author: Yanoff, J. S. C.,

text:
    HOUSING AUTHORITY OF THE CITY OF EAST ORANGE, A BODY CORPORATE AND POLITIC, PLAINTIFF, v. FLORENCE LEFF, IRVING LEFF, HER HUSBAND, LINCOLN ELECTRIC PRODUCTS CO., INC., INDUSTRIAL BANK OF COMMERCE, AND CITY OF EAST ORANGE, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided October 10, 1973.

      Mr. Edward Stanton, attorney for plaintiff.

      Mr. Joseph Seidel, attorney for defendants.
   Yanoff, J. S. C.,

Temporarily Assigned. This case involves the interaction between N. J. S. A. 20 :1-1 et seq. (hereafter “old statute”) and the Eminent Domain Act of 1971, N. J. S. A. 20 :3-1 (hereafter “new statute”) which replaced it, effective December 21, 1971.

The issues arise in the following context: On May 7, 1970 an action in eminent domain was instituted by plaintiff (“Authority”) pursuant to N. J. S. A. 20 :1-36. At the same time Authority deposited $40,000 with the clerk, as required by the statute. Under the statute Authority became entitled to an order for possession “not exceeding twenty days after such filing.”

Ey way of context, I find as facts that before institution of the eminent domain action, Lincoln Electric Products Co., Inc., the tenant, was in possession under a lease at the rate of $1,050 a month; that on August 19, 1970 Authority asked tenant to sign a rental agreement at that rate. The person with whom Authority’s representative spoke was Leff, one of the owners, and also an officer of tenant corporation. Leff said he neither would pay the rent nor move, but would take the matter to the Supreme Court. However, thereafter, tenant deposited $1,050 in court in escrow. Authority did not move to evict tenant, and tenant did not physically remove its property at any time, but did on November 15, 1972, turn over the key to Authority.

Testimony was adduced as to fair rental value. The expert who testified for Authority stated that the property was worth $866.67 a month with utilities, and $546.36 a month without utilities. Owner’s expert said the property was not rentable after May 7, 1970. The only evidence in the case was that utilities were not cut off. I find as a fact that the property had a fair rental value of $866.67 a month.

Defendants appealed from Commissioner’s award and received a jury award of $54,000.

On January 3, 1972 plaintiff paid an additional $15,085 into court.

I am fold that the interest amounts to $4,074.91. I am told also that during the pendency of the proceedings the owner paid in taxes to the City of East Orange the sum of $8,368.09.

Following the institution of the action, owner and tenant vigorously contested Authority’s right to condemn. Owner and tenant lost in all courts and pursued the matter so far as to apply for a writ of certiorari to the United States Supreme Court, which was denied on April 17, 1972, 405 U. S. 1064, 92 S. Ct. 1493, 31 L. Ed. 2d 794.

On November 15, 1972 owner abandoned the personal property remaining on the premises and gave possession to Authority. Authority at no time sought the assistance of the sheriff in obtaining possession. The condemned premises contained a large quantity of personal property which could be classified as either machinery or junk, and which would have cost a large sum to remove. I infer that in light of American Salvage Co. v. Housing Authority of Newark, 14 N. J. 271 (1954), Authority did not want to run the risk of having to pay for its removal, and of being held responsible for its loss or damage. The net effect of the conduct of the parties was that Authority was delayed in obtaining possession of the condemned land for a period of approximately three years.

Authority now seeks payment to it of the sum of $1,050 plus accrued interest; judgment against tenant in the sum of $28,350 for unpaid rents at the monthly rate of $1,050 for the period October 18, 1970 to November 18, 1972; such other relief as may be necessary to permit it to collect the unpaid rents, including an abatement against the fund in court for the period during which it was deprived of possession.

Defendant’s arguments in opposition center upon the following theories:

1. That by reason of sections 11, 19, 22, 23 and 26 of the new statute, Authority had neither title nor right to possession until the United States Supreme Court denied certiorari on April 17, 1972. I determine that the new statute is not applicable to passage of title or right to possession, for reasons stated hereafter, and therefore do not discuss these sections.

2. That there should be no abatement of the funds on deposit because it was not owner, but tenant who was in possession, and the fund is the property of owner. Further, that if there be any abatement, it should be limited to interest on the fund.

3. That the court may not enter any general judgment for rent against tenant because that can be done only under section 5 of the new statute (N. J. S. A. 20 :3-5), reading:

The court shall have jurisdiction of all matters in condemnation, and all matters incidental thereto and arising therefrom, including, but without limiting the generality of the foregoing jurisdiction to determine the authority to exercise the power of eminent domain; to compel the exercise of such power; to fix and determine the compensation to be paid and the parties entitled thereto, and to determine title to all property affected by the action.

It is argued that the new statute must be applied in its entirety, or not at all.

Before resolving these issues, I must refer to section 4 of the new statute (N. J. S. A. 20 :3-4), which provides:

This act shall take effect immediately following the approval thereof, and shall apply to all actions instituted thereafter, and to all proceedings taken subsequent thereto in all actions pending on such effective date; except that judgments theretofore entered or awards theretofore made pursuant to law from which no appeal is pending on such effective date, shall not be affected by the provision hereof.

If the meaning of this section is that as to all matters in condemnation arising subsequent to the effective date of the new statute, except unappealed judgments, the new statute controls, and defendants’ arguments must prevail.

The basic issues here, are whether the old statute or the new statute determines when title and the right to possession pass, and whether condemnor may obtain a general judgment against tenant in this action, oven though no separate action therefor was instituted. No ease has yet determined these problems. While Wayne Tp. v. Ricmin, 124 N. J. Super. 509 (App. Div. 1973), held that the new statute controlled interest payable on an award, even on a case initiated before its effective date, it did so as to a payment made into court after that dale. Hero $-40,000 was paid into court before the new statute carne into force. Despite Wayne Tp.’s broad definition of the word “proceeding” in section 4, it cannot be considered to have determined the problems involved here.

The issues raised are both substantive and procedural. One of the problems is to separate matters of substance from procedure. This may not be easy. Busik v. Levine, 63 N. J. 351 (1973).

The general rule is that as to matters of substance, statutes are ordinarily given prospective effect. In Kopczynski v. Camden County, 2 N. J. 419 (1949), the court stated:

A cardinal role in the interpretation of statutes is that words in a statute ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them, or nnless the interest of the Legislature cannot otherwise be satisfied, [at 551]

This principle has been iterated many times, most recently in Nickell v. Gall, 49 N. J. 186, 189 (1967).

However, in Neel v. Ball, 6 N. J. 546 (1951), the court said:

This is not true, however, in the construction of statutes relating solely to procedure, and they are generally held applicable to pending proceedings where such application does not have the effect of disturbing vested rights or impairing the obligation of contracts, [at 551]

See also Nickell, supra, at 189.

My conclusion is that a distinction must be drawn between those portions of the new statute which affect substance and those which affect procedure, and that defendants are incorrect in their argument that the new statute must be applied to every aspect of the case, or not at all.

There is little doubt that under the old statute title vested in the condemnor immediately upon the filing of the declaration of taking and deposit of the money into court, and that the right to possession adhered to title.

N. J. S. A. 20 :1-36 is clear enough:

From the filing of the said declaration of taking and the deposit in court to the use of the persons entitled thereto of the amount of the estimated compensation stated in said declaration, title to the property described as being taken by said declaration shall vest in the housing authority or redevelopment agency (free from the right, title, interest or lien of all persons), and said property shall be deemed to be condemned and taken for the use of the housing authority or redevelopment agency and the right to just compensation for the same shall vest in the persons entitled thereto. Upon the filing of the declaration of taking, the court shall designate a day (not exceeding twenty days after such filing, except upon good cause shown), on which the persons in possession shall be required to surrender possession to the housing authority or redevelopment agency.

Thus, when the new statute became effective, Authority already had title. State v. New Jersey Zinc Co., 40 N. J. 560 (1963). Significantly, the property is valued as of the date of its taking. Jersey City Redevelopment Agency v. Kugler, 58 N. J. 374 (1971). If the new statute controlled, the property should be valued as of date of taking under that statute, not the old statute.

Dew things are more matters of substance than passage of title to real estate and right to its possession. Shack v. Weissbard 130 N. J. L. 472 (Sup. Ct. 1943), aff’d 131 N. J. L. 314 (E. & A. 1944).

Nothing in section 4 compels the conclusion that the new statute requires divestment of established rights. The word “proceeding” is a term which can apply to all the steps taken in a lawsuit, or to any one of them. Black’s Law Dictionary (4th ed. 1957), 1368. It cannot be taken to mean that the Legislature intended the new law to apply to a step in the cause even if the result were to deprive condemnor of vested property rights. I therefore conclude that title was vested in Authority prior to December 21, 1971, and was unaffected by the new statute.

On the question of when right to possession vested, a short answer is that the court hearing the matter did enter an order for possession on September 29, 1970. This is the law of the ease and I am bound by it even if I disagree. Galler v. Slurzberg, 27 N. J. Super. 139 (App. Div. 1953); State v. Bell, 89 N. J. Super. 437 (App. Div 1965). But 1 do not disagree. The right to possession is as much a matter of substance as is passage of title.

However, resolution of the question as to whether a general judgment for rent may be entered against tenant in this proceeding involves a question of procedure. Insofar as the new statute deals with matters of substance, it may not be retroactive; to the extent that it involves only procedure, it may, unless the change of procedure injuriously affects the litigant’s substantive rights.

