author: Crahay, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BOBBY JAMES WALKER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted December 10, 1974 —
    Decided December 23, 1974.
    Before Judges Halpern, Crahay and Aokerma'N'.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Ms. Mary Aurigemma, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mrs. Sara A. Friedman, Assistant Prosecutor, of counsel).
   The opinion of the court was delivered by

Crahay, J. A. D.

Defendant appeals a finding of guilt by the trial judge sitting without a jury of escape, in violation of N. J. S. A. 2A.104^6. A motion for a new trial was denied.

The essential facts are that —

At the time of the alleged offense defendant was serving a sentence at the Essex County Correction Center and had been entered in a work release program, a condition of which was that he would return to the institution each evening after work. On June 25, 1971 he went to his employment but did not return to the Correction Center that evening. He was apprehended five months later.

Defendant contended that when he left the Correction Center for work on the morning of June 25, 1971 he intended to return but while awaiting a bus to return he engaged in a fistfight with another whom he knocked down. As a result of that event he was fearful of returning lest he suffer additional punishment.

The sole point of defendant’s appeal is that he was not guilty of the offense since the State failed to establish the legislatively contemplated crime of escape in that there was no evidence that he left custody as a result of force or fraud.

N. J. S. A. 2A:10A-6 provides:

Any person imprisoned or detained in a place of confinement, or being in the lawful custody or control of a penal or correctional institution or of an officer or other person, upon any charge, indictment, conviction or sentence for any crime, or upon any writ or process in a civil action or proceeding, or to await extradition, who by force or fraud escapes or attempts to escape from such place of confinement or from such custody or control, or leaves the building or grounds of his place of confinement without the consent of the officer in charge, is guilty of a misdemeanor. [Emphasis supplied]

Defendant asserts that at common law the crime of escape consisted of the voluntary departure of a person from the lawful custody of an officer or from any place of lawful confinement. He argues that since the Legislature has included the ingredients of force or fraud in the enactment of N. J. S. A. 2A:104^6 those elements must be proven before a departure from custody constitutes a crime.

We are satisfied that the Legislature did not intend this narrow reading of the enactment since by its very terms it disjunctively makes the offense complete when a person lawfully detained in custody absconds without the consent of the officer in charge. Notwithstanding that at the moment defendant elected to leave his confinement he was not within a building or on the grounds containing him, his absence therefrom was limited to his working hours and the time necessary for travel to and from work. He so agreed. As a practical matter, he was at all times within the custody of the officials at the institution.

In a word, having undertaken intentionally to depart from the custody or control of the institution without the consent of the official in charge, the offense was complete notwithstanding absence of fraud or force. Obviously, to accept defendant’s position here would create havoc in the work release programs presently being utilized, would generate disrespect for the law and further the dilution of institutional morale. State v. Hayes, 52 N. J. Super. 178 (App. Div. 1958).

The legislative intendment we find here is buttressed by the recent enactment creating work release programs, N. J. S. A. 30:8-44 et seq. (Outside Employment and Vocational Training for Certain Prisoners). By N. J. S. A. 30:8-53 the legislature specifically instructs that

Any person admitted to outside labor or a vocational training program under this act who shall escape or attempt to escape while in such status outside the county institution shall be deemed to have escaped and treated in accordance with the law.

We read this later enactment in pari materia with N. J. S. A. 2A:104^6. We must give unity to laws and connect them into a symmetrical system. State v. Brown, 22 N. J. 405, 415-416 (1956); Watson v. Jaffe, 121 N. J. Super. 213, 214 (App. Div. 1972); State v. McCarthy, 123 N. J. Super. 513, 521 (Cty. Ct. 1973).

Affirmed.


source: Caselaw Access Project

author: Gelman, J. S. C.

license: Public Domain

text:
    MAYWOOD EDUCATION ASSOCIATION, INC., MARY ELIZABETH STRICKER AND AMY VAN SADERS, PLAINTIFFS, v. MAYWOOD BOARD OF EDUCATION, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided December 6, 1974.

      Mr. Theodore Simon for plaintiffs. (Messrs. Goldberg & Simon, attorneys).

      Mr. Gerald L. Dorf for defendant.
   Gelman, J. S. C.

Plaintiff Maywood Education Association (association) is the representative of the professional nonsupervisory employees of defendant Maywood Board of Education. The association and the board entered into a collective negotiation agreement for the year ending June 30, 1974. The agreement provides for the payment of retirement compensation to members of the association in accordance with the board’s “Policies and Bylaws” adopted on February 20, 1973. The board’s policy on retirement compensation reads as follows:

The Maywood Board of Education wishes to acknowledge the tenure and service of its personnel who have served the Maywood School District for twenty (20) years or more.
The Maywood Board of Education will award a longevity increment to the last yearly salary to personnel retiring under the rules and regulations of the New Jersey Teachers Pension and Annuity Fund or the Public Employees Retirement System of New Jersey. The formula for determining the increment shall be five (5) per cent of the unused portion of accumulated sick leave days, as of September 1 of the last school year of employment, times the daily rate of pay established by the existing guide at the time of retirement, and providing twenty (20) years or more of service has been in the May-wood School System.
To qualify for the longevity increment, personnel must submit written notification to the Superintendent of Schools on or before December 1 of their intention to retire the following school year.

Plaintiffs Strieker and Van Saders are members of the association who retired during the term of the agreement. Each had served more than 20 years in the Maywood school system and requested retirement compensation in accordance with the terms of the agreement between the board and the association. Strieker had accumulated 144.5 unused sick leave days, and the retirement compensation due to her under the formula is $536.69. In the case of Van Saders, she had accumulated 187 unused sick leave days and her retirement compensation amounts to $705.87.

The board of education notified the association that it would not pay retirement compensation to Strieker and Van Saders on the ground that the provisions of the agreement requiring such payment were “illegal and unenforceable.” The association and the individual plaintiffs instituted this action for a declaration and enforcement of their rights under the agreement.

The board’s position is that the provisions of the agreement for the payment of retirement compensation are in conflict with N. J. 8. A. 18A:30-1 et seq. which, it is said, prohibit any payment by the board for unused sick leave. The cited sections of the Education Law provide generally for a minimum allowance of ten days sick leave in each school year for employees of a school district (N. J. 8. A. 18A:3Q-2), the accumulation of unused sick leave (V. •/. 8. A. 18A:30-3), the discretionary recognition of accumulated sick leave when an employee transfers to a different school district (N. J. 8. A. 18A:30-3.2), the enforcement of employees’ sick leave rights by the Commissioner of Education (N. J. 8. A. 18A:30-5), and authorization to boards of education to grant sick leave in excess of the statutory minimum (N. J. 8. A. 18A:30 — 7).

None of the foregoing sections of Tille 18A expressly prohibits payment by a board of education for unused sick leave. The statutory scheme spells out the minimum standards for sick leave applicable to all school boards and vests in the individual board discretion to exceed the prescribed mínimums. The only statutory limitation on sick leave for school employees is that an employee may not accumulate more than 15 days a year for future use (N. J. S. A. ISA :30 — 7).

Rut the board urges that the absence of express authority to pay employees for unused sick leave should be interpreted as an implied prohibition against such payments. The argument is premised upon the fact that with respect to certain state employees the Legislature has expressly sanctioned payment for unused sick leave. See N. J. S. A. 11:14 — 9. The doctrine of expressio unius est exclusio al-terius is invoked to suggest a legislative intent to withhold equivalent treatment for school employees.

The expressio unius doctrine is, as has often been said, an aid in interpreting legislative intent and

*. * * uguai]y serves to describe a result rather than to assist in reaching it. The final question is whether in a given context an express provision with respect to a portion of an area reveals by implication a decision with respect to the remainder. The issue is one of intention. The answer resides in the common sense of the situation. [Reilly v. Ozzard, 33 N. J. 529, 539, (1960)]

In 1973 (L. 1973, c. 130) the Legislature enacted N. J. 8. A. 11:14~9 which grants to state employees in the civil service (as well as others) “supplemental compensation” benefits upon their retirement equal to one-half day’s pay for each unused sick leave day accumulated during their state employment. While making such payments mandatory for state employees, the Legislature took no action with respect to sick leave pay for any other class of public employees such as school teachers. Its failure to do so, however, cannot be interpreted as evidencing a legislative intent to prohibit payment for unused sick leave to nonstate public employees. Cf. Fred v. Mayor, etc., Old Tappan, 10 N. J. 515, 519—520 (1952); Summer v. Teaneck, 53 N. J. 548, 554-555 (1969). A more reasonable interpretation of its action is that as to other public employees such payments were and continue to be committed to the discretion of the public employers within, their existing statutory authority to compensate their employees.

Thus, as to school boards, N. J. S. A. 18A :27-4 confers power upon them to “make rules * * * governing the employment * * * and salaries and time and mode of payment thereof of teaching staff members.” This statutory grant of authority is broad enough to encompass payment for unused sick leave either as part of the teacher’s annual salary or in the form of additional compensation upon retirement. Cf. Fred v. Mayor, etc., Old Tappan, supra. Whether such payments are to be made rests with the individual board, unless otherwise fixed by a collective negotiation agreement as was the case here. Cf. Teachers Ass'n, Cent. H. S. D. No. 3 v. Board of Ed., etc., 34 A. D. 2d 351, 312 N. Y. S. 2d 252, 256 (1970).

Finally, the board urges that any payment for unused sick leave would constitute a gift of public moneys to private persons in violation of N. J. Const. (1947), Art. VIII, § III, par. 2.

The argument is premised upon the unstated assumption that that employer receives no consideration if an employee forgoes use of his allotted sick leave, or as it used to be said: A day’s pay for a day’s work. But “fringe” benefits which now comprise a significant portion of an employee’s total compensation do not necessarily fit the old shibboleth.

