author: Pee Cubiam.

text:
    A & S TRANSPORTATION CO., OCEAN DISPOSAL CO., INC., BOTH NEW JERSEY CORPORATIONS (A JOINT VENTURE) AND RONALD T. KILEY, PLAINTIFFS-RESPONDENTS, v. BERGEN COUNTY SEWER AUTHORITY, A BODY POLITIC AND CORPORATE OF THE STATE OF NEW JERSEY, AND GENERAL MARINE TRANSPORT CORP., A NEW JERSEY CORPORATION, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued June 16, 1975
    Decided June 27, 1975.

      Before Judges Collesteb, Lora and Handle.

      Mr. David Carmel argued the cause for appellant Bergen County Sewer Authority (Messrs Gross, Demetrakis and Sinisi, attorneys).

      Mr. Jared Stamell, attorney of the State of New York, argued the cause for appellant General Marine Transport Corp. {Mr. Harry Melnick, attorney).

      Mr. Richard C. Cooper argued the cause for respondents {Messrs. McCarter and English, attorneys; Mr. Robert M. Becker on the brief).
   Pee Cubiam.

We affirm substantially for the reasons expressed in the opinion of Judge Pressler reported at 133 N. J. Super. 266 (Law Div. 1975).

However, we do not subscribe to so much of the opinion which holds that because of inherent incomparability and the self-defeating consequence of a predetermined WPI increase for comparison purposes, it is improper to require bidders to submit both a fixed price and a flexible bid since it would never be possible to determine in advance of the actual future determination of the index which of the bids would yield the lower actual cost.

It is our view that the Bergen County Sewer Authority would not be precluded from considering alternative bids or circumscribed with respect to the business judgment involved in determining whether to accept one alternative as against another if the Authority included in its specifications, for comparative purposes only, the particular estimate which it was going to utilize with respect to the average distance to the Dump Site B, as well as its estimate as to the average rate of inflation or price fluctuation in the Wholesale Price Index of Industrial Commodities, for the flexible price bid. Each bidder could then be compared by an objective standard and the lowest bidder could be determined for each alternative bid. Cf. James Petrozello v. Chatham Township, 75 N. J. Super. 173 (App. Div. 1962). It would then be a matter of business judgment on the part of the Authority to determine which alternative to select.

Obviously, the specifications should clearly set forth that the estimates incorporated therein for purposes of comparison of bids do not constitute any representation by the Authority that at the time of performance by the successful bidder those factors would actually exist.


source: Caselaw Access Project

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

license: Public Domain

text:
    THE BOARD OF EDUCATION OF THE CITY OF ENGLEWOOD, PETITIONER-APPELLANT, v. ENGLEWOOD TEACHERS’ ASSOCIATION, AN UNINCORPORATED ASSOCIATION OF SEVEN (7) OR MORE PERSONS, RESPONDENT-RESPONDENT. THE BOARD OF EDUCATION OF THE BOROUGH OF TENAFLY, PETITIONER-APPELLANT, v. TENAFLY TEACHERS’ ASSOCIATION, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted June 3, 1975
    Decided June 27, 1975.

      Before Judges Matthews, Ebitz and Bottee.

      Messrs. Wittman, Anzalone, Bernstein & Dunn, attorneys for appellant Board of Education of the City of Englewood (Mr. Thomas W. Dunn, on the brief).

      Mr. Irving C. Evers, attorney for appellant Board of Education of the Borough of Tenafly.

      Messrs. Goldberg & Simon, attorneys for respondents Englewood Teachers’ Association and Tenafly Teachers’ Association {Mr. Theodore M. Simon on the briefs).

      Mr. David A. Wallace, attorney for Public Employment Relations Commission.

      Mr. Lester Aron, attorney for amicus curiae New Jersey School Boards Association.
   The opinion of the court was delivered by

Matthews, P. J. A. D.

Petitioners, Board of Education of the City of Englewood (Englewood) and Board of Education of the Borough of Tenafly (Tenafly), seek leave to appeal an “interlocutory decision” of the Public Employment Relations Commission (PERC) which denied injunc-tive relief to each of them pending the resolution of scope of negotiations proceedings. We grant leave to appeal solely on the issue as to whether PERC has jurisdiction to grant the restraints requested. The two appeals are consolidated, and pursuant to B. 2 :ll-2 we proceed to the merits.

We are not concerned with the merits of the issues which led to these proceedings. Eor the purposes of this decision it is sufficient that we note that both Englewood and Tenafly have disagreed with the claims of the education associations representing their faculties. Both education associations have invoked the arbitration clauses under the existing contracts between each of them and their respective boards of education. Both Englewood and Tenafly responded to the arbitration requests by seeking injunctive relief from the Chancery Division of this court. Both were advised by the Chancery Division judge that he had no jurisdiction over the subject matter and, accordingly, he refused to accept the complaints for filing. No appeal was taken from that action.

Thereafter, both Englewood and Tenafly applied to the State Department of Education, again seeking a stay of the respective arbitration proceedings. Again, they were advised that there was no jurisdiction in the State Department of Education.

Subsequently, both boards filed petitions with PEBC for scope of negotiations determinations under the provisions of N. J. 8. A. 34:13A-5.4(d). In their petitions both boards alleged that disputes had arisen with respect to certain matters which the associations have sought to process pursuant to collectively negotiated grievance procedures and concerning which the associations are attempting to invoke arbitration pursuant to their contract grievance procedures. In connection with the relief sought each board requested that PEBC temporarily restrain arbitration during the pendency of the scope of negotiations proceedings. In seeking the temporary relief each board contended before PEBC that if it prevailed on the merits, the associations would not be entitled to proceed to arbitration.

PEBC, under N. J. 8. A. 34:13A-6(f), delegated its executive director to act on its behalf. After hearing the arguments of counsel he filed a formal opinion in which he concluded that PEBC did not have jurisdiction to grant injunc-tive relief under the provisions of N. J. 8. A. 34:13A-5.4 (d), although he did conclude that such jurisdiction did exist with respect to the unfair labor practice provisions of subsection 5.4(c). He stated:

* * * the Commission views scope of negotiations proceedings under subsection (d) in an entirely different light. The very differences in procedure and philosophy that distinguish “scope” proceedings from “violations” proceedings, outlined above — differences which, in the Commission’s judgment, are valid and necessary — also serve to distinguish the two types of proceedings with respect to their amenability to interim relief requests. Put differently, the very elements of “violations” proceedings under subsection (e) which lend themselves conceptually and pragmatically to the assertion of interim relief jurisdiction, are absent from “scope” proceedings under subsection (d).

We disagree with the reasoning and conclusion of the PERO interlocutory decision in this regard and reverse. The legislative scheme embodied in N. J. 8. A. 34:13A-1 et seq. (L. 1974, c. 123) imposes on PERC full responsibility for forestalling, resolving and supervising both potential and actual labor disputes involving public employees. Under the statute PERO regulates elections of negotiation representatives, negotiations and impasse proceedings, it determines the scope of negotiability, issues cease and desist orders to those who engage in unfair labor practices, and also issues any other orders reasonably necessary to effectuate the purposes of the act. N. J. 8. A. 34:13A-5.4 and 6 (L. 1974, c. 123, §§ 1, 5). Considering these broad powers granted to it by the Legislature, we can conceive of no reason why PERO should not have the power to grant interim relief during the pendency of a scope of negotiation proceeding. Certainly, PERO has the power to terminate any arbitration proceedings by issuing its final order in a scope proceeding. Implicitly, it should have the power to' suspend arbitration whenever it determines it reasonable to do so. Obviously, if the result of a given scope proceeding would negate arbitration, the prosecution of arbitration proceedings in the interim would constitute a monumental waste of time and energy.

Again, we cannot conclude that it was the intent of the Legislature to compound scope procedures by requiring resort to another tribunal during their pendency. It seems more probable that it was the legislative intent that all issues relevant to scope of negotiations be determined in one forum. Cf. Dist. 66, R.W.D.S.U. v. Paramount Surg. Sup. Co., 117 N. J. Super. 125, 128 (App. Div. 1971) We find that in vesting PERC jurisdiction over questions of scope of negotiability the Legislature intended to include the jurisdiction and power to grant interim relief in such proceedings.

Needless to say, we express no opinion as to whether the> interim relief ought to be granted.

The interlocutory decision (PERC No. 86) of the Public Employment Relations Commission, dated May 7, 1975, is reversed. Both proceedings are remanded to PERC for such further proceedings as may be appropriate. No costs to any party.


author: Fritz, J. A. D.

text:
    STATE OF NEW JERSEY, IN THE INTEREST OF R.G.W., JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 25, 1975
    Decided June 30, 1975.

      Before Judges Matthews, Eritz and Botter.

      Mrs. Rosemary K. Reavey, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. John P. Goceljak, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph JJ. J. Gourley, Passaic County Prosecutor, attorney).
   The opinion of the court was delivered by

Fritz, J. A. D.

Defendant, a juvenile, confessed to a brutal murder in which he, a newsboy, stabbed a female patron from whom he was collecting, some 36 times. He was formally charged with juvenile delinquency.

Two competency hearings were held, the first on Eebruary 25, 1974 and the second on May 10, 1974. In each case, the juvenile was adjudged unable to stand trial by reason of insanity and was committed to the Greystone Park Psychiatric Hospital. In the latter hearing the judge was urged to inquire with respect to and determine, pursuant to N. J. S. A. 2A :163-2, whether the juvenile was insane at the time of the offense. He declined, characterizing his determination in this regard as an exercise of discretion. Somewhat enigmatically he said that he “truthfully believes that no purpose will be served to trangress in the area of juvenile law that is yet to be established.” Regretfully, and we believe incorrectly, he refused to act in this respect until such time as “our appellate courts, and perhaps our Supreme Court * * * have been given the opportunity faced with the facts that are presented to this Court to bring to bear their collective wisdom, and their collective expertise in the handling of these matters” and he had the benefit of “the philosophical direction of the highest court of our State to suggest a court of inferior jurisdiction what in their best judgment should be the course of action to follow.”

