).

It is undisputed that, prior to entering into the plea agreement, defendant was mistakenly informed that he was subject to conviction not only of felony-murder but of armed robbery, the underlying felony, as well — notwithstanding that the well-settled law of this State was to the contrary. State v. Mowser, 92 N. J. L. 474 (E. & A. 1919); State v. Currie, 41 N. J. 531, 536-538 (1964); State v. Fitzsimmons, 60 N. J. Super. 230 (Cty. Ct. 1960), cert. den. 364 U. S. 875, 81 S. Ct. 120, 5 L. Ed. 2d 97 (1960). He was also advised that the maximum terms of incarcera^ tion authorized to be imposed were: felony murder, life imprisonment; robbery, 15 years; being armed, 10 years. In addition he was told that, should he be convicted of all the charges, the sanctions imposed on the underlying felony charges could be made to run consecutively to the sentence on the murder charge and to one another, and that the prosecutor intended to press for consecutive sentences.

Thus misled into believing that he faced a possible maximum sentence of life plus 25 years imprisonment, defendant undertook to plead non vult to the murder charge and guilty to the armed robbery charges in return for the undertaking of the prosecutor to recommend to the court a life sentence on the murder charge and that any sentences imposed on the armed robbery charges be made concurrent with the sentence imposed on the murder charge. Both defendant and the State performed their respective undertakings. The judge sentenced defendant to life imprisonment for the murder, and to terms of 10 to 12 years and 2 to 3 years, respectively, on the charges of robbery, while armed, the latter to be served concurrently with the sentence of life imprisonment. On appeal the convictions on the armed robbery charges were vacated; the sentence of life imprisonment for murder was affirmed.

Having negotiated a waiver of his constitutional protections in exchange for what he misconceived to be lenient treatment, defendant instead received the most stringent sentence possible. A plea agreement founded upon such a false premise is no agreement at all, however unintentional the misinformation. Consideration flowed only in one direction —• from defendant to the State. There was a complete absence of consideration moving from the State to defendant.

Whatever the disparate views as to the propriety, desirability and effectiveness of plea negotiation, the process has been approved and is in use in a number of jurisdictions, including New Jersey. In all of these jurisdictions it is recognized that scrupulous fairness both to defendant and to the State is basic to the proper administration of plea negotiation, procedures. Santobello v. New York, 404 U. S. 257, 261, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); State v. Taylor, 49 N. J. 440, 455-456 (1967). “If plea bargaining is to fulfill its intended purpose, it must be conducted fairly on both sides and the results must not disappoint the reasonable expectations of either.” State v. Thomas, 61 N. J. 314, 321 (1972). See Newman, Convictions: The Determination of Quilt or Innocence Without Trial, 32-56 (1966); Goldstein, “Eor Harold Lasswell: Some Reflections on Human Dignity, Entrapment, Informed Consent, and the Plea Bargain,” 84 Yale L. J. 683 (1975); A. B. A. Minimum Standards of Criminal Justice: Pleas of Guilty (1968), Part III.

There can be little question but that, from the perspective of an accused, the principal purpose (if not the sole end) of plea negotiation is leniency of treatment, whether by sentence concession, charge reductions or charge dismissals. The accused negotiates for concessions acceptable to him which, when agreed upon by both the government and the accused, form the inducement for his undertaking to plead guilty. Where, as here, defendant’s negotiations are predicated upon erroneous information as to the maximum sanctions that could be imposed upon conviction (25 years imprisonment in excess of the maximum actually authorized), the leniency of treatment for which he negotiated as the quid pro quo of his pleas was illusory indeed.

Had defendant been aware that a conviction on the murder charge would have barred conviction on the armed robbery charges and that, in such event, the maximum sentence of incarceration that could have been imposed was life imprisonment, he would have negotiated for some sentence less than life imprisonment in exchange for his non vult plea. Based as it was on the erroneous information supplied by counsel, the plea agreement in fact negotiated fell far short of fulfilling defendant’s reasonable expectations — then only 21 years of age and without any prior adult criminal record.

Even without regard to the serious question of effective representation by counsel, the waiver by defendant of his constitutional rights to trial, to confront the witnesses against him, and to refrain from self-incrimination, effected by the entry of his ploas, hardly may he said to have been either knowing or intelligent. It was instead the product of misinformation and misunderstanding. Fairness requires that defendant he relieved of his undertaking and the stains quo be restored by permitting him to withdraw his plea. To do otherwise is to stultify the law and to make the court, prosecutor and defense counsel party to deception (albeit unintentional), unfair to defendant and unacceptable to any system of justice that is truly just. State v. Thomas, supra; Cooks v. United States, 461 F. 2d 530 (5 Cir. 1972); Moore v. State, 54 Ala. App. 463, 309 So. 2d 500 (Ala. Cr. App., 1975). See, generally, Annotation, “Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof,” 97 A. L. R. 2d 549 (1964). Compare State v. Rhein, 117 N. J. Super. 112 (App. Div. 1971).

Under such circumstances, prejudice or lack of prejudice to the State by withdrawal of the plea is not and should not he a controlling consideration. See State v. Thomas, supra. In any event, there would appear to be no prejudice to the State were the plea withdrawn. All of the evidence and witnesses available to the State at the time of the entry of the pleas are still available. Indeed, the chief of detectives was unable to point to any prejudice other than the loss of “control” over the witness DeShields — a codefendant who, in consideration of a sentence of 8 to 10 years, agreed to testify against this defendant. That claim of prejudice is speculative at best. It presupposes that the witness might be uncooperative or might have a memory lapse even though there had been no communication with him, and disregards the normal “control” that the State has over any witness — here reinforced by the signed statement of DeShields, as well as the transcript of the statements made by him on the occasions of his plea and his sentencing.

Be this as it may and even assuming that prejudice to the State would result from withdrawal of the plea, whatever that prejudice may be it is the product solely of the passage of time. And that lapse of time was occasioned by the delay in discovering that defendant had been misinformed as to matters critical to a knowing and intelligent decision and the delay necessarily incident to these curative proceedings — for which defendant was in no way responsible or chargeable.

Eor these reasons I would reverse the order of the Law Division and would (1) permit defendant to withdraw his plea of non vult to the murder charge, (2) reinstate the charges of robbery, while armed, (3) direct that defendant plead anew to all three charges, and (4) direct that all three charges proceed to trial expeditiously, unless earlier disposed of by plea.

       Defendant’s attorney testified that he informed the defendant that even if the plea bargain was made on the basis of a life term, he would nonetheless attempt to induce the court to impose less than a life sentence since a co-defendant had been promised a less severe sentence. This was, in fact, attempted at sentencing.

       In State v. Smith, the trial judge’s denial of defendant’s motion, interposed after sentence, to withdraw his plea was affirmed despite the judge’s failure to specify the maximum sentence which could be imposed.

       In Thomas the court held the State bound by a plea agreement whereby defendant pleaded guilty to atrocious assault and battery some three months before the victim died from injuries received from the assault, which occurred during the theft of her purse — and dismissed the subsequent murder indictment notwithstanding there was no bar to the murder indictment by reason of double jeopardy and despite the circumstanc that, at the time of the plea, defendant was well aware (but the State was unaware) that the death of the victim was both likely and imminent.


source: Caselaw Access Project

author: Dbbiee, J. D. 0.,

license: Public Domain

text:
    CITY COUNCIL OF THE CITY OF ELIZABETH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. MICHAEL NATURILE ALSO KNOWN AS MICHELO G. NATURILE, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided August 20, 1975.

      Mr. Luis Bello, argued the motion for plaintiff, Mr. Raymond S. Londa and Mr. Luis Bello, on the briefs. Mr. Frank P. Trocino, City Attorney of Elizabeth.
    Mr. Arthur J. Timins argued the motion for defendant.
   Dbbiee, J. D. 0.,

Temporarily Assigned. Plaintiff City of Elizabeth, a Faulkner Act municipality, seeks a declaratory judgment on matters affecting the application of the electrical and plumbing regulations in its administrative code and their interrelation with state law. The issues are (1) whether the provisions of N. J. S. A. 45:5A-18(n) require plaintiff to issue an electrical permit to defendant, the owner of property upon which he himself proposes to construct a house for the use of himself or members of his immediate family; (2) whether plaintiff may refuse to receive an application or to issue an electrical permit to any person not a licensed electrician who seeks a permit in the above circumstances (thus challenging the validity of sections 28-12 and 28-53(4) of the plaintiff’s administrative code); (3) whether chapter 71 of the plaintiff’s code, regulating the business of master electrician, is valid and enforceable, and finally, (4) whether chapter 36 of the code, regulating the business of master plumber, is valid and enforceable.