Since there is an interaction between procedure and substance, and since procedural changes may destroy substantive rights, it is important to determine whether Authority has any right at all for rent or fair value against a tenant in this situation. It is standard New Jersey law that liability for use and occupation arises only when a landlord and tenant relationship exists. Brewer v. Conover, 18 N. J. L. 214 (Sup. Ct. 1841); Van Valkenbergh v. Den ex dem. Rahway Bank, 23 N. J. L. 583 (E. & A. 1851). But the landlord and tenant relationship may arise from occupation under proper circumstances. In Conover’s Ex’rs v. Conover, 1 N. J. Eq. 403 (Ch. 1831), the question was whether one who had occupied a relative’s land without payment was liable for use and occupation to the estate. It was held that he was. The court said:

The occupation of the premises is proved beyond doubt. That the property belonged to the testators is equally true; and it follows as a matter of course, that the party in possession is bound to pay for the use and occupation unless he can show an agreement to the contrary, or some satisfactory reason why he should not be charged. The burden of proof rests upon the defendant. * * * [at 407]

In Chambers v. Ross, 25 N. J. L. 293, (Sup. Ct. 1885), the court said:

The law will imply a contract to pay rent from the mere fact of occupation, unless the character of the occupancy be such as to negative the existence of a tenancy, [at 295]

See Reade v. Bodine, 2 N. J. Misc. 458, 459 (Sup. Ct. 1924). Outside this State there are cases in which an occupant of land was held liable to a condemning authority, either for rent or for use and occupation. In Redevelopment Agency of Norwalk v. Norwalk Aluminum Foundry Corp., 155 Conn. 397, 233 A. 2d 1 (Sup. Ct. Err. 1967), this was done as to condemnee by way of diminution of the fair value of the occupancy from the price fixed for the property. See School Dist. of Ogden v. Smith, 113 Ark. 530, 168 S. W. 1089 (Sup. Ct. 1914). Where a tenant is the occupant, he must pay rent. Capitol Monument Co. v. State Capitol Grounds Comm., 220 Ark. 946, 251 S. W. 2d 473 (Sup. Ct. 1952); Century Investment Corp. v. United States, 277 F. 2d 247 (9 Cir. 1960).

The fact here is that tenant remained in possession after condemnor, having both title and right to possession, demanded payment. The deposit of $1050 into court is clear indication that tenant understood that compensation was to be paid. In 51C C. J. S. Landlord and Tenant, § 11 at 44-45, it is said :

Generally a relation of landlord and tenant may be implied or presumed where there is an occupancy of land under an agreement with the owner to pay rent or accompanied by the payment of rent. However, it is not essential that there be a definite agreement for such payment, and the relation may arise, although the occupant refuses to agree on any particular amount or to pay any sum whatever, if he occupies with the owner’s permission and with the understanding that, rent would be demanded.

See Heckman v. Walker, 167 Neb. 216, 92 N. W. 2d 548 (Sup. Ct. 1958); 4145 Corp. v. Brown, 19 Misc. 2d 957, 189 N. Y. S. 2d 500 (Sup. Ct. 1959). Lowell Housing Authority v. Save-Mor Furniture Stores, 346 Mass. 426, 193 N. E. 2d 585 (Sup. Jud. Ct. 1963), supports the proposition that where the condemning authority gives notice of its interest, a tenant who does not yield possession is liable for use and occupation. Clearly, then, condemnor had a substantive right against tenant which preexisted the 1971 statute, and which could have been maintained in a plenary suit. Section 5 of the new statute does no more than enable condemnor to dispose of the rent claim in the condemnation action. This, in my view, is a matter of procedure only. As to this, the statute operates retroactively. It is significant that this is not a dispossess action under N. J. S. A. 2A :18-53, where proof of landlord and tenant relationship is a jurisdictional prerequisite. What is sought here is merely a money judgment. A change in the procedure by which an existing Tight is enforced creates no constitutional problem. State v. American-Hawaiian Steamship Co., 29 N. J. Super. 116 (Ch. Div. 1953); State v. United States Steel Corp., 22 N. J. 341 (1956). I therefore hold that Authority is entitled to judgment against tenant for the period between that fixed for taking possession by the order of September 29, 1970, and November 18, 1972.

The problem remaining is whether the judgment shall be at the rate of $1050 or $866.67 a month, the fair rental value. The issue is whether tenant’s obligation was created as the result of an express contract or is quasi-contractual, implied in law. After Authority set the price of $1050 a month, tenant responded by saying he would neither pay rent nor move. There was thus no explicit agreement to which both parties assented; there was, however, an obligation created by law to pay for use and occupation. Conover’s Ex’rs v. Conover, supra; Lowell Housing Authority v. Save-Mor Furniture, supra. Pair rental value is payment for use and occupation. Additionally, section 19 of .the new statute provides:

* * * If the owner or tenant occupies the property with the condemnor’s permission on a rental basis for a short term or for a period subject to termination on short notice, the amount of rent required shall not exceed the fair rental value of the property to a short term occupier.

Thus under the old or new statute the result is the same. I therefore rule that plaintiff may have judgment against tenant at the rate of $866.67 a month for the period in question and that the sum of $1050 already on deposit for rent is to be paid to plaintiff and credited against the judgment.

It is entirely clear that in this ease condemnee and tenant were one for all practical purposes. Lowell Housing Authority v. Save-Mor Furniture, supra, 346 Mass., at 588, 193 N. E. 2d 585. They had the same lawyer, took the same legal steps, and Irving Leff, one of the owners, is president of tenant corporation. Plaintiff was deprived of use of the property by their joint action. The owner is entitled to only just compensation for what condemnor got. See Jersey City Development Agency v. Kugler, supra; Redevelopment Agency of Norwalk v. Norwalk Aluminum Foun dry Corp., supra. Condemnor got the land minus value of its use and occupation from the date of taking until November 17, 1972. However, this abatement may be applied only as to interest. N. J. S. A. 20 :1-36. At the rate of $866.67 per month, already determined to be fair rental value, this consumes the entire interest. But to prevent double recovery the interest should be credited on the judgment against tenant. Since Authority is treated as owner from the date of payment of money into court, it should also be responsible for realty taxes paid by owner. This should be taken into account in the judgment, and owner reimbursed by the appropriate body.

A judgment should be entered, consented as to form or upon notice.

       Bank was joined as mortgagee, but in fact the mortgage had been satisfied. City was joined because of possible tax and water liens. Neither of these defendants was party to the trial or any of the appeals in this matter.

       The additional $1,085 was interest on $14,000 from August 18, 1970 to December 30, 1971.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HAROLD RICHARD JOHNSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 15, 1973
    Decided November 7, 1973.

      Before Judges Leonard, Allcorn and Crahay.

      Ms. Mary Aurigemma, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Michael H. Stieber, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. Martin F. Siegel, Assistant Prosecutor, of counsel).
   Per Curiam.

Defendant was found guilty by a jury of possession of heroin contrary to N. J. S. A. 24 :21-20 and appeals.

He first argues that his trial under the indictment constituted double jeopardy and that the court erred in not granting a pretrial motion to dismiss it. A prior indictment charging the same offense had been dismissed before trial as a matter of calendar control. This point lacks merit. State v. Farmer, 48 N. J. 145, 169 (1966).

We find no substance in defendant’s contention that he was denied equal protection of the law and due process under the Eourteenth Amendment grounded in the argument that the prosecutor exercised peremptory challenges under R. 1 :8-3 (d) in excusing black persons from the jury. There is no warrant for examining into counsel’s employment of peremptory challenges nor any constitutional infirmity in their use. As Justice White observed in Swain v. Alabama, 380 U. S. 202, 222, 85 S. Ct. 824, 837, 13 L. Ed. 2d 759 (1965), reh. den. 381 U. S. 921, 85 S. Ct. 1528, 14 L. Ed. 2d 442 (1965):

In the light of the purpose of the peremptory system and the function it serves in a pluralistic soeiety in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it * * *.

Lastly, and as plain error, defendant contends that a portion of the prosecutor’s summation which included what might be termed a snide reference to his counsel — alluding to his age and appearance — constituted an inflammatory and prejudicial summation. Our review of the remark in context satisfies us that while it might have been better left unsaid, it did not tend to inflame the jury, mislead it, or prejudice it against the defendant. In no event does it constitute plain error. R. 2:10-2; State v. LaPorte, 62 N. J. 312 (1973).

Affirmed.


text:
    WILLIAM M. YOUNG & CO., INC., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT, v. WEST ORANGE REDEVELOPMENT AGENCY AND THE CLEVELAND WRECKING CO., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 30, 1973
    Decided November 15, 1973.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. Matthew J. Scola argued the cause for appellant West Orange Redevelopment Agency.

      Mr. Jeffrey Barton Cahn argued the cause for appellant The Cleveland Wrecking Company (Messrs. Bills, Beck, Cummis, Radin & Tischman, attorneys).
    •Mr. Ddnald B. Goldman argued the cause for respondent (Messrs. Goldman, Goldman <& Gaprio, attorneys).
   Per Curiam.

Plaintiff instituted this action in lieu of prerogative writs seeking to nullify the award by defendant West Orange Redevelopment Agency (Agency) of a demolition contract to Cleveland Wrecking Co. (Cleveland). Cleveland did not file an answer but moved for summary judgment on the return date of the order to show cause.

The facts are not in dispute. On or about October 27, 1972 Agency advertised for-bids for demolition work in conjunction with an urban renewal project. The bids were to be received and opened on December 15, 1972 at 2 p.m. The invitation to bid specifically reserved the right to "waive any informalities in the bidding.”