Defendant appeals from this denial of his motion, urges the applicability of N. J. S. A. 2A:163-2, challenges the exercise of discretion in the denial, and asks that, in the event of a remand, we acknowledge that “there is a Reasonable’ limit to the length of time during which an individual incompetent to stand trial may be institutionalized in an asylum without having the question of his Rriminal responsibility5 adjudicated.”

The State does not challenge the applicability of N. J. S. A. 2A:163-2. Rather, it defends as correct the “exercise of discretion” below.

We get swiftly past the threshold question of the applicability of the statute. Juveniles have every right to a defense of insanity, and in fact “all defenses available to an adult.” N. J. 8. A. 2A:4-60. This postulate being statutorily sound, it is unthinkable that those rights should be abridged, even extinguished, by the failure of N. J. S. A. 2A :163-2 — which does not exclude application to juveniles ■ — ■ to include them specifically. We see no reason at all to suppose that the “any person” referred to in N. J. S. A. 2A:163-2 was not intended to include juveniles. Were the statute thought to direct otherwise, a constitutional question might well be presented. State in the Interest of Carlo, 48 N. J. 224 (1966). The holding of State in the Interest of H. C., 106 N. J. Super. 583 (J. & D. R. Ct. 1969) was overriden by N. J. S. A. 2A:4-60 and no longer represents the law.

We turn to the reasons given by the judge below for his refusal to conduct that which he called a M’Naghten hearing. After expressing an opinion that N. J. 8. A. 2A:163-2 applied, and determining that there were good reasons for holding a second hearing on the competency of defendant to consult with counsel and stand trial, the judge below turned to the question as to “whether this Court has the right to consider the substantive issue of M’Naughton insanity on the merits.” There is no doubt at all as to the existence of that right. The expression of the question by the judge appears inconsistent with his conclusion that N. J. 8. A. 2A:163-2 is applicable, for that statute confers the right upon the court. Whether circumstances impel a court, in the employment of its discretion, to exercise that right is a different matter.

Be this at it may, the judge then postulated in the following form the questions deemed by him to be controlling in exercising his discretion with respect to a M’Naghten hearing:

1. What degree of difficulty, effort and time would be required to determine the question of insanity, and
2. What is to be gained, justified by this difficulty, his effort and time, or in other words, will the welfare of the juvenile be sufficiently enhanced so as to cause the Court to invoke its discretion regardless of the problems and the difficulties involved.

He concluded, apparently as a matter of law judging from the citation of law and the absence of any findings at all correlated to the facts of the case before him, that “a full scale adversary hearing on the merits of the case would be required.” He then turned to the “sole question” remaining, as to "whether such a hearing is justified under the present circumstances.” As to this, the court concluded, again apparently as a matter of law because the determination is predicated upon a recitation of case law with no findings at all concerning circumstances of the present case, that "since no criminal liability or stigma can attach because of the pendency of the complaint, no real benefit could possibly accrue to the juvenile by virtue of the M’Naughton hearing.”

Assuming without deciding that the tvro-qnestion approach taken below is correct, we are satisfied that the benefit which might be derived by a defendant from a M’Naghten hearing is not to be measured in terms of criminal stigma vel non alone. In the first place, commitment upon a criminal charge, or, as here, a charge of juvenile delinquency tantamount to a criminal charge, in a case where defendant is not competent to stand trial, may presage an incarceration sufficiently indefinite to offend due process. See Jackson v. Indiana, 406 U. S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972). This is certainly so where a substantial probability exists that defendant would neyer be able to participate competently in a trial. Jackson v. Indiana, supra; cf. State v. Carter, 64 N. J. 382 (1974). While we might speculate from the trial judge’s comments and our review of the medical testimony and reports, we have no findings at all from the trial judge with respect to the likelihood of a return to competency sufficient to stand trial, an intelligently estimated predictive date, or a statement of reasons why such a finding is not feasible.

Further, irrespective of criminality vel non as a matter of semantics (to say nothing of sanctions), we are of the opinion that a very real right of the juvenile, jeopardized by the ruling below, is his right to avoid, in proper circumstances, the necessity to defend a complaint “years later after hnuch of the evidence pertinent to the issue of insanity at the time of the offense may have been lost.’ ” Aponte v. State, 30 N. J. 441, 454 (1959). Indeed, the desirability of trial as quickly as possible under the various circumstances is engrafted upon our jurisprudence and ingrained in our constitutions. State v. Davis, 131 N. J. Super. 484 (App. Div. 1974).

We do not suggest that in all cases discretion is to be exercised in the direction of trying the issue of competency at the time of the crime. There will be times when such an inquiry should not be launched, as, for example, when incapacity to stand trial may be temporary or, reasonably predictably, not for long. Farmer v. State, 42 N. J. 579 (1964). And had the judge below arrived at his determination that that which he called a M’Naghten hearing should be postponed because of the likelihood of imminent return to competency sufficient to stand trial, record testimony might well have supported such a conclusion.

But the determination is a mixed question of law and fact, to be determined in accordance with the circumstances in each case, in accordance with all the foregoing. The determination below lacks the essential findings and cannot stand.

We remand for further hearing relating to whether judicial inquiry should be made as to the sanity of the accused at the time of the offense, all consistent with the foregoing. At that hearing additional testimony may be required or offered, and the judge below may, if he deems it advisable, consider again the question of defendant’s present competency to confer with counsel and properly defend his interests at a hearing on the complaint. Needless to say, if defendant is presently competent, the inquiry regarding mental competency at the time of the crime may be but need not be separately tried, but in any event the plenary hearing should be expedited. We do not retain jurisdiction.

      We express our disapproval of procedure whereby defendant “advise [s] the Court that the juvenile incorporates as part of his appeal all arguments and issues set forth in the brief” filed in the trial court, even when “with the consent of the * *' * Prosecutor.” The reasons for our disapproval should be at once apparent without statement to experienced and competent appellate counsel.


author: Per Curiam.

text:
    WILLIAM W. CONKLIN, PETITIONER-APPELLANT, v. BOARD OF TRUSTEES OF THE POLICE AND FIREMEN’S RETIREMENT SYSTEM DIVISION OF PENSIONS, DEPARTMENT OF THE TREASURY OF THE STATE OF NEW JERSEY, RESPONDENT-RESPONDENT. WILLIAM W. CONKLIN, PETITIONER-RESPONDENT, v. CITY OF EAST ORANGE, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 16, 1975
    Decided July 1, 1975.

      Before Judges Collesteb, Loba and Handles.

      Mr. Richard Newman argued for petitioner-appellant.

      Mr. Samuel J. Halpern, Deputy Attorney General, argued for respondent-respondent (Mr. William F. Hyland, Attorney General of New Jersey; Mr. Stephen Shillman, Assistant Attorney General, of counsel).

      Mr. Alfred F. Carolonza, Jr., argued for respondent-appellant.

      Mr. Ernest N. Giannone argued for petitioner-respondent (Giannone & Capone, attorneys).
   Per Curiam.

The appeal in the case bearing docket No. A-297-74 is from a decision of the Board of Trustees of the Police & Firemen’s Betirement System denying accidental disability retirement to petitioner. This appeal is consolidated for purposes of disposition with appeal bearing docket No. A-771-73.

Petitioner was injured on May 3, 1971 when he pulled a battery charger from in front of the dual wheels of the hook and ladder tractor which he then drove to a fire in response to an alarm. He filed an application for accidental disability retirement on November 6, 1972 pursuant to N. J. 8. A. 43:16A-7. On December 18, 1972 the board rejected petitioner’s application for accidental disability, but granted'him an ordinary disability retirement pension.

We are satisfied that the board properly determined on sufficient credible evidence in the whole record that petitioner, notwithstanding the assertion that he was free of any prior infirm condition relating to his hack, did not incur his injury and ultimate disability as a result of an undesigned, unexpected or unusual event. Hillman v. Bd. of Trust., Pub. Emp. Ret. Sys., 109 N. J. Super. 449, 460-461 (App. Div. 1970). His disability in the circumstances described — the employee doing his usual work in the usual way — is not an accidental disability within the meaning of the pension statute, N. J. S. A. 43 :16A-7. Accordingly, the determination of the board is affirmed.

In the second appeal, docket No. A-771-73, petitioner contends as against his employer, the City of East Orange, that he is entitled to the award made by the judge of workmen’s compensation for workmen’s compensation benefits since his pension was granted for ordinary disability and not for accidental disability, and further, that his disability pension was not granted for the same injury or disability for which the compensation award was made. The City of East Orange asserts that N. J. S. A. 34:15-43 bars the payment of a workmen’s compensation award to a former employee for permanent disability where the former emploj’ee is receiving an ordinary disability retirement pension for the same injury and disability upon which the workmen’s compensation. award is based.

N. J. S. A. 34:15-43 provides in part:

No former employee who has been retired on pension by reason of injury or disability shall be entitled under this section to compensation for such injury or disability; provided, however, that such employee, despite retirement, shall, nevertheless, be entitled to the medical, surgical and other treatment and hospital services as set forth in section 34:15-15 of the Bevised Statutes.

It has been recognized that N. J. S. A. 34:15-43 bars workmen’s compensation payments when the former employee is receiving accident disability pension benefits. In re Application of Smith, 57 N. J. 368, 375 (1971); Swan v. Bd. of Trustees of Teachers’ Pension Fund, 85 N. J. Super. 226 (App. Div. 1964); Ziegler v. State, 95 N. J. Super. 273 (App. Div. 1967); Reinhold v. Irvington, 134 N. J. L. 416 (Sup. Ct. 1946); Flynn v. Union City, 30 N. J. Super. 467 (Cty. Ct.), aff’d 32 N. J. Super. 518 (App. Div. 1954), certif. den. 17 N. J. 253 (1955). And, the statute is not a bar when the former employee is receiving pension benefits based on age or service. Pisapia v. Newark, 47 N. J. Super. 353 (Cty. Ct. 1957).

We hold that N. J. S. A. 34:15-43 bars the receipt of workmen’s compensation by a retired employee who is receiving ordinary disability pension benefits where the underlying disability is the same for which workmen’s compensation is claimed. We also reject the argument that such an employee is entitled to recover workmen’s compensation only for purposes of off-setting such compensation against his retirement pension. To this extent, we respectfully differ from the ruling in Leoni v. Hamilton Tp., 134 N. J. Super. 231 (App. Div. 1975).