Prior to May 20, 1975 defendant property owner applied to the proper official for an electrical permit for the purpose of constructing a residence for himself and his family. His application was rejected solely because he was not a licensed electrician. On July 3, 1975 defendant applied to the proper official for a permit to perform plumbing work upon the same premises. That application was similarly denied solely because defendant did not have a plumber’s license. This suit ensued. Although some testimony was taken on the return date of plaintiff’s order to show cause why the requested declaratory judgment should not be rendered, the basic facts are not in controversy. The city presented no testimony with respect to the plumbing inspection costs or procedure, but its witnesses candidly noted that electrical reinspections took only about 15 minutes each and that most specific problems could be avoided by additional and more thorough inspections.

I

We consider first the rejection of the permit for electrical work. N. J. S. A. 45:5A-1 et seq., the Electrical Contractors Licensing Act of 1962, as amended by L. 1968, c. 17, is a comprehensive act manifesting a legislative determination that problems of statewide concern had developed in an area of potential danger to- the public. Its provisions for a board of examiners and the regulations to be adopted by that board show that the Legislature intended to- balance the legitimate needs of those engaging in the business of electrical contracting against the proper protection of the consuming public. Both of those factors were considered and language chosen that would intrude- no more than necessary on each citizen’s constitutional right to liberty and property. The constitutionality of N. J. S. A. 45:5A-1 et seq. was upheld by the New Jersey Supreme Court in Ind. Elec. Assoc. of N. J. v. N. J. Bd. of Exam., 54 N. J. 466 (1969). Section 18(n) provides that the definition of the business of electrical contracting — which requires one to secure a business permit under the act — shall not include:

(n) Work performed by a person on a dwelling that is occupied solely as a residence for himself or for a member or members of his immediate family.

Plaintiff claims that it restricts permits to licensed electricians because of the danger to public health which would result from any alternative, and that its ordinance is authorized by N. J. S. A. 40:48 — 1 and 40:52 — 1, as well as the Faulkner Act, N. J. S. A. 40:69A— 1 et seq., N. J. S. A. 40 :48-1 is general enabling legislation, section 13 of that statute permitting a municipality to “regulate and control the construction, erection, alteration and repair of buildings and structures of every kind within the municipality * * This section gives the city power to regulate and control the performance of electrical work, subject to the power of the State to preempt all or any part of the field of regulation, and also subject to the requirement that such regulations be reasonable.

N. J. S. A. 40:52-1(g) provides authority to license and to regulate various kinds of businesses. However, while the business of electrical contractor was held to fall properly within municipal powers under this section in Becker v. Pickersgill, 105 N. J. L. 51 (Sup. Ct. 1928), Salomon v. Jersey City, 12 N. J. 379, 389 (1953), confined this section to cover only “local businesses which may reasonably be considered comparable in type to those specifically enumerated therein * * *” See also, Weiner v. Stratford, 15 N. J. 295, 300 (1954). Neither the business of plumbing nor electrical contracting is enumerated therein. Also, since defendant is not seeking to engage in the electrical contracting business, this section is inapplicable.

It is unnecessary to consider plaintiff’s status as a Faulkner Act municipality, since N. J. S. A. 40:69A-28 and 30 explicitly gives such municipalities all powers conferred by “general law,” which would include the provisions of N. J. S. A. 40:48-1(13), already noted, and the broad auxiliary powers of N. J. S. A. 40:48-2.

A municipality, however, may not exert its delegated regulatory or police powers in terms which conflict with a state statute, and may not deal with a subject if the Legislature intends its own regulations to be exclusive, irrespective of whether it exhausts the field or touches only a part of it. State v. Ulesky, 54 N. J. 26, 29 (1969). In determining whether the State has preempted the field, the question is whether the Legislature intended its action to preclude the exercise of delegated police power. In the case of business permits required for electrical work it is clear that N. J. S. A. 45:5A-1 et seq. has preempted the field, at least insofar as it defines who may engage in the business of electrical contracting.

Plaintiff contends, however, that the exemption quoted earlier in N. J. S. A. 45:5A-18(n) refers only to dispensing with a business permit and not to license requirements. But an examination of the other exemptions listed shows that the common consideration in all of them is a judgment of lessened danger, e. g., specialized work subject to stringent standards by other agencies, proper supervision reasonably to be anticipated by other governmental departments, matters involving very low voltage, or (as with section (n)) the belief that a resident homeowner will exercise due care for the safety of himself and his family —• particularly when the final result of the work in all cases will be subject to outside inspection. If one does not need a business permit to do the actual work, a fortiori he does not need to qualify for and obtain a license to commence the work. He must be issued a construction permit, subject to reasonable municipal inspection permitted by N. J. S. A. 45:5A-17(a).

Plaintiff also would draw a distinction between permission to make minor repairs on an existing dwelling and undertaking the large project of initial construction, claiming that section (n), by referring to a “dwelling that is occupied,” contemplates only the former. Such a reading ignores Sands v. N. J. Bd. of Examiners of Electrical Contractors, 90 N. J. Super. 82 (App. Div. 1966), aff’d 54 N. J. 484 (1969), wherein the exempted work was being done by the owner on dwellings to be occupied in the future. This factor was not treated as material by either appellate court. In Sands, however, the owner intended to do electrical work in houses planned for immediate sale. The Sands courts did not consider § 18 (n) specifically, since the events in question had occurred in 1963, five years before the exemption was added to the act (54 N. J. at 486-487). That a building is still under construction is not a ground for distinguishing areas covered by the exemptions is also inferable from the amendment to § 18 (k) which in 1968 deleted a former qualification of exempting installation work on “existing buildings” occupied by a firm and replaced it with an exemption for such work on “premises” occupied by a firm.

Moreover, while N. J. S. A. 45:5A-9(a) says that “Any single act or transaction shall constitute engaging in the business of electrical contracting within the meaning of this chapter,” the concurrent presence of § 18 (n) shows that this provision was intended to reach electricians who hire out either to general contractors, or to individual homeowners. Sands v. N. J. Bd. of Examiners, supra, 90 N. J. Super. at 86.

This court finds that the State has preempted the entire electrical contracting licensing area. Were this not so, each municipality could impose varying licensing standards, not only upon defendant but also upon the beneficiaries of ('very other exemption in the statute. Such a result would impose an undue burden upon government and commerce. Sections 28-12 and 28 — 53(4) of plaintiff’s administrative code are therefore unenforceable insofar as they require rejection of an application for and forbid issuance of a permit to anyone not a licensed (or registered) electrician. The municipality’s remedy is to enforce its inspection rights, as will be discussed infra.

The court does not reach consideration of chapter 71 of the plaintiff’s code because of state preemption of the need for a municipal license or business permit, and because the city regulates only the “business” of master electrician. The “business” aspect will also be discussed infra as it relates to the application for a plumbing permit.

II

We consider next whether plaintiff municipality was justified in refusing to accept an application from defendant for a plumbing permit and in denying the permit in circumstances identical to those outlined above, that is, where defendant was a resident homeowner intending to perform plumbing work on a dwelling to be used as a residence for himself or members of his immediate family.

It is necessary to begin with a consideration of N. J. S. A. 45:14C-1 et seq., the State Plumbing License Law of 1968. This act provides for state licensing of a master plumber, which term is defined in part in N. J. S. A. 45:14C-2 as one “engaged in contracting to furnish labor, or labor .and materials, for the installation, maintenance, repair, extension, alteration or renovation of plumbing.” Section 12 makes clear that the act supersedes N. J. S. A. 26:3-31(e) in that one licensed by the state may not be required by any municipality to seek local licensing. The state license permits one “to practice or to- he engaged .as a master plumber in the business of plumbing in any municipality in this State.” Section 14 specifically states that municipalities retain “the power to inspect plumbing work or plumbing equipment [and] the power to regulate the standards and manner in which plumbing work shall he done.” Section 24 states that:

Every person who shall not elect to secure a State license hereunder shall remain under the provisions of Revised Statutes 26:3-31 (e) and the licensing and examination of such persons shall be solely governed by the municipal bodies implementing such provisions.

Reading N. J. S. A. 45:14C-1 et seq. as a whole, this court determines that § 24 refers only to those persons seeking to engage in the business of master plumber who shall be governed by such municipal licensing and regulation. This language must he read against the municipal power in § 14 of the act to inspect and regulate the plumbing work. We see, therefore, that the act does not by its terms give any municipality the power to regulate who shall do the work other than those holding themselves out as being in the business of plumbing. Cf. N. J. S. A. 26:3-31(e) (incorporated by reference in N. J. S. A. 45:14C — 24) which permits the local board of health "to regulate the practice of plumbing.” The use of the terms "practice” or "business” by the Legislature appears to exclude the proposed activity of defendant.

