author: Handler, J. A. D.

text:
    KINGSTON EAST REALTY CO., A PARTNERSHIP OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 29, 1974
    Decided March 26, 1975.

      Before Judges Collester, Lora and Handler.

      Mr. Harvey M. Douglen argued the cause for appellant (Stier and Douglen, attorneys).

      Mr. Stephen A. Herman, Deputy Attorney General argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Handler, J. A. D.

Plaintiff Kingston East Realty Co. instituted this action by filing a complaint in lieu of prerogative writs against the State of New Jersey, by the Commissioner of Transportation. In the first count of the complaint plaintiff sought damages because the actions of the Department of Transportation in delaying the issuance of a building permit and in otherwise inhibiting or discouraging the preparations for and development of the land for a large 18-building research, office and laboratory complex, caused plaintiff to suffer substantial financial loss. The second count) which incorporated the factual allegations of the first count, asserted that the activities of the State resulted in "constructive condemnation” since the utilization of the property-through development had thereby been substantially inhibited or denied. The third count characterized the conduct of the State in negotiating for or acquiring other properties, but refusing to negotiate for or acquire the premises in question, as arbitrary and capricious and as a result substantial damages were suffered. Plaintiff sought on these latter two counts a judgment compelling defendant to institute an action for the acquisition of its property. The fourth count, which also included by reference preceding allegations, stated that there had been a depreciation in the value of plaintiff’s property for which it demanded judgment seeking the appointment of commissioners to assess the value of damages. On the second, third and fourth counts — those "sounding” in condemnation — plaintiff sought an award for various expenditures under N. J. S. A. 20:3-26(c). The complaint was verified and supported by a certification in lieu of affidavit by one of plaintiff partners.

On application plaintiff obtained an order to show cause why the requested relief should not be granted. The State made a motion returnable on the adjourned return day for an order to dismiss plaintiff’s complaint on the ground that it failed to state a claim upon which relief could be granted. The judge entered an order dismissing the complaint with prejudice and plaintiff took this appeal.

The facts may be gathered from the pleadings, the moving papers and supporting briefs.

It appears that in 1964 plaintiff, a partnership, purchased approximately 93 acres of land fronting on Eoute 27 in Franklin Township, Somerset County, New Jersey. Under the applicable zoning ordinance the land may be used for research, office and laboratory purposes. In February 1971 a highway alignment preservation map was filed pursuant to N. J. S. A. 27:7-66. This map showed the proposed alignment of Eoute 92 Freeway, which included a portion of plaintiff’s property. In February 1972 a revised map was submitted, still including some of plaintiff’s property.

It further appears that the State had acquired some properties for the Route 92 Freeway, utilizing funds from a bond issue of 1968. One of these acquisitions was a piece of property across from plaintiff’s premises on the other side of Route 27. This property was one of four properties located in section 3 of the proposed plan and was the only parcel in that section which was taken. Plaintiff’s property is in section é, with respect to which there have been no acquisitions. It is also alleged that, since the defeat .of the 1972 transportation bond issue, no further acquisitions or condemnation actions have been instituted in section 3. Plaintiff asserts that, according to the filed map of Route 92, his property is intended to be used for the construction of ingress and egress for the proposed road, and that the property already acquired across the street is of no use for the highway unless plaintiff’s property is also obtained.

Plaintiff contends that “several years” after the alignment map was filed it decided to develop a research office laboratory complex. This decision allegedly was made after responses by the State that acquisition would not occur for some time. Engineers and architects were hired to prepare studies, surveys and plans for a complex consisting of 18 primary buildings, accessory buildings and roads. Financing was also obtained.

On January 8, 1973 plaintiff submitted an application for obtaining a building permit to the building code enforcement officer of Franklin Township. The application was forwarded to the Department of Transportation pursuant to N. J. S. A. 27:7-67. The Department notified plaintiff by letter dated March 7, 1973 that “the proposed building is in the center of the alignment [and] we are now preparing acquisition documents for our needs in this area.” On March 8, 1973 plaintiff received a letter from the building code enforcement officer of Franklin Township that the building permit was denied because of the action by the Department of Transportation. Thereafter plaintiff wrote to the Department of Transportation on July 23, 1973 asking for a statement of the Department’s intention and received no reply. The complaint was then filed.

Plaintiff contends that the trial judge erred in denying its motion for summary judgment — the judge having apparently so considered the respective motions of the parties. It is argued that its uncontradicted allegations of fact demonstrated that the State’s actions constituted a “constructive or de facto taking.”

N. J. S. A. 27:7-66 provides:

Whenever the location of a proposed line of any new State highway shall have been approved by the commissioner, the commissioner may file a certified copy of a map, plan or report indicating such proposed line, the width whereof shall not exceed what is reasonably required in accordance with recognized standards of highway engineering practice, with the county clerk of each county within which the proposed line of said new highway is to be located and with the municipal clerk, planning board and building inspector of each municipality within which said line is located.

The mere plotting and planning in anticipation of condemnation without any actual physical appropriation or interference does not constitute a taking or compel the State to institute condemnation proceedings. Bauman v. Ross, 167 U. S. 548, 17 S. Ct. 966, 42 L. Ed. 270 (1897); Danforth v. United States, 308 U. S. 271, 60 S. Ct. 231, 84 L. Ed. 240 (1939); Jersey City Redevelopment Agency v. Kugler, 58 N. J. 374, 377-378 (1971); Wilson v. Long Branch, 27 N. J. 360, 373-375, cert. den. 358 U. S. 873, 79 S. Ct. 113, 3 L. Ed. 2d 104 (1958); Haycock v. Jannarone, 99 N. J. L. 183, 185 (E. & A. 1923); Annotation, “Condemnation — Preimprovement Planning,” 37 A. L. R. 3d 127 (1971).

It is asserted that the Department has denied plaintiff “the right to use and enjoy” its property and that the Department has not rescinded its alignment map or revised its plans to indicate any change of its intention to build Boute 92 over plaintiff’s property. Aside from the issue of whether there was a temporary taking by the State of an interest in property in the nature of an option under N. J. S. A. 27:7-67, the actions complained of by plaintiff did not deprive it of the use of its property. The planning engaged in by the State involving plaintiff’s property, the filing of an alignment map, the acquisition of a nearby parcel, and the refusal to abandon any long-range plan for the eventual acquisition of the property for the proposed highway did not, in actuality, bar plaintiff from utilizing and developing its property. Hence, a constructive or de facto taking did not occur. Cf. Jersey City Redev. Agency v. Bancroft Realty Co., 117 N. J. Super. 418, 424 (App. Div. 1971); East Rutherford Industrial Park, Inc. v. State, 119 N. J. Super. 352, 370 (Law Div. 1972).

There was, moreover, no such actual or threatened interference with the use of the property of such a permanent, serious or continuing nature, to justify the conclusion that a “taking” had occurred as of the time plaintiff’s action was instituted. Cf. Morris County Land, etc. v. Parsippany-Troy Hills Tp., 40 N. J. 539 (1963); Morristown Bd. of Ed. v. Palmer, 88 N. J. Super. 378 (App. Div. 1965), rev’d 46 N. J. 522 (1966); Grosso v. Millburn Twp. Bd. of Adj., 137 N. J. L. 630 (Sup. Ct. 1948). There is no implication in the facts asserted that any delays or uncertainties in connection with the proposed development of plaintiff’s property were the result of official bad faith or knowing unlawful conduct. There would be no basis, therefore, to entitle plaintiff to damages, by way of just compensation, for condemnation or otherwise. Cf. Beech Forest Hills, Inc. v. Morris Plains, 127 N. J. Super. 574, 582-583 (App. Div. 1974).

Consequently, we concur in the result reached by the trial judge that plaintiff, as of the date of the filing of its complaint, was entitled legally to proceed with the development of its property and that it would be entitled to compensation for its property — and by implication for any improvements made thereto —■ “if and when the condemnation and the taking of the property by the State becomes effective.” In rejecting plaintiff’s demand for inverse condemnation, as well as damages the judge, in effect, determined, correctly in our view, that the circumstances related by plaintiff were not tantamount to an appropriation or taking of its property, or wrongful, actionable conduct by the State justifying compensatory damages.

Plaintiff further contends that it is entitled to be compensated by virtue of a “temporary taking” of its property occasioned by the Commissioner’s actions pursuant to N. J. S. A. 37:7-67(a).

As noted, plaintiff applied for a permit to build on its property, a portion of which was situated within the alignment of the map for proposed Route 93 as filed under N. J. S. A. 37:7-66. Pursuant to N. J. S. A. 37:7-67(a), the local authority forwarded the application to the Commissioner of Transportation for his recommendation as to the effect of the proposed development upon the proposed highway. Under that statute, upon such a referral no permit could issue until the lapse of 45 days without a recommendation from the Commissioner. The Commissioner, however, in this case, did respond directly to the plaintiff on March 7, 1973, and on the next day plaintiff received a communication from the municipality to the effect that action on the permit was being withheld because of the position of the Department of Transportation. Thereafter, under the statute, N. J. S. A. 37:7-67(a)(1), the Commissioner had 130 additional days in which to acquire, agree to acquire, or commence an action to condemn said property; during this time no permit could issue, but after the expiration of the 130-day period without state action as specifically required by the statute, plaintiff would have been entitled to have had its application for a building permit processed by the local authority.

The Commissioner did not take any of the specific measures required by N. J. S. A. 27:7-67(a). Therefore, upon the passage of 120 days from the earlier notification in March 1973, plaintiff was entitled to proceed to obtain a building permit from the municipality. Cf. Beech Forest Hills, Inc. v. Morris Plains, supra at 584. It is the period of time — the 120 days — utilized under the statute by the Commissioner during which the issuance of a building permit was withheld, that plaintiff claims constitutes a temporary taking and for which it is entitled to compensation.