N. J. S. A. 43:16A-15.2(b), L. 1971, c. 175, § 18, may be a cognate statute to be considered in conjunction with N. J. S. A. 34:15-43. The recent amendment to the pension statute, however, cannot in these circumstances alter the plain terms of the workmen’s compensation statute. A proposed amendment to the Workmen’s Compensation Act, Senate Bill 441 (introduced January 26, 1970), which would have permitted an application for workmen’s compensation benefits by a disability retireant was vetoed by the Governor on March 11, 1971. The pension act itself was amended by L. 1971, c. 175, effective June 1, 1971, shortly after the Governor’s veto of the proposed amendment of the Workmen’s Compensation Act, N. J. S. A. 34 .15-43. Presumably, this implemented in part the suggestion of the Supreme Court in In re Application of Smith, supra. In view of the fiscal consequences of the latter proposal, however, we cannot conclude, as was done in the Leoni case, that the amendment of N. J. S. A. 43 :16A-15.2 by implication was intended by the Legislature to eliminate the bar of N. J. S. A. 34:15-43 or to permit the recovery of workmen’s compensation to be then applied as a credit against the receipt of pension benefits. While it is not now urged that a retireant be granted a double recovery of both pension and workmen’s compensation benefits, there would, as to state and other public employees, undoubtedly be a financial impact as between the various pension systems and the governmental employing units, even on the basis of offsetting recoveries. Thus, it is improper under these circumstances, for us to presume that the Legislature intended a change of some magnitude of the Workmen’s Compensation Act by its amendment of the pension act governing the Police and Firemen’s Retirement System. Cf. Singleton v. Consolidated Freightways Corp., 64 N. J. 357, 362 (1974); also, Mimkon v. Ford, 66 N. J. 426, 433 (1975).

For these reasons the decision in appeal bearing docket No. A-771-73 is reversed. As noted earlier, the decision in the appeal bearing docket No. A-297-74 is affirmed.


author: Walsh, J. C. C.

text:
    NICHOLAS FALCONE, PLAINTIFF, v. JOAN P. BRANKER, VALERIE A. JOHNSON AND KEITH W. HALL, DEFENDANTS. JEANETTE FALCONE, PLAINTIFF, v. JOAN P. BRANKER, VALERIE A. JOHNSON AND KEITH W. HALL, DEFENDANTS, AND VALERIE A. JOHNSON AND KEITH HALL, DEFENDANTS AND THIRD-PARTY PLAINTIFFS, v. NICHOLAS A. FALCONE, THIRD-PARTY DEFENDANT.
    Superior Court oí New Jersey Law Division
    June 19, 1975.

      Mr. Frederick A. Onore for plaintiff Nicholas Falcone, (Messrs. Onore & Onore, attorneys).

      Ms. Marilyn R, T. Harlem for defendants and third-party plaintiffs Valerie A. Johnson and Keith Vi. Hall (Mr. John W. Taylor, attorney).

      Mr. George W. Kenny for defendant Joan P. Branker (Messrs. McElroy, Connell, Foley & Geiser, attorneys).

      Mr. Douglas Greenfield for plaintiff Jeanette Falcone (Messrs. Greenfield & Greenfield, attorneys).

      Mr. Henry H. Rubmson for third-party defendant Nicholas A. Falcone.

   Walsh, J. C. C.

Temporarily Assigned. This consolidated action arises out of a three-ear automobile collision which took place on May 23, 1973. One of the drivers, plaintiff Nicholas Falcone, M.D., suffered injuries which, incidental to their healing, left a small facial scar and a scar below his left kneecap (both described in greater detail below). Medical treatment expenses totaled $91. As a result of his injuries Dr. Falcone instituted suit for pain and suffering, which suit was subsequently consolidated with another action previously filed by the doctor’s wife.

Based upon depositions and interrogatories defendants Joan P. Branker, Yalerie A. Johnson and Keith W. Hall now move for summary judgment dismissing the doctor’s complaint for failure to state a claim upon which relief can be granted. The movants assert the tort exemption of New Jersey’s Automobile Reparation Reform Act, N. J. 8. A. 39:6A-8 (popularly known as the “No Fault Law”), bars recovery on Dr. Falcone’s pain and suffering claim due to his failure to meet the threshold limit of $200 in medical treatment bills required by the statute as a prerequisite to successful prosecution of this suit. Dr. Falcone opposes the motion on the grounds that the scars left from the injuries suffered constitute permanent significant disfigurements, thereby placing his claim outside the tort exemption of the above cited statute. The doctor further asserts that whether or not the scars are permanent significant disfigurements within the meaning of the statute is a fact question, thereby precluding the granting of defendants’ motion. Defendants believe the court should deal with their motions in a summary manner pursuant to R. 4:67-5. Thus, both substantive and procedural questions are presented for resolution in this motion, which have not been previously answered in any reported decisions in our jurisdiction dealing with our No Fault Law. The court will first deal with the major substantive issue.

I

The statute upon which the parties rely in their contentions, N. J. 8. A. 39 :6A-8, states:

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. [Emphasis supplied; footnotes omitted]

The attorneys stipulated that Dr. Falcone is a licensed and registered New Jersey operator-owner whose car is principally garaged in New Jersey, and to whom N. J. S. A. 39:6A — 4 applies. See N. J. S. A. 39:6A — 3 and Fennell v. Ferreira, 133 N. J. Super. 63, 69 (Law Div. 1975). Furthermore, the effective date of the act (January 1, 1973, L. 1972, c. 70, § 19) was over four months prior to the date of the accident, malting N. J. S. A. 39:6A-8 fully applicable to plaintiff. The next question, therefore, is what constitutes a permanent significant disfigurement.

A number of other jurisdictions have enacted so called no fault auto insurance laws which contain tort exemptions with language similar to or the same as ours. In Minnesota and Florida the phrase “permanent disfigurement” is used, 7 M. S. A. § 65B.51 subd. 3(b)(1) and 18A F. 8. A. § 627.737(2); while Illinois and Michigan use the phrase “permanent serious disfigurement,” S. H. A. Ch. 73, § 1065.158(c) and 17A Mich. Stats. Anno. § 24.13135(1) [M. C. L. A. 500.3135 (1)]; New York’s description is “significant disfigurement,” Mc.K. Consol. Laws, C. 28, Insurance, §§ 671(4) (a) and § 673(1), and Connecticut uses the same phrase as New Jersey, C. G. S. A. § 38-323'(a) (4). Unfortunately, only one case has been found construing any of these phrases, and this decision is merely an advisory opinion of a state supreme court on the constitutionality of their no fault law. In re Requests of Governor and Senate, etc., 389 Mich. 441, 208 N. W. 2d 469 (1973). The case is helpful, however, in that the court stated that the phrase "permanent serious disfigurement” not only provided sufficient standards for legal interpretation, but had done so for many years, citing a long list of workmen’s compensation eases. 389 Mich, at 479-480, 208 N. W. 2d at 481-482, n. 11. It is to this body of case law that this court turns for interpretive guidance.

Some prefatory remarks are necessary before examining the workmen’s compensation cases. The underlying rationale for the award is to compensate the injured worker for the decrease in saleability of his skills and/or earning capacity resulting from the disfigurement. Thus, over and above an objective consideration of whether a particular scar is a permanent significant (or serious) disfigurement, most of the compensation eases make loss of earning capacity attributable to the scar a criterion in determining whether to make an award, and if so, how much. See generally 2 Larson, Workmen’s Compensation Law, § 58.32; Everhart v. Newark Cleaning & Dyeing Co., 119 N. J. L. 108 (E. & A. 1937) and Wright v. Purepac Corp., 82 N. J. Super. 100 (Cty. Ct. 1963) (the latter ease offering a comprehensive listing of the New Jersey workmen’s compensation disfigurement cases which contain no workable definitions (for present purposes) of disfigurement, since all are tied to the earnings capacity criterion). Also, some statutes limit the areas of the body for which compensation for disfigurement may be awarded, e.g., La. Stats. Anno. — R. S. 23 :1221(4) (p) (face or head). Subject to the above caveats, the compensation cases do afford a viable basis, or at least starting point, for construing the relevant phrase in our Ho Fault Law.

The apparently now classic definition of the phrase "permanent serious disfigurement” in a compensation setting was made in Superior Mining Co. v. Industrial Commission, 309 Ill. 339, 141 N. E. 165 (1923) :

* * * The act does not provide compensation for every mark or sear, nor for every disfigurement. A disfigurement is that which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner. Before compensation can be awarded under the Workmen’s Compensation Act there must be a disfigurement, and that disfigurement must be both permanent and serious. It was certainly not intended under this provision to authorize compensation for every trifling mark that could be discovered by the closest inspection. * * * [141 N. E. at 166]

The continued vitality of this oft-quoted definition is witnessed by its adoption in jurisdictions initially dealing with the issue, St. Laurent v. Kaiser Aluminum & Chemical Corp., 316 A. 2d 504, 506 (R. I. Sup. Ct. 1974), as well as by the fidelity with which it is followed in its own jurisdiction. See e.g., Corn Products Co. v. Industrial Common., 51 Ill. 2d 338, 282 N. E. 2d 445 (Sup. Ct. 1972). And, for reasons to be stated below, this court considers use of the word “serious,” as opposed to our statute’s “significant” disfigurement, to be a distinction without a substantive difference.

Among other cases worthy of note is Ousley v. Employers Mutual Liability Ins. Co. of Wis., 121 So. 2d 378 (La. App. 1960), where the court was dealing with a statute allowing a worker recovery when he was “seriously permanently disfigured about the face or head.” The court held that:

* * * a sear on the face which significantly mars the natural facial expression and is such as to attract attention is a facial disfigurement compensable under the above-quoted provision. * * * [at 379; citation omitted]

With regard to the word “serious,” the court in Dombrowski v. Fafnir Bearing Co. 148 Conn. 87, 167 A. 2d 458 (Sup. Ct. Err. 1961), relying on Mitchum v. Inman Mills, 209 S. C. 307, 40 S. E. 2d 38, 39 (1946), stated that “[d]isfigurement, in order to be serious, must be fof such a character that it substantially detracts from the appearance of the person disfigured/” 167 A. 2d at 462 (emphasis supplied).