December 15, 1972 was windy, with a day-long mixture of snow and- rain. As a result of the weather the Cleveland representative who- was traveling from Sharon Hill, Pa., was delayed. He called the Agency shortly before 2 p.m. and informed the Agency that he was nearby and would arrive momentarily but probably after the deadline. At the time of the phone call no bids had been opened. After conferring with counsel, but over the objections of other bidders present, the executive director of the Agency decided to await the arrival of the Cleveland representative. The Cleveland representative arrived at 2:02 p.m. and all bids were opened shortly thereafter.

Cleveland, which submitted a bid of $387,000, was low bidder and was awarded the contract on January 11, 1973 after a responsibility investigation. Young was the next lowest bidder at $472,310.

The trial judge held as a matter of law that N. J. S. A. 40A :11-23 did not allow the Agency to waive the advertised 2 p.m. deadline, and entered final judgment ordering the Agency to award the contract to Young. Operation of the judgment was stayed pending appeal.

The primary issue is whether the completion of the reception of bids may be delayed for a short period of time notwithstanding the statutory mandate of N. J. S. A. 40A:11-23 that no bids shall be received after the time designated in the advertisement. The statutory policy of the Local Public Contracts Law (N. J. S. A. 40A:11-1 et seq.) is identical to its predecessor, N. J. S. A. 40:50-1 et seq., in that the purpose of bidding is to benefit the taxpayers by securing competition and guarding against favoritism, improvidence, extravagance and corruption. Trap Rock Industries v. Kohl, 59 N. J. 471, 479 (1971); Home Owners Construction Co. v. Glen Rock, 34 N. J. 305, 315 (1961); Hillside Tp. v. Sternin, 25 N. J. 317, 322 (1957) (all interpreting predecessor statute). While the statutory regulations of bidding are to be strictly observed, the application and construction of the statute should be such as to further, not frustrate, the legislative goals in establishing competitive bidding.

Hillside v. Sternin, above, although dealing with the former public bidding law, provides an analysis which retains validity for the present statute. In Hillside the Supreme Court noted that questions of compliance with regulations should be considered with reference to the goal of competitive bidding, i. e., that all bidders be placed on equal footing. Thus, material departures from the bidding terms cannot be tolerated if the mandate for equality among bidders is to be preserved. In Hillside the bidding party neglected to submit the required deposit with his bid. Considering the deposit requirement as materially affecting the competitive process, the court would not allow waiver. Compare: Hanover Tp. v. International Fidelity Ins. Co., 122 N. J. Super. 544, 551 (App. Div. 1973), where there had been substantial compliance with a bid bond requirement which we found made Hillside inapposite; and also, Bryan Construction Co. v. Board of Trustees, etc., Montclair, 31 N. J. Super. 200 (App. Div. 1954) (difference between a certified cheek and a bid bond insignificant since competition was not impaired).

There are no cases directed to the question of whether the time requirement is an informality subject to waiver. Pangia Const. Co. v. Cinnaminson Tp., 136 N. J. L. 284 (Sup. Ct. 1947), did not reach the question because of plaintiff’s negligence and laches. The bidding in Kingston Bituminous Products Co. v. New Jersey Turnpike Authority, 80 N. J. Super. 25 (App. Div. 1963), was not governed by a bidding statute similar to the statute applicable here. However, Kingston did consider the impact which a delay in receipt and opening of bids would have on the competitive nature of the bids, and on facts analogous to this case held that the delay did not destroy the bidders’ equal standing.

Under the facts here, it cannot be argued seriously that the bidders other than Cleveland were disadvantaged competitively by waiting two or possibly seven minutes. There is not the slightest suggestion of fraud or collusion. In making this observation we do not imply that in every case time is an informality and subject to waiver. Under the circumstances presented here we view the delay as a minor irregularity which was properly waived by the Agency under its inherent discretionary power ancillary to its duty to secure, through competitive bidding, the lowest responsible offer. Bryan Const. Co. v. Board of Trustees, etc., Montclair, above.

In view of our determination of the time issue, we find it unnecessary to pass on the other issue raised as to the propriety of the award to the next lowest bidder by the trial judge. We observe, however, that we find nothing in the record which supports that exercise of jurisdiction by him.

The judgment of the Law Division is reversed and the cause remanded for entry of judgment dismissing the complaint.


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

text:
    LEONARDO COLON, ET AL., PLAINTIFFS, v. MORRIS TEDESCO, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided October 30, 1973.

      Mr. David J. Lillesand for plaintiffs Leonardo Colon and Camden Regional Legal Services, Inc. — Farm Worker Division.

      Mr. Michael S. Bokar, Deputy Attorney General, for defendants (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   Horn, A. J. S. C.

In this action in lieu of prerogative writs certain defendants move to dismiss the complaint for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment.

The complaint alleges that plaintiff Leonardo Colon is a migrant Puerto Eican farm worker who, in conjunction with Camden Regional Legal Services, Inc. — Farm Worker Division, a New Jersey nonprofit corporation, individually and on behalf of all others similarly situated, brings this action against various parties, the owner-lessor of a labor camp and others, including the Department of Labor and Industry, State of New Jersey; Ronald M. Heymann, individually and as Commissioner of that Department; Herbert Heilmann, individually and as Assistant Commissioner of Labor Relations and Work Place Standards, and, as such, Director of the Division of Labor; Gabriel Coll, individually and as Chief, Bureau of Migrant Labor in the Division of Labor; Leon Rennebaum, individually and as Supervisor, Bureau of Migrant Labor; Howard Winrow, individually and as Senior Inspector, Bureau of Migrant Labor, and John Krokos, individually and as Inspector, Bureau of Migrant Labor, for the purpose of obtaining an injunction and declaratory judgment. The foregoing named Department of Labor and Industry and the officers thereof are the moving parties herein and are referred to as defendants.

Insofar as this motion is concerned the complaint charges certain individuals in control of a migrant labor camp with permitting unsanitary conditions in their operation so that it constitutes a public nuisance. It charges defendants with a failure to act pursuant to law, to cause the conditions to be corrected or the camp disqualified and enjoined from operation.

The primary relief sought against the moving defendants is a judgment ordering them to initiate proceedings against the owning and operating individuals, pursuant to N. J. S. A. 34:9A-32, New Jersey Regulation 12:100-1(1), and N. J. S. A. 34:9A-21, to declare the camp to be a public nuisance, and for other relief under the applicable statute.

The Attorney General, in behalf of defendants, contends that they are entitled to summary relief from this action for three reasons:

First, this court lacks jurisdiction to order state officials to institute enforcement proceedings because, under the New Jersey Rules of Civil Procedure, only the Appellate Division has jurisdiction to review the action or inaction of slate administrative agencies or officers.

Second, there is nothing in the present case to justify invocation of the extraordinary power of the courts to compel the exercise of discretionary authority by public officials.

Third, plaintiffs lack standing to seek the relief sought to prohibit the continued operation of the camp as a public nuisance.

I will deal with these points successively.

I The Superior Court, Appellate Division, has exclusive jurisdiction to review the action or inaction of state administrative agencies or officers.

The State relies upon R. 2 :2-3 (a) (2), which provides that appeals may be taken to the Appellate Division as of right to review final decisions or actions of any state administrative agency or officer thereof, or to review the validity of any rule promulgated by any such agency or officer, with one exception, not involved here.

R. 4 :69-1 provides that review, hearing, and relief heretofore available by prerogative writs and not available under R. 2 :2-3 shall be afforded by a civil action in the Law Division of the Superior Court.

Notwithstanding the language oí R. 2:2-3 (a) (2), which makes but one express exception (not applicable here), the courts have engrafted two exceptions, or have construed this rule in two cases to exclude from its applicability review of certain actions (or inactions) of state administrative agencies.

The first one is referred to in Baldwin Construction Co. v. Essex Cty. Bd. of Taxation, 27 N. J. Super. 240 (App. Div. 1953), rearg. den. 28 N. J. Super. 110 (App. Div. 1953), aff’d 16 N. J. 329 (1954). There it was decided that

In the allocation of business between the Law Division and the Appellate Division, proceeding's relating to an administrative' body with authority confined to a single locality, in this case a county, should be brought in the Law Division even though the defendant may be classified for most purposes as an agency of the state, [at 242]

In Pfleger v. Dept. of Transportation, 98 N. J. Super. 386 (Ch. Div. 1967), Judge Lane had before him a motion to transfer an action to the Law Division. The complaint sought an injunction against defendants, consisting of the Department of Transportation of the State of New Jersey and others, to prevent them from proceeding with contemplated construction on a state highway. By leave of court the complaint was amended to add a prayer for relief in lieu of prerogative writs, to compel the Department of Transportation to institute condemnation proceedings under the Condemnation Act. Defendants joined in plaintiffs’ request for a transfer of the action to the Law Division.

Judge Lane reviewed the applicable cases decided up to that time and came to the conclusion that because plaintiffs were seeking to review the refusal of a state administrative agency to condemn lands, they were required to proceed in the Appellate Division under the corresponding rule applicable at the time, R. R. 4 :88-8.

He cited in his opinion Central R. R. Co. v. Neeld, 26 N. J. 172 (1958), cert. den. 357 U. S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371 (1958), in which Justice Jacobs stated concerning this rule: “[T]hey contemplated that every proceeding to review the action or inaction of a * * * state administrative agency would be by appeal to the Appellate Division.” (at 184-185).

Judge Lane’s decision was overruled by the Appellate Division in Pfleger v. N. J. State Highway Dept., 104 N. J. Super. 289 (1968), the court holding that the Law Division was the proper forum under the existing R. R. 4:88-8. This holding constitutes a second exception and includes the factual situation in the case at bar.

