author: Wick, J. S. C.

text:
    COMMONWEALTH OF PENNSYLVANIA, PLAINTIFF, v. JOHN A. KERVICK, STATE TREASURER OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided March 1, 1971.

      Mr. Howard R. Yocum for plaintiff. (Messrs. Yocum and Yocum, attorneys).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey for defendant. (Mr. Robert W. Dempsey, Deputy Attorney General, of counsel).
   Wick, J. S. C.

Pennsylvania is suing for payment of monies held by the State Treasurer of New Jersey under the Custodial Escheat Act (N. J. 8. A. 2 A :3 7-29 to 44, inclusive; approved July 13, 1951). Defendant’s counterclaim seeks discovery of the identity of all persons who have a claim to abandoned property now held or escheated to Pennsylvania where, according to the records of the various obligors, the last known address of such owners was in New Jersey. Defendant also wants protective custody or a judgment of es-cheat for abandoned property now in possession of plaintiff.

The facts are undisputed and the ease was submitted on briefs. During the 1950’s the New Jersey Attorney General began four suits against U. S. Steel Corp. for delivery and custody of personal property unclaimed for five years and still held by the corporate debtor. The docket numbers of these suits were C-1137-52, 0-669-53, C-268-55 and C— 2553-58.

In compliance with N. J. S. A. 2A:37-30, 31, judgments for custody were entered and the corporation delivered the monies representing unclaimed debts, along with a list of the last known address of the record owners “to the state treasurer for safekeeping.” In these cases the State did not proceed under N. J. S. A. 2A:37-11 to 28, inclusive (the Absolute Escheat Act for personal property generally), but under N. J. S. A. 2A:37-29 to 44,' inclusive (the Custodial Escheat Act, an alternate method).

After receiving these funds the State Treasurer mailed notices to the persons listed and to the attorney general of the state designated by the last known address. N. J. S. A. 2A:37-32 specifies that the notice to last known owners requires a written claim to be made within two years from date of notice or else “an action will be instituted to escheat such moneys to the state in conformity with this article.” The notice to attorneys general ouside of New Jersey advised them to “present any claim that such state might have to such money.”

In 1966 Pennsylvania sought a consent judgment from U. S. Steel Corp. to escheat the monies due to persons having last known addresses in Pennsylvania. The judgment relieved the corporation from any obligation to pay over any monies. It was apparently recognized that under N. J. S. A. 2A:37-33 payment by the corporation to the State Treasurer of New Jersey released the corporation from “any and all claims * * * by any person whatsoever,” and that the obligation to pay any claims became the obligation of New Jersey.

On October 26, 1966 a letter from the Secretary of Kevenue of the Commonwealth of Pennsylvania requested New Jersey to pay over monies held in custody and due to creditors having the last known address in Pennsylvania. The amount claimed was $186,541.76 but presently would be reduced by any payments made to the actual creditors with a last known Pennsylvania address. On October 1, 1968 the New Jersey Attorney General on behalf of the State Treasurer refused the claim. On May 26, 1969 this action was filed according to N. J. S. A. 2A:37-32 (L. 1951, c. 304) as it read before amendment on June 28, 1967 (L. 1967, c. 135).

Plaintiff's position is that the Custodial Escheat Act or the rule of Texas v. New Jersey, 379 U. S. 674, 85 S. Ct. 626, 13 L. Ed. 2d 596 (1965), entitles the Commonwealth to the monies held in custody by New Jersey.

Defendant raises several defenses and arguments in his answer and brief:

1. This court has no jurisdiction because the United States Supreme Court has original jurisdiction.
2. Plaintiff did not make timely appeal from the administrative decision by the State Treasurer.
3. The statute of limitations, laches and estoppel are proper defenses.
4. The Pennsylvania judgment against IJ. S. Steel Corp. was not binding on New Jersey.
5. Texas v. Nevo Jersey should not be applied retroactively.
6. The Constitutionality of the 1967 amendments to the Custodial Escheat Law need not be decided.
7. Conflicts of law must be determined.
8. The amount claimed by plaintiff is disputed.

These arguments will be discussed in relation to the court’s resolution of the legal issues.

Escheat in New Jersey derives from the right of sovereignty of the State “as the original and ultimate proprietor” of all property within its jurisdiction. The purpose of all escheat laws is not only to enrich the State but to put into active use funds that are unclaimed and lying dormant. Yet, escheat statutes should be distinguished from custodial statutes which make the State a custodian of the abandoned property, subject to delivery to those who prove ownership or a right to possession. The Custodial Escheat Act of 1951 amended the prior Absolute Escheat Act of 1946 to add an alternate method of escheat, using an intermediate custodial procedure.

The purpose of the custodial provisions was to avoid losing property that the State could not escheat under the prior statute because of the six-year statute of limitations. (See State v. Standard Oil Co., 5 N. J. 281 (1950), where the State sought to escheat funds representing unpaid obligations of a corporation unclaimed for 14 years and the statute had run barring the creditors’ claims to most of the funds.) Though the Custodial Escheat Act directly supplemented and “rounded out the existing escheat law so as to create a general plan of escheat,” State v. National Newark & Essex Banking Co., 31 N. J. Super. 246, 250 (Ch. Div. 1954), the custody provisions are more frequently applied because the State can ultimately own the funds sooner than under the 14-year provisions of N. J. S. A. 2A:37-13.

To understand the operation of the New Jersey escheat laws and the Custodial Escheat Act in particular, the developing case law will be reviewed. This is important because it relates to the status of the funds presently held by New Jersey and claimed by Pennsylvania.

In State v. Standard Oil Co., 5 N. J. 281 (1950), aff’d 341 U. S. 428, 71 S. Ct. 822, 95 L. Ed. 1078 (1951), the court in dictum described the operation of the Absolute Es-cheat Act as not “self-executing. The lapse of the prescribed time did not work an immediate escheat. The turnover of the res comes only after a judicial determination of the existence of the statutory conditions.” (5 N. J. at 306) Because of this “A valid claim to the property made prior to the entry of the judgment of escheat prevents its transfer to the State.” (5 N. J. at 307).

The' Custodial Escheat Act incorporated these suggestions by providing a separate procedure for intangible property such as dividends, interest or wages due. Now the State could acquire protective custody of funds unclaimed for five years, after which those funds not claimed within two years while in the possession of the State could be escheated after the Attorney General brings a summary action in the Superior Court under N. J. 8. A. 2A:37-36. The language of the provision and subsequent cases indicates that this provision is mandatory for escheat. The amendments of June 28, 1967 did not change the wording that the Attorney General “shall thereupon bring * * * a summary action * * * for the escheat of the said moneys to the State * *

Here New Jersey did not follow the steps required by the statute to perfect its right to escheat. It has obtained no “judgment ‘declaring that the property * * * has escheated to the State/ ” Mahr v. State, 12 N. J. Super. 253, 257 (Ch. 1951), which pointed out that the State’s title to monies must be established by an escheat judgment and not by inter-pleader.

In State v. American-Hawaiian Steamship Co., 29 N. J. Super. 116 (Ch. Div. 1953), the court made it clear that after a custodial judgment the State must take further action to escheat:

The State may, but need not, initiate proceedings under this [alternate] method, but if it does, it must pursue the method to a conclusion, including the institution and prosecution of a final action for escheat, [at 126]

Our courts have repeatedly recognized the distinction between the two alternate methods of escheating personal property. While the custodial provisions did not limit the scope of the original escheat statute, the custodial provisions were not designed to convert to an absolute escheat by merely initiating a custody proceeding. State v. American Sugar Refining Co., 20 N. J. 286, 292 (1956). So, before the es-cheat judgment “the State has no title, but a mere possibility of interest.” State v. United States Steel Corp., 22 N. J. 341, 365 (1956) (dissent by Justice Heher).

In construing various provisions of the Custodial Escheat Act our Supreme Court rejected the view that the act was a penalty and to be construed narrowly. Instead the act has the remedial effect of increasing the period during which claims may be asserted by unknown owners or claimants without being barred by the statute of limitations which would apply if the corporate debtor kept custody. The act provides for a transfer of this custody to the State. State v. Sperry & Hutchinson Co., 23 N. J. 38, 44 (1956). This is all that has been done in the present case:

Under tlie act, custody of tlie unclaimed dividends, not title to them, is transferred to the State Treasurer at the order of the Superior Court after the five-year period. But title does not pass until at least two more years have elapsed without claim by the true owner in which event a judgment of escheat may be entered. And even upon entry of an escheat judgment, at any time within seven additional years thereafter, the proceedings may be reopened and the stockholder’s share, plus interest thereon, ordered released to him, if he did not have actual knowledge of the escheat action. [State v. Jefferson Lake Sulphur Co., 36 N. J. 577, 585 (1962)]

Since the court finds that New Jersey is presently holding in custody escheatable funds and that New Jersey has not prosecuted for a judgment of escheat, the question of whether Pennsylvania can claim these funds for escheat to itself will be considered.

Defendant claims that this court does not have jurisdiction to determine who has a right to the funds in question. He argues that this suit is a controversy between two states which are claiming the right to escheat the same funds. Because of the nature of the controversy this suit should properly be heard by the United States Supreme Court under Massachusetts v. Missouri, 308 U. S. 1, 60 S. Ct. 39, 84 L. Ed. 3 (1939).

