author: Handler, J. S. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RAYMOND BRAEUNIG, CHARLES MARTIN, RUSSELL MILLER, JOSEPH RICHARDS, MARIE FLYNN AND EVELYN LAKES, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 30, 1972
    Decided February 5, 1973.

      Before Judges Fritz, Lynch and Handler.

      Mr. Patrick McGahn argued the cause for appellants Braeunig, Martin, Miller, Flynn and Lakes (Messrs. Mc-Gahn £ Friss, attorneys).

      Mr. Sidney M. Goodelman argued the cause for appellant Richards.

      Mr. John A. Brogan, Deputy Attorney General argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Handler, J. S. C.,

Temporarily Assigned. Defendants were indicted for conspiracy to violate the gambling laws and' for substantive gambling offenses. They were found guilty by a jury on all counts after a ten-day trial and were sentenced to various prison terms, fines and payment of costs. This appeal ensued.

The prosecution originated with an investigation into bookmaking activities in Cape May and Atlantic Counties in March 1969. During the course of that investigation a member of the New Jersey State Police, acting as an undercover agent, observed and overheard Peter Liberino place a telephone call to a particular telephone number from a public telephone located in his bar in Cape May and relate bets which had previously been given to him orally by other persons. Such activity by Liberino was observed _ several times between March é, 1969 and May 9, 1969. The. telephone number he called was traced to a particular subscriber. Pursuant to the New Jersey Wiretapping and Electronic Surveillance Control Act, N. J. S. A. 2A:156A-1 et seq. the Attorney General authorized an application for an order to intercept communications from this telephone facility and such an order was entered on May 15, 1969. Electronic surveillance over this facility revealed gambling activities involving another telephone. There followed a series of similar court-authorized, wiretaps over this and other telephones. The evidence accumulated from these successive electronic .surveillances was gathered into applications for search and arrest warrants, the execution of which eventually led to the arrests of the defendants and their indictment on September 30, 1970.

I

Defendants assert initially that the New Jersey Wiretapping and Electronic Surveillance Control Act is unconstitutional. It has been determined that the act is constitutional. State v. Dye, 60 N. J. 518 (1972).

II

Defendants argue that the New Jersey Wiretapping and Electronic Surveillance Control Act in varying ways was “illegally applied.” It is contended that the periods for wiretapping authorized in the respective orders were unnecessarily long. Each of the orders provided that “said interception shall terminate no later than 30 days from the beginning of interception.” The maximum 30-day duration for the successive electronic surveillances, to be otherwise terminated as soon as practicable, in the context of the supporting applications reflect reasonable judicial determinations. Cf. State v. Christy, 112 N. J. Super. 48 (Cty. Ct. 1970). There was, moreover, no overbroad discretion vested in the executing officers with respect to the termination of the interceptions over the subject facilities. See State v. Dye, supra, 60 N. J. at 534-538.

It is also contended that the respective orders failed to describe the type communications or the identity of the persons whose communications were to be intercepted as required under N. J. S. A. 2A:156A-12(b) and (d). The orders did refer to the type of communications to be intercepted, namely, those “evidentiary of such offenses” i. e., those “relating to the offenses of bookmaking (N. J. S. A. 2A:112-3) and conspiracy (N. J. S. A. 2A:98-1 and 2) * * The persons involved, although unknown, were adequately identified in terms of their anticipated involvement in the suspected gambling activities and their use of the particular telephone facilities to perpetrate these offenses. Cf. State v. Sidoti, 116 N. J. Super. 70 (Cty. Ct. 1971), rev’d and remanded on other grounds 120 N. J. Super. 208 (App. Div. 1972).

Defendants assert further that the orders permitting the interception of communications over certain of the telephones were invalid because there was a failure to satisfy N. J. S. A. 2A:156A-10(c). This provision requires a determinaton by the court “on the basis of facts submitted by the applicant that there is * * * probable cause for belief that * * * [n]ormal investigative procedures with respect to such offenses have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ.”

The order with respect to the Del Grande facility which was entered on June 4, 1969 (and renewed on July 3, 1969) was based upon an application and affidavit which set forth the actual or expected results of other investigative procedures. These indicated spot surveillances were unproductive and other measures, such as sustained surveillances, toll call analysis or personal interviews, were unlikely to succeed in revealing the substance of gambling communications or inight endanger the investigator. A successive application and order included the Del Grande information and contained comparable determinations. Another order involving the Braeunig telephone was entered on July 11, 1969 by the same judge. The affidavit with respect to this tap contained selective results of the earlier interceptions and disclosed the utilization of the Braeunig telephone as an instrumentality in the gambling enterprise. While this affidavit did not explicitly relate that other investigative techniques had actually been utilized, it did reflect the conclusion that “[i]n order to more fully identify individuals associated with Ray and to determine their involvement in his bookmaking activities it will be necessary to intercept the telephone conversations of Ray.” Thus there was a basis for the court’s critical determination that “normal investigative procedures * * * reasonably appear to be unlikely to succeed * * The statement in the order that such procedures had been tried was not literally accurate but, against the backdrop of this investigation, it appears to be an inadvertent omission and is not a fatal defect. We conclude that defendants’ contentions on this point lack merit. See State v. Dye, supra, 60 N. J. at 526.

Defendants also intimate without precise argument that certain telephones were the facilities of a husband and wife and therefore there was required to be shown “a special need” for their tap under N. J. S. A. 2A:156A-11. In such a situation applying officers should be mindful of this requirement. But the issue has not been crystallized herein and the record is factually insufficient to support this contention. Cf. State v. Sidoti, supra, 120 N. J. Super. at 213.

Ill

Defendants assert that the various wiretap orders were executed unlawfully in that there was a failure to comply with the directives set forth therein, as required by N. J. S. A. 2A:156A-12(f), viz:

* * * No order entered under this section shall authorize the interception of any wire or oral communication for a period of time in excess of that necessary under the circumstances. Every order entered under this section shall require that such interception begin and terminate as soon as practicable and be conducted in such a manner as to minimize or eliminate the interception of such communications not otherwise subject to interception under this act.

The State’s rejoinder is that there was no duty on the part of executing officers to desist from the interception of apparently innocuous communications; that this statutory directive was satisfied since the State limited “its surveillance to the daylight hours, the normal hours for gambling activity and that there is no showing that the wiretaps were conducted in bad faith.” Defendants point out, however, that they were denied effective discovery since the trial court refused to make all of the tapes and the logs or summaries thereof available to them and thus “precluded them from determining the real extent of the invasion of privacy * * * and the extent of the violation of the statute.” Their complaints were also continued during trial.

The New Jersey Wiretapping and Electronic Surveillance Control Act contemplates reasonable discovery. N. J. 8. A. 2A:156A-16 provides for the timely service of an "inventory” upon persons named in a wiretap order as well as actual parties to intercepted communications. It states further that “[t]he court, upon the filing of a motion, may in its discretion make available to such person or his attorney for inspection such portions of the intercepted communications, applications and orders as the court determines to be in the interest of justice.” Elsewhere it is provided that there may be an exchange of intercepted communications between law enforcement officers for the proper performance of official duties. N. J. S. A. 2A:156A-17, subd. a. The contents of intercepted communications may also be disclosed in the course of any judicial criminal proceeding. N. J. 8. A. 2A-156A-17, subd. b. In addition to disclosure and use for these specific purposes, "[t]he contents of any intercepted wire or oral communication, or evidence derived therefrom, may otherwise be disclosed or used only upon a showing of good cause before a court of competent jurisdiction.” N. J. 8. A. 2A:156A-17, subd. c. Further “[t]he court, upon the filing of [a] motion [to suppress] by [an] aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication, or evidence derived therefrom, as the court determines to be in the interests of justice.” N. J. S. A. 2A:156A-21.

The historical antecedents to the New Jersey wiretapping statute are helpful in gleaning legislative intent. See State v. Christy, supra, 112 N. J. Super. at 53; State v. Sidoti, supra, 116 N. J. Super. at 76 — 77. These sources underscore the thesis that discovery involving disclosure of intercepted communications is not contra-indicated. The state model act contains provisions relating to discovery comparable to those in the New Jersey act. Blakey and Hancock, “A Proposed Electronic Surveillance Control Act,” 43 Notre Dame Lawyer 657, 677-680 (1968). The controlling federal legislation, the Omnibus Crime Control and Safe Street Act of 1968, also provides for the disclosure of intercepted communications. 18 U. S. C. § 2518(9), (10). American Bar Association projects have treated the subjects of electronic surveillance and discovery before trial. They recognize the propriety of pretrial discovery involving the disclosure of the contents of court-authorized wiretaps and derivative evidence, both for purposes of trial preparation as well as for the exploration of collateral issues such as whether evidence might be suppressed. A. B. A., Project on Minimum Standards for Criminal Justice, “Electronic Surveillance,” §§ 515 — 516 at 23-24, 161-163 (1971); A. B. A., Project on Minimum Standards for Criminal Justice, “Discovery and Procedure Before Trial,” § 2.1(b) (iii) at 53, 71 (1970). Thus, discovery relating to the contents of intercepted communications and derivative evidence in a pretrial setting is recognized under the New Jersey wiretapping law, and the touchstones for according such discovery are the “interests of justice” and “good cause.” These criteria encompass the recognized objectives of liberal pretrial discovery which have become axiomatic in the current administration of criminal justice. B. 3:13-3; Dennis v. United States, 384 U. S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966); Jencks v. United States, 353 U. S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103 (1957); State v. Cook, 43 N. J. 560 (1965); see State v. Montague, 55 N. J. 387, 394-395 (1970)

It does not follow that discovery entailing the disclosure of the contents of intercepted communications should be uncritical or promiscuous or without court superintendence. The State, for example, has argued that defendants’ request to have access to all of the tapes and logs would jeopardize the privacy of third persons. Such an unsubstantiated and blanket protest should not, however, block or forestall all discovery. An objection may have merit but specific grounds therefor should be demonstrated by the State and should, if appropriate, be the subject of a protective order. R. 3:13-3(g). Thus, if it is demonstrated to the court that there are recorded conversations of innocent persons or persons wholly unconnected with the suspected criminal activities which have minimal evidential worth and their revelation might be unduly embarrassing or humiliating, these may be withheld from disclosure. Similarly, there may be conversations the disclosure of which may create a risk of special danger or harm to persons. There may .be conversations concerning other criminal activities which may be the subject of pending investigations. Some conversations might be privileged or otherwise confidential. Certain communications might tend to disclose the identity of informants or the nature or techniques of police investigative procedures. Such examples can be multiplied. But the withholding of such conversations should be counterbalanced by the ultimate desideratum of full discovery for all legitimate pretrial and trial purposes.

