author: Handler, J. A. D.

text:
    COLUMBIA BROADCASTING SYSTEM, INC., A NEW YORK CORPORATION, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, v. MELODY RECORDINGS, INC., A NEW JERSEY CORPORATION, DEFENDANT, AND NATIONAL CINEMATAPE, INC., A NEW YORK CORPORATION, ET AL., DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued February 18, 1975
    Decided May 13, 1975.

      Before Judges Collester, Lora and Handler.

      Mr. Clyde A. Szuch argued the cause for appellant and cross-respondent (Messrs. Pitney, Hardin & Kipp, attorneys).

      Mr. Joel D. Siegal argued the cause for respondents and cross-appellants National Cinematape, Inc., American Cartridge Recording, A Division of National Communication Arts, Inc., Telecor Industries, Inc. and Audiotape, Inc. (Messrs. Hellring, Lindeman & Landau, attorneys).

      Mr. Adrian M. Foley, Jr. argued the cause for respondent and cross-appellant United States Tape, Inc. (Messrs. McElroy, Connell, Foley & Geiser, attorneys).

      Mr. Robert E. Levy argued the cause for respondent and cross-appellant Diamond Sounds, Inc.
   The opinion of the court was delivered by

Handler, J. A. D.

On January 10, 1973 Columbia Broadcasting System (hereinafter plaintiff or CBS) filed a complaint in the Superior Court, Chancery Division, on behalf of itself and other tape and record manufacturers seeking, among other things, an injunction against the corporate and individual defendants for duplicating any recorded performance contained on a tape or record manufactured by plaintiff, an accounting for all proceeds received from tbe sale of “pirated” tapes and records, surrender of all unauthorized duplicated records and tapes, and compensatory and punitive damages. Summary judgment was granted in favor of defendants on May 28, 1973 and plaintiff’s complaint was dismissed. This decision of Judge Kimmelman was reported at CBS v. Melody Recordings, Inc., 124 N. J. Super. 322 (Ch. Div. 1973).

Thereafter, on June 18, 1973, the United States Supreme Court decided Goldstein v. California, 412 U. S. 546, 93 S. Ct. 2303, 37 L. Ed. 2d 163 (1973). On the basis of this case CBS moved for a reconsideration of the decision and for summary judgment. On December 7, 1973 the lower court granted plaintiff’s motion for summary judgment (in favor of CBS only and not as a class action) against the corporate defendants and denied the issuance of a permanent injunction.

These appear to be the essential facts: CBS is a manufacturer of records and contracts with well-known musical performers to obtain the exclusive right to manufacture and sell their records. Plaintiff obtains either the complete ownership or an exclusive license to manufacture and sell the record made by the performing artist and to use the name and likeness of the artist in the promotion, advertsiing and sale of the recordings. CBS pays for the copyright, hires union scale musicians and records an original production of the musical composition on record or tape.

Defendants are engaged in the business of duplicating magnetic tapes and sound records or records of musical compositions, described as “high quality reproductions,” which are sold to distributors for resale to retailers. These reproductions are made from the original sound recordings manufactured by plaintiff. Defendants’ activities are undertaken without the permission or authorization of plainitff. Defendants’ tapes and records, however, utilize their own distinctive label and do not otherwise indicate that the product is that of CBS. It is agreed, therefore, that “palming off” in its traditional or conventional sense has not occurred as a result of defendants’ actions.

Plaintiff’s complaint against defendants pertains only to their duplications of CBS tapes and records made prior to February 25, 2972. It was stipulated that defendants have complied with the compulsory license provisions of the Federal Copyright Act, 17 U. S. C. A. § 1 et seq., which prior to February 15, 1972 provided that a person may reproduce mechanically musical copyrighted work upon the payment to the copyright proprietor of a royalty of two cents. Id. § 1(e). Defendants have filed requisite notices of intention and have paid CBS the compulsory license fee of two cents for each musical composition which has been recorded.

Becordings after February 15, 1972 are not involved by virtue of an amendment of the Federal Copyright Act in 1971 by Pub. Law 92-140, 85 Stat. 391, 17 U. S. C. A. § 1 et seq. as amended, effective February 15, 1972. This amendment gave to copyright owners the exclusive right to reproduce and distribute to the public reproductions of copyrighted sound recordings. 17 U. S. C. A. § 1(f). The effect of this amendment, which was to remain operative until January 1, 1975, is to prevent defendants from rerecording tapes and records “fixed, pxxblished, and copyrighted” between February 15, 1972 and January 1, 1975. Defendants have not, and are not alleged to have, rerecorded tapes and records “fixed, published and copyrighted” after February 15, 1972.

The court below initially granted defendants’ motion for summary judgment based on Sears, Roebuck & Co. v. Stiffel Company, 376 U. S. 225, 84 S. Ct. 784, 11 L. Ed. 2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U. S. 234, 84 S. Ct. 779, 11 L. Ed. 2d 669 (1964). These cases were thought to embrace the proposition that state law may not prevent the copying of unpatentable or uncopyrighted articles since such a prohibition would conflict with federal patent and copyright laws. As a result of the Supreme Court’s later decision of Goldstein v. California, supra, the court below reversed itself and granted summary judgr ment for plaintiff. It did so on the ground that Goldstein indicated that state action in the copyright field is not precluded by the Sears and Compco cases and it ruled that such, state action is not limited to legislative enactment but encompasses the application of state common law doctrines of unfair competition.

Defendants, though taking individual approaches, argue basically that Goldstein, read in the context of its particular facts, contemplates that only state action in the form of statutory enactments would be permissible to regulate the duplication or copying of pre-February 15, 1972 sound recordings and that other forms of state control in this area remain barred by virtue of a paramount federal concern.

We disagree. While Goldstein did involve the criminal enforcement of a provision of the California Penal Code, and the Supreme Court ruled specifically that the California statute was not federally preempted, the court did not hold, or otherwise suggest, that state action in this area, in a form other than legislative enactment, would be barred. Gold-stein may he viewed as permitting local protection of musical performances under the judicial aegis of the common law, as well as by statute. Mercury Record Pro., Inc. v. Economic Consult., Inc., 64 Wis. 2d 163, 218 N. W. 2d 705, 712 (Sup. Ct. 1974); Jondora Music Pub. Co. v. Melody Recordings, Inc., 362 F. Supp. 488, 497 (D. N. J. 1973), rev’d on other grounds, 506 F. 2d 392 (3 Cir. 1974); Note, “Copyrights: States Allowed to Protect Works Not Copyrightable Under Federal Law,” 58 Minn. L. Rev. 316, 324 (1973); Note, “Goldstein v. California: A New Outlook For the Misappropriation Doctrine," 8 Univ. of San Francisco L. Rev. 199 (1973).

