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

text:
    STATE OF NEW JERSEY, BY THE COMMISSIONER OF TRANSPORTATION, PLAINTIFF-RESPONDENT, v. JULIUS STULMAN, ET AL., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 12, 1974
    Decided July 2, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Mr. Philip R. Carlin argued the cause for appellant Stulman (Messrs. Goldberg & Carlin, attorneys).

      Mr. Julius Stein argued the cause for appellant Airport Interchange Properties, Inc.

      Mr. Richard L. Rudin, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney

      General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

Prior to the institution of these condemnation proceedings in March 1967, the New Jersey Department of Transportation and the New Jersey Turnpike Authority in cooperation had undertaken the substantial work involved in, among other things, the improvement and enlargement of ramps appurtenant to a state highway (Routes 1 and 9), the construction of part of new State Highway 78 and of new access roads, and the enlargement of the Turnpike’s access facilities and plaza. A number of toll booths were to be added to the existing toll booths located at the easterly end of the Turnpike’s plaza which itself lay to the southeast of the property owned by defendant Julius Stulman.

The complaint filed by plaintiff State Commissioner of Transportation sought to obtain title to 3.843 acres of the 9.2347-acre tract owned by Stulman, as well as specified rights in his remaining property, for grading of two roads designated as “Frontage Road” and “Road to Motel,” the construction and maintenance of a headwall, subsurface drains and appurtenances and a temporary road. Also to be taken was the “owner’s right of direct access to and from the Freeway, except that the owner shall have the right of direct access to and from the Frontage Road as far as the line marked ‘Limit of Access.’ ”

Joined as parties defendant to the original complaint were only Mr. and Mrs. Stulman, the bank holding a mortgage on the property, a tenant of part of the property, the State by reason of franchise tax liens, the City of Newark by reason of real estate tax liens and United New Jersey Railroad and Canal Company, described as

[the] successor of The New York Bay Railroad Company, a corporation of New Jersey, by merger February 29, 1956, which by rea-sou of a reservation of a roadway in the deed from The New York Bay Railroad Company, a corporation of New Jersey and The Pennsylvania Railroad Company, a corporation of Pennsylvania, to Newark Airway Terminal, a corporation of New Jersey, dated October 6, 1952, recorded in said Essex County Register’s Office December 10, 1952 in Book 3094 of Deeds at Page 10, has or may claim to have an interest therein.

Thereafter, by two amendments of the complaint, Merit Realty Co., Airport Interchange Properties, Inc., Bay Avenue Corporation and M & F Service Corporation, owners of neighboring properties, were added as parties defendant by reason of their status as holders of rights of way easements as set forth in four specified deeds.

On appeal by both plaintiff and defendants from an award made by condemnation commissioners, the jury found that the value of the land and other property rights taken and the damages sustained by the property to which Stulman still retained title totalled $440,500. Defendants Stulman and Airport Interchange Properties, Inc. (Airport) join in an appeal to this court.

Prior to the taking the westerly line of the Stulman tract, 797 feet in length, ran along the easterly line of a ramp leading to an existing state highway (Routes 1 and 9). The ramp began at a point southwest of the southwesterly corner of the Stulman tract. The line separating the ramp and the Stulman property was at the bottom of the fill on which the ramp was constructed, fill which was three feet high at the southwest corner of the Stulman property and rose to a height of 21 feet at its northwest corner.

The northerly line of the Stulman tract was about 544 feet long, its easterly line 587 feet long and its southerly line 634 feet long. The southerly line was also the northerly line of lands belonging to the New Jersey Turnpike Authority, with “a span of vacant land” extending from that line a distance of about 150 feet to a paved road which ran in a westerly direction from the plaza on which were located the Turnpike’s toll booths.

The 3.8 acres taken by the State consisted of a parcel of land roughly L-shaped. It included substantially all of the most westerly 116 feet of the Stulman property and the southerly portion thereof to a depth which varied from about 100 feet to 200 feet.

As we note later, there then existed a 20-foot paved roadway which is delineated on a survey or map made by Clarke & Hartman, surveyors, in two sections, Route A and Route B. Route B ran in an east-west direction across the southerly portion of the Stulman tract taken by the State. It also extended in a southwesterly direction beyond the westerly line of the Stulman tract a distance of some 135 feet to the foot of the adjoining ramp. It also extended, beyond the easterly line of the Stulman tract, into lands of the United New Jersey Railroad and Canal Company (United) and then curved, to form the section referred to as Route A, running northerly through United’s lands and southerly through lands of United and of the New Jersey Turnpike Authority to the Turnpike’s plaza.

Route B furnished a means of ingress from the foot of the above-mentioned ramp across properties belonging to the Turnpike and the State into the Stulman property and through it, by means of Route A, to the several properties — including that of appellant Airport Interchange Properties, Inc. (Airport) — lying to the east and north of Route A.

Route A furnished a means of egress in a southerly direction from those properties and the Stulman property into the Turnpike’s property at a point beyond the plaza proper, thus permitting use in a westerly direction of a road running from the Turnpike plaza — a road which according to Stulman’s expert is “sometimes called Port Street at that point.” One using the latter road could then, at points lying southeast of the southwest corner of the Stulman property, either (1) turn therefrom in a northerly direction to the foot of the ramp above-mentioned and then proceed up the ramp or into the Stulman property, or (2) turn in a southerly direction into the “Airport traffic circle” and proceed around it to reach the entrance toll booths of the Turnpike, or (3) continue westerly on a narrower road leading under State Highway 1 and 9.

As the result of the taking, and a deed dated December 9, 1966 by which United conveyed to the State adjacent lands and an easement over lands which form part of two 50-foot-wide roads thereafter constructed by the State, Route B and the southerly one-third of Route A were eliminated. One of the new roads, designated as “Frontage Road,” begins at a point in the westerly line of the portion of the Stulman tract which was not taken and then runs adjacent to Stulman’s present property in a northerly direction some 375 feet to the property’s northerly line, where it turns to the west and runs under Highway 1 and 9 to connect with a series of highways. The other road, designated as “Road to Motel,” starts at the northerly terminus of the pfeexist-ing 20-foot paved roadway shown as Route A and then runs westerly along Stulman’s northerly line to join with the “Frontage Road” at the westerly line of the remaining Stulman property.

Access to those roads, both for ingress and egress, is available to Airport by use of the 20-foot roadway which ad'joins its property. Access to those roads, both for ingress and egress, is available to the remaining Stulman property at points in its westerly and northerly boundaries which adjoin, respectively, the “Frontage Eoad” and the “Eoad to Motel.”

The new roads permit access to the several highways in the area and to the enlarged Turnpike plaza albeit, in some instances, by more circuitous routes than formerly were available.

The trial judge left to the jury for resolution the factual issue of whether or not Stulman was left with reasonable access to his remaining lands, adding that:

If you [the jury] determine that reasonable access has been denied to the property owner by reason of the taking, the owner of course, is entitled to be compensated for such loss of access.

While appellant Stulman does not complain of that portion of the charge, he criticizes the first and second paragraphs of the following portion of the judge’s further charge that:

* * * any change in the highway system or traffic patterns or in the ease of traveling to or from any place in or on the highway system — to or from any place in or on the highway system to or from the Stulman property after the taking, as may be shown by these exhibits and testimony, and which has from time to time been referred to as circuity of access, circuity of travel, reachability and words of similar character, may not be considered by you as an element of damage which the property owner may have sustained from the taking of a portion of the property, and you may not make any award of damages on the basis of these elements.
An abutting land owner has no vested right or interest in traffic patterns or the flow of traffic past his premises, and any damages that may have been sustained because of a possible diversion of traffic or change in traffic patterns does not constitute an element of damage to the land remaining after the taking and is not com-pensable and you may not make any award in this case on that basis.
On the other hand, benefits, if any, resulting from the changes in highway systems and traffic patterns at or near the Stulman property may not be considered by you to reduce any damages which the property owner may have sustained from the taking of a portion of its property.