Evaluation of the term “permanent” in the context of the phrase under consideration is somewhat difficult. Clearly, ■ a scar which is likely to close and become progressively thinner and less apparent with the passage of time, to the point where it loses any significance it may have had when new, would not constitute a permanent significant disfigurement. See e.g., General Motors Corp. v. Shannon 155 A. 2d 237 (Del. Super. Ct. 1959), aff’d 161 A. 2d 433 (Del. Sup. Ct. 1960), and Chisholm v. Jahncke Dry Docks, Inc., 10 La. App. 323, 121 So. 684 (App. Ct. 1929). In the case presently before the court, however, this problem need not be resolved as the court does not find the permanence of the scars to be a determinative factor.

Lastly, the court looks to the legislative history of N. J. S. A. 39:6A-8, as well as the canons of statutory construction, for what additional light may be shed on the meaning of the phrase under consideration. The commission delegated to study the no fault auto insurance question recommended tort liability where there was a death or soft tissue injuries incurring medical treatment costs of $100 or more. New Jersey Automobile Insurance Commission Study Report (Dec. 1971), Recommendation 3, at XIII. The addition of the phrases “permanent disability, permanent significant disfigurement, permanent loss of any bodily function or loss of a body member in whole or in part,” as found in N. J. S. A. 39:6A-8, was apparently made by the Insurance Committee of the General Assembly by committee amendment. Iavicoli, No Fault and Comparative Negligence in New Jersey, § 54, “Major Injury Limitation,” ' 131 (1973), authored by the legal counsel to the aforementioned Study Commission. No other useful legislative history is extant.

Assistance in ascertaining the legislative intent is afforded by resort to the familiar maxim of noscitur a sociis. Through use of this aid the meaning of a word or a particular set of words in a statute may be indicated, controlled or made clear by the words with which it is associated, in a manner somewhat similar in application to the more familiar doctrine of in pari materia. 2A Sutherland, Statutory Construction (4th ed. 1973), § 47.16 at 101; Ford Motor Co. v. N. J. Dept. of Labor and Industry, 5 N. J. 494, 602 (1960); Salz v. State House Comm’n., 18 N. J. 106, 111 (1955), and Germann v. Matriss, 55 N. J. 193, 220 — 221 (1970).

Turning to N. J. S. A. 39 :6A-8, we find that the associated words all connote injuries of a substantial nature. Iamcoli, op. di., lists as examples of the “major injuries” which would override the tort exemption the following: torn medial miniscus, subdural hematoma, collapsed lung, disfiguring facial scarring and ruptured bowel. The court therefore holds that the word “serious,” as found in the compensation cases cited above, is at the least synonymous with “significant” as found in the statute considered here. Thus, the definitional language found in those cases stating that the disfigurement must be more than a trifling mark discoverable on close inspection. Superior Mining Co. v. Industrial Comm’n., supra, and that a disfigurement becomes serious when it substantially detracts from the appearance of the person disfigured, Domibrowshi v. Fafnir Bearing Co. supra, accurately describes the type of disfigurement needed to override the tort exemption of N. J. S. A. 39:6A-8. Judged in this light, a facial scar has to mar the natural expression so as to attract attention and should be materially disfiguring to meet the statutory criteria. Ousley v. Employers Mutual Inability Ins. of Wis., supra.

The court believes that the interpretation given above is buttressed by the contrast presented between the phrase “permanent significant disfigurement” in the context of its associated words, and the enumeration of bodily injuries confined to soft tissue to which the tort exemption fully applies. Soft tissue injuries such as “lacerations, * * * cuts, abrasions, scrapes, scratches, and tears confined to the * * * nerves, fibers * * * and skin of the human body” (N. J. 8. A. 39:6A-8) do not * * * give rise to tort liability. Since it is common knowledge that lacerations, cuts, abrasions, etc., often result in formation of scar tissue, an absurd result would be achieved were this court to hold that all scarring from auto accident injuries rose to the level of a permanent significant disfigurement within the intendment of the statute. Our courts are enjoined not to reach such a conclusion in determining the legislative intent. Restaurant Enterprise, Inc. v. Sussex Mutual Ins. Co., 52 N. J. 73, 77 (1968).

Turning now to the scars which plaintiff asserts are permanent significant disfigurements, the court finds that plaintiff’s facial scar is near, or on the tip of the nose, approximately inch long; extremely thin; the same color as the surrounding skin, and barely noticeable at a three-foot distance, even when one knows where to look. The scar on the doctor’s leg is elliptical in shape, somewhat like a quarter moon, about 1% inches long, a quarter inch wide at most, located 2 to 2^ inches below the kneecap, and basically the color of the surrounding skin, although possibly a shade darker and shiny and smooth as in the nature of scar tissue with no hair growing on it. The court also notes that in the surrounding calf area of the 66-year-old plaintiff were vari-cosities more noticeable and unsightly than the scar, which was just visible from 12 feet if one knew where to look. Neither scar was ever sutured; the leg sear healing naturally after application of cold compresses.

Some of the "scar” eases decided under the various state workmen’s compensation statutes offer an indication of the understanding of other courts as to what constitutes a permanent serious (or significant) disfigurement. In the following cases the courts held the scarring to be compensable: Poole v. Saxon Mills, 192 S. C. 339, 6 S. E. 2d 761, 765 (Sup. Ct. 1940) (scar and depression 3y2 inches long, extending from above eye into scalp); Black, Sivalls & Bryson v. Homier, 194 Okl. 162, 148 P. 2d 166, 167 (Sup. Ct. 1944) (sear of 1 to lyi inches above eye, requiring three to four stitches and was noticeable and permanent); Bethlehem Steel Co. v. Wilson, 210 Md. 568, 124 A. 2d 249 (Snp. Ct. 1956) (two-inch transverse incisional scar on outer part of leg below knee, somewhat depressed and pigmented in first case, and rectangular scar on thigh 3)4 inches by 2)4 inches and not pigmented in companion ease); Corn Products Co. v. Industrial Comm’n, supra, (linear scar )4 inch long, about middle of forehead and )4 inch below hairline), and Temp-let v. Travelers Ins. Co., La. App., 278 So. 2d 805, 808 (App. Ct. 1973) (scar on right cheek just under eye was evident, fairly large and such as to attract immediate attention, although not seriously discolored or unusually pronounced). The eases where compensation was denied are: Superior Mining Co. v. Industrial Comm’n, supra (two slight blue scars hidden by eyelid when open); De Soto v. Magnolia Pipe Line Co., 9 La. App. 205, 119 So. 889-891 (App. Ct. 1929) (inch-long scar running from outside of eyebrow and extending upward toward middle of forehead and evidently narrow as not such as “to be noticed on casual observation”); Chisholm v. Jahncke Dry Docks, Inc., supra, (scar 3 cm. long and 1/3 cm. wide, running diagonally on left side of face in region of chin which, according to medical testimony, would eventually bleach out and narrow, become less apparent, a.nd eventually be difficult to observe); Mitchum v. Inman Mills, supra, (two scars, one 1)4 inches long from center of eyebrow to corner of eye, resembling wrinkle on forehead; the other, )4 inch long on temple — both no wider than the lead in a pencil and unobservable to court at eight feet); General Motors Corp. v. Shannon, supra, 155 A. 2d at 237 (vertical sear in center of forehead 1)4 inches long and the width of a load pencil mark), and Dombrowski v. Fafnir Bearing Co., supra (two fine-line scars, one at base of thumb, 1)4 cm. long, and the other 1 cm. long along middle finger — both silvery white in color and unobservable unless hand opened and palm exposed). See generally, Annotation, “Workmen’s compensation: compensation for dis figurement”, 116 A. L. R. 712 (1938), and the Later Case Service. The court’s reading of these cases is to the effect that the scar must be such as to attract immediate attention and materially detract from the person’s appearance.

The court does not believe that the fact that the scar on the plaintiff’s knee is usually hidden by trousers should affect its judgment:

* * the area of the body normally covered by clothing has shrunk drastically as the years have passed. Shorts are standard and frequent attire for both men and women. * * * [Bethlehem Steel Co. v. Wilson, 210 Md. 568, 124 A. 2d 249, 252 (Sup. Ct. 1956) and Wright v. Purepac, supra, 82 N. J. Super, at 108.]

Nor should the availability of cosmetics or wigs be taken into account in an objective determination of whether a scar constitutes a permanent significant disfigurement. Cf. Arkin v. Industrial Comm’n of Colorado, 145 Colo. 463, 358 P. 2d 879 (Sup. Ct. 1961) dealing with the availability of prosthetic devices.

Applying the case law cited above to the facts at hand, the court holds that although plaintiff has suffered scarring which appears to be permanent in nature (although that is not decided as a fact), the court does not believe that it is of the significant nature needed to override the tort exemption of our No Fault Law. N. J. S. A. 39 :6A-8. This court believes the words of the court in General Motors Corf. v. Shannon, sufra, 155 A. 2d at 238, are most descriptive of this court’s attitude towards plaintiff’s sears:

I can think of no form of activity, social, economic, or otherwise, in which the claimant might indulge, and he subject to embarrassment by the presence of [these] small scar[s].

II

The next issues to be considered by the court contain both substantive and procedural problems. Plaintiff argues that his constitutional right to a jury trial is being denied by the court’s deciding whether or not the scarring described above constitutes a “permanent significant disfigurement” under N. J. S. A. 39:6A-8. The defendants contend that the proper resolution of this question should be by the court on a motion for summary judgment, B. 4:46, or after a hearing in a summary action brought pursuant to B. 4:67 — 5 with the complaining party exhibiting the alleged permanent significant disfigurement to the court in camera as has taken place in this case.