In Teacher Ass’n, Cent. H. S. D. No. 3 v. Board of Ed., etc., supra, the same argument was made with reference to a teachers’ contract which called for payment, upon retirement, of a portion of unused sick leave. The New York Constitution contains a prohibition against gifts of public moneys in language virtually identical to the cited section of our Constitution. In rejecting the board’s claim that the contract violated its Constitution, the New York court said:

In short, the courts have recognized that the State and its municipalities in granting pensions, vacations or military leave are not conferring gifts upon their employees, hut that essentially the promised rewards are conditions of employment — a form of compensation withheld or deferred until the completion of continued and faithful service * * *.
In our opinion, sick leave as a condition of employment enjoys the same shelter from the constitutional bar. It offers an inducement to competent and efficient workers to enter public service; and the right to accumulate unused sick leave encourages the employee to stay in public service and at the same time deters absenteeism for trifling ailments * * *.
Nor do we see any constitutional barrier to the payment of a sum equivalent to a percentage of accumulated unexercised sick leave when the employee dies in service or severs his relationship. That term of the employment as a benefit to the employee equally serves the end of discouraging unnecessary absences and influencing the public servant to continue in employment — an important consideration for the public employer.

The same issue was presented to the Rhode Island Supreme Court in Providence Teachers Union v. School Committee, 108 R. I. 444, 276 A. 2d 762 (1971). The court spelled out in practical terms the consideration received by the employer when sick leave is unused.

"We see nothing in the nature of a gratuity with the award in the controversy. Any teachers who have managed to remain in comparatively good health during their 35 years of toil in the educational vineyards of any municipality and might be eligible for some of the benefits described in section 3-22 are not getting something for nothing. This clause serves a useful function in the educational scheme. This provision calling for the payment of accumulated sick leave after 35 years of service acts as an inducement to teachers to remain in the school system and deters absenteeism for trifling ailments. *• * * It acts as an aid in seeking to insure that the pupils might have a continuity of teaching techniques in their classrooms throughout the school year. Such a clause might save the school administration much toil and trouble as it seeks to obtain the services of a substitute to cover for the regular teacher who, after deciding his “sniffles” are a portent of the flu, takes advantage of some of his unused sick leave. Upon reflection, it is obvious that any city or town, its school committee and its citizens can benefit by offering a retirement award such as .the one contemplated by section 3-22.

The precise issue presented here has not been passed upon by a New Jersey court in any reported opinion. However, decisions have been rendered with respect to other forms of fringe benefits which were asserted to be violative of the gift provisions of our present and past constitutions. In Lynch v. Edgewater, 8 N. J. 279 (1951), our Supreme Court upheld the constitutionality of N. J. 8. A. 38:23-l, which provides for a paid leave of absence to any public employee while undergoing field training as a member of a military reserve unit. A similar result was reached with respect to payment of police pensions, Hayes v. Hoboken, 93 N. J. L. 432 (E. & A. 1919); Emanuel v. Sproat, 136 N. J. L. 154 (Sup. Ct. 1947), aff'd 137 N. J. L. 610 ( E. & A. 1948), and the payment of salary to municipal employees for periods of illegal dismissal, Jardot v. Rahway, 3 N. J. Misc. 201 (Sup. Ct. 1925). It is fair to say that our courts generally have adopted the view that compensation paid to public employees, whatever the label, is not a gift so long as it is included within the conditions of employment either by statutory direction or contract negotiation.

Judgment will be entered in favor of the plaintiffs in accordance with this opinion.

       The cited section of the Constitution reads as follows:
      ‘No county, city, borough, town, township or village shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association or corporation or become security for, or be directly or indirectly the owner of, any stock or bonds of any association or corporation.”


author: Smith, Harvey, J. C. C.,

text:
    JOHN F. INGANAMORT, MICHAEL J. INGANAMORT, LA SALLE CONTRACTING CORP., A JOINT VENTURE TRADING AS MEDITERRANEAN TOWERS, ALEXANDER SUMMER, TRUSTEE UNDER LINWOOD BUILDINGS NO. 1 THROUGH 13, ROBERT SLATER AND BRUCE SLATER, A PARTNERSHIP TRADING AS SLATER ASSOCIATES, HARRY B. HELMSLEY AND ALVIN SCHWARTZ, GENERAL PARTNERS OF A LIMITED PARTNERSHIP TRADING AS HORIZON HOUSE ASSOCIATES, AND FORT LEE TAXPAYERS AND PROPERTY OWNERS’ COMMITTEE, PLAINTIFFS, v. BOROUGH OF FORT LEE, MAYOR AND COUNCIL OF BOROUGH OF FORT LEE AND RENT LEVELING BOARD OF THE BOROUGH OF FORT LEE, DEFENDANTS. HELMSLEY-SPEAR, INC., MANAGING AGENT FOR HORIZON HOUSE ASSOCIATES, PLAINTIFF, v. RENT LEVELING BOARD OF THE BOROUGH OF FORT LEE, MAYOR AND COUNCIL OF THE BOROUGH OF FORT LEE, BOROUGH OF FORT LEE, JACK ADLER, ROGER HILTON, TERRY PARKER AND FRIDA PARKER, HIS WIFE, EDWARD S. ZORN, LEW RASKIN, DAVID ROSS, ARTHUR BAUM AND ROSE HENRI BAUM, HIS WIFE, DEFENDANTS. HELMSLEY-SPEAR, INC., MANAGING AGENT FOR HORIZON HOUSE ASSOCIATES, PLAINTIFF, v. RENT LEVELING BOARD OF THE BOROUGH OF FORT LEE, MAYOR AND COUNCIL OF THE BOROUGH OF FORT LEE, BOROUGH OF FORT LEE, LEONARD RUSKIEWICZ, MARTIN SILVERSTEIN, MARCO CANNALONGA, GILBERT WYLAND AND MARY WYLAND, HIS WIFE, MARTIN ROFFMAN, GERALD BUXBAUM, MILTON WASSERBERGER & BLANCHE WASSERBERGER, HIS WIFE, CHARLES GEIER, FRANK VOGEL, FREDA MESSINGER & LEONIA JONES, DEFENDANTS. HELMSLEY-SPEAR, INC., MANAGING AGENT FOR HORIZON HOUSE ASSOCIATES, PLAINTIFF, v. RENT LEVELING BOARD OF THE BOROUGH OF FORT LEE, MAYOR AND COUNCIL OF THE BOROUGH OF FORT LEE, BOROUGH OF FORT LEE, DAVID B. GOLDSTEIN, MOLLIE NUSSBAUM, MICHAEL DE MASI, THOMAS FLANAGAN & MAY FLANAGAN, HIS WIFE, WILLIAM BRONSON, ELLEN B. ROBB, JOSEPH WEISSMAN, HAROLD ZIMMERMAN & MYRNA ZIMMERMAN, HIS WIFE, AND MURRAY SCHWARTZ, DEFENDANTS. ALEXANDER SUMMER, INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. RENT LEVELING BOARD OF THE BOROUGH OF FORT LEE, MAYOR AND COUNCIL OF THE BOROUGH OF FORT LEE, BOROUGH OF FORT LEE AND ROBERT HEINER, DEFENDANTS. JOHN F. INGANAMORT, MICHAEL J. INGANAMORT, LA SALLE CONTRACTING CORP., A JOINT VENTURE t/a MEDITERRANEAN TOWERS, HARRY B. HELMSLEY AND ALVIN SCHWARTZ, GENERAL PARTNERS OF A LIMITED PARTNERSHIP t/a HORIZON HOUSE ASSOCIATES, R. R. H. & ASSOCIATES, A PARTNERSHIP t/a CARRIAGE HOUSE, SLATER ASSOCIATES, A CORPORATION OF THE STATE OF NEW JERSEY, t/a PRESIDENTIAL APARTMENTS, CENTER AVE. REALTY INC., A CORPORATION OF THE STATE OF NEW JERSEY, t/a CRYSTAL HOUSE, PEMBROKE DEVELOPERS, A PARTNERSHIP t/a PEMBROKE OF FORT LEE, GEORGE ROTHMAN, IRA GROSSMAN, HELENA CANTOR, SANDRA FEINMAN, AND KAREN WAXBERG t/a REGENCY TOWER, A PARTNERSHIP, CHARLES LUPPINO AND ROSARIO LUPPINO, A PARTNERSHIP, t/a HAMPSHIRE HOUSE, TAMBURELLI PROPERTIES, INC., A CORPORATION OF THE STATE OF NEW JERSEY t/a BELLA VISTA APARTMENTS, NEW JERSEY REALTY COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY t/a PALISADE GARDENS APARTMENTS, AMERICANA ASSOCIATES, INC., A CORPORATION OF THE STATE OF NEW JERSEY t/a COLONY HOUSE APARTMENTS, WINCHESTER ASSOCIATES, TERRACE ASSOCIATES, WHITE MANOR ASSOCIATES, AND DEARVILLE TOWERS, LIMITED PARTNERSHIP OF THE STATE OF NEW JERSEY, RIVERVIEW REALTY CO., A PARTNERSHIP OF THE STATE OF NEW JERSEY t/a RIVERVIEW TOWERS APARTMENTS, PLAINTIFFS, v. THE BOROUGH OF FORT LEE, A MUNICIPAL AND BODY POLITIC OF THE STATE OF NEW JERSEY, MAYOR AND COUNCIL OF THE BOROUGH OF FORT LEE AND RENT LEVELING BOARD OF THE BOROUGH OF FORT LEE, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided December 18, 1974.

      Mr. Richard F. Aronsohn for plaintiffs John E. Inganamort, et als (Messrs. Aronsohn, Kahn & Springstead, attorneys).