Judge Gaulkin, for the Appellate Division, observed that a close reading of R. R. 4:88-8 revealed that the Supremo Court did not intend that reviews of actions ox inactions “such as the one presented to us now” were to be had in the Appellate Division. He also stated that condemnation of plaintiffs’ lands cannot be other than by an action in the Superior Court, Law Division, because there is no administrative machinery within the Department of Transportation for its condemning land, for hearing the arguments for and against seeking condemnation in court, or for deciding whether a “'taking” has been effected by the Department’s actions. Further, he said that there was no procedure by which a record may be made before the Department upon which the appellate court could review the Department’s.decision.

In Princeton First Aid v. Div. on Civil Rights, 124 N. J. Super. 150 (App. Div. 1973), plaintiffs filed a complaint in lieu of prerogative writs in the Law Division, alleging that they were not “subject to the law against discrimination” and that the Division on Civil Eights lacked jurisdiction over them to determine whether plaintiffs had violated the civil rights of one who had complained to the Division. The Division was granted leave to appeal from an order entered by the trial court granting the relief prayed for by plaintiffs.

The Appellate Division reversed, holding that it was not authorized to assume jurisdiction in the case under Pfleger v. N. J. State Highway Dept., supra. It distinguished Pfleger’ as follows:

* .s That ease was an action in Hie nature of mandamus to compel the Department of Transportation to perform its ministerial fluty to institute condemnation proceedings to determine the value of lands allegedly taken and damaged in the course of construction of a road. Enforcement of such a ministerial duty is within the jurisdiction of the Law Division.
Here, however, we are concerned not with a ministerial duty of a state agency but with the g«asi-judicial duties of such an agency, the Division on Civil Rights, vested with jurisdiction to consider, hear and determine complaints alleging violations of the laws against discrimination.

In the ease before me the agency is not so vested with jurisdiction to consider, hear, and determine complaints. It may investigate and request the Attorney General to take appropriate action. The essence of the instant complaint is the failure of the agency or its officers to perform the allegedly mandatory, statutory function.

It is reasonable to assume that R. 2 :2-3 (a) (2) was promulgated, among other reasons, for the purpose of providing a speedy review of a proceeding conducted within the state administrative agency itself and involving parties who are given an opportunity to be heard. In such cases a record is made on the basis of which the Appellate Court’s review will result in a definitive determination.

In such cases the record may from time to time require supplementation. This is contemplated as a possibility. R. 2 :5-5 (b). But what is not contemplated is that a full plenary proceeding among adversaries be held before the Appellate Division. This can best be had in the Law Division. It is also noted that “in exceptional instances,” pending a review by the Appellate Division, a judge of the Superior or County Court may be especially designated for the purpose of taking additional evidence and the making of findings of fact. R. 2 :5-5(b).

In the case at bar there has been no adversary type of proceeding in the Department of Labor and Industry. There is no provision for same. This is not a grosi-judieial matter before said Department. Uo intramural record of any kind has been made. The Appellate Division cannot obtain a record to review, absent a plenary hearing before a judge. Plaintiffs seek the performance of ministerial duties.

Accordingly, I conclude that this court does have jurisdiction of this action.

II Bight of this court to compel state agency and officials to talce action against owners and operators of the migrant labor camp.

The Seasonal Farm Labor Act is one of several state statutes designed to aid and protect seasonal and migrant farm workers. N. J. S. A. 34:9A-1 et seq.; N. J. S. A. 34:8A-1 et seq.; N. J. S. A. 34 :9A-37 et seq. The act establishes a Bureau of Migrant Labor in the Department of Labor and Industry and vests the Bureau with responsibility for enforcing the provisions of the act, either directly or through interdepartmental agreements, and enforcing all other labor laws insofar as pertinent to migrant labor camps. N. J. S. A. 34 :9A-9 (a) and (b).

N. J. S. A. 34 :9A-9 directs the Bureau of Migrant Labor, as established in the Department of Labor and Industry, to enforce the provisions of the statute, among its other duties.

The act also mandates the Department of Labor and Industry to revoke a certificate of compliance whenever it is found that a camp for which a certificate has been issued no longer complies with the requirements of the act. N. J. S. A. 34 :9A-21. It further directs that any camp which does not conform to the requirements detailed in the statute shall be deemed a public nuisance and, if not made to conform within a designated interval, “shall be abated by proper suit brought by the Attorney-General upon the request of the [Department of Labor and Industry.]” N. J. S. A. 34 :9A-32.

Defendants maintain that plaintiffs are asking this court to compel officials of a coequal branch of State Government to perform a discretionary act and, beyond that, to perforin it in a specified manner. They urge that under these circumstances a court will not interfere with the discretionary power of public agencies unless there has been a plain and palpable abuse of discretion; that a more difference of opinion is not sufficient to justify the substitution of the court’s discretion for that of the duly constituted authority vested by the Legislature. Mayor, etc., Elizabeth v. N. J. Turnpike Authority, 7 N. J. Super. 540, 545-546 (Ch. Div. 1950); Newark v. N. J. Turnpike Authority, 12 N. J. Super. 523, 527-528 (Ch. Div. 1951), aff’d 7 N. J. 377 (1951).

In Switz v. Middletown Tp., 23 N. J. 580, 588 (1957), the court said:

* * * Unless the particular duty be peremptory, the fair exercise of judgment and discretion is the province of the functioning authority. The right of the relator and the public duty sought to be enforced must be both clear and certain.

In Reid Development Corp. v. Parsippany-Troy Hills Tp., 10 N. J. 229, 237 (1952), it was held that “Where there is an omission to do what the law clearly and unmistakably directs as an absolute duty, mandamus is an appropriate remedy.”

In In re Senior Appeals Examiners, 60 N. J. 356 (1972), the Civil Service Commission, having made a final determination that compensation allocated to the title of Senior Appeals Examiner, Department of Labor and Industry, be increased by one range, contended that the administrative determination was beyond any judicial review. The court rejected this argument on the ground that there is nothing in the statute showing any intention to deprive the court of a review “for arbitrariness and abuse under traditional judicial doctrines” (at 367).

A fair reading of In re Senior Appeals Examiners, supra, as well as Monks v. N. J. State Parole Board, 58 N. J. 238 (1971), sustains the view declared in Switz, supra, to the effect that although the court would not overturn discretionary determinations upon the part of public officials in the absence of clear abuse or arbitrariness, nevertheless it would guard its right to review such actions or inactions in order to compel such agencies or officials to exercise the discretion where required, rather than to frustrate those who at the least are entitled to the exercise of the discretion.

In the instant case the statute’s language is mandatory, as already indicated. It may be that the defendants have performed in accordance with their obligations, but that has not been demonstrated. Plaintiffs are entitled to the aid of the court in ascertaining whether they have so performed and, if they have, whether their determination was arbitrary and an abuse of their discretion. Plaintiffs should not be blocked at the threshold without an opportunity to establish their charges.

Without a hearing and the discovery to which plaintiffs may be entitled in advance of the hearing, there could be abuses which may never be discovered. Mandamus does not seek to interfere with or control the mode or manner of the exercise of discretion on the part of a state official or agency, or to influence or direct a particular result. It does lie to compel the exercise of such discretion.

III Standing of plaintiffs.

The foundation of defendants5 claim that plaintiffs have no standing to maintain this action rests on assertions that oidy the Attorney General may enforce the provisions of the act and that plaintiffs suffer no special injury.

This is untenable. Apart from the fact that plaintiff Colon is a migrant farm worker whose interests the statute was enacted to protect, our courts have taken a liberal view with respect to who may seek relief where there has been alleged failure on the part of public officials to perform.

Defendants submit that since the statute, N. J. S. A. 34 :9A-32, authorizes the Department of Labor and Industry to enforce the migrant labor laws and to request the Attorney General to take action, including “proper suit55 to abate the public nuisance which such nonconforming camps are deemed to be, plaintiffs are without standing as parties seeking to enforce said laws.

If this be so, the failure of either the Attorney General or the Department to act responsibly would render the law a sterile declaration of public policy.

The mere fact that a nonconforming camp is deemed a public nuisance does not foreclose plaintiffs from taking this action. Such nuisances are abatable not alone by the Attorney General but also by any individual who sustains “special damage over and above the public agency.” Garrou v. Teaneck Tryon Co., 11 N. J. 294 (1953); Mayor, etc., Alpine Borough v. Brewster, 7 N. J. 42 (1951).

In Garrou the court sustained the right of a property owner to sue to enjoin private individuals from violating a zoning ordinance and for an order compelling defendant municipal officials to enforce such ordinance on a showing of special damages.

In United Stations of N. J. v. Kingsley, 99 N. J. Super. 574 (Ch. Div. 1968), aff’d Del Spina v. Getty Oil Co., 54 N. J. 150 (1969), plaintiffs sought to enforce the provisions of N. J. S. A. 56:6-2(f) making it unlawful for any retail dealer to employ certain methods constituting games of chance in connection with the sale of motor fuels. A challenge to plaintiffs’ standing to sue arose from the absence in the statute of an explicit authorization for suits by private parties against the violators. The statute expressly authorized the State Tax Commissioner (now Director of the Division of Taxation) to enforce its provisions. Judge Mintz held that the silence of the statute with respect to one other than the Director to enforce the law did not justify a conclusion that the Legislature had a contrary intent. He further held that plaintiffs, competitors of defendants, had a private interest in and a right to enforce the law.' He said, “If a nonparticipating retailer is not afforded injunctive relief, he is put to an unjustifiable choice as long as he cannot persuade the law-enforcing authorities to act promptly; he must either violate the law himself or see his business diverted” (at 583).

In the case at bar one of the plaintiffs is allegedly a migrant farm worker who asserts that he suffered from the failure to enforce the terms of the statute. He has been specially injured if he establishes the factual allegations of the complaint. Under the circumstances he has the requisite standing to maintain the action.