He argues that under the circumstances of this case he was entitled to compensation by reason of his alleged ‘doss of accessibility.” We disagree. The charge accorded with settled law. State v. Monmouth Hills, Inc., 110 N. J. Super. 449 (App. Div. 1970), certif. den. 57 N. J. 133 (1970); State Highway Comm’r v. Kendall, 107 N. J. Super. 248, 252 (App. Div. 1969); Tubular Service Corp. v. Comm’r State Highway Dept., 77 N. J. Super. 556 (App. Div. 1963), aff’d o. b. 40 N. J. 331 (1963); State v. Interpace Corp., 130 N. J. Super. 322 (App. Div. 1974).

A separate and distinct issue is presented by the contention advanced by both Stulman and Airport that their right to use the 20-foot paved roadway for ingress from the foot of the ramp, a point southwest of the Stulman property, and for egress to the Turnpike plaza, existed by reason of private easements of right of way adhering to their respective properties —■ which included in Airport’s case, a right of way over the Stulman property — and that they are entitled to be compensated for the loss of those private easements.

The trial judge, both before and at the trial, ruled that the sole issue to be tried was the value of the land taken and the damage to the remainder. Cf. State v. New Jersey Zinc Co., 40 N. J. 560, 570 (1963). In his view that issue did not call for a determination of whether or not the claimed private easements existed; if Airport had an easement over the Stulman property, it would be compensated therefor out of the condemnation award; if, as Stulman and Airport claimed, they held easements of right of way over properties belonging, respectivefy, to the New Jersey Turnpike Authority and The United New Jersey Railroad and Canal Company, the servient estates, loss of those easements was compensable, if at all, only in condemnation proceedings involving the servient estates.

Eor the reasons set forth in State v. Orenstein, 124 N. J. Super. 295 (App. Div. 1973), certif. den. 63 N. J. 588 (1973), decided after the trial of the instant matter, the trial judge’s rulings were incorrect. In Orenstein we held that a landowner who claims that the condemning authority is in fact taking, in addition to the land described in the complaint, an irrevocable appurtenant easement of right of way over adjacent lands, must present that claim to the court before entry of the order appointing commissioners. That course is essential so that, if the contention is found by the court to be meritorious, the complaint may be amended to include the easement in the description of the land and property rights being condemned. If that course is followed, then the condemnation commissioners, and on appeal the jury, would consider the value of the easement in determining the compensation to which the landowner is entitled.

Further, we ruled in Orenstein that when the property being condemned (the servient estate) is subject to an irrevocable right of way easement for the benefit of adjacent property (the dominant estate), the adjacent landowner thus deprived of his easement is entitled to a separate award therefor. It may not be required to seek compensation out of the lump sum awarded for the taking of the servient estate. We adopted the rule set forth in Jahr, Eminent Domain, Valuation and Procedure, § 160 at 251 (1953), as follows:

If land burdened -with an easement is taken by eminent domain, the owner’s measure of damage is the market value of the land as affected by the easement. The easement itself attaches to the land of the owner of the dominant fee and is appurtenant to his land, and must be valued with reference to it and not as though the easement constituted a separate entity. The owner of the dominant estate must be compensated for the value of the easement taken from him and the measure of damage is the difference in the market value of the dominant estate with the easement and its value without the easement.

Nevertheless, the erroneous rulings made by the trial judge would call for a reversal only if in fact Stulman and Airport’s rights to use the 20 foot right of way, Eoutes A and B, were irrevocable and the substitution therefor of the new means of access — the Frontage Eoad and the Eoad to Motel — not authorized by the easement grants upon which they rely. We may ignore, for the purposes of consideration of that issue, the procedural deficiencies in the manner in which appellants sought to project the issue and their failure to proffer, instead of oral representations, the best evidence with respect to those alleged easements, the deeds creating or recognizing them.

However, an analysis of those deeds is essential to a determination of the issues presented, the rights of the parties and the prejudice, if any, resulting from several rulings in the trial court. We therefore directed that we be furnished with copies of the deeds which created or recognized the easements so that we might ascertain exactly what easement rights were created thereby. The deeds have been furnished to us.

The first reference to the 20-foot roadway is found in a deed dated October 6, 1952 from The New York Bay Railroad Company and its lessee, The Pennsylvania Railroad Company (the railroads),'conveying the 9.2347-acre tract to Newark Airway Terminal. (Newark Airway Terminal conveyed the same tract to Stulman on April 22, 1964.)

Attached to the deed of October 6, 1952 was the Clarke & Hartman survey on which the 20-foot roadway described above was shown as Routes A and B. Although, as shown on the survey, both the westerly end of Route B and the southerly end of Route A extended into and upon lands owned by the Turnpike Authority, neither the deed nor the survey indicates any authority for such extensions.

It is apparent from, the several deeds submitted that both Routes A and B were constructed by The New York Bay Railroad Company. So much of Route B located within the Stulman tract was constructed pursuant to the following reservation set forth in its deed of October 6, 1952 to Newark Airway Terminal:

RESERVING, however, unto the said party of the first part [The New York Bay Railroad Company], its successors and assigns, the full and free right, liberty and privilege of constructing a roadway, which roadway is specifically outlined on the aforementioned survey made by Clarke and Hartman, January 2nd, 1952, over and across the southwesterly portion of the parcel of land hereinbefore described and of using the same as and for a means of ingress, egress and regress to and from remaining land of the party of the first part; and the said party of the first part hereby covenants, for itself, its successors and assigns, that after said roadway is constructed, it or they will, at their sole cost and expense, maintain and keep the same in proper repair so long as said roadway is used by them, and until this easement is finally and formally surrendered by an instrument properly executed and in form for recording.

The portions of Routes B and A lying within the lines of the Stulman tract and those of the railroad’s own property would not in themselves furnish access to public roads; they “dead-end” at the property lines. Those portions of the roadway and the easements to use them were worthless and ineffective unless and until permission was obtained from the Turnpike Authority to permit Route B to extend southwesterly beyond the Stulman tract to the foot of the ramp leading to State Highway 1 and 9 and to permit Route A to extend southerly into the Turnpike’s property.

In fact, such permission did not appear of record until the recording of a “corrective deed” dated March 1, 1961 executed by United New Jersey Railroad and Canal Company (as successor to the New York Bay Railroad Company), by its lessee, The Pennsylvania Railroad Company and by the New Jersey Turnpike Authority. The deed recited that while a deed of October 23, 1951 from the railroads to the Turnpike, transferring title to the property lying south of the Stulman tract and the adjacent railroad lands, had expressly prohibited any “direct passage or access” into the property conveyed to the Turnpike Authority, it was in fact intended “to provide a limited right of access, as hereinafter recited,” to the railroads, its successors and assigns; and that

WHEREAS, it was then, and still is the intent of the parties that access to Port Street and State Highway 25 [now 1 and 9] would be reserved to [the railroad], its successors and assigns; this Deed is executed for the purpose of correcting the said mistake.

The corrective deed of March 1, 1961 then repeats the description of the large tract and other property rights conveyed to the Turnpike Authority by the railroad’s original deed of October 23, 1951.

It also repeated the bar of direct access or passage onto the Turnpike Authority’s lands but then continued with the following paragraphs:

RESERVING HOWEVER, unto the [railroad], its successors and assigns, vehicular egress from the present road (designated as Route A on the attached map) located on lands of the [railroad] to Port Street and State Highway [1 and 9] and vehicular ingress from Port Street and State Highway Route [1 and 9] to property of the [railroad] via the road (designated as Route B on the attached map) located on lands of the [railroad] ; said roads being shown as Routes A and B respectively on the attached map, Exhibit A entitled “Survey at Newark, N. J. for the Pennsylvania Railroad Company, Signed: Clarke & Hartman 2 Jan., 1952, Amended: 1 Dec., 1952, No. 21989.” Said access roadways shall be limited to 20 feet in width.
IT BEING UNDERSTOOD AND AGREED, however, that the [Turnpike Authority] reserves the right to alter, revise, remove and relocate the existing ingress and egress from and to the Turnpike Toll Plaza; provided however, that in so doing, the [Turnpike Authority] shall relocate, or cause to be relocated, if necessary, existing roads A and B and extend them to maintain connections with Port Street and Route 25 (U. S. Highway No. 1). The size, width and capacity of each relocated road shall be equal to the road it replaces.
The manner, means, location and design of the relocated access referred to above, shall be as determined in the sole judgment of the [Turnpike Authority] and as deemed necessary by the reconstruction, enlargement, alteration, modification or extension of the New Jersey Turnpike and its facilities; at no cost or expense to the [railroad] and without payment of any damages or costs to or on behalf of the [railroad], its successors and assigns, for any reason whatsoever.