The meritorious issue is whether the state law of New Jersey prohibits the practices of defendants in their duplication and distribution of the musical tapes and records produced from CBS sound recordings prior to February 15, 1972. With respect to this question it is claimed initially by defendants that the New Jersey Unfair Competition Law, N. J. S. A. 56:4r-1 ei seq., governs this issue and that this statute, by implication, permits the duplication of pre-February 15, 1972 sound recordings since that statute does not, by its express terms, proscribe activities of the nature undertaken by defendants.

N. J. S. A. 56 :4-l ei seq. applies specifically to situations involving the wrongful appropriation or misuse of trademarks, names, brands, good-will and the like, as well as false, misleading or deceptive advertisement of products and certain pricing practices. It does not purport to deal with the type of conduct engaged in by defendants. Nor, does it attempt to regulate different unfair business practices which historically have been reached by common law precepts. Cf. American Shops, Inc. v. American Fashion, etc., Inc., 13 N. J. Super. 416 (App. Div.), certif. den. 7 N. J. 576 (1951). Consequently, we hold that the statute relied upon does not, by negative implication, immunize from judicial concern business or commercial conduct, which is injurious and otherwise unfair, improper and wrongful.

The doctrine of unfair competition traditionally has been interpreted by courts in accordance with common law principles. Understandably, because the common law of unfair competition has evolved unevenly over the years, judicial applications in this tort field have not always been uniform or fixed. Squeezit Corp. v. Plastic Dispensers, 31 N. J. Super. 217, 221 (App. Div. 1954); Ellis, Trade Secrets § 9 (1953). The tendency of the law, however, has been to espouse more scrupulous standards of business fairness and commercial morality in trade. Q-Tips v. Johnson & Johnson, 206 F. 2d 144, 145 (3 Cir.), cert. den. 346 U. S. 867, 74 S. Ct. 106, 98 L. Ed. 377 (1953). Reflecting this bent, it has been observed that the essence of unfair competition is fair play. American Shops, Inc. v. American Fashion, etc., Inc., supra, 13 N. J. Super. at 420. In Sachs, etc., Radio Co. v. Sachs Quality Stores Corp., 39 N. J. Super. 70 (App. Div. 1956), Justice (then Judge) Francis said:

* * * In an era when the struggle in the market place for the favor of the public has become increasingly intense, equity has grown more vigilant in the search for efforts on the part of one competitor to capitalize on the good will of another, to pass off his goods as those of another, or to pirate the trade of his competitor by unfair or deceptive practices. And the pressure of its restraining hand is measured by the degree of the inequitable conduct, [at 85]

Defendants contend that the common law of New Jersey would not prevent the duplication of sound recordings, as here, as long as the duplicator does not pass off its product as that of another, a situation commonly called “palming off.” They cite for support Press Publishing Co. v. Atlantic County Advertiser, Inc., 59 N. J. 356 (1971); Squeezit Corp. v. Plastic Dispensers, supra, and French American, etc., Co. v. Park Plastics Co., 20 N. J. Super. 325 (App. Div. 1952).

In Press Publishing Co., relying upon Sears and Compco, the court held that a local shopping guide could copy the advertisements prepared and published by a daily newspaper, regardless of whether the advertisements were copyrightable and had not been copyrighted in the case, or whether they were not copyrightable by anyone. The court reasoned that to forbid copying would conflict with federal policy which, as quoted from Compco, allows “ Tree access to copy whatever the federal patent and copyrighted laws leave in the public domain.’” 59 N. J. at 359.

In recent years it has been recognized that the scope and interpretation of Sears and Gompco have been greatly limited and courts have tried to restrict the reach of these decisions wherever possible to the area of patented and copyrighted articles rather than to extend them to other areas of unfair competition, including misappropriations or exploitation of a business organization such as news, record and broadcasting piracy. 2 Collman, Unfair Competition, Trademarks and Monopolies (3 ed. 1967) § 60.4(c) at 522-523; Pottstown Daily News Pub. Co. v. Pottstown Broadcasting Co., 247 F. Supp. 578 (E. D. Pa. 1965); Capitol Records, Inc. v. Greatest Records, Inc., 43 Misc. 2d 878, 252 N. Y. S. 2d 553 (Sup. Ct. 1964). More significant for present purposes, the United States Supreme Court, subsequent to Press Publishing Co., held in Goldstein, supra, that state regulation of the duplication of recordings of musical performances would not conflict with federal law. Cf. 2 Callman, supra, § 61.1 at 80, n. 13.2 (3 ed. cum. Supp. 1974).

In both Squeezit Corp. v. Plastic Dispensers, Inc., supra, and French American, etc. Co. v. Park Plastics Co., supra, it was held that defendants had not engaged in unfair competition by their marketing of merchandise which were imitations of the products of the respective plaintiffs. The court stated in Squeezit Corp.:

In the absence of a patent, there is nothing to prevent the imitation or reproduction of a product provided the imitator does not misrepresent to the public that his product is made by others or cause confusion as to whose product it is or that the product has not yet acquired a secondary meaning or an identification coming from appearance. [31 N. J. Super, at 222]

These decisions do not imply, as argued by defendants, that actionable unfair competition is restricted solely to situations involving “palming off” or a product which has acquired a secondary meaning. Misappropriation and tortious exploitation of another’s product may constitute unfair competition without a “palming off.” International News Service v. Associated Press, 248 U. S. 215, 39 S. Ct. 68, 63 L. Ed. 211 (1915); Metropolitan Opera Ass’n. v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 101 N. Y. S. 2d 483 (Sup. Ct. 1950), aff’d 279 App. Div. 632, 107 N. Y. S. 2d 795 (1951); Veatch v. Wagner, 116 F. Supp. 904, 14 Alaska 470 (1953); cf. Norwich Pharmacal Company v. Sterling Drug, Inc., 271 F. 2d 569, 571 (2 Cir. 1959), cert. den. 362 U. S. 919, 80 S. Ct. 671, 4 L. Ed. 2d 739 (1960); Harvey Machine Co. v. Harvey Aluminum Corp., 9 Misc. 2d 1078, 175 N. Y. S. 2d 288, 291 (Sup. Ct. 1957).