Accordingly, the motion is denied.


author: Stroumtsos, J. S. C.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. JAMES KRELL, JR., STEVEN L. ABLEMAN, STEVEN I. LIEBERMAN, PETER AXELFROD, HARRIS D. LESAVOY, PAUL I. CHALEFT AND STEPHEN H. MILLER, DEFENDANTS.
    Superior Court of New Jersey Law Division (Criminal)
    Decided November 1, 1973.

      Mr. John J. Pribish, Assistant Prosecutor for the State (Mr. John S. Kuhlthau, Middlesex County, Prosecutor, attorney).

      Mr. Stephen N. Dermer for defendant Ableman (Messrs. Lowenstein, Sandler, Brochin, Kohl & Fisher, attorneys).

      Mr. Barry D. Maurer for defendant LeSavoy (Messrs. Maurer & Maurer, attorneys).

      Mr. James B. Brown, Jr. for defendant Miller (Mr. Alex Eber, Deputy Public Defender, attorney).
   Stroumtsos, J. S. C.

This is a motion brought by defendants Steven L. Ableman, Harris D. LeSavoy and Stephen H. Miller to dismiss Indictment No. 498-72 returned by the Middlesex County grand jury, charging them in four counts with violations of the Controlled Dangerous Substance Act, N. J. S. A. 24 :21-1 el seq. (hereinafter the “act”).

They contend that N. J. S. A. 24 :21-2,5 bars their prosecution in New Jersey by reason of the disposition in the United States District Court for the Southern District of New York of federal Indictment No. 73 CR 297.

It is stipulated that both indictments resulted from the same federal narcotics investigation; that the substance seized in New Jersey was 50 pounds of hashish, and that it was part of the same substance for which defendants were charged in the federal indictment.

The federal indictment is in two counts. The first charges defendants with a conspiracy to violate sections 812, 841(a)(1) and 841(b)(1)(B) of Title 21, United States Code. It alleges that as part of that conspiracy defendants “unlawfully, intentionally and knowingly would distribute and possess with intent to distribute Schedule I Controlled Substances.” It further alleges certain overt acts committed by them in the Southern District of New York in furtherance of the conspiracy, one of which alleged that, on or about November 11, 1972, they did possess with intent to distribute approximately 1,500 pounds of what is admitted to be hashish.

The second count alleges that defendants, in the Southern District of New York, did unlawfully possess with intent to distribute approximately 1,099 pounds of hashish.

The New Jersey indictment is in four counts. The first alleges that between September 1, 1972 and November 12, 1972, both inclusive, in the Township of Piscataway, defendants did unlawfully possess hashish, a controlled dangerous substance, contrary to N. J. S. A. 24:21-20, subd. a; the second count charges defendants with unlawfully possessing that hashish with intent to distribute; the third count charges them with having unlawfully distributed that hashish to Gerry Hochman, in violation of N. J. S. A. 24:21-19 (a)(1), and the fourth count alleges a conspiracy to distribute that hashish, and sets forth as an overt act that defendants arranged for and in fact distributed 50 pounds of hashish to Gerry Hochman, a federal undercover agent.

On April 9, 1973 defendant Ableman pleaded guilty to both counts of federal Indictment 73 CR 297. He admitted to participation in the conspiracy, having actual possession of 50 pounds of hashish and constructive possession of the balance. Defendant LeSavoy was found guilty by a jury of both counts of the indictment, and defendant Miller was found guilty by the jury of the first count (conspiracy), and was acquitted of the second count (unlawful possession with intent to distribute the hashish).

Defendants urge that section 25 of the act bars their prosecution on the New Jersey indictment because the offenses alleged therein occurred in the same period and involved the same hashish for which they were charged, convicted or acquitted in the Federal District Court.

Section 25 provides:

Any penalty imposed for violation of this act shall be in addition to, and not in lieu of, any civil or administrative penalty or sanction authorized by law. In any case where a violation of this act is a violation of a Federal law or the law of another state, the conviction or acquittal under Federal law or the law of another state for the same act is a bar to prosecution in this State.

There are no reported decisions interpreting this section.

The State concedes that section 25 bars prosecuting defendants for the acts alleged in the first count (unlawful possession), the second count (unlawful possession with intent to distribute), and the fourth count (conspiracy to distribute), of the indictment. I agree.

On the other hand, the State contends that the third count, charging defendants with distributing the hashish in Piscataway, should not be dismissed because this occurred outside the territorial jurisdiction of the Federal District Court for the Southern District of New York, and, therefore, defendants could not be and were not there indicted, tried, convicted or acquitted of that act.

Defendants argue, however, that section 25 also bars prosecution of the distribution charge. They contend that it was the intent of the Legislature, in enacting that section, to extend the constitutional protection against double jeopardy (N. J. Const. (1947) Art. 1, par. 11), to the area of narcotics prosecution by different sovereignties. Defendants, therefore, say that they should not again be prosecuted since the distribution charge involves the same hashish for which they were charged, convicted or acquitted in the federal court.

The act does not suggest such legislative intent. If that were intended, the Legislature would have said so in more explicit terms.

There are no constitutional grounds barring this Stale from prosecuting an accused for an offense committed in this State following a federal conviction of virtually the same offense arising out of the same set of facts, State v. Cooper, 54 N. J. 330 (1969), cert. den., 396 U. S. 1021, 90 S. Ct. 593, 24 L. Ed. 2d 514 (1970), and Bartkus v. Illinois, 359 U. S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959). Accordingly, we need refer only to the act to ascertain the meaning of the “same act” in section 25.

The four sections preceding section 25, under captions reading “Prohibited Acts,” expressly set forth what acts are unlawful. N. J. S. A. 24 :21-19 prohibits any person from manufacturing, distributing or dispensing, or possessing or having under his control with intent to manufacture, distribute or dispense a controlled dangerous substance; N. J. S. A. 24 :21-20 provides against the acts of possession, use or being under the influence of a controlled dangerous substance, and N. J. S. A. 24 :21-21 and 22 enumerate the prohibited acts by persons who are registered under the act to manufacture, distribute and dispense controlled drugs.

Since, therefore, the act expressly sets forth the acts which are unlawful, it follows that what is meant by the “same act” specified in section 25 is any act expressly prohibited by the preceding section 19 through 22.

Defendants were convicted in the Federal District Court for conspiracy to distribute hashish, and (except defendant Miller) for unlawfully possessing with intent to distribute that substance. The federal statute under which defendants were indicted, 21 U. S. C. A. 841(a), like N. J. S. A. 24:21-19, provides as a separate unlawful act, distribution of controlled drugs. Defendants were not charged, tried, convicted or acquitted in the New York trial for distributing the hashish to the federal undercover agent in New Jersey. They concede that the transfer took place outside the territorial jurisdiction of the Southern District of New York, and accordingly could not there be charged or tried for that offense. New Jersey has an interest in prosecuting these defendants for the offense committed in this State for which they were not punished elsewhere. The Legislature did not intend that section 25 deprive the State of such right.

Defendants finally argue that the distribution of hashish in New Jersey was introduced into evidence by the Government in the federal trial, and for this reason this State should be barred from proceeding on that charge.

This is without merit. Clearly, section 25 refers only to a “conviction or acquittal” for the “same act,” and not to evidentiary matters.

Accordingly, defendants’ motion to dismiss the first, second and fourth counts of Indictment No. 489-72 is granted, but their motion to dismiss the third count is denied.

Submit order.


author: Morrison, W. R. J. D. C.,

text:
    FRANKLIN HARRIS AND GEORGIANA HARRIS, PLAINTIFFS, v. MARIE OSORIO, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided November 15, 1973.

      Mr. Milton D. Liebowitz, attorney for Plaintiffs.

      Mr. Anthony C. Stuart, attorney for Defendant.
   Morrison, W. R. J. D. C.,

Temporarily Assigned. This is a motion for summary judgment brought by defendant to dismiss the complaint on the ground that the provisions of N. J. S. A. 39 :6A-8 bar plaintiffs’ action by reason of the fact that their “medical expenses,” as defined therein, did not exceed $200.

There is no dispute as to the facts. Plaintiff Franklin Harris was injured in an automobile accident which occurred on Januaiy 3, 1973. He received soft tissue injuries and was confined to the Pascack Yalley Hospital for six days, for which the bill was $472.50. While in the hospital he received treatment from Dr. Chasan, whose bill was $85. Dr. Chasan requested that a neurosurgeon examine plaintiff in the hospital, by reason of the plaintiff’s complaints of numbness in his left arm. Dr. Pillone, the neurosurgeon who examined plaintiff on two occasions in the hospital, rendered his report to Dr. Chasan. The report stated that there was no indication of neurological damage. Dr. Pillone’s bill was $125. Subsequent to plaintiff’s hospital confinement Dr. Chasan continued to treat him for which an additional charge of $67 was incurred.

It is agreed that the $472.50 hospital bill is not one of the “medical expenses” that can be considered in attempting to reach the $200 threshold of tort liability. As a “hospital expense,” it is specifically excluded. Likewise, it is agreed that the charges of the treating physician, Dr. Chasan, for both the in-hospital treatment ($85) and the out-patient treatment ($67) can be considered as “medical expenses,” included under the statute for purposes of reaching the $200 threshold.

The sharp issue presented by this motion is whether the neurosurgeon’s examinations, for which he charged $125, are to be considered as “treatment,” in which case the costs therefor would be deemed a “medical expense” as defined in N. J. S. A. 39 :6A-2(e); or, are the examinations to be considered as “diagnosis,” in which case the costs therefor would be deemed “diagnostic medical expenses,” not included for purposes of reaching the $200 threshold?