Those principles do not apply here. Pennsylvania has voluntarily submitted itself to the jurisdiction of the New Jersey courts, and to the extent of this submission Pennsylvania will be bound by the judgment of this court. This is unlike Massachusetts v. Missouri where it was argued that two states claimed the exclusive right to impose inheritance taxes on trust estates. The court rejected this and found no controversy detween the two states because it was not showm that their tax claims were mutually exclusive. Bather, “each claim is wholly independent of that of the other and * * * may constitutionally be pressed by each state without conflict in point of fact or law with the decision of the other.” (308 U. S. at 15, 16, 60 S. Ct. at 42). The court distinguished the situation where under the law of several states only one tax could be imposed on the particular estate. Thus, the court found that Massachusetts would have a proper remedy because the Missouri courts would still be open for a suit by Massachusetts to recover taxes alleged to be due from the trust estate. Plaintiff did not show that other state courts would not be open to it.

Our own Supreme Court recognized the jurisdiction of the Superior Court in custodial actions in which another state has a claim to the same funds: “Personal jurisdiction was present because there was due service of process on the defendant [corporation] and jurisdiction of subject matter "was present because the court had power to determine cases of the class to which the action belonged.” State v. American Can Co., 42 N. J. 32, 37-38 (1964), cert. den. 379 U. S. 826, 85 S. Ct. 53, 13 L. Ed. 2d 36 (1964). Moreover, “Our statute in fact recognizes that the interest of other states, if superior to ours, will be acknowledged, and this is implicit in the provisions of N. J. S. A. 2A:37-32 and 37, N. J. 8. A., for notice to the Attorney General of the state where unknown or missing owner had his last known address.” State v. American-Hawaiian Steamship Co., above, 29 N. J. Super., at 133.

Although the New Jersey courts are open to Pennsylvania to present claims or enforce rights "which are neither penal in nature nor offensive to our policy,” this court has no power to require Pennsylvania to turn over any funds against which ÜSTew Jersey may have a claim because the last known address of the creditor was here. Pennhurst State School v. Estate of Goodhartz, 42 N. J. 266, 271 (1964). The courts of Pennsylvania are open to New Jersey to present any claims it might have.

Ordinarily a nonresident plaintiff who voluntarily sues in New Jersey courts cannot avoid related counterclaims in the same suit. The Commonwealth of Pennsylvania has submitted to- this court’s jurisdiction for the specific purpose of presenting a claim under the Custodial Escheat Act. Korff v. G. & G. Corp., 21 N. J. 558, 572 (1956). The vague and broad counterclaim seeking discovery of possible claims against escheatable property which Pennsylvania may have should be brought in the Pennsylvania courts.

Defendant further argues that plaintiff’s claim was refused by the State Treasurer and that it should have appealed to the Appellate Division under B. 2:2-3 within the time provisions of B. 2:4-l(b). This argument assumes that L. 196-7, c. 135, effective June 28, 1967, which amended and repealed several provisions of the Custodial Escheat Act of 1951, applied to plaintiff’s claim to the State Treasurer in 1966 and refused in 1968. Without considering in detail plaintiff’s arguments against this defense, the court concludes that this claim was properly presented under the 1951 provisions. Because of this the constitutionality of the 1967 amendments substituting an administrative procedure for taking custody and presenting claims need not be decided; other grounds to resolve the issues before the court exist. Note, however, N. J. S. A. 2A:37 — 44, as amended by L. 1967, c. 135, which describes the effect of the amendments on proceedings already commenced. None of the proceedings described in that section is pending: New Jersey already has custody of the funds in question for safekeeping; no proceeding to escheat these funds has been commenced by New Jersey. Pennsylvania’s claim was made prior to these amendments, and the former provisions of the Custodial Es-cheat Act apply:

The ordinary rule of construction is that a procedural statute is to be construed prospectively unless the legislative intent clearly indicates that a retrospective operation is intended * * *. Pending cases are only affected by general words as to future proceedings from the point reached when the new law becomes operative. [State v. United States Steel Corp., 12 N. J. 38, 43 (1953)]

In State v. United States Steel Corp. the trial judge fixed a hearing for September 7, 1951 to consider an escheat under the 1946 Absolute Escheat Act. The court’s order in June required five days’ notice before the hearing for anyone filing a claim to the funds. An amendment to the statute, effective July 13, 1951, allowed two more days in which to file claims. The court was therefore faced with the question of whether the prior statute of 1946 or the amendment of 1951 requiring claims to be filed not later than three days before the hearing applied to an escheat action begun in 1948. The court rejected the argument that the 1951 amendment was effective when notice was to be given in September. The entire court agreed that the June order was governed by the 1946 statute.

Plaintiff in the present case further substantiates its claim to the funds held by defendant by relying on Texas v. New Jersey, above, where the court held that unclaimed obligations owed by a corporation are subject to escheat only by the state of the creditor’s last known address as shown by the corporate records. Defendant argues that to apply this rule to the present case is to give it retroactive application for -which there is no basis, since New Jersey took custody of the funds in the 1950’s and the rule in Texas v. New Jersey, decided on February 1, 1965, should not apply to monies already received under a custody judgment. Plaintiff argues that no question of retroactivity is involved here because the status of the monies delivered to' defendant for safekeeping has continued up to the present. This status was the same before and after the rule in Texas v. New Jersey. These arguments will be considered in turn.

In selecting the test by which to determine the state with the primary right to escheat, the court chose a rule that was uniform, easy to administer, and which promoted an equitable distribution of the personalty among the states in proportion to the commercial activity of their residents. 379 U. S. at 681, 85 S. Ct. 626. To give the state of domicile of the debtor corporation the right to escheat would have exalted “a minor factor to permit escheat of obligations incurred all over the country by the State in which the debtor happened to incorporate himself.” 379 U. S. at 680, 85 S. Ct. at 630. (See State v. American Sugar Refining Co., above, for the prior New Jersey view analyzing the State’s contact with the property.)

Under this last known address rule only a factual question has to be determined and the merits of the individual claims need not be argued, including residence, domicile, or most significant contacts. But the rule does not apply when the state of the last known address does not have an escheat procedure or where the corporation has no record of any address. In that situation the state of the debtor’s domicile could keep the funds for its own use only until another state could show a superior right to escheat. Thus, under this rule the Supreme Court saved itself from numerous original jurisdiction suits to determine a question of fact. Since any state attempting to thwart the rule would be inviting litigation, it is in the best interests of New Jersey to adhere to this rule formulated by the Supreme Court.

The rule has to be criticized because the state of the last known address may not have contacts with the debtor corporation to compel reporting of escheatable property or to seize the property by service of notice to the debtor. Yet, if a claimant state lacks jurisdiction over the debtor corporation, it can resort to a sister state court to enforce its claim. In the present case Pennsylvania had jurisdiction over U. S. Steel Corp., and the escheat proceeding was against the corporation and merely established Pennsylvania’s right to escheat the monies of those claimants living in Pennsylvania. That suit was not against New Jersey, and the defendants’ argument that the Pennsylvania judgment is not binding on New Jersey because New Jersey could not have been made a party is without merit.

Throughout defendant’s brief the reliance of the State of New Jersey on prior law in taking custody of escheatable property is stressed as a reason for denying retroactive application of Texas v. New Jersey and for finding that the plaintiff is guilty of laches by not presenting a claim to New Jersey until after that case was decided. Certainly, the degree to which a prior rule may have been justifiably relied upon is a factor to be considered when a judicially changed rule is asserted to have retroactive application. But the Supreme Court has pointed out that the element of reliance is not persuasive where an overruled case had been under attack from its inception. Roberts v. Russell, 392 U. S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1970).

New Jersey decisions have held that the possibility that an earlier decision would be changed should have been within the reasonable contemplation of the party who had allegedly relied on it. See e. g. Dalton v. St. Luke’s Catholic Church, 27 N. J. 22 (1958); Wangler v. Harvey, 41 N. J. 277 (1963). Even the cases cited by defendant to show reliance on prior law give indications that this reliance was not justified in view of the unsettled questions which Texas v. New Jersey resolved. In Standard Oil Co. v. New Jersey, 341 U. S. 428, 71 S. Ct. 822, 95 L. Ed. 1078 (1951), even the majority opinion warned that “The claim of no other state to this property is before us and * * * determination of any right of a claimant state against New Jersey for the property escheated by New Jersey must await presentation here.” 341 U. S. at 443, 71 S. Ct. at 831. The dissent in that case suggested that the states enact custodial statutes to hold abandoned property as trustee until subsequent determination of “what State has the controlling interest justifying escheat.” 341 U. S. at 444, 71 S. Ct. at 831. This suggestion was followed by New Jersey when the Custodial Escheat Act was enacted. See also, State v. American-Hawaiian Steamship Co., above 29 N. J. Super. at 135.

Again in 1961 the Supreme Court avoided the adjudication of multiple state claims but adopted the policy that no state’s claim would be recognized unless actively pursued before the court. Western Union Telegraph Co. v. Pennsylvania, 368 U. S. 71, 82 S. Ct. 199, 7 L. Ed. 2d 139 (1961). The court was concerned with the problem of subjecting the debtor corporation to multiple liability when more than one state attempted to escheat the same funds. The court held that an escheat statute which cannot protect a debtor from liability to other states denied the debtor due process of law:

This makes it imperative that controversies between different States over their right to escheat intangibles be settled in a forum where all the States that want to do so can present their claims for consideration and final authoritative determination. Our Court has jurisdiction to do that, [at 79, 82 S. Ct. at 203]

In State v. American Can Co., above, the trial court was aware in 1961 that Western Union was pending, but noted that under the Pennsylvania statute absolute escheat was being sought while the case before it involving a claim by California was brought under the custodial provisions. The trial court indicated that those provisions were intended to furnish absolute protection against double liability by the debtor corporation. 42 N. J. at 35. Thus, the court found that the decision in Western Union did not effect the validity of the custody judgments, but cautioned that the United States Supreme Court still had to resolve the question of which state has the right to escheat. 42 N. J. at 38. These considerations lead the court to conclude that the reliance argument underlying defendant’s defenses of laches, estoppel or nonretroactive application of Texas v. New Jersey are without merit.

