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

text:
    EDWARD H. HILLMAN, PETITIONER-APPELLANT, v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 16, 1970
    Decided April 6, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Owen B. Pearce argued the cause for appellant (Messrs. Pearce & Pearce, attorneys).

      Mr. Philip I. Kagan, Deputy Attorney General, argued the cause for respondent (Mr. George P. Kugler, Jr., Attorney General, attorney; Mr. Stephen STeillman, Assistant Attorney General, of counsel; Miss Rachel Leff, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Petitioner Hillman appealed, pursuant to R. 2:2-3 (a) (2), formerly R. R. 4:88-8(a), from a final decision of the Board of Trustees of the Public Employees’ Retirement System of New Jersey (Board) denying his application for an accidental disability pension under N. J. S. A. 43 :15A-43. We remanded the matter so that the Board might hold a hearing and determine the factual issue as to whether Hillman’s alleged disability was such that he qualified for the pension he sought.

I

Hillman was employed by the State Department of Transportation for almost 11 years as a maintenance man and was a member of the Public Employees’ Retirement System. His health was apparently good and he worked regularly On March 15, 1967 he worked from 7:3Q A.m. to 4 p.m. in the Brielle Circle Maintenance Yard, returned home, had supper, relaxed and then went to bed. At about 11 p.m. he received a telephone call from his superior telling him to report to work because of a snow emergency. Hpon arrival at the Brielle yard he was assigned to operate a front-end loader, a piece of equipment he was not accustomed to operate in that its wheels were smaller and it was difficult to maneuver. The weather was cold, snowy and windy. At about 1:30 a.m., while clearing the snow, a part of the loader dropped into a hole and the steering wheel was wrenched out of Hillman's hands. As a result of attempting to regain control of the wheel he experienced severe chest and arm pains, shortness of breath and inability to stand erect. He was taken to a hospital where he remained until discharged on March 23 with a diagnosis of “pulmonary edema, acute congestive heart failure due to arteriosclerotic heart disease.” He never returned to work thereafter. All doctors who examined him concluded that he had suffered a serious heart attack and was unable to continue his usual employment.

On May 17, 1968 Hillman filed an application for accidental disability retirement pursuant to N. J. S. A. 43:15A-43, on forms promulgated by the Board. Attached was a report by his personal physician. Subsequently, after learning of the options available to him, Hillman on June 7, 1968 filed a revised application for accidental disability retirement, requesting retirement effective July 1, 1968. On June 20, 1968, and as required by the statute, he was examined by Dr. Barnett, the doctor designated by the Board, who issued his report to the Division of Pensions on July 9.

Hillman attained the age of 65 on July 12, 1968.

The medical panel of the Division of Pensions completed its evaluation form on July 30, 1968 and, on August 2, submitted its report to respondent Board. The report stated that Hillman had arteriosclerotic heart disease and hypertensive cardiovascular disease which had reduced him to a state of total incapacity. The panel was of the opinion that his condition was not based on an accidental disability but should be considered as an ordinary disability. The report stated that “There is no proven myocardial infarction present” — this in contrast to Dr. Barnett’s report wherein he found “marked myocardial damage present * * * and an old healed inferior v^all myocardial infarction.”

The Board considered and denied Hillman’s application at its September 10, 1968 meeting. Its reasons were given in the notice of final determination sent to Hillman on September 24:

* * * Tour application was denied on the basis that you are not disabled as the direct result of the traumatic event occurring on March 16, 1967, and that at the time of consideration by the Board of Trustees (September 10, 1968) you had passed your 65th birth-date.
The medical evidence did, however, substantiate that you are incapacitated for the performance of your duties; and, since you have passed your 60th birthdate, you were not eligible for Ordinary Disability Retirement and should therefore he retired on a Service Retirement allowance. Tour retirement was approved on the basis of a Service Retirement effective as of July 1, 1968, without prejudice to appeal of the Board’s action on your disability application. * *

Hillman then retained counsel who formally requested a hearing on the merits. The Board met on October 15, 1968 and on October 24 informed counsel that the request was denied on the ground that the question of petitioner’s disqualification for accidental disability retirement due to his age was a matter of law and thus properly xeviewable by the Appellate División. The Board construed N. J. S. A. 43:15A-43 as requiring it to look to the time when it acted on the application in determining if Ilillman had not yet attained age 65, and not to the date of the accident nor the date when the application was filed. Accordingly, since Hillman had already attained 65 on September 10, 1968, when the Board first considered his application, it had denied the application.

II

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

A member who has not attained age 65 shall, upon the application of the head of the department in which he is employed or upon his own application or the application of one acting in his behalf, be retired by the board of trustees, if said employee is permanently and totally disabled as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties, on an accidental disability allowance.
The application to accomplish such retirement must be filed within 5 years of the original traumatic event, hut the board of trustees may consider an application filed after the 5-year period if it can be factually demonstrated to the satisfaction of the board of trustees that the disability is due to the accident and the filing was not accomplished within the 5-year period due to a delayed manifestation of the disability or to circumstances beyond the control of the member.
Permanent and total disability resulting from a cardiovascular, pulmonary or museuolo-skeletal condition which was not a direct result of a traumatic event occurring in the performance of duty shall be deemed an ordinary disability.

The benefits accruing to a member retired for accidental disability are prescribed by N. J. S. A. 43:15A-46 which, in relevant part, reads:

A member under 65 years of age upon retirement for accidental disability shall receive a retirement allowance which shall consist of:
a. An annuity which shall be the actuarial equivalent of his accumulated deductions at the time of his retirement together with regular interest; and
b. A pension, in addition to the annuity, of 2/3 of his actual annual compensation for which contributions were being made at the time of the occurrence of the accident.

The pension allowance under N. J. S. A. 43:15A-46 (b) exceeds by a substantial margin that allowed under N. J. S. A. 43:15A-45(b) as ordinary disability retirement. Eor an example of the latter, see Wagner v. Board of Trustees, etc., 87 N. J. Super. 498 (App. Div. 1965).

It is the position of respondent Board that the status of an employee and his eligibility for accidental disability retirement benefits must be considered as of the date the Board acts on his application, in contrast to petitioner’s contention that it is the time of the filing of the application that controls. The Board considers that the first clause of N. J. S. A. 43:15A-46 (“A member under 65 years of age upon retirement for accidental disability * * *”) controls the opening language of N. J. S. A. 43:15A-43 (“A member who has not attained age 65 shall * * * upon his own application * * * be retired * * *”). It maintains that these sections, when read together, indicate that an employee must formally be retired by action of the Board before he reaches 65 in order for him to qualify for benefits.

In support of this contention respondent cites Reinhold v. Irvington, 134 N. J. L. 416 (Sup. Ct. 1946); Flynn v. Union City, 30 N. J. Super. 467 (Cty. Ct. 1954), aff'd 32 N. J. Super. 518 (App. Div. 1954), certif. den. 17 N. J. 253 (1955), and Ziegler v. State, 95 N. J. Super. 273 (App. Div. 1967). These cases ail deal with the situation of an employee applying for both retirement benefits and disability compensation. N. J. S. A. 34:15-43 expressly precluded a retired employee from receiving such compensation, and the cited eases all dealt with instances where the employee was retired prior to the hearing of the compensation claim. Relying on the statutory prohibition, the courts rejected the employees’ claims. Reinhold, Flynn and Ziegler are therefore inapposite to the problem presented on this appeal.

We are faced with unfortunately worded statutory provisions. Our task is to give that language a fair and practical interpretation with reference to the purposes of the retirement act. Pension statutes are to he liberally construed to effectuate their remedial intent. As we said in Kochen v. Consolidated Police, etc., Pension Fund Comm’n, 71 N. J. Super. 463, 478 (1962), such construction “resolves all reasonable doubts in favor of the applicability of the statute to the particular case.” Cf. Roth v. Board of Trustees, etc., 49 N. J. Super. 309, 319 (App. Div. 1958).

The present language of N. J. S. A. 43:15A-43 and 46 was the result of L. 1966, c. 67, which extensively amended and supplemented the Public Employees’ Retirement Act (see §§ 4 and 6). As we view those two sections, the controlling one is N. J. S. A. 43:15A-43, sotting out the qualifications for accidental disability retirement. N. J. S. A. 43:15A-46 simply addressed itself to the amount to be allowed on retirement. We have found no legislative history articulating the legislative purpose. The construction which we consider most consistent with the general statutory pattern, the language of section 43, and the fundamental interests of both the applicant and the Board, is that requiring the applicant to bo under 65 at the time he makes his application for retirement. This properly places the initial responsibility for diligence on the applicant; thereafter, his rights may not be adversely affected by actions or facts over which he has no control. Both the applicant and the Board may then develop the relevant facts in a thorough and orderly manner.

It would hardly be consonant with the laudable purpose of the act to defeat a petitioner’s claim by applying a questionably strict application such as respondent Board here advances. One can conceive of situations where the Board’s interpretation of the statute would work gross injustice. Suppose, for example, that the accidentally injured employee were to apply well within the time limit prescribed by N. J. S. A. 43:15A-43 —■ say, some six months before age 65. There would then follow a medical examination of the applicant by a physician designated by the Board, as provided by the fourth paragraph of that section. The medical panel of the Division of Pensions would, as here, then complete its evaluation form and transmit it to the Board. The Board would then have to meet to consider the application. By sheer happenstance these steps would not have been completed until sometime after the applicant had reached age 65. Assuming that the Board denied accidental disability retirement, it would not be for any cause attributable to the applicant. Through no fault of his own, time had run against him.