In the setting of contemporary business practices, there is a critical, albeit fine, line separating commercial parroting from pirating. A dichotomy exists between the copying, simulation or limitation of the design of a product, or even an idea inherent in a product, on the one hand, and, on the other, the actual use of the product itself. “ ‘[T]here is a distinction between such an act, i. e., the copying of an idea, and * * * the use of the identical product for the profit of another/" Capitol Records, Inc. v. Greatest Records, Inc., supra, 252 N. Y. S. 2d at 556-557; see also, Note, “Copying Misappropriation,” 71 Colum. L. Rev. 1444, 1458-1463 (1971).

Permissible imitation entails the imitator bringing to bear its own efforts and resources in producing its own product, although it endeavors to simulate or ape the product of another. E. g., Squeezit Corp. v. Plastic Dispensers, supra (defendant manufactured its own red or yellow plastic dispenser shaped like a tomato which resembled plaintiff’s dispenser); French American, etc. Co. v. Parle Plastics Co., supra (defendant manufactured a plastic ukulele similar to that of plaintiff). Thus, tolerable copying of a product in this sense might be presented here, for example, if defendants had analyzed the recorded performances of CBS and then hired the same or comparable artists and musicians to perform the identical musical composition, in a like manner, and under the same conditions as achieved by CBS and recorded by it on a particular record or tape. As stated, however, in Liberty/UA, Inc. v. Eastern Tape Corp., 11 N. C. App. 20, 180 S. E. 2d 414, app. dismissed 278 N. C. 702, 181 S. E. 2d 600 (App. Ct. 1971) :

Defendants here are not copying a design or concept. They have not obtained the same artist to record the same song in an identical manner. ir * * Conduct of that sort, however, is a far cry from appropriating, for use in competition with plaintiff, the very product which plaintiff produced with its own resources, [at 417]

What is involved in this case is the direct taking by defendants of the artistic and highly creative work of plaintiff —■ the recorded performance of a specially arranged musical composition. Defendants have thus appropriated the unique product of CBS by rerecording its original records. The commercial injury ensues because defendants have accomplished this at a minimal cost and then sold their “original” duplicates for a substantial profit. The actionable unfairness of this practice inheres in a combination of factors — the substantial investment of time, labor, money and creative resources in the product by plaintiff, the utilization of the actual product by defendant, the misappropriation or use of the appropriated product by defendant in competition with plaintiff, and commercial damage to plaintiff. Note, 8 Univ. of San Francisco L. Rev., supra at 201.

Further support for plaintiff’s position is drawn from International News Service v. Associated Press, supra. The United States Supreme Court there held that a cooperative association of newspapers which gathers and distributes news may enjoin a competing news agency from appropriating news taken from bulletins issued by the association and from selling it to competitors of the association. The court stated:

* * * [Defendant, by its very act, admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money and which is salable by complainant for money, and that defendant in appropriating it and selling it as its own is endeavoring to reap where it has not sown, and by disposing of it to newspapers that are competitors of complainant’s members is appropriating to itself the harvest of those who have sown. Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant’s legitimate business precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not, with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself and a court of equity ought not- to hesitate long in characterizing it as unfair competition in business. [248 U. S. at 239-240, 39 S. Ct. at 72-73]

The court below, on the strength of International News Service, concluded that the Supreme Court’s perception of of the scope of unfair competition, as reflected in that decision, was fully applicable to the circumstances of the present case. We are in agreement with this conclusion.

In Liberty/UA, Inc. v. Eastern Tape Corporation, supra, the court stated:

The damage occurring to plaintiff’s business from the conduct of defendants is easily apparent. Plaintiff expends substantial sums of money in obtaining the services of popular artists and in recording their performances. As found by the trial court, ‘[i]n order to sell the recordings embodying performances to which plaintiff possesses exclusive rights, and to build good will, such performances, the names of the artists, and the recordings produced by plaintiff are advertised and promoted at great expense to plaintiff.’ In appropriating the fruits of plaintiff’s initiative, skill, effort and expense to their own use, defendants obviously circumvent a great portion of the cost of engaging in the recording business. They thereby gain substantial competitive advantage over plaintiff. This conduct, it seems to us, amounts to unfair competition and is subject to restraint. [180 S. E. 2d at 415-416]

Capitol Records, Inc. v. Spies, 130 Ill. App. 2d 429, 264 N. E. 2d 874 (Ct. App. 1970), also considered, in a similar situation, that defendants by copying plaintiff’s musical tapes and records wrongfully appropriated the product itself — the actual sounds recorded in the plaintiff’s albums. Other courts, as well, have recognized that unfair competition occurs where, as here, defendants have not endeavored, through their own input, to create a comparable sound recording or even a good facsimile of an original recorded musical composition, but rather have used or taken in tolo the original recorded musical performance of another by rerecording it, and then realized a substantial profit on the sale of the duplicate. Mercury Record Pro., Inc. v. Economic Consult. Inc., supra, 218 N. W. 2d 705; Capitol Records, Inc. v. Erickson, 2 Cal. App. 3d 526, 82 Cal. Rptr. 798 (D. Ct. App. 1969), cert. den. 398 U. S. 960, 90 S. Ct. 2176, 26 L. Ed. 2d 545 (1970); Capitol Records, Inc. v. Greatest Records, Inc., supra; National Broadcasting Co., Inc. v. Nance, 506 S. W. 2d 483 (Mo. Ct. App. 1974); Columbia Broadcast. Sys., Inc. v. Custom Recording Co., 258 S. C. 465, 189 S. E. 2d 305 (Sup. Ct. 1972), cert. den. 409 U. S. 1007, 93 S. Ct. 437, 34 L. Ed. 2d 300 (1972); cf. Columbia Broadcast. Sys., Inc. v. Documentaries Unlim., 42 Misc. 2d 723, 248 N. Y. S. 2d 809 (Sup. Ct. 1964).

The fact that defendants have complied with the compulsory licensing provision of the Federal Copyright Act, 17 U. S. C. A. § 1(e), is no defense to their unlawful activity. The federal statute authorizes one to make a “similar use” of the copyrighted musical composition upon the payment of a royalty fee. This does not authorize such a person, however, to use the copyrighted work by duplicating it or making an identical copy of the recorded copyrighted composition made by a recording company which itself has paid the royalty fee in order to perform and record the musical work. Cf. Jondora Music Pub. Co. v. Melody Recordings, supra, 506 F. 2d 392; Edward B. Marks Music Corp. v. Colorado Mag., Inc., 497 F. 2d 285 (10 Cir. 1974), cert. den. 419 U. S. 1120, 95 S. Ct. 801, 42 L. Ed. 2d 819 (1975); Duchess Music Corp. v. Stern, 458 F. 2d 1305 (9 Cir.), cert. den. 409 U. S. 847, 93 S. Ct. 52, 34 L. Ed. 2d 88 (1972).