Primary reliance is placed on Lomarch Corp. v. Englewood Mayor and Common Council, 51 N. J. 108 (1968). There the court considered the provisions of the Official Map and Building Permit Act, N. J. S. A. 40:55-1.30 to 1.42, that upon application for approval of a plat the municipality may reserve for future public use the subject property for a period of one year as parks and playgrounds as shown on the official map. The court held that the statutory provision imposed on the municipality an implied duty and obligation to make payment of adequate compensation to the landowner for the temporary taking and deprivation of use and, conditioned upon the implied duty of compensation, the statute was not constitutionally defective for failure to provide expressly for payment. 51 N. J. at 113. In Beech Forest Hills, Inc. v. Morris Plains, supra, on the strength of Lomarch, it was recognized that a similar reservation of property as park land for one year under the Municipal Planning Act, N. J. S. A. 40:55-1.1-1.29, was compensable as a taking of property.

The similarities between the statute here under consideration and those considered in Lomarch and Beech Forest Hills are apparent. In a comparable sense, the actions of the State in this case under N. J. S. A. 27:7 — 67 constituted a restriction upon the use of plaintiff’s property, which can be analogized to an option to purchase since its imposition was to enable the State, during the period of its existence, to determine whether or not to acquire the property for a public purpose.

Nevertheless, here, the period during which plaintiff was unable to secure a building permit was substantially loss than the one year period involved in Lomarch and Beech Forest Hills. Moreover, the restriction thus imposed was reasonably designed to reduce the cost of public acquisitions. 2 Nichols, Eminent Domain (3 ed. 1970), § 6.351 at 6-102. The statutory provisions, N. J. S. A. 27:7 — 66 and 67, when enacted, were included as a constituent part of L. 1968, c. 393. A portion of that act was subsequently repealed and superseded by L. 1972, c. 47; N. J. S. A. 27:7-72 to 88. A purpose of chapter 393 was to provide compensation for persons “displaced for any transportation purpose” and also “to protect the proposed alignment of new highways to minimize the necessity for and the cost of relocation.” This public policy is evident in the current legislation. L. 1972, c. 47, §2; N. J. S. A. 27:7-73. Thus, the legislation is based upon a salutary recognition by the State of its responsibilities for persons displaced by highway improvements. It seeks to minimize such economic injury and grave inconveniences by avoiding these consequences through a restriction against the physical improvement of affected property for a limited period of time in accordance with N. J. S. A. 27:7-66 and 67, or, if this has already occurred, by compensation for the expenses of relocation as otherwise provided specifically in the statute.

The statute not only provides redress for aggrieved property owners, as indicated, but also seeks to avoid the necessity therefor, if possible. As an incident to this purpose, it discourages, for a relatively short period of time the physical development or improvement of land. Similar measures, designed to restrain temporarily the inimical utilization of land, have been recognized under narrow circumstances as reasonable regulations in the exercise of governmental police powers. E. g., Deal Gardens, Inc. v. Loch Arbour Bd. of Trustees, 48 N. J. 492 (1967); Monmouth Lumber Co. v. Ocean Tp., 9 N. J. 64 (1952); Meadowland Regional Devel. Agency v. Hackensack Meadowlands Devel. Comm’n, 119 N. J. Super. 572 (App. Div.), certif. den. 62 N. J. 72 (1972); Rockaway Estates v. Rockaway Tp., 38 N. J. Super. 468 (App. Div. 1955); Campana v. Clark Tp., 82 N. J. Super. 392 (Law Div. 1964).

As noted, unlike the one-year reservation in Lomarch, the restrictions here are for a considerably lesser period of time, and are not a blanket reservation. Under this statute the Commissioner is required to act affirmatively and promptly — by making a decision initially within 45 days and then, if need be, taking specific action within 120 days— in order to conclude the question of whether the land is to be acquired for transportation purposes. These statutory steps are designed to provide some assurance that the temporary restriction upon the use of the property by the State shall be expeditiously and carefully reviewed and shall not last any longer than reasonably necessary to reach a sound decision on the need for the property for transportation purposes.

Accordingly, the decision below is affirmed.'

      The statute also provides that if the Commissioner initially gives notice that there is no objection to the granting of the permit or approval, the municipal authority may proceed to act upon the application. N. J. S. A. 27:7-67(a) (3). Further, the Commissioner can within the 45-day period recommend the grant of the permit subject to conditions which may be accepted by the owner and municipality within 20 days thereafter; but if the modifications are not accepted no action on the permit can be taken for an additional 20-day period during which the Commissioner may give notice either of his intent to abandon acquisition of the property or to proceed with acquisition and, if the latter, then no permit or approval shall issue for a 120-day period during which there must be an acquisition or agreement to acquire the property, or the institution of a condemnation action, and failing which the parties would be free to proceed. N. J. S. A. 27:7-67 (a) (2).

      It appears that the State failed to make a recommendation within 45 days of the reference to it on or about January 11, 1973 by the municipal authority. While the Commissioner’s recommendation on March 7-8, 1973 was late, no issue is made that plaintiff became legally entitled thereby to proceed on its application or that the Department of Transportation was barred from having a building permit withheld for an additional period of 120 days.


source: Caselaw Access Project

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

license: Public Domain

text:
    CITY OF NEWARK ET AL., APPELLANTS, v. NATURAL RESOURCE COUNCIL, IN THE DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL., RESPONDENTS. JOSEPH L. JONY AND ALMA JONY, HIS WIFE, PLAINTIFFS, v. STATE OF NEW JERSEY, TOGETHER WITH TWO SUBDIVISIONS, AGENCIES AND DIVISIONS THEREOF, THE DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANTS. NEW JERSEY SPORTS & EXPOSITION AUTHORITY, PLAINTIFFS, v. MARTUCK REALTY, DEFENDANTS. NEW JERSEY SPORTS & EXPOSITION AUTHORITY, PLAINTIFF, v. CARIDDI, DEFENDANT. NEW JERSEY SPORTS & EXPOSITION AUTHORITY, PLAINTIFF, v. BOROUGH OF EAST RUTHERFORD, DEFENDANT. NEW JERSEY SPORTS & EXPOSITION AUTHORITY, PLAINTIFF, v. LOGOTHETIS, DEFENDANT. NEW JERSEY SPORTS & EXPOSITION AUTHORITY, PLAINTIFF, v. F. SYLVESTER, DEFENDANT. NEW JERSEY SPORTS & EXPOSITION AUTHORITY, PLAINTIFF, v. FISHER, DEFENDANT. NEW JERSEY SPORTS & EXPOSITION AUTHORITY, PLAINTIFF, v. MARINO, DEFENDANT. NEW JERSEY SPORTS & EXPOSITION AUTHORITY, PLAINTIFF, v. TOP NOTCH METAL REALTY CO., DEFENDANT.
    Superior Court of New Jersey-Law Division
    Decided December 19, 1974.

      Mr. Morton J. Goldfein and Mr. William C. Rindone, Jr., Deputies Attorneys General, for the respondents. (Mr. William F. Hyland, Attorney General).

      Mr. John R. Weigel, Special Counsel, for City of Newark, City of Elizabeth, Esther G. Bertoni et al., and New Jersey Land Title Insurance Association.

      Mr. Alfred A. Porro, Jr., for Borough of East Rutherford et al., and Joseph L. Jony et al.

      Mr. Nicholas Martini, for Marie Mazza and Dr. Joseph Mazza.

      Mr. Martin Friedman, for Federal Pater.

      Mr. Dominic Presto, for Fred Rolter and Frank Burian.

      Mr. James V. Zimmerman, for Emma and Otto Knissel.

      Messrs. Venino & Venino, for Stanley Atkins (Mr. Otto Veniro, appearing).

      Messrs. Goldberg & Carlin, for Sportland Route 3 Corporation, Charles Eicholz, Aldys Corporation et al. (Mr. Walter Goldberg, appearing).
   Trautwein, A. J. S. C.

This ease involves the complex and oft-times perplexing issue of title to lands in the meadowlands. Appellants have challenged respondent’s mapping procedure of title to meadowlands as depicted on the respondent’s maps.

Appellants now move for partial summary judgment. They ask this court to find as a matter of law that both respondent’s use of the “hatched” area legend and its failure to designate which, if any, of the prior riparian grants it recognizes as valid on the maps promulgated, filed and published pursuant to N. J. S. A. 13:1B-13.1 et seq. violate the letter and spirit of that statute.

These maps represent the most recent attempt by the State to properly manage the riparian assets of the school fund trust. Since 1894 (see L. 1894, c. 71) riparian lands have been designated as trust assets for the support of public schools. See, e. g., N. J. Const. (1844), Art. IV, § III, par. 6; N. J. Const. (1947), Art. VIII, § IV, par. 2; N. J. S. A. 18A:56—5 (“All lands belonging to this state now or formerly lying under water are dedicated to the support of public schools * * *”)

Thus, the State, as represented by respondent Council, has a solemn duty to preserve these assets. However, it cannot act in a manner which violates the more fundamental duties of a sovereign to act reasonably and in a manner which least harms its citizens.

The past record of administration has been at best uneven. Compare L. 1851, p. 335 (Wharf Act), with L. 1869, c. 383, § 3; A. 1891, c. 124; see generally, New Jersey Legislature Joint Study Commission on Riparian Lands, Report and Recommendations, 7-9 (1963).

After years of confusion, uncertainty and severe hardship to meado wland owners, the New Jersey Supreme Court, in O’Neill v. State Highway Department, 50 N. J. 307 (1967) established a new, clearer definition of what the State could claim as riparian lands. The court held (at 324) that all lands now or formerly flowed by the mean high tide are riparian lands. This definition is incorporated in the statute, see N. J. S. A. 13:3B-13.3. The court also suggested to the State that

* * [A]s a matter of good housekeeping, the appropriate officers of the State should do what is feasible to catalogue the State’s far-flung holdings !i' * * [at 320]

The Legislature responded to this suggestion by passing L. 1968, c. 404; N. J. S. A. 13:1B-13.1 et seep The pertinent statutory sections provide:

The council [respondent] is hereby directed to undertake title studies and surveys of the meadowlands throughout the State and to determine and certify those lands which it finds are State owned lands. [N. J. S. A. 13:1B-13.2]
Upon completion of each separate study and survey, the council shall publish a map portraying the results of its study and clearly indicating those lands designated by the council as State-owned lands. [N. J. S. A. 13:1B-13.4]

Pursuant to these statutory directions and others (see N. J. S. A. 13:1B-13.3), respondent on January 14, 1970 published a two-part map, more commonly known as the “grey and white” map.