One further ease should be noted because its rationale questions the propriety of the defendant’s position. In State v. Amsted Industries, 48 N. J. 544 (1967), the State of New Jersey brought an action to obtain custody of unclaimed monies held by Amsted Industries. “Thereafter the Supreme Court rendered its decision in State of Texas v. State of New Jersey * * Amsted argued in the Chancery Division that New Jersey could not escheat claims of persons having a last known address in other states with escheat laws, even though Amsted was not authorized to do business in some of these states. The trial court and the New Jersey Supreme Court agreed with Amsted.

The court reviewed the state of the law after Texas v. New Jersey and the restrictive view advanced by the state. Our court stressed a policy of honoring claims of other states under the Texas v. New Jersey rule by asserting that New Jersey courts would entertain actions on such claims. Neither brief mentioned this unanimous decision. It was handed down before defendant rejected the claim of Pennsylvania. A reading of that opinion may have avoided the acrimony of the present suit.

Without further discussion the court sees no valid conflicts of law issue before it. The rule of Texas v. New Jersey is binding on all states, and any state rule to' the contrary is invalid.

As to the principal amount due to plaintiff, the court sees no problem in determining it once the amounts due to those creditors with a Pennsylvania last known address are totaled and still remain unpaid to the original creditor.

Finally, the court finds that no interest should be paid by defendant on those funds due to plaintiff. Although this decision is within the discretion of the court, law exists to support it. See State v. Atlantic City Electric Co., 23 N. J. 259, at 266 (1957), where the court discussed the question of whether a holder of funds was a trustee or debtor where interest is paid on the funds held. The reasoning applies here: a fiduciary usually does not obligate himself to pay interest on funds held for the benefit of others. Here defendant has custody of funds for safekeeping and this fiduciary status leads the court to believe that no interest should be paid on the funds so held. Furthermore, N. J. S. A. 2A:37-40, before being repealed by L. 1967, c. 135, allowed interest on claims by persons having no actual knowledge of the escheat judgment. Since New Jersey has sought no escheat judgment, that provision should not apply here to the claim of the Commonwealth of Pennsylvania. See N. J. S. A. 2A:37-41 as amended in 1967, allowing the state to retain any interest received from money held in a special trust fund for later claims.

Judgment for the plaintiff in accordance with this opinion.


source: Caselaw Access Project

author: Leonard, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH J. SEAMAN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 1, 1971
    Decided March 9, 1971.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. Walter D. Van Riper argued the cause for appellant (Messrs. Van Riper, Belmont & Villanueva> attorneys; Mr. Frederic C. Ritger, Jr., on the brief).

      Mr. David 8. Baime, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Leonard, J. A. D.

The Essex County grand jury returned four indictments against defendant charging him with the following: (1) No. 863 — five counts of misconduct in office (N. J. S. A. 2A:85-1); (2) No. 864 — conspiracy with one Stanley BrosMe to violate the statutes prohibiting misconduct in office and extortion (N. J. S. A. 2A:98-1); (3) No. 865 — five counts of bribery (N. J. S. A. 2A:85-1) and (4) No. 866 — five counts of extortion (N. J. S. A. 2A.-105-1).

Following a jury trial defendant was convicted of all offenses except the bribery charge which was dismissed by the trial court at the end of the State’s case. Defendant received a total sentence of 1-3 years in State Prison and a fine of $5000.

Defendant, a certified public accountant since 1928 and an attorney since 1934, was appointed in 1937 to the State Board of Certified Public Accountants (State Board). He became its secretary in 1938 and served in that position until 1968.

The State Board was responsible for preparing, administering and grading the C. P. A. examinations. See N. J. S. A. 45 :2A-1 •et seq. Although the American Institute of Certified Public Accountants actually prepared the examinations and preliminarily graded the papers, its marks were purely advisory, final responsibility for grades resting with the State Board. N. J. S. A. 45:2A-7. The grades determined by the Institute usually were accepted in the first instance by the State Board and it notified candidates that they passed or failed. However, the grades of a number of those who failed would be reviewed by the State Board and in some cases the Institute grades were changed. The authority for reviewing and regrading these papers was delegated to defendant, he having exclusive jurisdiction and discretion in this respect.

The present charges stem from defendant’s alleged improper conduct with regard to his regrading of the examination papers of Francis Cerny, Bobert Pacca, George Tan-Hook, Sol Glick, Sidney Stern and Gerrold Berr. Bach of these individuals had been students in a cram or review course conducted by Stanley Broskie, a C. P. A. with offices in Bast Orange, New Jersey. Likewise, each had failed all or parts of the C. P. A. examination. (The examination consisted of four sections: Law, auditing, theory and problems.)

The State contended that each of the named candidates was approached by Broskie who told them that their papers would be regraded if they would pay him a certain sum of money and take an additional sum to defendant at his office. They were to talk to defendant generally about accounting, the examination and their personal situation, then hand him an envelope, usually containing $1000 in small bills. This money was to be for either “his favorite charity” or the Joseph J. Seaman Scholarship Eund, the latter being a fund which defendant had begun (but did not administer) with the proceeds of a testimonial dinner previously given in his honor by the New Jersey Society of C. P. A.’s. No receipts were ever issued for these “contributions.”

Incidentally, Broskie was indicted on the conspiracy, bribery and extortion charges along with defendant, but pleaded guilty to the conspiracy charge before defendant’s trial began and fined $1000. The other charges were held open.

Robert Pacca (listed as a co-conspirator on the conspiracy indictment, but not included as a defendant) testified that he had taken the C. P. A. examination on several occasions from November 1963 to May 1967 but never passed any of the four portions. After taking Broskie’s cram course, Pacca took the November 1967 examination. Before the grades were officially announced, Broskie called Pacca to tell him he had passed two parts. Pacca then went to see Broskie, and Broskie told him he “could get [him] passed” on the other portions of the examination if Pacca were willing to “make a contribution to the scholarship fund” at a total cost of $1500. Pacca agreed to the scheme about ten days later. Approximately one month thereafter Pacca received a letter, from the State Board saying he had passed all four parts of the examination. A week later, at Broskie’s direction, he brought Broskie an envelope with $500 in cash and then made an appointment to see Seaman, went to his office in Perth Amboy and left $1000 in small bills on his desk. Seaman did not open the envelope in Pacca’s presence, give him a receipt, or send a letter of acknowledgment, as he promised he would. Pacca did not deduct the $1000 as a contribution to charity on his income tax return.

On cross-examination Pacea admitted he knew the State Board had the right to regrade the examination papers. He also said that he asked Broskie if he could pay him by check, but Broskie emphasized he should bring cash.

Similar testimony was adduced as to Francis Cerny, George Vanl-Iook, Gerrold Berr and Sol Glick, four other co-conspirators listed in the conspiracy indictment, and as to Sidney Stern, all five previously unsuccessful examination candidates. Cerny testified that he had originally brought Broskie envelopes with blank checks. Broskie said they were unacceptable so Cerny cashed the checks and gave both Broskie and Seaman cash in envelopes. VanHook said that when he went to Seaman he gave him the envelope, saying, “I want to contribute the money to the scholarship fund.” Berr said Broskie told him, “It will cost you two big ones.” Glick told Seaman the money was “for [his] favorite charity.” Stern said Seaman picked up his envelope and began, on his own, telling Stern about the laudable aims of the scholarship fund. None of these men was given a receipt for his contribution and none took the contribution as a deduction on his income tax return.

John Kortbawi, an agent for Internal Revenue Service, testified that after he had taken the fourth part of the examination — he had earlier passed the first three parts — he received a letter from Broskie requesting an appointment. When Kortbawi got to Broskie’s office, Broskie told him he “didn’t quite make it.” Kortbawi told Broskie he was an I. R. S. agent, to which Broskie replied, “Wow, you’re hot stuff. Jf I had known that, I wouldn’t have called you.” However, after ascertaining that Kortbawi did want to become certified, Broskie said, “If I’m going to give you something that you are going to have to pay for, you are gong to have to get something back in exchange for it. * * * [YJou’re a big boy. You know what the score is in this world.” He then told Kortbawi that he would have to make a contribution to the fund in order to pass. Kortbawi testified that Broskie said of Seaman, “As independently wealthy and rich as this man is, he still likes to get a little money on the side.” Kortbawi said he reported the incident to a group supervisor and then had an electronic device attached to his telephone. Broskie and Kortbawi had several subsequent conversations pertaining to the amount of the “contribution” that had to be made, and Kortbawi’s most recent failure on the examination, all of which were taped and played for the jury. In another conversation Broskie told Kortbawi that he “just got off the phone * * * with the big cheese,” in reference to the notification that Kortbawi was soon to get that he passed the examination. Kortbawi said he had visited Seaman earlier to discuss the examination and that he told Seaman at that time he would consider it “an honor” to contribute to the scholarship fund. At that time Seaman indicated to Kortbawi that he did not want there to be any connection between a contribution and the examination.

Defendant took the stand on his own behalf and denied participating in any scheme with Broskie or having improperly accepted payments in his official capacity as Board secretary. He said he recommended Cerny and the others for certification because of the quality of their papers, not because of the contributions. He considered the monies as payments to the scholarship fund, totally unrelated to the regrading. However, he admitted that 22 of the 23 accountants who contributed to the fund had been regraded. Seaman said that on June 3, 1968 he sent a $10,000 check from his personal account to the scholarship fund; this contribution included the contributions made by the successful candidates, although their names were not mentioned in Seaman’s letter of transmittal.