The N. J. Const. (1947), Art. 1, par. 9, states that the “right of trial by jury shall remain inviolate.” This right has been interpreted as guaranteeing a litigant a jury trial only in those cases where a party was entitled to a jury trial under the 1776 and 1844 Constitutions of New Jersey. Steiner v. Stein, 2 N. J. 367, 379 (1949), and Montclair v. Stanoyevich, 6 N. J. 479, 484 (1951). Thus, a jury trial is not warranted where there are factual disputes historically dealt with by a court of equity, Steiner v. Stein, supra, and the right generally extends only to issues of fact in those classes of eases where a right to a jury trial was known at common law. Montclair v. Stanoyevich, supra. And it should be noted at this point that the right to a jury trial in civil cases guaranteed by the Seventh Amendment of the United States Constitution has not been held applicable to the states through the Due Process Clause of the Fourteenth Amendment. See the cases cited in Melancon v. McKeithen, 345 F. Supp. 1025 (E. D. La. 1972), aff’d 409 U. S. 943, 93 S. Ct. 289, 34 L. Ed,. 2d 214, and aff’d 409 U. S. 1098, 93 S. Ct. 908, 34 L. Ed. 2d 679.

Interpretation of the law on a given, uncontroverted set of facts is for the court. The right to a jury trial never acted as a bar in New Jersey to motions in the form of summary judgment. Coykendall v. Robinson, 39 N. J. L. 98, 100-101 (E. & A. 1876); Jasion v. Preferred Acc. Ins. Co., 113 N. J. L. 108, 110-111 (E. & A. 1934), and National Surety Corp. v. Clement, 133 N. J. L. 22, 26 (E. & A. 1945). Where subjective states of mind are potentially in issue, e. g., malice or fraud, our courts deal cautiously with summary judgment motions. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67, 76 (1954). But where the facts are not in dispute and divergent inferences cannot arise, a question of law is presented for the court regardless of the type of suit. Wemple v. B. F. Goodrich Co., 126 N. J. L. 465, 469 (E. & A. 1941) (“reasonable time”); Marti v. Standard Fire Insurance Co., 127 N. J. L. 591, 593 (E. & A. 1941), and Prostick v. Vroom, 128 N. J. L. 383, 386 (Sup. Ct.), aff’d 129 N. J. L. 465, 467 (E. & A. 1943) (probable cause to file complaint in malicious prosecution action).

Erom an objective, empirical standpoint, the appearance, coloration, existence and size of the plaintiff’s scars are undisputed matters of fact. This being so, the case is ripe for summary judgment by the court as to whether or not, as a matter of law, plaintiff has sustained a “permanent significant disfigurement” as that term is used in N. J. S. A. 39:6A-8. The court therefore holds that plaintiff’s constitutional right to a jury trial is not being abrogated by this court’s decision on the motions for summary judgment. The court would hasten to add, however, that had there been any doubts entertained as to whether the scars described above might reasonably be considered to be permanent significant disfigurements under our Uo Fault Law, it would have left the issue to be decided by a jury. The defendants’ claim of tort exemption is an affirmative defense carrying the concomitant burden of proof. Fennell v. Ferreira, supra, 133 N. J. Super, at 69-70.

The final issue before the court is whether plaintiff should appear before the court on a hearing in a summary action brought pursuant to B. 4:67-5, or merely be subpoenaed by defendants for the hearing on the motion for summary judgment. While defendants brought this motion initially as one for summary judgment, the procedure suggested in Hammond v. Doan, 127 N. J. Super. 67 (Law Div. 1974) (see, too, the approval of this method in Smith v. U. S. Fidelity & Guar. Co., 305 So. 2d 216 (Fla. D. Ct. App. 1974), for Florida’s No Fault threshold questions), the motion was later changed, with the court’s acquiescence, to one brought under R. 4:67 — 5 in order to bring plaintiff into court for the hearing. R. 4:67-5, however, applies only to summary actions brought pursuant to a statute or the Rules of Court (see e.g., R. 4:85-1), O’Brien v. Baldwin, 2 N. J. Super. 134 (App. Div. 1949), and the court therefore now feels this rule is an inappropriate vehicle for procedurally resolving the type of issue presented.

Evidently the procedural aspects of deciding threshold questions were not uppermost in the minds of the drafters of the various No Fault Laws. See e. g., the discussion of the problem in Schwartz, “No-Fault Insurance: Litigation of Threshold Questions Under the New York Statute — The Neglected Procedural Dimension,” 41 Brooklyn Law Rev. 37 (1974). It was clearly the intent of the drafters, however, that not every automobile negligence case should reach a jury or no tort exemption would have been written into the statute. It is equally clear that it is the duty of this court to give efficacy to the legislative intent whenever possible. Dixon v. Gassert, 26 N. J. 1, 9 (1958). This being so, a pragmatic procedural solution consonant with the letter and/or spirit of the Rules of Court must be found.

While it may be highly unusual and not originally contemplated by the authors of the Rules that a litigant would appear before the court for an in camera hearing on a motion for summary judgment, plaintiff is the bearer of the facts upon which this motion must be decided. Our Rules of Court have sufficient flexibility to adapt procedure to meet unique situations in the pursuit of “simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” R. 1 :l-2. The court therefore holds that bringing plaintiff before the court at the time qf a motion for summaiy judgment under R. 4:46 is the proper procedure in this case, and decides- the motion on that basis.

For the reasons stated above, the court holds that defendants have met their burden of proving exemption from tort liability for Dr. Falcone’s injuries, and his complaint is hereby dismissed.


author: Pressler, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. EDITH M. RUSSELL, DEFENDANT.
    Bergen County Court Law Division
    April 25, 1975
    Supplemental Opinion June 12, 1975.

      Mr. Robert Bresin for plaintiff (Mr. Joseph C. Woodcock, Jr., Bergen County Prosecutor, attorney).

      Mr. Donald L. Garber for defendant.
   Pressler, J. C. C.

Defendant Edith M. Russell appealed de novo to the County Court pursuant to R. 3 :33-8(a) from her municipal court conviction of a drunk driving charge. The sole ground of the appeal, taken on the transcript of the trial below, is that the State failed to make an in-court identification of defendant. This court found the appeal to be wholly without merit.

The State’s case consisted of the testimony of Officer William McCarthy of the Ridgewood Police Department and Officer Joel Trella of the Bergen County Police Department, both of whom throughout their testimony repeatedly referred to defendant by name. According to their testimony, Officer McCarthy apprehended defendant after observing her driving her vehicle, of which she was the sole occupant, in a highly erratic manner. Except for a brief period during which she was transported by another Ridgewood police officer to local police headquarters, she was under Officer McCarthy’s continuous observation for well over an hour, both at the scene of the arrest and at headquarters, during which time her behavior and physical condition clearly indicated that she was intoxicated. While she was at headquarters Officer McCarthy filled out the routine “drunk driving” questionnaire by having defendant respond orally to the written questions as he read them to her. He also completed and signed the State Police form advising her of her rights in respect of the breatholizer test, which she had agreed to take. The test was administered twice by Officer Trella, a qualified operator, resulting in a reading of .23 on the first and .22 on the second. Following the testimony of the officers, the State rested and defendant also rested, declining to produce any proofs at all in her own behalf. Defendant then moved for acquittal on the same ground here urged. That motion was denied.

No question is here raised as to the propriety of the procedures or mechanics involved in administering the breatho-lizer test, and they appear, in fact, to have conformed with accepted technique. Nor is there any question here raised as to the sufficiency of the evidence to have supported the conviction of the person apprehended. What is contended is that defendant was not physically identified in the courtroom as the person apprehended. Defendant does not suggest that she is not indeed the person who was apprehended by Officer McCarthy or the person who took the breatholizer test administered by Officer Trella or that there is any question of misidentification. Nor does she deny that she was in fact present in the courtroom during the trial. She insists, however, that her conviction cannot stand in the absence of a formal in-court identification. As defense counsel stated the legal contention below on the motion to dismiss:

The State must prove who was driving the car. The question is asked, do you identify that the woman that you arrested? “Yes, that’s her sitting there.” That has never been done here. We have no proof of who was driving it respectfully, Judge, and it doesn’t matter what the officer testified to or any results of any tests, it’s never been linked up. It’s an essential absolutely necessary ingredient in any ease to identify the defendant. It has not been done here respectfully, sir. I therefore, move for a dismissal, sir.

This court agrees with defendant’s contention that the State must prove beyond a reasonable doubt that defendant was, in fact, the perpetrator of the crime or offense. See State v. Lucas, 30 N. J. 37, 53 (1959); State in Interest of W. J., 116 N. J. Super. 462, 465-6 (App. Div. 1971). It also agrees that a formal in-court identification by an eye witness is a highly desirable method of adducing such proof. It does not, however, agree that that is the only possible mode of proof of identity and that in its absence a conviction cannot be obtained. That proposition is obvious.

The precise question here presented, that is, whether a defendant can be identified by name only where his identity is not otherwise in apparent dispute, has not been dealt with by our courts nor, apparently, by any other jurisdiction with the exception of Indiana, which has consistently held such form of identification to be sufficient under circumstances similar to those here. See State v. Schroeppel, 240 Ind. 185, 162 N. E. 2d 683 (Sup. Ct. 1959); Preston v. State, 259 Ind. 353, 287 N. E. 2d 347 (Sup. Ct. 1972); Stevenson v. State, 318 N. E. 2d 573, 576 (Ind. App. 1974) (not yet officially reported). The Indiana rule is based upon the assumption that defendant is, in fact, in court during the trial, as required by Indiana practice, and its application apparently requires that a state’s witness has testified to circumstances evidencing his personal knowledge of who the defendant is, i. e., that the person apprehended and the person charged and the person whose name he refers to as defendant and the person present in the courtroom are, in fact, all one and the same. From such testimony the trier of the fact clearly may draw the inference that the named defendant is in fact the offender. See Evict. R. 1(2). This court agrees with the soundness of the Indiana rule and the appropriateness of its application here.

It should be further noted that New Jersey practice also requires the presence of defendant, at least at the commencement of the trial. See R. 7:4r-4(a). And cf. R. 3:16. There is no question but that this defendant was, in fact, present during the trial, in compliance with the rule. Assume, however, that also pursuant to the rule, she had voluntarily left the courtroom before either of the State’s witnesses could have been asked to have pointed to her, thus precluding the possibility of an in-court identification being made at all. If defendant’s theory were correct, then virtually every conviction could be forestalled by that simple stratagem. Our courts are keenly aware and duly vigilant of the right of criminal defendants to procedural and substantive due process. To acquit this defendant for the reason here urged would, however, be a totally unwarranted triumph of form over substance.