Defendants herein were not accorded complete discovery, nor did the State demonstrate concrete grounds for the withholding of the contents of any intercepted communications from full disclosure. Defendants were furnished in advance of trial with only the daily tapes and corresponding logs, which included the particular conversations selected by the State for presentation at trial. These selected conversations had been duplicated on a so-called composite tape for trial purposes, and the State also furnished defendants with what amounted to an index of the composite tape, a composite log which was a written record of the dates, times, types of calls and a synopsis or summary of the contents of the conversations included in the composite tapes. The selected daily tapes and dogs as well as the composite tapes and composite log constituted only a small fraction of the total of original tapes and logs. :

The State points out that defendants, through such discovery, seek to show that there occurred the uninterrupted recordation of a myriad of non-subject conversations and that this constituted a failure to minimize the interception of non-subject conversation, contrary to N. J. S. A. 2A:156A — 12(f). Their request for full disclosure of the tapes on such grounds, the State contends, should now be rejected as moot in light of State v. Dye, supra. This case, closely read, does not hold that there is no duty to minimize the interception of non-subject communication by desisting from their recordation while they are in progress. Id., 60 N. J. at 538-540. Moreover, in Dye, full discovery was accorded. Defendant was furnished with master or work tapes similar to the composite tape herein, but “the full original tapes [were] retained and available for inspection and comparison on defendant’s request.” Id. at 540. Additionally, defendants here urge that they were precluded by inadequate discovery from demonstrating that there was a failure to terminate the wiretaps “as soon as practicable,” as required by N. J. S. A. 2A:156A-12(f), an issue not involved in Dye. See State v. Christy, supra, 112 N. J. Super at 61, 76-77. In view of the extensive electronic surveillances involved in this case, defendants’ contention on this facet of the surveillances cannot be scotched summarily. Pull discovery would have a bearing on this alleged dereliction.

Unquestionably defendants’ quest for full discovery was actuated by the hope that it might eventuate in the suppression of evidence. N. J. S. A. 2A :156A-21; State v. Molinaro, 117 N. J. Super. 276 (Cty. Ct. 1971), appeal pending. The State, therefore, suggests that defendants’ reliance upon 2IoIinaro for this result is quixotic, that case having been dislodged by Dye. In Dye the Supreme Court did not sanction the suppression of all wiretap evidence merely because some of that evidence might have been gathered unlawfully. We note, however, that in Dye defendant had full discovery in the sense that he had access to all of the original tapes for any legitimate pretrial purpose. Regardless of whether Molinaro is viable or moribund in the wake of Dye, a complete record was made in Molinaro on the basis of broad discover, including the full disclosure of intercepted communications (which was acceded to by the Attorney General). Cf. State v. Sidoti, supra.

The truncated discovery accorded defendants herein was not sufficient. One cannot presage the end results of full discovery as it may affect a defendant’s pretrial posture and trial preparations and' strategy. We cannot speculate to the detriment of defendants herein that discovery of the whole would not have distilled some evidential benefits for the defense. These considerations impel us to require that there be a remand for the purpose of permitting defendants access to the original tapes and logs for normal discovery purposes, subject to any concrete and specific objections thereto which may be raised by the Attorney General or the court on its own motion. The court should set the extent, terms and conditions of sueh discovery. If, as a result thereof, motions to suppress or motions for a new trial are made or renewed, these shall be determined by the court below.

ÍV

There are further issues raised by defendants. Defendant Martin contends that his premises were illegally searched. The police came to Martin’s premises to execute an arrest warrant for defendant Braeunig. We find no evidence, as suggested by this defendant, that the State merely-used the arrest warrant as a subterfuge to effectuate an unwarranted search of Martin’s premises. See R. 3:3-3(b). The trial court also found that consent was given the police officers by the owner of the apartment, which determination was within the province of the court. State v. King, 44 N. J. 346 (1965); State v. Price, 108 N. J. Super. 272, 282 (Law Div. 1970). Moreover, the officers were properly present in the apartment when they observed Martin on the telephone engaged in what they believed to be criminal activity, with evidence thereof within plain view. Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); State v. DiRienzo, 53 N. J. 360, 385 (1969); State v. McKnight, 52 N. J. 35, 56 (1968). Martin’s motion to suppress was properly denied.

Defendants further allege error by the trial court in its refusal to allow testimony at a motion to suppress evidence prior to trial. Defendants sought through testimony to attack the credibility of the informant whose information formed the basis of the affidavit and subsequent search warrant. The trial court was correct in denying this application. State v. Rulli, 116 N. J. Super. 120 (App. Div. 1971); State v. Gillman, 113 N. J. Super. 302 (App. Div. 1971).

Defendant Kichards claims that the search warrant of August 14, 1969 was issued without probable cause. This claim was not the subject of a timely motion to suppress. R. 3:5 — 7; State v. Fair, 45 N. J. 77 (1965); State v. Cox, 114 N. J. Super. 556 (App. Div. 1971). In addition, defendant failed to demonstrate merit to his belated application to suppress.

V

With respect to the trial itself, defendants further claim it was.error to allow the indictment and verdict sheet into the jury room because of their possible prejudicial effect. The practice of allowing an indictment into the jury room has been upheld. State v. Chauncey, 112 N. J. Super. 433 (App. Div. 1970); State v. Begyn, 58 N. J. Super. 185, 195 (App. Div. 1959), aff’d on other grounds 34 N. J. 35 (1961); State v. Profita, 113 N. J. L. 330 (E. & A. 1935). The jury was carefully instructed with respect to the format of the verdict form. We find no error with respect to this contention.

VI

Defendants Martin, Miller and Richards allege they were illegally sentenced. They were sentenced on the conspiracy charge, count 1 of the indictment, to 250 days in the county jail. On the substantive charges of bookmaking and maintaining premises for bookmaking, defendants received 1-2 year sentences in the State Prison at Trenton, to be served consecutively to the sentence imposed on count 1 and concurrently with each other. The custodial terms imposed on the substantive charges were suspended upon the condition that defendants serve the full incarceration period levied under count 1.

The imposition of a conditional custodial sentence appears not to be within the contemplation of the statute. See N. J. 8. A. 2A:168-1. It is axiomatic that sentences not be ambiguous and thus subject to confusion or misunderstanding as to the time and manner in which they are to be served. Sentences must be certain, definite and consistent in all their terms. State v. Heslip, 99 N. J. Super. 97 (App. Div. 1968); State v. Williams, 29 N. J. Super. 309 (App. Div. 1954); Annotation, “When sentences imposed by same court run concurrently or consecutively; and definiteness of direction with respect thereto,” 70 A. L. R. 1511 (1930). The sentencing judge is accorded wide latitude in determining whether custodial sentences are to be executed or suspended, or to be served either consecutively or concurrently or whether a defendant is to be placed on probation. N. J. S. A. 2A:164-15; N. J. S. A. 2A:164-16; N. J. S. A. 2A :168 — 1. Sentences must be free from the taint of judicial whim or caprice. State v. Roleson, 14 N. J. 403, 407 (1954).

It would appear that the serving of the full custodial sentence imposed on count 1 was intended to be a condition precedent to the suspension of the custodial terms on the remaining substantive counts. This, defendants suggest, casts a pall or chill upon the right to appeal their convictions on the conspiracy count since a reversal would trigger the execution of the more severe custodial terms imposed under the substantive gambling counts. Such an intended purpose or unintended result would not serve any appropriate function of sentencing. Cf. United States v. Jackson, 390 U. S. 570, 581-582, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968) ; Worcester v. Commissioner, 370 F. 2d 713, 718 (1 Cir. (1966). Further, these sentences may not be sufficiently definite. The court, in meting out these respective sentences, stated that if the full period of incarceration imposed on the conspiracy count was not served “for any reason,” then the consecutive custodial terms would be executed. It is difficult to fathom what circumstance would not constitute “any reason.” It is not entirely clear what the effect of parole prior to serving the full 250 day sentence is intended to have upon the execution of the remaining sentences. N. J. S. A. 30:8-28. Perhaps a question might also arise should defendants be eligible for release under the county work release program during their incarceration in the county jail. N. J. S. A. 30 :8 — 44. Whether a custodial sentence has been executed or suspended should not be shrouded in such doubts. Under all of these circumstances we direct that on the remand of this matter the court reconsider its sentences.

Also on the issue of sentencing, State v. Mulvaney, 61 N. J. 202 (1972), precludes the imposition of costs upon criminal defendants as a condition of probation under N. J. S. A. 2A:168-2. The imposition of such costs is therefore vacated. On the remand the court may consider the fixing of such costs as may be appropriate. State v. Mulvaney, supra, at 206.

The convictions are not reversed. The matter is remanded for proceedings to be undertaken consistent with this opinion. Jurisdiction is not retained.


source: Caselaw Access Project

author: Pee Curiam.

license: Public Domain

text:
    PHILIP NOSCA, PLAINTIFF-RESPONDENT, v. QUEEN CITY SAVINGS & LOAN ASSOCIATION, INC., A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 28, 1972
    Decided February 7, 1973.

      Before Judges Labrecque, Koeovsky and Matthews.

      Messrs. Graham, Yurasko, Golden & Lintner, attorneys for defendant-appellant (Mr. Jack L. Lintner, on the brief).

      Mr. D. Joseph Mone, attorney for plaintiff-respondent.
   Pee Curiam.