In addition to a host of fact witnesses, defendant produced an impressive selection of prominent character witnesses.

Defendant first contends that the introduction into' evidence of the tapes of the various Broskie-Kortbawi conversations was prejudicial error because this procedure denied him the constitutional right of confrontation under the Sixth and Fourteenth Amendments. He asserts that all of Broslrie’s statements on the tape were made out of defendant’s presence and were intended to involve defendant, without his knowledge.

Although the United States Supreme Court has recognized that the Sixth Amendment’s right of an accused to confront the witness against him is a fundamental right made obligatory on the States by the Fourteenth Amendment, the court, nevertheless, in Dutton v. Evans, 400 U. S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970), held:

It is not argued, nor could it be, that the constitutional right to confrontation requires that no hearsay evidence can ever be introduced.
* * The issue before us is the considerably narrower one of whether a defendant’s constitutional right “to he confronted with the witnesses against him” is necessarily inconsistent with a State’s decision to change its hearsay rules. . . . While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; * * *.’
It seems apparent that the Sixth Amendment’s Confrontation Clause and the evidentiary hearsay rule stem from the same roots. But this Court has never equated the two, and we decline to do so now. [400 U. S. at 80-82, 86, 91 S. Ct. at 215, 216, 218, 27 L. Ed. 2d at 222-226]

See also California v. Green, 399 U. S. 149, 90 S. Ct. 1930, 91 S. Ct. at 215, 216, 218, 26 L. Ed. 2d 489 (1970).

In this State, Evidence Rtile 63(9) provides that

A statement which would be admissible if made by the declarant at the hearing is admissible against a party if * * * (b) at the time the statement was made the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan.

In State v. Boiardo, 111 N. J. Super. 219 (App. Div. 1970), certif. den. 57 N. J. 130 (1970), we declined to hold that the “Confrontation Clause invalidates [the above-quoted] Evidence Rule.” [at 230]. We concluded that the “introduction in evidence of hearsay statements made by co-defendants in furtherance of a conspiracy in which [defendant] was a participant did not violate his Sixth Amendment right to be confronted by witnesses against him.” Ibid. These declarations of a conspirator constitute an exception to the hearsay rule, affording in the circumstances a sufficient guarantee of testimonial trustworthiness. State v. Garbone, 10 N. J. 329, 341 (1952).

Defendant’s assertion that the State failed to prove a prima facie case of conspiracy prior to the admission of the tapes is without merit. In such a situation the threshold requirement for admissibility is satisfied by showing the likelihood of an illicit association between the declarant and defendant. United States v. Ragland, 375 F. 2d 471, 477 (2 Cir. 1967), cert. den. 390 U. S. 925, 88 S. Ct. 860, 19 L. Ed. 2d 987 (1968). Prior to the introduction of the tapes, Pacca, Cerny and the others all testified to the “likelihood” of such an illicit agreement.

Defendant further argues that the very us® of the tapes was prejudicial, in that the memorialization on tape of certain testimony tends to highlight it and emphasize it most vividly in the jurors’ minds. The use of sound recordings is not inherently prejudicial. State v. Driver, 38 N. J. 255, 287-288 (1962).

Finally, defendant claims that although the recordings might have been evidentially competent as to the conspiracy charge, they played no part in the misconduct and extortion charges and their use was therefore confusing to the jury and prejudicial. There is no basis to this claim. The trial judge in his charge specifically and clearly told the jury that the Broskie tapes could not be considered in relation to the other offenses (besides conspiracy). A similar argument was raised and rejected in State v. Dennis, 43 N. J. 418, 424 (1964).

Based upon all of the above, we conclude that the Broskie-Kortbawi tapes were properly received in evidence and defendant was neither prejudiced nor otherwise thereby denied a fair trial.

Defendant next contends that the trial court committed error in failing to instruct the jury that they could draw an inference adverse to the State from its failure to produce Broskie.

Such an adverse inference is not proper if the witness was available to both parties or “by his position would be likely to be so prejudicial against the party that the latter could not be expected to obtain the unbiased truth from him.” State v. Clawans, 38 N. J. 162, 171 (1962); see also Wild v. Roman, 91 N. J. Super. 410, 414 (App. Div. 1966). Broskie was not in custody at the time and his whereabouts was equally known to defendant as well as by the State. Thus, he was available to both parties. Further, the record clearly indicates that even though Broskie originally promised the State that he would be helpful in the prosecution of defendant, thereafter, and before trial, he expressly stated to the prosecutor and his own counsel that he was “hostile to the State” and that he “wants to help the defendant in any way that he can.” At the time defendant moved for a Clawans charge, the trial court gave defendant an opportunity to reopen his case and call Broskie as a defense witness but this oifer was refused. Under all these circumstances, the judge correctly refused to give a Clawans charge.

Defendant’s next contention is that his motion for judgment of acquittal on the conspiracy charge, made at the conclusion of the State’s ease, should have been granted because there was insufficient evidence of a conspiracy independent of hearsay declarations of the alleged accomplice. We find there was.

A conspiracy may be proved either by direct or circumstantial evidence. State v. Carbone, supra, 10 N. J. at 341. Proof of the existence thereof is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between or among them. Iiid. “The prosecutor is permitted to bring in ambiguous and somewhat unrelated acts, statements, conversations and transactions in the hope that when viewed as a whole, the inference of a pre-planned scheme will emerge. In short, when the total effect of the proof indicates sufficiently the existence of a conspiracy, the case must go to the jury.” State v. General Restoration Co., 42 N. J. 366, 376 (1964).

We believe the trial court properly denied this motion. Considering the State’s evidence in its entirety and giving the State the benefit of all its favorable testimony as well as all the inferences that could reasonably be drawn therefrom, we conclude that the jury could find defendant’s guilt of the crime beyond a reasonable doubt. State v. Reyes, 50 N. J. 454, 458-459 (1967). As we have previously indicated, the testimony of witnesses, independent of the tapes, established defendant’s direct role in the conspiracy. Among other facts, it was not contradicted that he accepted envelopes from each containing small bills without counting them, immediately after regrading their examinations.

Defendant also maintains that the conspiracy indictment fails to charge a crime, since the offense can only be committed by the concerted action of the parties to it. He bottoms his position upon the so-called Wharton rule of conspiracy. That rule as originally formulated stated that

When to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a nature that it is aggravated by a plurality of agents cannot be maintained. [2 Wharton, Criminal Law (12th ed. 1932), §1604 at 1862. See also, 1 Wharton, Criminal Law and Procedure (Anderson ed. 1957), § 89 at 191]

Although the existence of this general rule was recognized in State v. Lennon, 4 N. J. Super. 415, 419 (App. Div. 1949), we noted [at 420], “[W]here a crime from a legal standpoint may be committed by one person only, a conspiracy between two or more persons to commit that offense changes the character of the offense and the stated rule does not apply.” The Supreme Court affirmed in 3 N. J. 337 (1949) and said:

* * the conspiracy is also criminal where it contemplated the cooperation of a greater number of parties than were necessary to the commission of the principal offense. Here, the conspiracy [to commit bookmaking] charged and proved included participants who were not indispensable to the consummation of the substantive offense. This is the distinguishing principle * * *. [at 343]

In the instant case the conspiracy indictment charged defendant with conspiring to violate the common law offense of misconduct in office (N. J. S. A. 2A:85-1) and the statutory offense of extortion (N. J. S. A. 2A.T05-1).

The crime of misconduct in office is defined to be corrupt misbehavior by an officer in the exercise of the duties of his office or while acting under the color of his office. State v. Begyn, 34 N. J. 35, 49 (1961); State v. Silverstein, 76 N. J. Super. 536, 540 (App. Div. 1962), aff’d 41 N. J. 203 (1963). Having by color of bis office received money to which he was not legally entitled by reason of or in connection with his legal duties, defendant was guilty of the crime of extortion under our statute. State v. Begyn, supra, at 47. There is a distinction between that crime and bribery; the latter offense consists in offering a present or receiving one, while the former consists in demanding an illegal fee or present by color of office. 31 Am. Jur. 2d, § 2, p. 902. See State v. Begyn, supra, at 45-48. The purpose of our extortion statute was simply to punish the officer who illegally took the fee. Id. at 46. In bribery both the officer and the recipient are guilty of the offense. Id. at 48.

The substantive crimes of misconduct in office and extortion set forth in the conspiracy indictment could be and were committed by defendant alone when he received money which he was not officially entitled to and then corruptly regraded examination papers. Furthermore, Broskie and the others were not indispensable to the commission of misconduct in office and all of them were not indispensable to the extortion. Therefore, we hold the so-called Wharton rule to be inapplicable. See United States v. Smolin, 182 F. 2d 782, 786 (2 Cir. 1950); United States v. Corallo, 281 F. Supp. 24, 29 (S. D. N. Y. 1968); United States v. Cogan, 266 F. Supp. 374 (S. D. N. Y. 1967).

Finally, defendant asserts that the indictment charging the offenses of misconduct in office, alleged to haye happened in Middlesex County, was improperly and unlawfully returned by the Essex County grand jury, and placing defendant on trial thereon in the latter county was illegal and prejudicial to his constitutional rights. This point is utterly without merit. Venue is not jurisdictional, it is merely a matter of practice and procedure, as long as it appears the offense was committed within the State. State v. DiPaolo, 34 N. J. 279, 287-288 (1961); State v. Greco, 29 N. J. 94, 104 (1959). Hence, a question of Tenue does not implicate the jurisdiction of a grand jury. In re Salvi, 34 N. J. 450, 451 (1961). Further, a claim of improper Tenue must be raised by pretrial motion or else is considered waiyed. State v. DiPaolo, supra, at 288; State v. Greco, supra, at 105; State v. Schultheis, 113 N. J. Super. 11, 19 (App. Div. 1971).