In an earlier case, State v. Council in the Division of Resource Development, (Docket L-1 2561-68, September 8, 1971), this court found that this map was not prepared in accordance with the statute, particularly N. J. S. A. 13:1B-13.3, and ordered it suppressed. Though another part of that order was modified on appeal, see State v. Council, 60 N. J. 199 (1972), the suppression of the map was not appealed by respondent. Subsequently, respondent compiled pertinent data for the publication of new maps. On July 10, 1973 it approved and published seven base maps and overlays. By the end of the procedural history (as developed below), respondent had approved and published 36 maps which encompassed all of the Hackensack Meadowlands.

The root cause of the vexing and concededly difficult problems in this ease lies buried in man-made acts of direct imposition of fill, etc., which artificially changed the physical characteristics of areas of the meadowlands. On the maps the meadowlands are characterized as either upland (areas above mean high water), or riparian (areas now or formerly below mean high water), or “hatched” (areas of filled meadow adjacent to virgin meadow, indicating a probable claim that the filled area was probably once tide-flowed to approximately the same extent, percentage-wise, as are adjacent, unfilled meadows at the present time). Though each category should logically and mutually exclude the other, the last one (“hatched”) does not. Rather, it means that a portion of the land so labeled might at some time have been flowed by mean high tide. “Hatching” thus represents a possible claim by the State to some or all of those lands. It is a legend suggesting mixed ownership. It most certainly is not a claim clearly indicating ownership; it is, rather, an equivocation.

Respondent used a comparative, quantitative, analytical procedure in determining whether an area should bear the legend “hatched.” The “hatching” procedure, described below, was used to determine the riparian “claim” only on a filled meadowland tract which adjoined an unfilled, virgin meadowland tract.

According to respondent’s experts, the prior maps of the filled meadowlands were examined for tidal stream patterns. If a tidal stream pattern was found, it was compared with the tidal stream pattern of the adjoining, unfilled virgin meadowland. Then, after analyzing and comparing the vegetation data and prior maps of both the filled and unfilled meadowland, respondent’s expert would decide if all of this data revealed that there may be some riparian land in the virgin meadowland. Then, by extrapolating the data from the virgin meadowlands, respondent’s expert concluded that a riparian claim should be laid in the filled meadowland tract to the same extent as that existing in the virgin meadowland tract. Upon obtaining this result, the filled meadowland was marked “hatched.”

On July 19, 1973 appellants filed a notice of appeal in the Appellate Division pursuant to R. 2:2-3 (a) (2). They asked the Appellate Division to review respondent’s action, i. e., the approval and publication of the maps. They also sought by motion, filed with their notice of appeal, to have the administrative record supplemented. See R. 2:5-5(b).

Despondent then moved before the Appellate Division to consolidate this case with an appeal of consolidated meadow-lands cases arising from the construction of the New Jersey Sports Complex. These cases, New Jersey Sports and Exposition Authority v. Bailey et al., (Docket L-20954-72), involved similar tidelands questions.

The Appellate Division granted both motions and issued the following order:

This consolidated appeal is remanded to the Daw Division for the purpose of supplementing the administrative record for appellate review. The Assignment Judge of Bergen County, or such Judge as he may designate, is directed to conduct such proceedings and to make appropriate findings of fact and conclusions of law to be submitted to this court for determination of the following issues:
(1) Whether the maps published by respondent were prepared in accordance with the requirements of N. J. S. A. 13:1B-13.1 et seq. and specifically N. J. S. A. 13:1B-13.3. and
(2) Were they promulgated and adopted in accordance with the provisions of N. J. S. A. 13:1B-13.4.

Appellants assert that on the basis of this order this court has the jurisdiction to grant their motion. Respondent contends that the Appellate Division order contemplates that the remand should be only a large-scale discovery proceeding. Moreover, respondent contends that this court can only make recommended findings of fact and conclusions of law.

While it is true that any findings of fact and conclusions of law are subject to appellate review, see R. 2:2-2, 2:2-3, 2:3-4, the language of the Appellate Division’s order is clear. The court “is directed to conduct such proceedings and to make appropriate findings of fact and conclusions of law.” I find that the order’s direction is explicit; there is no mention of recommended findings of fact and conclusions of law. I therefore find that the court has jurisdiction under the remand order to rule on the appellants’ motion.

Appellants’ motion presupposes a lack of genuine material fact (see R. 4:46-2). It is their position that this lack of a material factual issue flows from the plain meaning of N. J. S. A. 13:1B-13.4, i. e., the phrase, “clearly indicating,” means that as a matter of law the maps can only bear two legends: (1) state-owned (riparian lands), and (2) private propertjr (upland). Thus, respondents’ use of the hatehed-marked legend is an additional category the statute sought to avoid.

Appellants buttress their argument by classifying the statute, N. J. S. A. 13:1B-13.1 et seq., as remedial legislation. They contend that in light of the mischief O’Neill attempted to curtail and O’Neill’s explicit suggestion, the statute was designed to eliminate the slandering of title by respondents’ use of a vague legend. Moreover, appellants assert that it is the duty of the State, as a benign sovereign, to end the confusion and uncertainty on the tidelands problem by clearly noticing various property owners as to the status of their property vis-a-vis the State’s riparian claim. For the State to do otherwise, appellants argue, would be a continuation of economic hardship to those property owners in question and would be contrary to a fundamental sense of fair play the State owes its citizens.

Respondents raise two grounds of opposition: (1) there is an issue of genuine material fact which precludes the court from granting summary judgment, or, (2) appellants’ motion, if granted, would result in an unconstitutional application of the statute because it could either reduce the State’s trust fund assets (its riparian lands), and outcome clearly prohibited by common law, e. g., Henderson v. Atlantic City, 64 N. J. Eq. 583 (Ch. 1903); In re Camden, 1 N. J. Misc. 623 (Sup. Ct. 1923), or expand their trust assets and take property without just compensation.

Respondents apparently conclude that because the hatehedmarked areas represent mixed ownership, there is a factual issue, i. e., who owns the land.

While the court does not attach a malicious intent or malevolent heart to the State’s methodology —■ indeed, it appears to be the good faith effort of persons required to perform a difficult task without ample resources — there can be no doubt that the hatched-marked legend neither creates a genuine factual issue nor comports with the statute. I find that though there may be a real question as to the extent of the State’s claim in these areas, there is no factual issue as to whether the State marked these areas as upland or riparian, as mandated by the statute, N. J. S. A. 13:1B-13.1 et seq. The most that can be said for what the State did when it hatched” an area was to publicly announce that ownership was “questionable.” Indeed, the expression “questionable” has been used by counsel for the State on innumerable occasions in oral argument before this court where applications for withdrawal of condemnation deposits have been heard.

Thus, the next question facing the court is: Does the existing record adequately support a motion for partial summary judgment ? A careful examination of the affidavits before the court is required, Devlin v. Surgent, 18 N. J. 148 (1955); State v. South Amboy Trust Co., 46 N. J. Super. 497 (Law Div. 1957), so that the court, in a most judicious businesslike manner (see, e. g., Rothman v. Silber, 90 N. J. Super. 22 (App. Div. 1966); New Jersey Highway Authority v. Currie, 35 N. J. Super. 525 (App. Div. 1955), can, if warranted, expeditiously grant the relief sought. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67 (1954).

The record here is sufficient to support the motion. Both the affidavits offered, particularly that of respondent council’s expert and the excerpts from the depositions of its other experts, and the exhibits submitted illuminate the methodology employed by the respondent. The sum of this record is quite clear; the respondent intentionally added a category of land description to the descriptions required by statute.

The posture of this case is not analogous to the record facing the court in Jackson v. Muhlenberg Hospital, 53 N. J. 138, 139 (1969). There the coiirt expressed concern over granting summary judgment .on an inadequate record where such a decision would involve highly complex and significant nonjudicial policy considerations. The court wisely chose not to enter the treacherous area of liability for damages resulting from blood transfusions without first knowing what the effect its decision would have on this crucial segment of medical treatment. In the present case the statutory framework has alreadj'- been implemented. All that is needed is a realistic assessment of the problem.

All of the above is even more instructive because appellants seek a partial summary judgment. The ’ court may, pursuant to R. 4:42-2, “direct the entry of final judgment upon less than all of the claims only if it determines that there is no just reason for delay.” Though there are a variety of arguments made against accepting these maps, appellants’ relief could only serve to clarify the remaining issues for trial. Such a clarification is consistent with the spirit and purpose of our judicial system, i. e., “to facilitate the granting of justice and to bring about an impartial and expeditious determination of the essential merits of the issues between the parties.” Devlin v. Surgent, supra, 18 N. J. at 153. The court is mindful of the directions provided in Judson v. Peoples Bank & Trust Co. of Westfield, supra. The court there stated that

s. s * [The] standards of decision governing the grant or denial of a summary judgment emphasize that a party opposing a motion is not to be denied a trial unless the moving party sustains the burden of showing clearly the absence of a genuine issue of material fact. At the same time, the standards are to be applied with discriminating care so as not to defeat a summary judgment if the movant is justly entitled to one.
Thus it is the movant’s burden to exclude any reasonable doubt as to the existence of any genuine issue of material fact. 6 Moore’s Federal Practice, par. 56.15(3). The phrasing of our rule, R. R. 4:58-3, slightly different from Federal Rule 56(c), underscores this in the requirement that the absence of undisputed material facts must appear “palpably.” All inferences of doubt are drawn against the movant in favor of the opponent of the motion. The papers supporting the motion are closely scrutinized and the opposing papers indulgently treated. Templeton v. Borough of Glen Rock, 11 N. J. Super. 1, 4 (App. Div. 1950). And it is not to be concluded that palpably no genuine issue as to any material fact exists solely because the evidence opposing the claimed fact strikes the judge as being incredible. Arnstein v. Porter, 154 F. 2d 464, 469 (C. C. A. 2 1946). Issues of credibility are ordinarily for the trier of fact, and the judge does not function as a trier of fact in determining a motion for summary judgment. Where the judge questions the inherent credibility of the matter offered in opposition there are other alternatives to the rejection of the matter and the grant of the motion. Under R. R. 4:58-5 “leave to proceed may be given unconditionally, or upon such terms as to giving security, or time or mode of trial, or otherwise, as may be deemed just.” [at 74-75 of 17 N. J.]