In view of the provisions of the last two quoted paragraphs, neither Stulman nor Airport was deprived of property rights by reason of the elimination of the preexisting rights of ingress and egress over Routes B and A, respectively, and the substitution of rights of access over the Erontage Road and Road to Motel. Their claim for damages for alleged loss of easements is therefore without foundation.

It is clear that “if the language of an express grant or reservation of an easement authorizes it, the location of the easement may bo changed in accordance with the agreement.” 25 Am. Jut. 2d, Basements and Licenses, § 69 at 477; see also Jaqui v. Johnson, 27 N. J. Eq. 526, 531 (E. & A. 1875).

Here, the relocation of appellants’ means of ingress and egress to and from public roads, resulting from the alteration, revision and expansion of the Turnpike’s facilities and the roads serving those facilities, was expressly authorized by the terms of the easement agreement. The only limitation on the right to effect such relocation was that the “size, width and capacity of each relocated road shall be equal to the road it replaces,” a requirement obviously satisfied by the two new roads, each 50 feet in width as contrasted with the 20-foot width of the replaced roads, Routes A and B.

The trial judge’s decisions barring appellants’ attempts to show damages resulting from the loss of their easements over Routes A and B were therefore correct, albeit for reasons other than those given for the decisions.

The remaining points advanced on appeal by Stulman do not require any extended discussion since we are satisfied that none of them afford any basis for reversal.

On the record here, there is no merit to Stulman’s contention that “'the question whether relocation of the Newark Airport main passenger terminal is part of a single project for which the subject property was taken is a factual question to be presented to a jury.” State v. Jones, 27 N. J. 257 (1958), upon which he. relies, is clearly inapposite.

Hor is there any substance to the arguments, presented without citation of any supporting authorities, that (1) - although, concededly the general rule is that “temporary upset” is not compensable, here compensation therefor should have been awarded, and (2) he is entitled to compensation for the alleged loss of visibility of his property resulting, not from the partial taking, hut from the construction of the new network or complex of highways on property formerly belonging to others. Cf. Public Service Elec. & Gas Co. v. Oldwick, 125 N. J. Super. 31 (App. Div. 1973), certif. den. 64 N. J. 153 (1973).

It may be noted that defendant was permitted to develop, during the examination of his expert witness, that the value of the property as a motel site had been diminished because of the change in the shape of the plot and the fact that a motel would have to face the rear of the property instead of the Turnpike, thus allegedly making it less prominent.

Appellant also challenges five evidential rulings made by the trial judge, but we find no error or abuse of discretion in any of those rulings.

Stulman’s final contention is that he is entitled to a new trial because of allegedly improper statements made by plaintiff attorney in his closing statement to the jury. Ho objections to those statements were interposed when they were made; instead, defendant moved for a mistrial at the conclusion of plaintiff’s summation. The trial judge denied the motion.

The judge’s ruling was proper. While some of the statements made were unduly harsh, and undoubtedly induced the harsh comments in the same vein during defense counsel’s summation, no real prejudice resulted. Particularly is this true because the case was submitted to the jury following a clear and comprehensive charge in which the judge emphasized that the jury was the “sole and exclusive judges of the facts” and should disregard statements as to facts made by counsel and, indeed, by the judge himself, if those statements did not coincide with the jurors’ own recollection of the evidence.

The judgment is affirmed.

       To the extent pertinent, the deeds will be discussed later. They are: (a) deed from The United New Jersey Railroad and Canal Company to Merit Realty Co., dated September 25, 1961, recorded in Book 3831, p. 51; (b) deed from Merit Realty Co. to Airport Interchange Properties, Inc., dated September 30, 1963, recorded in Book 3971, p. 375; (e) deed from The New York Bay Railroad Company and The Pennsylvania Railroad Company to Bay Avenue Corporation, dated December 28, 1953, recorded in Book 3195, p. 261; and (d) deed from the United New Jersey Railroad and Canal Company to M & F Service Corp., dated February 15, 1961, recorded in Book 3779, p. 176.

       Following receipt of the corrective deed embodying the easement over the Turnpike lands, United, by deed dated September 25, 1961, granted Merit Realty Co. — to which it had theretofore conveyed lands which include those now owned by Airport — the right to use Routes A and B. Merit’s deed to Airport is dated September 30, 1963.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    IN THE MATTER OF: A STATE GRAND JURY INVESTIGATION INTO CORRUPTION IN THE LINDENWOLD NEW JERSEY AREA.
    Superior Court of New Jersey Appellate Division
    Argued August 11, 1975
    Decided August 25, 1975.

      Before Judges Lora, Crahay and Bischoff.

      Mr. Lawrence G. Goodman argued the cause for appellants (Messrs. Goodman & Stoldt, attorneys; Mr. Lawrence G. Goodman and Mr. Richard D. McLaughlin on the brief).

      Mr. Howard Allen Cohen, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Howard Allen Cohen on the brief).
   Per Curiam.

These appeals, consolidated and accelerated for disposition, are addressed to two orders entered in the Law Division anent proceedings initiated under the Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings, N. J. S. A. 2A:81-18 et seq. (hereafter the uniform act).

We need not detail the entire factual and procedural background, the essentials being that —

In December 1974, during the course of an inquiry into alleged corruption in the Borough of Lindenwold, one Richard Kahr testified at a public hearing conducted by the New Jersey State Commission of Investigation (SCI). Kahr, under a grant of testimonial immunity, recounted instances of bribery in which he had participated in connection with the development of two housing projects, “Pine-Lake” and “Meadowview,” in Liudenwold in 1971.

The record reflects that as to “Pine-Lake” and “Meadow-view” Kahr operated through limited partnerships, he and another being general partners and appellants — three New York attorneys — being limited partners and, through their New York law firm, counsel to the partnerships.

Included in Kahr’s testimony before the SCI was the statement that he had previously paid $4,000 to appellants’ law firm, ostensibly as fees, and that appellants had returned the money to him to be used as part of a bribe. Kahr testified that appellants were aware of the bribes and in essence agreed to them. (It is appellants’ position throughout that “they had absolutely no knowledge respecting Mr. Kahr’s alleged misdeeds * * *.”)

In December 1974 the SCI, by resolution, referred the matter to the Attorney General, and State Grand Jury proceedings were commenced in January 1975 which have resulted in at least six indictments to date. The State contends that during the grand jury investigation it sought to obtain appellants’ voluntary cooperation by negotiation with their New York counsel but that it was fruitless.

In any event, on May 8, 1975 and pursuant to the uniform act, the Attorney General addressed a petition to Superior Court Judge Schoch, Assignment Judge of the Superior Court, the judge assigned by the Chief Justice of the New Jersey Supreme Court to administer the affairs of the State Grand Jury. That application sought a certification from Judge Schoch to a judge of a court of record in the State of New York that the testimony of appellants and the production of specified records of their law firm and three corporations in which they were allegedly involved were necessary and material to the ongoing State Grand Jury investigation. The certificate issued and an order to show cause to revoke it was denied. Appeal to us therefrom was taken on May 29, 1975. On June 16, 1975 the Supreme Court of New York ordered appellants to produce the records of their law firm for grand jury examination but only after “an appropriate New Jersey court” passed upon appellants’ claims of constitutional privilege. (We have not recited all of the procedural undertakings — including stays by us — not deeming them necessary to our disposition, noting only that a consent order entered in the New York Supreme Court on June 12, 1975 directed production before the State Grand Jury of specified corporate records in appellants’ control.)