Defendants’ final contention is that the court should await direction from the Legislature before undertaking to create new rights in the area of unfair competition. The protection of business against unlawful injury, however, is a matter to which the courts must be responsive; it is not a concern solely of the Legislature. E. g., J. B. Liebman & Co., Inc. v. Leibman, 135 N. J. Eg. 288 (Ch. 1944); Sachs, etc., Radio Co. v. Sachs Quality Stores Corp., supra. We are, of course, mindful that the areas embracing unfair competition are appropriate for legislative treatment. We note also the pendency in the Legislature of proposals which would provide criminal sanctions for the practices which are the subject of this litigation. Assembly Bill 1916 (July 8, 1974); Assembly Bill 3256 (April 10, 1975). Prospective legislative action, however, while instructive, cannot impart substance to the current law. Donaldson v. No. Wildwood Bd. of Ed., 65 N. J. 236, 240 (1974); cf. East Orange v. Livingston Tp., et al., 102 N. J. Super. 512, 535 n. 2 (Law Div. 1968), aff’d o. b. 54 N. J. 96 (1969).

The common law doctrine of unfair competition is well-grounded and has long and frequently been interpreted and applied by the courts. This is entirely consonant with the obligation of the judiciary to expound and develop the common law to serve justice and the interests of society. La Stella v. Garcia Estates, 66 N. J. 297, 305 (1975). Accordingly, we hold that the court below properly entertained the action and on the merits for the reasons already advanced, entered summary judgment in favor of plaintiff.

With respect to CBS’ request for an injunction and other relief, we are-of the view that the trial judge should have ■addressed and resolved that aspect of the controversy. Injunctive relief undoubtedly was called for but the judge, in the exercise of its discretion, could have provided for a stay thereof pending an appeal. The nature and extent of the relief appropriate under all of the circumstances should, however, be determined by the trial judge. Accordingly, the matter is remanded for a consideration of the injunctive and other relief which should be granted.

Affirmed but remanded with respect to relief to be granted. We do not retain jurisdiction.

      The act has recently been amended to remove the expiration date of January 1, 1975. Pub. Law 93-573, 88 Stat. 1873.


source: Caselaw Access Project

author: Davidson, J. S. C.

license: Public Domain

text:
    YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF SUMMIT, NEW JERSEY, A NEW JERSEY CORPORATION, PLAINTIFF, v. BOARD OF ADJUSTMENT OF THE CITY OF SUMMIT AND MARTIN J. EGAN, BUILDING INSPECTOR OF THE CITY OF SUMMIT, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 18, 1975.

      Mr. Kenneth R. Johanson for plaintiff (Messrs. Bourne and Noll, attorneys).

      Mr. Arthur P. Gondon for defendants.
   Davidson, J. S. C.

Plaintiff Young Women’s Christian Association of Summit is the owner of premises located in the R-15 single-family district of Summit, as established under its zoning ordinance adopted June 5, 1968 as amended. The Association has been authorized by the Division of Youth and Family Services of New Jersey to operate a group home on the premises for not more than ten adolescent girls to be referred there by the Division.

In November 1974 a local citizens’ group filed an application with the board of adjustment seeking an interpretation of the zoning ordinance and a declaration that plaintiff’s proposed use of the premises would be in violation of the ordinance.

A hearing was conducted and on February 3, 1975 the board adopted a resolution declaring the proposed use to be in violation of the zoning ordinance and directing the building inspector to refuse to issue a certificate of occupancy. Based upon that resolution the building inspector refused to issue the certificate by letter dated February 18, 1975.

Plaintiff thereupon filed a complaint in lieu of prerogative writs asking this court to (1) declare the board’s resolution of February 3, 1975 void; (2) declare the proposed use of the premises to be permitted under the ordinance; (3) enjoin the Board from taking any further action to prevent the use of the premises as a group home, and (4) direct the building inspector to issue a certificate of occupancy for use of the premises for that purpose.

The facts are not in dispute and the matter is now before the court on a motion for summary judgment.

Plaintiff contends that the hoard lacked jurisdiction to grant the applicants the relief requested under both the enabling state legislation and the provisions of the ordinance. This court accepts the correctness of that position.

Our State Constitution grants to the Legislature the power to enact legislation enabling municipalities to adopt zoning ordinances. N. J. Const. (1947), Art. IV, § VI, par. 2; A. J. S. A. 40:55-30 et seq. Under the enabling legislation a hoard of adjustment is a “statutory, quasi-judicial body whose powers and jurisdiction are specified and strictly delimited by A. J. S. A. 40:55-39.” Auciello v. Stauffer, 58 N. J. Super. 522, 527 (App. Div. 1959).

The resolution passed by the Summit Board of Adjustment on February 3, 1975 includes the finding that the matter came before the board by application pursuant to A. J. 8. A. 40:55-39(a) and (b), which read as follows:

The board of adjustment shall have the power to:
a. Hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of the zoning ordinance.
b. Hear and decide, in accordance with the provisions of any such ordinance, requests for special exceptions or for interpretation of the map or for decisions upon other special questions upon which such board is authorized by any such ordinance to pass.

Because the building inspector’s denial of plaintiff’s request for a certificate of occupancy was based entirely on the resolution of the hoard directing him to do so, the application by the citizens’ group could not properly have been considered an appeal from his decision, and N. J. S. A. 40:55-39 (a) accordingly can have no effect here. Counsel for the hoard contends that the strongest basis for its jurisdiction flows from the language of N. J. S. A. 40:55-39(b) empowering the board to hear and decide “special questions upon which such board is authorized by any such ordinance to pass.” The strength of that contention however, hinges upon the validity of the authorization provided in the ordinance.

Section 12.0 of the zoning ordinance reads as follows:

Pursuant to the Statute quoted in this Appendix, the Board of Adjustment is empowered to act on (a) errors, (b) conditional permits (special exceptions) and interpretations of this Ordinance, (c) hardship variances, and (d) use variances, and to adopt its own rules of procedure.

A subsequent provision, § 12.5, is entitled “Powers of the Board of Adjustment” and repeats the language of N. J. 8. A. 40:55-39. There is no language interrelating the two provisions. The language in controversy is contained in § 12.0 authorizing the Board to interpret its own ordinance.