These directions are now embodied in R. 4:46-1 et seq.

The court has carefully examined the submitted affidavits, depositions and exhibits (see R. 4:46-2). I find that there is no genuine issue of material fact. Eather, it becomes the duty of the court to determine if under the. statute the appellant’s motion should be granted as a matter of law.

The court has already had one oportunity to examine this statute when it came before the court as part of a larger legislative scheme, the Hackensack Meadowlands Reclamation and Development Act, L. 1968, c. 404, in Meadowlands Reg. Dev. Agency v. State, 112 N. J. Super. 89 (Ch. Div. 1970); aff'd 63 N. J. 35 (1973). In their affirmance the Supreme Court noted that N. J. S. A. 13:1B-13.1 et seq. “establishes a procedure for the resolution of title problems in meadow-lands properties throughout the State.” 63 N. J. at 39.

In establishing these procedures the legislative language is explicit: the State must clearly indicate its holdings. The word “clearly” is the crucial word in the statute. It commonly means in a clear manner. Webster’s Dictionary (3 ed. 1972). Webster defines “clear” as “easily understood, without obscurity or ambiguity.” Its legal definition is the same: “visible, unmistakable, in words of no uncertain meaning.” Blade’s Law Dictionary (3 ed. 1971). Thus, when “clearly” acts as a modifier, it is an adverb. Here its purpose is to sharpen an ambiguous term. Though “indicating” could mean many things, when modified by “clearly,” it must mean an unambiguous delineation.

This type of construction is mandated by the language of N. J. S. A. 1:1-1 which, in setting forth the general rules of construction, require that

* * *' words and phrases should be read and construed with their context, and shall unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language * * *.

Placing both the common meaning of the phrase “clearly indicating” in the context of the statute, I find that the legislative intent was to remedy the perplexing problem of tideland ownership. See also, N. J. S. A. 13:17 — 1 (1968).

I find that the statute is remedial. See 2 Sutherland, Statutory Construction (3 ed. 1943), § 3302. Its clear purpose was to establish the procedure suggested in O’Neill.

It would fly'in the face of both experience and reason to conclude from the legislative history, the history of tidelands in this State, O’Neill and the persuasive arguments of appellants that this statute creates the third category of “hatched-marked” areas.

Respondent argues that “hatched” is really a term of state ownership. However, this statement assumes the issue. The ultimate resolution of ownership is to he resolved in quiet title actions. All the statute requires is notice • — ■ clear, unambiguous notice — to the landowners of this State that they do or do not have title free from the State’s claims. The use of the hatched-marked areas transforms the legislative intent of unequivocal notice to an ambiguity which is both regressive and unfair.

Moreover, even if one assumes that those “hatched” areas can be more specifically delineated by a notice of motion to respondent, this does not aid those landowners whose titles are slandered by the “hatched” legend but who are not now in litigation. Rather than force those landowners to institute the appropriate proceedings, the better result would be to make respondent designate on all the “hatched” areas. Thus, all landowners would be “free,” within the normal legal requirement of title conveyance to sell, lease or otherwise dispose of their land — without any additional time or expense.

Finally, respondent attempts to show that the result appellant seeks would be an unconstitutional application of the statute. Respondent cites the legislative history, which at best is ambiguous, and certain veto messages of Governor (now Chief Justice) Hughes. In these messages the then Governor quite correctly recognized that the statutes proposed could divest the State of its interest, a result prohibited by the common law. See Henderson v. Atlantic City, supra; In re Camden, supra. However, the statute, N. J. S. A. 13:1B-13.1 et seq., does not divest the State of its interest. It merely requires the State to define its interest in unequivocal terms. The statute is a rational solution to the perplexing problem of the lands administration.

I therefore find as a matter of law that N. J. S. A. 13:1B-13.7 et seq. is a remedial statute. In particular, N. J. S. A. 13:1B-13.4 requires only two classes of designation, not three. Respondent is ordered to prepare and publish a new overlay which clearly indicates the State’s riparian claim for each map of the areas heretofore designated as ‘^hatched.” These new overlays are required within 120 days of the date of this order. Much of what has been said on the question of the “hatched” areas applies to appellants’ contention on riparian grants. At present the maps do not reflect any grants of riparian lands by the State, unless one draws the negative inference from the “hatched” or riparian legends that respondent council does not think there are any valid riparian grants in these areas. See N. J. S. A. 12:3-1 et seq.

I therefore order respondent to prepare and publish an overlay for each map depicting which riparian grants the State recognizes as valid. Despondent has 120 days from the date of order to prepare those overlays.

      Other appellants raise a variety of well pleaded arguments. They contend that the published maps are not maps but photographs and as such do not meet the statutory requirement to publish maps (see N. J. S. A. 13:1B-13.4 (1968)) ; that the use of the “hatched areas” legend deprives the property owners of their property, in violation of both the procedural requirements and substantive commands of the due process clause of the Fourteenth Amendment; that the use of the hatched areas legend in only certain of the map quadrangles represents an arbitrary, capricious classification of that property which violates the Equal Protection Clause of the Fourteenth Amendment. While these arguments may have some merit at this particular posture of this case, it is, for the reasons expressed infra, not necessary for the court to reach them.

      It was so-named because the white area indicated that the lands were upland; the grey area indicated the State claimed that lands as riparian.

      At present various state agencies and authorities have condemned substantial acres of the Hackensack Meadowlands. The “hatched” legend appears on some of this acreage.
      In an attempt to allow the upland owner to withdraw all the upland money deposited by the condemning authority, the court, after application of the upland owner (see N. J. S. A. 20:3-23) has ordered the State to clearly designate its riparian claim in the “hatched” areas.
      This has allowed the upland owner to withdraw the upland deposit before the condemnation action is completed. Thus, any financial hardship created by the taking may be mitigated by the early withdrawal of condemnation funds. Unfortunately, the ultimate resolution of title does not obtain by this process because the State, in response to a court order to designate, expresses its claim in terms of a percentage of gross acreage but with the expressed inability to describe that percentage by metes and bounds.

      Both of tlie veto messages respondent relies on (Veto Message, Assembly Bill 44, January 12, 1965; Veto Message Assembly Bill 605, December 13, 1965) deal with the Legislature’s attempt to change the administration of riparian grants by removing most of the checks the Governor or other interested state officials might exercise if they were part of the system. Quite correctly both bills were characterized by the Governor as complete divestive statutes which eliminated proper supervision. Moreover, the Governor thought one bill was premature (Veto Message, Assmbly Bill 44, at 5 — 6) since the commission to study the problem had yet to report by the time of the veto message; and by the time of the second veto message (Assembly Bill 605), the Legislature’s own commission stated unequivocally that the bill (605) was unconstitutional.
      Finally, O’Neill, supra, had not yet been decided. Its wide-sweeping effect on the tidelands problem might have mooted the legislative attempts.

      ln marking its claim respondent should consider the effect of Bonelli Cattle Company v. Arizona, 414 U. S. 313, 94 S. Ct. 517, 38 L. Ed. 2d 526 (1973), as it may apply to the State riparian claim.


author: Di Buono, A. J. S. C.

text:
    SUMMIT POLICEMEN’S BENEVOLENT ASSOCIATION LOCAL 55, ET AL., PLAINTIFFS, v. STATE OF NEW JERSEY, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    February 14, 1975.

      Mr. John Anthony Lombardi, attorney for plaintiffs.

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for defendants (Mr. George Ciszak, Deputy Attorney General, of counsel).
   Di Buono, A. J. S. C.

For the past 14 years the P.B.A. of the City of Summit (PBA) has solicited funds for its annual dance program by mail under the apparent authority of a Summit municipal ordinance designated as Article VIII (“Conduct and Deportment”), which provides in part as follows:

* * * The sale of tickets for entertainment, etc., by personal solicitation is hereby expressly prohibited. Solicitation may be by letter or by printed circular only.

On December 13, 1974 the Attorney General issued Formal Opinion No. 16-1974 in an attempt to clarify N. J. S. A. 2A:170-20. The position he took is that every form of solicitation is prohibited except personal solicitations between bona fide members of any law enforcement agency of this State and potential contributors. The Attorney General further concluded that the use of the word “personal” limited all permissible solicitations to face-to-face encounters; consequently, telephone, mail, or any other non-face-to-faee solicitation techniques would violate N. J. S. A. 2A:170-20.

N. J. S. A. 2A:170-20 reads in pertinent part:

It shall be unlawful for any person to solicit funds or a contribution of any kind, by mail, telephone or in person, or by any means whatsoever, whether in payment for tickets, admission, book, tokens, advertising, honorary or other membership, for any organization or association of policemen, or sheriffs * * * except that bona fide active or retired members of any duly organized law enforcement agency of this State or of any municipality or county thereof, who are bona fide active members of any such organization or association may personally solicit such funds or contributions * * * [Italics supplied]

The Summit ordinance and the statute in question, particularly in light of the Attorney General’s interpretation, appear to be conflicting. The PBA, because of its desire to solicit by mail and the obvious insecurity attendant to such conduct, has filed a complaint in the Superior Court, Law Division, Union County, seeking an interpretation of N. J. S. A. 2A:170-20, pursuant to N. J. S. A. 2A:16-51 and R. 4:46-1.

The PBA contends that the purpose and intent of N. J. 8. A. 2A:170-20 is to minimize and prevent any undue influence being placed upon the average citizen by law enforcement officers in soliciting for its affairs. If this is true, it argues, the Legislature could not have intended the word “personally” in the statute to mean face-to-face, but must have meant that the law enforcement agency involved could not delegate or assign the right of solicitation to either an agency or an individual appearing on its behalf. However, a member of the organization could still “personally” solicit through use of the mails. The PBA, in effect, asserts that the statute and the ordinance are not inconsistent.