As contemplated by the New York court, Judge Schoch conducted a hearing on June 19, 1975 at which one of the appellants testified, and found no privilege in them warranting the nonpToduetion of the law firm’s records relying principally on Bellis v. United States, 417 U. S. 85, 94 S. Ct. 2179, 40 L. Ed. 2d 678 (1974). It was directed that specified documents be produced before the grand jury. On appellants’ application Judge Schoch stayed the effect of the ruling pending an expeditious motion to the New York court on appellants’ “question of hardship.”

More than “hardship” was considered, however. During the pendency of these appeals and in response to this last application Judge Evans of the New York Supreme Court noted appellants’ claim of privilege against self-incrimination and that

Respondents [appellants herein] have objected on various grounds. It was stipulated that at this time their personal presence for questioning in New Jersey was not needed but the Attorney General sought their books and records. Respondents claimed that this would violate their privilege against self-incrimination.
Bellis v. U. S., 417 U. S. 85, 94 S. Ct. 2179, 40 L. Ed. 2d 678 decided that there are circumstances under which there is no privilege with respect to partnership books and records, leaving that issue to be decided factually in each case. Since New York law leaves the decision of privilege to the demanding state, * * *, that question although raised here by respondents, was ordered by this Court to be decided there. After a hearing held for that purpose on June 19, 1975 the Superior Court of New Jersey sitting in Mercer County, held that there was no such privilege in this case.
* *¡: #
Respondents have now applied for a hearing to determine whether or not the production of the books and records constitutes such a hardship, claiming that the decision as to privilege, under the Bellis doctrine, would be decided differently if the decision were to be made in New York.
The rule of law set forth in Bellis is clearly one that should have national application; and while it is clear that a State, for itself, may create standards which give its residents greater protection and rights than is required as a national Constitutional minimum, there is no state policy which requires that books and records should have a greater protection in New York than is required by the Federal Constitution and there are no cases which suggest that the scope of the constitutional privilege against self-incrimination is greater in New York than it is elsewhere.
Respondents argue that the extent of the immunity given to a witness who is compelled to testify before a grand jury in New York is transactional immunity, whereas in New Jersey it is use immunity; and that, therefore, there is a hardship imposed on the respondents if they are required to testify in New Jersey. That may be so where application is made for them to appear and testify themselves; but since it has been decided by a Court of competent jurisdiction that their books and records do not have immunity at all, the question of hardship as to the books and records does not exist.
There is, therefore, no purpose to be served in granting the application to hold this hearing, which is sought in effect to grant a retrial of a matter already decided by a Court of competent jurisdiction in a sister state, and the application is therefore denied.

Appeal No. 3044-74 is addressed to Judge Schoch’s order denying appellants’ motion to revoke his certificate of materiality, and Appeal No. 3374-74 seeks to reverse his order requiring appellants to produce their law firm records before the State Grand Jury. As noted, because of the obvious exigencies of time we have consolidated them and accelerated briefing, argument and disposition.

In seeking to overturn the challenged orders appellants essentially urge that

1. There was no factual basis for the Law Division’s determination that the sought testimony was material to the grand jury’s investigation;

2. Appellants “must be deemed to be targets of the Grand Jury inquiry, and as such cannot be compelled to attend and testify

* it! s».

3. There was no warrant for the certificate since appellants will not enjoy the same immunity in New Jersey as they would in New York, and

4. Appellants’ privileges against self-incrimination under the United States, New York and New Jersey Constitutions extend to their law partnership business records.

We have reviewed the asserted points of appeal against the record, perceive no merit in them warranting reversal and affirm.

1. We view appellants’ challenge to the sufficiency of the basis for the issuance of the certificate of materiality by Judge Sehoch basically as an attack on the credibility and probability of Kahr’s testimony. Their arguments simply do not persuade.

The uniform act, widely adopted in United States jurisdictions, was enacted in aid of comity between states to assist in the orderly and effective administration and prosecution of criminal conduct. In re Saperstein, 30 N. J. Super. 373, 380 (App. Div. 1954), certif. den. 15 N. J. 613 (1954), cert. den. 348 U. S. 874, 75 S. Ct. 110, 99 L. Ed. 688 (1954). The act is entitled to enjoy liberal construction to achieve its aims.

Clearly here, the ongoing State Grand Jury is a necessary and legitimate inquiry into purported municipal corruption. As such it may pursue every meaningful clue and avenue of investigation. United States v. Calandra, 414 U. S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974). In our view, this principle governs the instant matter, including evaluating, testing or buttressing Kahr’s testimonial assertions against parties under investigation. Plainly and simply, nothing in the record warrants disturbing the trial judge’s determination of materiality, as accepted by the Supreme Court of Yew York, of the evidence sought.

2. Contrary to appellants’ claims the record in its present posture does not make evident that they are targets of the State Grand Jury. In re Addonizio, 53 N. J. 107 (1968).

Between January 1975 and the issuance of Judge Sehoeh’s certificate in May negotiations were conducted for appellants’ cooperation. Prior to the grant of the certificate they allege that a Deputy Attorney General threatened them with indictment unless they corroborated Kahr’s testimony. The purported motivation for this tactic was to preclude their testimony as rebuttal witnesses to Kahr’s assertions during the trials of others. This assertion is denied by the State. We deem that the issue is collateral, not requiring resolution since the record clearly and specifically reflects that the State has several times addressed, through the Attorney General’s office to the courts of New Jersey and New York, that appellants are not targets of the investigation. In view of this we reject their argument that

* * * there is a clear probability that appellants will be indicted for either what they tell the Grand Jury or what they don’t tell the Grand Jury if they are required to appear and testify. * * *

We do not know now whether any of the appellants will testify or claim a privilege. If the latter, we do not know if the claim will be honored as having a legal basis. It would be singularly inappropriate to indulge in speculation. Their stated fears are premature. In view of the State’s recorded representations we are not persuaded that at this posture they are “at least potential defendants”. We do

:h * * accept the representations of the Attorney General, made by three of his deputies, that appellants’ cooperation is being sought in good faith in the capacity of witnesses and not targets. * * **

See In re Pitman, 26 Misc. 2d 332, 201 N. Y. S. 2d 1000 (1960). Compare In re Mayers, 9 Misc. 2d 212, 169 N. Y. S. 2d 839 (1957).

3. We view appellants'- arguments that the difference in kind between New York’s grant of immunity (“transactional-’ — McKinney’s C. P. L. §§ 190.40, 190.35 and 50.10) and New Jersey’s (“use and fruits” — N. J. S. A. 2A:81-17.3) as both premature and frivolous. We observe again that we do not know what stance appellants will take if called before the State Grand Jury or if indeed immunity will be offered. See State v. Jennings, 126 N. J. Super. 70 (App. Div. 1972), certif. den. 60 N. J. 512 (1972). In any event, we know of no authority nor does justice or reason mandate that there be an identity of procedural or substantive rules in participating states in order for uniform acts to be applied. The act itself, § 5, mandates only interpretation and construction effectuating its general purpose. In re Superstein, supra 30 N. J. Super, at 380. The highest authority instructs that constitutionally there is no requirement for a grant of transactional immunity before a witness may be compelled to testify. Kastigar v. United States, 406 U. S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). The arguments advanced on this point present no basis for revoking the certificate of materiality.

4. Bellis v. United States, supra is complete authority for rejecting appellants’ contention that their law firm records enjoy a privilege against self-incrimination. Judge Schoch’s essential finding, after hearing the testimony of one of the appellants, that their law firm was an organizational structure not personal to any of them, was well grounded in the record. In our view, any other conclusion worrld have been contradicted. We see pure sophistry in appellants’ contention that since, as partners they are unanimous in their claim of privilege, Bellis is inoperative. So too, their assertion that their multifaceted personal relationships “carried over into the business aspect of their association.” We see no need to discuss the authorities employed by appellants on this point. They are patently inapposite.

Accordingly, stays previously ordered are vacated and the orders under review are affirmed.


author: Larner, J. A. D.

text:
    PASQUALE SALIERNO, PETITIONER-RESPONDENT, v. MICRO STAMPING CO., RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 9, 1975
    Decided September 19, 1975.