Additionally, although the indictment alleges only offenses in Middlesex County, it appears that the solicitation of the offenses was committed by an aider and abettor in Essex County, Broskie’s office being in East Orange. In no eyent do we find that defendant suffered prejudice by the Essex County indictment and trial.

Judgment affirmed.


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

text:
    ELIZABETH FIRE OFFICERS ASSOCIATION, COMPLAINANT-RESPONDENT, v. CITY OF ELIZABETH, A MUNICIPAL CORPORATION, RESPONDENT-APPELLANT. ELIZABETH POLICE SUPERIOR OFFICERS ASSOCIATION, INC., PETITIONER-RESPONDENT, v. CITY OF ELIZABETH, A MUNICIPAL CORPORATION, RESPONDENT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 9, 1971
    Decided March 9, 1971.

      Before Judges Kilkenny, Halpekn and Lane.

      Mr. John R. Weigel argued the cause for appellant (Mr. Edward W. McGrath, city attorney for the City of Elizabeth) .

      Mr. Raymond 8. Londa argued the cause for respondent Elizabeth Police Superior Officers Association, Inc. (Messrs. Londa and Londa, attorneys).

      Mr. Theodore A. Winard, Deputy Attorney General, appeared on behalf of respondent Public Employment Relations Commission (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. Francis X. Hayes filed a brief amicus curiae on behalf of New Jersey League of Municipalities and New Jersey Institute of Municipal Attorneys.
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

In these consolidated appeals the City of Elizabeth seeks to set aside decisions of the. New Jersey Public Employment Relations Commission (PERC) and to have it ordered that (1) the appropriate negotiating unit for superior police officers excludes all officers holding the rank of Lieutenant, captain, deputy chief and chief, and (2) the appropriate negotiating unit for officers of the fire department excludes all officers holding the rank of battalion chief, deputy chief and chief. A further directive is sought from the court that new elections be held for both appropriate negotiating units to determine representation.

These consolidated appeals have as their essential issue the interpretation of the term “managerial executive” within the exclusionary language of N. J. S. A. 34:13A-5.3, as applied to the Elizabeth Police and Eire Departments.

That section of the statute provides, in pertinent part, for the formation, without fear of penalty or reprisal, of public employees organizations,

* * * provided, however, that this right shall not extend to any managerial executive except in a school district the term managerial executive shall mean the superintendent of schools or his equivalent, nor, except where established practice, prior agreement or special circumstances, dictate the contrary, shall any supervisor having the power to hire, discharge, discipline, or to effectively recommend the same, have the right to be represented in collective negotiations by an employee organization that admits nonsupervisory personnel to membership * * *. (Emphasis added).

The section also provides:

The negotiating unit shall be defined with due regard for the community of interest among the employees concerned. [Emphasis added]

Unfortunately, the Legislature did not define more precisely its reference to a “managerial executive,” except in a school district where the term was equated with “superintendent of schools or his equivalent.” Nor did the Legislature define “community of interest.” Our Supreme Court has considered the probable legislative intent with reference to a school district in Board of Education, Orange v. Wilton, 57 N. J. 404 (Jan. 26, 1971). There the board of education recognized the Administrators Association of West Orange Public Schools as negotiating representatives for principals, assistant principals, subject-matter directors and administrative assistants but excluded from the unit “Directors who act in supervisory capacity” over such personnel. The board refused to accept the Association as the appropriate negotiating unit for Elizabeth Wilton who holds the supervisory position of director of elementary education.

PERC ruled that Miss Wilton had such a “community of interest” with the other members of the Association as to warrant her inclusion in the collective bargaining unit. It held:

The Act is clear and unambiguous in not proscribing the right of various ranks of supervisors to be combined in the same unit or belong to the same organization.

PERC interpreted the statute to exclude from an employees’ unit only the superintendent of schools, as N. J. 8. A. 34:13A-5.3 expressly provides, as noted above. It allowed all other supervisors, regardless of the rank of some over others, to be members of the same bargaining unit.

In the opinion Justice Francis noted the need to evaluate two factors in seeking out a proper solution of the question in Wilton. Eirst, the degree of supervision of principals over assistant principals was without particular bearing because both of these grades of supervisors were members of the Association, and the board of education had raised no issue with respect to their membership. Secondly, PEEO referred to Miss Wilton’s desire and consent to be a part of the unit. Justice Eraneis observed, “Her consent is an element which may be considered bnt, as in the private employment sector, it should not be deemed controlling.” The determinative factor is “whether her inclusion in the unit will serve and not subvert the purpose of the Act, i. e., establishment and promotion of fair and harmonious employer-employee relations in the public service.”

There is no unqualified direction in N. J. S. A. 13A-5.3 and 13A-6(d) to permit all supervisory employees to join a single negotiating unit, regardless of gradations of duties of particular supervisors. If performance of assigned duties by a particular supervisor “bespeaks such an intimate relationship with the management and policy-making function as to indicate actual or potential substantial conflict of interest between him and other supervisory personnel in a different or lower echelon of authority, such supervisor should not be admitted to the same negotiating unit. * * * Obviously no man can serve two masters.” Wilton, supra.

Community of interest has been regarded as identity of interest. An important consideration is whether an employee sought to be included in a unit is one from whom the other employees may need protection; whether his inclusion will involve a potential conflict of interest. Wilton, and see cases cited.

Our Legislature intended PEEG to determine the appropriate negotiating unit in the event of a dispute. The criterion of community of interest mandates a consideration of the question of substantial potentiality for conflict of interest among the employees in a particular unit. In the instant cases, PEEO has ruled that the chief and deputy chiefs of the Elizabeth Police Department “do not exercise the role of managerial executives.” Accordingly, it held that the unit appropriately constituted all sergeants, lieutenants, captains, deputy chiefs and the chief of police. As to the Fire Department, PERC would allow in the same collective bargaining unit all officers, without regard to rank.

As Wilton cogently points out, “One underlying concept * * * is that representatives of the employer and the employees cannot sit on both sides of the negotiating table.” In the present case, as in Wilton, PERC made no evaluation, in terms of conflict of interest, of the facts relating to the supervisory authority of one set of officers over the others. As a general proposition, we believe that PERC was in error in declaring that all superior officers, “regardless of their status with respect to each other, per se possess the community of interest which requires their inclusion in the same negotiating unit.” We deem that language in Wilton equally appropriate here.

PERC chose not to meet the meritorious issue as to which Fire Department officers constitute “managerial executives” because the city had not challenged an earlier decision by PERC as to the proper representative unit. To avoid disparity as to the analogous police and firemen’s superior officers associations, the issue ought to be considered on its merits as to both. We choose not to allow this litigation to bog down on the basis of procedural deficiencies.

We shall do in the instant case what the Supreme Court deemed necessary and proper in Wilton. The matter is remanded to PERC for a specific fact finding and statement of the reasons therefor, as to whether the respective superior officers’ obligations to Elizabeth as they now exist are sufficiently indicative of potential conflict of interest between the respective officers to require exclusion of some of the supervisory personnel from this particular negotiating unit. When such determination is made by PERC, any aggrieved party may seek a review in the Appellate Division. Meanwhile, we do not retain jurisdiction.


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

text:
    ALLEN D. TOEBE, PLAINTIFF-RESPONDENT GROSS-APPELLANT, v. EMPLOYERS MUTUAL OF WAUSAU, ET AL., DEFENDANTS-APPELLANTS GROSS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 14, 1970
    Final sxxpplemental xnemoraixda received November 18, 1970 —
    Decided March 11, 1971.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. Harold Friedman argued the cause for respondenteross-appellant (Messrs. Kirsten, Solomon & Friedmam,, substituted attorneys).

      Mr. Gerald W. Conway argued the cause for appellants-cross-respondents (Messrs. Schreiber & Lancaster, attorneys).
    American Mutual Insurance Alliance filed a brief amicus curiae (Messrs. Smith, Stratton, Wise & Heher, attorneys; Mr. John H. Heher, on the brief).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Plaintiff, holder of a New Jersey workmen’s compensation award entered against his employer, Robert Schmidt Truck Leasing, Inc., of New Brighton, Minnesota (Schmidt), brought an action in the Superior Court, Law Division, to recover payment of the award against defendant Employees Mutual Liability Insurance Company of Wisconsin, which had issued a workmen’s compensation insurance policy in Minnesota to Schmidt under the assigned risk law of Minnesota. On cross-motions for summary judgment the trial judge denied defendant’s and granted plaintiff’s motion. Plaintiff then applied for a counsel fee of $4,725.33 for services rendered by his attorney in the present action. The court awarded only $1,300. Pinal judgment on the entire case was thereafter entered in favor of plaintiff. Defendant appealed, and plaintiff filed a cross-appeal as to the counsel fee.

The facts are essentially uncontradicted. Plaintiff, an employee of Schmidt, suffered a work-connected injury while operating one of his employer’s trucks in New Jersey. He filed a petition with the New Jersey Division of Workmen’s Compensation and was awarded approximately $13,201 against Schmidt. (Defendant refused to give Schmidt a defense, claiming it had no obligation to do so under its policy.) Plaintiff docketed this award as a judgment in the Essex County Court and then in the Superior Court. Schmidt apparently never paid any part of the award; the reason for this does not appear in the record. Plaintiff eventually instituted an action against defendant insurer in the Law Division.