The terms “business,” “occupation,” or “trade,” as used in a law imposing a license tax on businesses, occupations, trades, etc., ordinarily mean a business, occupation or trade in a commercial sense carried on with a view to profit or livelihood. * * *■ In the absence of a statute specificallfiy so providing, the performance of a single act, or even a number of isolated acts, pertaining to a particular business or occupation does not constitute engaging in, or carrying on, such business or occupation within the meaning of a law imposing a license or tax thereon unless an intent to engage in the business is clearly apparent, although where a statute so intends a single transaction may constitute the carrying on of the business or occupation licensed or taxed. * " * A statute imposing a tax on persons who engage in a certain business for hire or profit does not warrant the collection of the tax from a person who performs certain acts pertaining to the business for his own benefit and in connection with his regular business. [53 C.J.S. Licenses § 327 at 556-557]

As noted earlier with respect to the electrical work, unless an act is done as a "business” in the sense of being a commercial enterprise for profit, it is not subject to license or regulation by a municipality under N. J. S. A. 40:52-1(d). See Morris v. Elk Tp., 40 N. J. Super. 34 (Law Div. 1956), where a limitation upon an individual living in a trailer did not come within the municipality’s power to regulate the business of trailer parks. See also, Karnes v. City of Benton, 258 Ky. 425, 80 S. W. 2d 558 (Ct. App. 1935), wherein a farmer who slaughtered his farm pigs for his family and sold the excess in a nearby town could not be convicted for selling meat without a license.

As the New Jersey real estate license cases make clear, an isolated transaction (in some circumstances even where done for strangers) does not constitute being engaged in the particular business. See Waring v. Jobs, 104 N. J. L. 158 (E. & A. 1927); Wensley v. Godby, 101 N. J. L. 325 (Sup. Ct. 1925). Similarly, in other areas it is the general policy of the State that, although it may require licensing of certain occupations performed by a worker representing himself to the public as skilled and reliable, there is ordinarily no heed to protect a private individual or his family from his own acts voluntarily performed for his own benefit. An example already noted is explicit exemption in the Electrical Contractors Licensing Act of 1962, as amended in 1968. It is hardly necessary to point out that even in the highly regulated practice of law, R. 1:21-1 (a) preserves the inalienable right of a party to appear in court pro se. The same state policy is manifest in the Architects Licensing Act, N. J. S. A. 45:3-1 et seq. Section 10, in defining the illegal practice of architecture, states that

Nothing herein contained shall prohibit * * * any person in this State from acting as designer of a dwelling and all appurtenances thereto that are to be constructed by himself solely as a residence for himself or for a member or members of his immediate family.

The same policy is found in the Professional Engineers and Land Surveyors Act, N. J. S. A. 45:8 — 27 et seq. which states that:

Nothing in this act shall be construed as requiring licensing for the purpose of practicing professional engineering or land surveying by any person, firm, or corporation upon property owned or leased by such person, firm, or corporation, unless the same involves the public safety, public health or public welfare.

Electrical work, architectural design and engineering all bear upon safety and health factors in no less a degree than plumbing, yet in each of these areas the State has recognized the right to work upon one’s own property where no compelling reason dictates otherwise. The reasoning behind this policy has been expressed in State ex rel. Rhodes v. Cook, 72 Wash. 2d 436, 433 P. 2d 677 (Sup. Ct. 1968), app. dism. 392 U. S. 643, 88 S. Ct. 2281, 20 L. Ed. 2d 1347 (1968), discussing the State of Washington’s statutory exemption (similar to those quoted above) from plumbing licensing for those doing plumbing work on their own houses. The court, in refusing to permit a nonresident owner to work on a house he intended to rent out to others, explained

Since it is reasonable to assume that homeowners who do plumbing work for themselves and tlieir immediate families in residence in which they reside or intend to reside, will tend to perform the work more carefully than would those who do plumbing work for strangers, it is reasonable to require certification of the latter class while not requiring certification of the former class. The public health and safety may adequately be protected in the first case by the inherent concern one has for his own welfare and that of his immediate family. This immediate concern may not he present when strangers are to use the premises, and therefore there is no adequate substitute for the certification requirement. We find a logical connection between the object of the legislation, i. e. the protection of the public health and safety, and the requirement that one must intend to live in a residence himself if he is to be issued a permit to do plumbing work without first being examined as to requisite skill and certified as a plumbing contractor, [at 680]

We note this decision was made despite the fact that in Washington, as in New Jersey, even one exempt from certification or licensing is nevertheless subject to inspection of the work by local authorities. See also State ex rel. Lipps v. City of Cape Girardeau, 507 S. W. 2d 376 (Mo. Sup. Ct. 1974); White v. City of Evansville, 310 F. Supp. 569 (S. D. Ind. 1970), where the particular ordinances were noted to contain similar non-business exemptions.

The reasoning of Rhodes is quite similar to that expressed in Berkeley Tp. Local Board of Health v. Johnson, 73 N. J. Super. 384 (App. Div. 1962), which preceded the state licensing act, holding that where even a master plumber who employed other plumbers owned, built and managed numerous commercial and residential units occupied by others, the town’s ordinance requiring local licensing was reasonably related to the public health, safety and welfare and was not an unreasonable interference with the right of defendant to work on his own property or to employ others to do so. However, the number of units and commercial nature of the construction distinguish that case from the one before this court.

Ill

But even if there is no implied preemption by the State in the plumbing field and the municipality may not require a business license, may a municipality choose under its general powers to regulate those who may do plumbing work on their own property by prohibiting performance of such work by unlicensed persons?

Every landowner is subject to control of his property for the public good. Private property rights are not absolute; they are always subject to the reasonable exercise of the police power. David v. Vesta Co., 45 N. J. 301, 311 (1965). The right of private property must yield to the common good, and when interfered with or restrained, the assumed injury to the individual is presumed to be offset by the benefit accruing to him as one of the public at large. Lincoln Park v. Cullari, 15 N. J. Super. 210, 215 (App. Div. 1951). The municipality has the authority to impose limitations upon the use and enjoyment of private property under its inherent police power to promote the safety, health, morals and general welfare of the community. Devine v. Mantua Tp., 28 N. J. Super. 299, 304 (Law Div. 1953), and the municipality may exercise its police power before harm has befallen. Mason v. Hillsdale-Mayor and Council, 53 N. J. Super. 500, 504 (Law Div. 1959). Usually, this power is strictly limited to matters of local concern and is not applicable to matters involving state policy. Galante v. Teaneck Dept. of Health, 70 N. J. Super. 362, 368 (Law Div. 1961). However, even if the evil to be combatted is of statewide concern, practical considerations may warrant different or more detailed local treatment to meet varying conditions or to achieve the ultimate goal more effectively. In- ganamort v. Fort Lee, 62 N. J. 521, 528 (1973). Unless there has been a general preemption of the field, the fact that the State has licensed a particular calling may not be enough to bar local licensing to protect traditional values of local concern. Summer v. Teaneck Tp., 53 N. J. 548, 554 (1969).

Municipal enactments should be sustained when they bear a reasonable relationship to the end to be accomplished, namely, safeguarding of public health, safety and morals, and when the method adopted to meet the problem is reasonably designed to accomplish the end. N. J. Const. (1947), Art. 4, § VII, ¶ 11; Toms River Pub. Co. v. Manasquan, 127 N. J. Super. 176, 181 (Ch. Dir. 1974); Elizabeth v. Sullivan, 100 N. J. Super. 51, 55 (Cty. Ct. 1968); Municipal measures designed to deal with problems of public health should not be disturbed unless palpably unreasonable or in conflict with some statutory or constitutional limitation, Marangi Bros. v. Ridgewood Bd. of Com'rs, of Village of Ridgewood, 33 N. J. Super. 294, 301 (App. Dir. 1954), and the means chosen must be reasonable and substantially connected with the public interest designed to be advanced, Mogolefsky v. Schoem, 90 N. J. Super. 49, 57 (App. Dir. 1966), mod. on other grounds 50 N. J. 588 (1967).

We hare seen earlier that neither N. J. S. A. 45:14C-1 et seq., 26:3-31(e), 40:52-1(g) nor 40:48 enable a municipality to require a license of one who is not engaging in a business but acting for his own benefit and private use. Plaintiff nerertheless contends that its status as a Paulkner Act city permits it to make a legislative judgment supplementing state law, or to enact this ordinance based upon its general police power in an area not dealt with by the State.

In the circumstances of this case, this court disagrees. Bren granting that under the Faulkner Act, N. J. S. A. 40:69A-29 gives wide powers to a municipality coming within its provisions, there must nerertheless be a reasonable connection between the ordinance adopted pursuant to the act and the municipal objective. See State v. Boston Juvenile Shoes, 60 N. J. 249, 257 (1972), striking down portions of a sign ordinance the court found too burdensome and poorly related to the generally praiseworthy object of the ordinance. There must be a substantial connection between the means invoked and the public interest to be advanced by an ordinance. Mister Softee v. Hoboken Mayor and Council, 77 N. J. Super. 354, 366 (Law Div. 1962). Otherwise the licensing provision constitutes an unwarranted intrusion upon property rights. Howell Tp. v. Sagorodny, 46 N. J. Super. 182, 189 (App. Div. 1957), aff’d 25 N. J. 502 (1958). It must appear that the public interest requires such imposition upon private rights, and that considering alternatives open to the city, the means are reasonably necessary for accomplishing the purpose and not unduly oppressive to individuals.