Plaintiff challenges only the power of the board to issue an “interpretative decision” construing the ordinance in such a way as to exclude the use proposed for their premises. They do not directly attack the validity of the ordinance. Because zoning ordinances are to be liberally construed by the courts in favor of the municipality, N. J. Const. (1947), Art. IV, § VII, par. 11, and because the issue is not dispositive of this case, this court offers no conclusion as to the ability of the particular language to withstand constitutional attack.

The interpretation of an ordinance is a purely legal matter, clearly not treated as such by the board. Moreover, that body had no authority to issue a directive to the building inspector, and all the more so when issued as part of a resolution in the form of a pseudo-declaratory judgment which this court finds was beyond its purview. This court has and will exercise the power to interpret the ordinance, because the meaning of its provisions raises questions which are peculiarly suited to judicial treatment, rather than to disposition by an administrative board in a gmtsi-judicial function. The court’s authority is not curtailed by the circumstances under which the matter reaches it. Jantausch v. Verona, 41 N. J. Super. 89, 96 (Law Div. 1956), aff’d 24 N. J. 326 (1957).

To say that the board lacked power to construe the ordinance and direct the building inspector as they did is not to say, as the court pointed out in the Jantausch case, that

* *• * the views of others, both the board of adjustment and the building inspector should not receive respectful consideration, but rather that an erroneous interpretation by either is not secured from judicial disagreement by some special insulation impenetrable except upon a finding of arbitrariness, capriciousness, or unreasonableness. [41 N. J. Super, at 97]

This court finds that the resolution of February 3, 1975 was such an erroneous interpretation and must therefore be declared void.

On the substantive issue Plaintiff contends that the proposed use of its premises is a proper one under state law and the zoning ordinance; that the board was erroneous in ruling to the contrary, and that this court should therefore direct issuance of a certificate of occupancy.

In December of 1974, the Legislature clarified the status of group homes as single-family units by amending both N. J. S. A. 40:55-33.2 and N. J. S. A. 30:4C-26 to specifically include group homes, defined as “any single family dwelling used in the placement of 12 children or less pursuant to law recognized as a group home by the Department of Institutions and Agencies.” L. 1974, c. 178.

The Summit Board of Adjustment specifically referred to both statutes, as amended, in the body of its resolution, stating that this ordinance does not discriminate against foster homes or group homes as defined therein. The board then concluded that the proposed use would violate the intent and purpose of the zone plan and the zoning ordinance, and that L. 1974, c. 178 did not preclude them from rendering such an interpretative decision.

The board’s major contention before this court is that while the City of Summit does not seek to prevent group foster homes from being established within its borders, the board should not be excluded by the Legislature from having a voice in the location of a group home within the community, having due regard for zoning and planning considerations.

The Summit zoning ordinance provides for five single-family districts, three of low density and two of medium density. There is also an additional zone in which single-family and twin-house dwellings are permitted. It is the board’s position that considerations of density require that a group home be located in a medium-density district rather than the low-density district in which plaintiff’s premises are located.

Control of density is a valid zoning objective, but in the exercise of the zoning power a municipality may only be validly concerned with the physical use of lands and structures thereon. Bridge Park Co. v. Highland Park, 113 N. J. Super. 219, 221-222 (App. Div. 1971); Taxpayers Ass’n of Weymouth Tp. v. Weymouth Tp., 125 N. J. Super. 376, 380 (App. Div. 1973).

The Summit zoning ordinance defines a “single family house” as “a free-standing unattached building designed for occupancy by one family, and containing one dwelling unit.” The premises owned by plaintiff consists of a three-story residence with seven bedrooms generally designed for occupancy by one family, and a detached two-car garage. The ordinance defines a “family” as “.a group of persons related by blood or marriage or otherwise lawfully living together in a dwelling unit.” That definition is a valid one under both N. J. S. A. 30:4C-2'6 and 40:55-33.2, as amended. Thus, a group home would qualify as “one family” within the definition of a “single family house” under the ordinance.

To suggest that “families” composed of residents of group homes are to be distinguished from natural families in determining which single-family districts will be considered open to them is to confuse the power to control physical use of premises with the power to distinguish among occupants making the same physical use of them. “It is of the very nature of the constitutional and statutory zoning principle that all property in like circumstances be treated alike.” Beirn v. Morris, 14 N. J. 529, 535 (1954).

At the hearing on the motion counsel for the Board frankly conceded that it would have had no power to prevent a certificate of occupancy for these premises from being issued to a natural family of ten children.

The Legislature’s position is clear. Communities may not use their planning and zoning powers to discriminate against group homes, no matter how packaged or disguised. By its “interpretative decision,” the board of adjustment denied these children the same benefits as those of natural families just as surely as if the ordinance had done so directly. Discrimination is the result, and will not be sanctioned.

Plaintiff’s motion for summary judgment is granted. The resolution of February 3, 1975 is declared void and of no effect. Plaintiff’s proposed use of the premises is a permitted use under the ordinance, and the building inspector is directed to issue a certificate of occupancy. Plaintiff’s request that defendants be restrained from any further action to prevent the proposed use of its premises is denied as there is no showing that any possibility of such action exists.


author: Dwyer, J. S. C.

text:
    NEW JERSEY MORTGAGE AND INVESTMENT CORP., A NEW JERSEY CORPORATION, PLAINTIFF, v. JOE YOUNG AND LILLIE MAE YOUNG, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 23, 1975.

      Mr. William Furst, attorney for plaintiff
   Dwyer, J. S. C.

Subsequent to default being entered against Joe and Lillie Mae Young (defendants), New Jersey Mortgage and Investment Corp. (plaintiff), assignee of a consumer note executed by defendants on February 22, 1973 in connection with a home repair contract made with Berkeley Priorities Corp., applied for an order for entry of Judgment under B. 4:43-2(b) supported by affidavits. The amounts sought in the complaint totaled $4,131.10, consisting of $3,402 unpaid balance of the note (comprising $2,520 unpaid principal, $105 finance charge earned to date of filing, and $777 unearned finance charge), $48.70 in late charges and $680.40 in attorney’s fees, together with interest and costs.

The affidavit of an officer of plaintiff stated that $243 ¡had been paid since the commencement of suit on February 5, 1975, leaving a balance of $3,207.70, including late charges exclusive of attorney’s fees.