Defendant Queen City Savings & Loan Association, Inc. appeals from a judgment as to liability in favor of plaintiff and from the denial of its motion for a new trial. The ease was tried without a jury and, based upon the court’s finding as to liability, a consent judgment in the sum of $2,250 was entered.

Plaintiff Philip Hosca, a deliveryman employed by United Parcel Service, sued for injuries sustained when he collided with a set of glass doors in defendant’s savings and loan office. He testified he entered the premises of defendant to deliver two large packages. There were two sets of substantially identical doors leading from the sidewalk through a vestibule into the office. The first set of doors was closed when plaintiff entered and he opened them by pushing with his back. He then walked through the second set of doors, both of which, he testified, were then open. After he had obtained a receipt for his parcels and while he was checking it as to legibility as he was walking out, he collided with the second set of doors —■ which were closed.

To the extent here relevant the trial judge found “that the plaintiff was in the building approximately two and a half to three minutes and that during that period of time the doors were closed, placing a barrier in his path as he turned to leave the premises.” He further found that “insofar as that particular plaintiff or individual is concerned, a dangerous condition was created in the premises of the defendant that should have reasonably been observed and cared for by the defendant.” He therefor found defendant negligent and plaintiff free from contributory negligence.

Defendant first urges that the only duty of care owing by it was that which would have been owing to a licensee on the premises. We disagree. Plaintiff occupied the status of a business invitee towards whom the duty of reasonable care was owing. Gaglione v. J. S. Coffin, Jr., Co., 137 N. J. L. 303 (Sup. Ct. 1948); Eggert v. Mutual Grocery Co., 111 N. J. L. 502 (E. & A. 1933); cf. Handleman v. Cox, 39 N. J. 95 (1963).

It was necessary that plaintiff establish that defendant was negligent either in the design of the doors or the manner in which they were operated. There was no evidence to sustain a finding that the doors as installed violated any safety standard. They were composed of two sections of plate glass hinged at their outside edges and coming together in the middle. Each door had a metal top and bottom approximately four inches in width and each was equipped with a separate large opaque push plate on each side, at the place where the doors joined. When the doors were closed the two push plates presented an opaque projecting circular surface having a diameter of approximately 12 to 15 inches.

The case of Giordano v. Mariano, 112 N. J. Super. 311 (App. Div. 1970), on which plaintiff principally relies, is clearly distinguishable. In that case the court was dealing with an infant guest who, upon being summoned into the house after dark from an unlighted patio, collided with a sliding glass door composed of clear glass, easily mistaken for-an open space. Here the plaintiff was familiar with the premises and collided with a door, marked as above, during daylight hours.

As we read the oral opinion of the trial judge we are convinced that the finding of negligence was not predicated upon the design of the door but upon the fact that “a dangerous condition was created” as to plaintiff when the doors were closed after he had entered the premises, and that this condition “should have reasonably been observed and cared for by the defendant.”

Counsel cites no case, and we know of none, in which this theory of liability has been extended to a set of doors, so as to impose an obligation on an occupier of notifying a person passing through a door used by the public, which happens to be open when he enters, that the door has been thereafter closed. Cropanese v. Martinez, 35 N. J. Super. 118 (App. Div. 1955), is clearly inapposite, as is likewise Taneian v. Meghrigian, 15 N. J. 267 (1954). We hold that there was no obligation on defendant’s part to notify plaintiff, as he was leaving, that the doors were in a closed position in the absence of some indication that they constiuted a hazard. The situation here is to be distinguished from one in which a device necessary to safety on which an invitee has a right to roly (such as a ladder) is removed without notice to him. Since there was no breach of duty on defendant’s part, judgment should have been entered in its favor.

By reason of the foregoing we find it unnecessary to consider whether the finding that plaintiff was free of contributory negligence was vitiated by his failure to observe the presence of the closed doors as he approached them while his attention was directed to the delivery receipt he was holding.

Reversed and remanded for the entry of judgment for defendant.


author: Pee Ctteiam.

text:
    STEPHEN VITTORIA, AN INFANT BY HIS GUARDIAN AD LITEM, PASQUALE VITTORIA, PLAINTIFFS-APPELLANTS, v. WEST ORANGE BOARD OF EDUCATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1973
    Decided February 6, 1973.
    Before Judges Carton, Mintz and Larner.

      Mr. Bernard A. Kuttner argued the cause for plaintiffs.

      Mr. Samuel A. Christiano argued the cause for defendant.
   Pee Ctteiam.

The board of education of the school district of West Orange has called an election to he held on February 13, 1973 at which there is to be elected one member of the school board. On November 17 last year plaintiff, who became 16 years of age in January 1973, and who is a member of the sophomore class in Mountain High School in the school district, sought to file with the board a petition to run as a candidate in that election. The secretary of the board rejected the petition because of his age. The Law Division upheld that determination and plaintiff appealed to this court. We accelerated consideration of the appeal because of its emergent nature.

Plaintiff’s position is that he has fulfilled all of the requirements of N. J. 8. A. 18A-12-1, and is legally entitled to be a candidate. That section provides:

Each member of any board of education shall be a citizen and resident of the district, or of such constituent district of a consolidated or regional district as may be required by law, and shall have been such for at least two years immediately preceding his appointment or election, and he shall be able to read and write.

Plaintiff’s argument is that since he is a citizen and resident of the district possessing the ability to read and write, and since there is no provision for a minimum age qualification for candidates, none can be enforced.

We view this argument as unsound. Pursued to its logical conclusion an infant of seven years residing in the district and meeting the literacy requirements of the statute could serve on a school hoard. The Legislature could not have contemplated such an absurd result so clearly contrary to the public interest.

We believe the Legislature intended that one not old enough to vote should not be qualified to occupy the office of board member. Such a conclusion is grounded in common sense. See In re Ray, 26 N. J. Misc. 56, 56 A. 2d 761, 762 (Cir. Ct. 1947). We need not consider the applicability of N. J. S. A. 10:1-1 which relates to civil rights.

In view of our conclusion we need not consider the hoard’s further argument that plaintiff is also barred from being a candidate because of a conflict of interest.

Affirmed.


author: Per Curiam.

text:
    EMMA PEARCE, PETITIONER-APPELLANT, v. NEW JERSEY HIGHWAY AUTHORITY, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted November 20, 1972
    Decided February 6, 1973.

      Before Judges Fritz, Lynch and Fulop.

      Messrs. Rosen & Kanov, attorneys for appellant (Mr. Edward Roy Rosen, on the brief).

      Mr. William K. Miller, attorney for respondent.
   Per Curiam.

This workmen’s compensation appeal represents another arrow from the quiver reserved for assault on the exclusionary “going and coming” rule.

Petitioner, employed as an “executive secretary” by respondent New Jersey Highway Authority, was injured in an automobile accident on the Garden State Parkway, a facility operated and maintained by the Authority. The accident occurred while she was driving to her work at the offices of the Authority in Woodbridge from her home in Eatontown. Her claim petition was dismissed in the Division of Workmen’s Compensation and on her appeal to the County Court. While she argues here that her employment by the Authority requires a finding that the accident happened “on the premises” of her employer and a consequent declaration of compensability, the real thrust of her appeal is that the furnishing of toll-free coupons to her by her employer to facilitate her use of the Parkway prevents application of the “going and coming” exclusion and renders the untoward event one arising out of and in the course of the employment.

No real issue of fact exists. The coupons were provided at no cost to Mrs. Pearce, and without them she would have had to pay a toll on the route from her home to Woodbridge. The coupons were only to be used in going to and coming from work and a designation on the tickets limiting by number allocation the toll gates authorized to accept these tickets worked toward that end. Petitioner was not required by her employer to use the Parkway in commuting, and toll-free alternate roads were available, although petitioner insisted that Route 35 — the most likely of these ■— was “out of my way and traffic is abominable on that highway.”

Since Bryant v. Fissell, 84 N. J. L. 72 (Sup. Ct. 1913), compensability requires that an accident arise out of and in the course of the employment. N. J. S. A. 34:15-7. And at least since Moosebrugger v. Prospect Presbyterian Church, 12 N. J. 212 (1953), and probably before (see e. g., Gullo v. American Lead Pencil Co., 119 N. J. L. 484 (E. & A. 1938)).

The rule in this State is * * that when an employee is simply on his way to or from his regular place of employment and sustains injury, such injury does not arise out of and in the course of his employment. [12 N. J. at 214]

Such rule, commonly called the “going and coming” rule, has survived to the present, but barely. Exceptions accommodating compensability have been generously engrafted, as detailed and documented in Hammond v. The Great Atlantic & Pacific Tea Co., 56 N. J. 7, 11 (1970). As commented upon by one writer, and noted in Hammond at 12, the exceptions have become so numerous they have “swallowed the rule.”

It is neither our obligation nor our prerogative to depart from the law as enunciated by our Supreme Court. And despite the last rites administered in Hammond and more recently in Bergman v. Parnes Brothers, Inc., 58 N. J. 559 (1971), the “going and coming” rule has not yet been declared dead. (See concurring opinion of Erancis, J. in Bergman, 58 N. J. 567, 568.) Nor are we privileged to administer the coup de grace.

But we can and do announce that the circumstances of the instant matter fit well within previously sanctioned exceptions, and particularly within those which recognize the employer’s contribution to transportation of the employee as an incident of employment sufficient to bring the employee’s travel within the course of, as well as arising out of, the employment.

We are aware of the fact that much of the precedent in this area involves distinguishing features such as compulsory instructions with, respect to the route (Lehigh Navigation Coal Co. v. McGonnell, 120 N. J. L. 428 (Sup. Ct. 1938), aff’d o.b. 121 N. J. L. 583, 97 N. J. L. 583 (E. & A. 1939) ); wholly free transportation (Fisher v. Tidewater Building Co., 96 N. J. L. 103 (Sup. Ct. 1921), aff’d o.b. 97 N. J. L. 324 (E. & A. 1922)); or substantial distance and substantial employer contribution (Filson v. Bell Telephone Laboratories, Inc., 82 N. J. Super. 185 (App. Div. 1964), but cf. Watkins v. Cowenhoven, 90 N. J. Super. 17 (App. Div. 1965), certif. den. 46 N. J. 538 (1966)). We realize that this exception takes shape and dimension, in part at least, in cases where the employer provided the actual transportation (Williams v. Bemco Industries, 118 N. J. Super. 481 (App. Div.), certif. den. 61 N. J. 163 (1972)).