Or consider a situation where the application is made well within the statutory time limit and the Board erroneously denies accidental disability benefits. Then follows the lengthy process of appeal and a remand for a full Board hearing. Ultimately, the Board recognizes its error, but by this time the applicant had passed well beyond age 65. Regretfully, the Board again denies his application because of overage. Such a palpable miscarriage of justice and of the beneficent purpose of the statute would be entirely possible within respondent’s reading of the statute. The only escape from the anomalous conclusion thus reached would be to declare that the subsequent rehearing relates back to the date of the original determination. This would be piling one artificial construction upon another.

The Legislature can hardly be presumed to have set the critical date at so arbitrary and unpredictable a time as the date of final Board disposition. Given the liberal construction to be appl ied to a pension statute, and given the illogic of deeming the sometimes belated operation of the administrative machinery to be the controlling factor, the statutory consideration contended for by petitioner is by far the more reasonable one.

Ill

When we first heard this appeal we found it unnecessary, in the then circumstances of the case, to go into the question of statutory construction prior to a Board hearing and determination of the factual issue as to whether Hillman’s alleged disability was such that he could, in fact, qualify for an accidental disability retirement pension. That was the reason for our remand. A hearing was held on November 5, 1969 before Hearing Officer Miller of the Division of Pensions. The parties stipulated that Hillman was permanently and totally disabled from performing the duties of a laborer within the meaning of N. J. S. A. 43:15A-43, and that his application for accidental disability retirement was timely filed, as was his appeal from the Board’s adverse determination. The hearing officer took the testimony of Dr. Schulz, a specialist in cardiovascular diseases, who had first examined Hillman on May 18, 1967 and obtained a history that on the preceding March 16, during a severe snowstorm and while he was performing strenuous work, petitioner experienced severe and oppressive pain in the center of his chest. It was his opinion that Hillman was permanently and totally disabled from performing his duties as a laborer by reason of his arteriosclerotic heart disease and angina pains, and that his disability was causally related to the work effort of March 16: the unusually severe stress and strain experienced by petitioner at 1:30 on the morning of that day, superimposed on his preexisting arteriosclerosis, resulted in an acute congestive heart failure which, in turn, has become a chronic condition. The testimony petitioner gave is reflected in the facts recited earlier in this opinion as to what he did in the regular course of his duties on March 15 and what happened when he was called out on emergency snow removal duty in the early hours of March 16. His testimony was corroborated by his supervisor.

The Board offered no testimony at the hearing. The hearing officer concluded that petitioner had sustained his burden of proof that he was permanently and totally disabled “as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties,” within the meaning of N. J. S. A. 43:15A-43. Among the findings of fact made by the hearing officer were these:

4. On March the 16th, 1967, at approximately 1:30 A.M., Petitioner was engaged in unusually strenuous work and was subjected to unusually adverse weather conditions while in the course of bis employment as a maintenance man.
5. On March 16, 1967, at approximately 1:30 a.m., Petitioner experienced a traumatic event while operating a front-end loader during a snowstorm, i. e. the steering wheel of the loader was wrenched out of Petitioner’s hands and Petitioner struggled to regain control of the vehicle.
6. As a direct result of the aforementioned traumatic event, Petitioner suffered an attack of acute congestive heart failure which has now become chronic and Petitioner’s asymptomic arteriosclerotic heart disease was aggravated to the point where it has now become permanently and totally disabling because of the severe angina pectoris pains which he suffers upon any exertion.

Accordingly, the hearing officer recommended that Hill-man’s application for accidental disability retirement be approved.

Respondent Board met on November 18, 1969 to consider the hearing transcript, the exhibits and the hearing officer’s report. It reaffirmed its earlier decision to deny Hillman’s application, giving as its reason that he was not disabled as a result of a traumatic event occurring on March 16, 1967. It did not consider the other reason which it had advanced for denying the application, namely, that Hillman had passed his 65th birthday at the time of the Board’s earlier determination. We therefore turn to the question of whether Hillman was “permanently and totally disabled as a direct result oí a traumatic event occurring during and as a result of the performance of his regular or assigned duties,” as required by N. J. S. A. 43 :15A-43.

IV

The amendment of 1966 (L. 1966, c. 67, § 4) eliminated the language of the original act (L. 1954, c. 84, § 43), which spoke of an employee “disabled as a result of personal injuries sustained in or from an accident arising out of and in the course of his employment.” Thus, “traumatic event” replaced the word “accident.” Additionally, the 1966 amendment added a new paragraph, which we again quote:

Permanent and total disability resulting from a cardiovascular, pulmonary or museulo-skeletal condition which was not a direct result of a traumatic event occurring in the performance of duty shall be deemed an ordinary disability.

The use of the words “traumatic event” has been described as “a significant departure from the term ‘accident’ previously found in the act.” Titman v. Board of Trustees, etc., 107 N. J. Super. 244, 246 (App. Div. 1969). That case undertook no definition of the substituted term.

There can be no question that the Legislature, by using the words “traumatic event” and adding the paragraph just quoted, clearly expressed an intention to make the granting of an accidental disability pension more difficult. Prior to the 1966 amendment, it was only necessary for an applicant to show that he had suffered permaneat disability from “an accident arising out of and in the course of his employment.” Our courts tended to equate the pension statutes with the principles applicable in workmen’s compensation cases. See, e. g., Fattore v. Police and Firemen’s Retirement System, 80 N. J. Super. 541 (App. Div. 1963); Kochen v. Consolidated Police, etc., Pension Fund Comm’n, above, 71 N. J. Super. 463 (App. Div. 1962); Roth v. Board of Trustees, etc., above, 49 N. J. Super. 309 (App. Div. 1958); but cf. Wagner v. Board of Trustees, etc., above, 87 N. J. Super. 498 (App. Div. 1965). This would have required that the liberal construction of “accident” found in such cases as Dwyer v. Ford Motor Co., 36 N. J. 487 (1962), and Ciuba v. Irvington Varnish & Insulator Co., 27 N. J. 127 (1958), be applied to N. J. S. A. 43:15A-43 before its 1966 amendment, thus awarding accidental disability pensions to employees whose preexisting progressive disease had been aggravated by no more than the usual effort or exercise demanded by their employment.

The 1966 amendment was intended to avoid this result by introducing a new term, “traumatic event.” Thereafter a pension would be available to those with a preexisting disease only where an unusual or excessive effort aggravated or accelerated that disease.

This view is reenforced by the explicit exclusion, added by the 1966 amendment, of disability resulting from cardiovascular, pulmonary or musculo-skeletal conditions not the direct result of a traumatic event. These conditions are typically progressive, idiopathic and, in the words of Titman, above, at 247, reflected the legislative view that they were “particularly to be scrutinized for directness of connection between the specified traumatic event and the claimant’s total disability.”

Dictionary definitions of “trauma” are readily available, but of little help. In determining whether there truly was a traumatic event it is important that (a) the event be identifiable as to time and place, (b) the injury or disability resulted directly from it, and (c) the event was undesigned, unexpected and unusual. This case meets all three tests. The time and place are certain. The event—namely, the sudden wrenching of the steering wheel out of petitioner’s hands and his struggle to regain control of the front-end loader—aggravated Hillman’s preexisting arteriosclerotic heart disease, causing it to become permanent, chronic and totally disabling. Finally, the event was clearly undesigned, unexpected and unusual.

There can be no question that petitioner’s present disability is a “direct result” of the traumatic event. As this court said in Titman, “the word ‘direct’ connotes relative freedom from remoteness, whether in terms of time, intervention of other attributive causes or the like, or a combination of such factors.” 107 N. J. Super., at 247. The heart attack made chronic what had previously been an asymptomatic condition. Dr. Schulz testified that were it not for the attack, Hillman, who had theretofore been relatively healthy and accustomed to heavy work, could have lived and worked normally and indefinitely.

As in the case of any appellate review of an administrative determination, we must look to see whether the determination finds substantial support in credible evidence present in the whole of the record. The Board totally disregarded the findings and recommendation of Hearing Officer Miller, who had the opportunity to hear and observe the witnesses and to judge of their credibility. It is to be noted that the proofs adduced at the hearing were uncontested. There is little more we can add to what was said by the hearing officer in his comprehensive and excellent report. His recommendation was firmly based in the proofs, and we adopt that recommendation and its underlying detailed findings.

The determination of respondent Board of Trustees is reversed and the Board directed to grant Hillman an accidental disability retirement pension.


source: Caselaw Access Project

license: Public Domain

text:
    JULIA GREEN, INDIVIDUALLY AND AS THE NATURAL PARENT AND NEXT FRIEND OF CLARENCE BARNES, HARRY BARNES, CYNTHIA BARNES, VALERIE BARNES AND STASHIA LEE, INFANTS, PLAINTIFFS-APPELLANTS, v. DEPARTMENT OF INSTITUTIONS AND AGENCIES, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 1, 1969
    Decided April 6, 1970.

      Before Judges Goldmanst, Lewis and Matthews.

      Mr. William G. Levine argued the cause for appellants (Mr. David E. Dugan, III, Director, Camden Regional Legal Services, Inc., attorney; Mr. Leonard E. Wattach, Assistant Director, of counsel).

      Mr. Eugene T. Urbaniah, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General, attorney).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Plaintiffs appeal from a determination of the Department of Institutions and Agencies which affirmed the decision of the Gloucester County Welfare Board that plaintiffs were no longer eligible for benefits under the New Jersey Assistance for Dependent Children (ADC) Program. Although the appeal was filed after the running of the 45-day period fixed by R. R. 1:3-1 (b), now B. 2:4-1(b), without any extension of time being sought or obtained, we proceed to deal with the matter on the merits.