      Mr. Francis B. Rusch for plaintiffs Helmsley-Spear, Inc. and Alexander Summer, Inc.

      Mr. Armand Pohan for defendants Borough of Fort Lee and Mayor and Council of Borough of Fort Lee (Messrs. McCarter & English, attorneys).

      Mr. Robert Fuchs for defendant Rent Leveling Board of the Borough of Fort Lee (Messrs. Fuchs & Altschul attorneys).
   Smith, Harvey, J. C. C.,

Temporarily Assigned. This is a consolidation of six separate actions instituted by numerous owners of multi-family residences seeking to invalidate Fort Lee Rent Levelling Ordinance 74-26 and to overturn the actions of the Fort Lee Rent Levelling Board.

The ordinance in question purported to amend Ordinance 72-1 by limiting the landlord’s maximum allowable rent increase per year to 2y2% of the previous 12 month rent charged for the premises. We must therefore explore the legislative history of Fort Lee rent levelling in light of recent ease law.

Ordinance 72-1 was enacted on February 2, 1972. Rent gouging in multi-family dwellings had been found to so disturb the housing market that the Borough exercised its delegated police power to protect its citizens. As initially proposed, Section 20 provided for a three year term but before final enactment the viable life span was reduced to one year without proper public notice. The same section provided that termination was to be automatic . . unless specifically extended by the Governing Body by Resolution . . .”. Because previously rent levelling had been solely within the State’s ambit, this ordinance was the subject of court ordered restraints from its inception. The restraints were not lifted until the New Jersey Supreme Court found rent levelling delegable by the State and within the purview of municipal police power. Inganamort v. Fort Lee, 62 N. J. 521 (1973).

Prior to expiration of and pursuant to the terms of Ordinance 72-1, the Fort Lee governing body passed a resolution on January 17, 1973 stating that the emergency still existed, necessitating the continuance of rent levelling for another year. On May 15, 1974 the Borough recognized a need to further restrict rent increases and enacted Ordinance 7U-26 which is the subject of the litigation herein.

At about this time, companion Hudson County rent levelling cases were decided. Albigese v. Jersey City, 127 N. J. Super. 101 (Law Div. 1974); Woodcliff Managament v. Tp. of North Bergen, 127 N. J. Super. 123 (Law Div. 1974). In Albigese, supra, the court held that a windfall rise in rents during a non-controlled period could be subject to retroactive municipal control by legislation creating a base period from which increases would be calculated. Id., 127 N. J. Super. at 114. The same court held that such strictures could only be applied prospectively on landlord-tenant contracts in force prior to enactment and that no retroactive rebates from landlords to tenants could be exacted. WoodcUff Management, supra.

Thereafter landlords appealed the Albigese decision challenging the procedural validity of extension of an ordinance by means of resolution. It was held that extension of legislative matters, as opposed to administrative or procedural matters, could only be effected by ordinance. An extension by resolution was invalid. Albigese v. Jersey City, 129 N. J. Super. 567 (App. Div. 1974).

Séction 20 of Port Lee Ordinance 72-1 provided for extension by resolution. Construed in terms of the holdings outlined, the ordinance ceased to exist after February 2, 1973. Ordinance 74-26 cannot be said to have incorporated an invalid ordinance by reference. Standing alone, this later enactment was deficient because it stated no legislative purpose, set no time limit nor did it set out the rights, duties and liabilities of landlords and tenants pursuant to the enactment. Fort Lee was therefore free from rent levelling control until at least November 6, 1974 when a new ordinance was enacted. No opinion is here offered as to the validity of the November 6, 1974 enactment. The question remains as to what rights and liabilities accrued to landlords and tenants during this 23 month interstices.

The right of a landlord to freely contract with a tenant falls within the protection accorded private property by the United States and New Jersey Constitutions. U. S. Const., Amend. V; N. J. Const. Art. 1, ^ 1. But valid legislation enacted pursuant to the governmental unit’s police power for the benefit of the general public would suffice to force that private interest to yield. 5 McQuillin, Municipal Corporations (3d ed. 1969) § 19.37, pp. 493-497. Therefore until February 2, 1973 landlords could only contract with tenants for rent increments equal to the Consumer Price Index formula outlined in Sections 2, 3 and 4 of Ordinance 72 — 1.

The N. J. Const., Art. 4, § 7, 1 5 provides that

No law shall be revived or amended by reference to its titlé only, but the act revived, or the section or sections amended, shall be inserted at length. No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of the act or which shall enact that any existing law, or any part thereof, shall be applicable, except by inserting it in such act.

Municipalities are bound by the Constitution and general laws of the State. After February 2, 1973 no valid rent levelling law existed in Fort Lee. The resolution of January 1973 was an invalid attempt to extend the ordinance. Albigese, 129 N. J. Super. 567, supra. The May 15, 1974 amendment merely made reference to the expired Ordinance 72-1 without setting out its provisions at length. “Without question, where an ordinance is void, a subsequent ordinance, that cannot be enforced of itself, and that purports to amend a single section of the prior ordinance, is invalid.” 6 McQuillin, Municipal Corporation (3d ed. 1969) § 21.05, p. 201. Furthermore even if a rent levelling ordinance were properly enacted on May 15, 1974 it would not have served to revive the original ordinance for the 13 previous months.

Statutes are presumed to operate prospectively only unless express words in the enactment show legislative intent for retroactive effect. Even with express retroactive indication, such legislation will not be given effect if express constitutional provisions are abridged. W. Schaefer, “The Control of ‘Sunbursts’, Techniques of Prospective Overruling,” 42 NYU L. Rev. 631 (1967); Scurlock, “Retroactive Legislation Affecting Interests in Land”, U. of Mich. L. Rev. 1, 6 (1953); 82 C. J. S. Statutes § 414, p. 981.

Decisions overruling previous law and their effect on previous transactions are stictly within the state’s inherent power. Justice Cardozo surveyed the states’ positions on the effect of such overruling holding in Gr. Northern RR v. Sunburst Oil & Refining Co., 287 U. S. 358, 53 S. Ct. 145, 77 L. Ed. 360 (1932). He asserted that there is authority that state courts must give such decisions prospective effect only but there is no doubt that they may so treat decisions. Id. at 364-365, 53 S. Ct. at 148-149. On the other hand, courts may treat overruled cases and/or statutes as if they had never been and thus give the new decision retroactive effect. Id.; 21 C. J. S. Courts § 194, p. 326.

Where fundamental constitutional rights are affected by an overruling decision pertaining to criminal law, retroactive application of remedies afforded by the new decision frequently become available to defendants who have been convicted under the previous construction of the law. United States v. United States Coin & Currency, 401 U. S. 715, 91 S. Ct. 1041, 28 L. Ed. 2d 434 (1970) (5th Amendment right to remain silent must be available to defendant in civil action same as in criminal action); Berger v. Cal., 393 U. S. 314, 89 S. Ct. 540, 21 L. Ed. 2d 508 (1969) (state must make “good faith” effort to procure witness’ appearance at trial for cross examination purposes before preliminary hearing testimony of said witness is available to prosecution at trial); Arsenault v. Mass., 393 U. S. 5, 89 S. Ct. 35, 21 L. Ed. 2d 5 (1968) (right to counsel at trial and other “critical stages” of the criminal proceedings). New Jersey has also applied criminal holdings retroactively. State v. Smith, 37 N. J. 481 (1962), (criminal prosecution in which Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), was applied retroactively and distinguished); State v. Valentin, 36 N. J. 41 (1961) (criminal conviction remanded for retroactive application of Mapp v. Ohio, supra); State v. Murphy, 85 N. J. Super. 391 (App. Div. 1964) (criminal prosecution set aside based on retroactive application of Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)).

“The general rule concerning civil cases [in N. J.] is that a change in law by judicial decision is retrospective in nature . . .” State v. Murphy, 85 N. J. Super. 391, 402 (App. Div. 1964); Arrow Builders Supply Corp. v. Hudson Terrace Apts., 16 N. J. 47 (1954); Fox v. Snow, 6 N. J. 12 (1950); Miller v. McCutcheon, 115 N. J. Eq. 459 (Prerogative Court 1934); Goldberg v. Traver, 52 N. J. 344, 347 (1968). Whether or not the overruling decision will so operate is largely a matter of judicial discretion. State v. Vigliano, 50 N. J. 51, 65 (1967). The only limiting factor would be whether or not retroaction would disturb vested contract or property rights. Comment, “The Effect of Overruled and Overruling Decisions or Intervening Transactions”, 47 Harv. L. Rev. 1403, 1404 (1934); 82 C. J. S. Statutes § 416, p. 992.

Tenants, in the case herein, may assert that their contract with the landlord for this 23 month period at rates governed by a now invalid statute may not be altered because rights thereunder have vested and are constitutionally protected from impairment. But there

can he no protectible contract based on a proviso contained in a void statute. Also, a contract based on an unconstitutional statute is not within the purview of the impairment of obligation clause. The Federal Constitution does not protect contracts which are invalid or illegal as, for example, a grant of privileges in excess of a city’s power ... 11 Am. Jur., Const. Law, § 388, p. 170.

The contracts between landlord and tenant were not entered voluntarily and with equal consideration. The landlord was compelled to adhere to rates which had apparent legislative validity. Penalties for landlord’s failure to comply were incorporated within Section 17 of the ordinance. There was no acquiescence in the contractual rate entered because no possibility existed' at that juncture of the landlord acting other than in compliance with statute and case law. Miller v. McCutcheon, supra, 115 N. J. Eq. at 464; Lutz v. Goldberg, 7 N. J. Super. 288, 292 (App. Div. 1950). In Miller, taxes paid under a law subsequently held invalid were refunded to the taxpayer. Retroactive effect was found essential because it would be ''. . . 'intolerable’ that the state should collect and retain a tax which, as has been definitely and conclusively determined, it has no right whatever to collect. . .” Id. at 464.