Home repair contracts are governed by N. J. 8. A. 17:16C-62 et seq. The statute contains provisions regulating the imposition of late charges, N. J. 8. A. 17:16C-71; the amount of the service charges, N. J. 8. A. 17:160-69; prohibitions against additional charges, N. J. 8. A. 17:16'C-70, and prepayment of amounts due under the contract, N. J. 8. A. 17:16C-73.

The contract specified a cash selling price of $3,600, a finance charge of $1,260, and a contract price of $4,8(jO payable in 60 equal monthly installments of $81, to begin April 22, 1973.

Under B. 4:43-2, even where default has been entered, a court should review the papers and make appropriate determinations in order to fix the amount due. Por this purpose the court may require the submission of additional proof. Douglas v. Harris, 35 N. J. 270 (1961); Metric Investment, Inc. v. Patterson, 98 N. J. Super. 130 (Law Div. 1967), aff’d 101 N. J. Super. 301 (App. Div. 1968).

The court requested a supplemental affidavit concerning how the late charges were computed ,and extended counsel an opportunity to submit a memorandum of law on the question of whether in this case the court should apply the general rule that where a note includes unearned interest on the principal and the holder of the note accelerates the maturity, then the holder is not entitled to judgment for unearned interest. See 10 C. J. S. Bills and Notes § 251 at 748 wherein it is stated:

A note providing for the payment of the principal in installments at specified times, and requiring the payment of interest on each installment until maturity, does not require the payment of future unearned interest in the event the maturity date is hastened by virtue of an acceleration clause contained in the note.

Sec also, 45 Am. Jur. 2d, Interest and Usury, § 183 at 145-146. The court has found no Now Jersey case construing the applicable provisions of N. J. S. A. 17:160-62 et seq. in respect to this problem.

The court has not received a memorandum but has received a supplemental affidavit of an officer of plaintiff. That affidavit establishes that the late charges were added to the account of defendants in respect to 12 delinquent payments made after the respective due dates. Attached to the affidavit was a printed form of late notice that plaintiff sends out in its regular course of business. In that affidavit it is stated that such a notice was sent to defendants in respect to each of their overdue payments. The court concludes that plaintiff complied with N. J. 8. A. 17:160-71 (a) which provides :

(a) A home repair contract may provide for a delinquency or collection charge for default in the payment of any sueh contract or any installment thereof, if such default continues for a period of 10 days. Such charge shall not exceed 5% of the amount of the installment in default or $5.00 whichever is the lesser and may be collected in cash or charged to the owner’s account. If charged to the owner’s account such charge shall be levied within 35 days from the date of such default and written notification that such charge has been made shall be mailed to the owner within 5 days from the date when such charge was made.

However, plaintiff in the supplemental affidavit corrected an earlier mathematical error in computation of late charges. Based upon a late charge of 5% of each installment in default, plaintiff is entitled to $4.05 for each late payment or a total of $48.60.

The contract recites that defendants agreed to execute a mortgage on the premises upon which the work was to be done. A check of the records in Essex County shows that defendants executed a mortgage to Yew Jersey Mortgage and Investment Corp. on February 22, 1973, and it was recorded on February 28, 1973.

In Block v. Ford Motor Credit Co., 286 A. 2d 228 (D. C. Ct. App. 1972), the assignee of a retail installment contract appealed the trial court’s decision permitting only recovery of principal plus interest up until the date of acceleration of maturity of the note triggered by conditional vendee’s default. The court affirmed deduction of unearned interest in the note, stating:

[T]he retention of unearned interest beyond the time of the payment of the debt would permit the recovery of disproportionate damages, i. e., a penalty, and would therefore be unconscionable. Thus the courts have refused to enforce acceleration clauses except upon cancellation of the unearned interest, [at 284]

In A-Z Servicenter v. Segall, 334 Mass. 672, 138 N. E. 2d 266 (Sup. Jud. Ct. 1956), the court reached the same result regarding a note securing a mortgage, holding that where defendant defaults on the note, plaintiff could recover only interest earned until acceleration of maturity. See also Northtown Theatre Corp. v. Michelson, 226 F. 2d 212 (8 Cir. 1955); Berman v. Schwartz, 59 Misc. 2d 184, 298 N. Y. S. 2d 185 (Sup. Ct. 1968), aff’d 33 A. D. 2d 673, 305 N. Y. S. 2d 1019 (App. Div. 1969).

Courts have deducted unearned interest even where the interest was capitalized and was not separately referred to as interest in the note, such as in the note now before the court. See Chapman v. Capri Construction Co., 248 So. 2d 101 (La. Ct. App. 1971).

The Yew Jersey Legislature has prescribed the maximum amount of the finance charge. N. J. S. A. 17:160-69 provides:

A home repair contractor may impose and receive a credit service charge not more than the following:
(a) in any case in which the due date of the last installment of the contract is more than 8 months after the date of the contract, $7.00 per $100.00 per year computed on the principal balance, or $12.00, whichever is greater:
(b) in any case in which the due date of the last installment of the contract is 8 months or less after the date of the contract, $7.00 per $100.00 per year computed on the principal balance, or $10.00, whichever is greater.

The Legislature has prohibited any additional charges in N. J. 8. A. 17:160-70 which states:

No home repair contractor or any other person shall charge, collect or receive from any owner, directly or indirectly, any further or other amount for costs, charges, insurance premiums, examination, appraisal service, brokerage, commission, interest, discount, expense, fee, fine, penalty or other thing of value in connection with a home repair contract, other than the charges permitted by this act and chapter 169 of the laws of 1958, except court costs, attorney’s fees and the expenses of retaking and storing repossessed goods which are authorized by law.

The debtor under a home improvement contract is also assured by statute a right of prepayment without paying a penalty or additional charge and the return of any unearned interest if such a debtor prepays. N. J. 8. A. 17:16C-73.

In Imperial Thrift & Loan Co. v. Ferguson, 155 Cal. App. 2d Supp. 866, 318 P. 2d 566 (Super. Ct. App. 1957), the Appellate Department reversed the trial court for crediting a conditional buyer of a car the amount of the unearned finance charge under a provision of the California Code comparable to N. J. 8. A. 17 :16C — 73 where plaintiff had repossessed the car, sold it and sought a deficiency judgment. The Appellate Department said the buyer had not prepaid. It further held that to allow the conditional seller to recover the unearned interest did not violate the usury laws because the provision was in the contract from the outset and the conditional buyer could have avoided it by not allowing the contract to go into default. The court concluded:

* * * There is nothing in subdivision (d) of section 2982, Civil Code which expressly provides for a refund credit against the time price differential upon default of the buyer. If the legislature had intended to allow a refund credit under such circumstances, it would have been a simple matter for it to have so stated. Absent such a statement, the contract of the parties governs. [318 P. 2d at 568]

The New Jersey Legislature has limited the amount of the finance charge and also the amount that may be charged in addition, including collection costs, in N. J. S. A. 17: 160-70. There is no indication that the sections of the California Code referred to in Imperial Thrift and Loan Co. v. Ferguson, supra, contained any comparable provision.