* * * [C] (institutional due process and equal protection ordain that the authority vested in the municipality * * * shall not go beyond the public need, or impress unnecessary and excessive restrictions upon the use of private property or the pursuit of useful activities * * [Kent v. Mendham, 111 N. J. Super. 67, 77 (App. Div. 1970)]

See also, Green v. Shama, 217 N. W. 2d 547 (Iowa Sup. Ct. 1974).

As noted in McQuillin, Municipal Corporations (3d ed.), § 24.338 at 249-251:

Plumbers and plumbing are subject to reasonable municipal regulation under the police power to protect the public health and welfare. Obviously, good plumbing is intimately connected with the prevention of diseases and epidemics, the prevention of water contamination and the prevention of foul-smelling conditions and damage to buildings from leaking water. Such ordinances, furthermore, must be reasonable, provide a uniform rule, and avoid unfair discrimination.

Under N. J. S. A. 26:3-33 local boards of health may require plans of plumbing work to be submitted for approval and may charge a fee for the plan inspection. The board has the right to regulate the standards for materials used and manner of installation. Johnson v. Belmar, 58 N. J. Eq. 354, 355 (1899); Elizabeth Bd. of Health v. Dickstein, 67 A. 89, 90 (N. J. Sup. Ct. 1906).

Plaintiff city has a department of health, welfare and housing, as well as a board of examiners and a plumbing inspector. Plaintiff has not claimed that its inspection of plumbing work is so inadequate that, in order to protect the public health, it must rely upon a presumption of proper work which could only rest, if at all, upon the licensing of the performer. We may therefore assume that the plumbing inspector will in fact make a proper inspection first of the plans and then of the final work before granting approval. Expecting that the dwelling will not be granted a certificate of occupancy until the inspector does approve the plumbing work, this court sees no manifest danger to health in allowing the resident owner to perform the work himself.

We note that unlike plaintiff’s code provisions dealing with permits for electrical work (which explicitly state that no permit will be given to anyone other than a licensed electrician), the code provisions dealing with plumbing vary in terminology, referring sometimes to “master plumbers” and at other times to “plumbers.” Since prosecution and conviction for a violation of a law requiring a license will lie only where the accused’s conduct comes within the condemnation of the statute or regulation sought to be enforced, Sands v. N. J. Bd. of Examiners of Electrical Contractors, supra, 90 N. J. Super, at 85, it is possible to construe plaintiff’s ordinance § 36 — 7 (which requires merely that the filed plumbing plans be “signed by the plumber”) to mean that a permit shall be given to any person performing the work of “plumber” whose plan is approved. However, since plaintiff has stipulated that it interprets its code to mean that no application or permit would be issued to anyone but a licensed plumber, this court will adopt that construction of the ordinance. The court need not consider whether chapter 36 of plaintiff’s code is valid and enforceable insofar as it regulates the business of master plumber, but.insofar as it is interpreted to require rejection of an application and refusal of a permit for defendant to construct his own dwelling on his property for himself or members of his immediate family, it violates defendant’s property rights.

A legislative measure that, in purported service of the common good and welfare, goes beyond the public need is not effective to curtail personal and private property rights guaranteed by the Constitution. [Reingold v. Harper, 6 N. J. 182, 192 (1951) ]

The court therefore is obliged to find that this exercise of power by the City also has been in a manner not within the contemplation of the Legislature, and therefore must be restrained within proper bounds and set aside. Itzen & Robertson, Inc. v. Oakland Bd. of Health, 89 N. J. Super. 374, 383 (Law Div. 1964), aff’d 92 N. J. Super. 241 (App. Div. 1966).

The court may take judicial notice of the fact that plaintiff was recorded in the 1970 census as having a population of over 100,000 persons. Under N. J. S. A. 26:3-32 the board of health in such a city may charge a reasonable fee for any permit not otherwise specifically provided for in the body of the act. It likewise has power to do this under the authorization of N. J. S. A. 45:14C-14. The city may reasonably anticipate that one inexperienced in plumbing work may require longer or additional inspections prior to receiving approval of the work than a licensed plumber might require. The city may charge accordingly for such additional work.

[There is] no reason why those who are to be inspected should not pay a reasonable fee for the inspections to insure compliance, or why the cost of such inspections, even though required by other laws or ordinances, may not properly be an element in determining the reasonableness of the fees imposed by a municipality’s general licensing ordinance. [Belleville Chamber of Commerce v. Belleville, 93 N. J. Super. 392, 398 (App. Div. 1967), aff’d 51 N. J. 153 (1968)]

This applies as well, of course, to any extra inspections of electrical work which may be required of those applicants who are not licensed electricians.

Plaintiff municipality must issue applications to defendant for both electrical and plumbing work, and upon filing and approval (which must not be unreasonably withheld) of the plans for each, must issue a permit for the work.

The court will, however, grant a 30-day stay of the order to enable the city to consider an ordinance to defray anticipated expenses of inspection of work performed by non-licensed electricians or plumbers who own the property upon which they intend to construct or repair a dwelling used or to be used solely as a residence for themselves or for a member or members of their immediate families, or any appurtenance thereto; and to establish any necessary administrative procedures for scheduling such inspections.

       An example given was the use of unreamed conduit through which wire could be drawn, thus injuring insulation. The inspector noted that a licensed contractor would know not to leave sharp edges, while the work of an inexperienced homeowner must be examined prior to closing the conduit joints because of the potential fire danger from exposed wire. Intermediate inspections could solve such problems, and any additional costs (as noted infra) could be charged to the applicant, if the city’s ordinances are amended appropriately.


author: Bilder, J. S. C.

text:
    RALPH MARINO, PLAINTIFF, v. CITY OF UNION CITY, TOWNSHIP OF NORTH BERGEN, BUILD BETTER BOYS ASSOCIATION OF UNION CITY AND BUILD BETTER BOYS ASSOCIATION OF NORTH BERGEN, DEFENDANTS.
    Superior Court of New Jersey Law Division
    August 20, 1975.

      Mr. Roger M. Kahn for plaintiff (Messrs. Aronsohn, Kahn & Springstead, attorneys).

      Mr. George J. Kaplan for defendant City of Union City.

      Mr. Ralph R. Feigelson for defendant Township of North Bergen.
   Bilder, J. S. C.

This is a motion by an injured party for leave to file a notice of late claim against the City of Union City pursuant to the provisions of the New Jersey Tort Claims Act, N. J. S. A. 59:8-9.

Plaintiff Ralph Marino alleges that he was injured in an accident on August 21, 1974 when, in the course of a baseball game in which he was playing catcher, a runner advancing from third base ran into him. As a result of this play at home plate plaintiff alleges he received severe injuries which left him a quadriplegic. Since the accident he has been almost continuously hospitalized in New York City.

Plaintiff further alleges that the severity of his injuries and the accompanying incapacitation were such that his failure to file a claim within the 90-day period provided for in N. J. S. A. 59:8 — 8 constitutes excusable neglect. He says that it was only recently that he contacted a New York attorney with respect to this matter and that New Jersey counsel was consulted promptly thereafter.

Defendant does not dispute the severity of the injuries but urges that plaintiff, though physically incapacitated, could have made known his claim much sooner by the use of third persons with whom he was regularly able to communicate.

The New Jersey Tort Claims Act provides a procedure which claimants are required to follow when seeking recovery from public entities based upon tortious conduct. N. J. S. A. 59:8 — 1 ei seq. Included in this procedure are provisions requiring the claimant to provide the public entity with notice of the claim. Hid. The notification requirements of the act have been recognized as serving two salutory purposes: (1) to allow a public entity at least six months for administrative review of a claim and thus provide an opportunity for the settlement of meritorious claims prior to suit, and (2) to provide for prompt notification of a claim to permit adequate investigation and the preparation of a thorough defense. Reale v. Wayne Tp., 132 N. J. Super. 100, 109 (Law Div. 1975); Dambro v. Union County Park Comm’n, 130 N. J. Super. 450, 455 (Law Div. 1974); Comment to N. J. S. A. 59:8-3, Report of the Attorney General’s Task Force on Sovereign Immunity, 230 (1972).