A similar line of reasoning was extended to the field of rent control in Few Jersey during the time of federal regulation. A landlord had contracted with a tenant for $86.75 per month. Thereafter rent control went into effect and the Area Director reduced the rate to $77.50. An appeal was taken to Washington and the higher rate was reinstated but four months had elapsed during which the lower rate had been paid by the tenant. The Appellate Division held that the landlord could collect the difference in rates for the four month period because [t]he Act . . . does not create an agreement between the parties . . . [and] substituted performance where there has been a payment and acceptance of a lower rent, cannot deprive the landlord of his right to recover the balance due.” Lutz v. Goldberg, supra at 292. Likewise, any contracts entered during the period when no valid rent controls existed in Fort Lee cannot be considered obligations freely entered for purposes of vesting rights in the tenants which would now deprive landlords of their right to either a higher rental as stated in the contract or the fair market value of such units at that time, whichever is lesser.

The Borough of Fort Lee seeks to invoke the severance clause of Ordinance 72-1 to excise the ordinance’s one year life span. It would then rely on the general purpose clause of said enactment to give continued life to rent levelling from the enactment date of Ordinance 72 — 1 until the stated emergency would cease to exist. There are several infirmities attendant to that interpretation.

. . . [A] saving clause is in aid of interpretation merely, and is not an inexorable command ... It does not do more than turn a presumption of inseparability into one of separability, (cites omitted) Rutgers Chapter, etc. v. New Brunswick, 129 N. J. L. 238, 245 (Sup. Ct. 1942).

The courts should apply the doctrine of separability cautiously in order to preclude usurpation of legislative functions. Heekel, “Constitutional Law”, 4 Rut. L. Rev. 42 (1949-50). “It is not enough that the act be severable in fact; its severability in the event of partial invalidity must also have been within the legislative intention.” State v. Doto, 10 N. J. 318 (1952).

When the Eort Lee Borough Council proposed rent levelling legislation, it was offered to cure a public emergency. The town fathers knew they were in for a fight with landlords and would have to overcome the constitutional question of state presumption in this field. Presumably, to more comport with the limited nature of an emergency, the Borough Council felt a one year duration would be more certain of judicial confirmation than a three year period. Although procedurally deficient, this reduction in time was vigorously supported by the Borough at trial and was eventually sustained by the New Jersey Supreme Court. Inganamort v. Ft. Lee, 120 N. J. Super. 286 (Law Div. 1972), aff’d. 62 N. J. 521 (1973). The Borough thereby relied on the time element stated within Ordinance 72-1 as an essential and integral part of the enactment. The one year limitation must have been an inducement to the ordinance’s promulgation or else the Borough would not have taken last minute steps to supercede the three year duration originally incorporated, which had been properly introduced and been subject to public hearings. Therefore, were the one year clause severed, the entire act would still not be viable because

[a]n act may fall in its entirety if the invalid elements constituted an inducement for the passage of the law, even though not the sole inducement. Even where a severability clause has reversed the presumption of an intent that unless the act operates as an entirety it shall he wholly ineffective, the void provision may “so affect the dominant aim of the whole statute as to carry it down with them”, (cites omitted) State v. Doto, supra, 10 N. J. at 319; N. J. Chapt., Am. I. P. v. N. J. State Bd. of Prof. Planners, 48 N. J. 581, 594 (1967).

Additionally, the placement of the particular proviso, time clause, at the very end of the enactment has more weight than the general emergency proviso, which might be contradictory thereto, and under which the Borough would now have the ordinance deemed efficacious. “The particular intent expressed in a proviso or exception will restrain the general language of the enactment.” Rutgers Chapter, supra, 129 N. J. L. at 243.

The one year limit was a constituent part of Ordinance 72-1. Public notice was given on the basis of a fixed time, and it was subsequently argued and upheld. Inganamort, supra. The Borough cannot now be heard to argue before the same forum that the time clause is severable and thereby indefinitely extend by judicial fiat that which was not enacted initially.

Port Lee may exercise its police power prospectively to preclude a continued burden on their tenants from this interim recovery by the landlords through enactment of a new and valid rent levelling ordinance which would establish a rent base period at a time when valid controls did exist. Albigese, 127 N. J. Super. at 114, supra.

Ordinance 72-1 was the only valid rent levelling enactment Port Lee has ever had. Its effectiveness covered the period from February 1972 to February 1973. Issues concerning actions of the Rent Levelling Board affecting leases during that one year period are not disposed of by this decision.

Summary judgment in accordance with this opinion is hereby granted in favor of plaintiffs.


author: Dalton, J. S. C.

text:
    WALTER STRAUSS, PLAINTIFF, v. STATE OF NEW JERSEY AND FREDERICK CORDES, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided November 20, 1974.

      Mr. Melvin R. Solomon for plaintiff (Mr. Ned J. Parsehian, attorney).

      Mr. Lawrence G. Moncher, Deputy Attorney General for defendants (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Dalton, J. S. C.

This matter comes on before this court on motion of defendant State of New Jersey to dismiss the first count of the amended complaint filed on the grounds of sovereign immunity, and as barred by New Jersey statute N. J. 8. A. 52:4A-1. The motion as filed concerns itself with threshold immunity, namely, whether under the facts of this case plaintiff may even file a complaint against defendant State of New Jersey.

The factual history leading to the filing of the amended complaint is as follows: plaintiff Walter Strauss was convicted in Bergen County on May 14, 1966 for selling marijuana to Frederick- Cordes, an undercover narcotics agent of the New Jersey State Police, in violation of N. J. 8. A. 24:18-4. His principal defense at the trial was that he had been entrapped by Cor des and an informant, Joseph Cor-rolla. His conviction was affirmed by the Appellate Division; certification was denied by both the New Jersey and United States Supreme Courts. Strauss was released on parole after serving five years of a 10-15 year sentence. A writ of habeas corpus was granted by United States District Court Judge Shaw on November 16, 1971 on the grounds that informer Corrolla, an active participant in establishing an atmosphere of confidence both prior to and during the moments of critical conversation preceding the sale of the drug, was not available at the trial. Judge Shaw found that

* * the State offered no assistance to petitioner for production of this witness, who, on the crucial issue of entrapment, may have been able to furnish material proof in support of that defense.
8^» * jJ* H* st" *
* * *' refusal of the State to assist petitioner in obtaining possible exculpatory evidence constituted fundamental unfairness in violation of due process.

Upon this basis the conviction was vacated and the State was directed to move for retrial within 120 days from the date of the writ of habeas corpus. The State did not retry Strauss.

Subsequently, on August 17, 1973, Strauss filed a pro se complaint for civil damages against the State of New Jersey, which was amended on January 28, 1974 by counsel to state a claim for malicious prosecution based upon a conspiracy by Cordes, the State and the informant Oorrolla.

The State, through the Attorney General, has moved for dismissal as to count of the amended complaint which alleges a cause of action against the State of New Jersey. Both parties agreed that the cause of action, if any, arises during the period covered by N. J. 8. A. 52:4A-1. The Attorney General argues that this statute bars any recovery by Strauss against the State under the theory of sovereign immunity. N. J. 8. A. 52:4A-1 provides:

Except for actions founded upon the Constitution of this State or the United States or an express provision of the statutory laws of this State, no action shall be instituted or continued against the State or any department or other agency thereof for the recovery of money damages, based on tort, where the cause of action accrues prior to July 1, 1972.

Plaintiff argues that the complaint alleges a violation of his due process rights under the Eederal Constitution, and his rights under Art. I, par. 10, N. J. Const. (1947) therefore, the cause of action falls within the express exception found in N. J. 8. A. 52:4A-1 which excludes actions founded upon the Constitution of this State or the United States from the immunity provided in the statute.

Prior to 1970 the State of Hew Jersey had traditionally enjoyed sovereign immunity in the area of contract and tort liability. However, in 1970 the Hew Jersey Supreme Court abolished the common-law sovereign immunity of the State in contract actions, P., T. & L. Const. Co. v. Comm’r, Dept. of Transp., 55 N. J. 341 (1970), and in tort actions, Willis v. Dept. of Cons. & Ec. Dev., 55 N. J. 534 (1970).

The Willis case was decided on April 20, 1970, and on June 15, 1970 the Legislature, as a direct response, amended N. J. 8. A. 52.-4A-1, which was intended to bar anjr action against 'the State of Hew Jersey which accrued prior to July 1, 1971. This act was later amended to extend the moratorium period as to torts until July 1, 1972.

Although there have been numerous cases interpreting N. J. 8. A. 52:4A-1, the court has been unable to find any case in which plaintiff had alleged a cause of action ■in tort which was founded on the alleged violation of a constitutional duty. The court, therefore, must now interpret the meaning and effect of this statute upon such a claim. In reaching the decision this court was unable to look to the traditionally accepted aids to statutory construction (there being no introductory statement to the Senate bill), no amendments during passage, and the bill was signed by the Governor without comment. The court, feels that these tools, although they would be useful, are not required since the statute is clear and unambiguous on its face in permitting a civil action in cases in which a plaintiff can establish a constitutional basis for his claim. Although, when a statute is ambiguous on its face, statutory construction will permit analysis of the preamble and history of legislation to determine the legislative intent (Grobart v. Grobart, 5 N. J. 161 (1950)), where the wording of the statute is explicit and clear, the court is not free to indulge in presumption, Bass v. Allen Home Improvement Co., 8 N. J. 219, 226 (1951).