      Before Judges Lynch, Ackerman and Larner.

      Mr. George J. Kenny argued the cause for appellant (Messrs. McElroy, Connell, Foley & Geiser, attorneys).

      Mr. Herman M. Wilson argued the cause for respondent.
   The opinion of the court was delivered by

Larner, J. A. D.

This is an appeal from a judgment of the Workmen’s Compensation Division granting petitioner an award which included compensation for total permanent disability.

Petitioner was a power press operator and die setter in respondent’s manufacturing plant. In addition, he was the shop steward for the union which was the bargaining agent for the employees in the plant. On April 13, 1971, after a full day of work, he engaged in a negotiating session with the employer for the purpose of arriving at a new union contract. At this meeting there were present, in addition to petitioner, other representatives of the union as well as several representatives of the employer. Near the end of the meeting an emotional outburst took place at which time the employer’s representative raised his voice and accused petitioner of making ridiculously unreasonable demands. In reciprocal fashion, petitioner became upset and in a loud voice charged that the employer’s representatives were offering nothing for the new contract.

Shortly after this incident petitioner demonstrated symptoms indicative of a heart attack, including, pain in the area of the heart, “a funny feeling” in his neck and throat, and pain in his arm. After his return home ho was taken to the hospital where he remained for 21 days. His treating physician diagnosed the condition as a myocardial infarction.

After a convalescence of three months he returned to work at the end of July but carried out his duties with aid from his fellow workers. He remained under the care of his physician and experienced angina pains which were relieved by taking nitroglycerin pills.

On November 15, 1971 petitioner suffered another heart attack resulting in further hospitalization. This was diagnosed as another myocardial infarction of the same wall as the first, involving another branch of the same vessel. Thereafter he never returned to work.

As it is not uncommon in patients with heart episodes, petitioner suffered from preexisting underlying arterio-sclerotic heart disease with complicating diabetes. The testimony of the physicians produced by petitioner was that both infarctions and the ultimate total permanent disability were causally related to the tension and excitement of the negotiating session of April 13, 1971. The compensation judge found that the occurrence on that date was an accident arising out of and in the course of the employment and, furthermore, accepted the reliability of the conclusions of petitioner’s physicians on the issue of causation as it related to both infarctions.

The primary contention asserted by respondent employee is that the incident at the contract negotiation session did not arise in the course of employment and hence the consequent injury is not compensable.

This issue as it pertains to a setting of a labor negotiation is a novel one in the State of New Jersey. Does an accident occurring during a bargaining session between the employer and employee, who is present as the shop steward and representative of the authorized union, after normal working hours on the employer’s premises arise “in the course of employment” as required by the Workmen’s Compensation Act (N. J. S. A. 34:15-1) ?

We must approach this issue with the established tenet that the act should be given a liberal interpretation to effect the social policy of providing a remedy for injuries sustained by employment. Tocci v. Tessler & Weiss, Inc., 28 N. J. 582 (1959); Complitano v. Steel & Alloy Tank Co., 63 N. J. Super. 444 (App. Div. 1960), rev’d on dissenting opinion below, 34 N. J. 300 (1961). This liberal approach in favor of employees has served to extend the many fact patterns held to constitute activities “arising out of and in the course of employment.” See, e. g., Gerard v. American Can Co., 32 N. J. Super. 310 (App. Div. 1954); Meo v. Commercial Can Corp., 80 N. J. Super. 58 (App. Div. 1963); Cavalcante v. Lockheed Electronics Co., 85 N. J. Super. 320 (Cty. Ct. 1964), affd 90 N. J. Super. 243 (App. Div. 1966).

The basic rule for determining that an injury arises in the course of employment is that it take place within the period of employment at a place where the employee reasonably may be and while he is fulfilling his duties or engaged in doing something incidental thereto. Tocci v. Tessler & Weiss, Inc., supra, 28 N. J. 582; 1 Larson, Workmen's Compensation Law, § 14.00 (1972).

'A corollary to this rule is that an injury is compensable if it “arises out of a risk which is reasonably incidental to the conditions and circumstances of the employment.” Buerkle v. United Parcel Service, 26 N. J. Super. 404, 407 (App. Div. 1953). An employee does not have to be actually engaged in work for the employer at the time of the accident. Van Note v. Combs, 24 N. J. Super. 529, 533 (App. Div. 1953).

In seeking to apply the liberal interpretation of the Workmen’s Compensation Act in favor of employees our Supreme Court has developed the “mutual benefit doctrine” in cases arising out of an employee’s recreational or educational activities. Complitano v. Steel & Alloy Tank Co., supra, 63 N. J. Super. 444, rev'd 34 N. J. 300; Cuna v. Bd. of Fire Commissioners, 42 N. J. 292, 305 (1964); Strzelecki v. Johns-Manville, 65 N. J. 314, 317 (1974).

It is manifest to this court that the so-called “mutual benefit doctrine” should be applied to the facts of this case as a key factor in determining compensability. See Kennedy v. Thompson Lumber Co., 223 Minn. 277, 26 N. W. 2d 459 (Sup. Ct. Minn. 1947).

The petitioner was a shop steward and as such served the mutual interests of the employees and the employer. His function in that capacity was to deal with the employer on a day-to-day basis in solving employee problems and grievances, in order to assist in a continual flow of production without unnecessary interruptions. Although he represented the union and the employees, his daily activities incidentally benefited the employer as well in maintaining peace and equanimity in the plant.

His participation in the contract talks were, of course, as representative of the employees. Nevertheless, the successful consummation of an agreement would have benefited not only the employees but also the employer. Obviously the meeting took place for their mutual interest in presenting their views and arriving at a compromise solution which would be codified in a contract acceptable to both. Without such a contract the employer would probably have been unable to carry on his business. The presence of petitioner on behalf of the union was essential for the advancement of the interests of the employer in arriving at a mutually satisfactory contract which would assure him of labor peace and uninterrupted production and sales. See Gerard v. American Co., supra, 32 N. J. Super. 310.

In fact, the present milieu of unions and union representatives in most industries of any appreciable size dictates the current acceptance of the truism that an employer cannot exist without negotiation and agreement with a team of union representatives. In such a structured pattern of employer-employee relationships it follows that the union representative — the shop steward — is as essential a part of conducting a business as the employer’s management personnel. What the union representatives do and how they fashion their demands is an essential part of every unionized business, and their participation in the bargaining struggle necessarily accrues in some measure to the interest and benefit of the employer.

Added to this factor of mutual benefit to employer and employee are other tangible indicia pointing to the fact that the negotiating activity was reasonably incidental to the employment. Among these are the fact that the meeting took place at the employment premises at the request or ae-quiescence of the employer and at a point in time immediately after termination of production work.

Respondent employer cites several cases which deny com-pensability for accidents arising out of union activities. Each of the cited cases is distinguishable in that they involve unilateral union activities which took place for the sole benefit of the employee and the union.

In Fantasia v. Hess Oil, 110 N. J. Super. 360 (Cty. Ct.), aff’d 113 N. J. Super. 229 (App. Div. 1971), the injury and death resulted from an auto accident while the employee was on a picket line outside the employer’s premises in connection with a strike or lockout. The court concluded that this activity was not work-connected because it was clearly not in the interest of the employer and constituted a union activity after the employer-employee relationship no longer existed.

A similar rationale was applied by the Michigan Supreme Court in Tegels v. Kaiser-Frazer Corp., 329 Mich. 84, 44 N. W. 2d 880 (1950), where the employee bumped his leg while attending a union meeting at the plant from which the employer and his representatives were expressly excluded. To the same effect is the holding in Pacific Indemnity Co. v. Industrial Accident Comm’n, 27 Cal. App. 2d 499, 81 P. 2d 572 (D. Ct. App. 1938), where the employee was also attending a union committee meeting where no employer representative was present. See generally, 1 Larson, supra at § 27.33.

We hold, as did the workmen’s compensation judge, that the accident, namely, the heart attack, arose out of and in the course of petitioner’s employment.