The occasion and necessity of the law, the mischief felt and the remedy in view are the factors to be considered by the court in the exercise of the interpretative function. State v. Spindel, 24 N. J. 395, 402 (1957).

Part of the mischief which formed the basis for the enactment of N. J. S. A. 2A:170-20, as it now stands, is contained in the Second Report of the New Jersey Law ’Enforcement Council, entitled “Law Enforcement and Solicitations,” submitted to the Governor on March 22, 1954.

At pages 13 and 14 the report relates a situation in which at least five professional solicitors were hired to prepare lists of businessmen from whom to solicit funds and contributions for the Superior Police Officers Association of New Jersey. The solicitors would telephone people on the prepared lists, and would either pose as police officers or state they were telephoning for police officers. Of course, none of the solicitors was a member of any law enforcement organization.

It must have been the belief of the Legislature that the mischief detailed in the cited report could be effectuated by use of the mails as well as by telephone. In enacting N. J. S. A. 2A:170-20 the Legislature used language clearly prohibiting solicitation by mail or telephone and indicated an exception that police were permitted to solicit personally. If the Legislature intended to curtail such abuses, and this court believes it did, then to construe the statute to mean that a member of a police association could “personally” solicit through the mails would produce an anomalous result. Indeed, what would the legislation accomplish? Such interpretations are, of course, to be avoided. State v. Gill, 47 N. J. 441, 444 (1966).

This court must agree with the Attorney General that the statute permits only face-to-face solicitations. Hence, the statute and the Summit ordinance permitting only solicitation by mail are in utter conflict. It is elementary that a municipality may not exert the delegated police power in terms which conflict with a state statute. State v. Ulesky, 54 N. J. 26, 29 (1969). The Summit ordinance must, therefore, fall.

While there may be merit in the argument of the PBA with respect to the coercive effect of face-to-face solicitation by police officers, since the validity of the statute itself is not being questioned such argument for statutory modification should, perhaps, be addressed to the Legislature, the appropriate body for such revision, and not to the courts. See Mountain Lakes Bd. of Ed. v. Maas, 56 N. J. Super. 245, aff’d 31 N. J. 537, cert. den. 363 U. S. 843, 80 S. Ct. 1613, 4 L. Ed. 2d 1727 (1959).

Again, for the reasons stated above it is the opinion of this court that the Summit ordinance designated as Article VIII, ■which permits solicitation by letter, is invalid since it is in direct conflict with N. J. S. A. 2A:170-20. Further, should the Summit PBA continue the sale of its dance tickets by mail, it would be in violation of N. J. S. A. 2A:170-20.


author: Pressler, J. C. C.,

text:
    A & S TRANSPORTATION CO., A NEW JERSEY CORPORATION, ET AL., PLAINTIFFS, v. BERGEN COUNTY SEWER AUTHORITY, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    February 24, 1975.

      Mr. Richard Cooper and Mr. Robert Becker for plaintiffs (Messrs. McCarter & English, attorneys).

      Mr. Albert Gross and Mr. David Carmel for defendant Bergen County Sewer Authority (Messrs. Gross, Demetrakis & Sinisi, attorneys).

      Mr. Harry Melnick and Mr. Jared Stamell for defendant General Marine Transport Corp.
   Pressler, J. C. C.,

Temporarily Assigned. This opinion is filed pursuant to R. 3:5-l(b) and because of the novelty of the public bidding question involved. This action came before the court by way of plaintiffs5 verified complaint and order to show cause, seeking to invalidate the award of the Bergen County Sewer Authority of a sludge removal contract to defendant General Marine Transport Corp. On the return day of the order all counsel stipulated that there was no genuine dispute of material fact and the matter was, therefore, by stipulation treated as a motion and cross motions for summary judgment.

The operative factual background of this controversy may be simply stated.

The Bergen County Sewer Authority (Authority), an agency organized pursuant to N. J. S. A. 40:36A—1 et seq., requires as part of its utility operation the removal from its sewage treatment plant in Little Ferry of the sludge byproduct of the treatment process. The sludge, amounting to approximately one-quarter million wet tons annually, is removed by barge and deposited in the Atlantic Ocean 4)4 miles west of Ambrose Horn, a site designated and approved by the Federal Environmental Protection Agency (E.P.A.) The sludge removal is now being conducted by A & S Transportation Company pursuant to a seven-year contract with the Authority which terminates on April 5, 1975.

Some months prior to the contract termination date the Authority advertised for bids for a new sludge removal contract. In response thereto two bids were received: one from a joint venture consisting of the present contractor and Ocean Disposal, Inc., both New Jersey corporations (joint venture), and the other from General Marine Transport Corp., also a New Jersey corporation (General Marine). The contract was awarded by the Authority to General Marine and, on suit brought by the joint venture and a taxpayer, this court invalidated that award and directed that new bidding take place. No appeal was taken from that judgment by either the Authority or General Marine and consequently new bids upon a new notice to bidders and new specifications were sought. The same two bidders were again the sole bidders and the Authority, by resolution adopted on December 19, 1974, again awarded the contract to General Marine as the low bidder. Again the joint venture and a taxpayer, in this case one Bonald T. Kiley, challenged the award and again this court sustained the challenge.

The ground of the court’s invalidation on this second challenge was based upon the absence in the bid documents of a stated standard for comparing the bids which, in accordance with the specifications, contained a number of variables. The court did not make a finding that there had in fact been favoritism in the Authority’s award to General Marine, or that any improper motive governed its analysis of the bids. It held only' that in view of the number and nature of the variables contained in the specifications, the lack of a predetermined standard for comparing the bids created the opportunity for favoritism and that such an opportunity constituted a violation of the purpose and policy of the competitive bidding requirements of the Local Public Contracts Law, N. J. S. A. 40A:11-1 et seq.

The basis for the court’s conclusion is readily apparent from an analysis both of the bid specifications and the bids as received. The basic design of the bid specifications was the seeking of a three-year sludge removal contract with four annual renewals thereafter at the sole option of the Authority. Bidders were asked, therefore, to bid for each of the seven consecutive years, commencing with the year beginning April 5, 1975. The first of two basic variables was the requirement of the specifications that each bidder submit two sets of unit price bids — one consisting of a fixed unit price per wet ton of sludge for each of the seven contract years, and the second consisting of a single unit price for the entire contract period based on 1974 cost levels, which would then be adjusted annually by the actual increase or decrease in the Wholesale Price Index of Industrial Commodities (WPI) published by the United States Department of Labor. The adjustment in the unit' price bid would be made by applying the percentage difference between the WPI on July 1974 and the WPI at the start of each contract year.

'The second basic variable resulted from the fact that the E. P. A. had advised the Authority that it would, sometime in 1976, designate a new dump site in the Atlantic Ocean beyond the present dump site. The only clear indication which the Authority had from the E. P. A. as to the location of the new dump site at the time it advertised for bids was the unlikelihood of its designation further' than 75 miles 'from Ambrose Horn. This information it communicated to bidders in the specifications. The specifications thus referred to the present dump site as site “A” and to the future, but still undetermined, dump site as site “B”. Each bidder, therefore, was required, both with respect to the fixed price alternative and the WPI alternative, to bid a unit price for both dump sites for each of the seven years. Since the location of dump site “A” is known, the unit price included the transportation cost thereto. Since the location of the new site is not yet known, the unit price was required to contain two elements: the unit price per wet ton (including transportation to the present dump site) plus a per mileage per wet ton transportation cost from the present dump site to wherever the new dump site would be. In effect, then, each bidder was required to submit four bids for each of the seven years: a fixed price bid to dump site "A”; a WPI bid to dump site “A”; a fixed price bid to dump site “B”, and a WPI bid to dump site “B”, the dump site “B” bids having the additional element of the mileage transportation costs. There was, of course, also the uncertainty as to when commencement of the use of dump site “B” would be required, but the parties apparently agree that commencement in the second contract year was most probable.

To compound the complications imposed by these variables and uncertainties, it appeared when the bids were opened and compared that the joint venture had bid higher than the General Marine on the per wet ton element but lower than General Marine on the mileage cost to site “B”. Therefore, the ultimate determination of the low bidder required, in addition to the other comparison standards and for comparison purposes only, a determination of where site “B” actually was going to be located, since the further away it was, the more favorable would be the joint venture bid and the less favorable the General Marine bid. That is to say, if the annual bids were plotted on a graph, the lines would at some point intersect, depending on ■where dump site “B” was designated.

Paced with these variables and no predetermined standard for comparing the bids, the consulting engineer for the Authority, upon whose written recommendation the Authority relied in awarding the bid to General Marine, compared the WPI bids on the basis of an assumed future average annual increase in the WPI of 5% and 7J^%. He further, for comparison purposes, assumed that dump site "B” would be located 55 miles from the present dump site. The engineer’s analysis, based on these assumptions, produced the following comparisons:

1. If site “B” were 55 miles away and the WPI had an average annual increase of either 5% or 7J/2% for the entire seven-year contract period, and if dump site “A” were used for the first year of the contract and dump site “B” were used for the next six years of the contract, the joint venture WPI bid would be lower than the General Marine WPI bid both for each contract year and cumulatively.

2. If site “B” were 55 miles away and its use commenced in the second contract year, the General Marine fixed bid for each of the seven contract years and cumulatively would be lower than the joint venture fixed bid.

3. If site “B” were 55 miles away and the WPI had an average annual increase of 5% over the seven-year contract period, the joint venture WPI bid would be lower than the General Marine fixed bid.

4. If site “B” were 55 miles away and the WPI had an average annual increase of 7j/2% over the seven-year contract period, the General Marine fixed bid would be lower than the joint venture WPI bid.

The engineer’s recommendation further noted that for the years 1965 to 1972 the WPI increase averaged less than 5%, was somewhat over 5% for the period 1972 to 1973, and went up 18% from 1973 to 1974. Based on the foregoing and the engineer’s apparent belief that the WPI for the seven future years of the contract period would exceed a 5% average annual increase, he recommended acceptance of the General Marine fixed bid as the lowest bid.