The court is mindful of Sutherland’s warning that

* * "‘independent judicial determination arrived at exclusively from the reading- of the words in the statute does not insure accurate interpretation and thus for the court to assert that the statute is clear and unambiguous is merely to assert that the statute- as read by the court produces a result which is satisfactory to the court. It does not necessarily mean that as read it reflects the legislative intent. L2 Sutherland, Statutory Construction (3 ed. 1943), § 4505]

However, in cases such as this one in which there is no statutory history, the court would be derelict in its duty if it adopted its own independent interpretation of these words when their apparent meaning as single words and as a whole appear clear and unambiguous.

The only remaining issue for this court to decide is whether plaintiff’s cause of action as stated in count 1 of the amended complaint is an “action founded upon the Constitution of this State or the United States.”

In Bivens v. Six Unknown Fed. Narcolics Agents, 403 U. S. 388, 395, 91 S. Ct. 1999, 2004, 29 L. Ed. 2d 619 (1971), the United States Supreme Court stated that “Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.” The court further stated that although a constitutional amendment does not expressly provide for an enforcement by the award of civil damages for the violations thereof,

It is * * well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done. [Id. at 396, 91 S. Ct. at 2004 (quoting from Bell v. Hood, 327 U. S. 678, 684, 66 S. Ct. 773, 90 L. Ed. 939 (1946)]

In Cashen v. Spann, 125 N. J. Super. 386 (App. Div. 1973), a cause of action for civil damages arising from the violation of a plaintiff’s rights under the Fourth Amendment of the United States Constitution was recognized by our Appellate Division. In that case the State was not involved as a party due to plaintiff’s mistaken belief that the County of Morris was responsible, for the actions of the Morris County prosecutor and his agents, [at 403]. While the court did find that the county was improperly pleaded under the theory of respondeat superior, it did not have before it, nor did it discuss, whether the State would have been immune if properly pleaded, [at 403-404],

The significance of the decision is the fact that our courts do recognize tort actions based upon violations of an individual’s constitutional rights.

The State cites three eases to support its position that the State is absolutely immune from suit in tort. First, P. T. & L. Construction Co. v. Comm’r Dept. of Transp., 60 N. J. 308, 315 (1972), which is the third P. T. & L. decision in which the court refused to delay proceeding in contract case/3. The State directs this court’s attention to the Supreme Court’s statement that

Unlike claims in tort as to which the Legislature may understandably be troubled in deciding upon a substantive basis for State liability, there is no comparable difficulty when the claim rests upon an express contract, [at 315].

The State interprets this to mean that while the court disallowed a continuance of immunity in contract eases, it was indicating an intention to allow a complete bar in tort cases for the, distinguishing reasons stated above. However, this statement by the court is not controlling in the case now before this court. Plaintiff here has alleged a cause of action based upon constitutional principles which, regardless of the dictum of the court, is specifically excepted from the immunity afforded by N. J. 8. A. 52:4A-1.

Nothing in the language of the court in the first P. T. & L. case as cited by the State indicates that the court was passing judgment on this clause of the statute, nor was the issue before the court. This court can only assume that the Supreme Court was directing its statements to those torts which do not come within the purview of this limited statutory exception.

Similarly, the court is not impressed with the State’s reliance on Harris v. State, 61 N. J. 585, 589 (1972); Maule v. Conduit & Foundation Corp., 124 N. J. Super. 488 (Law Div. 1973), nor Perillo v. Dreher, 126 N. J. Super. 264 (App. Div. 1974). While these cases did uphold the State’s immunity from suits in tort under N. J. S. A. 52:4A-1, none of the cited cases involved a cause of action founded upon the Constitution of this State or. the United States. Harris involved a prisoner’s suit against the State for injuries sustained when he was assaulted by a fellow prisoner, alleging negligence in duty of care in the “hiring and supervision of proper and competent help.” Harris v. State, 118 N. J. Super. 384, 387 (App. Div. 1972). On appeal to the Supreme Court, Harris v. State, 61 N. J. 585 (1972), the State’s liability was not even asserted by the appellant, [at 590].

Similarly, Maule v. Conduit & Foundation Corp., 124 N. J. Super. 488 (Law Div. 1973), involved a wrongful death action against a highway contractor and the State arising from an auto accident. Clearly, the cause, of action in Maulé did not involve the exception to N. J. S. A. 52:4A-1. However, it is noteworthy that the court in Maulé recognized that

In response to this judicial pronouncement the Legislature enacted L. 1970, c. 98 (N. J. 8. A. 52:4'A-1), which precluded civil liability not based on constitutional grounds until July 1, 1971. [at 491],

Finally, the State relias on Perillo v. Dreher, 125 N. J. Super. 264 (App. Div. 1974), cert. den. 64 N. J. 512 (1974) which was another wrongful death action arising from an automobile collision with a state trooper. In that case plaintiff relied on the second P, T. & L. decision to state that N. J. 8. A. 52:4A-1 was interim legislation imposing only a moratorium on civil actions, and not a reinstatement of the pre-Willis rule. While P, T. & L. held that the statute did not repudiate the State’s contractual obligations, the Appellate Division in Perillo would not extend this holding to tort actions, stating:

It must be recognized that in the context of governmental contract immunity such an interpretation was necessary to avoid the possibility of an unconstitutional impairment of contract rights. No problem of a similar dimension is present in the context of governmental tort immunity to warrant an extension of second P. T. & L. rationale to this case. In fact, the third P. T. & L. Construction Co. v. Commissioner, Department of Transportation, 60 N. J. 308, 315 (1972), specifically recognized the different policy considerations applicable to tort claims. It should also be noted that N. J. S. A. 52:4A-1 was amended to continue the bar to claims in tort after third P. T. & L. [at 268].

The amended complaint as filed asserts a claim for malicious prosecution and does, in the opinion of this court, allege in its first count a violation (by the State through its agents and employees) of plaintiff Strauss’ constitutional right to due process and is, therefore, within the exception to the statutory bar set forth in N. J. 8. A. 52:4A-1.

. For the aforestated reasons,' defendant State of New Jersey’s motion to dismiss the first count of the amended complaint is denied.


author: Porreca, J. C. C.,

text:
    FRANK WATSON AND MARIE WATSON, PLAINTIFFS, v. UNITED REAL ESTATE, INC., DEFENDANT.
    District Court —■ Cumberland County
    December 12, 1974.

      Mr. Ned P. Rogovoy for plaintiffs (Messrs. Rogovoy & Rogovoy, attorneys); Mr. Theodore Henry Ritter for defendant (Messrs. Horuvitz & Perlow, attorneys).
   Porreca, J. C. C.,

Temporarily Assigned. Plaintiffs leased an apartment at the Lake Yiew Manor Apartments, located in Millville, New Jersey. The apartment complex was oAvned by defendant United Real Estate, Inc., whose home office was located in Abington, Pennsylvania. The lease agreement was for a one-year term but the court finds as a fact that such agreement was terminated by mutual consent of the parties approximately four months after its inception. Following termination of the lease agreement defendant lessor refused to refund the security deposit which had been paid by plaintiffs-lessees. Plaintiffs sued for double the amount of the retained damage deposit together with full costs and attorneys fees under N. J. 8. A. 46:8-31.1, as amended November 11, 1974, P. L. 1974 e. 151.

Defendant urges its right to retain the damage deposit as liquidated damages for breach of the lease agreement by plaintiffs. U, cites as support paragraph 38 of the lease agreement which provides, among other things, for retention of the security deposit as liquidated damages in the event of breach of any of the covenants and conditions set forth in the lease. However, under the terms of N. J. 8. A. 46:8-33.1 the lessor is not entitled to retain the damage deposit absent a showing by the lessor of “charges expended in accordance with the terms of a contract, lease, or agreement.”

The right upon which defendant seeks to rely to retain the security deposit as liquidated damages is a contract right. The exercise of this right is expressly made subject to the laws of New Jersey in the very paragraph cited by lessor as the source of the right. However, even absent this contractual provision all terms of the agreement between the parties are subject to the laws of this State and are viable and enforceable only insofar as they are consistent with those laws.

N. J. 8. A. 46:8-31.1 is part of a statutory scheme calculated to protect lessees from overreaching landlords. Watson v. Jaffe, 121 N. J. Super. 213, 214 (App. Div. 1972). This legislation imbued lessees with statutory rights the enforcement of which was not made subject to contractual limitations and avoidances. Watson v. Jaffe, supra. To hold any other way would be to undermine the very purpose of the legislation, i. e., protecting lessees from contractual overreaching by lessors. Therefore, defendant’s contractual rights under a liquidated damages provision in the lease are subject to and limited by the plaintiff’s statutory rights under N. J. S. A. 46:8-21.1. ■ '

That being the case, the statutory mandate is clear. Defendant may only retain so much of the damage deposit as he can demonstrate was expended in accordance with the terms of the lease. Put another way, to retain any part of the damage deposit, a lessor must demonstrate actual damages caused by the lessee, and any retention by the lessor is limited to such damages. The liquidated damage clause is void because it is contrary to the statute. Defendant having failed to' deme onstrate any such actual damage, plaintiffs would appear to be entitled to double recovery, costs and fees under N. J, S. A; 46 :8-21.1 as amended.

Defendant next contends that double recovery under N. J. 8. A. 46:8 — 21.1 is not appropriate in this case because there is no showing that it acted in bad faith. To support its contention defendant cites the opinion of the Bergen County District Court in Burstein v. Liberty Bell Village, Inc., 120 N. J. Super. 54, 58-59 (1972). In that case it was held that where a lessor retains a damage deposit “ ‘in good faith’ but in legal error” a court has the discretion not to grant double recovery. To interpret the statute thusly avoids an otherwise clear legislative mandate.