A search of New Jersey cases fails to reveal any decision interpreting this new statute or the words “diagnostic” or “treatment” as used therein. Reference to out-of-state eases has turned up but one case whidh appears to be substantially in point. In Simon v. Hospital Service Association of Pennsylvania, 192 Pa. Super. 68, 159 A. 2d 52 (Super. Ct. 1960), the court was faced with interpreting a Blue Cross hospitalization policy very similar in wording to the statute involved in the case at bar. The insurance company was to pay for “the treatment and care of all illness and injuries regularly accepted for treatment by the Member Hospital selected by the Subscriber,” but not for “admissions of patients to Member Hospitals for: a. Diagnosis or for laboratory or x-ray studies solely for diagnosis purposes.”

In Simon plaintiff was hospitalized for acute abdominal pain on the order of her physician. She was at the hospital for 13 days, after which she was discharged, fully recovered. \I~bid~] During her stay at the hospital plaintiff received * * * certain treatment consisting of therapeutic measures, bed rest, controlled light diet, analgesics, barbiturates, enemas, Nupercainal ointments, a saline douche, application of hot water bottles, in addition to electrocardiogram, eholecystegram, and x-rays of various types. These were either prescribed, recommended or administered by Dr. Stutz (her physician) and the hospital physicians assigned to the plaintiff. It is also a fact that following the application of all these measures plaintiff did recover from her illness, and was released from the hospital and the doctors care. The court in Simon allowed the plaintiff to recover for all her hospital expenses, even though some of the expenses were solely for diagnostic purposes. The court reasoned that when treatment is combined with various diagnostic tests as part of an overall scheme of treatment, it would be improper to exclude those diagnostic test expenses from coverage under the policy.

That the physicians had to limit their treatment and extend diagnostic examination over a long period of time because they could not determine the specific cause of her illness, does not alter the fact that she was admitted to the hospital because she was in need of treatment and care. When she entered the hospital, she was “sick in bed” ; when she left, she had recovered. She was not an ambulatory patient admitted for what is generally termed, in layman’s language, “a check-up.”
As nearly all hospital patients require diagnostic tests along with therapeutic treatment, the exception contained in the agreement must relate only to patients who are admitted for diagnosis as distinguished from therapeutic treatment and care. It is an exception to the expressed liability contained in an agreement written by the appellant and, if there be an ambiguity in it, must be taken most strongly against the hospital association. If it is reasonably susceptible of two interpretations, it is to be construed in favor of the assureds so as not to defeat, without plain necessity, their claim to indemnity which it was their object to secure. Reynolds v. Maryland Casualty Co., 1906, 30 Pa. Super. 456; Nusbaum v. Hartford Fire Insurance Co., 1923, 276 Pa. 526, 120 A. 481.

In the instant case plaintiff, as in Simon, received certain diagnostic examinations by the neurosurgeon while in the hospital, that were part of the overall scheme of treatment. Blade’s Law Dictionary (4th ed., 1968) defines’“treatment” as “a broad term covering all the steps taken to effect a cure of an injury or disease; the word including examination and diagnosis as well as application of remedies.” (Emphasis added). The no-fault aspect of the statute in question is in derogation of the common-law, and as such is to be strictly construed —• much as the insurance contract in Simon was strictly construed against the insurer. A strict construction of the phrase “diagnostic medical expenses” would therefore necessitate the implicit insertion of the word “solely” before “diagnostic.” To do otherwise would mean that any service performed by any physician short of actually doing something to the patient would have to be considered “diagnostic.” That would mean that if a person visited a physician for a headache resulting from an auto accident, and the physician took his temperature, checked his heartbeat, tapped his lungs, looked at his tongue, felt his head and gave him two aspirins, that everything except the giving of the two aspirins was “diagnostic,” and not counting toward the $200 minimum. The Legislature surely did not intend such a result.

The court therefore holds as a matter of law that where medical expenses are solely and purely diagnostic, not related to any ongoing treatment, they are not to be considered as going towards the $200 minimum required by N. J. S. A. 39 :6A-8. But where diagnostic procedures are inseparably interwined with an overall scheme of treatment, the costs of such procedures are to be considered as “medical expenses” not excluded by the phrase “diagnostic medical expenses” from computation toward the $200 threshold.

Dr. Pillone’s bill of $125 is therefore to be considered a “medical expense” not excluded as “diagnostic,” because his service was part of the overall scheme of treatment. The result is consonant with the holding in Simon, supra, where several diagnostic tests administered in the course of treatment were considered as not coming within the purview of said exclusionary phrase.

Por the above reasons defendant’s motion to dismiss the complaint is denied.


author: Morrison, W. R., J. D. C.

text:
    FRANKLIN HARRIS AND GEORGIANA HARRIS, PLAINTIFFS, v. MARIE OSORIO, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided December 4, 1973.

      Mr. Milton D. Liebowitz, attorney for plaintiffs.

      Mr. Anthony C. Stuart, attorney for defendant.
   SUPPLEMENTAL OPINION

Morrison, W. R., J. D. C.

Temporarily Assigned. Defendant has moved for leave to appeal this court’s interlocutory judgment denying its motion for summary judgment. The opinion of this court is hereby supplemented, pursuant to R. 2 :5-1(f).

In defendant’s motion for leave to appeal attention is drawn to N. J. S. A. 39:6A-16 which provides that the no-fault act "shall be liberally construed so as to effect the purpose thereof.” It is apparent that the purpose of the act is to provide for prompt payment of medical bills, lost wages and property damage without having to await the outcome of protracted litigation. To effectuate the prompt payment concept, a limitation is placed on the right to sue, as specified in N. J. S. A. 39:6A-8. But N. J. S. A. 39:6A-16 does not specify which word in 39 :6A-8 is to receive "liberal” construction — "treatment” or "diagnostic” [medical expenses]. A liberal construction of "diagnostic” so as to be broadly inclusive would preclude a similarly liberal construction of "treatment,” since the words are partially contradictory. However, even if "diagnostic” were construed liberally, and "treatment” were construed strictly — the most favorable method of construction for defendant — the result of the case at bar would not change. Any construction of the word "treatment,” defined in Black’s Law Dictionary (4th ed.) as including diagnosis, reveals that the two terms are at least partially mutually melusive. The mandate of N. J. S. A. 39 :6A-16 is of no help in resolving the instant construction problem. Therefore, the ordinary rules of construction were applied.

Eor the reasons stated in the original opinion, as supplemented above, defendant’s motion for summary judgment was denied.


text:
    WILLIAM F. LIBBY, ET AL., PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS, v. UNION COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted October 30, 1973
    Decided November 15, 1973.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. Ralph V. Mancini, County Counsel, attorney for appellant-cross-respondent (Mr. Edward J. Toy, Assistant County Counsel, on the brief).

      Messrs. Sauer, Boyle, Dwyer & Canellis, attorneys for respondents-cross-appellants (Mr. George W. Canellis, on the brief).
   Per Curiam.

Plaintiffs, county employees, sued defendant Union County Board of Ereeholders to recover longevity pay. They premise their action on defendant’s resolution dated April 13, 1967, establishing a program of longevity pay retroactive to January 1, 1967.

Plaintiffs, all former employees of various municipal police departments in the County of Union, are now employed in the county prosecutor’s office, sheriff’s office, or as county clerks. They contend their prior municipal employment should be used in computing their eligibility for longevity pay, citing as authority N. J. S. A. 40 :11-5 (now N. J. S. A. 40A :9-5).

, On cross-motions for summary judgment the trial judge held plaintiffs were entitled to longevity pay for the years 197.1 and 1972, the years after suit was filed (the complaint having -been filed March 2, 1971), but denied longevity pay to plaintiffs for the period January 1, 1967 to January 1, 1971. This denial was based upon a belief there would be budgetary problems on the part of defendant and the conclusion that plaintiffs were guilty of laches and, by delay, had waived their right to be paid for prior years. Both parties have appealed.

N. J. S. A. 40A :9-5 provides as follows:

Whenever heretofore or hereafter a transfer has been or shall be effected by appointment, assignment or promotion of a municipal employee to any other department or position in municipal employment, or to a position or department of the county government; or of a county employee to any other position or department in county employment, or to a department or position of a municipal government, in counties of the first or second class, the period of such prior service in said county or municipal employment, for any purpose whatsoever, shall be computed as if the whole period of employment of such employee had been in the service of the department, or in the position, to which the said employee had been transferred.

Defendant contends this statute applies only where a municipal employee involuntarily goes from municipal employment to county employment, and further argues that the statute does not apply where a municipal employee voluntarily terminates his employment and immediately thereafter enters county employment.

Municipal governments and county governments are separate entities and an involuntary transfer from one to the other would be a rarity. The only application which the county suggests is the possible creation of a regional police force into which municipal police might be incorporated.

It is conceded by the parties that there is no law now in effect which would require a municipal employee to submit io an involuntary transfer to county employment or require a county employee to submit to an involuntary transfer to municipal employment. Any such transfer must he voluntary on the part of the employee.

To accept the argument of defendant that this statute only applies in the event of an involuntary transfer, we would have to assume the statute is predominately useless legislation — in effect a nullity. When considering a statute, interpretations which lead to absurd or unreasonable results are to be avoided. State v. Gill, 47 N. J. 441 (1966). All rules of construction are subordinate to this obvious proposition. Marranca v. Harbo, 41 N. J. 569 (1964); State v. Provenzano, 34 N. J. 318 (1961).