At the hearing the parties stipulated to the following additional comparative results:

1. For the entire contract period, both annually and cumulatively, the joint venture WPI bid would be lower than the General Marine fixed bid if the WPI increase did not average more than 6% annually and if site “B” were 55 miles away.

2. If site “B” were 75 miles away, i. e., the limit indicated by the E. P. A., and commencement of the use of site “B” were in the second year, the General Marine fixed price bid would be lower per year for the first three years but the joint venture fixed price bid would be lower for each of the next four years and cumulatively for the seven-year period.

There are numerous other permutations and combinations which also result in either one or the other being the low bidder, depending on how the variables are selected and compared.

As indicated, plaintiffs5 basic attack oil the bidding process was failure of the bid documents to state the standards upon which the bids would be compared. They take the position that the specifications should have stated both an assumed WPI increase and an assumed mileage to site “B55 which would be used for the purpose of comparing bids, and that selection of comparison standards after the opening of the bids was improper. In making this argument, however, they concede too much. While an announced predetermination of the location of dump site “B55 for comparison purposes might well have been both required and necessary in order to compare the bids, this court does not believe that a predetermination of an annual increase in the WPI for comparison purposes could have corrected what it conceives of as the basic and fatal flaw in the specifications, viz., the requirement of submission of both a fixed bid and a WPI bid. It is evident that a fixed-price hid and a bid geared to a future statistical event are so qualitatively different as to defy comparison inter se if the salutary public purpose intended by thé flexible bid is to be maintained. This court does not, of course, intend to suggest that the flexible WPI bid or that any other bid which is required to be tied to a future statistical economic determination is not appropriate. See, e. g., generally Firestone Tire & Rubber Co. v. United States, 444 F. 2d 547, 195 Ct. Cl. 21 (Ct. Cl. 1971). Rather, such a bid may well be indicated in a fluctuating economy where a long-term contract is sought. It insures that the public will have the benefit of any decrease in market fluctuation over the term of the contract. It encourages competition in that potential bidders are relieved of a substantial economic risk and are, therefore, more likely to be induced to submit bids for a long-term period. Purthermore, such a flexible bid tends to insure the public of continued performance by the contractor, who might otherwise because of severe inflation during the contract term, find himself economically unable to meet his full contractual obligations. The essential purposes of the flexible bid and its consequence of having the future price abide the event, as it were, are therefore vitiated if the extent and direction of future economic fluctuation are preassumed, even for comparison purposes.

This is readily apparent from the facts here. Por example, if the contract were awarded to General Marine on its fixed bid, but in the next seven years the average WPI increase is less than 6% a year, the Authority will have paid General Marine more than it would have had to have paid the joint venture for performance of the contract. What the WPI increase will be, in fact, not only for the next seven years but even for the next three years, is clearly a matter beyond any reasonable prediction at this time. The fact that it has increased dramatically in the past year is not a reliable basis for predicting its future course. That being so, the Authority could not have objectively found, as it purported to, that the General Marine fixed price bid was lower than the joint venture WPI bid. Thus, because of the inherent incomparability between these two types of bids and the self-defeating consequence of a predetermined WPI increase for comparison purposes, this court holds that it is improper to require bidders to submit both a fixed price and a flexible bid since it would never be possible to determine in advance of the actual future determination of the index which of those bids will yield the lower actual cost. Por this reason alone, therefore, the award of the contract to General Marine cannot stand.

As to the mileage variable resulting from the imminent E.P.A. designation of the new site, the Authority contends first, that 55 miles was a reasonable choice for comparison purposes and, second, that its use as the comparison standard was inferable from the provision in the specifications fixing a 55-mile distance as the basis for calculating the amount of the required bid bond. As to the first of these contentions, neither the court nor the plaintiffs quarrel with the Authority’s claim that 55 miles is, in fact, a reasonable comparison standard, representing as it apparently does, the average between the probable closest and the probable farthest point of the expected E.P.A. site designation. Its reasonableness — after the fact, however — is beside the point. The problem arises because in not determining that standard in advance of the bid opening, the Authority placed itself in the position of being thereafter able to favor either one of the two bidders. For example, it could have just as reasonably determined, after the bids were opened that the farthest limit should be used in its own protection as the comparative standard. In that case the joint venture fixed bid would have been the lower than the General Marine fixed bid for the seven-year period. As to the second of these contentions, the fixing of a standard for calculating the amount of security to accompany the bid cannot be regarded as the designation of a predetermined bid-comparison standard, particularly in view of section 1.11 of the contract specifications which specifically provides that all possible sites up to 75 nautical miles from Ambrose Horn must he considered as dump site “B”.

It is clear that the public interest requires strict adherence to those requirements of the public contract law which are intended to preclude not only the actuality of, but also the potential for, improvidence, corruption, extravagance and favoritism in the awarding of contracts for public work. See generally, Hillside Tp. v. Sternin, 25 N. J. 317, 322 (1957); Wm. A. Carey Co. v. Fair Lawn, 37 N. J. Super. 159 (App. Div. 1955). The necessity for a predetermined and reasonable basis for comparing bids is evident if the potential for favoritism in the award is to be avoided. As pertinently observed in James Petrozello Co., Inc. v. Chatham Tp., 75 N. J. Super. 173 (App. Div. 1962):

Where there is no standard or norm to guide or control the exercise of the municipal power, the possibility of partiality or. even fraud is present. Where such possibility is present, that is enough to set aside the municipal action. There is no need to prove actual fraud or favoritism or collusion. The absence of proof of corrupt motives does not preclude the. judicial remedy. The municipal action will be vacated where it amounts to a fraud on the bidding statute, even in the presence of good faith, [at 1811

It is clear that a standard or norm to guide or control the exercise of public power which is selected after, not before, the bids are opened and which is, moreover, selected from among a number of possible and equally reasonable alternatives, is as fatal to the bidding process as is the failure to apply any standard or norm at all. Thus, this court holds that where, because of circumstances inherent in the particular public work, variables must be included in the structuring of a request for bids, the common basis or standard to be used to compare the bids must be stated in the specifications themselves and may not be determined, no matter how reasonable they then are, after the bids have been opened.

In view of the foregoing, the court has no alternative but to invalidate the award to General Marine and to require that new'bids be solicited pursuant to specifications Which accord with the determinations herein made.


author: Dreier, J. D. C.,

text:
    FLORENCE L. TURNER, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF THOMAS W. TURNER, PLAINTIFF, v. INTERNATIONAL HARVESTER COMPANY, A DELAWARE CORPORATION, AND HALL & FUHS, INC., A NEW JERSEY CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    March 7, 1975.

      Mr. Mitchell Glucksman for plaintiff.

      Mr. Harold I. Braff for defendant International Harvester Company (Messrs. Braff, Litvak, Ertag, Wortmann & Harris, attorneys).

      Mr. Frank L. Brunetti for defendant Hall & Fuhs, Inc. (Messrs. Lamb, Hutchinson, Thompson & Chappell, attorneys).
   Dreier, J. D. C.,

Temporarily Assigned. Defendant Hall & Euhs, Inc. has moved for summary judgment in this product liability case. The motion shall be granted in part and denied in part for the reasons following.

On or about December 2, 1969 plaintiff’s decedent, Thomas W. Turner, acquired a 1967 IHC tractor-truck manufactured by defendant International Harvester Company. There is an issue in the case whether the truck was purchased from defendant Hall & Fuhs, Inc., as set forth in an agreement of sale (Hall & Fuhs, Inc. as the “seller” and Turner as the “buyer”), or whether the truck was in fact purchased from Turner’s friend, one Richard W. Carman, or his corporation E. W. Carman, Inc. According to the affidavit of Carman filed in opposition to the motion the truck in question had been traded in by him on a new truck purchased from Hall & Puhs, Inc. in or about October 1969, and the used truck was delivered to Hall & Puhs, Inc’s place of business during the first week in October 1969. He further alleges that at no time was the truck delivered directly from Carman or liis company to Turner. Since this court is enjoined by R. 4:46-2 and the cases interpreting the rule to grant summary judgment only when there is no issue of a material fact, and to grant all favorable inferences to the party opposing such motion, it will be assumed for the purpose of this motion that the truck in question was purchased from Hall & Fuhs, Inc. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67 (1954).

The truck was of the type where the engine is located beneath the cab; to work on the engine the cab must be raised and propped or counter-balanced. Two years and four days after taking delivery of the truck, that is, on or about December 6, 1971, plaintiff’s decedent was working on the engine. While he was under the cab (which was in its raised position) the cab suddenly collapsed and fell upon him. He died from the ensuing injury. Plaintiff, his widow, sues on behalf of herself and their children for the death on the theories of (a) strict liability, (b) negligence and (c) breach of warranty.

The bill rendered by Hall & Puhs, Inc. to plaintiff’s decedent for the truck in question stated that the sale encompassed :

USED TRACTOR SOLD AS IS
One (1) used 1967 IHO model C04000D Serial G226064

The price was $14,000 plus sales tax.

The summary judgment motion of defendant Hall & Puhs, Inc. is based upon two theories. Pirst, that the designation of the sale “as is” in the sale of a used vehicle precludes any claim alleging a defective product; second, the relationship between the parties was that of financing agent and purchaser from a third party and not that of seller and buyer. With respect to the second basis, as noted above this court has determined that the contract and supporting documents (installment sale and security agreement, bill, etc.) signed or issued by Hall & Euhs, Inc. designate it as the “seller.” A sufficient issue of fact is thus raised as to the status of the parties that summary judgment would be improper here on that basis. Therefore, the real questions on this motion are the effect of the sale of used goods and of the words “as is” upon the three causes of action alleged by plaintiff.

I

We will first consider the third claim, that of breach of warranty, for it is the easiest to dispose of. The Uniform Commercial Code in N. J. S. A. 12A:2-316 covers the subject of exclusion or modification of warranties. One subsection reads as follows:

(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be ^conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”

The next subsection, however, covers the situation now before the court and states:

(3) Notwithstanding subsection (2)
(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and * * *

Circumstances here did not indicate other than the normal statutory exclusion of warranties. The New Jersey Study Comment number 3, citing prior New Jersey case law, shows that this section merely restated the then existing law of the State as of the date the Code was enacted. It therefore appears that plaintiff’s claim for breach of warranty must be dismissed, because the sale was for used goods explicitly noted “as is.”