The Legislature apparently endeavored to develop and enact an overall scheme to protect a tenant. If there is not a fixed, sure and meaningful penalty confronting the landlord in the event he withholds the tenant’s security, then he has no incentive to return the security deposit.. Without the statutory penalty clause the tenant would be entitled only to usual damages, i. e., his out-of-pocket loss, the security deposit. As a practical matter the landlord would have nothing to lose if he waited for the institution of suit. If no action were ever taken, he would not lose anything except that which he was wrongfully withholding. Under N. J. 8. A. 46:8-21.1 any retention of the security deposit by the lessor 30 days after expiration of the term of tenant’s lease is wrongful except to the extent of charges reasonably expended by the lessor in accordance with the terms of the lease agreement.

In any action by tenant * * * for the return of money due under this section, the court upon finding for the tenant * * * shall award recovery of double the amount of said moneys, together with full costs of any action and, in the court’s discretion, reasonable attorneys’ fees. [2y. J. S. A. 46 :8-21.1 as amended; emphasis supplied]

It is the responsibility of the court in construing a statute to determine what the Legislature intended rather than to apply a meaning which merely appears fairer as the statute is used in practice. If the statute works inequitably, it is for the Legislature to work changes. Matawan v. Monmouth City Tax Bd., 51 N. J. 291, 298 (1968).

This is an appropriate case for an award of counsel fees. There was no proof that there was any reason to withhold the security deposit other than under the color of the illegal liquidated damage clause. Accordingly, in furtherance of the legislative scheme, plaintiffs are awarded a counsel fee of $75, which is deemed reasonable under the circumstances.

Judgment is hereby entered for the plaintiffs in double the amount of the security deposit plus costs and attorneys fees.


author: Michels, J. A. D.

text:
    ASSOCIATED UTILITY SERVICES, INC., A NEW JERSEY CORPORATION, APPELLANT, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND INDUSTRY, AND CAROL ANNE HEINISCH, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted December 2, 1974 —
    Decided December 23, 1974.

      Before Judges Michels, Mobgan and Milmed.

      Mr. Robert T. Genovesi, attorney for appellant.

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent, Board of Review, Department of Labor and Indusry (Mr. Stephen Skillman, Assistant Attorney General, of counsel, Mr. Max H. Schloff, Deputy Attorney General, on the brief).
    No one appeared on behalf of respondent Carol Anne Heinisch.
   The opinion of the Court was delivered by

Michels, J. A. D.

Associated Utility Services, Inc. (employer) appeals from a decision of the Board of Beview, in the Division of Employment Security, Department of Labor and Industry, affirming a decision of the Appeals Tribunal holding Carol Anne Heinisch (claimant) qualified for unemployment compensation benefits.

Claimant voluntarily left her job as a clerk-typist and filed a claim for benefits under the New Jersey Unemployment Compensation Law, alleging that she had been harassed by her employer. The deputy in the local claims office of the Division of Employment Security held her disqualified on the ground that she had left work voluntarily without good cause attributable to such work. See N. J. S. A. 43 :21-5 (a). Claimant appealed from that, determination to the Appeals Tribunal. The Appeals examiner, after hearing testimony from claimant and her supervisor, made detailed findings of fact and reversed the determination of the deputy, concluding that claimant had good cause for leaving her job and that no disqualification arose under N. J. 8. A. 43 :21-5(a). The employer appealed to the Board of Review, which affirmed the decision of the Appeals Tribunal on the record below. The employer then appealed to this court.

The employer contends that the evidence does not support the findings of the Appeals Tribunal that claimant had good cause for voluntarily leaving her employment. The Hew Jersey Unemplojunent Compensation Law (N. J. 8. A. 43 :21-5 (a)) in pertinent part provides:

For the week in which he has left work voluntarily without good cause attributable to such work, and for each week thereafter until he has earned in employment * * * at least 4 times his weekly benefit rate, as determined in each case; * * *.

While the statute does not define “good cause,” our courts have construed it (as used in N. J. 8. A. 43:21-5 (a)) to mean “cause sufficient to justify an employee’s voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.” Goebelbecker v. State, 53 N. J. Super. 53, 57 (App. Div. 1958); see also, Zielenski v. Board of Review, 85 N. J. Super. 46, 52 (App. Div. 1964); Morgan v. Board of Review, 77 N. J. Super. 209, 213 (App. Div. 1962). In Krauss v. A. & M. Karagheusian, 13 N. J. 447 (1953), the Supreme Court, in discussing the meaning of “good cause” as used in N. J. S. A. 43 :21-5(a) prior to the 1961 amendment which required the good cause for voluntarily leaving be “attributable to such work,” commented;

* * * The Legislature contemplated that when an individual voluntarily leaves a job under the pressure of circumstances which may reasonably be viewed as having compelled him to do so, the termination of his employment is involuntary for the purposes of the act. In statutory contemplation he cannot then reasonably be judged as free to stay at the job. * *' *. Lat 464]

Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute “good cause” for leaving work voluntarily Zielenski v. Board of Rev., Div. supra, 85 N. J. Super. at 54; Medwick v. Board of Review, 69 N. J. Super. 338, 345 (App. Div. 1961). Intentional harassment of. an employee, however, is an abnormal working condition and constitutes good cause for leaving work voluntarily. See Stevenson v. Morgan, 522 P. 2d 1204, 1206 (Ore. App. 1974).

The New Jersey Unemployment Compensation Law entrusts the determination of the question whether a claimant quit work voluntarily without good cause attributable to such work, in the first instance, to the administrative agency, and its appeals tribunal. Morgan v. Board of Review., supra.

Claimant testified before the Appeals examiner that she had continuously been harassed and mistreated by her supervisor; that very often during the working day she was subjected to undue scoldings by him, and that frequently he called her at home late at night to “give her hell.” Claimant further testified that the calls were so frequent that whenever the telephone rang late at night she would panic and become very upset. She also testified that she made her supervisor aware of the fact that his intentional harassment was upsetting her greatly, and even told him on several occasions that she was “petrified” of him. Nevertheless, the harassment continued.

Late Sunday evening, May 20, 1973, claimant’s supervisor telephoned her at home to tell her that she had again given him the wrong file. In response claimant stated that she had not given him any files. He then asked: “Where the hell can I get a copy ?” When claimant again told her supervisor she had not touched the file, he said “thanks” and slammed the telephone down. She immediately called her supervisor back and told him she would not go to work Monday morning, to which he responded: “Suit yourself. I’ve got a lot of work to do tonight,” and hung up. Claimant did not go to work Monday morning. Her supervisor placed an advertisement in the local newspaper for a replacement, and a new clerk-typist was hired.

While claimant’s supervisor testified that he was happy with the over-all quality of her work and considered her a dedicated and loyal employee, he admitted that he criticized her frequently and often spoke to her in an ungentle manner. He testified that claimant misinterpreted criticism for personal harassment and resigned because she was overly sensitive to such criticism. Claimant’s supervisor denied that she ever communicated her feelings to him, and testified that when he called her Sunday night he did so solely to determine if she knew where a certain file was located, and did not blame her or anyone else. He further testified that he often called employees at their homes, although he admitted that with respect to the location of files he called claimant more often than any other employee.

Our role in reviewing the findings below is to determine “ 'Whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,’ considering 'the proofs as a whole,’ with due regard to the opportunity of the one who heard the witnesses to judge of their credibility * * * and * * * with due regard also to the agency’s expertise where such expertise is a pertinent factor.” Mayflower Securities v. Bureau of Securities, 64 N. J. 85, at 92-93 (1973); Close v. Kordulak Bros., 44 N. J. 589, 599 (1965). In making this determination our court appropriately commented in Morgan v. Board of Review, supra:

s- * * jn reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether we would come to the same conclusion if the original determination was ours to make, but rather whether the factfinder could reasonably so conclude upon the proofs. * * * [77 N. J. Super. at 213]

The fundamental question here is whether claimant had been subjected to intentional harassment by her supervisor, thereby creating such intolerable and abnormal working conditions that she was justified in quitting the job, or whether she was merely over-sensitive to criticism, whether warranted or not, which may be expected in the normal course of employment. The Appeals examiner found in favor of claimant on this factual issue, concluding that she had just cause for leaving her job and that no disqualification for benefits arose under N. J. 8. A. 43:21 — 5(a).

We are satisfied from our study of the record that the findings and conclusions of the Appeals examiner could reasonably have been reached on sufficient credible evidence therein. Therefore, in view of the limited scope of our review, we must affirm the decision of the Board of Review.

The employees further contention that the decision of the Appeals Tribunal is defective in that it does not fulfill the requirement of the Administrative Procedure Act that “A final decision shall include findings of fact * * *” (N. J. S. A. 52:14B-10 (d)) is without merit. The decision of the Appeals Tribunal sets forth specific findings of fact.

Accordingly, the decision of the Board of Review affirming the decision of the Appeals Tribunal on the record before the Appeals examiner is affirmed.


author: Gruccio, J. S. C.

text:
    LOUIS KOTLIKOFF, PLAINTIFF, v. TOWNSHIP OF PENNSAUKEN; MANRICO D’ANASTASIO AS MAYOR; RICHARD KNOPF AS TOWNSHIP ADMINISTRATOR; AND STELLA CIMINO AS TOWNSHIP TREASURER, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 12, 1974.

      Mr. John T. Kelley for plaintiff (Messrs. Quinlan & Dunne, attorneys).

      Mr. Thomas S. Higgins for defendants (Messrs. Higgins, Trimble & Master, attorneys).
   Gruccio, J. S. C.

This matter came on for hearing before the court. At that time the parties agreed that the matter be decided on the basis of the factual allegations included in the pleadings and briefs.