In Mann v. Earls, 226 Cal. App. 2d 155, 37 Cal. Rptr. 877 (D. Ct. App. 1964), the court reached a different result from that in Imperial Thrift and Loan Co. In an action to foreclose a mortgage lien to secure the contract price for furnishing material and labor to improve a home, the court denied plaintiff recovery of the unearned interest portion of the finance charge. The holder of the contract had accelerated maturity upon default. The court said foreclosure was an equitable action and, as such, the court would not permit grossly unfair and unconscionable demands, penalties or forfeitures to be imposed upon in such an action.

There remained 37 full monthly payment periods at the time the complaint was filed herein and hence, unearned interest for over three years. To allow plaintiff a judgment which would bear interest and carry with it the strongest means of immediate collection would permit it to collect more than the Legislature intended in N. J. S. A. 17:16C-70 and to collect more by use of the acceleration clause than the general law pertaining to the exercise of an acceleration clause allows. Plaintiff’s choice of a legal basis of recovery instead of an equitable one should not be the basis of determining on these facts whether defendant does or does not pay unearned interest for over three years, particularly in New Jersey where law and equity have been merged. The court denies recovery for the unearned finance charge.

Credit for unearned finance charges under N. J. 8. A. 17:16C-73 will be computed as of February 5, 1975, the date of filing the complaint. See Chapman v. Capri Construction Co., supra, where the court computed the earned interest until date of filing of the complaint and indicated the filing of the complaint was the exercise of the right of acceleration. But see Block v. Ford Motor Credit Co., supra; A-Z Servicenter v. Begall, supra; and 9 Cal. Code § 1806.3 (b), which indicate that date of entry of judgment has been considered for purposes of computation as well. Since the commencement of suit is the exercise of the right of acceleration pursuant to plaintiff’s right under the note, it is more appropriate to use that date in this case because the amount is liquidated and is allowed interest at the regular rate from that date.

Applying the formula specified in N. J. S. A. 17:160-73, the credit to be given for unearned finance charges equals the total amount of finance charge ($1,2G0) less a $15 acquisition cost, multiplied by the number of whole payment periods remaining after institution of suit (37) over the total number of payment periods (60). Defendants are thus allowed a credit of $767.75 on the total finance charge. Since defendants have already paid the sum of $1,701 on the note, there is remaining due $2,391.25.

Plaintiff also demands attorney’s fees of $680.40 based upon the provision in the note which reads:

Upon default in the payment of any installment on its due date, the entire unpaid balance hereon owing shall, at the option of the holder hereof, become immediately due and payable, plus late charges of 5% of the amount of any installment in default for 10 days or $5.00 whichever is lesser and if placed in the hands of an attorney for collection after default, makers and endorsers agree to pay reasonable attorney fees.

Such fees are permitted under N. J. 8. A. 17:16C-71(b).

The April 10, 1975 affidavit of plaintiffs attorney indicates this request is computed as 20% of the unpaid balance due at the time of commencement of suit, then claimed to be $3,402.

Plaintiffs attorney is entitled to recover a reasonable fee for his services, and 20% of the amount due is reasonable for the services performed. Alcoa Edgewater No. 1 Fed. Credit Union v. Carroll, 44 N. J. 442 (1965), Armin v. Kullman, 127 N. J. Super. 600 (Law Div. 1974). However, because the court finds that defendant must receive a credit for unearned service charge after acceleration of the note’s maturity, the 20% attorney’s fee must be computed on the new balance found to be due, including late charges plus the $243 which defendants delivered after institution of suit. Thus, attorney’s fees of $536.57 will be allowed.

Por the foregoing reasons, judgment should be entered for plaintiff in the amount of $2,976.42 plus interest at the regular rate from date suit was commenced, and costs.


author: Dreier, J. D. C.,

text:
    BETTY WUETHRICH, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM FOR THE HEIRS-AT-LAW OF JOHN WUETHRICH, DECEASED, PLAINTIFF, v. JOHN DELIA AND TOWNSHIP OF BERKELEY HEIGHTS, A MUNICIPAL CORPORATION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 27, 1975.

      Mr. Francis H. Scalessa, attorney for plaintiff (John Anthony Lombardi, attorney).

      Mr. Francis J. Beyrent, attorney for defendant Township of Berkeley Heights (Schenck, Price, Smith & King, attorneys).

      Mr. Robert C. Thelander, attorney for defendant John Delia (Mantel & Thelander, attorneys).
   Dreier, J. D. C.,

Temporarily Assigned. Defendant Township of Berkeley Heights has moved for judgment seeking dismissal of plaintiff’s complaint as to it for failure to state a claim upon which relief can be granted.

Although some of the allegations in the complaint are disputed by both defendants, for purposes of this motion we must take them as true and accord the benefit of all favorable inferences to plaintiff. Plaintiff alleges: On several occasions during the afternoon and evening of February 9, 1974 notification was given to the police department of the township that defendant John Delia was menacing with a firearm certain persons within a short distance of the Berkeley Heights police headquarters. The police department made no response to these warnings. Less than 12 hours later, in the early morning of February 10, 1974, John Delia in that same area willfully, wantonly and maliciously shot decedent in the head with a gun, killing him instantly. John Wuethrieh left as survivors his wife (plaintiff herein) and three infant children.

Plaintiff filed the appropriate notice of claim against the defendant township on April 10, 1974, and more than six months have elapsed since the filing of said notice. Plaintiff, individually and as administratrix ad prosequendum for the heirs-at-law of decedent, brought suit pursuant to N. J. S. A. 59:8-8 on February 5, 1975, within two years of decedent’s death, demanding judgment against John Delia for damages and against the township for compensatory damages. Plaintiff alleges that decedent’s death was caused not only by the wrongful act of defendant Delia but also by the neglect, failure and default of the township police department to carry out its duty (1) to “apprehend and disarm” defendant after receiving warning of his armed threats of imminent personal harm, and (2) to take “appropriate action * * * to disarm [defendant] * * * file a Complaint against him or otherwise confiscate the firearms in his possession.”