In order to implement its policy of prompt notification, the Legislature provided that claims must be filed within 90 days from the accrual of the cause of action or be “forever barred.” N. J. S. A. 59:8-8. However, the Legislature recognized that circumstances might arise in which the needs of justice require that injured parties be able to get relief from what might be a harsh application of this rule. Therefore, the Legislature provided for relief by giving the Superior Court discretion to permit the filing of a late notice of claim at any time within one year after the accrual of the claim upon a showing by affidavit of sufficient reasons for the delay, provided the public entity is not substantially prejudiced thereby. N. J. S. A. 59:8-9. In exercising that discretion the court must examine both sides of the coin: the reasons for plaintiff’s failure to file within the 90-day period and the prejudice to the public entity resulting from the late notice.

Thus, two issues are presented to the court. First, is the plaintiff’s incapacity sufficient reason for his failure to file notice of claim within the 90-day period; and, second, will the granting of the requested relief substantially prejudice the public entity?

There are two reported dceisions in New Jersey that have passed on the question of what are sufficient reasons within the meaning of N. J. S. A. 59:8-9. In Lutz v. Semcer, 126 N. J. Super. 288 (Law Div. 1974), plaintiff sought leave to filo a late claim on the grounds that he was unaware of the act and its 90-day notification requirement; that he was unaware of the seriousness of his injuries until some 4-1/2 months after the accident, and that his right to assert a claim for pain and suffering did not accrue until he had mot the $1,000 threshold under N. J. S. A. 59:9-2(d). The court denied the motion for leave to file a late claim, finding the reasons advanced by plaintiff insufficient. As to the first ground the court said: “Mere ignorance of the law is not a sufficient basis to excuse compliance with the requirements of this remedial statute.” Id. at 297. As to the second ground, the court noted that the plaintiff, an anesthesiologist, had considered his injuries of sufficient importance to cause him to notify the police surgeon of them, as well as to advise the municipal court at the traffic hearing. Id. at 296. In rejecting the third ground, the court noted that plaintiff’s claim accrued at the time of the accident. Id. at 298. “Any claim which he wished to assert for his injuries, however slight, was required to be filed within 90 days pursuant to N. J. S. A. 59:8-8.” Ibid.

In Wade v. N. J. Turnpike Authority, 132 N. J. Super. 92 (Law Div. 1975), the court found the reasons advanced by plaintiff for delay to be sufficient and, upon the further finding that the public entities were not substantially prejudiced thereby, granted the motion for leave to file a late claim. It said:

Here there are reasons other than ignorance of the law, set forth in the affidavits and brief accompanying this motion. Those additional reasons include: the five month confinement of Marie P. Wade, due to injuries received in the accident; his unawareness of any claim against public entities; the fact that shortly after the accident he was removed from a New Jersey hospital and flown to Maine where he remained until after April 28, 1974 [six months after the accident] ; and the late date at which New Jersey counsel was brought into the matter and apprised of the possible claims against public entities. Such reasons are certainly sufficient within the meaning of N. J. S. A. 59:8-9. [at 99]

Our courts have taken notice that the New Jersey Tort Claims Act was based upon California’s Tort Claims Act and have looked to its case law for guidance. Dambro v. Union County Park Comm’n, supra, 130 N. J. Super, at 456; Lutz v. Semcer, supra, 126 N. J. Super, at 292.

In California the statute provides for late filing if, among other things, the claimant was physically incapable of timely filing. In its application this provision has been liberally construed to permit late filing where there is serious physical disability, even though the physical and mental condition did not preclude communicating with others or filing timely notice through third persons.

In Gonzales v. Merced Cty., 214 Cal. App. 2d 761, 29 Cal. Rptr. 675 (D. Ct. App. 1963), plaintiff sought leave to file a late claim for injuries received while diving into a lake which resulted in his becoming a quadriplegic. The county appealed from the grant of plaintiff’s petition, arguing that plaintiff was not mentally incapacitated during the period in which he failed to file his claim and thus could have obtained an attorney or had his wife act on his behalf to file for him within time. In affirming the grant of the leave to file a late claim the court held that there was no question that plaintiff was permanently physically incapacitated and that this was sufficient reason for the delay in filing. It went on to say:

Physical disability alone, as in this case, is sufficient without regard to mental capacity, and the law does not require someone else to act for him * * *. [29 Cal. Rptr. at 678]

Nor need the physical disability be the sole reason for the delay. In Thompson v. Fresno Cty., 59 Cal. 2d 686, 31 Cal. Rptr. 44, 381 P. 2d 924 (Sup. Ct. 1963), a quadriplegic was denied leave to file a late claim where the trial court found her delay was caused by misrepresentations of the county’s agents as to the true cause of her paralysis. In reversing, the Supreme Court said that plaintiff’s uncontradieted allegations showed the delay was caused by her physical incapacity even though her ignorance of the cause of that disability may have been a contributing factor, and that the statutory relief did not require that the incapacity be the sole reason for the delay.

In O'Brien v. City of Santa Monica, 220 Cal. App. 2d 67, 33 Cal. Rptr. 770 (D. Ct. App. 1963), the court allowed the filing of a late claim by a 77-year-old woman who suffered injury to her head and knees as the result of a bus door being closed on her and was thereafter either hospitalized or bedridden during the initial filing period. “From this it is reasonable to infer that during that time she was physically incapacitated and, as such, incapable of attending to the details of filing a claim.” Id. at 774. Cf. Martin v. City of Madera, 265 Cal. App. 2d 76, 70 Cal. Rptr. 908 (D. Ct. App. 1968), in which a contention of physical incapacitation was rejected where the court noted that it could be readily inferred that “plaintiff, for a substantial part of every day for six months, was reasonably capable of attending to his business affairs with the care and diligence of persons in average good health.” Id. at 912.

Similar results have been reached in New York under statutory provisions similar to California’s. See eases collected in Annotation, “Tort claims against public entity — notice”, 44 A. L. R. 3d 1108 at 1142 et seq. (1972).

The notion that serious physical disability without more can render a person incapable of making a claim is not new to our law. In Giacobbe v. Gassert, 29 N. J. 421, 425 (1959), the victim of a hit-and-run accident failed to give notice, prerequisite to a claim, to the Unsatisfied Claim and Judgment Fund within the 90-day statutory period. He relied, therefore, upon a section of the statute tolling the time period while a person was “physically incapable” of giving the statutory notice. Plaintiff had serious fractures of both legs and during his period of alleged incapacity was in and out of hospitals, in and out of leg casts, restricted to the use of a wheel chair and finally on crutches. In rejecting the literal reading of “physical incapacity” urged by the Director of Motor Yehicles, our Supreme Court gave expression to the realities, stating:

* * * the act is to be liberally construed to advance the remedy, due regard being had for the protection of the fund and the realization of the essential legislative design; and to this end it suffices if, because of the physical injuries and their treatment and preoccupation with his affliction and fear of evil consequences, the victim of the mishap was not mentally and emotionally adjusted to his responsibility of giving notice; ’' * *. [at 425]

In Greene v. Director of Div. of Motor Vehicles, 65 N. J. Super. 242 (App. Div. 1961), certif. den., 35 N. J. 60 (1961), plaintiff was found “physically incapable” of giving notice even though he had actually filled out hospitalization forms, welfare forms and forms mailed to him by his union during the period. The court said that

While the extent of the claimant’s injuries in Giacobbe was greater than in the case of plaintiff herein, there is no essential difference in the two cases as to the inferability of the injured parties’ emotional and mental distress in consequence of the kind of injuries involved (in both cases comminuted compound leg fractures). The evidence in the present case discloses a continuous, mentally disturbing and distracting absorption of the plaintiff over the ever-present pain in his leg during the period between the two 1958 hospitalizations, if not even later. We know as a fact that the conditions responsible for the pain were not rectified until the resetting and bonegraft of the leg in 1959. And plaintiff was upset over economic problems affecting his family. Equally with the situation which concerned the plaintiff in Giacobbe must it fairly be concluded here that the plaintiff, because of his physical injuries and his continuous pain and worry about his condition, ‘was not mentally and emotionally adjusted to his responsibility of giving notice’ until some time after the December 1958 hospitalization, [at 247]

In the instant ease the proofs show that plaintiff is a quadriplegic, paralyzed from the neck down and entirely dependent on others for his care; has been confined to hospitals in New York since the time of the accident, and has had substantial and significant economic concerns with respect to the hospital and medical expenses which finally resulted in his leaving the hospital a few days ago when his medical insurance ran out. The emotional and mental distress resulting from the kind of injury received by the plaintiff is self-evident. The court finds that the plaintiff’s incapacity was sufficient reason for his failure to file the notice of claim within the 90-day period and that he has satisfied the requirements of N. J. S. A. 59:8-9 in this regard.