We accordingly hold that when a municipal employee leaves his employment and is immediately thereafter appointed to a position in county government, such appointment is within the intent and meaning of N. J. S. A. 40A :9-5 and entitles such employee to compute longevity in accordance with the provisions thereof. The judgment of the trial judge, insofar as it awarded longevity pay for the years 1971 and 1972, is affirmed. The trial judge denied longevity pay to plaintiffs for prior years, holding they were guilty of laches and waiver. The proceedings in the trial court were by means of summary judgment. We find nothing in the record to justify this factual conclusion and reverse and remand for a plenary hearing on that issue. Judson v. Peoples Bank & Trust Co., 17 N. J. 67 (1954).


text:
    JOHN F. PETRAS, SR., PLAINTIFF-RESPONDENT, v. JOSEPH V. ZACCONE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted October 30, 1973
    Decided November 15, 1973.

      Before Judges Halpern, Matthews and Bischoff.

      Mr. Joseph V. Zaccone appellant filed a pro se brief.
    Respondent did not file a brief.
   Per Curiam.

Defendant appeals from that portion of a judgment entered in the Chancery Division declaring a document to be an equitable mortgage, foreclosing same and directing that the mortgaged premises be sold to satisfy the mortgage debt.

' Plaintiff and defendant Joseph Zaccone were partners in a business.enterprise. On May 8, 1969 plaintiff loaned $3,000 to Joseph Zaccone. This money was not to be used for the business enterprise. Rather, it is uncontroverted that it was a personal loan.

Several months later defendant delivered to plaintiff a document purporting to be a bond and mortgage to secure repayment of the $3,000 loan. The lands and premises covered by the mortgage belonged to the estates of Yincent Zaccone and Josephine Zaccone. The bond and mortgage were signed by defendant Joseph Zaccone as executor of the estate. The document, crudely drawn, was deficient in many respects.

Plaintiff instituted this action to have the document declared an equitable mortgage, binding the lands and premises described therein and seeking a foreclosure sale to satisfy the mortgage debt. The complaint did not name as a defendant Joseph Zaccone, executor, though he is named individually.

Defendant contends that since the money was advanced as a personal loan, and plaintiff knew the money was advanced as a personal loan, plaintiff cannot now seek to foreclose the mortgage given by defendant in breach of his trust, because the property is owned by the estate. .The controlling principle of law in this respect is set forth in the ease of Foster v. Dey, 27 N. J. Eq. 599 (E. & A. 1876) as follows:

* * * [Plaintiff’s] title can only be defeated by evidence showing that, at the time of the assignment, he knew that the trustee contemplated a breach of trust, and intended to misapply the money, or was, by the very transaction, applying it to his own private purposes * * * . [at 600; emphasis added]

■ At the time of the original transaction both parties knew the loan was for the personal use of Joseph V. Zaccone. Plaintiff knew, “ by the very transaction,” defendant was applying “it to his own private purposes.”

The delay in delivery of the mortgage and the manner in which it was executed were sufficient to put plaintiff on inquiry as to the validity of the document. An executor has no authority to use assets belonging to an estate to secure his own debts. The law exacts good faith from those dealing with knowledge of the representative capacity of another and imposes the obligation to make inquiry into the propriety of a transaction when it appears that the security offered is not being applied for the benefit of the estate. Kaufman v. Trust Co. of N. J., 128 N. J. Eq. 602 (Ch. 1941); Goodell v. Monroe, 87 N. J. Eq. 328 (E. & A. 1916). When one ignores a plain duty to make a full and complete inquiry, then he must accept the responsibility and liability his neglect or want of vigilance entails. Kaufman v. Trust Co. of N. J., supra, at 608.

When the mortgage was delivered to plaintiff, the representative capacity of defendant was clearly disclosed. It was incumbent on plaintiff to take steps at that time to secure his loan by proper security.

We hold it was error to direct foreclosure of the mortgage given by Joseph V. Zaccone, executor, on property of the estates of Vincent Zaccone and Josephine Zaceone, and reverse the judgment entered below, which declared the document to be an equitable mortgage and authorized the foreclosure and sale of the property described therein. In all other respects, the judgment below is affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LOUIS DE VITO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted November 13, 1973
    Decided November 19, 1973.
    Before Judges Carton, Seidman and Goldmann.

      Mr. Stephen Apollo, attorney for appellant.

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for respondent (Mr. Willard F. Byer, Jr., Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

Defendant was found gnilty in municipal court of driving while under the influence of intoxicating liquor. His driver’s license having been suspended for two years and a $200 fine imposed, he appealed to the County Court where, after a trial de novo on the record below, he was again found guilty and the same sentence imposed. The judgment was stayed pending the outcome of an appeal to this court.

The claim that the finding of guilt was against the weight of the evidence is without merit. There is sufficient credible evidence in the whole of the record to support the conviction.

There is also no merit in the claim that admission into evidence of the results of the breathalyzer test should have been excluded because there was no proper proof that the test control ampoule was accurate. In the first place, there was more than enough in the record to find defendant guilty, without considering this argument. But dealing directly with the claim now made, the State proved that the breathalyzer equipment was in proper working order and that a qualified operator administered the test. Defendant therefore centers his argument upon the ampoule.

The ampoule was sealed; only by breaking it open could a chemist determine that its contents were properly prepared. The trooper who checked the equipment by using a test ampoule shortly before and after defendant was tested, found the breathalyzer accurate within tolerable limits. The ampoule used by the trooper was a random unit supplied by the same laboratory. This spot check was enough. As was pointed out in State v. Baker, 56 Wash. 2d 846, 855, 355 P. 2d 806, 811 (Sup. Ct. 1960), the random ampoule was sufficient prima facie proof that the chemicals in any one ampoule were of the proper kind and mixed to proper proportion. See also, State v. Kruger, 99 Ill. App. 2d 431, 438-439, 241 N. E. 2d 707, 711 (App. Ct. 1968).

Affirmed.


author: Goldmann, J. A. D.,

text:
    EUGENE ROBERTS, PETITIONER-RESPONDENT, v. UNITED STATES STEEL CORPORATION, FAIRLESS WORKS, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued November 13, 1973
    Decided November 26, 1973.

      Before Judges Carton, Seidman and Goldmann.

      Mr. Richard V. Jones argued the cause for appellant (Messrs. Stryker, Tams & Dill, attorneys).

      Ms. Ruth Rabstein argued the cause for respondent (Pellettieri & Rabstein, attorneys; Mr. Ira C. Miller, on the brief).
   The opinion of the court was delivered by

Goldmann, J. A. D.,

Temporarily Assigned. Respondent Eairless Works appeals from an award in the Workmen’s Compensation Division granting petitioner 25% of partial total for loss of the right eye plus 7% for neuropsychiatric disability. It contends that the compensation judge’s determination that the Division had jurisdiction over the employer-employee relationship was erroneous and should be reversed, and that his finding of causal relationship is not supported by sufficient credible evidence in the record.

As to the latter point, we have examined the testimony of the medical experts, as well as that of petitioner and of his witnesses, and find sufficient credible evidence in the whole of the .record, giving due regard to the expertise of the compensation judge and his opportunity to assess credibility, to support the result.

Determination of the jurisdictional, question requires some reference to the factual background. Petitioner was initially employed by the American Bridge Division of United States Steel Corporation (ABD) in June 1963 and worked there as a grinder until he was. laid off in November 1963. ABD is located in Trenton, New Jersey.

During the layoff petitioner went looking for a job and learned from two men at ABD that the Eairless Works, located in Eairless Hills, Pennsylvania, was hiring men. He went there on January 24, 1964 and applied for a job, mentioning that 'he had worked at ABD in Trenton. Responding to a telegram from Eairless, petitioner went to the Eairless plant on January 30 and was interviewed by a Mr. Starling. Petitioner testified that Starling asked if he would like to work at Eairless and was “willing to transfer.” When he answered that he would he was told he would have to sign transfer papers. Starling went on to explain that petitioner would lose job seniority but would retain his pension and vacation rights accrued while at ABD. Petitioner then signed certain required forms and began working a day or two later as a laborer.

Eairless called its Supervisor of Employment Placement and Employee’s Services, Edwards, as a witness. lie gave the following testimony on direct examination:

Q. Was Mr. Roberts at the time of his hire a transfer from American Bridge Division?
A. Xes, he was.
Q. What were the terms of that transfer from American Bridge?
A. That he transferred to Fairless Works as a full time permanent employee and he relinquished permanently any recall or seniority rights that he may have had at American Bridge Plant, Trenton.

lie went on to distinguish petitioner from a newly hired employee; the difference, he said, was that petitioner, at the time he started to work at Eairless, had “continuous service by virtue of his having worked at American Bridge Plant, Trenton, for both pension and vacation purposes.” These rights accrued to petitioner by virtue of a labor agreement between respondent and the United Steel Workers of America. Edwards further testified that Exhibit R-l was a form filled out by every transferee, and that layoffs from one plant are given preference in rehiriug at another plant within the corporate complex. Petitioner had been cleared with ABD before starting work at Pairless, and all his records were transferred to Eairless.

It is undisputed that American Bridge and Eairless Works are Divisions of the same company, United States Steel Corporation.