Plaintiff Julia Green lives in a family household consisting of herself, her present husband Edward Green, and nine children. She is the mother of all nine. Green is the natural father of the four youngest children; the other five are his stepchildren. The father of three of the stepchildren has been declared legally dead, and the father of the other two, who is under a court order of support, has disappeared and complaints have been filed against him.

Mrs. Green has been receiving ADC benefits from the Gloucester County Welfare Board since 1960, and received assistance from the former State Board of Child Welfare for more than six years prior thereto.

The Greens were ceremonially married in August 1967, at which time Mrs. Green was receiving for herself and her five children the sum of $408 monthly ADC benefits. When she and the children moved into her husband’s home, her case was rebudgeted by the county welfare board, resulting in a reduction from $408 to $80 a month for the month of October 1967. The grant was increased to $99, effective November 1, 1967, when a rebudgeting error was discovered and corrected. Mrs. Green appealed from that determination, requesting a fair hearing before the Department of Institutions and Agencies. That hearing was held on November 17, 1967 and resulted in a determination by the Department, issued Eebruary 15, 1968, sustaining the county welfare board’s decision. The following was developed at the hearing.

Green is a regularly employed truckdriver who has been on his present job for about ten years. He refused to disclose to the county welfare board details pertaining to his income and his alleged special circumstances or debts on the grounds that this was his personal business and he was not legally obligated to support the five stepchildren. He declared himself willing to provide full support for his wife and their three children (a fourth was born shortly after the hearing) and also shelter for the stepchildren in the home he owned. He told the board that he would support the stepchildren, even though not legally obliged to do so, if he could afford it; however, he would not provide specific information regarding Ms own obligations, special requirements, income or other resources. Unable to obtain that information, the county welfare board estimated his net take-home pay, based on the hourly wage rate for his fellow drivers, using a 40-hour work week; deducted certain allowable items, and then determined that the family was entitled to an ADC grant of $99 to meet the family requirements.

On September 18, 1968 the county welfare board wrote Mrs. Green advising her that at a meeting held the day before the board had determined she was no longer eligible for assistance “because need cannot be determined because Mr. Green will not supply any financial information about the family. Also, the income is greater than need.” She was advised that she could reapply for aid whenever she believed her circumstances had changed with respect to the stated cause for closing the case. Plaintiff brought no further information to the attention of the board; instead, on December 9 her attorney, connected with the Camden County Legal Services, Inc., wrote the Department requesting another fair hearing. The request was granted and a second hearing held on January 23, 1969. At that time it was determined that Green was employed by a Glassboro trucking company full-time and that he had consistently refused to give any information with regard to his income or expenses, or to permit the welfare board to verify his wages through his employer. Mrs. Green professed total ignorance of any facts relating to her husband’s financial circumstances. She asserted that he objected to providing food for his stepchildren and refused to furnish them with clothing, medical care and other necessities.

In an effort to develop data that would be relevant to a correct detemination of the family’s eligibility for public assistance, the welfare board was informed by Green’s employer that the average wages of its truckdrivers was $250 a week. Using this figure as a basis, and deducting allowable expenses, the board arrived at a budgetable income figure which exceeded the family’s requirements by some $460.

The hearing officer found that Mrs. Green “had persistently failed or refused to respond substantively or credibly to any questions about her involvement in or relationship to the management of the financial and budgetary affairs of the household.” Further, “her posture of total and complete ignorance about any element of the household finances was so exaggerated as to compel disbelief” on his part.

Counsel for Mrs. Green at the second fair hearing argued that (1) her husband had no legal responsibility under New Jersey law to support his stepchildren; (2) under the RTew Jersey Categorical Assistance Budget Manual Regulations, § 502, only, available resources could be considered as income, and since the husband’s income was' not available, it should not be considered in computing Mrs. Green’s budget, and (3) under a recent federal regulation, assumed income from nonlegally responsible persons could not be considered in determining need for public assistance. (The reference here was undoubtedly to 45 C. F. R., § 203.1, issued in the wake of the decision in King v. Smith, 392 U. S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968)).

The Department of Institutions and Agencies, in its determination filed March 24, 1969 following the hearing, called attention to the Department’s Manual of Administration, § 2123.2, entitled “General Policy”:

The client must understand, however, that it is the O W B [county welfare board] which is responsible for determining whether he is or is not eligible. If he is unwilling to have the necessary inquiries made and is unable or unwilling to secure the required information from such sources himself, then it shall be explained to him that O W B will be unable to make an affirmative determination. In this situation, unless he wishes to withdraw his application he must expect that it will be denied by G W B.

The Department recognized that although Green was not technically a client, he was the evident and indeed acknowledged head of the family unit requesting public assistance and professing to be in need of such assistance. The regulation was therefore construed as applicable in the case under consideration. This was a correct conclusion, for section 2101.2(c) of the Manual of Administration provides that where the natural mother and stepfather both live in the home, the term “applicant” means both of them, and both must execute the formal written application unless physically or mentally unable to do so. Section 2113.4 contains the same requirement.

The Department, in its determination, said that there could be no doubt that section 2123.2, just quoted, had direct and specific application to Mrs. Green, who had been a client and who now sought to be recertified as continuing to bo eligible for payments of supplementary public assistance. Noting that in the opinion of the hearing officer Mrs. Green had exhibited at the hearing “a studied unwillingness to provide or secure requested information” within the meaning and intent of the regulation, the Department held that

* * * in a family household in which there are children who are offspring of one but not both parents, and who have been voluntarily established in and accepted by such parents as members of the household, the single-parentage status of such children does not ipso facto create a presumption that the household is financially needy, nor does it create a conclusive presumption that such children are suffering deprivation and thereby automatically eligible for public assistance.

The Department therefore held that under our statutes and the regulations issued pursuant thereto, the existence of deprivation and the consequent need for public assistance must be affirmatively demonstrated by persuasive proof. The burden of adducing such proof falls upon the applicant for assistance, and the existence of deprivation is not to be assumed. Accordingly, the welfare board decision under challenge was affirmed.

Plaintiff’s arguments on this appeal are an elaboration of those advanced at the second fair hearing. Essentially, she contends that a stepfather is not required under New Jersey law to support his stepchildren; that under the doctrine of federal supremacy, a state law or regulation may not contravene federal law or regulations dealing with the same subject, and where a stepfather has refused to support his stepchildren, any denial of assistance to them on the basis of his “assumed income” is a denial of his and their constitutional right to equal protection of the law and a taking of his property without due process of law. These arguments do not come to grips with the real issue in the case.

New Jersey, of course, still adheres to the rather unenlightened policy of not requiring the stepfather to support his stepchildren. Tartaglio v. Department of Institutions and Agencies, 102 N. J. Super. 592, 594 (App. Div. 1968), app. dism. and certif. den. January 1969 (unreported), cert. den. 394 U. S. 1000, 89 S. Ct. 1594, 22 L. Ed. 2d 778 (1969). The Department concedes that it is not within its power or the power of the county welfare board to impose such a legal obligation on the stepfather.

42 U. S. C. A., § 602(a)(7) provides that a state plan for aid and services to needy families with children must, in order to be approved, fulfill certain conditions, among them, that the plan “provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid * * *.” 42 U. S. C. A., § 606, contains the following definitions :

(a) the term “dependent child” means a needy child (1) who has been deprived of parental support or care and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather * * * in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of 18 or (B) under the age of 21 and a student * * *
* * * * s;j * SK* *
(c) the term “relative with whom any dependent child is living” means the individual who is one of the relatives specified in sub-section (a) of this section and with whom such child is living * * * in a place of residence maintained by such individual * * as his * * * own home.

The New Jersey statutes governing the ADC Program are contained in N. J. S. A. 44:10-1 et seq. The “Definitions” section, N. J. S. A. 44:10-1(c) and (d), is almost identical with the definitions of the federal statute.

The state regulations implementing the State ADC Program do not require a stepfather to support his stepchildren, except on a voluntary basis. They do, however, require that he and his wife openly and honestly make available to the county welfare board the facts of their budget, and this to the end that the board may fairly determine if he is actually giving voluntary support to the stepchildren.

Since the Department clearly understands that it cannot require a stepfather to support his stepchildren, all the constitutional arguments addressed to that nonexistent issue are academic.

Nor does the Department maintain that a county welfare board may “assume” that the stepfather makes his income available to his stepchildren. Federal regulation 45 C. F. R., § 303.1, forbids such approach. That regulation reads:

The inclusion in the family, or the presence in the home, of a “substitute parent” or “man-in-the-house” or any individual other than one described in paragraph (a) of this section [a natural or adoptive parent or stepparent, who is legally obligated to support the child under state law of general applicability] is not an acceptable basis for a finding of ineligibility or for assuming the availability of income by the State. * * * [I]n the consideration of all income and resources in establishing financial eligibility and the amount of the assistance payment, only such net income as is actually available for current use on a regular basis will be considered, and- the income only of the parent described in paragraph (a) of this section will be considered available for children in the household in absence of proof of actual contributions.

See Solman v. Shapiro, 300 F. Supp. 409 (D. Conn. 1969), aff’d p.c. sub nom. Shapiro v. Solman, 396 U. S. 5, 90 S. Ct. 25, 24 L. Ed. 2d 5 (1969), on the basis of King v Smith, 392 U. S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968), the case which resulted in the adoption of the federal regulation just quoted.