Turning to the second issue, it is the opinion of the court that the public entity has not been substantially prejudiced by the delay in the filing of a notice of claim. The accident which gives rise to this claim was not an obscure event, unknown and unnoticed by all but plaintiff. Apparently this was a matter of much publicity at the time and, indeed, was the subject of a number of local public fund-raising efforts to aid plaintiff with the financial problem which his injury created.

Plaintiff’s motion for leave to file a notice of late claim is granted.

       N. J. S. A. 59:8-9 provides:
      “A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the superior court, be permitted to file such notice at any time within 1 year after the accrual of his claim provided that the public entity has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion based upon afiidavits showing sufficient reasons for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act; provided that in no event may any suit against a public entity arising under this act be filed later than 2 years from the time of the accrual of the claim.”


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

text:
    FIVE MIGRANT FARMWORKERS, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, v. JOSEPH HOFFMAN, IN HIS CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF LABOR & INDUSTRY; THE DEPARTMENT OF LABOR & INDUSTRY; MARIO GOMES, IN HIS CAPACITY AS CHIEF OF THE BUREAU OF MIGRANT LABOR; BUREAU OF MIGRANT LABOR, AND SAMUEL STERN & SONS, INC., A NEW JERSEY CORPORATION; DEFENDANTS.
    Superior Court of New Jersey Law Division
    August 26, 1975.

      Mr. Michael S. Berger, for plaintiffs (Camden Regional Legal Services, Inc., attorney).
    Ms. Miriam Daniel Guido for plaintiffs, pro hac vice.

      Mr. Michael S. Bokar, Deputy Attorney General, for defendants Hoffman and Gomes (Mr. William F. Hyland, Attorney General of New Jersey, attorney).

      Mr. Jeffrey Doranz for United States Department of Labor as amicus curiae.

   Horn, A. J. S. C.

Defendants Hoffman and Gomes, in their respective governmental capacities, move for a dismissal of this in lieu action or for summary judgment. The corporate defendant, Samuel Stern & Sons, Inc., has been dropped from the case by consent of plaintiffs.

The action, brought and permitted to proceed as a class action for “Five Migrant Farmworkers and all others similarly situated,” alleges essentially that there are approximately 1,000 migrant farm labor camps in New Jersey which are used to house nearly 11,000 workers who come to this State for agricultural work. Before 1975 the program of enforcement for minimum standards of housing and sanitation have included pre-occupancy inspections as well as periodic inspections of all migrant labor camps in Yew Jersey.

Commencing in 1975 the State will no longer make preoccupancy inspections of labor camps except as to those which recruit workers through the Division of Employment Services which result from the requirements of the Wagner-Peyser Act of 1933. 29 U. S. C. A. § 49 et seq. As a result, no such pre-occupancy inspections will be performed in 600 to 700 migrant labor camps in Yew Jersey.

It is further asserted that plaintiffs and the others similarly situate suffer and will in the future suffer from the failure to make such inspections as mandated by the provisions of the Seasonal Farm Labor Act, N. J. S. A. 34:9A-1 et seq., and particularly 34:9A-20, which is partially quoted hereinafter.

Although they do not dispute the material allegations of fact, defendants and amicus curiae disagree with plaintiffs’ thesis with respect to the present obligation on the part of the State to make pre-occupancy inspections. The basis for the disagreement rests on the issue of pre-emption by the Federal Government of the obligation, right and duty for such pre-occupancy inspections, i. e., are the terms of N. J. S. A. 34:9A-20 superseded and rendered nugatory by the provisions of the Occupational Safety and Health Act of 1970 (OSHA), 29 U. S. C. A. § 651 et seq.?

The problem did not arise until April 1, 1975 because, pursuant to OSHA, the U. S. Secretary of Labor (Secretary) had approved a plan submitted by New Jersey, 29 U. S. C. A. § 672(g), in 1972, whereby the Federal Government provided 50% of the funds for administration and enforcement of the Yew Jersey program, including pre-occupancy as well as post-occupancy inspections of camps. Upon the failure of the State Legislature to enact required legislation to continue the plan in force, both the Secretary and defendant Hoffman, as the Commissioner of Labor and Industry, mutually agreed that the plan must become ineffective, leaving the parties to carry out only the obligations imposed otherwise. Consequently, the Commissioner withdrew regulations pertaining to pre-occupancy inspections.

Plaintiffs submit that N. J. S. A. 34:9A-20 still requires the State to make such pre-occupancy inspections. This statute partially reads as follows:

Each person employing any person to work in or at camps * * * shall apply, not later than 60 days prior to the opening of any such camp * * * to the bureau (of migrant labor) for a certificate of compliance of such camp with the requirements of this act. * * The commissioner (of Labor and Industry) shall cause each camp to be inspected within 45 days of receipt of an application * * . If the commissioner finds from the application and inspection that a camp fully complies with the requirements of this act, he shall issue a certificate to that effect. No camp shall be maintained, operated, used or occupied until the commissioner shall have issued therefor a certificate as required by this section; provided, that if no inspection of a camiJ has been made within 45 days of the receipt of an application for a certificate of compliance, such camp may open but shall be closed by the commissioner if subsequent inspection discloses the fact that such camp does not substantially comply with the requirements of this act. [Emphasis supplied]

It is conceded by plaintiffs that at least part of the laws of New Jersey pertaining to inspections of farm labor camps have been superseded as the result of pre-emption under OSHA. Specifically, post-occupancy inspections are no longer to be made by the State under N. J. S. A. 34:9A — 10, which mandates post-occupancy inspections.

The pre-emption stems from section 18(a) of OSHA. which specifically provides:

Nothing in this Act shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to tohich no standard is in effect under section 655. [29 U. S. C. A. 667(a) ; emphasis supplied]

The Secretary, pursuant to the statute, has promulgated a broad set of standards substantially similar to those proclaimed by the New Jersey Department of Labor and Industry. The effect of the adoption of these standards, as already mentioned, admittedl] is to relieve the State from performing such post-occupancy inspections.

Plaintiffs advance several grounds for their contentions that the State is still required to conduct pre-occupancy inspections pursuant to N. J. S. A. 34:9A-20. They urge that there is no explicit or implicit pre-emption of New Jersey certification of farm labor housing and that there is no federal standard in effect to regulate and certify farm labor housing prior to occupancy. They observe that the Wagner-Peyser Act, 29 U. S. C. A. § 49 et seq., which provides for the interstate recruitment of farm workers through the state employment services, makes it mandatory by reason of the Federal Code of Eegulations, 20 C. F. R. 620, that pre-occupancy inspections be made by the state employment service and that the housing must be certified to be in compliance with the regulations before workers so recruited may be employed. It is said that N. J. S. A. 34:9A-20 provides for a system of certification similar to that of the Wagner-Peyser Act. This alone, they argue, would indicate that pre-emption was not intended.

I disagree because I find that the federal statute, OSHA, is so broad and sweeping as to encompass the entire gamut of migrant worker protection in the field of inspection and minimum standards of migrant workers’ housing quarters.

There is no doubt in my mind that the Secretary may conduct pre-occupancy as well as post-occupancy inspections, but whichever inspection is made the same standards must be observed. The mere fact that the Secretary may not conduct inspections at all or not as often as plaintiffs feel to be necessary is not legal cause for construing statutes differently. Perhaps a failure may lead to another type of cause of action, but it do'es not affect the basic principles determining pre-emption.

The fact that the Wagner-Peyser Act compels pre-oc-cupancy inspections with respect to camps to be occupied by workers recruited through the interstate system does not create any precedent or even an implication that there must be similar inspections under state law to cover housing for those recruited outside the system because it raises no implication that similar inspections would not otherwise be made by the Secretary.

Even agreeing that there should be no distinctions with respect to housing or inspections thereof on the basis of how the farm workers are obtained, it still does not follow that same raises an implication that different housing standards are applicable or that pre-emption has not taken place.

Because in some instances the standards created by the New Jersey Department of Labor and Industry may be more stringent adds no weight to plaintiffs’ arguments. It remains that the Secretary did promulgate standards sufficient under his jurisdiction and authority to carry out the congressional intent. The question of pre-emption cannot, in my opinion, turn upon a comparison of the respective regulations.

Pre-emption is a factual determination essentially based upon intention of the predominant authority, in this instance the federal law. Summer v. Teaneck, 53 N. J. 548 (1969); Wein v. Irvington, 126 N. J. Super. 410 (App. Div. 1974); Hanover Tp. v. Morristown, 135 N. J. Super. 529 (App. Div. 1975).

OSHA establishes a comprehensive legislative scheme whose declared purpose is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U. S. C. A. § 651. This act demonstrates an intention to supersede the authority and obligations of all state laws with respect to the general working conditions where such standards as were adopted by the Secretary are inaugurated. Burbank v. Lockheed Air Ter minal, 411 U. S. 624, 93 S. Ct. 1854, 36 L. Ed. 3d 547 (1973). The preemption covers pre- as well as post-occupancy inspections. As stated in Burbank, each case turns on the peculiarities and special features of the federal regulatory scheme in question.