On October 7, 1974 the Courier Post, a Southern New Jersey newspaper, published a special supplement to its regular daily edition. The theme of this supplement was industry and economic development in the greater Camden County area. Appearing in this special supplement was an advertisement elucidating the advantages and programs that defendant Township of Pennsauken (hereinafter township) provided for industry and industrial related personnel. The name of the mayor of the township, Manrico D’Anastasio, also a defendant herein, appeared in the advertisement naming him as the innovator of one of the aforementioned programs.

Plaintiff, a taxpayer and candidate for public office in the township, brought this action in lieu of prerogative writs seeking to enjoin the township, its mayor and several other township officials (all named defendants) from using funds from the township treasury in order to pay for the advertisement.

Plaintiff bases his complaint on two grounds, (1) that an expenditure for such an advertisement would not come within the purview of any appropriation included within the township’s budget and therefore if the township were to expend any monies for such a purpose it would act in violation of N. J. S. A. 40A:4-57, and (2) that the advertisement constituted a “political advertisement,” in violation of N. J. 8. A. 19 :1-1 et seq., since the advertisement was published approximately one month before the township elections in which the mayor, whose name did appear in the advertisement, was a candidate for reelection.

Defendants admit that the advertisement was published but contend that no violation of law was involved. By way of counterclaim all defendants seek costs, claiming that plaintiff acted in bad faith by instituting this action. Defendant D’Anastasio further counterclaims for damages on the basis of libel.

The major issue in this case and the most difficult one to decide in light of the scarcity of decisions on this point is whether defendants have violated any provision of the New Jersey Local Budget Law, N. J. 8. A. 40A:-4-l et seq.3 specifically N. J. 8. A. 40A:4-57, which provides in part:

No officer, board, body or commission shall, during any fiscal year, expend any money (except to pay notes, bonds or interest thereon) incur any liability, or enter into any contract which by its terms involves the expenditure of money for any purpose for which no appropriation is provided, or in excess of the amount appropriated for such purpose.

It is plaintiff’s contention that there is no specific appropriation in the township’s budget which would allow for the expenditure of monies for the advertisement.

The township’s budget consists of several general categorized appropriations or line items, each of which is further delineated into many specific items. The cost of the advertising was to be charged to “stationery, printing and supplies,” which was a specific item included within the general category “Administrative and Executive-Other Expenses.” Defendants recognize that there is a legitimate question as to whether the expenditure actually does relate to the specific category to which it was charged, but contend and are not contested that the expense is one which could have properly been included within the general account.

Plaintiff argues that since the township did attempt to itemize specific expenditures within a general category, it is bound by those specifics and may not now charge the expenditure to the general account.

The issue to be decided then, is whether a local governing unit has violated N. J. 8. A. 40A:4-57 when it -expends monies for a purpose which can be charged to a general although not specific appropriation within its budget. Our decisional law has dealt with transfers and over-expenditures but not with the issue before the court under the present statute.

The Local Budget Law is intended to control municipal expenditures by line item in order to insure that anticipated revenues equal anticipated expenditures. State v. Boncelet, 107 N. J. Super. 444 (App. Div. 1969). The purposes of local budgetary requirements are to inculcate sound business principles and practices into municipal economic administration, with particular reference to the avoidance of waste, extravagance and ill-considered expenditures, as well as to give the members of the taxpaying public a better understanding of the financial affairs of the municipality. 56 Am. Jur. 2d, Municipal Corporations, § 581 at 633; Murphy v. West New York, 132 N. J. L. 595 (Sup. Ct. 1945).

The local governing body is vested with the authority by virtue of N. J. S. A. 40A:f^22 to promulgate regulations concerning the form, classifications and detail of itemization that the local budget may take.

The obvious problem, which arises in this area is that neither N. J. S. A. 40A:4^22 nor N. J. S. A. 40A:4-57 provides any hint as to the degree of particularization necessary in formulating the required line items. While it is clear that the legislative restrictions imposed by N. J. S. A. 40A: 4^57 would be of doubtful effectiveness were their application limited to the total budget amount, as distinguished from line item appropriations, State v. Boncelet, supra 107 N. J. Super. at 450, it is not clear as to how specific the line items must be.

The issue is reduced to the balancing of policies. The intelligent fulfillment of the objectives of the statutes requires that budget itemization be sufficiently specific in order to disclose with reasonable clarity the purposes for which public funds are to be expended. However, such specificity should not be to such a degree as would destroy the needed flexibility in the course of municipal financial operations.

In construing the aforementioned statutes it must be assumed that the Legislature acted consonant with reason and sound discretion. Restaurant Enterprises v. Sussex Mut. Ins. Co., 52 N. J. 73 (1968), and the statutes are to be read sensibly rather than literally, Schierstead v. Brigan tine, 29 N. J. 220 (1959); In re Summit v. Elizabeth Trust Co., 111 N. J. Super. 154 (App. Div. 1970).

It would clearly be unreasonable to expect local governing bodies to anticipate, and so provide for by specific line items, every possible expense that they might incur. In fact, it has been held, under a predecessor of our Local Budget Law, that a local budget which includes only appropriations covering broad areas would be valid. Becker v. Newark Board of Comm’rs, 11 N. J. Misc. 902 (Sup. Ct. 1933). Indeed, a comparison between the earlier and present budget laws discloses that the latter is even more permissive in allowing general appropriations than the statute so interpreted by the court in Becker.

Although taxpayers should be apprised in reasonably specific terms of amounts to be spent for certain purposes, it is not necessary, and indeed it would be impossible for all practical purposes, to state all the subordinate items in such meticulous detail as to deprive local governments of the elasticity in management that generalization would allow. 15 McQuillin, Municipal Corporations (1970 rev. vol), § 39.40 at 125-126, citing Becker v. Newark Board of Comm’rs, supra 11 N. J. Misc. at 906.

In light of this I find that the budget does provide an appropriation to which the expenditure for the advertisement may be charged, viz, the general appropriation designated “Administrative and Executive-Other Expenses”.

As discussed earlier, the format and degree of particularization of local budgets are specifically to be determined by the local governing body. It is not within the province of the judiciary to interfere with this process. However, when a local budget is composed of only general appropriations the governing body so adopting that budget is inviting litigation to determine whether a given expenditure does indeed rationally relate to a given appropriation. Although particularization is not required by the statute beyond that discussed supra, prudent local government administration demands it, even if only for internal accounting or other administrative activities.

To hold otherwise would, in effect, be to penalize those prudent local governments which attempt to be as specific as possible in preparing their budgets, in that it would subject them to a greater potential for N. J. 8. A. 40A:4-57 violations than those local governments which merely include general appropriations in their budgets.

Plaintiff also alleged that defendant D’Anastasio, in causing the advertisement to be published, violated some provision of the New Jersey Election Law, N. J. 8. A. 19:1-1 et seq. However no indication was made, nor evidence produced, which would identify the nature of the violation or the specific section of the statute violated. Plaintiff has simply failed to meet his burden of proof on this count. Defendants’ motion for dismissal of the complaint on this count is granted.

Defendant D’Anastasio’s claim against plaintiff on the basis of libel cannot be sustained. In New Jersey a person who falsely and without privilege to do so publishes a statement imputing to another conduct constituting a criminal offense is liable, without proof of special damages, if the offense charged is the type which, if committed, would be chargeable by indictment. Sokolay v. Edlin, 65 N. J. Super. 112 (App. Div. 1961). Plaintiff, through his complaint, did publish a statement imputing criminal actions chargeable by indictment on the part of defendant D’Anastasio. However, since the statement was made in the course of a judicial proceeding and related to the subject matter of that proceeding, plaintiff was absolutely privileged to make the statement and thus has a complete defense in the action. J. D. Const. Corp. v. Isaacs, 51 N. J. 263 (1968); Rainer’s Dairies v. Raritan Valley Farms, 19 N. J. 552 (1955); Genito v. Rabinowitz, 93 N. J. Super. 225 (App. Div. 1966). Plaintiff’s motion to dismiss the counterclaim on this count is granted.

All defendants in this action seek to recover costs from plaintiff, claiming that in filing the complaint he acted in bad faith. Under N. J. 8. A. 2A:15-59 the trial court is granted broad discretionary authority to award costs to any party. Normally, when a plaintiff files suit and unjustifiably charges a defendant with illegal activity only for the purpose to harass or to embarrass defendant, a situation arises which" would warrant the trial court’s granting costs to defendant in order to indemnify him against the expense of vindicating a right invaded by plaintiff. Abalene Exterminating Co. v. Oser, 125 N. J. Eq. 329 (Ch. 1939). However, due to the novelty of the budgeting issue, I cannot find that plaintiff in filing this action acted in such an unjustifiable manner as to warrant charging him with defendants’ costs!

Since I find no violations of any statute on the part of defendants, judgment is granted dismissing the complaint.


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

text:
    ENERY VIRUET, ADMINISTRATRIX AD PROSEQUENDUM OF JOSE GARCIA, DECEASED, PLAINTIFF-APPELLANT, v. JORDAN SYLVESTER AND THE CITY OF TRENTON, NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued December 17, 1974 —
    Decided January 14, 1975.

      Before Judges Halpern, Crahay and Ackerman.

      Mr. Laurence I. Tomar argued the cause for appellant (Messrs. Tomar & Kamensky, attorneys).

      Mr. Robert E. Monaghan argued the cause for respondents (Messrs. Morgan, Melhuish, Monaghan, McCoid and Spielvogel, attorneys).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

The complaint in this wrongful death action (there was no pretrial) charged Jordan Sylvester, a Trenton policeman, and his employer, the City of Trenton, with the death of Jose Garcia “* * * without an excuse or justification, in a negligent, wanton and reckless manner, * * The case was tried on the issue of liability by the trial judge, without a jury, who entered a judgment in respondents’ favor and against appellant.