The Department has issued state regulations in accordance with 45 C. F. R., § 203.1. For example, the New Jersey Categorical Assistance Budget Manual, § 503, provides, “Only available resources shall affect the amount of the grant.” .The matter is more specifically covered by Circular Letter 325, issued by the Department on June 1, 1967. The subject of that letter was the federal requirements with regard to policy on “assumed income.”- The attention of county welfare directors was called to the provision found in the Handbook issued by the Bureau of Family Services, Department of Health, Education and Welfare, regarding availability of income and resources, which directed that “a State must differentiate between resources that can be counted on because they are available for current use on a regular basis and those found not to be available for the individual’s use in meeting subsistence needs as defined in the State’s standard.” Thus, “income must not be considered where it is not, in fact, currently available to the needy individual * * *.”

We find that our state laws and regulations do not contravene the federal law and regulations, but are in harmony and evince a cooperative effort to make assistance available for needy children, whose need is to be determined by taking into account all actual contributions to the household by its members, including those made by the stepparent.

The real issue in this case is the refusal on the part of Mrs. Green and her husband to furnish the county welfare board, or to let the board seek, verifying information to determine if the family and the stepchildren are actually in need. Under both the federal and our own laws and regulations, if a welfare applicant is unwilling to have the welfare agency seek verifying information concerning eligibility, and eligibility cannot be determined, then assistance is denied or terminated. Such is the specific provision found in Part IV of the Eederal Handbook of Public Assistance Administration, § 2300(e)(5):

When available information from the applicant or recipient is inconclusive and does not support a decision of eligibility, the agency explains to the individual what questions remain and how he can resolve or help to resolve them, what actions the agency can take to resolve them, and the necessity of resolving the questions if eligibility is to be established or continued. If the individual is unwilling to have the agency seek verifying information, the agency, unable to determine that eligibility exists, denies or terminates assistance. * * *

Section 2123.2 of the New Jersey Manual of Administration, quoted earlier in this opinion, is to the same effect.

The action taken by the welfare board, stripped of all extraneous considerations, was fundamentally based on its lack of information concerning the needs of the stepchildren. The board got no help whatever from Mrs. Green. She, and not her husband, said he would not support the stepchildren, except to give them shelter. Like the welfare board and the Department, we find completely incredible her avowed ignorance of anything relating to the financial and budgetary affairs of the household.

Plaintiff’s position seems to be that a stepchild living with its mother and stepfather is automatically entitled to ADO benefits without regard to the stepfather’s contributions to the household and whether the child is actually in need. Purther, that her mere assertion that the stepfather will not support the stepchildren thereby ends the welfare board’s duty to investigate the facts and make a factual determination of need. In short, she would appear to claim that applicants for welfare do not carry the burden of showing that the stepchildren are eligible for assistance, but that the welfare board must somehow establish that they are not in need, and this in the face of the stubborn noncooperation of those who have the needed information.

The funds available for assistance to dependent children flow into the 21 county welfare boards of our State from three sources—federal, state and county. Those funds are impressed with a public trust, and each board is charged with disbursing them in compliance with the standards, rules and regulations established by the Department of Institutions and Agencies pursuant to federal and state law.

The position taken by plaintiff is in clear violation of the controls that have been adopted to safeguard the ADC Program. To accept that position by allowing her to claim absolute ignorance of her family’s financial and budgetary situation would be to invite a deliberate suppression of the true family condition. It would be an invitation to an impermissible invasion of public funds.

A family with a demonstrated need for aid to its children is certainly entitled to every consideration in receiving welfare assistance. However, one who seeks ADC benefits must demonstrate such need and give the fullest cooperation to welfare officials so that there may be a proper assessment of just how much assistance is required.

[o] Mrs. Green has been less than frank and less than fair in dealing with the Gloucester County Welfare Board. It may be that her many years of receiving aid for her children has led to the belief that ADC benefits may never be reduced or terminated, whatever the change in circumstances. She can demonstrate her good faith and proper understanding of the ADC Program by giving the county welfare board all the facts relating to the family finances and needs. If she does not do so, the board and the Department are entirely justified under both the federal and state laws and regulations in refusing further aid.

The Department determination is affirmed.


author: Per Curiam.

text:
    JOHN J. BREEN, PLAINTIFF-APPELLANT, v. NEW JERSEY MANUFACTURERS INDEMNITY INSURANCE COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court oí New Jersey Appellate Division
    Argued March 2, 1970—Supplemental material filed March 24, 1970
    Decided April 6, 1970.

      Before Judges Coneord, Collester and Kolovsky.

      Mr. Robert W. Goodman argued the cause for appellant (Messrs. Breslin and Monaghan, attorneys).

      Mrs. Sonia Napolitano argued the cause for respondent (Messrs. Pindar, McFlroy, Connell, Foley & Geiser, attorneys)..
   Per Curiam.

The judgment is affirmed essentially for the reasons set forth in Judge Malech’s opinion.

We find no merit in plaintiffs suggestion that the policy issued by defendant to its insured, Milton Stern, against whom plaintiff has recovered a judgment in an automobile negligence action, may not have contained the same terms as the sample policy submitted by defendant to the trial court. The proofs in the trial court established without contradiction that the relevant provisions (see 105 N. J. Super., at 307) of the Stern policy and the sample policy were the same. That fact was further corroborated by the supplemental affidavit filed by defendant, at our request, setting forth that such provisions were embodied in every automobile liability insurance policy issued by it at the time the Stern policy was written.


author: Lewis, J. A. D.

text:
    CATHOLIC CHARITIES OF THE DIOCESE OF CAMDEN, PETITIONER-RESPONDENT, v. CITY OF PLEASANTVILLE, RESPONDENT-APPELLANT, and DIVISION OF TAX APPEALS, DEPARTMENT OF THE TREASURY OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 16, 1970
    Decided April 7, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Lawrence 8. Berger argued the cause for appellant (Messrs. Lasser, Lasser, SaroTcin & Eochman, attorneys; Mr. Sheppard A. Curyan, on the brief).

      Mr. Martin F. McEernan argued the cause for respondent Catholic Charities of the Diocese of Camden.

      Mr. Arthur J. Sills, Attorney General of New Jersey, attorney for respondent Division of Tax Appeals (Mr. Charles E. Landesman, Deputy Attorney General, of counsel), filed Statement in Lieu of Brief.
   The opinion of the court was delivered by

Lewis, J. A. D.

Respondent City of Pleasantville (herein city) appeals from a final judgment of the Division of Tax Appeals (herein Division). That agency reversed a decision of the Atlantic County Board of Taxation which sustained a 1967 local tax assessment on property of petitioner Catholic Charities of the Diocese of Camden (herein Catholic Charities). The Division also allowed an exemption for the tax year 1968, notwithstanding the failure of Catholic Charities to file an appeal from an assessment for that year. The determinations of the Division as to both j^ears are challenged.

THE 1967 ASSESSMENT

The subject property, formerly the Glen Dale Nursing Home—a proprietary institution—was acquired by Catholic Charities in early 1966. After extensive renovations the new owner reopened the home under the name of Our Lady’s Eesidence (herein Eesidence) and filed with the city assessor, pursuant to N. J. S. A. 54:4-3.6, an initial statement claiming exemption from taxation fox 1967 on the grounds of religious and charitable use. There are no contentions concerning either the quantum of the assessment or the adequacy of the land for exemption purposes.

The following significant facts are undisputed. Catholic Charities was incorporated in 1940 under legislation entitled “An Act to Incorporate Associations not for Pecuniary Profit” (see N. J. S. A. 15:1-1 et seq.). The certificate of incorporation states: “The purpose for which this Corporation is formed shall be for religious and charitable purposes and for the moral, mental and physical improvement of men, women and children.”

Eesidence, operated under the aegis of the Diocese of Camden, is situated in Pleasantville on approximately five acres of land. The property was purchased by Catholic Charities for $731,400. The equipment, furnishings and renovations increased that total cost to approximately $804,450, which was financed by loans from the Diocese on a “religious financing” basis, i. e., there was “no formal drawing up of notes.”

The facility is used exclusively as a nursing home for the care of the aged, ill, infirm and convalescent. It has 106 beds and is maintained by 82 employees, including 15 registered nurses, 4 licensed practical nurses and 40 nurses’ aides. At the time of the hearing $90 a week was the highest rate established for incoming patients. The charge to welfare and medicare patients was less than that amount. According to the testimony of Father Herron, the assistant director of Catholic Charities, approximately 80 of the 106 occupants were welfare patients, 31 were classified as total care, ranging from complete senility to paralyzation, 4 were intensive care patients and 51 were wheel-chair cases. Owing to the admission of patients with cancer or other terminal illnesses, there were 34 deaths during the preceding year.

Eather Herron further testified, in substance, that all people, regardless of race, creed, color or ability to pay, are acceptable at Residence, and that, in fact, it seeks generally to admit the economically disadvantaged and those receiving public assistance or "welfare, and especially those who are ill. To the extent necessary, it is subsidized by the charity of its parent organization, the Diocese of Camden.

The city produced as a witness Jerry Oodard, owner and administrator of the Golden Crest Nursing Home, a proprietary institution located in Atlantic City. That home has 208 beds, 115 employees, 8 registered nurses and 7 licensed nurses. Their rates range from $125 to $140 per week, plus additional charges for special services such as hand-feeding and therapy treatments. Godard’s testimony accentuated the contrasting differences between the nonprofit functions of Residence and the profit motives underlying the operations of a proprietary nursing home. He testified, “We’re supposed to be profit making” and that the institution was 85% occupied, with approximately 50% welfare patients. We note this testimony under cross-examination :

Q. And do you take Welfare patients, initially as Welfare patients?
A. On occasion, we take Welfare patients, but in most cases, they are patients that were private patients or Medicare patients, and they became Welfare patients, and sometimes we take a Welfare patient in, in an emergency, if we have a bed open.
Q. But it is your practice to avoid, if possible, just taking, initially, people who are Welfare patients?
A. It isn’t our practice at all.
If we have beds available, we will admit them, but we don’t solicit them.