The “Standard Workmen’s Compensation and Employers’ Liability Insurance Policy” issued to Schmidt by defendant contains the following insuring agreements:

I Coverage A — Workmen’s Compensation To pay promptly when due all compensation and other benefits required of the insured by the workmen’s compensation law.
Coverage B.- — Employers’ Inability
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, including death at any time resulting therefrom, sustained in the United States of America, its territories or possessions, or Canada by any employee of the insured arising out of and in the course of bis employment by the insured either in operations in a stale designated in Item 3 of the declarations or in operations necessary or incidental thereto.

Paragraph 3 of the Declarations reads as follows:

Coverage A of this policy applies to the Workmen’s compensation law and any occupational disease law of each of the following states: Minnesota.

The issue on the cross-motions for summary judgment, as stated by the trial judge and briefed by the parties, is whether defendant is liable, under its contract of insurance made and issued to the employer in Minnesota, to pay the award granted by our Workmen’s Compensation Division, where the policy specifically provided that coverage was limited to benefits payable under the workmen’s compensation law of Minnesota. Answering this question in the affirmative, the judge held that “since New Jersey has jurisdiction to grant the award in this case, it should also have jurisdiction to permit an injured workman all the statutory remedies to effect recovery against his employer’s insurance carrier.” To deny the employee this supplemental relief when he is unable to collect the award from his employer would, in the judge’s view, be against public policy.

Defendant concedes that the New Jersey Division of Workmen’s Compensation had jurisdiction to entertain plaintiff’s petition and to enter an award against his employer for his work-connected injury. See Boyle v. G. & K. Trucking Co., 37 N. J. 104 (1962). The real issue, it says, is whether the employer’s liability for that award is covered by the terms of the workmen’s compensation policy which the company issued to Schmidt, by whose terms coverage is said to be limited to liability arising under Minnesota’s workmen’s compensation law.

I

Plaintiff argues that the compensation award he recovered comes within the provisions of Coverage B of the policy, quoted above. That coverage is patently different from what is provided by Coverage A, which expressly deals with workmen’s compensation. Coverage B affords protection in the case of a common law action for damages by an employee, where such action is still permitted by a state law for injuries not covered by a workmen’s compensation law. See Danek v. Hommer, 28 N. J. Super. 68, 74 (App. Div. 1953), aff’d p. c. 15 N. J. 573 (1954), dealing with a similar provision. Indeed, under Exclusion (f), defendant’s policy expressly provided that it did not apply, under Coverage B, “to any obligation for which the insured or any carrier as his insurer may be held liable under the workmen’s compensation or occupational disease law of a state designated in Item 3 of the declarations, any other workmen’s compensation or occupational disease law, any unemployment compensation or disability benefits law, or under any similar law.” Coverage B clearly has no application here, for plaintiff’s injuries were compensable under Minnesota’s workmen’s compensation law, Minn. Stat. Ann., Workmen’s Compensation, § 176.041, subds. 2 and 3, as well as under the law of New Jersey.

II

Defendant contends that by reason of Item 3 of the Declarations in its policy, it provided coverage only for such benefits as its insured, Schmidt, was required to pay under the workmen’s compensation law of Minnesota, and not for benefits awarded under the New Jersey act or the law of any other state. It considers that question as having been decided and now controlled by Pennsylvania Mfrs. Cas. Ins. Co. v. Schmerbeck, 128 N. J. L. 180 (Sup. Ct. 1942), aff’d 131 N. J. L. 159 (E. & A. 1944). In that case the employee a New Jersey resident, filed a workmen’s compensation petition in this State under N. J. S. A. 34:15-84 for work-connected injuries suffered in Morrisville, Pa., while in the employ of a Pennsylvania sand and gravel company. After a preliminary hearing in the Workmen’s Compensation Bureau on the limited issue of whether the employment contract under which petitioner was hired was made in New Jersey or Pennsylvania, the deputy commissioner found that the hiring had been in this State (a conclusion concurred in by our former Supreme Court on appeal). The employee then filed an amended claim petition adding the insurance carrier as a party. The carrier’s answer alleged that under the terms of its policy its obligation to indemnify the employer, its insured, was only “in accordance with the provisions of the Workmen’s Compensation Act of Pennsylvania,” and therefore the Bureau had no jurisdiction as far as it was concerned. Its motion for dismissal was denied and eventually a compensation award was entered against both the employer and the carrier. The Supreme Court reversed as to the carrier, holding that the quoted limiting provision of the policy confined its liability to awards handed down in accordance with the compensation law of Pennsylvania. Accordingly, the court held that the carrier’s motion to dismiss should have been granted, while at the same time it affirmed as to the employer.

We have examined the briefs filed in both the Supreme Court and our former Court of Errors and Appeals and find that never in that case was it suggested that the New Jersey court might apply Pennsylvania law. Since the parties did not raise that issue, nor was it discussed by either court, Schmerbeclc cannot be considered as binding with respect thereto.

In accord with Schmerbeck, see Anderson v. St. Paul Mercury Indemnity Co., 84 So. 2d 878 (La. Ct. App. 1956); Calcote v. Century Indemnity Co., 93 So. 2d 271 (La. Ct. App. 1957); Jones v. Hennessy, 232 La. 786, 95 So. 2d 312 (Sup. Ct. 1957); Mandle v. Kelly, 229 Miss. 327, 90 So. 2d 645, 92 So. 2d 246 (Sup. Ct. 1957); Foster Wheeler Corp. v. Bennett, 354 P. 2d 764 (Okla. Sup. Ct. 1960); Consolidated Underwriters v. King, 160 Tex. 18, 325 S. W. 2d 127 (Sup. Ct. 1959), app. dism. 361 U. S. 198, 80 S. Ct. 295, 4 L. Ed. 2d 238 (1959).

The most recent case supporting defendant’s position is Travelers Ins. Co. v. Industrial Accident Comm., 240 Cal. App. 2d 804, 50 Cal. Rptr. 114 (D. Ct. App. 1966), where the employee was hired in California, injured in Alaska and applied for benefits under the California law. The policy was like the one here involved with respect to Coverages A and B and Item 3 of the Declarations, Item 3 reading: “Coverage A of this policy applies to the workmen’s compensation law and any occupational disease law of each of the following states: Alaska.” The,court annulled an order of the California Industrial Accident Commission holding the insurer liable for workmen’s compensation benefits under the California statute, stating that

* * * Where the workmen’s compensation law provides for administrative determination of claims by a special tribunal created by a particular state, rights created by the compensation act of that state cannot ordinarily be enforced in another state. (2 Larson, Workmen’s Compensation Law, § 84.20, pp. 356-357; Grenier v. Alta Crest Farms, 115 Vt. 324, 58 A. 2d 884).

This much can be said for defendant’s contentions — New Jersey has always recognized the right of the insurer to be heard on matters of coverage subsequent to a valid award against the insured employer. See, e. g., Williams v. Bituminous Casualty Corp., 51 N. J. 146, 151 (1968); Raab v. American Casualty Co., 4 N. J. 303 (1950); American Mut. Liab. Ins. Co. of Boston v. Chodash, 123 N. J. L. 81 (Sup. Ct. 1939), aff’d o. b. 124 N. J. L. 561 (E. & A. 1940). Purther, parties to workmen’s compensation insurance are free to enter into such engagements as they choose, if not in contravention of statutory expressions or public policy, Serafino v. United States Fidelity & Guaranty Co., 122 N. J. L. 294, 299 (Sup. Ct. 1939), and such a policy fixes and limits the insurer’s liability. Cf. Goldmann v. Lumber Mut. Cas. Ins. Co. of N. Y., 30 N. J. Super. 281, 284 (Cty. Ct. 1954), and cases cited; Maryland Cas. Co. v. Zanca, 76 N. J. Super. 475 (App. Div. 1962); Brix v. General Acci dent & Assurance Corp., 254 Minn. 21, 93 N. W. 2d 542, 544 (Sup. Ct. 1958).

Although several courts, whose decisions are referred to above, have reached a conclusion which favors defendant’s position, they have, without much analysis, accepted the proposition that where a policy covers liability exclusively under the workmen’s compensation law of one state, the insurer cannot be held liable in proceedings instituted in the compensation bureau or agency of another forum. However, an alternate solution exists which gives due consideration to the terms of the policy without making hollow and ineffectual plaintiff’s remedies.

The trial judge acknowledged sound public policy when he recognized that the law allowing injured out-of-state employees to apply for benefits under our Workmen’s Compensation Law would be frustrated unless all the statutory remedies, including suing the insurer (N. J. S. A. 34:15-84), to effect recovery were available. An equitable resolution of this case may be found in applying conflict of laws principles which, while recognizing the validity of the policy limitations, would hold the insurer responsible fot all amounts of the forum state’s award as were in accord with the workmen’s compensation law of the state named in the policy. Weinberg v. State Workmen's Ins. Fund, 368 Pa. 76, 81 A. 2d 906 (Sup. Ct. 1951); Kacur v. Employers Mut. Cas. Co., 253 Md. 500, 254 A. 2d 156 (Ct. App. 1969).