But we do not believe any of these features to be an invariable requirement for rejection of the “going and coming” rule. We think employment being what it is by nature, the intrusion of an employer into his employee’s travel habits, customs, or economics, necessarily implies some benefit to or for the employer no matter how altruistic may be other concomitant motivations. The employment incident thus generated, coupled with such considerations as essentiality to the work of travel to and from by the employee and the risks inherent in travel (see Hammond, supra, 56 N. J. at 13), ought to be enough, it seems to us, to remove the insulation of the “going and coming” rule and- project employee travel into the orbit of “arising out of and in the course of” the employment.

So here. Accordingly, we reverse and remand to the Division of Workmen’s Compensation for a determination of benefits.


author: Consodine, J. S. C.

text:
    JOHN EMMET PARKER, PLAINTIFF, v. MARSHA JOYCE PARKER, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided February 7, 1973.

      Mr. Althear A. Lester for plaintiff (Messrs. Walls, Lester and, Smith, attorneys).

      Mr. John Gervase for defendant.
   Consodine, J. S. C.

Plaintiff and defendant were granted separation divorces. Three weeks later plaintiff was killed in an occupational accident. No written judgment had been entered. Plaintiff’s attorney now seeks to enter judgment nunc pro tunc. Defendant denies the power of the court to enter such a written judgment.

At trial the court approved a written agreement between the parties by which plaintiff paid a gross sum of $1,000 to defendant in lieu of alimony. The agreement was dated several days prior to trial. By the date of trial the money had been paid.

Eor four years prior to the filing of the complaint plaintiff had been living in an acknowledged extramarital relationship to which two children were born. The underlying conflict is the right to administration of plaintiff’s estate and various benefits that may accrue from his death.

Prior to the enactment of N. J. S. A. 2A:34-18 which eliminated judgment nisi from our divorce practice, a nisi could not be entered nunc pro tunc although a final judgment of divorce could. Vogler v. Vogler, 98 N. J. Eq. 421 (Ch. 1925); Hoyt v. Hoyt, 98 N. J. Eq. 426 (Ch. 1917) In these cases Chancellor Walker made it clear that the court was following the ancient practice in England as laid down in Cumber v. Wane, 1 Strange 426, 93 Eng. Rep. 613 (K. B. 1721). See also Estate of Emmons, 91 N. J. Super. 275 (App. Div. 1966).

The divorces were granted at the conclusion of the trial and are contained in the minutes of the court. This was the judicial act. The entry of a written judgment is a ministerial act by which evidence of the judicial act is recorded.

This is in accord with the general weight of authority. See Bell v. Bell, 181 U. S. 175, 21 S. Ct. 551, 45 L. Ed. 804 (1900); State ex rel. Rogers v. Rankin, 154 Ohio St. 23, 93 N. E. 2d 281 (Sup. Ct. 1950); Corbett v. Corbett, 113 Cal. App. 595, 298 P. 819 (App. Ct. 1931); Tikalsky v. Tikalsky, 166 Minn. 468, 208 N. W. 180 (Sup. Ct. 1926).

Entry of written judgment nunc pro tunc has been denied only where there is no evidence of an actual judgment previously rendered. See McKendree v. McKendree, 139 So. 2d 173 (Fla. App. 1962); Everhart v. Cooper, 102 Ind. App. 1, 200 N. E. 705 (App. Ct. 1936); Heil v. Rogers, 329 S. W. 2d 388 (Mo. App. 1959); Mohrmann v. Kob, 291 N. Y. 181, 51 N. E. 2d 921 (Ct. App. 1943).

Let the final judgment be entered nunc pro tunc the date of trial.


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

text:
    THE RIVER DELL EDUCATION ASSOCIATION AND ROBERT COTTO, PLAINTIFFS, v. THE RIVER DELL BOARD OF EDUCATION, A BODY POLITIC AND CORPORATE OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided January 18, 1973.

      Mr. Theodore M. Simon for plaintiffs River Dell Education Association and Robert Cotto (Messrs. Goldberg and Simon, attorneys, Mr. Simon on the brief).

      Mr. James A. Major for defendant River Dell Board of Education (Messrs. Major and Major, attorneys; Mr. Major on the brief).
   Passman, A. J. S. C.

Plaintiff seeks to restrain defendant River Dell Board of Education (hereinafter “board”) from implementing a policy designed to curtail certain discussions between students and teachers.

Defendant board is responsible for two schools, one junior high school and one senior high school, in a regional district comprised geographically of River Edge and Oradell. Plaintiff River Dell Education Association (hereinafter “association”) is the collective bargaining agent representing teachers employed by defendant board. In November 1972 negotiations were undertaken between the association and the Board to produce a collective bargaining agreement for the academic year 1973-74.

In an effort to prevent disruption of school routine and procedures by prolonged discussion of the negotiations between students and teachers, the board, through the superintendent of schools, proposed to the association’s president, plaintiff Cotto, a new policy prohibiting teachers from answering students’ questions regarding the negotiations. The proposal was rejected by Cotto, after which a memo was sent to the faculty by the superintendent describing the situations in which such discussions are to be avoided and stating that the memo is to be accepted as “policy” of the board, to be added to the Staff Manual (1972-73). The memo follows:

Memo to: Faculty
From : Richard A. Yeit
Re: Negotiations
Date : November 21, 1972
There are times during the heat of negotiations between teacher associations and boards of education when students become very interested and concerned. Naturally, youngsters ask questions in the classroom, hallways, and during extra-curricular activities. Should you be placed in this somewhat precarious position, please inform the inquisitive youngsters that negotiations between a Board and professional teachers’ association are not to be discussed for obvious reasons.
Please accept this as policy of the River Dell Regional Board of Education and add the above paragraph to page 25 of the Staff Manual (1972-73) as item # 8, under COMMUNICATIONS. RAV :dm

The complaint asserts that the association was advised that any breach of the new policy, to be determined by the board, would be considered insubordination, with possible discharge, removal of tenure, or withholding of increments as possible penalties.

The complaint seeks a declaratory judgment as to that policy and an injunction against its enforcement.

Before we reach the merits of this case, a threshold question has been raised by defendant board, namely, the issue of exhaustion of administrative remedies. The board asserts that jurisdiction over the question of the validity of the policy in question should be lodged in the Commissioner of Education, pursuant to N. J. S. A. 18A:6-9, which provides as follows:

The commissioner shall have jurisdiction to hear and determine, without cost to the parties, all controversies and disputes arising under the school laws, excepting those governing higher education, or under the rules of the state board or of the commissioner.

Whether this case falls within the category of disputes arising under the school laws need not be decided at this point, since I do not feel that this is a case warranting the implementation of the doctrine of exhaustion of administrative remedies. In Matawan v. Monmouth County Board of Taxation, 51 N. J. 291 (1968), our Supreme Court noted that the exhaustion doctrine is applicable only where the expertise of the administrative agency would be necessary or advantageous. In that case the only question was one of law: the court ruled that since no issue of fact was involved, it would not avail the complainant to pursue his remedies before an administrative agency. The courts are uniquely suited to determine constitutional issues, especially where, as in the present case, there is no necessity to engage in fact-finding, for which the agency is at least as well-suited. Since we are faced with what is in essence a pure constitutional issue, I see no need to remand this ease to any administrative agency.

Plaintiff association argues that the board’s policy is a prior restraint on freedom of discussion in an academic environment. The right to be free of such restraint finds support in Tinker v. Des Moines Independent Community School District, 393 U. S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). Plaintiff argues that the imposition of a prior restraint on expression places a burden on the party imposing the restraint to overcome the heavy presumption against its constitutionality. Healy v. James, 408 U. S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972).

In Tinker, the United States Supreme Court held that freedom of expression of views, however controversial, is not to be curtailed in a school without a showing that a substantial disruption of school activities would otherwise result. Mr. Justice Portas for the court stated:

First Amendment rights, applied in light of the special characteristics of- the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this court for almost 50 years * * *\ [393 U. S. at 506, 89 S. Ct. at 736; citations omitted]

Thus, while the case dealt with the right of students to wear armbands protesting the Vietnam War, the court made it clear at the outset that its remarks concerned the rights of teachers as well as of students. The court continued:

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibtiion cannot be susstained. Burnside v. Byars, supra, 5 Cir. 363 F. 2d 744 at 749. [393 U. S. at 509, 89 S. Ct. at 738]

I do not find that the defendant board has met its heavy burden of proof that the prohibitive policy in question was justified in the light of Tinker and of Healy v. James, supra, which holds that any prior restraint on freedom of expression can only be justified by overcoming a heavy presumption against its constitutionality.

In addition to these strong statements which can be read to support a teacher’s right to express his views on controversial issues, the case of Pickering v. Board of Education, 391 U. S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), directly upheld this right, although in a context slightly different from the case at bar. Pickering was a high school teacher who was dismissed from his position for writing a letter to a local newspaper opposing a local bond issue and! criticizing the board for the way in which it handled past proposals to raise new school revenue. Mr. Justice Marshall for the Supreme Court held that the dismissal was improper. The court noted that mere statements by a teacher regarding controversial issues do not constitute a disruption of school routine sufficient to justify curtailment of such statements by the school board.

What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public. [391 U. S. at 572-573, 88 S. Ct. at 1737]

The court summed up its philosophy thus:

* * * we hold that, in a ease such as this, absent proof of false statements knowingly or recklessly made by Mm, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment * * [391 U. S. at 574, 88 S. Ct. at 1738]

While the statements in Pickering were not made in the classroom or otherwise in the school building itself, the-case nevertheless gives compelling support for the position-that a teacher’s statements, wherever made, are to be given-no less opportunity for issuance than those of any other citizen.