The Division, after analyzing the proofs, found that Residence was a nonprofit organization which welcomes welfare and distress cases “for themselves,” and not for the purpose of keeping their beds occupied, “as do private homes.” It also noted that, at Residence, “the more helpless the patient, the more welcome he is,” and that compared with other nursing homes the rates charged were generally less, while the wages paid for maintenance and care were higher. Although not a hospital, since it was not confined exclusively to the care of the sick, the institution was held to he qualified as a charity within the intendment of the statute.

Implicit in the opinion of the Division are findings that Residence performs a charitable function that benefits the public-at-large inasmuch as the burden of taxation is lessened by obviating the necessity on the part of government to construct facilities to accommodate the poor who are unacceptable to or who cannot afford the rates charged by nursing homes operating for profit. The Division observed, “It is quite obvious that the basis of * * * Residence’s concern is what service it can render without regard to profit whereas no home operated for profit could afford to do this,” and concluded:

*’ * * This home is apparently willing to take people not sought by profit-making institutions. We feel that there is a demand in this community, as a matter of fact in any community, for some institution to engage in the operation of a nursing home without regard to the profit motive. We feel that the Diocese of Camden by reason of its concern for the welfare of people through the Catholic Charities established such a non-profit institution. We feel that this exemplifies “charity" in the best sense of the word and comes within any proper legal definition of the word “charity.” We do not think that the nursing home field should be left to profit making organizations only any more than we believe that the hospital field should be the sole preserve of profit making institutions. Accordingly we hold the home tax exempt.

Here the city argues (1) the exemption statute, N. J. S. A. 54:L-3.6, requires that property be used exclusively for charitable purposes if the owner thereof is to avoid paying its fair share of real estate taxes, and (2) the exemption claim is fraught with doubt.

The latest decisional pronouncements of our Supreme Court in dealing with the interpretation of N. J. S. A. 54:4-3.6 are set forth in The Presbyterian Homes of the Synod of New Jersey v. Division of Tax Appeals, 55 N. J. 275 (1970). There it was held that Meadow Lakes Village, a retirement enterprise owned and operated by petitioner-appellant, was not entitled to tax exemption. That decision was rendered shortly prior to the scheduled argument on this appeal. Acocrdingly, we requested counsel to file supplemental briefs and to address their arguments to its applicability to the instant case. We have had the benefit of their respective views.

A brief summary of the crucial facts in Presbyterian Homes is in order. Tax exemption was sought by petitioner for Meadow Lakes, consisting of 103 acres with 23 apartment buildings representing 211 living units, most of which were garden-type apartments. The complex embraced a variety of recreational facilities and a medical health center. It was nondenominational and was not organized for profit. The total staff of employees numbered 207, of whom 11 were registered nurses.

The cost of the project exceeded $12,000,000, of which $4,450,000 was provided by “founders fees” paid by the original residents; the balance was raised by a loan from the Presbyterian Homes’ endowment fund and a federal grant. All residents are required to pay a founder’s fee for the lifetime use of their respective apartments. The fees ranged from $12,000 to $43,000, in addition to which each resident paid for maintenance $205-$360 per month, depending upon the type of accommodations; notwithstanding these charges the operational expenses substantially exceeded income. Moreover, the residents were required to sign an agreement relating to privileges, obligations and petitioner’s termination rights.

As stated by the court, Meadow Lakes provided luxurious retirement facilities to those who were able to pay. In concluding that petitioner was not entitled to the relief sought, either as a hospital or a charity, the court stated, “We fail to see how any invidious discrimination would arise if, as petitioner described itself in a brochure, Meadow Lakes with its ‘gracious retirement living,’ is denied tax-exempt status.” 55 N. J., at 290.

It is at once apparent, without need for emphasis or focusing discussion, that the factual situation in Presbyterian Somes is manifestly distinguishable. In following the teachings of that case and the authorities approvingly cited therein, we examined the instant record bearing in mind, in particular, these stated guidelines: property should ordinarily bear its just and equal burden of taxation; whether it is devoted to charitable purposes depends upon its use and the facts and circumstances of each case; in a legal sense the term “charity” is a matter of description rather than a precise definition; exclusiveness is tested by the organization’s purpose and the actual use of its property; care for aged people in need is a proper concern of government; justification for an exemption from taxation ordinarily involves a charitable service which would be undertaken at public expense if not made available by private parties; profit is a factor for consideration, but is not necessarily controlling since nonprofit status “cannot be equated with charitableness,” and the ultimate cost to the patient, in light of his need, the facilities available to satisfy that need and the type of services rendered, is an element which may support or negate a charitable purpose. 55 N. J., at 283-288.

Thus considered, and applying those legal concepts to the facts before us, we are satisfied that the Division’s determination in favor of the tax exemption sought by Catholic Charities for the year 1967 was not arbitrary, capricious or unreasonable, but was predicated upon substantial and credible evidence in the record. It should therefore be affirmed. Mead Johnson and Co. v. Borough of South Plainfield, 95 N. J. Super. 455, 466-467 (App. Div. 1967); In re Sanders, 40 N. J. Super. 477, 483 (App. Div. 1956); cf. Jackson v. Concord Company, 54 N. J. 113, 117-118 (1969).

THE 1968 ASSESSMENT

The city argues that irrespective of the resolution of the 1967 exemption claim, Residence is taxable for the year 1968 since the owner did not file an appeal from the assessment for that year. This argument is bottomed upon the legislative fiat of N. J. S. A. 54:3-21 requiring a “taxpayer aggrieved” to file an appeal to the county board of taxation prior to August 15 of the taxable year. The issue was first raised by Catholic Charities when, during the hearing before the Division, it made an oral motion seeking a ruling as to whether the exemption, if granted for 1967, would continue for the year 1968. In reaching a decision in favor of movant the Division relied upon N. J. S. A. 54:4-4.4, which provides that “Every municipal tax assessor shall * * * obtain from each owner of real property in his taxing district, for which a tax exemption is claimed, an initial statement under oath * * *. When an initial statement has theretofore been filed, then * * * thereafter not later than November 1 of every third succeeding year, said assessor shall obtain a further statement * * *.” (Emphasis added.)

The statute also provides that each assessor

* * * may at any time inquire into the right of a claimant to the continuance of an exemption hereunder and for that purpose he may require the filing of a further statement or the submission of such proof as he shall deem necessary to determine the right of the claimant to continuance of the exemption. Such further statement shall be in such form as shall be prescribed by the director and shall set forth.
(a) Whether there has been any change of use of any such property initially determined as being entitled to exemption during any 3-year-period as aforesaid which would defeat the right of exemption therein, and
(b) Whether any new or additional property has been acquired for which a tax exemption is claimed * * *.

In articulating the scope of the exemption the Division expressed the view that the Legislature intended that the exemption status should be preserved for a period of three years from the filing of the initial statement unless the assessor required a further statement. It decided, however, that the municipality, in the circumstances, should not be foreclosed from producing additional facts to indicate that the 1967 exemption should not be continued. Accordingly, the city was permitted 30 days within which to produce evidence as to any factual changes bearing upon the asserted exemption for the succeeding year. After a supplemental hearing, it was determined that the 1967 exemption extended through the year 1968.

It is fundamental that statutes in pari materia are to be construed together as a “unitary and harmonious whole, in order that each may be fully effective.” City of Clifton v. Passaic County Board of Taxation, 28 N. J. 411, 421 (1958). When there is conflict, the interpretive function of the judiciary is to resolve the discord to conform to the spirit of the legislation as a whole. Ibid.; cf. County of Gloucester, Board of Chosen Freeholders v. Pub. Emp. Rel. Comm., 107 N. J. Super. 150, 156 (App. Div. 1969), aff’d 55 N. J. 333 (1970). It is equally clear that when uncertainties or ambiguities exist it is appropriate for the court, in order to ascertain legislative intent, to examine the history of the enactments, including any statements attached to the bills which were enacted into law. See Bass v. Allen Home Improvement Co., 8 N. J. 219, 224 (1951); Brewer v. Porch, 53 N. J. 167, 174 (1969). This we have done.

The pertinent section of N. J. S. A. 54:3-21 has been on our books since 1918 with relatively no change in substance and no historic explication, L. 1918, c. 236, § 701, р. 879; amended L. 1933, c. 266, § 12, p. 712, and L. 1945, с. 125, § 1, p. 479 which merely provided for the filing of a copy of an appeal petition with the municipality’s assessor, clerk or attorney.

N. J. S. A. 54:4-4.4 came into existence much later. L. 1951, c. 135, § 1, p. 570. The last amendment, L. 1954, c. 102, § 1, p. 573, was fathered by Senate Bill No. 171, which had attached thereto a statement reading:

This bill is designed to require property owners claiming tax exemption to file a “further statement” with the local assessor every 3 years instead of annually, as at present.
Under existing law (P. L. 1951, c. 135), “further statements” showing changes in use of exempt property and new property acquisitions for which exemption is claimed, must be filed annually. Since the vast majority of properties for which exemption has been claimed indicate no change from year to year, the annual filing of a “further statement” entails an unnecessary requirement on the part of exemption claimants. The 3-year requirement is believed to be adequate to apprise assessors of all pertinent changes. The date for filing initial and further statements has been changed from October 1 to November 1, to conform to existing practice in handling applications for exemption.