Defendant is convicted as charged. A sentence is imposed of a two-year suspension of her driving license and a fine of $200 plus costs.

      This opinion is filed pursuant to R. 2:5-l(b).

      A letter opinion of the municipal court judge noted that the defendant was personally known to him and was, in fact in the courtroom.


author: Scalera, J. S. C.

text:
    ROBERT SABATO AND MARYANN SABATO, HIS WIFE, PLAINTIFFS, v. DOLORES SABATO, DEFENDANT.
    Superior Court of New Jersey Law Division
    June 13, 1975.

      Mr. Jack J. Soriano for plaintiffs (Messrs. .Soriano & Henkel, attorneys).

      Mr. James P. Lordi for defendant (Messrs. Lordi <& Imperial, attorneys).

      Ms. Charlotte Hitler, Deputy Attorney General, for amicus curiae (Mr, William F. Hyland, Attorney General of New Jersey, attorney).
   Scalera, J. S. C.

This action involves a constitutional attack on chapter 49 of the Laws of 1974, popularly known as the Pair Eviction Notice Act (hereinafter, “the act”), N. J. S. A. 2A:18-61.1 (cf. Fair Eviction Notice Act, N. J. S. A. 2A:42-10.15), on the grounds that it impairs the obligation of contract in violation of the U. S. Const., Art. I, § 10 and N. J. Const. (1947), Art. IV, § VII, par. 3, and that it deprives them of their right to property without due process in contravention of U. 8. Const., Amend. XIV, § 1, and N. J. Const. (1947), Art. I, par. 1.

On June 20, 1974 plaintiffs, residing elsewhere, became owners of a three-family house known as 52 Montgomery Street, Bloomfield, New Jersey. The act became effective on June 25, 1974.

Plaintiffs, as new owners, sought to occupy the first-floor apartment of the premises and accordingly served on defendant-occupant a notice to quit. At the time of oral argument plaintiffs tendered the representation that the property had been acquired specifically for the purpose of occupying the first-floor apartment so that it could be renovated for accessibility by their son, who was confined to a wheelchair with multiple sclerosis. When defendant refused to vacate the premises plaintiffs, on August 6, 1974, promptly instituted a summary dispossess action in the Essex County District Court. Because of plaintiffs’ stated intention to raise issues of constitutional magnitude the matter was removed to this court (N. J. 8. A. 2A:18-60) bottomed on plaintiffs’ realization that they were faced with the act as a bar to their action for dispossession. The State has intervened as amicus curiae.. B. 4:28-4(d). The parties agreed that the issue to be decided was one of law for the court to decide on the basis of certain undisputed facts.

Plaintiffs initially mounted a broad-based attack, contending that the entire thrust of the statute violates the federal and state constitutional guarantees against violation of due process and impairment of contract obligations. However, they now concede that, generally, the legislation constitutes a valid exercise of the police power in an area desperately in need of control.

Plaintiffs have thus retreated to a rather narrow issue — that the Legislature, in preventing owners of such property from occupying any such dwelling units specifically for their own use, has exceeded constitutional limitations.

Prior to the passage of the Fair Eviction Notice Act (N. J. S. A. 2A:18-61.1) summary dispossess actions were controlled by N. J. S. A. 2A:18-53. Under the latter statute, rendered anachronistic by the passage of time, a landlord could evict a tenant for any reason or for no reason at all. In recognition of this fact the Legislature, when passing the legislation under consideration, appended a Statement to Assembly Bill 1586 (hereinafter A. 1586), L. 1974, c. 49, § 2, which was not included in the New Jersey Statutes Annotated:

At present, there are no limitations imposed by statute upon the reasons a landlord may utilize to evict a tenant. As a result, residential tenants frequently have been unfairly and arbitrarily ousted from housing quarters in which they have been comfortable and where they have not caused any problems. This is a serious matter, particularly now that there is a critical shortage of rental housing space in New Jersey. This act shall limit the eviction of tenants by landlords to reasonable grounds and provide that suitable notice shall be given to tenants when an action for eviction is' instituted by the landlord.

Thus the statute ostensibly was to serve the purpose of protecting tenants by limiting the causes for which they may be evicted and be forced to find new quarters in a market critically short of rental housing. The general condition underlying its enactment was again recently recognized by the New Jersey Supreme Court in the case of Southern Burlington Cty. N.A.A.C.P. v. Mt. Laurel Tp., 67 N. J. 151, 158-159 (1975) :

There is not the slightest doubt that New Jersey has been, and continues to be, faced with a desperate need for housing, especially of decent living accommodations economically suitable for low and moderate income families. The situation was characterized as a ‘crisis’ and fully explored and documented by Governor Cahill in two special messages to the Legislature — A Blueprint for Housing in New Jersey (1970) and New Horizons in Housing (1972).

In an attempt to help correct this situation N. J. S. A. 2A:18-61.1 was enacted, which provides in pertinent part:

No lessee or tenant * * * may be removed by the county district court or the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes, other than owner occupied premises with not more than two rental units * * *, except upon establishment of one of the following grounds as good cause: [Emphasis supplied]

There follows therein a compilation of ten bases for eviction which the Legislature defines and limits as "good cause”: (a) failure to pay rent; (b) disorderly conduct; (e) destruction; (d) breach of the landlord’s reasonable rules and regulations; (e) breach of covenant; (f) failure to pay rent after notice to quit and notice of increase in rent; (g) landlord seeks to demolish the building; (h) landlord seeks to remove the housing permanently from the rental market; (i) tenant refuses to accept reasonable changes in the lease, and (j) habitual failure to pay rent.

This legislation was enacted after public hearings on a series of bills, somewhat limited in the particular area here involved. N. J. Legislature Assembly, Commerce, Industry & Professional Committee, Public Hearings (1974). That the full impact of the entire statute is yet to be discerned is apparent. Various other provisions also appear destined to be tested by adversary proceedings in a court of law. 6 Rutg. Camden L. Rev. 565 (1975).

Obedient to the mandate that only ripe constitutional issues actually before the court are to be considered, we proceed to deal with the one narrow issue raised here. Garcia v. Morales, 47 N. J. 269 (1966), app. dism. 385 U. S. 449, 87 C. Ct. 613, 17 L. Ed. 2d 511 (1967).

Well settled principles must guide this court in any review of legislation. There is a presumption in favor of the validity of an act. Inganamort v. Fort Lee, 120 N. J. Super. 286, 301 (Law Div. 1972), aff’d 62 N. J. 521 (1973). Even though a statute may be open to a construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of this court to so construe the statute as to render it constitutional if it is reasonabty susceptible to such an interpretation. State v. Profaci, 56 N. J. 346, 350 (1970). A statute will be upheld if any reasonable state of facts may be conceived to-'justify it. Marlin v. Mc-Corkle, 117 N. J. Super. 465, 470 (App. Div. 1971).

It is further the settled rule of judicial policy in this State that a legislative act will not be declared void unless its repugnancy to the Constitution is clear beyond a reasonable doubt. Gangemi v. Berry, 25 N. J. 1, 10 (1957); Inganamort, supra, 120 N. J. Super, at 301. For will courts anticipate situations wherein the application of a statute might be unconstitutional. State v. Hobbs, 90 N. J. Super. 146, 148 (App. Div. 1966). Constitutional questions will not be resolved unless absolutely imperative in the disposition of the litigation. Ahto v. Weaver, 39 N. J. 418, 428 (1963). The party attacking the constitutionality of a statute has the burden of proof. Yellow Cab Co. v. State, 126 N. J. Super. 81, 94 (App. Div. 1973), cert. den. 64 N. J. 498 (1974). A statute may be unwise, impolitic or unjust, but the courts have no power to overturn it absent a clear constitutional violation. Municipal Sanitary Landfill Auth. v. Hackensack, 120 N. J. Super. 118, 126 (App. Div. 1972). Asbury Park Press v. Woolley, 33 N. J. 1, 12 (1960). Our duty in this highly charged public policy area is to say what the law is and not what it ought to be. What it ought to be is a matter for the legislative branch of the government, and we must assume that branch will be conscientiously responsive to the requirement of public health and welfare, and the social and economic exigencies of the times. Bush v. Bush, 95 N. J. Super. 368, 378 (Law Div. 1967). The responsibility for policy decisions rests with the other branches of government, and this because of the doctrine of separation of powers. Brown v. Heymarm, 62 N. J. 1, 11 (1972); A & B Auto Stores v. Newark, 59 N. J. 5, 19 (1971); Thomas v. Kingsley, 43 N. J. 524, 530 (1965). Moreover, it is not.our funetion to legislate; it is our duty to interpret. And in so doing we must give effect to the language employed by the legislative body in order to properly effect the legislative design, Dixon v. Gassert, 26 N. J. 1, 9 (1958); Maule v. Conduit & Foundation Corp., 124 N. J. Super. 488, 494 (Law Div. 1973), mindful also that a court should not assume the function of the Legislature and rewrite the law to include therein something which those charged with the legislative responsibility might have inserted if the matter had been called to their attention. Brick Tp. v. Spivak, 95 N. J. Super. 401, 406 (App. Div. 1967), aff’d 49 N. J. 400 (1967). However, it is equally clear that the court has the obligation to declare invalid legislative acts which exceed constitutional limitations or abridge basic rights under the guise of exercise of “police power”.

It is the proper function, indeed the obligation, of the judiciary to give effect to the obvious purpose of the Legislature, and to that end words may be expanded or limited according to the manifest reason and obvious purpose of the law. New Capitol Bar & Grill Corp. v. Div. of Employment Secur., 25 N. J. 155, 160 (1957); DeFazio v. Haven S. & L. Ass’n, 22 N. J. 511, 518 (1956); Wollen v. Fort Lee, 27 N. J. 408, 418 (1958). However, it is to be noted that this case does not strictly involve interpretation of the act per se but rather its constitutionality as it affects the parties and the specific relief sought by plaintiffs.