Defendant board cites three cases which, it argues, are dispositive of the case at bar: Lloyd Corp., Ltd. v. Tanner, 407 U. S. 551, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972) ; Central Hardware Co. v. NLRB, 407 U. S. 539, 92 S. Ct. 2238, 33 L. Ed. 2d 122 (1972), and State v. Smith, 46 N. J. 510 (1966).

Lloyd involved the right of a shopping center to prohibit the distribution of handbills on its premises. The court held that such a prohibition did not violate Eirst Amendment rights. Central Hardware held that a retailer’s parking lots being open to the public did not bring a union’s right to solicit support therein within the protection of the Eirst Amendment. Smith held that the Eirst Amendment was not a bar to curtailing disorderly conduct at a public meeting.

These three cases have no bearing on the case at bar. They do not deal with an academic environment and say nothing about the rights of teachers and students to discuss controversial issues. It is clear that ah academic setting is entirely different from the context of a retail store’s parking lot or the grounds of a shopping center. The court has repeatedly indicated that Eirst Amendment rights in the academic context are jealously protected. See Meyer v. Nebraska, 262 U. S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); Bartels v. Iowa, 262 U. S. 404, 43 S. Ct. 628, 67 L. Ed. 1047 (1923); Pierce v. Society Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); West Virginia State Board of Education v. Barnette, 319 U. S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943); Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (1948); Wieman v. Updegraff, 344 U. S. 183, 73 S. Ct. 215, 97 L. Ed. 216 (1952); Sweezy v. New Hampshire, 354 U. S. 234, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957); Shelton v. Tucker, 364 U. S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960); Engel v. Vitale, 370 U. S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601 (1962); Keyishian v. Board of Regents, 385 U. S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Epperson v. Arkansas, 393 U. S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968). All of these eases were cited by Mr. Justice Fortas in Tinker v. Des Moines, supra, 393 U. S. at 506-507, 89 S. Ct. at 736, to support the statement that it has been the unmistakable policy of the Supreme Court for the past 50 years to uphold Eirst Amendment rights of students and teachers in an academic context.

In view of the foregoing, I feel that the policy propounded by defendant board is not supportable in a constitutional sense. There has been no showing by the board that the conduct sought to be curtailed would “materially and substantially inferere with the requirements of appropriate discipline in the operation of the school.” Tinker, supra, 393 U. S. at 509, 89 S. Ct. at 738. Indeed, it can be argued that the subject of the current negotiations is appropriate for questions by students and answers by teachers in the school setting, since the relationship between the teachers and the school board may have a direct effect on students themselves.

The recent case of James v. Board of Education, 461 F. 2d 566 (2 Cir. 1972), is directly on point. The court held that it was unconstitutional for school authorities to discharge a teacher because he wore a black armband in class to protest the Vietnam War. Without proof of disruption, the court held that a policy of prohibition of such conduct was not justifiable. Indeed, the court stated, it is appropriate for such conduct to take place in the classroom, since it is foolhardy to attempt to shield high school students who are about to enter the political arena as voters from political controversy.

This case does not relate to regulation of clothing or hair style or deportment. This is a First Amendment question at a time when youth is eager and inquisitive, unaccompanied by any disturbance or disorder.

Openness is not to be condemned. Questions posed by students and answers thereto are not the same as prolonged discussions of the negotiations. If the memo prohibited debate and extended discussion of negotiations, the argument for disruption would be more substantial. It is not desirable for a teacher to use his classroom as a soapbox.

And the directive speaks of questions both in the hallways and in the classroom. In what manner has school routine been substantially disrupted? Certainly, anything controversial may start a discussion. But apprehension of disturbance or controversy is no reason to bar freedom of speech. Constitutional freedom is more important in the American school than anywhere. This is the market place for answers to questions for an intelligent understanding of all issues. Tinker v. Des Moines School District, supra. Our Constitution permits answers to controversial questions in the classroom. This form of expression cannot be denied.

The directive, dated November 21, 1972, to the faculty from the River Dell Board of Education is unconstitutional and unlawful. It is violative of Article 1, paragraph 6 of the 1947 New Jersey Constitution as well as the First Amendment of the United States Constitution as applied to states by virtue of the Fourteenth Amendment.


author: Pee Cueiam.

text:
    PAULETTA PIERCE (GLOUCESTER COUNTY WELFARE BOARD), PLAINTIFF-RESPONDENT, v. AUGUSTUS PIERCE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 30, 1972
    Decided January 24, 1973.
    Before Judges Fritz, Lynch and Handler.

      Mr. Carl S. Bisgaier argued the cause for appellant (Mr. Frederick W. Schmidt, Jr., of counsel; Mr. Robert A. Sla

      pin, on the brief; Mr. David H. Dugan, III, Director, Camden Regional Legal Services, Inc., attorney).

      Mr. Charles J. Sprigmcm, Jr., Assistant County Counsel, argued the cause for respondent (Mr. John L. White, Gloucester County Counsel, attorney).
   Pee Cueiam.

This appeal springs from that which defendant characterizes — entirely erroneously' — -in his notice of appeal as a “contempt order.” Such a mistake was undoubtedly induced part by the statement of the judge below, “I find him [defendant] guilty of contempt of Court.”

The appeal is actually from an order on application for enforcement of litigant’s rights, so denominated in its heading, and entitled in the matrimonial cause which bottoms it, obviously under R. 1:10-5. As to the vast difference between this proceeding and a contempt, see N. J. Dept. of Health v. Roselle, 34 N. J. 331 (1961).

Defendant, who was sentenced to jail, complains here only that he was entitled to representation by counsel at the hearing. We do not reach this issue because we are satisfied that serious procedural difficulties require a rehearing, and defendant now has counsel.

Defendant was sentenced to 30 days in jail for failure to comply with a support order. A sentence for a term is inappropriate in these circumstances. Incarceration is a coercive remedy to achieve compliance, and, where indicated, should not be limited or delimited by a term, but should depend for its length on the continuation of noncompliance. It has been said in such a situation that the key to the jail is in the prisoner’s pocket, that key being compliance with the order.

The fact that the judge below conditioned the order for incarceration upon release upon payment of the arrearage may save the order from impropriety, but it would be better done as set forth above.

Of more concern to ns is that nowhere is demonstrated in the record before us the ability of defendant to comply with the order sought to be enforced by the coercive remedy. (Indeed the sparse record below conduces to the contrary.) Nor does this essential finding appear in the order providing incarceration. Such a finding, i. e., of ability to comply, is essential. N. J. Dept. of Health v. Roselle, supra, 34 N. J. at 338.

Reversed and remanded for a new hearing. No costs. We do not retain jurisdiction.


author: Per Curiam. Allcoen, J. A. D.

text:
    WILLIAM J. KENNEDY, ADMINISTRATOR OF THE ESTATE OF WILLIAM H. KENNEDY, DECEASED, PLAINTIFF-APPELLANT, v. HARRISON W. ROACH, JR., AND CATHERINE E. ROACH, HIS WIFE, EDWARD ROACH AND JOAN PATRICIA ROACH, HIS WIFE, AND NORMAN ROACH AND MARGARET ELIZABETH ROACH, HIS WIFE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1973
    Decided February 9, 1973.

      Before Judges Lora, Allcorn and Byrne.

      Mr. William M. Balliette, Jr. argued the cause for appellant (Messrs. Cafiero and Balliette, attorneys).

      Mr. Louis C. Dwyer, Jr. argued the cause for respondents (Messrs. Kay and Gorino, attorneys).
   Per Curiam.

Decedent William H. Kennedy was a licensed New Jersey real estate broker whose salesman, William J. Kennedy, negotiated the sale of the Surfrider Motel in May 1970 by the defendant sellers to James and Eaye Mancini.

The sale price was $300,000 and the agreement of sale dated May 6, 1970 called for the payment of $5,000 upon the signing of such agreement and an additional sum of $35,000 on or before May 9, 1970, at which time the buyers were to take over possession and operation oí the motel. The balance of the purchase price was to be paid, with interest at 7^% a year; $33,000 on September 15, 1970 (later modified to $20,000 on September 15, 1970 and $15,000 on September 15, 1971) ; interest only during 1971 and $11,250 plus interest on September 15, 1972, at which time title would be transferred and a $213,750 mortgage would be taken back by the sellers.

Plaintiff-appellant’s commission was provided for under paragraph XIV of the agreement which stated:

It is understood and agreed between the parties that the real estate agent responsible for the sale is William Kennedy, realtor, and the Sellers agree to pay a commission to William Kennedy, realtor, in the amount of .$9,000.00 as follows: $3,000.00 on May 9, 1970, and $6,000.00 on September 15, 1970, without interest. * * *

The buyers paid defendants the sum of $40,000 and went into possession on May 9, 1970, and plaintiff was paid the initial $3,000 on account of his commissions. The record reveals the buyers operated the motel during the summer of 1970 but thereafter defaulted, never making the payment due on September 15, 1970. The sellers thereupon re-took possession of the premises and retained the $40,000 previously paid.

Notwithstanding the buyers’ default plaintiff claims he is entitled to the additional $6,000 in commissions which were due him on September 15, 1970. Defendants contend the commissions were contingent upon the receipt of the payments on May 9, 1970 and September 15, 1970.

The agreement of sale provided with respect to a default by the buyer that:

In the event of the failure of buyer to comply with any of the terms hereof, and after 30 days written notice of demand by seller that said default be corrected, seller shall have the right to declare this contract null and void and it is expressly agreed that any and all monies paid by any means whatsoever hereunder, shall be and in such event are, hereby declared to be reasonable and proper rent for the premises in question for the period of occupancy by the buyer as may have transpired, and in such event buyer will immediately vacate the premises without delay or hindrance, and upon failure to do so shall be a tenant (in default) of the seller, subject to the Landlord and Tenant Laws of the State of New Jersey. Upon tenant so vacating the premises, all items of personal property within the premises on the date of this agreement and/or substitution therefor shall remain. * * *

The trial judge found that said default clause was controlling with respect to the monies received by the sellers, and because the monies were to be treated as reasonable rent for the premises, plaintiff-broker should receive a rental commission of 10%, there having been testimony that 10% was the customary commission for seasonal rentals. He thereupon entered judgment for plaintiff for $1,000, $3,000 having already been paid as set forth above.