It is manifest that the statute anticipates a three-jrear period during which a filed exemption statement has vitality subject to further inquiry by the local assessor. See Blair Academy v. Township of Blairstown, 95 N. J. Super. 583, 591 (App. Div.), certif. den. 50 N. J. 293 (1967). Compare the so-called “Freeze Act,” N. J. S. A. 54:2-43. The municipality having contested the exemption, it was aware that a resolution of the controversy would determine the taxing status of Residence, present and in futuro, subject to changes in the law or in the existent structure and its use.

While Catholic Charities might have filed a 1968 tax exemption form, ex dbundanti cautela, as it did for the year 1969, it would appear inequitable and unnecessarily technical to hold that it had no right to assume that its 1967 initial exemption statement would be viable for a three-year period. If Residence had been found to be taxable for 1967, taxes for subsequent years would be due as a matter of course. Contrariwise, since we determine that Residence is a charity and entitled to tax exemption for 1967, to sustain the 1968 assessment, in light of the applicable statutes, would unduly strain legislative language and emphasize form over substance.

Statutes establishing a procedure for setting aside assessments are liberally construed in the interests of equality and uniformity. 3 Sutherland, Statutory Construction (3d ed. 1943), § 6707, at 304-305. Thus, a final determination oí a right to exemption for 1967 should carry with it the concomitant legislative three-year exemption from taxation.

Exemption from taxation has been viewed as a vested right. See the dissenting opinion of Justice Van Syckel, Moore v. State, 43 N. J. L. 203, 243 (E. & A. 1881). Note, WHYY v. Borough of Glassboro, 393 U. S. 117, 89 S. Ct. 286, 21 L. Ed. 2d 242 (1968); cf. City of East Orange v. Palmer, 47 N. J. 307, 314-316 (1966). See generally 16 McQuillin, Municipal Corporations (3d ed. rev. 1963), “Taxation,” § 44.85, at 273-278. N. J. S. A. 54:3-21, relied upon by the city, should not be construed so as to obliterate a right to exemption “unless that intention is made manifest by language so plain and unmistakable that there is no possibility of any choice of meanings.” McCaffrey, Statutory Construction, § 67, at 136 (1953); 2 Cooley’s Constitutional Limitations (8th ed. 1927), at 745. Accord, Morin v. Becker, 6 N. J. 457, 470 (1951).

Moreover, the revocation of an exemption may have retroactive application to tax years in which no tax was paid. Automobile Club of Mich. v. Commissioner of Int. Rev., 230 F. 2d 585 (6 Cir. 1956), aff'd 353 U. S. 180, 77 S. Ct. 707, 1 L. Ed. 2d 746, reh. den. 353 U. S. 989, 77 S. Ct. 1279, 1 L. Ed. 2d 1147 (1957). Hence, a determination that a property is not exempt would be conclusive regarding later years where there has been no change of facts. Ridgewood Elks Holding Corp. v. Village of Ridgewood, 127 N. J. L. 295, 298 (E. & A. 1941); cf. Blair Academy v. Township of Blairstown, supra, 95 N. J. Super., at 591. We view the converse of these principles to be applicable in the instant matter. See Erskine v. Van Arsdale, 82 U. S. (15 Wall.) 75, 21 L. Ed. 63, 63-64 (1872). Compare Tuttle v. Everett, 51 Miss. 27, 24 Am. Rep. 622 (Sup. Ct. 1875).

The frequently quoted expression, “Men must turn square corners when they deal with the Government,” Rock Island, Arkansas 4; Louisiana Ry. Co. v. United States, 254 U. S. 141, 143, 41 S. Ct. 55, 56, 65 L. Ed. 188 (1920), is no more persuasive and forceful than its corollary, “government ought to turn square corners when dealing with its citizens.” Howbert v. Penrose, 38 F. 2d 577, 581 (10 Cir. 1930). See Maguire & Zimet, “Hobson’s Choice and Similar Practices in Federal Taxation,” 48 Harv. L. Rev. 1281 (1935).

The judgment of the Division is affirmed.


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

text:
    IN THE MATTER OF SHELTON COLLEGE.
    Superior Court of New Jersey Appellate Division
    Argued March 16, 1970
    Decided April 7, 1970.

      Before Judges Sullivan, Caeton and Halpebn.

      Mr. Alfred G. Glapp argued the cause for Shelton College (Messrs. Glapp <& Eisenberg, attorneys).

      Mr. Michael L. Bitterman, Deputy Attorney General, argued the cause for New Jersey Board of Higher Education (Mr. Clinton E. Cronin, Assistant Attorney General, of counsel; Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

Shelton College, pursuant to leave granted, appeals from a decision of the Board of Higher Education, Department of Higher Education, State of New Jersey, that hearings before the Board may be held with less than a quorum of the entire Board present. Eor reasons hereinafter stated, we affirm.

In May 1969 the Board adopted a resolution to conduct hearings to determine whether or not the standards for the conferring of the degree of Bachelor of Arts at Shelton College were satisfactory and whether that institution’s license to confer degrees should be continued or revoked. Pursuant to the resolution some five separate hearings have been held before the Board, made up of 15 voting members plus two ex officio nonvoting members. A quorum of the Board consists of eight of the voting members. At each of the five hearings to date, the same eight voting members have been present. It is undisputed that the Board’s decision must be by a quorum of its voting members.

The problems encountered by the Board during the course of the hearings are aptly described in the letter decision of January 9, 1970 sent to counsel for Shelton College.

As you are aware, the hearings in this matter were originally scheduled for June 11 and 12, 1969, and postponed to June 26 at the request of Shelton College. Hearings were then held on June 26 and 27, and then due to conflicting schedules involving problems of individual members of the Board and of counsel for Shelton College, could not be contniued until June 30, 1969. Unfortunately, Robert Gorman, Esq., of your office, became seriously ill several days prior to June 30, 1969, and the hearing set for that date and thereafter had to be postponed. Due to again conflicting schedules of Board members and counsel for Shelton College, the hearings were not resumed again until October 9, 1969. Erom that date the hearings were again adjourned until December 11, at which time the fourth day of hearings was held with the fifth day of hearings, being held on December 13, 1969, a Saturday. This unusual Saturday date was scheduled, as you are aware, solely as all other dates seem to run into conflicts in schedules again. At the present pace, one can make no prediction what ever as to when the hearings can be concluded, in that your office has reported that they have a great many lengthy witnesses which they desire to be heard..
Among the additional practical problems facing the Board and the fact that the eight members of the Board of Higher Education hearing this matter are all persons who have demanding schedules of their own in their private professional lives, since only members have been present at all of the hearings and since eight is the number constituting a quorum of the entire Board of Higher Education, the absence of even one member would, according to the position of Shelton College, deprive the Board of any authority to hear this case. This is extremely significant in that should one of the members for professional reasons resign from the Board and relocate into another state or be incapacitated for any reason, the Board would be rendered powerless to do anything but terminate the hearings and begin them all over again.

Because of these difficulties in scheduling, the Board decided that subsequent hearings could be held with less than a quorum of the entire Board present. The decision also provided that the transcript of the entire case, together with all exhibits, would be provided to every member of the Board. Implicit in the Board’s decision is the proposition that a Board member who is furnished with full transcripts and exhibits would be eligible to participate in the ultimate determination, whether or not he or she actually attends all of the hearings.

Shelton College argues on this appeal that the decision of the Board is erroneous and contrary to law. Reliance is placed on Asbury Park v. Dept. of Civil Service, 17 N. J. 419 (1955) and cases therein cited, for the proposition that, in the absence of statutory authorization for a different procedure, only those members of the Board who actually hear the evidence can participate in a decision of the Board.

In effect, Shelton contends that the same quorum of Board members who have attended the five hearings to date must continue to sit in all remaining hearings, and if any Board member comprising such quorum fails to attend any of the remaining hearings, it would render the entire proceedings void.

We conclude that the Board’s decision is not at odds with the principle enunciated in Asbury Park, supra, that fair play is plainly denied when a trier of fact who has not heard and evaluated all the evidence influences the decision by his participation in the deliberations by which it is reached.

The Board of Higher Education exists by virtue of statute. The proceedings in question are being conducted under N. J. S. A. 18A:68-7, which empowers the Board to revoke the approval given by it to an institution of learning to grant a degree, after notice and hearing and proof to the satisfaction of the Board that standards established for the conferring of a degree are not being satisfactorily complied with by such institution. The statute also provides that:

The board of higher education shall have all powers, in addition to those specifically provided by law, requisite to the performance of its duties. [JV. J. S. A. 18A:3-16.]

In Laba v. Newark Board of Education, 23 N. J. 364 (1957), the Supreme Court, in referring to the broad powers vested in administrative tribunals created by the school laws, said:

Absent specific legislative direction, the administrative tribunals may mould their own procedures so long as they operate fairly and conform with due process principles, [at 382]

This holding is in accord with general principles of administrative law. See 2 Am. Jur. 2d, § 437, at 245; 2 Davis, Administrative Law Treatise, § 11.02, at 41 (1958). The recent- cases reflect the policy of allowing administrative agencies to develop appropriate procedures for hearing matters that come before them. F. T. C. v. Flotill Products, Inc., 389 U. S. 179, 88 S. Ct. 401, 19 L. Ed. 2d 398 (1967); Younger Brothers, Inc. v. United States, 238 F. Supp. 859 (S. D. Tex. 1965); Younkin v. Boltz, 241 Md. 339, 216 A. 2d 714 (Md. Ct. App. 1966). As noted in Laba, supra, 23 N. J., at 383, “* * * if administrative tribunals are to he permitted to function effectively they likewise must have broad powers to adjust their procedures in furtherance of their proper objectives.”