II

Several recent cases have discussed the necessity for proving a specific defect which caused an injury in order to substantiate a claim in strict liability for tort in product liability actions. See Moraca v. Ford Motor Company, 132 N. J. Super. 117 (App. Div. 1974), aff’d 66 N. J. 454 (1975). That issue, which will no doubt be central to the trial of this matter, is not a proper subject of this motion since discovery has not yet been concluded. The court will assume for the purpose of this motion either that a specified defect existed which caused the cab to fall, or sufficient circumstantial proofs could be shown to substantiate the existence of some defect. There is no question that such defect, if it existed, manifested itself over two years after the truck had been purchased by plaintiff’s decedent. Whether this delay exceeded the time within which it was reasonable to expect the cab catch or counterbalance not to be defective is a jury question and will not be decided here. Moraca, at p. 460. If such is shown at trial the tests of liability set forth in Momea as to remoteness of time would thus be satisfied. See also, Scanlon v. General Motors, 65 N. J. 582 (1974). There also is little question but that a dealer in used equipment is strictly liable for defective work repairs or replacement that such dealer has performed on the vehicle before the sale. Realmuto v. Straub Motors, 65 N. J. 336, 344-345 (1974). What is before this court, however, is the very question left open in Realmuto, where the Supreme Court stated:

* * * The strict liability in tort rule is of course, grounded in reasons of public policy. Restatement, Torts (2d) § 402A, comment c. It may well he that these policy reasons are not fully applicable to the seller of a used chattel for example, the buyer cannot be said to expect the same quality and durability in a used car as in a new one and so the used car dealer should not be held to the same strict liability as the seller of new automobiles. We need not reach that broad question here, for we are of the view that a used car dealer ought to be subject to strict liability in tort with respect to a mishap resulting from any defective work, repairs or replacements he has done or made on the vehicle before the sale and we so hold. That in essence is the instant case, at least as it was set forth in the pleadings as a “defect” ease, [at 344-345; emphasis supplied]

The germinal statement of the rule of strict liability in tort is found in the Restatement, Torts 2d, §402A, although the New Jersey courts have expanded the rule beyond these limits;

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold rr *

As the Supreme Court in Realmuto noted, quoting from 2 Frumer and Friedman, Products Liability, §16A[4] [b] [iv], at 3-282 to 3-283, no case in New Jersey has yet applied the rules of strict liability in tort to the seller of a used product. Both the Supreme Court and the authors of the text note that the strict liability rules have been applied in Cintrone v. Hertz Truck Leasing & Rental Service, 45 N. J. 434, 451-453 (1965), where a defect in a leased motor vehicle was held to be a sufficient basis for applying the rule of strict liability in tort. In New Jersey it appears that the Gintrone case and the recent Realmuto case are the closest that our courts have come to applying this rule to a seller of a used chattel.

Nationally, the eases are collected in Annotation, “Products Liability — Used Products,” 53 A. L. R. 3d 337 (1973).

* * [Clourts may consider as a liability-limiting factor tile requirement that tlie used product be unreasonably dangerous, by applying the test of whether an ordinary purchaser of the particular product, considering its age and condition, would regard it as unreasonably dangerous when sold. [Comment at 340]

In Pennsylvania, for example, plaintiff buyer purchased a ten-year-old car from a dealer. Within 15 minutes after leaving the dealer’s place of business in the car, brake failure caused an accident in which plaintiff: sustained injury. As plaintiff had not altered the condition of the car since taking delivery, a good cause of action was found under §402A of the Restatement. Lewis v. E. F. Moore, Inc., 87 Montg. Cty. L. R. 379 (Pa. 1967). A similar cause of action went to the jury in Grady v. Kenny Ross Chevrolet Co., 332 F. Supp. 689 (D. C. Pa. 1971), applying Pennsylvania law where plaintiff’s decedent had died of carbon monoxide poisoning allegedly resulting from a defective tail pipe assembly in a used car purchased from defendant dealer. But see Cornelius v. Bay Motors, Inc., 258 Or. 564, 484 P. 2d 299 (Sup. Ct. 1971), wherein the court expressly reserved ruling on whether strict liability under § 402A applied to sellers of used cars, while upholding a jury verdict for defendant dealer who had sold a seven-year-old car whose brakes failed on the day of purchase. The concurring opinion in that case suggests that a used-car dealer should not be regarded as making any implied representations since that is not the expectation or understanding of either the buyer or seller in such a transaction. See also, Ikerd v. Lapworth, 435 F. 2d 197 (7 Cir. 1970), in which strict tort liability was held inapplicable to a new ear dealer who sold a car to a used-car dealer, who thereafter sold it to the injured plaintiff, because the first dealer had sold the car along with several others, all “as is,” and was found to have relied upon the second dealer to inspect and discover any defects before resale to third parties. In dictum the court noted :

Plaintiffs cite numerous cases in which automobile manufacturers and dealers have been held liable for injuries resulting from the sale of an automobile in a defective condition to a consumer-customer. They conclude from these cases that the seller of a used-car is negligent, or accountable under the doctrine of strict product liability if he sells the used ear in a defective condition to one who he should know will use or resell it without first remedying the defect * * *. [at 201]

This court must therefore come to grips with the underlying policy considerations and determine what should be the rule when applied to the case at bar. Three questions appear relevant: (1) In a sale of used goods, should the seller be held strictly liable in tort for defects, unknown at time of sale, that affect the safety (as opposed to economic value of the bargain) of ordinary buyers (and third persons) ? Expressed in terms of the Restatement, are safety defects, by their very nature, unreasonably dangerous to ordinary consumers? (3) If so, should an “as is” disclaimer effectively insulate the seller of used goods from such liability to buyers (and third persons) by transferring the burden-of all risks to the buyer? (3) If not, should such a disclaimer effectively insulate the seller of used goods from strict liability where the particular buyer was knowledgeable and in as good a position as the seller (or better) to guard against all risks of the product? That is, as to this buyer, was the product unreasonably dangerous?

We will first consider whether this is the type of case for the application of strict liability in tort. An economic analysis of enterprise liability, which includes direct as well as indirect costs, would charge those in the business of selling a defective product with responsibility for all harms, physical and economic, which result from its use. Baxter, “The SST: Prom Watts to Harlem in Two Hours,” 21 Stanf. L. Rev. 1 (1968); Coase, “The Problem of Social Cost,” 3 J. Law & Econ. 1 (1960). To a considerable extent — with respect to new goods — the manufacturer bases the cost of his product on his expenses, which include damages caused by the product and insurance to cover those damages. This cost is spread among all the customers for that product; it reflects the justifiable expectations of customers regarding safety, quality and durability of new goods. Sellers of used goods may similarly distribute their costs of doing business which, in turn, will reflect what is considered by the public to be justifiable expectations regarding safety, quality and durability of used goods.

As suggested by the court in Realmuto and the A.L.R. annotations, realistic expectations of quality and durability will be lower for used goods, commensurate with their age, appearance and price.

However, safety of the general public demands that when a used motor vehicle, for example, is sold for use as a serviceable motor vehicle (and not as junk parts), absent special circumstances, the seller be responsible for safety defects whether known or unknown at time of sale, present while the machine was under his control. Otherwise, the buyer and the general public are bearing the enterprise liability stemming from introduction of the dangerously defective used vehicle onto the public highways. Public policy demands that the buyer receive a used chattel safe for the purpose intended (where no substantial change will ocour prior to reaching the buyer or foreseeable consumer). See discussion in 2 Frumer & Friedman, Products Liability, supra:

* * * It is conceded that a buyer of a used car, for example, cannot expect it to last as long as a new one. But it can be argued that he is entitled to expect that there is no latent defect in the brakes or other parts of the car. [§ 19.03[5] at 5-129]

Justifiable expectations for safety run to ordinary parts expected to receive regular maintenance and replacement, e. g., brake shoes and linings, steering linkage, exhaust system, etc. On the other hand, surface dents, rust or metal fatigue resulting from mere old age would be defects the risk of which a buyer reasonably may be expected to absorb without undue threat to the public at large.

It is also significant in this case that the safety defect seemingly had nothing particular to do with the truck qua motor vehicle. Unlike virtually all of the cases dealing with the topic of dealer liability for used motor vehicles, this defect did not involve the ordinary use of the truck insofar as its operation on the highway was concerned. The “defect,” if any, in the cab latch was collateral; it could just as well have been a defective latch on an overhead garage door or a piece of stationary machinery. Cf. Rodrigues v. Elizabethtown Gas Co., 104 N. J. Super. 436, 445-446 (App. Div. 1969). It is clear, therefore, that this is an “ordinary” product liability problem, not affected by theories of motor vehicles as “dangerous instrumentalities,” and special only in that it deals with reasonable expectations of buyers of used goods.

That there is room for further definition of the “unreasonably dangerous” standard of the Restatement rule, and of its application to used products in our society (which increasingly sets a premium on recyclability of resources) is demonstrated by the A. L. R. annotation comment quoted earlier (53 A. L. R. 3d at 340), as well as by further discussions in recent New Jersey and out-of-state products liability opinions. This very language, however, has been questioned by the New Jersey Supreme Court in its recently rendered opinion in Brody v. Overlook Hospital, 66 N. J. 448 (1975). There, the Appellate Division had held that defendants were under an obligation only to use due care and “were not accountable under a theory of strict liability in tort” for supplying blood infected with viral hepatitis. The Appellate Division determined that Restatement § 402A governed the case, but that it had not been shown that the product (blood) was “unreasonably dangerous.” Brody v. Overlook Hospital, 127 N. J. Super. 331, 339 (1974), aff’d 66 N. J. 448 (1975). The Supreme Court (at 451), however, added the following language to its affirmance:

* * * but for present purposes we need not consider whether its requirement of a showing that the product was “unreasonably dangerous” is to be deemed generally applicable in other contexts. Cf. Glass v. Ford Motor Co., 123 N. J. Super. 599 (Law Div. 1973); Cronin v. J.B.E. Olson Corporation, 8 Cal. 3d 121, 104 Cal. Rptr. 433, 501 P. 2d 1153 (1972); Note, 5 Seton Hall L. Rev. 152 (1973).