N. J. S. A. 34:9A-20 requires pre-occupancy inspections to determine compliance “with the requirements of this act." Since the requirements for adequate and proper housing after occupancy admittedly are now solely within the sphere of the Secretary and no longer with the State, it seems to me that since the federal regulations now control there are left no requirements of the Seasonal Farm Labor Act as to which there must be compliance.

Apart from all other considerations, N. J. S. A. 34:9A-30, when read with N. J. S. A. 34:9A-16, creates doubt as to whether there is a mandatory obligation to make preoccupancy inspections. Section 16 authorizes the Department of Labor and Industry to temporarily suspend the operation of one or more sections of the Seasonal Farm Labor Act when material priorities or manpower shortages make it impractical to comply therewith. As already observed, section 30 does not make it a condition precedent that an inspection be made before a camp is opened. In my view, I am not obliged to decide whether the State would otherwise be obliged to perform pre-occupancy inspections as a mandatory obligation.

Having determined that the Secretary has the authority under OSHA to make pre-occupancy inspections as well as post-occupancy inspections, the fears of plaintiffs that he would be less vigilant than the State is not an acceptable basis for determining the question of pre-exemption.

I have considered all other arguments of plaintiffs and find them to be without merit. Accordingly, except where out-of-state workers are recruited through the interstate clearance system under the Wagner-Peyser Act (29 U. S. C. A. § 49 et seq.), I hold that the State has neither the authority nor the obligation to make pre-occupancy inspections of farm labor camps under the Seasonal Farm Labor Act (N. J. S. A. 34:9A-1 et seq.).

Finding that plaintiffs’ complaint fails to state a cause of action, judgment dismissing same will be entered.


text:
    MARK WOOD, PLAINTIFF, v. DIC/UNDERHILL AND UNIVERSAL BUILDERS SUPPLY CO., BLITMAN CONSTRUCTION CO., PORT AUTHORITY OF N. Y. AND N. J., A/K/A JOURNAL SQUARE TRANSPORTATION CENTER, AND E. MAKISH, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided August 27, 1975.

      Mr. Henry J. Williams for plaintiff (Messrs. Seaman, Williams and Seaman, attorneys).

      Mr. Francis X. Garrity for defendant Port Authority of N. Y. and N. J., a/k/a Journal Square Transportation Center (Messrs. Bergamino & DeGonge, attorneys).
   Bilder, J. S. C.

This suit arises from an accident which occurred on December 13, 1972 in connection with the construction of a project for the Port Authority of New York and New Jersey (hereinafter called Port Authority). Plaintiff was a carpenter employed by a subcontractor and alleges he was injured when a scaffold upon which he was working broke, causing him to fall some 30 feet.

Plaintiff pursued his workmen’s compensation remedies against his employer, the subcontractor. Thereafter he instituted the instant suit, naming as defendants the owner, the general contractor and a safety inspector — third parties he alleges to be liable to him for his injuries. The right of workmen’s compensation is not a bar to such a third-party action. N. J. S. A. 34:15-40.

This is a motion by the defendant Port Authority for a dismissal on the ground that suit is barred by virtue of plaintiff’s failure to comply with the provisions of N. J. S. A. 32:1 — 163 which requires that suits against the Port Authority be commenced within one year after the date the cause of action accrues. As noted, the accident occurred on December 13, 1972 and suit was not instituted against the Port Authority until January 14, 1974. It is well settled that an action for personal injury accrues at the time of the accident. Tortorello v. Reinfeld, 6 N. J. 58, 65 (1950).

N. J. S. A. 32:1-163 provides as follows:

The foregoing consent is granted upon the condition that any suit, action or proceeding prosecuted or maintained under this act shall be commenced within one year after the cause of action therefor shall have accrued, and upon the further condition that in the case of any suit, action or proceeding for the recovery or payment of money, prosecuted or maintained under this act, a notice of claim shall have been served upon the Port Authority by or on behalf of the plaintiff or plaintiffs at least sixty days before such suit, action or proceeding is commenced. The provisions of this section shall not apply to claims arising out of provisions of any workmen’s compensation law of either State.

It is plaintiff’s contention that his claim in this suit against the Port Authority arises out of the provisions of our Workmen’s Compensation Act and is therefore saved by the last sentence of N. J. S. A. 32:1-163.

Initially it should be noted that the Port Authority is the creature of a bi-state compact requiring concurrent legislation of both New York and New Jersey. “Since the Authority is an instrumentality of New York and New Jersey, it is eminently desirable, of course, that the path of judicial decision in the courts of the two states be a common one.” Moonachie v. Port of N. Y. Auth., 38 N. J. 414, 425 (1962).

Prior to 1951 the Port Authority was immune from suit. See Port of N. Y. Auth. v. Weehawken Tp., 27 N. J. Super. 328, 333 (Ch. Div. 1953); Trippe v. Port of New York Auth., 14 N. Y. 2d 119, 123, 249 N. Y. S. 2d 409, 410, 198 N. E. 2d 585, 586 (Ct. App. 1964). By joint legislation which became effective June 13, 1951, sovereign immunity was waived and consent was given to suits against that agency. N. J. S. A. 32:1 — 157 et seq.; N. Y. Unconsolidated Laws § 7101 et seq. (McKinney 1951). As an act in derogation of sovereign immunity this legislation must be strictly construed. Rao v. Port of New York Auth., 122 F. Supp. 595 (E. D. N. Y. 1954), aff’d 222 F. 2d 362 (2 Cir. 1955). See State v. Court of Common Pleas, 1 N. J. 14, 22 (1948).

Examination of our case law discloses only one decision dealing with the saving sentence exempting claims arising out of provisions of our compensation law from the one-year limitation. In Feeley v. Port of New York Auth., 53 N. J. Super. 233 (Cty. Ct. 1958), Judge Pindar held that a compensation carrier’s subrogation right under N. J. S. A. 34:15-40 (f) (a portion of our Workmen’s Compensation Act) was a claim arising out of a provision of the compensation law and thus saved by the exemption in N. J. S. A. 32:1-163. In Feeley an employee of a contractor was injured while doing work for an employer on defendant’s premises. Compensation was duly paid by the employer’s carrier. After it appeared that the employee did not intend to institute proceedings against the Port Authority for the injuries he had received, the carrier commenced an action pursuant to N. J. S. A. 34:15-40(f).

Judge Pindar pointed out that the carrier, in bringing this suit, was exercising a right of subrogation specifically provided for in the Workmen’s Compensation Act. Thus, as a claim arising under the act, the carrier’s subrogation claim was not barred by the provisions of the one-year statute of limitations in N. J. S. A. 32:1-163. Ho further noted the anomaly that would exist if this were not so by virtue of the fact that N. J. S. A. 32:1-163 requires that a suit be commenced within one year after the cause of action accrues, whereas N. J. S. A. 34:15-40(f) does not permit the bringing of the subrogation action by the compensation carrier until after the expiration of one year from the accident plus ten days after written notice to the employee.

In the instant case plaintiff’s suit against the Port Authority is founded upon common law tort remedies. He would predicate liability on the failure of the Port Authority to fulfill the duties which it owed to him with respect to his presence upon its land. Similarly, his claims against the other defendants are based on common law principles. The action which is being brought is not a claim “arising out of provisions of [our] workmen’s compensation law” but is an independent action, .not barred by the overall scheme of our compensation laws.

In the course of determining the subrogation rights of a compensation insurer in United States Cas. Co. v. Hercules Powder Co., 4 N. J. 157 (1950), our Supreme Court took occasion to examine the overall scheme of the workmen’s compensation legislation and had this to say about the injured party’s claim against third persons:

There is retained for the benefit of the injured employee or his dependents the benefit of his common law action against such third party in which the application of the common law rule for the assessment of damages may result in the recovery of an amount in excess of the total amount of the compensation awarded according to the statutory formula prescribed by the act. [at 165]

A similar expression of the independent basis of the injured workman’s claim against a third party was set forth by Judge Drewen in Belfatto v. Mass. Bonding and Ins. Co., 39 N. J. Super. 507 (Ch. Div. 1956). In that case he determined that a workman bringing an action against a third party does not require the approval of the compensation carrier in order to settle the pending litigation. In describing the nature of the employee’s action he stated (at 512), “The common-law action sanctioned by the statute is an independent and substantive thing; * *

Finally, plaintiff contends that the Port Authority is barred from asserting the defense of qualified immunity by virtue of its failure to plead that in its answer. R. 4:5-4. It is not disputed that this defense was raised for the first time on this motion. The applicable rule has recently been set forth in Reale v. Wayne Tp., 132 N. J. Super. 100 (Law Div. 1975), where the court said:

In Jackson v. Hankinson, 94 N. J. Super. 505, 514 (App. Div. 1967), aff’d 51 N. J. 230 (1968), the court determined that under R. R. 4:8-3, the source rule of R. 4:5-4, the defense of qualified immunity of a municipality had to be specifically pleaded in order to avoid surprise, which purpose it identified as “the spirit of the rule.” However, it went on to qualify this pleading requirement where public policy compelled having the defense before the court and the other party was not prejudiced, citing Douglas v. Harris, 35 N. J. 270 (1961), as authority, [at 106]

In the instant ease the court perceives no .basis for denying the Port Authority the right to assert the legislatively mandated bar of N. J. S. A. 32:1-163. The prejudice to plaintiff is no greater today when it would have been on the day the action was brought against the Port Authority some 13 months after the accident. It was a viable defense then as it is now. No additional prejudice is visited upon plaintiff by permitting this late assertion of the defense.