It is generally held that the requisites of an administrative fair hearing are satisfied so long as one who participates in the ultimate decision reads and considers all of the evidence presented. Morgan v. United States, 298 U. S. 468, 56 S. Ct. 906, 80 L. Ed. 1288 (1936); 2 Am. Jur. 2d, supra; Davis, supra. Indeed, in Asbury Park, supra, relied on by appellant, onr Supreme Court made new findings and an independent determination of the administrative issue, based on its reading of the transcripts of the hearings.

The Board’s decision that it may continue the hearings with less than a quorum of the entire Board present, subject to a transcript of the entire case together with all exhibits being provided to every member of the Board, is a realistic approach to the problem. We are satisfied that it is a fair and reasonable one, and is not in conflict with the statute, or ease law.

Appellant concedes that no principles of due process are involved. However, it points out that a full quorum of the Board has been sitting in all of the hearings to date, during which almost the entire “State’s case” has been presented. Shelton argues that it would be unfair to have its case presented at hearings at which less than the same full quorum ivas present, and that the members of the Board who are to participate in the decision should observe and hear Shelton’s witnesses so as to fully know and respect their character and thus know the character of the institution whose license the State now asks the Board to revoke.

We find no disadvantage or prejudice to Shelton. The issue is whether Shelton has satisfactorily complied with standards estabilshed for the conferring of a degree. This question can be fairly and intelligently resolved on the record without requiring the full quorum of the Board to attend all of the hearings.

Affirmed.


text:
    DENNIS R. BIRUK, AN INFANT BY HIS GUARDIAN AD LITEM, GEORGE BIRUK, AND GEORGE BIRUK, INDIVIDUALLY, PLAINTIFF-RESPONDENT, v. WILLIAM WILSON, DEFENDANT-APPELLANT. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 6, 1970
    Decided April 10, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. John J. Ronca argued the cause for appellants (Messrs. Oppenheim & Oppenheim, attorneys).

      Mr. Nathan Rosenhouse argued the cause for respondents (Messrs. Rosenhouse, Gutter cG Zuckerman, attorneys).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

The Unsatisfied Claim and Judgment Fund (Fund) appeals from a Law Division order directing it to pay plaintiff Dennis E. Biruk $8,000 and his father George Biruk $3,200 — $2,000 on his per quod claim, thus exhausting the $10,000 statutory maximum for injuries to a single individual, and $1,200 for property damage.

This action is the result of a head-on collision between an automobile driven by Dennis Biruk and owned by his father, and an automobile driven by Wilson and owned by his uncle Stone. The Stone car was uninsured. Two passengers in the ear driven by Wilson and the passenger in the car driven by Biruk sued Wilson, Stone and the Biruks. The Biruks sued Wilson and Stone. In a consolidated trial the jury determined that Wilson and Dennis Biruk were negligent and awarded damages totalling $69,967. On appeal by the Biruks, this court affirmed per curiam. The Supreme Court unanimously reversed and remanded the cases for a new trial. 50 N. J. 253 (1967).

The insurance carrier for the Biruks settled the claims of the passengers for an amount exceeding $20,000. The Fund did not participate in the settlements and has to date paid nothing to any claimant.

Upon retrial the jury awarded Dennis Biruk $8,000 and George Biruk $4,500. Plaintiffs then moved for payment out of the Eund. The trial judge ordered the Fund to pay Dennis $8,000 and his father $3,200, and this appeal followed.

The Eund concedes that plaintiffs have complied with all provisions of the Unsatisfied Claim and Judgment Pund Law, N. J. S. A. 39:6-61 et seq., and are qualified judgment creditors thereunder. The only question raised by the Pund on this appeal is whether it is entitled to credit for sums paid the passengers in settlement of their claims by plaintiffs’ insurance carrier. The Pund insists that under N. J. S. A. 39:6-69, 70 (m), 71 and 73 its exposure in a multiple-claimant situation is limited to $20,000 for one accident, and therefore it need not pay anything to plaintiffs. This is so extraordinary a contention as to amount to a perversion of the statute.

The passengers discontinued their actions after settlement and never became holders of a judgment. Nor have they ever applied for payment out of the Pund under N. J. S. A. 39 :6-69, which deals with qualified holders of valid judgments who apply for payment out of the Pund and which contains the monetary limit of $20,000 for injuries suffered by more than one person in any one accident. Plaintiffs are the only persons in this action who meet that description. They have had recourse to no party other than the Pund and have never received payment from any source whatever. Of course, the passengers who received settlements from plaintiffs’ insurer never became applicants under the Unsatisfied Claim and Judgment Pund Law.

Dodd v. Copeland, 99 N. J. Super. 481 (App. Div. 1968), aff’d 52 N. J. 537 (1968) and Garcia v. Morales, 47 N. J. 269 (1966), on which the Pund relies, are wholly inapposite. It is well to remember the teaching of Robson v. Rodriguez, 26 N. J. 517 (1968):

The Unsatisfied Claim and Judgment Fund Law is remedial legislation that was enacted as a result of concern over the economic hardship imposed upon persons who sustain personal injuries or property damage, or both, caused by financially irresponsible and uninsured motorists, where the claimants have no other source of compensation. Dixon v. Gassert, 26 N. J. 1 (1958). Its primary purpose is to mitigate this evil which springs in the main from the negligent operation of motor vehicles by uninsured persons. ® * * [at 52V-525]

The position taken by the Fund is so tortured as to prevent fulfillment of this legislative policy and would result in an unconscionable miscarriage of justice. What the Fund seeks, in effect, is to penalize plaintiffs because their own insurance company saw fit to promote the public policy favoring the resolution of claims by way of settlement.

The order is affirmed.


text:
    KENNETH HARTMANN, AN INFANT BY HIS GUARDIANS AD LITEM, EDWARD R. HARTMANN AND ELIZABETH L. HARTMANN, AND EDWARD R. HARTMANN AND ELIZABETH L. HARTMANN, IND., PLAINTIFFS-APPELLANTS, v. MAPLEWOOD SCHOOL TRANSPORTATION CO., A NEW JERSEY CORPORATION, BOARD OF EDUCATION, TOWNSHIPS OF MAPLEWOOD AND SOUTH ORANGE, AND T. WILLIAM VAIL, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 6, 1970
    Decided April 15, 1970.

      Before Judges Sullivan, Carton and Halpern.

      Mr. Arnold Koster argued the cause for appellants (Messrs. Sheviclc & Ravich, attorneys).

      Mr. Hugh O’Gorman appeared for respondent, Maplewood School Transportation Co. (Messrs. Cunneen & O’Gorman, attorneys).

      Mr. Harold I. Braff argued the cause for respondent, Board of Education, Township of Maplewood and South Orange (Messrs. Braff, Litvalc & Brtag, attorneys).
   Per Curiam.

The narrow question presented on this appeal is whether a bus driver employed by a company under independent contract with a board of education to transport school children is entitled to be indemnified, under N. J. S. A. 18A: 16-6; for liability incurred in that employment. The statute mandates that such indemnification protection shall be provided whenever any civil action is brought against “any person holding any office, position or employment under the jurisdiction of any board of education, including any student teacher, for any act or omission arising out of and in the course of the performance of the duties as such office, position, employment or student teaching * *

The trial court held that this provision did not extend indemnity protection to the employees of a company furnishing school bus transportation under independent contract ■with the board. We agree and affirm the declaratory judgment in favor of the board essentially for the reasons expressed by Judge Eulop in his opinion reported at 106 N. J. Super. 187 (Law Div. 1969).


author: Consodine, J. C. C.

text:
    MADELINE FLAXMAN, PLAINTIFF, v. NATHAN FLAXMAN, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided April 13, 1970.

      Mr. Louis Sherman for plaintiff.

      Mr. John T. Glennon for defendant (Messrs. Weiner, Weiner and Glennon, attorneys).
   Consodine, J. C. C.

(temporarily assigned). What effect does the remarriage of plaintiff have upon her right to alimony from her first husband when that remarriage was voidable and subsequently annulled?

Case law holds that where the second marriage was Amid, the judgment of annulment revived the alimony provision. Minder v. Minder, 83 N. J. Super. 159 (Ch. Div. 1964).

However, it cannot be disputed that a judgment of annulment of a Amidable marriage in this State renders the marriage null and void from the beginning. Steerman v. Snow, 94 N. J. Eq. 9 (Ch. 1922); Wigder v. Wigder, 14 N. J. Misc. 880 (Ch. 1936).

That being our law it logically follows that there is no difference in effect between a judgment of annulment of a Amid marriage and one of a voidable marriage. In either ease, as has been well said by Chief Judge (later Justice) Cardozo, the marriage “is effaced as if it had never been.” Sleicher v. Sleicher, 251 N. Y. 366, 369, 167 N. E. 501, 502 (Ct. App. 1929). See also 1 Herr, Marriage, Divorce and Separation, § 61, at 90.

Not iiiA-olved in this matter at this time is any question of revision or alteration of the agreed alimony allotvance. N. J. S. A. 2A:34-23. However, it should be noted that defendant’s income is now substantially more than it was at the time of the judgment of divorce and that there is no apparent change of circumstance other than remarriage of defendant.

This opinion is in conflict with that in Sharpe v. Sharpe, 109 N. J. Super. 410 (Ch. Div. 1970).


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

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. VINCENT KEARNEY, JR., PAUL R. KAVANAUGH, HAROLD MATZNER and DOROTHE MATZNER, DEFENDANTS. STATE OF NEW JERSEY, PLAINTIFF, v. VINCENT KEARNEY, JR., HAROLD MATZNER and JOHN C. DE GROOT, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided March 25, 1970.