Ordinarily, if a part of a statute is adjudged invalid and the remainder can stand independently without conflict with the over-all basic purpose of the Legislature, it will be allowed to do so. American Institute of Planners v. State Bd. of Professional Planners, 48 N. J. 581, 593 (1967), cert. den. 389 U. S. 8, 88 S. Ct. 70, 19 L. Ed. 2d 8 (1957). Indeed, N. J. S. A. 1:1 — 10 specifically so provides.

In deference to statutory and case law, N. J. S. A. 2A :18-61.5 provides:

If any section, subsection, paragraph, sentence or other part of this act is adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remainder of this act, but shall be confined in its effect to the section, subsection, paragraph, sentence or other part of this act directly involved in the controversy in which said judgment shall have been rendered.

The statute, considered as a whole, is clearly a legislative act within the police power of the State. It is now settled beyond cavil that, “The State has the power, in the interests of the common good, to enact all manner of laws reasonably designed for the protection of the public health, welfare, safety and morals.” Gundaker Central Motors v. Gassert, 23 N. J. 71, 78 (1956), app. dism. 354 U. S. 933, 77 S. Ct. 1397, 1 L. Ed. 2d 1533 (1957); Jamouneau v. Harner, 16 N. J. 500, 514 (1954), cert. den. 394 U. S. 904, 75 S. Ct. 580, 99 L. Ed. 1241 (1955). The police power does not have its genesis in a written constitution. It is an indispensable attribute of our society, possessed by the state sovereignties before the adoption of the Federal Constitution. The essential content and meaning of the police power and the related constitutional guaranties remain the same, but the application of the power .of necessity varies with changing needs and conditions pertaining to public health, safety, morals or general welfare. Schmidt v. Newark Bd. of Adjust., 9 N. J. 405, 414-415 (1952).

. However, police power may not be exercised so as to be repugnant to the fundamental constitutional rights guaranteed to all citizens. Gundaker, supra, 23 N. J. at 79. The relief sought must come within the range of a reasonable requirement for the common good and welfare, and a measure that, in the purported service of that end, goes beyond the public need is not effective to curtail the personal and private property rights secured by constitutional guaranties. Reingold v. Harper, 6 N. J. 182, 192 (1951). In other words, restrictions adopted by the Legislature in the exercise of the police power must be reasonable and cannot go beyond the public need. Garden State Dairies v. Sills, 53 N. J. 71, 75 (1968).

The constitutional principles of due process and equal protection demand that the exercise of the power be devoid of unreason and arbitrariness, and the means selected for the fulfillment of the policy bear a real and substantial relation to that end. Katobimar Realty Co. v. Webster, 20 N. J. 114, 123 (1955). (emphasis supplied).

As previously noted, the statutory measure here involved was enacted by the Legislature to help alleviate what it considered to be a critical residential housing shortage. (See statement appended to A. 1586, supra.) A legislative declaration of the existence of an emergency is entitled to judicial consideration, Bucsi v. Longworth B. & L. Ass’n, 119 N. J. L. 120, 122 (E. & A. 1937), app. dism. 305 U. S. 665, 59 S. Ct. 154, 83 L. Ed. 431 (1938), but it is always open to judicial inquiry whether the exigency exists upon which the operation of the law depends. Hourigan v. North Bergen Tp., 113 N. J. L. 143, 151-152 (E. & A. 1934). In Jamouneau v. Harner, 16 N. J. 500 (1954), which involved an “emergency” rent control statute which was to take effect on the lapse of the Federal Housing and Eent Act of 1947, the court stated,

The existence of an urgent public need due to a housing scarcity is in its very nature for the determination of the legislative authority; but the declaration of an emergency is not conclusive, and the finding as well as the continuance of the exigency upon which the operation of the law depends are subject to judicial inquiry, [at 515]

Under such police power, legislation may properly place limitations on freedom of contract and property rights.

Freedom of disposition of property, or liberty of contract, is not necessarily violated by restrictions imposed thereon under the police power, even though conditions that arise from the operation of the statute render ineffective related contracts which in themselves may be lawful. [National City Bank v. Del Sordo, 16 N. J. 530, 541-542 (1954) ; (emphasis supplied)]

The Fourteenth Amendment in the domain of state action does not operate as a limitation upon the quantum of such power, reasonably exercised. It merely conditions the exertion of the power by the demands of due process. In other words, all that is required is that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be obtained. Schmidt, supra, 9 N. J. at 414.

In the light of the real and exigent circumstances in the field- of housing accommodation available to the public, the statute in question generally is clearly a valid exercise of the police power insofar as it is directly related to public health, safety and welfare. The inquiry here is whether the Legislature acted unreasonably in enacting limitations specifically affecting the right of occupancy by the owner of the premises.

It appears that N. J. S. A. 2A:18-61.1 is modeled after both state and federal legislation. Unfortunately, the meager legislative history surrounding it (A. 1586) gives no clues in this regard. In addition to federal rent control acts containing similar provisions, similar acts exist át least in New York and Massachusetts. There is for our purpose, however, a critical dissimilarity in all of this legislation; each of those acts provide specifically that an owner may evict a tenant for his own use. Cf. N. J. State Rent Control Act, L. 1953, c. 316, § 14(3) (f) which expired December 31, 1954, and Rent Control Act, L. 1950, c. 334, § 8(b), which was repealed by above act.

In contrast, the only exclusion the New Jersey statute allows is found in the provision that the entire act is inapplicable to “* * * owner occupied premises with not more than two rental units * *

While it is true that other jurisdictions have provided for owner occupancy, this fact, in and of itself, is not determinative. There is no doubt that the right to acquire, own and dispose of real property is within the protective scope of the Fourteenth Amendment, or that such right is recognized by Art. I, par. 1 of our State Constitution. But the private right is not absolute. Jones v. Harridor Realty Corp., 37 N. J. 384, 391 (1963). The Fourteenth Amendment implies that when regulation by the states goes too far it results in a taking for which there must be compensation or there is a violation of due process. In the case of Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 43 S. Ct. 158, 67 L. Ed. 333, 335 (1933), the court stated,

As long recognized, some values are enjoyed under an implied limitation, and must yield to the police power. But obviously the implied limitation must have its limits or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not all cases there must be, an exercise of eminent domain and compensation to sustain the act. So the question depends on the particular facts. The greatest weight is given to the judgment of the legislature, but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power. [Emphasis supplied]

See also, United States v. Central Eureka Mining Co., 357 U. S. 155, 78 S. Ct. 1097, 2 L. Ed. 2d 1228, 1236 (1958).

Certain constitutional' provisions are patently clear and understandable. However, where those provisions, are expressed in general terms, such as “due process,” it has devolved upon the courts to interpret and delimit those terms as they apply to a given factual situation, “[b] earing in mind that the primary design of a constitution is to put the fundamentals of government beyond the control of The varying moods of public opinion’ ” Gangemi, supra, 25 N. J. at 10.

In this case the question is whether the Legislature, in attempting to protect tenants from harsh and arbitrary actions of landlords, has thereby unduly invaded and deprived landlords of a basic right to use and dispose of their property as they see fit, and if so, whether that particular provision in the act may be expurgated without condemnation of the entire statute.

In effect, what the Legislature has done by enactment of N. J. S. A. 2A:18-61.1 is to prohibit plaintiffs from exercising a possessory interest in any part of their property unless and until the present tenant either chooses to vacate the apartment or commits an act which constitutes good cause for eviction under the statute. In this particular respect the act seems to have created a novel right in the tenant, whose possessory interest has traditionally been inferior to the fee simple interest of the landlord. To that extent we must determine whether the removal of that right from an owner and its transfer to the tenant by the Legislature amounts to such an overly zealous exercise of the police power as to amount to a deprivation of property without due process of law, in violation of the articles of the United States and New Jersey Constitutions. The Supreme Court observed in United States v. Causby, 328 U. S. 256, 66 S. Ct. 1062, 1066, 90 L. Ed. 1206 (1945), n. 7 at 1211, that, “Governmental action short of acquisition of title or occupancy has been held, if its effects are so complete as to deprive the owner of all or most of his interest in the subject matter, to amount to a taking.” (Emphasis supplied). In recognition of the same principie the Supreme Court of Pennsylvania held in Miller v. Beaver Falls, 368 Pa. 189, 82 A. 2d 34 (1951) that:

Formerly it [a taking] was limited to the actual physical appropriation of the property or a divesting of title, but now the rule adopted in many jurisdictions and supporting the better reasoning is that when a person is deprived of any of certain rights in and appurtenant to tangible things; he is to that extent deprived of his property, and Ms property may be taken, in a constitutional sense, though his title and possession remain undisturbed; “and it may be laid down as a general proposition of property itself, that, whenever the lawful rights of an individual to the possession, use or enjoyment of his land are in any degree abridged or destroyed by reason of the exercise of the power of eminent domain, his property is, pro tanto, taken, and he is entitled to compensation.” fat 38; emphasis supplied]

Thus it can be seen that it is not merely the absolute act of a taking by the state that constitutes a violation of the Eour-tenth Amendment in this area. A regulation which deprives an owner of “all or most of his interest” is also condemned as an unreasonable exercise of the police power.

It may be argued that this act provides for “just compensation” because a landlord is still entitled to collect “reasonable” rentals from the property. “Just compensation,” in our judgment, is not always satisfied in terms of monetary reward. Nor is due process always satisfied by such “compensation,” as in the case of a right to occupy one’s own premises in the absence of a taking in the traditional sense. Cf. Rivera v. Chinea, infra.

Rivera v. Chinea, 181 F. 2d 974 (1 Cir. 1950), involved an attack on a rent control statute. In that case plaintiff contended that § 12 of the Seasonable Eents Act of Puerto Rico was invalid insofar as it denied an owner of a commercial building the right to maintain an unlawful detainer action against a tenant in order to recover the premises for his own use. Plaintiff argued that the act violated due process, as do plaintiffs in this ease.