In Weinberg the employee, a New Jersey resident, had been hired in New Jersey but her contract with plaintiffs provided that it was “to be interpreted in accordance with the laws of the Commonwealth of Pennsylvania.” The employee was injured on the job in Pennsylvania, but filed her petition for workmen’s compensation in New Jersey. The ensuing compensation award was affirmed in Gotkin v. Weinberg, 2 N. J. 305 (1949), the court holding that since the employment contract was made in New Jersey, the Compensation Bureau had jurisdiction. Plaintiffs paid the award and then brought an action in Pennsylvania against the State Workmen’s Insurance Fund of that state which had issued a policy with an endorsement stating that it agreed “to assume the whole liability of this insured employer under the Workmen’s Compensation Act” of Pennsylvania. The Pennsylvania Supreme Court upheld plaintiffs’ claim for indemnity under the policy. It said that the fact that the proceedings were instituted in New Jersey was wholly irrelevant unless there were a substantive difference between the terms of the New. Jersey and Pennsylvania acts such that initial recovery could not have been obtained in Pennsylvania. The statute which created the Fund did not limit its liability to cases in which the compensation petition was filed in Pennsylvania. Accordingly, the court held that the complaint presented a good cause of action but did not set out the proper measure of damages, which would be limited to the amount of plaintiffs’ liability for compensation to • the insured employee under the Pennsylvania law. The court therefore permitted plaintiffs to amend their complaint to seek such proper measure of damages and remanded the matter for further proceedings.

Factually, of course, the case before us differs from Weinberg. Plaintiff seeks recovery from the insurer in the state where the original award was granted, New Jersey. The Weinberg court was not faced with the problem of applying another jurisdiction’s law. However, the case does stand for the proposition that an insurer may be liable for an award granted in a state other than that specified in the policy, to the extent that the award would have been granted under the compensation law of the latter state.

Kacur v. Employers Mut. Cas. Co. is factually analogous to our situation. In that case plaintiff was a Pennsylvania employer to whom defendant had issued a standard workmen’s compensation policy in Pennsylvania. The employee, hired for plaintiff’s Pennsylvania business, was injured in Maryland and ultimately recovered a compensation award there which plaintiff paid. Defendant insurer having denied coverage, the employer sought reimbursement from it in Maryland. The policy involved was identical in pertinent part to the one here in question; it stated that “Coverage A of this policy applies to the Workmen’s Compensation Law * * * of each of the following states: Pennsylvania.” The Maryland trial court granted judgment for defendant, relying on the California case of Travelers Ins. Co. v. Industrial Accident Comm. and the Texas case of Consolidated Underwriters v. King, above. The Maryland Court of Appeals reversed, relying strongly on Weinberg. In holding that plaintiff employer should be reimbursed, the court found that such reimbursement was allowable to the extent that the employer would be liable under the workmen’s compensation law of Pennsylvania. The court determined and stated that it had no doubt Pennsylvania would have honored the claim — and so here, as defendant readily admits, had plaintiff sought compensation in Minnesota rather than in New Jersey. The Kacur case sharply criticized the California decision in Travelers Ins. Co.

In our view, the approach in Kacur should be followed in the present case. Certainly, by holding defendant insurer liable for only that portion of the award, be it part or all, as would have been recoverable pursuant to Minnesota’s workmen’s compensation law, the terms of the policy and its premium base are not changed. Although the insurer may not have anticipated being sued or obligated to defend the insured employer’s interests in a jurisdiction other than Minnesota, yet where, as here, jurisdiction over the insurer can be obtained and the accident happened in New Jersey, it is more economical and convenient to have the insurer defend in this State.

Defendant argues that Weinberg and Kacur create bad law, for the insurer is called upon to provide coverage it had not bargained for. This argument is unacceptable, since Minnesota law will be applied, and in Minnesota the insurer must take the employer’s full risk. Brix v. General Accident & Assurance Corp., above. Minnesota would permit a recovery under the circumstances of the work-connected accident suffered by plaintiff, the insured’s employee. See Minn. Stat. Ann., § 176.041, referred to above. That statute was amended in 1967 (Laws 1967, Ex. Sess., c. 40, § 6) to provide specifically that employees hired in Minnesota and injured while temporarily employed outside the state, are subject to the compensation law of Minnesota. Although this amendment came three years after the accident in this case, it does not appear that the amendment heralded a change in the law, but was merely a codification of it as developed by the Minnesota courts. See Marrier v. Nat'l Painting Corp., 249 Minn. 382, 82 N. W. 2d 356 (Sup. Ct. 1957) (Minnesota law applied to Indiana accident). That much was acknowledged in a letter sent to plaintiff’s former attorney by the Minnesota Industrial Commission on November 15, 1966 which stated that Minnesota’s compensation law “is extra-territorial in its application and therefore a Minnesota employee would be covered by the Minnesota law regardless of where he is injured.”

Defendant also argues that the Weinberg-Kacur rationale is inadequate for it would allow a New Jersey court to determine what a Minnesota administrative agency — its Industrial Commission — would award as compensation. The same argument could be made in any conflict of laws case where the court of the forum, in addition to determining the applicable law of .another jurisdiction, must also fix damages.

Defendant, in its reply brief, suggests a compromise solution by referring us to the decision in Woodview Villa, Inc. v. New Amsterdam Cas. Co., 17 N. 7. 2d 458, 266 N. Y. S. 2d 813, 213 N. E. 2d 893 (Ct. App. 1965). The Appellate Division had found that coverage under a New York workmen’s compensation policy was limited to the employer’s liability under New York’s compensation law, and that an employee’s award entered under the New Jersey statute, even though valid as against the employer, was not recoverable by the employer as against the insurance carrier. 22 A. D. 2d 904, 255 N. Y. S. 2d 298 (1964). The Court of Appeals modified the Appellate Division judgment by entering summary judgment for plaintiff employer in the amount of $250 for his legal expenses in defending the New Jersey compensation case, and dismissing without prejudice the complaint as to the other relief sought by the employer. The court held that the New York Workmen’s Compensation Board had exclusive jurisdiction to determine all questions relating to the payment of claims under the state’s compensation law, and that the Board must determine on appropriate application, as between the plaintiff-employer and defendant-carrier, “the extent of liability, if any, which has been incurred by defendant under the compensation policy by reason of the injury of plaintiff’s employee in the New York accident.” Thus, the Court of Appeals adopted the basic Weinberg rationale of permitting an action by the employer against the carrier on the policy, but required that the factual determination of whether compensation was owed and, if so, how much, be determined by the appropriate administrative tribunal established by New York’s compensation law.

Defendant would adopt the Woodview Villa approach and require plaintiff, standing in place of his employer, to return to Minnesota and there proceed before the Industrial Commission. This would really be no different than had plaintiff initially filed for an award under Minnesota’s compensation law. Not only would it frustrate the award he obtained in the Workmen’s Compensation Division under our law, but would require a complete rerun of the case, more than six years after the accident.

There is an additional and critical consideration which militates against requiring plaintiff to seek relief in Minnesota against defendant insurer, and that is the question of the statute of limitations. Minn. Stat. Ann., § 176.151(1) provides that the time for “actions or proceedings” by an injured employee to determine or recover compensation is limited to “two years after the employer has made written report of the injury to the [Industrial Commission], but not to exceed six years from the date of the accident.” In a supplemental memorandum requested by the court, defendant informs us that the Minnesota Industrial Commission advised it that the employer’s “First Report of Injury” regarding plaintiff’s accident was filed on October 6, 1964. The date of injury was September 4, 1964. Thus, both periods of limitation have run. It appears that the time period thus prescribed by Minnesota’s compensation statute has been considered by the Minnesota courts as having a substantive effect, and that upon the expiration thereof the right to compensation ceases to exist. See Lipmanowich v. Crookston Lumber Co., 168 Minn. 332, 210 N. W. 47 (Sup. Ct. 1926). Defendant insists it would be entitled to that defense. (The same rule obtains in New Jersey where the limitation period in N. J. S. A. 34:15-51 (and see N. J. S. A. 34:15-41) has been held to be jurisdictional. See, e. g., De Asio v. Bayonne, 62 N. J. Super. 232, 235-236 (App. Div. 1960)).

Erom a practical and equitable point of view, the matter is best resolved by applying the conflict of laws approach of the Maryland Court of Appeals in Kacur. The accident happened here, the compensation case was fully tried in the Workmen’s Compensation Division, and the records are here. The matter will be remanded to the Division where, after considering the record established in the original proceedings and taking whatever supplementary testimony is necessary, it shall apply the Minnesota statute in fashioning an award which will fully and accurately reflect what plaintiff would have recovered for his particular injuries under the Minnesota schedules detailed in Minn. Stat. Ann., § 176.101, as amended. '

III

The trial court, as noted, awarded plaintiff a counsel fee of only $1,300 when he had requested $4,725.33, approximately one-third of plaintiff’s recovery. Neither the statutes governing workmen’s compensation nor our rules of court authorize the payment of plaintiff’s counsel fees for enforcement of an award against his employer’s insurer. N. J. S. A. 34:15-26 provides for counsel fees in proceedings under Article 2 of the Workmen’s Compensation Act (N. J. S. A. 34:15-7 et seq. — “Elective Compensation”), and N. J. S. A. 34:15-64 provides for counsel fees in proceedings under Article 4 (N. J. S. A. 34:15-49 et seq. — “Claims and Determinations Thereof”). Plaintiff’s action did not fall within the provisions of either Article 2 or 4, so that no counsel fee could be awarded thereunder.

B. B. 5:2-5(f), now B. 4:74-l(f), provided that the County Court may, in its discretion, allow a reasonable attorney’s fee to the prevailing party on appeal from an order or determination of the Workmen’s Compensation Division. The present proceeding is not an appeal from the Division. Accordingly, a counsel fee should not have been allowed. See Gerhardt v. Continental Ins. Cos., 48 N. J. 291 (1966); but cf. Minter v. Bendix Aviation Corp., 24 N. J. 128 (1957), where, in exceptional circumstances, the Supreme Court awarded the first compensation claimant counsel fees for defending an interpleader action.

Beversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.


author: MotrNTAiisr, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. NICHOLAS FALCO, ET AL., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued February 8, 1971
    Decided March 15, 1971.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. Elmer J. Herrmann, Jr., argued the cause for appellant.

      Mr. George N. Pappas, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. Pappas, on the brief).
   The opinion of the court was delivered by

MotrNTAiisr, J. A. D.

Defendant, a Newark police detective, appeals from a conviction following verdicts of guilty on two counts of an indictment charging him with misconduct in office (N. J. S. A. 2A:85-1 and 2A:135-1).

Resolution of the significant issue in this case does not require a detailed statement of facts. The State contended that defendant had started a fight in a tavern which resulted in injury to a waitress; that when asked by his superior to submit a report of the incident he had refused to do so, and that he eventually did submit a report which was, however, false.

At the trial defendant’s counsel objected to the introduction in evidence of the report upon the ground that it had been wrung from defendant only by coercion; he had been told that unless he submitted the report he would lose his job.

The trial judge held a hearing out of the presence of the jury as to the admissibility of the report and determined to admit it. The basis for the ruling in favor of admissibility seems to have been that it was a report submitted in the regular course of duty. The record does not reveal that consideration was given to the question as to whether the report had been forthcoming due to coercion, despite the fact that defendant raised and argued this point.

We think the question of the voluntariness of the report should have been determined by the judge before its submission to the jury. Where the issue of voluntariness is raised, this procedure should always be followed, at least where the statement is, or may be, “against the penal interest of the defendant on trial in a criminal proceeding.” Evidence Rule 8(3). With respect to confessions this requirement of preliminary determination by the judge is of constitutional dimension. Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); State v. Yough, 49 N. J. 587, 599 (1967). While the report here involved is not a confession, the objection to its reception presents a substantially identical issue. We must reverse and remand for a new trial.

If, at the retrial, the court should find, after hearing and considering evidence directed to the point, that the report was submitted because defendant feared he would otherwise lose his job, it should exclude the report. Such a result is required by the holding in Garrity v. New Jersey, 385 U. S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967). The court there determined that testimony elicited from a public employee by a threat of discharge may not thereafter be used against -him in a criminal prosecution.

The State argues that the case before us is distinguishable from Garrity and is more akin to Gardner v. Broderick, 392 U. S. 273, 88 S. Ct. 1913, 20 L. Ed. 2d 1083 (1968), and Uniformed Sanitation Men Association v. Commissioner of Sanitation, 392 U. S. 280, 88 S. Ct. 1917, 20 L. Ed. 2d 1089 (1968). But this is not so. In those companion cases municipal employees were threatened with discharge if they did not give statements of an incriminatory nature designed for subsequent use in criminal prosecutions. They asserted their privilege against self-incrimination and refused to testify. Their dismissals from employment followed. The Supreme Court of the United States set aside the dismissals as unconstitutional, being in violation of defendants’ privilege against self-incrimination guaranteed by the Fifth Amendment and applicable in state proceedings under the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. 1, 8, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). The court did indicate, as the State points out, that had there been a specific and narrow inquiry as to the performance of duties by the employees, had they not been required to waive immunity and had they then refused to testify, the privilege against self-incrimination might have been no bar to dismissal. But nothing in these decisions alters the rule laid down in Garrity that a statement induced by a threat of discharge may not be received in a subsequent criminal prosecution. In re Addonizio, 53 N. J. 107, 135 (1968); State v. Stilwell, 97 N. J. Super. 424 (App. Div. 1967); Note: “The Supreme Court, 1967 Term,” 82 Harv. L. Rev. 63, 203-210 (1968).

The case is reversed and remanded for a new trial.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. EUGENE BRUNETTI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued March 1, 1971
    Decided March 8, 1971.

      Before Judges Goldmann, Leonard and Eritz.

      Mr. Arthur M. Sha/ra, assigned counsel, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Solomon Forman, Assistant Prosecutor, argued the cause for respondent (Mr. Robert N. McAllister, Jr., Atlantic County Prosecutor, attorney; Mr. Ernest M. Curtis, Assistant Prosecutor, of counsel and on the brief).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Defendant appeals from sentences entered on guilty pleas to two indictments charging him with illegal possession of heroin and illegal sale of marijuana, both under N. J. S. A. 24:18-4, arguing that the sentences should be vacated. We affirm.

Defendant was charged in October 1969 under indictment 76 — 69S with illegal possession of heroin and illegal sale of heroin to one Bond, an undercover agent, on May 31, 1969. He was charged the same day under indictment 77-69S with illegal possession of heroin on June 5, 1969.

On March 4, 1970 he retracted his original pleas of not guilty and pleaded guilty to the heroin sale count of 76-69 S and to 77 — 69S. When the pleas were about to be accepted, the prosecuting attorney advised the trial judge there were additional charges pending against defendant, but that the grand jury had not yet returned indictments. The trial judge commented, “that is not before me.” And when defense counsel later on told the judge he had spoken to the assistant prosecutor that morning and mentioned hearing that other indictments might be in the offing, the judge again said, “That is not before me.” Counsel continued in a critical vein, stating that the assistant prosecutor told him he did not know much about any other charges pending against defendant - - “[he] ¿bragged his shoulders with the attitude that he knew nothing of them. How he does know of it.” The judge again commented, “I am not interested in that.”

The following day, March 5, 1970, defendant was charged under indictment 362-69J with illegal possession of marijuana and illegal sale of marijuana to one Perozzi, another state agent, on May 20, 1969, and under indictment 363-69J with illegal possession of heroin and illegal sale of heroin to Perozzi on June 1, 1969.

On April 10, 1970 defendant appeared for sentencing on the two original indictments and was sentenced to 2-3 years in State Prison and fined $300 on each indictment. The prison sentences were suspended and defendant placed on probation for concurrent three-year terms.

A month later, on May 7, 1970, defendant retracted his not guilty pleas and pleaded guilty to the marijuana sale count of 362-69J and the possession of heroin count of 363-69J.

On June 5, 1970 the same judge who had presided at all the prior proceedings sentenced defendant to 2-3 years in State Prison and fined him $300 on each of indictments 362-69J and 363-69J, the sentences to run consecutively'. In addition, he amended the earlier sentences of April 10, 1970 to reduce the fine in each instance from $300 to $25. Defendant appeals the June 5 sentences.

Defendant argues that all charges and indictments against him should have been consolidated, and the failure of the the State to do so was a denial of his Sixth Amendment right to a speedy trial. He relies on Dickey v. Florida, 398 U. S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970).

It is defendant’s theory that the trial judge, acting upon defense counsel’s representations at the March 4, 1970 hearing, should have postponed the hearing until all relevant matters were before the court. He implies that he was prejudiced by the return of new indictments the day after he pleaded guilty to the earlier ones, especially where all the indictments cover a two_-we&k- period of time.

Defendant’s reliance on Dickey is misplaced. In that case the accused was not tried until some seven years after the crime, although the State was aware of his whereabouts during that entire period. He had repeatedly and unsuccessfully petitioned the State to secure a day certain for his trial. The Supreme Court vacated his sentence on the ground that a defendant’s right to a speedy trial is a fundamental one, and there is a concomitant duty on the part of the prosecuting authorities to provide such a prompt inquiry. 398 U. S. at 38, 90 S. Ct. 1364. In addition, there was evidence that defendant had suffered substantial prejudice since, in the seven-year interim, two potential defense witnesses had died and police records were lost. Id.

The case before us presents a totally different situation. There is no evidence that defendant ever moved for a trial day certain under B. 3:25-2. The time span is entirely different. In any case, defendant voluntarily pleaded guilty, so that we fail to see how the issue of a speedy trial is in any way involved.

Although we find no error in this aspect of the case, we deem it appropriate to observe that a prosecutor, in the orderly transaction of the business of his office, should be familiar with all current charges pending against a particular defendant and all matters that will shortly be presented to the grand jury involving him. Thus, when the accused comes before the court for sentencing on charges to which he has pleaded guilty, as here, the prosecutor should at least call the entire situation to the attention of the judge, who may wisely decide to postpone sentencing until all matters are ready and before the court.

Defendant conceives that State v. Johnson, 109 N. J. Super. 69 (App. Div. 1970), may present a ground for obtaining the relief he seeks. That case involved a second offender sentence problem. There is no such issue projected by the facts on this appeal.

Defendant also claims that the sentence was manifestly excessive, pointing out that one Garber was indicted in a companion possession and sale of heroin case and that, represented by his own brother, he received a suspended sentence although the drugs involved were worth far more than those involved in defendant’s offenses. He further contends that all the transactions to which he pleaded guilty were part of one over-all offense.

Ordinarily, an appellate court will not review a sentence within statutory limitations unless the term imposed is unduly punitive. State v. Brown, 46 N. J. 96, 108 (1965). The power to review should be exercised with “extreme care.” State v. Cox, 101 N. J. Super. 470, 475 (App. Div. 1968), certif. den. 53 N. J. 510 (1969).

There was no over-all offense here, but four separate offenses on four different dates, two involving different undercover agents. Cf. State v. Juliano, 52 N. J. 232, 234, n. 1 (1968). As for the Garber sentence, defendant’s sentence, not otherwise excessive, will not be deemed erroneous merely because another man’s sentence was lighter. State v. Hicks, 54 N. J. 390, 391 (1969).

The sentences here under review were within the statutory minimum. We do not find them unduly punitive in the circumstances. Cf. State v. Washington, 113 N. J. Super. 184 (App. Div. 1971).

Affirmed.