Our Supreme Court has repeatedly approved the legal philosophy that a broad and liberal interpretation should be given to coverage under the Workmen’s Compensation Act in order to insure the accomplishment of its remedial goals. Stellmah v. Hunterdon Coop. G. L. F. Serv., Inc., 47 N. J. 163, 169 (1966). Consonant with that philosophy is the holding that our courts will assume jurisdiction in a compensation case where jurisdiction may also rest in another state. The fact that a petitioner might have the right to assert a compensation claim in another jurisdiction, or in fact did assert such a claim, will not in and of itself preclude him from pursuing his remedies in this State. See Bowers v. American Bridge Co., 43 N. J. Super. 48, 65 (App. Div. 1956), aff’d 24 N. J. 390 (1957). See also, Rivera v. Green Giant Co., 93 N. J. Super. 6, 13 (App. Div. 1966), aff’d 50 N. J. 284 (1967); Wilson v. Faull, 27 N. J. 105, 116-117 (1958)

Respondent Eairless contends that petitioner’s layoff and subsequent reemployment in Pennsylvania resulted in a new contract of employment made in Pennsylvania, thereby depriving New Jersey of jurisdiction. We cannot agree with that conclusion; in our view there was a continuing employment relation, originating in New Jersey and continuing thereafter in Pennsylvania, thereby supporting the right of our Compensation Division to assert jurisdiction. Cf. English v. Stokes Molded Products, Inc., 43 N. J. Super. 68 (App. Div. 1966), Bowers v. American Bridge Co., above. In accepting petitioner for employment, Eairless spoke of that employment as a transfer from ABD, and petitioner understood that this was so. It is noteworthy that the union agreement under which he was employed provided for the transfer of laid-off employees from plant to plant within respondent’s corporate structure, as was the case here. Moreover, an employee who was laid off did in fact have priority reemployment rights. His status as a transferee (as contrasted with a newly hired person) enabled petitioner to transfer his pension, sick leave and vacation rights from ABD to Eairless. Indeed, his entire personnel file accompanied him to Pennsylvania.

In examining the question of continuity of employment, our courts have not been bound by formalistic concepts of contract law. We look to the substance of the employment relationship — not to the form. Traditional contract concepts are not very meaningful when applied to continuing employment. The test is continuity of employment, and not continuity of contract. See 13 Rutgers L. R. 210, 211 (1958).

Fairless relies on Franzen v. E. I. duPont de Nemours and Company, 128 N. J. L. 549 (Sup. Ct. 1942). Although ostensibly factually similar, that case is of questionable validity in light of the current judicial trend of subordinating contract form to substance. Franzen was premised on strict contractual principles, and we accordingly consider it inappropriate as precedent.

Affirmed.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. NIKOLL BROZI, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued November 7, 1973
    Decided November 26, 1973.

      Before Judges Carton, Seidman and Goldmann.

      Mr. Neil H. Shuster, Assistant Prosecutor, argued the cause for appellant (Mr. Bruce M. Schragger, Mercer County Prosecutor, attorney).

      Mr. Carl R. Lobel, Assistant Deputy Public Defender, argued the cause for respondent (Mr. Stanley C. Van Ness, Public Defender, attorney).
   The opinion of the court was delivered by

Carton, P. J. A. D.

Defendant Brozi was convicted on a charge of kidnapping while armed and on two ■ charges of assault with an offensive weapon and carrying a weapon without a permit. He was sentenced to a term of not less than 30 nor more than 32 jrears on the kidnapping while armed charge, to be served at the Youth Correctional Institution Complex at Yardville. Defendant was further sentenced to indeterminate terms at Yardville on the remaining convictions, the sentences to run concurrent with each other and with the kidnapping sentence.

On motion, defendant was resentenced on the kidnapping while armed charge to an indeterminate term with a maximum of 30 years. The State appeals, contending that the new sentence was improper because it failed to contain the minimum period of incarceration mandated by N. J. S. A. 2A :118-1. On this basis it urges that the original sentence should be reinstated.

There is an obvious conflict between N. J. S. A. 2A :118-1, which mandates a minimum sentence of 30 years for anyone convicted of kidnapping, and N. J. S. A. 30 :4-148, which directs that all sentences to the Youth Correctional Institution Complex must be for an indeterminate period without any minimum. The State’s thesis is that this conflict should be resolved by strictly adhering to the mandatory minimum for kidnapping in order to implement the expressed legislative policy of imposing severe sanctions on those who are found guilty of this crime. Defendant, on the other hand, contends that no minimum sentencing should be imposed which would frustrate the expressed legislative policy contained in N. J. S. A. 30 :4-148 of providing a more conducive atmosphere for rehabilitation of youthful offenders ordered to be confined at Yardville.

This precise question has not been considered by the courts of New Jersey in connection-with the crime of kidnapping. However, the relationship between reformatory sentences imposed pursuant to N. J. S. A. 30 :4-146 and 155 and criminal statutes requiring the imposition of minimum and maximum sentencing has been discussed in a number of cases. State v. Ammirata, 104 N. J. Super. 304 (App. Div. 1969); State v. Pallitto, 107 N. J. Super. 96 (App. Div 1969), certif. den. 55 N J. 309 (1970); State v. Lavender, 113 N. J. Super. 576 (App. Div. 1971).

The latest pronouncement is contained in the dissenting opinion of Judge Halpern in State v. Hopson, 114 N. J. Super. 146 (App. Div. 1971), which was adopted by the Supreme Court in 60 N. J. 1 (1971). We conclude that the approach adopted in that ease should be used in resolving the present conflict. Hopson involved a defendant convicted of possession of narcotics. Judge Halpern pointed out that if the Legislature intended to break away from its philosophy of reformatory sentencing, it could easily have done so by specifically creating an exception in narcotics cases. He concluded that since the Legislature did not mandate a two-year minimum when a reformatory sentence was being imposed under N. J. S. A. 24 :18-47(c) (1) for possession of narcotics, there was consequently no reason why an indeterminate sentence could not be imposed without a minimum.

We see no reason why a different result should obtain when a'reformatory sentence is imposed for kidnapping. We are not persuaded by the State’s argument that the two statutes may be read in pari materia; that the policy of both statutes can best be expressed by recognizing the legislative mandate for minimum sentences regardless of the place where it is to be served. This argument attempts to reconcile two very different philosophies of correction. When a court sets a minimum sentence it in effect states that a person’s offensive conduct necessitates confinement for a certain period. This in essence is a retributive approach. Reformatory sentences are designed to correct and rehabilitate the offender and are based upon a philosophy of rehabilitation rather than retribution. State v. Horton, 45 N. J. Super. 44 (App. Div. 1957).

It strikes us as incongruous to say to this defendant, a first offender, that he is sentenced to Yardville so that he can be rehabilitated and at the same time stipulate that this process must take a minimum of 30 years.

The State seeks to distinguish Hopson solely on the basis that kidnapping is a more serious offense than possession of heroin. The flaw in this argument is that the gravity of the offense has no bearing on the issue. The issue is how to reconcile the conflicting statutes.

There is no doubt that the Legislature considers kidnapping a serious crime and has continually increased the penalty for such an offense. See State v. Johnson, 67 N. J. Super. 414, 420-423 (App. Div. 1961). The last amendment to N. J. S. A. 2A:118-1 was made in 1933. Applying the reasoning of Hopson, it can be assumed that had the Legislature felt that no person convicted of kidnapping could or should be given a reformatory sentence it could have so provided in one of the amendments to N. J. S. A. 30:4-148, which was last amended in 1970.

N. J. S. A. 30 :4-147 reads as follows:

Any male person between the ages of 15 and 30 years, who has been convicted of a crime punishable by imprisonment in the State Prison, who has not previously been sentenced to a State Prison in this State, or in any other State, may be committed to the Youth Correctional Institution Complex.

Defendant’s situation fulfilled the requirements of this statute. The court below in its discretion sentenced him to the Youth Correctional Institution Complex. As a consequence, N. J. S. A. 30 :4-148 with its no-minimum rule was applicable. Any other conclusion would be contrary not only to the Supreme Court’s decision in State v. Hopson, supra, but also the recognized and approved legislative policy designed to rehabilitate youthful offenders rather than seek retribution.

Affirmed.


author: Francis, J. S. C.

text:
    JOSEPH A. STOUT, SR., ET AL., PLAINTIFFS, v. SANDRA TONER, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided November 15, 1973.

      Mr. Jay H. Greenblatt for plaintiffs (Messrs. Greenblatt & Greenblatt, attorneys).

      Mr. Barry A. Perlow for defendant Hunt-Wesson Foods, Inc. (Messrs. Horuvitz & Perlow, attorneys).
   Francis, J. S. C.

This matter involves a motion to compel answers to interrogatories concerning prior similar accidents in a negligence case. Defendant Hunt-Wesson Foods, Inc. challenges the propriety of the interrogatories.

Defendant cites several eases which hold that “proof of comparable prior accidents to others likewise attributable to the same condition, has despite its relevancy been closely restricted over the past years mainly for pragmatical reasons, such as its tendency to create a confusion of issues, undue consumption of time and an inordinate prejudicial influence.” Miller v. Muscarelle, 67 N. J. Super. 305 (App. Div. 1961); Karmazin v. Pennsylvania R. R. Co., 82 N. J. Super. 123 (App. Div. 1964); Post v. Manitowoc Eng. Corp., 88 N. J. Super. 199 (App. Div. 1965); Muscato v. St. Mary’s Catholic Church, 109 N. J. Super. 508 (App. Div. 1970). All of the above cases adhere to the minority view held in New Jersey, on the admissibility of such evidence.

The point raised by plaintiff, however, is that the above authorities concern themselves with admissibility of evidence rather than a proper subject matter for discovery. It is obvious in the above-cited case authorities that testimony concerning notice could well depend upon a showing of prior similar occurrences. In addition, the discovery might produce proofs of direct negligence. in the failure to provide warning by proper and adequate labeling of the product.

Finally, the entire area of admissible evidence cannot be anticipated by counsel, and while courts in their discretion usually disallow harassing fishing expeditions, they should not stifle discovery by requiring a showing of the particular admissible end result that is sought.

For the reasons stated defendant is directed to answer the interrogatories.