In accepting the contentions advanced by plaintiff the court held:

It is true that the Legislature might impose reasonable regulations with respect to the recovery of possession by such landlords in order to prevent evictions which might tend to defeat the object of the act. But we think it was beyond its power in enacting the Reasonable Rents Acts absolutely to prohibit them from recovering possession of their properties from tenants the terms of whose lease .contracts had expired when they desired possession solely for their own use and not for the purpose of rerenting to another tenant. Such legislative prohibition would appear to be so arbitrary in relation to the object sought to be attained by the act as to amount to a deprivation of the landlord’s property without due process of law. (978). [at 978; Emphasis supplied]

While Rivera involved a commercial landlord who sought to use the premises for his own commercial purposes, the principle applies here with equal vigor. The prohibition here by the Legislature of plaintiff’s right to use his property is, in our judgment, also an unreasonable exercise of the police power. By virtue of this statute, “[a] landlord is being required to dedicate substantial property interests to a pub-lie use without compensation.” Mayo v. Boston Rent Control Comm,., Mass., 314 N. E. 2d 118, 128 (Sup. Ct. Err. 1974) (dissent).

In contrast, in Block v. Hirsh, 256 U. S. 135, 41 S. Ct. 458, 65 L. Ed. 865 (1920), the Supreme Court upheld a District of Columbia statute that permitted a tenant to remain in possession after expiration of his term so long as the tenant continued to pay the rental due. The statute specifically provided for occupancy by an owner or members of his family upon giving 30 days’ notice. The landlord deliberately sought occupancy without such notice, content to establish his right to occupancy without giving any notice pursuant to the statute. While upholding the general thrust of the statute, the court implied approval of the notice requirement as a reasonable condition precedent to ouster of the tenant to permit occupancy by an owner.

The companion case of Brown, Holding Co. v. Feldman, 256 U. S. 170, 41 S. Ct. 465, 65 L. Ed. 877 (1920), dealt with a similar New York statute which also permitted occupancy, in good faith, by an owner (“being a natural person”) and his family. A general constitutional attack on the statute by the owner was repelled by the court for the reasons expressed in Hirsh, supra. Neither case dealt with our situation here where the owner’s right to occupy is all but totally destroyed by legislative mandate.

In seeking to accomplish the legitimate and salutory objective of preventing arbitrary and capricious removal of tenants our Legislature failed to give proper deference to the basic Tights of property owners. There was no attempt to balance the means utilized to attain that objective against the constitutionally preserved property rights here under consideration. Rivera v. Chinea, supra.

Its net effect is to unduly restrict the heretofore unrestrained transfer and use of such property, resulting in illegal confiscation without just compensation. Idid. The crisis worked by the housing shortage has not been demonstrated to the extent that such a curtailment is mandated, United States v. Causby, supra. Moreover, the goal of preventing unfair ouster of tenants is not diminished to any appreciable degree by here preserving to a landlord the use of part of the property for personal occupancy.

To hold otherwise would result in owners of properties having relatively few rental units shouldering an intolerable burden in attempting to sell, faced with the restrictions presently imposed by the act. Prospective purchasers would obviously be discouraged, knowing that they themselves could not occupy any portion of the premises except where they are able, to invoke a "good cause” situation or decide upon permanent retirement of the premises from the rental housing market. Bradley v. Rapp, 132 N. J. Super. 429 (App. Div. 1975).

Such properties would, in practicality, be confined to purchase for investment purposes only, as opposed to the rather common occurrence heretofore, of purchase both as a home and a source of supplemental income. Persons who would otherwise be inclined to purchase such property would thus be forced to reside elsewhere, as in this case. Building of such homes by contractors for sale would be discouraged rather than encouraged, contributing further to the housing shortage. Such building for "speculation” would tend to force sale while the property is still vacant to allow the purchaser the option to occupy part of the premises before renting space. Obviously this will restrict the purchase and sale of such properties and thus unduly inhibit transfer of property. In our judgment this is an unreasonable limitation on the sale and use of properties now regulated by the act. Katobimar Realty Co. v. Webster, 20 N. J. 114, 123 (1955).

Notwithstanding the Legislature’s commendable actions in enacting this legislation, to the limited extent that it prohibits an owner from occupying any rental unit except for two-family dwellings the act breaches the constitutional safeguard of due process and must yield.

The police power may not legitimately be wielded to the extent that it subverts superior basic rights except upon a clear showing that its application is reasonably necessary in given circumstances. Pennsylvania Coal, supra, 260 U. S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922); Central Eureka Mining, supra, 357 U. S. 155, 78 S. Ct. 1097, 2 L. Ed. 2d 1228 (1958); Rivera, supra, 181 F. 2d 974 (1950). The State and defendant have failed to persuade this court that the legislative objectives heretofore discussed reasonably require inclusion of such a drastic provision that permanently precludes an owner from occupying, for his own use in good faith, one of the rental units. Indeed, the continuation of such right by owners would appear to have only limited effect on those goals while preserving the historic concept of property rights even in a modern day society.

Hence it is the judgment of this court that this act cannot be raised as a bar to a landlord’s dispossession of a tenant where the. landlord, in good faith, seeks to occupy that dwelling unit for himself. Of. Bradley v. Rapp, supra.

By so holding it is not suggested here that the Legislature may not impose some restriction to limit this right or not impose reasonable conditions coincident with its assertion. (Indeed, several other states have already done so with judicial approbation. Mayo, supra, Mass. 314 N. E. 2d 118 (1974); Rivera, supra, 181 F. 2d 974 (1950); Rub-lick v. Weaver, 9 Misc. 2d 619, 170 N. Y. S. 2d 61 (Sup. Ct. 1957), aff’d 4 N. Y. 2d 974, 177 N. Y. S. 2d 498, 152 N. E. 2d 523 (Ct. App. 1957); People ex rel. McGoldrick v. D’Alura, 197 Misc. 806, 99 N. Y. S. 2d 278 (Sup. Ct. 1950); Zehil v. Weaver, 15 Misc. 2d 436, 182 N. Y. S. 2d 111 (Sup. Ct. 1958).)

On balance (and concededly in retrospect), it would have been far wiser if the Legislature had squarely dealt with the problem by enactment of reasonable restrictions in this narrow area rather than imposition of a blanket restraint. Of course, we cannot now assume the function of the Legislature and rewrite the law to include therein something which the Legislature might have inserted if the matter had been called to their attention. Brick Tp. v. Spivak, 95 N. J. Super. 401, 406 (App. Div. 1967), aff’d 49 N. J. 400 (1967).

It may well be that the Legislature will deem it appropriate or desirable to amend the act to require that a landlord’s exercise of that right be invoked at certain times (e. g., within a reasonable time after purchase or upon expiration of the term of an existing lease), or that it be limited to a certain class of persons holding title (e. g., individuals or their immediate family, or individual partners, as opposed to corporate owners), or limited to certain types of property (e. g., buildings or structures ordinarily utilized for owner occupancy as opposed to large apartment houses or garden apartment complexes clearly representing “investment type” properties). Whether any particular limitation or set of restrictions thus imposed will pass constitutional muster must, of necessity, await the presentation thereof to a court of competent jurisdiction.

Today we go no further than to hold that this act, as presently written, cannot constitutionally bar an owner from ousting a tenant from a rental unit, upon lawful and reasonable notice, in order to use the premises in good faith for personal occupancy. N. J. S. A. 2A:18-53 et seq.

While there is no doubt that the Legislature had a laudable purpose in mind when it passed this statute, it nevertheless surpassed the bounds of even its vast power. As the Supreme Court stated in Pennsylvania Coal, supra, 260 U. S. at 416, 43 S. Ct. at 160, 67 L. Bd. at 326: “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

Accordingly, for the reasons hereinabove set forth, absent an application by defendant to this court within ten days for an extension of time pursuant to N. J. S. A. 2A:42-10.6, a judgment of possession in favor of plaintiffs will be entered and a warrant for removal will issue upon expiration of the tliree-day-period ■ specified by N. J. S. A. 2A :18-57.

        Massachusetts St. 1970, c. 842, § 9(a), provides: “No person shall bring any action to recover possession of a controlled rental unit unless: (8) the landlord seeks to recover possession in good faith for use and occupancy of himself, or his children, parents, brother, sister, father-in-law, mother-in-law, son-in-law, or daughter-in-law.”

        N. Y. Uneonsol. Laws, § 8585(2) (McKinney 1946), provides: “No tenant shall be removed or evicted * * * unless on application of the landlord the commission shall issue an order granting a certificate of eviction * * *. The commission shall issue such an order whenever it finds that: (a) the landlord seeks in good faith to recover possession of housing accommodations because of immediate and compelling necessity for his own personal use and occupancy or for the use and occupancy of his immediate family; provided, however, that where the housing accommodations are located in a building containing twelve or less housing accommodations and the landlord does not reside in the building and the landlord seeks in good faith to recover possession for his own personal use and occupancy, an immediate and compelling necessity need not be established.”
      N. Y. Bent & Eviction Begulations, Uneonsol. Laws, § 55(1) (McKinney 1957), provides: “A certificate [of eviction] shall be issued where the landlord seeks in good faith to recover possession of housing accommodations because of immediate and compelling necessity for his own personal use and occupancy or for the use and occupancy of his immediate family. * * * Provided, however, that where the housing accommodations are located in a building containing twelve or less housing accommodations and the landlord does not reside in the building *' * * and the landlord seeks to recover possession for his own personal use, an immediate and compelling necessity need not be established.”
      The Federal Housing and Bent Act of 1947, c. 163, -Public Imw 129, § 209(a), provided: “No action or proceeding to recover possession of any controlled housing accommodations * * * shall be maintainable by any landlord against any tenant in any court * * * unless: (2) the landlord seeks in good faith to recover possession of such housing accommodations for his immediate and personal use and occupancy as housing accommodations.”

      As summarized (at 976), § 12 provides that, “* * * during the existence of the • emergency and as long as the tenant pays the basic rent or the reasonable rent fixed by the Administrator, as the case may be, the landlord may not prosecute an action for unlawful detainer against the tenant to recover possession of the rented premises even though the term of the lease contract has expired except: * * * (a) when the tenant fails to pay rent; (b) when the tenant uses the premises for illegal or immoral purposes without the landlord’s knowledge; (c) when the tenant sublets without the authority of the landlord; (d) when the landlord desires in good faith to recover the premises in order to demolish them with the intention of constructing a new building; (e) when the tenant causes malicious or considerable negligent damage to the leased property, and (f) in the case of a dwelling not habitually used for rent, when the landlord seeks in good faith to recover possession of it for his immediate personal use as a place of residence.”