It is essential to briefly outline the divergent factual contentions to understand the issues presented on appeal. Respondents’ version follows: At about 10:45 p.m., on March 13, 1970, uniformed Trenton police officers Jordan Sylvester and Charles Betz, while on routine patrol in their police car, observed a speeding car run through a stop sign. Having given chase, the officers ultimately forced the car driven by decedent to a stop at an angle, thus effectively cutting him off. Several passengers were in decedent’s car at the time. As Sylvester exited his patrol car, decedent backed up his car and then “came [with the car] rushing towards” him. It appeared to Sylvester that decedent’s intention was to run him over and kill him. After shouting “stop, stop,” he fired two shots at the on rushing car resulting in decedent’s death. The two passengers in decedent’s car attempted to escape but were immediately apprehended by the police. Sylvester’s version of the incident was, in all material respects, corroborated by Officer Betz.

The testimony of the passengers in decedent’s car was that after decedent stopped his car, he backed up but never again went forward. The shot that killed decedent caused the cai-to go out of control and hit a parked vehicle. They denied decedent violated any of the motor vehicle laws while driving the car.

In rendering his oral decision, the trial judge made certain definite findings of fact, based on his interpretation of the applicable law, although he expressed his views in not too clearly a manner. It is crystal clear that he found as a fact that he believed the police version of the incident; that Sylvester had probable cause to believe decedent intended to run him down; that he used his gun in self-defense and had not acted wantonly or recklessly; that Sylvester was “negligent”, and that decedent was contribuíorily negligent. Except for his finding Sylvester to be negligent, we are in complete accord with his conclusions that Sylvester was not liable.

We disagree with the trial judge’s finding that Sylvester was negligent. The term “negligence” in the law has many different connotations and applications. The rule of law in determining negligence in this type of situation is that when one is confronted with an emergency, with no time for thought, or to weigh alternative courses of action, but must make a speedy decision based on impulse and instinct gained from experience, the finder of fact, using the reasonable man test, may absolve him from liability even if a wiser course might have been selected if time permitted due deliberation be given to the matter. See Ettin v. Ava Truck Leasing, Inc., 53 N. J. 463, 485-486 (1969); Harpell v. Public Service Coordinated Transport, 20 N. J. 309, 317 (1956); Prosser, The Law of Torts (4 ed. 1971), § 33 at 168-173. Giving due deference and weight to the fact that Sylvester is a trained police officer who is taught to use his gun only under the most extreme circumstances, we are satisfied that the dynamics of the existing situation warranted the application of the enunciated doctrine of law.

The final issue presents a novel problem which has received very little treatment, if any, by our courts. Prior to trial, Garcia’s death was under investigation by the Mercer County Grand Jury. Sylvester testified before the Grand Jury, and ultimately it returned no bill of indictment against him.

By way of discovery in the civil proceeding, appellant sought to obtain a copy of Sylvester’s grand jury testimony. This request was predicated upon a story in The Trenton Times newspaper, which purported to be different than the testimony given by Sylvester at trial. After argument, the request made by appellant was denied, as was the application to us for leave to appeal. We believe the court erred in refusing to permit the requested discovery for several reasons.

(1) Under R. 3:6-6(a), (b) and (e), the testimony of witnesses called before a grand jury shall be recorded by an appropriate device or stenographer. As a matter of practice, a defendant in a criminal case, upon his request, may obtain for examination prior to trial, almost as a matter of course, his own testimony or that of any witnesses called before the grand jury. If necessary, the trial judge in his discretion may, on his own initiative or in consultation with the prosecutor, make such protective order as will safeguard the required secrecy of the grand jury proceedings, but still protect the individual rights of a defendant or other litigant. B. 3:13-3(d). We perceive of no sound reason, in law or morality, why a civil litigant should not be entitled to the same right of discovery as a defendant charged with crime. See United States v. Nixon, 418 U. S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974); Marinelli v. New York, 71 Misc. 2d 62, 335 N. Y. S. 2d 545 (1972).

(2) In view of the liberal civil discovery practice utilized today under our Supremo Court Rules, and since Sylvester was not indicted, there would appear to be no sound reason to withhold the testimony sought by appellant. If justice is to be meaningful, absent a good reason for not doing so, the search for the truth should not be unduly circumscribed. See State v. Montague, 55 N. J. 387 (1970); State v. Farrow, 61 N. J. 434 (1972).

Therefore, the matter is remanded to the trial judge with directions that (1) by January 30, 1975 he permit appellant to examine and make copies of so much of Sylvester’s grand jury testimony that he, in his sound discretion, feels is relevant and proper; (2) that appellant have until February 14, 1975 to move for a new trial, or other relief, (3) if a motion for a new trial is made, the same shall be decided by the trial judge and returned to us, with a full transcript of the proceedings, by April 1, 1975. If no application is made to inspect the grand jury minutes, or no new trial application is made within the time allotted, the judgment below will be deemed affirmed for the reasons expressed herein. We retain jurisdiction for the limited purposes enunciated.


author: Kole, J. A. D.

text:
    STATE OF NEW JERSEY, RESPONDENT-APPELLANT, v. LEO ITALIANO, MOVANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted January 7, 1975
    Decided January 16, 1975.

      Before Judges Carton, Crane and Kole.

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent-appellant (Mr. Robert W. Gluck, Deputy Attorney General, of counsel and on the brief).
    No brief was submitted on behalf of movant-respondent.
   The opinion of the court was delivered by

Kole, J. A. D.

The State appeals from an order of January 24, 1974, entered by the trial court, expunging the records of convictions of Leo Italiano (hereafter referred to as “defendant”) for possession of lottery slips and bookmaking.

In 1960 defendant was convicted in this State of charges of possession of lottery slips (now N. J. S. A. 2A:121-3) and bookmaking (N. J. S. A. 2A:112-3). The convictions resulted in suspended sentences of one to two years and two to three years, respectively, to State Prison on the convictions for possession and bookmaking. In addition, there were imposed fines of $1,000 for the possession charge and $5,000 for bookmaking.

Defendant petitioned the court pursuant to N. J. S. A. 2A:164-28 which permits expungement of conviction records under specified conditions. Defendant satisfies all of the conditions except with respect to the bookmaking conviction. Under the statute convictions for specified crimes, such as kidnapping, perjury, treason, robbery or burglary, may not be expunged. Bookmaking is not a crime so explicitly excluded from statutory relief.

However, by its terms the statute only applies to “cases wherein a criminal conviction has been entered against any person whereon sentence was suspended, or a fine imposed of not more than $1,000.” [Emphasis supplied]. The language is clear. The court may not change it by endeavoring to effect what it conceives to be a fair result through the process of interpreting an unambiguous provision.

The court below mistakenly construed the statute as intending to permit all misdemeanor conviction records to be expunged. It reasoned that since the maximum fine for a misdemeanor is $1,000, N. J. S. A. 2A:85-7, the legislative use of the $1,000 fine limitation in the expungement statute evidenced an intent that it apply to all misdemeanors. This, together with the statute’s orientation toward rehabilitation, persuaded the court to grant the petition with respect to the record of the bookmaking conviction.

One of the criteria for relief under the act is the sentence involved. If the court imposed a fine in excess of $1,000, there is a plain legislative determination that the rehabilitative prospects of the offender is such that he should not be granted the privilege of having that conviction record expunged. Bookmaking has been designated by the Legislature as a crime carrying a maximum fine of $5,000, or imprisonment of five years, or both. It is obviously viewed as more serious than a misdemeanor which carries a maximum penalty of a $1,000 fine and 3 years imprisonment, or both.

Where the line should be drawn with respect to the fine limitation for expungement purposes is a matter of legislative policy in the sensitive area of law enforcement which1 the court should not disturb. We cannot say that the demarcation so made in the statute is unreasonable. See In re Application of Raynor, 123 N. J. Super. 526 (App. Div. 1973).

Accordingly, the order of January 24, 1974 is reversed to the extent that it expunges the record of defendant’s conviction for bookmaking. It is affirmed with respect to the expungement of the record of his conviction for possession of lottery slips or “number slips.”

      The State indicates that both convictions arose out of one criminal transaction. Thus, we need not be concerned with the situation where one offense was committed subsequent in time to the other. See State, v. Chelson, 104 N. J. Super. 508 (Cty. Ct. 1969). Under these circumstances the State does not and cannot object to the expungement of the record of the possession conviction.


author: Per Curiam.

text:
    TIME-DC INC., PLAINTIFF-RESPONDENT, v. TAPPIN’S, INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 7, 1975
    Decided January 22, 1975.
    Before Judges Carton, Crank and Kole.

      Mr. Richard Aloysius Walsh argued the cause for appellant (Messrs. Silverman and Walsh, attorneys).

      Mr. Richard B. Goldsmith argued the cause for respondent (Messrs. Kleinberg, Moroney, Masierson & Schachter, attorneys; Mr. Harold M. Cohen, on the brief).
   Per Curiam.

Plaintiff brought an action on a book account to recover charges for interstate shipping services. Defendant contended that it had paid for the services in accordance with an agreement between the parties based on the quotation of a rate by an employee of plaintiff over the telephone. On the basis of a stipulation of facts the trial court concluded in a published opinion, Time-DC Inc. v. Tappin’s, Inc., 126 N. J. Super. 179 (Cty. D. Ct. 1973), that plaintiff was entitled to recover in accordance with the rate filed by the carrier with the Interstate Commerce Commission and was not bound by the lower rate quoted by its employee.

We affirm essentially for the reasons expressed by the trial court in its opinion. We have also considered the additional contentions raised by defendant on appeal relating to the status of the pleadings and the jurisdiction of the courts of the State of New Jersey and find them to be without merit.

Affirmed.