The cited Glass case had held that a requirement that the product be shown “unreasonably dangerous” had no role in the common law concept of strict liability in tort. Moreover, in quoting from the Gronin case (cited by the Supreme Court), the court in Glass found that an “unreasonably dangerous” qualification burdens “the injured plaintiff with proof of an element which rings of negligence,” and this would influence a jury “to employ the 'reasonable man’ standard and arrive at a conclusion that an 'ordinary consumer’ either would, or would not have expected the defective condition of the particular product,” (emphasis in original). This court agrees that if such were the sole function of the “unreasonably dangerous” qualification, it serves no useful purpose. But, there are different and necessary functions for this qualification prerequisite for a finding of strict liability in tort for sale of used products.

The Restatement rule without the “unreasonably dangerous” qualification has been criticized as creating a trial situation “too imprecise for judicial application.” 5 Seton Hall L. Rev. 152, 166 (1973). Even the Gronin court noted that the “unreasonably dangerous” standard appears in two places in the Restatement rule, first where it is quoted above, and again in its definition of what is a “defective condition.” 104 Cal. Rptr. at 441, 501 P. 2d at 1161. The Restatement, comment (g), states that such is a condition “not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.” It is only where there is an unreasonable danger of personal injury in the defective product that recovery can be founded on the rule of strict liability in tort, and this should be especially so when dealing with used goods. Only by this word “unreasonable” is the court or jury permitted an inquiry into the nature of the product, its age and condition, and thus able to set a standard against which the defect can he measured.

Should a simple “as is” disclaimer effectively insulate the dealer from a claim of strict liability in tort following an accident resulting from a safety defect present in the vehicle when it was in the control of the dealer? When selling to the ordinary consumer, the answer must be Uo. Bargaining power and ability to protect one’s interests are generally disproportionate as between the buyer of used goods and one in the business of selling them. While freedom to contract need not be impaired if a buyer wishes to contract away his right to protection, an unequivocal waiver of safety defects must be shown (see the discussion with respect to waiver of tort claims under section III of this opinion, infra). Otherwise, when the additional indirect costs will be borne by the public through insurance costs, a decent regard for the public safety requires the thumb of the State to be on the buyer’s side of the scale. Cf. Henningsen v. Bloomfield Motors, 32 N. J. 358 (1960).

The third question also raises a jury issue. It may be found that the buyer in this case was (or represented himself to be) knowledgeable about this product because of his background or experience. This will not necessarily result from the transaction being denominated “commercial” — see Monsanto Co. v. Alden Leeds, 130 N. J. Super. 245 (Law Div. 1974). Also, the effect upon plaintiff and her family, and upon injured persons in general, is no less because the injury occurred in a nonconsumer atmosphere. In fact, the pleadings and affidavits submitted here suggest that plaintiff’s decedent may have been personally familiar with the particular truck he bought. The goods should be viewed, not in the abstract, but as they affect a particular seller, purchaser or user, and the circumstances of the sale.

Use of the “unreasonably dangerous” standard, whether viewed from the general statement of the rule or the definition of a dangerous condition, permits a court to look both at the sophistication of the injured purchaser and the reasonable expectations of the seller to determine whether the strict liability rule should be applied.

Looking at the used automobile situation, one can readily envision an antique car buff or “hot rod” enthusiast purchasing a car which is defective in many respects and where the relationship between the buyer and seller is such that both reasonably expect that all aspects of the automobile will be separately appraised and all defects corrected by the purchaser. In this connection see Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 62, 27 Cal. Rptr. 697, 700, 377 P. 2d 897, 900, 700 (Sup. Ct. 1963), in which Justice Tray-nor stated that a manufacturer “is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.”

Even with respect to the sale of a truck, the actual situation of the parties to the contract may present a question. A used truck purchased by a large trucking company known by both buyer and seller to have extensive repair facilities might be expected to undergo great scrutiny only by the buyer, while a similar truck purchased by a merchant to make his retail deliveries might not reasonably be expected to be so examined unless special circumstances exist. Thus, in some circumstances the relationship of the parties and apparent sophistication of the purchaser might indicate that the defect did not present an unreasonable danger to the particular purchaser as user of the product. In others the purchaser’s conduct in not discovering or correcting a defect which a reasonable person of his background and experience should have corrected might warrant a finding that the defect was not unreasonably dangerous. (These latter aspects of the “unreasonable” danger qualification, however, should be treated within the area of contributory negligence, which in the appropriate case may be a defense to a claim of strict liability. Cintrone v. Hertz Truck Leasing & Rental Service, supra, 45 N. J. at 457-459; Bexiga v. Havir Mfg. Corp., 60 N. J. 403 (1973); Restatement, Torts 3d, § 403A, Comment (n) at 356.) Thus, in these unusual cases the “unreasonably dangerous” qualification has a very practical use in stating the rule for strict liability in tort. With this “unreasonably dangerous” element intact, the Restatement rule is as applicable to the sale of a used product as to the sale of a new product. The failure of the Supreme Court to use the “unreasonably dangerous” standard in its statements of the rule of strict liability in tort (e. g., Scanlon v. General Motors Corp., 65 N. J. 582, 590 (1974)), should not be taken as a negation of its usefulness in the appropriate case.

On the record before this court, defendant dealer has not shown that special circumstances of this sale constituted either an express or implied waiver of this buyer’s reasonable expectations regarding the absence of safety defects. Thus, summary judgment must be denied on the strict liability claim.

Ill

With respect to the claim for negligence, the court in Realmuto v. Straub Motors, supra, set forth the standards to be applied:

There is no doubt of the applicability of the negligence theory; a used car dealer has the duty of reasonable inspection, testing and warning of any defects, as well as that of reasonable care with respect to any repairs or replacements he may make to the vehicle. [65 N. J. at 344, n. 3; emphasis supplied]

An annotation, 6 A. L. R. 3d 13, § 10 at 43 — 47, deals with this matter also, commenting that;

* * * [a] seller of a used or secondhand product — especially, but not exclusively, a motor vehicle — has often been held to have a duty to test or inspect it, and to be liable for injuries resulting from the omission of proper tests or inspections.

A current model, low-mileage automobile purchased by a consumer from a dealer in such automobiles is subject to nearly ail of the expectations on the part of the public as is a new motor vehicle purchased under similar circumstances. As the vehicle’s age increases, however, such expectations will tend to decrease. So, too, with other products. This is true especially where the sale of motor vehicles is concerned, considering the tremendous volume of sales evidenced by even the most casual perusal of the used car sections of a newspaper. It has been informally estimated that for every new car purchased in this country, five are traded used. “King of the Iron Merchants,” New York Times Magazine, March 2, 1975, p. 12 at 33. To preclude recovery merely because of the used nature of a product would, therefore, be to defeat the interests of the public. A dealer in used trucks is subject to similar expectations. Of course, there are additional elements that must be proven in the negligence claim that need not be proven under the strict liability in tort cause of action described above, but a cause of action has been stated in the complaint.

The “as is” notation, however, adds an additional element to the negligence aspects of this case. In Monsanto Co. v. Alden Leeds, supra, 130 N. J. Super. at 254, this court held that disclaimers of warranties, if not unconscionable, may be enforced in commercial settings. Here, there is no allegation of unconscionability. In section I of this opinion the warranty disclaimer has been held to have its statutory effect. In section II, it was noted that an unequivocal waiver was necessary to defeat a claim of strict liability in tort. But, does a disclaimer of statutory warranties also act as a waiver of both tort claims in strict liability and negligence? Without any language of waiver, and without any evidence before this court that the “as is” language was meant to serve as an intentional relinquishment of a known right, such effect will not be implied. Cf. Gindy Mfg. Corp. v. Cardinale Trucking Corp., 111 N. J. Super. 383 (Law Div. 1970), where the clause was found not to have even its statutory effect of removing warranties under the peculiar facts of that case.

This determination, however, does not fully answer the question of the effect of the “as is” statement, for it will have a very real evidentiary effect at the trial. What conditions did the “as is” designation disclaim? A jury must eventually determine what was reasonable with respect to any proven danger present in a product sold “as is.” Did the parties understand that the “as is” designation applied only to body damage, gas mileage, worn tires or other such problems that could be discerned by a reasonable inspection or test drive? Was it limited to performance rather than safety defects? Was the designation intended to cover all defects? See, for example, Chamberlain v. Bob Matick Chevrolet, Inc., 4 Conn. Cir. 685, 239 A. 2d 42 (Cir. Ct. 1967); Varkell v. United States, 334 F. 2d 653, 167 Ct. Cl. 522 (Ct. Cl. 1964); Mulder v. Casho, 61 Cal. 2d 633, 39 Cal. Rptr. 705, 394 P. 2d 545 (Sup. Ct. 1964); Hembree v. Southard, 339 P. 2d 771 (Okl. Sup. Ct. 1959); Armour v. Haskins, 275 S. W. 2d 580 (Ky. Ct. App. 1955); Byrd v. Harry Sommers, Inc., 87 Ga. App. 663, 75 S. E. 2d 287 (Ct. App. 1953); Gaidry Motors, Inc. v. Brannon, 268 S. W. 2d 627 (Ky. Ct. App. 1953); and cf. Benton v. Sloss, 38 Cal. 2d 399, 240 P. 2d 575 (Sup. Ct. 1952), referring to California statutory requirements that a used car dealer inspect brakes before resale.

Defendant Hall & Fuhs, Inc. alleges that the cause of the accident was a design defect, and thus is the responsibility of the manufacturer. Whether this is so and whether a reasonable inspection, testing or warning of the defect had or had not been accomplished is not now before the court, but as a matter of law, from the affidavits and supporting documents, this court cannot say that the defendant dealer is free from negligence.

Plaintiff’s attorney should present an order denying summary judgment on the issues of strict liability in tort and negligence, and granting summary judgment on the issue of breach of warranty, pursuant to R. 4:42-1.