We are, of course, well aware of the landmark holding of Ellsworth Dobbs, Inc. v. Johnson, 50 N. J. 528, 555 (1967) that a broker is not entitled to a commission from the seller if title does not pass because of the inability or fault oí the purchaser and that public policy requires the courts to read into every brokerage agreement or contract of sale a requirement that barring default by the seller, commissions shall not be deemed earned against him unless the contract of sale is performed.

However, Dobbs did not deal with a situation such as is here involved, nor do we deem the factual complex of this case brings it within the comprehension of the holding therein. The rather meagre record reveals that William J. Kennedy, who negotiated the sale, was a television repair man who had also worked for 17 years as a part-time real estate salesman in his father’s office. The agreement for the sale of the motel which included the provisions for brokerage commissions was prepared by the seller’s attorney and was executed in said attorney’s office. Plaintiff-broker was not represented by an attorney at any phase of such proceedings. Plaintiff agreed to a 3% brokerage commission notwithstanding the customary fee in the trade or business was 6% and, consequently, his commissions were reduced from $18,000 to $9,000.

Although the coro mission agreement is not ambiguous, the trial judge received the uncontradieted testimony of the broker that it was never agreed that payments of commissions would be conditioned upon receipt of payments from the purchaser — actually the testimony was any such condition was never discussed.

The bujrers went into possession on May 9, 1970 and actually ran the motel for some four months. In our opinion the “crucial time” contemplated by Dobbs, supra, at 552 for the vesting of commissions was said May 9, 1970 and not September 15, 1972 (some 28 months later) when title was to be transferred, or September 15, 1970 when another $30,000 was to be paid by the buyers. While we realize the $40,000 paid represented 13 1/3% of the total purchase price and hence was not greatly in excess of a perhaps standard deposit of 10%, there was no evidence whatsoever adduced as to what the sellers’ net return might have been had they themselves operated the motel that summer of 1970.

Linder the circumstances of this case we find no “inequality of bargaining power, position or advantage” between the broker and the seller, nor any inequity or unconscionability which militates against the entitlement of plaintiff to his $9,000 commission as of the time when the buyer went into possession and took over the operation of the motel, albeit payment of $6,000 thereof was to be deferred to September 15, 1970.

Beversed and remanded for entry of judgment in accordance with this opinion.

Allcoen, J. A. D.

(dissenting). The factual complex here is clearly within and is controlled by the rule enunciated in Ellsworth Dobbs, Inc. v. Johnson, 50 N. J. 528 (1967). Inasmuch as the contract failed of consummation admittedly because of default by the buyer, the broker is entitled to no commission whatever against the sellers.

Defendants not having filed a cross-appeal, however, I would affirm the judgment of the trial court.


author: Pee Gtjkiam.

text:
    JOHNS-MANVILLE PRODUCTS CORP., APPELLANT, v. BOARD OF REVIEW, DIVISION OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, AND CONSTANTINE P. BESSASPARIS, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted January 30, 1973
    Decided February 9, 1973.

      Before Judges Koeovsky, Matthews and Akd.

      Mr. William W. Lanigan, attorney for appellant {Mr. Daniel F. O’Connell, on the brief).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for respondent {Mr. Stephen Skillman, Assistant Attorney General, of counsel; Mr. I. Leo Motiuk, Deputy Attorney General, on the brief).
   Pee Gtjkiam.

Johns-Manville Products Corp. (appellant), the former employer of Constantine P. Bessasparis (claimant), appeals from a decision of the Board of Beview which affirmed the decision of the Appeal Tribunal that the claimant was eligible for unemployment benefits.

The claimant had worked for appellant for more than five years as a Class A machinist. By May 1971 his wage rate was $4.27 an hour.

In January 1971 the union of which claimant was a member had entered into a collective bargaining agreement with appellant. That agreement provided, among other things, that an employee laid off from one department and entitled to exercise plant seniority must accept the next lower job to which he is entitled or else he is to be removed from the recall list, taken from the seniority list, and all his plant and departmental seniority cancelled.

Shortly before claimant left for vacation on May 21, 1971 he was notified by his employer that he was to be laid off on May 28 from his position as Class A machinist. He was then offered work in one of several less skilled jobs which paid from $3.21 to $3.35 per hour. During his vacation claimant decided that he could not afford to work at the reduced rate, accepted the lay-off and began to seek work at his previous wage rate.

It is undisputed that claimant actively sought work and that it was not until November 7, 1971 that he obtained a new job at a base rate which was only 5% less than he earned as a Class A machinist and which provided an opportunity for a substantial amount of overtime.

In the meantime claimant had on June 8, 1971 applied for unemployment benefits. The Deputy found that he was eligible and not disqualified for such benefits. On successive appeals by Johns-Manville, the Deputy’s determination was affirmed by the Appeal Tribunal on August 5, 1971 and by the Board of Review on August 31, 1971.

At appellant’s request the Board re-opened the matter on November 28, 1971 and then, by its decision of December 28, 1971, ruled that claimant was eligible for benefits from June 8, 1971 to November 7, 1971, the date he obtained new employment. This appeal is taken from the Board’s decision of December 28, 1971.

In that decision the Board, after making findings of fact, concluded:

OPINION:
We have recognized as a general proposition that where down-grading is not severe and the loss of pay is not heavy a claimant should continue at the work offered rather than go on unemployment rolls. However, this is not such a case. * * * Although the employer argues that the claimant, with incentive and overtime pay, could have maintained his earnings level, the uncontroverted testimony of the claimant leads to the conclusion that with the information available to him at the time he made his decision, the claimant had the choice of becoming unemployed or continuing in a comparatively low skilled job paying over twenty-five per cent less than he last earned and with limited prospect of improvement. Under the circumstances his leaving the work rather than accept transfer was with good cause attributable to such work and does not subject him to disqualification under It. S. 43:21-5(a) or 5(c).
The claimant’s efforts to find work resulting in reemployment in his skilled capacity at a base rate approximately five per cent less than he last earned but with much overtime show him to have been so available for work as to meet the eligibility requirements.
DECISION:
The claimant was eligible for benefits, without disqualification, from June 8 through November 7, 1971.

Appellant, relying on cases of which Goebelbecker v. State, 53 N. J. Super. 53 (App. Div. 1958), is typical, argues that claimant was “disqualified for unemployment compensation benefits under the ‘voluntary quit’ provision of N. J. S. A. 43 :21-5 (a) and the ‘available for work’ provision of N. J. S. A. 43:21-5(c)” because he had refused the other jobs which appellant had offered him.

However Goebelbecker and similar cases are clearly distinguishable. In those cases the factual situation was that described in the first sentence of the Board’s “Opinion,” cases in “which the downgrading [was] not severe and the loss of pay not heavy.”

Here, however, the Board found that the loss of pay which claimant would suffer if he accepted the low-skilled jobs and wages which appellant offered was substantial. That finding is fully supported by substantial evidence in the record and is entitled to particular weight because of the administrative tribunal’s familiarity ■with and expertise in employment matters. There is no warrant for our disturbing those findings.

We agree with the Board’s determination that a substantial reduction in wages constitutes,good cause for leaving work under N. J. S. A. 43:21-5 (a). That determination is in accord with the weight of reasoned authority. Bunny’s Waffle Shop v. California Employment Com’n, 24 Cal. 2d 735, 151 P. 2d 224, 228 (Sup. Ct. 1944); Robertson v. Brown, 139 So. 2d 226 (La. Ct. App. 1962); Pacific Mills v. Director of Division of Employ. Sec., 322 Mass. 345, 77 N. E. 2d 413 (Sup. Jud. Ct. 1948); Dubkowski v. Administrator, Unemploy. Comp. Act, 150 Conn. 278, 188 A. 2d 658 (Sup. Ct. Err. 1963); 81 C. J. S. Social Security and Public Welfare § 170 at 258; see also Wojcik v. Bd. of Review, 58 N. J. 341 (1971).

Further, under the facts of this case we find no merit to appellant’s argument that claimant had refused to “accept suitable work when offered him” and hence was disqualified under N. J. S. A. 43:21-5(e). It is clear from the Board’s findings that work offered by appellant was not “suitable” within the meaning of the cited section. Wojcik v. Bd. of Review, supra, 58 N. J. at 345; Dubkowski v. Administrator, Unemploy. Comp. Act, supra; Shay v. Unemployment Compensation Bd. of Review, 424 Pa. 287, 227 A. 2d 174 (Sup. Ct. 1967).

Finally, there is no substance in appellant’s suggestion that in view of the provisions of the collective bargaining agreement, an employee refusing the transfer offered by the employer disqualifies himself from receiving unemployment compensation benefits. See Stonco v. Bd. of Rev., Div. of Emp. Sec., 106 N. J. Super. 6, 12 (App. Div. 1969); Dubkowski v. Administrator, Unemploy. Comp. Act, supra. The right to unemployment compensation benefits stems from the Unemployment Compensation Law, not from agreements between the employer and employee.

Moreover, the collective bargaining agreement in this case does not in fact provide that an employee refusing a transfer should forfeit his rights to unemployment compensation benefits. If it did contain such a provision, the provision would be void. “Any agreement by an individual to waive, release, or commute his rights to benefits or any other rights [under the unemployment compensation law} shall be void.” N. J. S. A. 43:21 — 15(a).

The decision of the Board of Review is affirmed.


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

text:
    VIRGINIA THOMAS, PLAINTIFF-APPELLANT, v. BERGEN COUNTY WELFARE BOARD, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 3, 1973
    Decided February 14, 1973.

      Before Judges Labkecque, Kolovsky and Matthews.

      Mr. Kenneth 8. Abraham argued the cause on behalf of appellant (Messrs. Mazer é Lesemann, attorneys; Mr. Abraham and Mr. Arthur J. Lesemann, on the brief).