Respondent employer also attacks the award of total permanent disability so far as it is based upon the second infarction of November 15, 1971, contending that there is insufficient credible evidence to support the compensation judge’s finding that the first work-connected incident in April contributed to the occurrence of the second infarction of November and the ultimate finding of total permanent disability.

Our review on this score is, of course, a limited one, namely, to determine whether there is sufficient credible evidence in the record to support the finding below. Close v. Kordulak Bros., 44 N. J. 589 (1965); Szumski v. Dale Boat Yards, Inc., 48 N. J. 401 (1967); State v. Johnson, 42 N. J. 146 (1964); De Angelo v. Alsan Masons, Inc., 122 N. J. Super. 88 (App. Div. 1973), aff’d 62 N. J. 581 (1973). We are not called upon to make an independent finding on the record.

With that limited appellate function in mind, it appears from the testimony of petitioner’s treating physician and the examining expert that in their opinion the second infarction was causally related to the April incident. Dr. Grunt pointed out that both infarctions were in the same inferior wall of the myocardia and probably involved branches of the same vessel. On questioning by the judge, he articulated the physiological substantiation for his opinion substantially as follows: that his patient continued to suffer from angina and coronary insufficiency after the first attack and that the first infarction consisted of scar tissue, thereby reducing the available muscle to pump the same amount of blood. This imbalance between the demand for blood and its availability because of the reduction of viable tissue, superimposed on the effect of advancing coronary atherosclerosis, created a greater burden or stress on the remaining muscle, subjecting the patient to a greater probability of further attacks.

Dr. Lieb arrived at the same conclusion through another route, namely, that the area weakened by the first infarction made petitioner more susceptible to the effects of his work in the intervening period and set the stage for the second infarction.

Of course, the causal connection as to both the first and second infarctions was disputed by Dr. Lewis, the expert produced by respondent. Nevertheless, the compensation judge affirmatively pointed out that the testimony of petitioner’s physicians on the issue of causal relationship of both the first and second infarctions was “much more * * * convincing” than that of respondent’s plij^sician. We find his conclusion to be a reasonable one based upon sufficient credible evidence in the record. The opinion in Schiffres v. Kittatinny Lodge, Inc., 39 N. J. 139 (1963), cited by respondent on the issue of causation, is not controlling in view of the differing facts involved.

The judgment of the Workmen’s Compensation Division is affirmed.


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

text:
    WARREN PARK ESTATES, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF EAST WINDSOR, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 9, 1975
    Decided September 22, 1975.

      Before Judges Halpern, Crane and Michels.

      Mr. David A. Friedman argued the cause for appellant (Messrs. Ridolfi and Friedman, attorneys).

      Mr. Charles A. Zahn argued the cause for respondent (Messrs. Warren, Goldberg & Berman,, attorneys).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

Plaintiff Warren Park Estates, Inc. appeals from a summary judgment entered in favor of defendant, East Windsor Township sustaining the validity of defendant’s amended building code ordinance which required the installation of copper electric wiring in all new buildings.

The facts are undisputed. Plaintiff, a housing developer, was about to commence erection of 110 single-family homes pursuant to an approved subdivision when the building code ordinance was amended to require copper electric wiring for home installations of the type contemplated by plaintiff. Its plans and specifications for the contemplated development, as submitted to sub-contractors, called for aluminum electric wiring, as specified by the National Electric Code and adopted as the controlling standard by the New Jersey Public Utility Commission (P.U.C.) by its regulations, N. J. A. C. 14:5-7.5(g) and 14:5-7.9. It brought this declaratory judgment suit to set aside and declare void that portion of respondent’s building code which mandated the use of copper electric wiring, on the theory that the P.U.C. had preempted this field.

• The trial judge, in granting summary judgment and rejecting plaintiff’s contentions, relied upon In re Adoption of Regulations, 127 N. J. Super. 295 (App. Div. 1974), and stated:

The attempt by P.U.C. to pre-empt the power of a municipality I find to be ultra vires, that the statute applies and I hasten to add that I do not consider this decision, the decision is based on the law as I interpret it to be even though it doesn’t make very much sense to me that the state of the law as I find it to be permits the P.U.C. to regulate cities and counties in certain instances and not to be able to regulate municipalities or counties in other instances but that is a matter not for me but for legislative or appellate action.
Consequently the motion for summary judgment brought by the defendant is granted. The motion brought by the plaintiff is denied both without costs.

We disagree with his conclusions and reverse.

The legislative history concerning standards for installation and inspection of electrical wiring for buildings is fully recited in Judge Kolovsky’s opinion for this court, relied upon by the trial judge and reported in 127 N. J. Super. 295, and therefore will not be restated herein. It will suffice for us to note that the holding therein is not inconsistent with the views expressed herein.

The narrow issue before us, as we view it, is whether the general powers given to all municipalities, in N. J. S. A. 40:48-2 and the provisions in N. J. S. A. 45:5A-17, to enact ordinances to regulate and inspect the erection, alteration or repair of structures, has been preempted by the State with respect to the standards applicable for the installation and inspection of electric wiring in private homes in East Windsor Township.

Pursuant to statute, all electrical contractors in this State must be qualified and licensed. Under N. J. S. A. 48:7-14, effective June 24, 1971, the P.U.C. must approve all electrical inspection authorities for the inspection of construction work done by all licensed electrical contractors. In addition, the P.U.C. is specifically “authorized to promulgate all rules and regulations necessary to effectuate the purposes of this act.” In accordance with such authorization the P.U.C. adopted N. J. A. C. 14:5-7.5(g), which provides

(g) No county, city or municipality shall adopt any electrical code that is not consistent with the National Electrical Code, and the rules or regulations for wiring of the utility or the existing standards and regulations of the Board.

Admittedly, the National Electrical Code permits the use of aluminum electrical wiring for private homes.

The reported cases on preemption afford no precise guidelines covering the instant appeal; each case of necessity must turn on the peculiarities and special features of the state regulatory scheme in question. We are convinced from our study of the statutes and regulations involved herein that the, Legislature has recognized the continuing vital importance of electric energy, the installation and inspection of facilities for its use, as being for the public good and safety, and that the licensing of those who install such power, the materials used and the inspection of work done, requires uniform state treatment. This is evident from the broad regulatory powers given the P.U.C. by the Legislature over all public utilities serving the public with electric power, the supervision over electrical contractors who must cut into main power sources for home use and the necessity of its approving all inspection .authorities. In addition, the power delegated by the Legislature to cities and counties (N. J. S. A. 40:173-1 and N. J. S. A. 40:23-20) to regulate the inspection of electrical wiring, etc., specifically directed that such not be inconsistent with the National Electrical Code or the standards fixed by the P.U.'C. In short, the subject of electric power and the standards for its installation and use, was thought by the Legislature to require uniformity of treatment, whereas a variety of local regulations on the subject might well defeat a considered State policy. Summer v. Teaneck Tp., 53 N. J. 548, 552-553 (1969); In re Public Service Elec. & Gas Co., 35 N. J. 358, 370-371 (1961). Any attempt to fix differing standards between cities and counties on the one hand, and all other municipalities on the other, would only result in unsupportable inequities.

Therefore, in preemption cases, we must determine whether a local ordinance prohibits that which state law permits or, stated another way, does a local ordinance exert delegated police powers in terms which conflict with a state law. Our conclusion is that the building code ordinance in question mandating the use of copper electric wiring is facially invalid and in contravention of an expressed legislative plan to impose the obligation of regulating the electrical industry upon the P.U.C. See So. Ocean Landfill v. Ocean Tp. Mayor & Council, 64 N. J. 190 (1974); State v. Ulesky, 54 N. J. 26, 29 (1969).

The judgment is reversed and so much of respondent’s building code which requires plaintiff to use copper electric wiring is declared invalid.


text:
    SELECTED RISKS INSURANCE COMPANY, PLAINTIFF-APPELLANT, v. CHARLES C. SCHULZ, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued September 9, 1975
    Decided September 22, 1975.
    Before Judges Halpern, Crane and Michels.

      Mr. James A. Mullen/Jr. argued the cause for appellant (Messrs. Kisselman, Deighan, Montano & Summers, a P.C., attorneys).