Defendant’s motion for summary judgment on the ground that the suit is barred by N. J. S. A. 32:1 — 163 is granted.


text:
    MARY EMMA, PLAINTIFF, v. JOSEPH R. ROMANO, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided September 11, 1975.

      Mr. Joseph P. Perfilio for plaintiff (Messrs. Perfilio & Marquet, attorneys).

      Mr. Brian J. Coyle for defendant (Messrs. Wulster, Lloyd & Ryan, attorneys).
   Bilder, J. S. C.

This matter arises out of a rear-end automobile accident in which plaintiff passenger in the front car alleges she was injured as a result of the negligence of the driver of the rear car. Defendant, in addition to his denial of negligence, has asserted as a separate defense that plaintiff’s injuries were confined to the soft tissue and her medical expenses were less than $200, the threshold established under our No Fault Act, thus barring her claim pursuant to N. J. S. A. 39:6A — 8.

It appears from the uncontroverted affidavits that the accident occurred when the car in which plaintiff was riding was struck in the rear when it stopped at an intersection to yield the right of way to an emergency vehicle traveling on the intersecting street.

Plaintiff brings a motion for summary judgment as to the issue of liability, arguing that there is no genuine issue as to the negligence of the defendant. Plaintiff has joined this with a motion to strike the separate defense, and defendant has brought a cross-motion for summary judgment on the basis of the same defense. All of the relevant facts have been stipulated with respect to the question of whether the statutory threshold has been met.

Plaintiff suffered soft tissue injuries to her left index finger and back. The accident occurred on November 18, 1974.

Initially she was seen by a doctor who rendered a bill of $55. This doctor treated her for the injuries to her finger from November 19, 1974 until he discharged her December 18, 1974. His bill was for four office visits, each of which encompassed treatment.

Thereafter, on January 3, 1975 she was seen by an orthopedic surgeon who rendered a bill for $160. Ills bill included $125 for three office visits and four physiotherapy treatments. There was in addition a $35 charge for an X-ray of the lumbosacral spine taken on the occasion of the first office visit.

Thus plaintiffs bills without the X-ray charge total $180 —less than the threshold provided by N. J. S. A. 39:6A-8. With the X-ray charge included plaintiffs bills exceed $200 and her claim is not barred.

Plaintiff argues that the statute does not exclude X-rays from the medical expenses unless solely diagnostic. It is her contention that the X-ray in this case, although diagnostic, should be considered as part of the doctor’s ongoing treatment and included within the threshold amount, citing Harris v. Osorio, 125 N. J. Super. 463 (Law Div. 1973), supplemented 125 N. J. Super. 468 (Law Div. 1973). She does not contend the X-ray was given as therapy.

N. J. S. A. 39:6A — 8, a part of the New Jersey Automobile Reparation Reform Act — more commonly known as our No-Fault Act — provides as follows:

Every owner, registrant, operator or occupant of an automobile to which section 4, personal injury protection coverage, regardless of fault, applies, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for damages to any person who is required to maintain the coverage mandated by this act, or to any person who has a right to receive benefits under section 4 of this act as a result of bodily injury, arising out of the ownership, operation, maintenance or use of such automobile in this State, if the bodily injury, is confined solely to the soft tissue of the body and the medical expenses incurred or to be incurred by such injured person or the equivalent value thereof for the reasonable and necessary treatment of such bodily injury, is less than $200.00, exclusive of hospital expenses, X-rays and other diagnostic medical expenses. There shall be no exemption from tort liability if the injured party has sustained death, permanent disability, permanent significant disfigurement, permanent loss of any bodily function or loss of a body member in whole or in part, regardless of the right of any person to receive benefits under section 4 of this act. Bodily injury confined solely to the soft tissue, for the purpose of this section means, injury in the form of sprains, strains, contusions, lacerations, bruises, hematomas, cuts, abrasions, scrapes, scratches, and tears confined to the muscles, tendons, ligaments, cartilages, nerves, fibers, veins, arteries and skin of the human body.

This section is the exemption provision by which the Legislature sought to exclude cases which it felt should be below the threshold of legal response (other than the no-fault concept which assures immediate reimbursement of actual out-of-pocket expenses). It defined this excluded group' as soft tissue injuries where the costs of treatment are less than $200. Recognizing the rapid escalation of expenses inherent in hospitalization and in X-ray and other diagnostic medical procedures, it excluded these costs from the yardstick it chose — the $200 medical treatment threshold. The X-ray expense in the instant case was incurred for diagnostic purposes; it was not used therapeutically. Its exclusion is mandated by the plain language of the act.

In construing this act it is important to recognize what the Legislature has sought to accomplish. What the Legislature sought was to segregate out of our legal system negligence claims for pain and suffering arising from soft tissue injuries, the nature and extent of which were such as not to require at least $200 in treatment and thus were, in the Legislature’s view, not sufficiently severe to warrant legal redress. This intention of the Legislature should be given effect.

They have not sought to limit the use of X-rays, diagnostic tests or consultations, or to place any constraints on hospitalization. Indeed, to the contrary, by providing for the prompt payment of these expenses regardless of fault they have encouraged prompt and adequate medical care.

The propriety of the X-ray procedure 1'ot plaintiff is not questioned. Its propriety, as with any other diagnostic procedure, lies with the physician. Nor is no-fault coverage of the expense questioned. The question is solely whether plaintiff shall be permitted to recover for the pain and suffering which she alleges accompanied her soft tissue injuries. As previously noted, the exclusion of the X-ray expense is mandated by the statute and her claim for pain and suffering is barred.

To the extent this opinion conflicts with Harris v. Osorio, supra, this court respectfully disagrees with that case. When viewed in the light of the legislative purpose and the overall scheme of the no-fault concept, diagnostic consultations would seem to be clearly within the excluded expenses of N. J. S. A. 39:6A-8.

Simon v. Hospital Service Ass’n of Pittsburgh, 192 Pa. Super. 68, 159 A. 2d 52 (Super. Ct. 1960), upon which Harris relies, is a case involving the interpretation of a hospitalization policy and is inapposite. The question in Simon was whether Blue Cross policy covered a hospitalization in which the patient was admitted for treatment but in which a large part of the care consisted of diagnostic procedures. Medical insurance is intended to relieve the financial burdens of illness and should be liberally construed to achieve that end. Strict construction which denies reimbursement of out-of-pocket expenses for necessary care — including diagnostic consultations — would be a limitation on the insured’s reasonable expectations and indeed, as a practical matter, upon the practice of medicine. With respect to the no-fault exemption, however, strict construction limits claims for pain and suffering in minor automobile accidents and reduces litigation — the avowed legislative purposes.

Defendant’s motion for summary judgment is granted and plaintiff’s motions are denied.


author: Per Curiam.

text:
    BERTA LEITENBERGER, PETITIONER-RESPONDENT, v. OLT BROTHERS, INC., RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted September 16, 1975
    Decided September 25, 1975.
    Before Judges Carton, Crahay and Handler.

      Mr. John W. Taylor, attorney for appellant.

      Mr. Joseph Asbell & Associates, attorneys for respondent (Mr. Joseph Asbell, on the brief).
   Per Curiam.

Respondent employer appeals from an award of compensation to the widow of its deceased employee. The sole question on appeal is whether that widow should be d©-prived of dependency benefits merely because, since her husband’s death, she has held herself out as the wife of another man although she has not married him.

The issue was decided in Gaudreau v. Eclipse Pioneer Division, Bendix Air Corp., 137 N. J. L. 666 (E. & A. 1948). It was there held that the Legislature had clearly provided that only the actual remarriage of a widow terminates her right to workmen’s compensation benefits. Since common law marriages have not been recognized in this State since 1939, it is necessary that there be an actual ceremonial remarriage before a widow can be deprived of dependency benefits. Short of that, the widow’s life-style, albeit an illicit relationship, is no bar to her receiving compensation. Gaudreau at 368, 370.

Affirmed.