      Mr. Edwin G. Eastwood, Jr., special counsel, argued the cause for respondent.
   The opinion of the court was delivered by

Labrecque, P. J. A. D.

Plaintiff Virginia Thomas appeals from the dismissal of her suit challenging the action of the Bergen County Welfare Board (the board) in abolishing the position of Deputy Director of Welfare of Bergen County, held by her.

The affidavits filed with the court indicate that plaintiff was first employed as a ease worker in 1962. In 1966 she became a supervisor and after two years in that position was appointed training supervisor. In 1969 she was appointed to serve as Acting Deputy Director and, after taking a Civil Service examination in which she placed first, was appointed Deputy Director.

On November 29, 1971 the board held a regularly scheduld meeting which was open to the public at which no action was taken with regard to the position of Deputy Director or any other issue now in question. At the conclusion of the meeting members of the public were asked to leave and a closed executive session was held. At this meeting the board adopted a resolution abolishing the position of Deputy Director of Welfare “due to reasons of economy.”

Upon being notified that her position had been abolished plaintiff instituted the present suit challenging the board’s action as violative of the New Jersey “Right to Know Law,” N. J. S. A. 10 :4-l et seq. The moving papers took the form of a verified complaint seeking to set aside the resolution on that ground, and an order to show cause for temporary relief. On the return day of the order to show cause the trial judge, in an oral decision, dismissed the complaint sua sponte. The present appeal followed.

The board was vested with power to appoint a Director of Welfare, N. J. S. A. 44:1-24, and such other officers “as may be necessary,” N. J. S. A. 44:1-26, including a Deputy Director, N. J. S. A. 44:4^-41. The New Jersey “Right to Know Law,” N. J. S. A. 10:4-l et seq., declares it to be the public policy of this State to insure the right of citizens to attend meetings of public bodies. As there defined, public bodies include any board organized under the laws of this State to perform a public governmental function by official action, i. e., by vote. N. J. S. A. 10:4^2. With certain exceptions not here relevant the public is required to be admitted to any meeting of a public body at which official action is taken. N. J. S. A. 10:4r-3 and 4. N. J. S. A. 10 :4-5 provides that “Official action taken in violation of the requirements of this act shall be voidable in a proceeding in the Superior Court.”

While' we are here confronted with a dismissal of the action by the court sua sponte, it appears that' neither side ■objected to this procedure, and 'since there is no -réat factual dispute, there would appear to be no bar to the settling of the substantive points raised.

We are here concerned only with the issue of whether the board validly abolished the position of Deputy Director of Welfare held by plaintiff at an executive session from which the public was excluded. The wisdom of the action taken or whether it was in fact prompted by a desire to achieve economy are no concern of ours at this time.

The Bergen County Welfare Board was established pursuant to N. J. S. A. 44:1-10 et seq. and clearly qualifies as a “public body” within the intendment of the “Right to Know Law.” As such a body any “official action” taken by it was subject to the provisions of that statute. The vote to abolish the position of Deputy Director was such an official action. N. J. S. A. 10:4^-2. It clearly appears that the vote was taken at an executive session from which the public was excluded. While N. J. S. A. 10:4-4 provides seven exceptions to the requirement of a public meeting, none apply to the present state of facts.

The statute makes an official action taken in violation of the “Right to Know Law” voidable in a proceeding in the Superior Court. In Wolf v. Zoning Bd. of Adjust., Park Ridge, 79 N. J. Super. 546, 553 (App. Div. 1963), we held:

The purpose of the act, as reflected in N. J. S. A. 10:4-1, is to implement the declaration therein that it is “the public policy of this State to insure the right of the citizens of this State to attend meetings of public bodies * * * for the protection of the public inerest.” , In other words, the object of the a et is primarily prophylactic, and not necessarily restricted to creation of a remedy for illegalities at particular public meetings from which the public is excluded. Appropriate implementation of that object and policy calls, as a general rule, for the Superior Court upon proper application to set aside any official action, as defined by the act, which is taken without compliance with the prescriptions of the statute, as here. We need not now decide that no discretion is ever to be. reserved to the court to save the validity of official action taken in contravention of the statute. That- question may be left to await a ease where a sufficiently impelling counter-interest may be argued to bespeak sustaining the action impugned. It suffices here to say that mere absence of bad faith or other impropriety on the part of the public body should not ordinarily move the court to stay its hand in voiding official action taken contrary to the statute upon proper application therefor. [Emphasis added]

In Kramer v. Bd. of Adjust., Sea Girt, 80 N. J. Super. 454 (Law Div. 1963), the court held invalid a resolution of the hoard of adjustment recommending the granting of a variance because the vote had been taken at an executive session in the absence of the public, notwithstanding that a “formal re-run” of he board’s vote was taken publicly four’ months later. The court there held :

Xevertheless, if, as defendants contend, the Stockton variance is a subject of deep moment to the community, then it follows that the public had a right pursuant to if. J. S. A. 10:4-1 to attend the meeting of the hoard on March 16, 1963 at the time that the vote was actually taken. The time was then ripe for each member of the hoard of adjustment to stand before all who wished to attend and publicly announce his vote. A formal “re-run” of the board’s vote nearly four months later could not possibly be in the spirit of if. J. S. A. 10 :4-l, which insures “the right of the citizens of this State to attend meetings of public bodies * * * for the protection of the public interest.” -Just as the board of adjustment is obligated to act within its jurisdictional powers as prescribed by the enabling statute, Auciello v. Stauffer, 58 N. J. Super. 522 (App. Div. 1959), it must also comply with a statute as basic and fundamental as the “Right to Know Law.” [80 N. J. Super. at 463-464]

And further:

If this court were to permit the actions of the board to stand, it would be tantamount to an express sanction to circumvent the requirements of N. J. S. A. 10:4-l et seq. Every commission, board and public authority would then be invited to vote in executive session and take the risk that the proceeding would go unchallenged. And if challenged on aj)peal, the administrative tribunal simply could meet the objection by hastily revoting at a public meeting. Clearly, such a procedure, even fi taken in good faith, cannot be condoned, [at 464]

Here, we find no compelling counter-interest which would justify a refusal to void the challenged action of the board. That the abolished office was a permissible rather than a mandatory one did not exempt the board from the requirement that its abolition not take place behind closed doors. It was certainly not a “matter of internal management” which “only tangentially affects” the public interest, as suggested on behalf of the board. The board was not simply dealing with the removal of an employee — it was altering the basic administrative setup of the county welfare program. The position sought to be abolished was the second highest one within the board’s jurisdiction. The public had a statutory right to be present at the meeting at which this was accomplished.

It is urged by the board, and the trial judge so held, that plaintiff was required to exhaust her administrative remedies before the Civil Service Commission (the Commission) before having recourse to the courts. Fot so. The statute assigns to the Superior Court the task of determining whether an action taken in violation of the statute shall stand. N. J. 8. A. 10:4-5. Further, the issues before us concern questions of law not peculiarly within the expertise of the Commission. See Battaglia v. Wayne Tp. Planning Board, 98 N. J. Super. 194, 202 (App. Div. 1967); Florham Park Invest. Assocs. v. Madison Planning Bd., 92 N. J. Super. 598, 603-604 (Law Div. 1966). See also, Nolan v. Fitzpatrick, 9 N. J. 477, 486-487 (1952). However, this is not to say that plaintiff may not have recourse to the Commission on the basis, of other reasons which she may conceive render invalid the abolition of her position or her demotion.

We accordingly hold the action of the board abolishing the position of Deputy Director to be void for failure to comply with N. J. S. A. 10:4-l et seq.

Reversed and remanded for further proceedings in accordance with this opinion.


author: Mintz, J. A. D.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. DWAYNE CARL WILLIAMS, a/k/a CARL COUNTS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 8, 1973
    Decided February 14, 1973.
    Before Judges Cakton, Mintz and Ciiaiiay.

      Mr. Stanley C. Van Ness, Public Defender, attorney for defendant-appellant (Mr. Harvey I. Marcus, of counsel on brief'and appendix).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for plaintiff-respondent (Mr. Richard W. Berg, Deputy Attorney General,- of counsel and on the brief).
   The opinion of the court was delivered by

Mintz, J. A. D.

Defendant was tried to a jury and convicted of attempted subornation of perjury in violation of N. J. S. A. 2A:131-1 and 2A:85-5.

On appeal defendant contends that (a) the State did not sustain the burden of proof in that there was no corroboration. of the matter alleged to be untrue, and (b) the court erred in not charging the jury, that the subject matter sought to be suborned concerned a material fact.

Assistant Prosecutor Richard M. Altman testified that he prosecuted the ease of State v. Ronald Williams, which involved a two-count indictment for (a) breaking and entering a residence, and (b) larceny of a color televisión set. Ronald Williams was convicted on both counts. Four persons had been arrested for this offense, namely, Ronald Williams, James Blakely, William Shorter and Herbert Wright, a juvenile. The Ronald Williams trial commenced on Monday, March 29, 1971. Wright agreed to testify for the State. Altman further testified that the police apprehended Ronald Williams, along with the other three men, in an automobile with the stolen television set. He further said that he noticed defendant Dwayne Carl Williams in the courtroom on the second day of that trial. (The latter was not implicated in the breaking, entering and larceny for which Ronald Williams was on trial.) Altman stated that Ronald Williams’ defense was that he entered the automobile after the television set had been stolen and had nothing to do with the crimes.

Wright testified that on the evening of March 29, 1970 Eonald Williams, one Jessie Harris and defendant appeared at his home. Eonald in the presence of defendant asked him to-testify that he, Eonald, entered the car after the television sot “was gone.” Defendant said “that it would make life easier, you know, for me if 1 testified the way Eonnie asked me to.” Wright further stated that he received a telephone call from James Blakely who said that he needed a ride to move a T.V. set; that he, Wright, used his father’s car for such purpose; that Eonnie got in the car and told him that he needed some help to move the T.V. set for which he would be paid $15; that Eonnie first entered the house. He indicated that he needed help. Thereupon) Williams, Blakely, Shorter and he entered the house, removed the set and placed it in the trunk of the car, and Wright further testified that his testimony in the Eonald Williams trial was the truth.