      Mr. Kenneth A. DiMuzio argued the cause for respondent (Messrs. Falciani & DiMuzio, attorneys).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

The undisputed facts are that defendant Charles C. Schulz sustained personal injuries when he was involved in an auto accident with an uninsured driver, George Edwards. At the time of the accident Schulz was acting in the course of his employment for Muller Electronics Co. The workmen’s compensation insurance carrier for Muller paid Schulz the workmen’s compensation benefits awarded which amounted to less than $10,000.

Plaintiff Selected Risks Insurance Co. had issued to Schulz a policy of liability insurance with a limited uninsured motorist coverage of $10,000. Selected agreed that Edwards, the uninsured driver, was solely responsible for the accident, and that Schulz’ injuries would have entitled him to a recovery of at least $10,000. It, therefore, offered to pay Schulz the difference between its $10,000 limit and the workmen’s compensation paid Schulz in accordance with the award. This offer to pay was predicated upon the endorsement for uninsured motorist coverage which provided in section III(c) :

(c) Any amount payable under the terms of this insurance because of bodily injury or property damage sustained in an accident by a person who is an insured shall be reduced by
(1) all sums paid on account of such bodily injury or property damage by or on behalf of
(i) the owner or operator of the uninsured highway vehicle and (ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury or property damage, including all sums paid under the bodily injury or property damage liability coverage of the policy, and
(2) the amount paid and the present value of all amounts payable on account of such bodily injury under any workmen’s compensation law, disability benefits law or any similar law.

Schulz rejected the proffered payment, contending that (a) the set-off clause in the policy was invalid and (b) the issues involved were subject to the arbitration clause in the policy which provided in section VII (G) :

G. ARBITRATION.
If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured highway vehicle because of bodily injury or property damage to the insured, or do not agree as to the amount of payment which may be owing under this insurance, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration, which shall be conducted in accordance with the rules of the American Arbitration Association unless other means of conducting the arbitration are agreed to between the insured and the company, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this insurance.

This suit was instituted by Selected to determine the applicability of the arbitration clause and the validity of the set-off provision aforementioned. Based on the above undisputed facts the trial judge, without the benefit of oral argument, determined that the arbitration clause mandated that all the issues had to be submitted to and decided by the arbitrators. He dismissed Selected’s complaint and entered judgment for Schulz. This appeal is concerned only with the threshold question of arbitrability aud not with the issue of set-off or the amount thereof.

Admittedly, this case involves an issue of novel impression in New Jersey. We interpret the arbitration provision in the policy to be limited to a determination of two fact questions, namely, the issue of fault and damages. Since Selected has admitted that the accident was the result of the uninsured’s sole negligence and that Schulz’s damages would equal its policy limits of $10,000, there was nothing left to be arbitrated. Under such circumstances, the legal issue of set-off remained which should have been decided by the trial judge. See Napolitano v. Motor Vehicle Acc. Ind. Corp., 21 N. Y. 2d 281, 287 N. Y. S. 2d 393, 234 N. E. 2d 438 (Ct. App. 1967); Frager v. Pennsylvania Gen. Ins. Co., 155 Conn. 270, 231 A. 2d 531 (Sup. Ct. 1967). Por a full discussion of the problem, see Annotation, crWhat Issues are Arbitrable Under the Arbitration Provision of the Uninsured Motorist Insurance,” 29 A. L. R. 3d 328 (1970).

The parties have not argued the legal issue concerning the set-off provision so that we make no comment with respect thereto. The judgment is reversed and the matter remanded for disposition to the court below. Jurisdiction is not retained.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM J. MORAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted September 9, 1975
    Decided September 23, 1975.

      Before Judges Halpern, Crane and Michels.

      Mr. Ronald W. Sage, attorney for appellant.

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Mart Vaarsi, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

Following a plea bargain defendant pled guilty to a three-count indictment which charged (1) assault and battery upon a police officer, in violation of N. J. S. A. 2A:90-4, (2) atrocious assault and battery upon the same police officer at the same time and place, in violation of N. J. S. A. 2A:90-1, and (3) larceny of a pistol from the same officer, in violation of N. J. S. A. 2A:119-1. The three asserted offenses arose at the same time and place, and were part of one episode as will hereinafter appear.

He was sentenced to State Prison on counts one and two to serve concurrent five to seven-year terms, and he was given a concurrent two to three-year term on count three. Following the appeal he applied by motion to the trial judge for a reduction of his sentences and for permission to withdraw his guilty pleas. The motion was denied. This appeal is only from the denial of his motion for reduction of sentence. We deem it advisable not to consider the State’s contention that the trial judge was without jurisdiction to hear the motion for reduction of sentence because such was not appealable. Rather, we prefer to consider the appeal as one which contends the sentence was manifestly excessive and should be reduced.

The undisputed facts, briefly stated, are that on May 21, 1974, at about 4 p.m., defendant lured police officer Arthur Mangan into a wooded area on a contrived story that he had found a bag containing bloody clothes. He struck Man-gan on the head with a pipe, took his pistol and ran away. Defendant was then a 25-year-old gainfully employed college graduate. He explained his actions by saying he had recently split up with his girl friend and that he wanted a gun to commit suicide. Admittedly, he has no prior criminal record of any sort. Defendant’s father surrendered the stolen gun and defendant to the police that same night. Except for occasional headaches, Mangan has made an uneventful recovery.

The thrust of defendant’s appeal is that we modify his sentences and direct that he be incarcerated in Yardville for consecutive indeterminate terms where he could receive better treatment for his alleged mental ailments.

Although neither party has raised the issue of appropriateness of the convictions on counts one and two, we have considered the question sua sporde and have concluded that defendant is entitled to relief. Unquestionably, the assault and battery upon Mangan, who was in uniform and on duty at the time, was a violation of N. J. S. A. 2A:90-4. So too, the atrocious assault and battery upon Mangan was a violation of N. J. S. A. 2A:90-1. Both offenses are high misdemeanors. The proofs necessary to convict for each offense differ, one is not a lesser included offense of the other, they are not inconsistent nor does one merge with the other. We also realize that one specific act may violate more than one statute. State v. Blount, 60 N. J. 23, 31 (1972).

Yet it is essential for us to construe N. J. S. A. 2A: 90 — 1 and N. J. S. A. 2A:90-4 to determine whether the Legislature intended that the one act give rise to two separate crimes permitting punishment for both. See State v. Gledhill, 67 N. J. 565 (1975). We are unable to ascribe such intent to the Legislature. It seems clear that all the Legislature intended by N. J. S. A. 2A:90-4 was to make an unlawful “simple” assault and battery upon a police officer, in uniform and in performance of his duties, a high misdemeanor, in order to protect police officers. Thus, a person guilty of simple assault and battery upon a private Citizen would be guilty of a high misdemeanor if the same act were committed upon a police officer. N. J. S. A. 2A: 90-4 relieves the State of the obligation of proving that an “atrocious” assault and battery had been committed, as would have been required under N. J. S. A. 2A:90-1. Obviousty, an “atrocious” assault and battery upon a police officer, in uniform and in the performance of his duties, comes within the proscription of N. J. S. A. 2A:90-1 and, therefore, no sound reason appears for holding that the Legislature intended a defendant to be responsible for and punished for two high misdemeanors under such circumstances. Such construction is inapposite to the recent holdings in State v. Davis, 68 N. J. 69 (1975); State v. Jester, 68 N. J. 87 (1975); State v. Ruiz and State v. Williams, 68 N. J. 54 (1975). The “rule of lenity” which has been often applied in construing legislation should be utilized to prevent multiple convictions where none was intended. See Heflin v. United States, 358 U. S. 415, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1958); Bell v. United States, 349 U. S. 81, 75 S. Ct. 620, 99 L. Ed. 905 (1955); State v. Tillem, 127 N. J. Super. 421, 429-430 (App. Div. 1974), certif. den. 65 N. J. 557 (1974).