      Mr. John G. Thevos, Prosecutor, attorney for plaintiff.

      Mr. John W. Noonan, attorney for defendant Kearney.

      Mr. Miles B. Feinstein, attorney for defendant Kavanaugh.

      Mr. Bobert I. Ansell, attorney for defendants Matzner.

      Mr. Bruno L. Leopizzi, attorney for defendant Kearney.

      Mr. Morrill Cole, attorney for defendant DeGroot.

      Mr. Joseph T. Afflitto, attorney for defendants Matzner.
    On motion for leave to release grand jury testimony, etc.
   Crane, A. J. S. C.

The above entitled criminal cases have been tried to conclusion resulting in acquittals of all defendants. As has been noted in another opinion filed simultaneously with this, considerable notoriety has attended the proceedings. In the Matter of Look Magazine (Law Div. 1970).

The Prosecutor of Passaic County now seeks an order of the court that

1. All the testimony presented before the Passaic County grand juries during the course of the investigation of the above-entitled murder cases he released to the general public through the facilities of the news media.

2. All of the materials made available to the defendants in discovery proceedings be so released.

3. The transcript of the record of a hearing before Judge Robert Shaw of the United States District Court for the District of New Jersey, which took place in May 1968 concerning the attorney for defendant Matzner, be similarly released.

The prosecutor contends that an article entitled “Murder, New Jersey Style,” published in the March 10, 1970 issue of Loolc Magazine is adversely critical of the role of his office; that it does not present an accurate picture of the investigation of the murder cases, and that if the article goes unanswered it will seriously undermine public confidence in law enforcement in Passaic County. He now seeks public disclosure of the aforesaid materials to prevent “a great travesty upon justice and irreparable harm to members of the Passaic County Prosecutor’s Office.”

Some of the materials referred to above were introduced in evidence or otherwise used during the course of the two trials. Understandably, counsel chose to use only those portions of the grand jury testimony and other materials which were helpful to their clients’ cases. There remains now a residue of testimony, statements, reports and other similar materials which the prosecutor seeks to have disclosed to the public.

In reality the prosecutor is seeking to retry the cases in the press. He hopes to establish justifiable cause for the actions of his office by public disclosure of the materials in his hands. This is evident from the mention of “irreparable harm to members of the Passaic Oounty Prosecutor’s Office” and the reference to undermined public confidence in law enforcement in this county. Were he or members of his staff prosecuting a libel action or defending a malicious prosecution suit, a disclosure of the materials might be appropriate if relevant to the issues in such litigation. But here there are no such issues being presently litigated.

The use of the news media as a forum for the resolution of issues in criminal cases has been disapproved. Sheppard v. Maxwell, 384 U. S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966) ; State v. Van Duyne, 43 N. J. 369 (1964). The defense as well as the prosecution is prohibited from resorting to the news media for the purpose of creating a climate of favorable opinion before a trial. State v. Kavanaugh, 52 N. J. 7 (1968). Why should a prosecutor be privileged to release evidence to the news media tending to prove defendants’ guilt after they have been acquitted? Ho authority for such a proposition has been submitted. Indeed, the whole rationale of our criminal law suggests the contrary. Through the evolution of the judicial process the theme of fundamental fairness has predominated. State v. Kunz, 55 N. J. 128 (1969). The rules of discovery as well as the rules of evidence are designed to accomplish fairness. Saia v. Bellizio, 103 N. J. Super. 465 (App. Div. 1968), aff’d 53 N. J. 24 (1968). The discovery process enables a defendant to be informed of the extent of the State’s case against him, R. 3:13-3; State v. Tate, 47 N. J. 352 (1966), while the rules of evidence are designed to prevent his being convicted on the basis of untrustworthy information. State v. Bartell, 15 N. J. Super. 450 (App. Div. 1951), aff’d 10 N. J. 9 (1952). Much of the material which is developed during the course of an investigation is inadmissible at a trial. It may consist of hearsay, suspicion, innuendo or opinion. Such material may serve a valuable investigatory purpose and yet not be admissible at a trial. To disclose it all now, after the trials have been concluded, would be manifestly unfair.

Moreover, as the prosecutor has indicated, some of the defendants may yet be tried on indictments of related charges still pending. The disclosure now of information adverse to the defendants in those matters would be violative of the principles of Sheppard v. Maxwell, and State v. Van Duyne, supra.

Traditionally, the proceedings before a grand jury are secret. United States v. Procter & Gamble Co., 356 U. S. 677, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958); State v. Farmer, 48 N. J. 145, 152 (1966); R. 3:6-7. There are many reasons why this must be so. Among them are the need to protect persons who have come forward with information and to protect innocent persons whose names have been mentioned but who have not been charged. United States v. Rose, 215 F. 2d 617 (3 Cir. 1954). At the instance of a defendant grand jury testimony may be disclosed if justice so requires. State v. Moffa, 36 N. J. 219 (1961); R. 3:13-3. And the veil may be broken in the discretion of the court if disclosure would serve a legitimate investigatory purpose and the material disclosed would be pertinent to pending judicial proceedings. Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 211 F. Supp. 729 (D. N. D. Ill. E. D. 1962). Public disclosure, however, has not been sanctioned.

The prosecutor suggests that the interest of persons other than the defendants may be protected by having the court examine the grand jury testimony and other material and exclude those portions which might be inimical to the interest of such persons. And for what purpose is the court asked to play the role of censor ? Essentially the purpose to be served is a private one.

Should a properly constituted investigatory body seek access to the grand jury proceedings and materials gathered in the course of the prosecutor’s investigation, a different question would be presented. Since the matter of disclosure of grand jury proceedings is discretionary, United Stales v. Socony Vacuum Oil Co., 310 U. S. 150, 60 S. Ct. 811, 84 L. Ed. 1129 (1940); United States v. Rose, supra, suffice it to say that an insufficient basis has been presented in this instance to move the discretion of the court.

We have reviewed the transcript of the proceedings before Judge Shaw of the United States District Court. Those proceedings have to do with matters which are the subject of pending disciplinary proceedings both in this State as well as the Commonwealth of Massachusetts. Judge Shaw directed that the proceedings remain impounded. We see no reason why that order should be disturbed at this time.

The motion will be denied.


text:
    JUNE A. MUSCATO AND FRANK V. MUSCATO, HER HUSBAND, PLAINTIFFS-APPELLANTS, v. ST. MARY’S CATHOLIC CHURCH, TRENTON, A RELIGIOUS CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued March 23, 1970
    Decided April 13, 1970.

      Before Judges Sullivan, Carton and Halpern.

      Mr. Boland B. Formidoni argued the cause for appellants (Messrs. McLaughlin, Davies & Abbotts, attorneys).

      Mr. Bichard J. S. Barlow, Jr., argued the cause for respondent (Messrs. Lenox, Giordano, Devlin & Barlow, attorneys).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

Plaintiffs appeal from a judgment in favor of defendant based on a jury verdict of no cause for action.

Plaintiff June Muscato had played bingo in the basement of defendant’s premises and while leaving the building fell and was injured. She claimed that the door area was inadequately lighted and that the saddle or tread of the door was loose and defective. She testified that while walking through the doorway the heel of her shoe became caught under the tread and as she turned to free her foot the door swung back and knocked her to the ground. The charges of negligence were (a) inadequate lighting, (b) a defective tread, and (c) a defective door closer.

The sole issue raised on appeal is whether plaintiffs were prejudiced by a ruling made by the trial court which permitted defendant to show the lack of prior accidents at this doorway. In admitting this evidence the trial court charged the jury that the lack of prior accidents

* * * may not be considered by you as an absence of negligence on the part of the defendant in this particular setting. It may be considered by you only with respect to whether defendant actually knew of a defective condition or should have known.

We conclude that, under the circumstances presented, the trial court’s ruling was correct.

To date, New Jersey is firmly committed to the minority rule that the incidence or absence of other accidents is not admissible in a negligence action to show the dangerousness (or safety) of the particular condition. Karmazin v. Pennsylvania R. R. Co., 82 N. J. Super. 123, 129 (App. Div. 1964). See Annotation, 70 A. L. R. 2d 167 (1960); Annotation, 31 A. L. R. 2d 190 (1953); 29 Am. Jur. 2d, §§ 305, 310, at 350, 355 (1967). Cf. DiDomenico v. Pennsylvania-Reading Seashore Lines, 36 N. J. 455, 464-465 (1962). However, subject to proper cautionary instructions, evidence of prior accidents may be shown when calculated to establish the existence of a condition long enough to bespeak notice thereof to the owner or occupant. Karmazin, supra. By the same token, evidence that there had been no previous accidents arising out of the alleged condition, should be admissible to negate knowledge to the defendant of an alleged defective condition. 29 Am Jur. 2d, § 312, at 359 (1967); Erickson v. Walgreen Drug Co., 120 Utah 31, 232 P. 2d 210 (1951).

In the instant case plaintiffs’ contentions as to liability included inadequate lighting, a loose door saddle and a defective door closer. The trial judge charged the jury that defendant would be liable if it had subjected Mrs. Muscato, a business invitee, to an unreasonable risk of harm and if it either knew or, by the exercise of reasonable care, could have discovered that such a condition existed. Therefore, it was proper for defendant to negate any inference that it might have had, or should have had, knowledge of the alleged conditions. Evidence of the absence of other accidents at the same place under similar conditions was relevant to the issue of actual or imputed knowledge and had probative value. Hardman v. Helene Curtis Industries, Inc., 48 Ill. App. 2d 42, 198 N. E. 2d 681 (1964); McCormick, Evidence, § 167, at 354 (1954).

Affirmed.