With respect to point (a), the issue of requisite corroboration in perjury cases was considered in State v. Bulach, 10 N. J. Super. 107 (App. Div. 1950), where the court held:

The requirement in perjury cases of corroborative evidence of the testimony of a single witness, an exception to the rule that one witness’ testimony suffices in most cases, has been criticized by text writers and some courts. VII Wigmore on Evidence (3rd Ed. 1940), sections 2040, 2041; Annotation, 111 A. L. R. 825. However, the requirement is firmly embedded in our law. State v. Taylor, 5 N. J. 474 (1950) ; Zabriskie v. State, 43 N. J. L. 640, at 647 (E. & A. 1881) ; State v. Lupton, 102 N. J. L. 530 (Sup. Ct. 1926) ; State v. Ellison, 114 N. J. L. 237 (Sup. Ct. 1935). This does not mean that the testimony of two witnesses is required; the testimony of one witness plus proofs corroborating his evidence suffices. The two witness rule obtaining in some states probably was not followed at any time in New Jersey. Zabriskie v. State, supra, [at 110-111]

.If corroborating evidence is required in cases of attempted subornation of perjury, that requirement may have been satisfied in the instant case. Herbert Casale, father of Herbert Wright, testified that on Monday March 29, 1971, at about 6 P.M., three men, including defendant Dwayne Williams and Ronald Williams, came to his home looking for his son who went out on the porch. Casale, standing by the door that was six to eight inches open at the time, heard Ronald, standing near the door, say to his son, “All I want you to do is be in my corner.”

Defendant’s reliance upon State v. Ellison, 114 N. J. L. 237 (Sup. Ct. 1935), is misplaced. That case involved a conviction for perjury, and the court there held that to justify the conviction there must be corroboration of the mátter alleged to be false. In the instant proceeding there is no allegation that Wright committed perjury. As already noted Wright testified that he told the truth in the Ronald Williams trial.

Sister jurisdictions have rejected the principle that corroboration of the testimony of a single witness is requisite to sustain a conviction of attempted subornation of perjury. Tipton v. State, 8 Md. App. 91, 258 A. 2d 606 (Ct. Spec. App. 1969); Commonwealth v. Billingsley, 160 Pa. Super. 140, 50 A. 2d 703 (1947), aff’d 357 Pa. 378, 54 A. 2d 705 (1947). In Tipton the court concluded that whatever the basis be for the two-witness rule there was no reason to extend it to the present case since there was no perjury given. Hence, the conviction was not based solely on the testimony of an admitted perjurer. So, in the instant ease, Wright did not commit perjury in the Ronald Williams trial.

The distinction between attempted subornation of perjury and subornation of perjury is aptly drawn in Commonwealth v. Billingsley, 357 Pa. 378, 54 A. 2d 705 (Sup. Ct. 1947), where the court stated:

Subornation of perjury consists of all the elements enumerated in the crime of perjury (committed by the witness alleged to be suborned), and one additional element, that the accused induced, persuaded and instigated the suborned witness to commit the crime of perjury. This additional fact (procurement of the witness) does not require proof by more than one witness, State v. Ruskin, 117 Ohio St. 426, 159 N. E. 568, 56 A. L. R. 403.
The attempt to suborn a prospective witness to commit perjury (the instant indictment) is a common law crime separate and distinct from subornation of perjury. Appellant is correct in stating that in subornation of perjury there must be proof of actual perjury committed by the suborned witness. But as to attempts to suborn one to commit perjury it is unnecessary that the person suborned did testify falsely, or indeed did testify at all. The offense is made out whenever the accused instigates and procures the agreement of the prospective witness to testify falsely. This is true even if thereafter the prospective witness fails to go through with the bargain and refuses to give evidence. It is, of course, a necessary element of the crime that both the accused and the person to be suborned knew that the testimony sought was false, material, and to be used in actual or prospective litigation. [54 A. 2d at 707-708]

In Culwell v. United States, 194 F. 2d 808, 812 (5 Cir. 1952), the court stated that:

[T]he act of soliciting another to commit perjury does not involve the theory of oath against oath and the inducing is generally held to be properly established by the uncorroborated testimony of one witness * * *

To the same effect see State v. Powers, 239 Iowa 430, 30 N. W. 2d 476 (Sup. Ct. 1947), cert. den. 340 U. S. 838, 71 S. Ct. 23, 95 L. Ed. 615 (1950); Petite v. United States, 262 F. 2d 788 (4 Cir. 1959), rev'd on other grounds, 361 U. S. 529, 80 S. Ct. 450, 4 L. Ed. 2d 490 (1960).

"We perceive no rational basis for requiring any greater degree of proof to sustain a conviction for attempted subornation of perjury, than that required on any other indictment charging defendant with an attempt to commit an indictable offense. We are satisfied that the rule requiring corroboration of the testimony of a single witness in prosecutions for perjury is inapplicable to the crime of attempted subornation of perjury.

We find no merit in the defendant’s contention that the court erred in not charging the jury that the subject matter sought to be suborned concerned a material fact. It was obviously material. Furthermore, defendant submitted several requests to charge, but apparently not on this particular point. Additionally, at the conclusion of the charge defendant made no objection to the court’s failure to include such instruction. In these circumstances we perceive no error, and certainly no plain error. State v. Macon, 57 N. J. 325 (1971).

Affirmed.


text:
    JIMMIE FLETCHER, GUARDIAN AD LITEM FOR HERBERT FLETCHER, PETITIONER-RESPONDENT, v. RUDOLPH EHRLICH, t/a BOND PARADE FLOATS, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1973
    Decided February 20, 1973.

      Before Judges Collester, Leonard and Halpern.

      Mr. Vincent E. Hull argued the cause for appellant (Messrs. Hull and Hull, attorneys).

      Mr. Daniel Crystal argued the cause for respondent (Messrs. Cohn & Lifland, attorneys).
   Per Curiam.

In this workmen’s compensation case involving injuries to the infant petitioner, respondent employer individually, as distinguished from his insurance carrier, appeals from that portion of a judgment entered in the Division which found that petitioner’s wages were $70 a week and which awarded petitioner, pursuant to N. J. 8. A. 34:15-10, double compensation. He also appeals from the denial of his motion to join petitioner’s father as a third-party defendant.

He first contends, as he did below, that misrepresentation as to petitioner’s age and qualification for employment is a bar to an award of double compensation under N. J. S. A. 34:15-10. It is not disputed that petitioner was only 15 years old at the time of his injury and did not have an employment certificate as prescribed by the statute. The Division-found that respondent’s contention that.there was a fraudulent representation by the father as to the minor’s age was without foundation. This finding is reasonably supported by the credible evidence in the record. In any event, a fraudulent misrepresentation of the employee’s- age does not bar application of the pertinent statute, whether the minor himself makes the representation, Chickachop v. Manpower, Inc., 84 N. J. Super. 129, 140 (Law Div. 1964), or whether made by anyone else, Sackolwitz v. Charles Hamburg & Co., 295 N. Y. 264, 67 N. E. 2d 152 (Ct. App. 1946) ; Larsen, Workmen’s Compensation, § 47.52 (a) (1967). Thus, this contention lacks merit. We doubt that the Division had authority to join petitioner’s father as a party to the proceedings. In any event, under the existing circumstances the court properly denied respondent’s motion to so join him.

Despondent next asserts that the awards of permanent and temporary disability are excessive in that they were incorrectly based upon the determination that petitioner earned $70 a week at the time of his injury. He concedes the record is “insufficient” to support this assertion but claims that insufficient facts were presented to support the court’s finding and requests a remand for the purpose of taking additional testimony. Despondent’s position is untenable. His insurance carrier in its answer to petitioner’s claim admitted that petitioner’s wages were $70 a week. His personal trial counsel, who appears for him in this appeal, secured a copy of that answer before the hearings below. Following the denial of his motion, counsel at the hearing advised the trial judge that he was contemplating an appeal from that denial but that he would otherwise hot participate in the trial. He stipulated petitioner’s employment, the accident, and that it arose out of and in the course of employment. lie further advised the court that he had nothing further to say. His request to be excused was granted and he departed. He did not challenge the $70 a week salary figure. Thereafter, counsel for the insurance carrier stipulated, among other things, that petitioner’s salary at the time of the accident was in that amount. Thus, respondent cannot now raise this point.

Despondent finally argues that in no event under N. J. S. A. 34:15-10 should there be a double assessment of counsel fees, medical witness fees and stenographic fees, one-half thereof to be paid by him personally. The trial judge, pursuant to the above statute, correctly allowed double compensation and directed that the extra compensation be paid by respondent personally. However, that statute only authorizes compensation in “double the amount payable under the schedules provided in sections 34:15-12 and 34:15-13 * * *.” It does not authorize double counsel fees, medical witness fees or stenographic fees. Therefore, the trial judge was in error in automatically doubling the above fees and assessing half thereof against respondent personally.

Nevertheless, N. J. 8. A. 34:15-64 permitted the trial judge, in his discretion, to allow the prevailing party a reasonable attorney’s fee, not exceeding 20% of the “judgment.” The use of the term “judgment” embodies the full amount of the award. See Raves v. County of MiddlesexRoosevelt Hospital, 102 N. J. Super. 179, 185 (Law Div. 1968). Here, total fee allowed to petitioner’s attorney was within the statutory permissible percentage.

Respondent’s challenge of petitioner’s right to double indemnity increased counsel’s burden in proving his case. Under the totality of the circumstances, we find that the award of an extra $400 counsel fee, to be paid by respondent individually, was not a mistaken exercise of discretion on the part of the trial judge. See Detlefs v. Westfield, 104 N. J. Super. 447, 454-455 (App. Div. 1969). However, for the reasons heretofore stated, that portion of the judgment allowing double medical witness fees and stenographic fees and directing respondent to pay one-half thereof was improvidently entered and is accordingly set aside. However, the single allowance of these items shall be paid as ordered in the original judgment.

Affirmed as modified.