Therefore, a specific act, as we have here, arising as it does out of a single assault, violates two statutes. The prosecutor in the exercise of his sound discretion should normally elect upon which one to prosecute. See State v. Gledhill, supra. Such election, of course, may be made by the prosecutor any time prior to the trial judge’s charge, or the court may charge on both offenses and the jury could convict on both, but a sentence may be imposed only on one of the offenses. State v. Begyn, 34 N. J. 35, 56 (1961).

We turn to the problem of the alleged excessive sentence which is not easy of solution. The facts surrounding the reason for committing the crimes, the nature of the crimes, defendant’s apparent mental state and his past good record warrant serious favorable consideration. We find no abuse of discretion in the trial judge’s imposition of State Prison sentences totalling five to seven years because of the nature of the offenses and the deterrent effect he hoped the sentences would accomplish. The Attorney General commendably suggests that “in view of the unusual circumstances of this case, the State would not oppose a recommendation that defendant be evaluated for transfer to a youth correctional institution * * We are in complete accord with his suggestion.

Therefore, we reverse the conviction on count two of the indictment and set aside the sentence imposed thereon. We affirm the convictions on counts one and three, as well as the sentences imposed thereon. In addition, we strongly recommend to the Commissioner of Institutions and Agencies, or his duly designated agents, to evaluate defendant’s present status to determine whether it would be appropriate for the best interests of defendant and the public that defendant be institutionally transferred to a youth correction center. See N. J. S. A. 30:4-85, N. J. S. A. 30:4-91.1 et seq.; In re D. D., 118 N. J. Super. 1, 6-8 (App. Div. 1971).

As modified, the judgment below is affirmed.


text:
    MIDLAND GLASS COMPANY, INC., APPELLANT, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE STATE OF NEW JERSEY, DIVISION OF ENVIRONMENTAL QUALITY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted June 2, 1975
    Decided September 3, 1975.

      Before Judges Collester, Lora and Handler.

      Messrs. Wilentz, Goldman & Spitzer, attorneys for appellant (Mr. Francis X. Journick, of counsel).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Stephen Skillman, Assistant Attorney General, of counsel; Mr. Michael J. Gross and Mr. Arnold Lakind, Deputy Attorneys General, on the brief).
   Per Curiam.

This is a consolidation of two appeals taken by Midland Glass Company, Inc. (Midland) from administrative orders issued by the Department of Environmental Protection, Division of Environmental Quality (Department) as a result of Midland’s alleged violation of the Air Pollution Control Code. Both cases involve the question of whether the time period within which one aggrieved by an order of the Department must request a hearing is mandatory and, if so, whether it can be extended by the administrative agency. However, since the cases are factually distinguishable they will be dealt with separately.

I

In one case (A-3082-73) the Department on September 28, 1973 issued an order directing that Midland cease violation of N. J. A. C. 7:27 — 8(a) and (b) on or before October 16, 1973. More particularly, the Department charged that Midland had installed certain boosting equipment on the furnaces of its glass manufacturing plant without first having obtained a permit to install the same or a certificate to operate the equipment, as required by the Code. The order specifically notified Midland that it had 15 days within which to request an administrative hearing, pursuant to N. J. S. A. 26 :2C-14.1. Midland did not request a departmental hearing until October 23, 1973. Thereafter on May 23, 1974 the Department denied the request for a hearing because it was not made within the 15 days required by N. J. 8. A. 26:2C-14.1. Midland appealed.

N. J. 8. A. 26:20-14 provides that if upon investigation and inspection the Department discovers a person is violating any code, rule or regulation promulgated by the Department it may issue an order requiring that such violation must cease. N. J. 8. A. 26 :2C-14.1, provides in pertinent part, that:

Any person aggrieved by an order of the department under this act may, upon application made within 15 days after notice thereof, be entitled to a hearing before the department which shall within 30 days thereafter hold a hearing of which at least .15 days written notice shall be given to such persons.

Midland contends that the 15-day period in which a hearing may be requested under the statute is permissive and not mandatory. The Department asserts that the statutory period is mandatory and therefore the Department does not have jurisdiction to extend the 15-day time limitation established by the Legislature.

Appellant argues that the 15-day time limitation of N. J. 8. A. 26:20-14.1 is permissive because of use of the word “may.” We do not agree. The punctuation of the statute clearly indicates that the word “may” does not refer to the 15-day time limitation provision but to the fact that a person aggrieved by the order may request a hearing. Moreover, the word “may” used in other statutes granting the right to an administrative hearing has not been construed to affect the time limitations imposed by the statutes. See Hess Oil & Ohem. Corp. v. Doremus Sport Club, 80 N. J. Super. 393 (App. Div. 1963); certif. den. 41 N. J. 308 (1964); Scrudato v. Mascot 8. & L. Assn., 50 N. J. Super. 264 (App. Div. 1958).

The rule applicable to the instant case was set forth in Scrudato where we said:

Where a statute sets up precise time limits within which an aggrieved party may seek recourse to administrative adjudication, those limits have been held mandatory and not subject to relaxation. The agency is without power to waive them and proceed to hearing and determination notwithstanding non-compliance, [at 269]
* * *
[A]n administrative agency’s power to hear any matter must derive from the Legislature, and where it has fixed a definite time within which parties must seek administrative relief, neither the administrator nor this court is in a position to enlarge that time, [at 270]

See also, Hess Oil At Chem. Corp. v. Doremus Sport Club, supra 80 N. J. Super, at 396, and Parle Ridge v. Salimone, 21 N. J. 28, 47 (1956).

Midland also argues that, assuming the time limitation in the statute is mandatory, its failure to comply with the provision should be excused because the contest of the order will involve issues - of whether the regulation is reasonable under the due process clause and whether it was promulgated within the authority given to the Department. We conclude that the argument is untenable. As noted above in Salimone, Hess and Scrudato, the enlargement of the statutory time limit lies solely within the power of the Legislature and the Department lacked jurisdiction to consider Midland’s untimely request for a hearing.

Finally, appellant contends the Department should be estopped because of its long delay before notifying Midland that the request for a hearing was denied. The contention is devoid of merit. The doctrine of estoppel cannot be invoked to enlarge the 15-day mandatory time limitation where the administrative agency lacked jurisdiction to do so.

II

In the other case (A-2378-73) the Department on August 14, 1973 issued an order alleging it had determined that Midland had violated N. J. A. C. 7:27-6.2(a) by permitting the emission of particles into the outdoor air from stacks of its manufacturing plant in excess of the maximum allowable emission rate prescribed by the Code. The order directed that Midland cease the violation by November 14, 1973 and notified the company that it had 15 days within which to request a hearing. Midland did not request a hearing until September 13, 1973 and thereafter on March 27, 1974 the Department denied the request because it was untimely. Midland filed a notice of appeal with this court.

While the appeal was pending the Department filed a complaint in the Chancery Division, pursuant to N. J. 8. A. 26 :2C-19, to compel Midland to comply with the emission standards and to pay a statutory penalty for violation of its order. The court granted Midland’s motion for summary judgment dismissing the complaint on the ground that the Department had failed to promulgate and publish the procedures to be used for the purpose of measuring emissions, in accordance with the requirements of N. J. A. G. 7:27-6.3. The court concluded that the Department’s failure to publish such procedures precluded Midland from determining whether it complied or violated the standards on air pollution and therefore the Department’s determination that Midland violated N. J. A. G. 7:27-6.2 (a) was unconstitutional. The Department filed a notice of appeal with this court which was subsequently dismissed by stipulation of the parties.

Appellant contends that since the Chancery Division held that the order of August 14, 1973 was invalid and unenforceable its appeal in this case is no longer necessary. The Department argues that the appeal is still viable.

A reading of N. J. A. C. 7:27-6.2 (a) which the Department charged that Midland violated clearly shows that compliance therewith is entirely dependent upon publication by the Department of the testing procedures required by N. J. A. C. 7:27-6.3. The Department having failed to comply therewith its order of August 14, 1973 was invalid. Accordingly, the appeal in this case has been rendered moot.

The Decision of the Department in the "permit and certificate case” (A-3082-73) is affirmed. The appeal in the "solid particulate emissions case” (A-2378-73) is dismissed as moot.