Defendant township in its motion relies entirely upon three- statutes. Eor convenience, they are reprinted here in full.

A. J. S. A. 59:2-4. Adoption or failure to adopt or enforce a law. A public entity is not liable for an injury caused by adopting or failing to adopt a law or by failing to enforce any law.
A. J. S. A. 59:5-4. Failure to provide police protection. Neither a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.
A. J. S. A. 59:5-5. Failure to make arrest or retain person arrested in custody. Neither a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody.

All were effective as of 1972 and none has as yet been construed by New Jersey courts. This court therefore has an obligation to consider them in relation to the special facts of this ease and in light of the specific policy considerations expressed in the New Jersey Tort Claims Act of 1972; New Jersey case law prior to this enactment dealing with these issues, as well as subsequent case law in relevant areas although not specifically dealing with construction of the statutes; and related case law in other jurisdictions construing municipal immunity.

Initially we must note the legislative declaration expressed in N. J. S. A. 59:1-2, which states in part that:

* * *• the area within'*which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein.

This is more generally expressed again in N. J. 8. A. 59: 2 — 1, stating that a public entity is not liable for an injury arising out of an act or omission except as otherwise provided by the act. The comment to this provision emphasizes that its purpose is to allow some degree of predictability so that municipalities may estímale their insurance needs. The suggested approach is

s' *■ * whether an immunity applies and if not, should liability attaeh. It is hoped that in utilizing this approach the courts will exercise restraint in the acceptance of novel causes of action against public entities. [Emphasis in original]

N. J. S. A. 59:2-2 states that the public entity is generally liable for injury proximatoly caused by an act or omission of a public employee within the scope of his employment. The broad exceptions follow. N. J. S. A. 59:2-3, “Discretionary Activities,” requires quotation in full:

a. A public entity is not liable for an injury resulting from the exercise of judgment or discretion vested in the entity;
b. A public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;
e. A public entity is not liable for the exercise of discretion in determining whether or to seek or whether to provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;
d. A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable. Nothing in this section shall exonerate a public entity for negligence arising out of acts or omissions of its employees in carrying out their ministerial functions.

The extensive comment to this provision explains that New Jersey (and other states such as California) protects from challenge “certain high-level decisions calling for the exercise of official judgment or discretion.” The examples given in subsection (c) illustrate what areas must remain free from interference. Subsection (d) traces such high-level decisions down to the area of immediate contact with the citizenry, where one approaches the gray area encompassing activities reasonable persons might categorize as either low-level discretionary or ministerial. Then once a public entity does act, “when it acts in a manner short of ordinary prudence, liability could be judged as in the case of a private party.” Fitzgerald v. Palmer, 47 N. J. 106, 109 (1966).

The new act is equally applicable to any county, municipality, public authority, etc., in the State, N. J. S. A. 59 :l-3, and its beneficent policy is exemplified by recent cases which stress that what is important is the substance of notice provisions to the State, not technical niceties. Dambro v. Union County Park Comm’n, 130 N. J. Super. 450 (Law Div. 1974); Markey v. Skog, 129 N. J. Super. 192 (Law Div. 1974). Both of these cases show a careful concern for tempering the effects of unanticipated economic liabilities (which must, in the end, be paid by the public at large through taxes) with the qualities of basic fairness to the individual alleging harm for which the State was a proximate cause.

This court finds no recent New Jersey case (with the possible exception of Dobbins v. Henry Hudson Reg. High Bd. of Ed., 133 N. J. Super. 13 (App. Div. 1974), aff’d 67 N. J. 69 (1975) — as qualified by its special jury verdict situation and particular statutory wording) .manifesting an intention to hide public wrongdoing, whether by act or omission, behind the ancient negative facade of “the King can do no wrong.” Today the policy expressed by the Tort Claims Act is to consider: (1) Was this, in fact, a wrong? (2) Was tíre government responsible for it? If so, (3) was it the hind of wrong for which all the taxpayers should be held liable? In order to avoid the trap aptly phrased in Amelchenko v. Freehold, 42 N. J. 541, 550 (1964), “It cannot be a tort for government to govern,” we must examine the distinction between discretionary and ministerial activity.

Judicial construction of the California Tort Claims Act enacted in 1963 (Cal. Gov’t Code § 810 et seq.), while not binding on New Jersey courts, may offer guidance. California’s act also provides immunity to discretionary and not to ministerial duties.

Discretionary activity * * * is that related to basic policy decisions, or that activity sometimes characterized as the “planning” as opposed to the “operational” level of decisionmaking. Ramos v. Madera County, 4 Cal. 2d 685, 94 Cal. Rptr. 421, 426, 484 P. 2d 93, 99 (1971).
The actor must not only have discretion but also must act in the exercise of that discretion. “Immunity for ‘discretionary’ activities serves no purpose except to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government. Accordingly, to be entitled to immunity the state must make a showing that such a policy decision * * * took place * * Ramos, supra, at 426, fn 7, 484 P. 2d at 98. California case citation omitted.

A pre-act New Jersey case dealing with this distinction in practice is Bergen v. Koppenal, 97 N. J. Super. 265 (App. Div. 1967), aff’d 52 N. J. 478 (1968). There, after police had notice of a potentially hazardous condition caused by a defective traffic light on an area of road over which that township had no possessory control, liability was found.

[W]e think it fair to say that a duty may be found if a police officer learns of an emergent road condition which is likely not to be observed by a motorist and which holds an unusual risk of injury. In such circumstances the municipality must act reasonably to guard the traveler. * * * [52 N. J. at 480]

This was found not to be the type of discretionary act or basic governmental policy decision calling for immunity. However, the municipality was invited to show that where there were competing demands, the jury could not disagree with the decisions made by the police department, except if they were found palpably unreasonable. Cf. N. J. S. A. 59: 2-3 (d), quoted earlier. Thus, the burden of explanation is expected to shift back and forth in accordance with the peculiarities of the case. The jury in Bergen could properly have considered the competing demands problem only because this was the type of circumstance wherein the municipality could have reasonably been found to have a duty to act.

. Another New Jersey interpretation of this distinction is found in Logan v. No. Brunswick Tp., 129 N. J. Super. 105 (App. Div. 1974). Although the wording of the decision on this pre-act injury is that “Police and consequently their municipal employer may he held liable for accidents proximately resulting from negligent signalling of traffic,” (citing Bergen v. Koppenal, supra, among others), in fact the criticism of the court was that the police had made the negligent ■ministerial decision to order resumption of traffic in an area of severely icy conditions where several accidents had just taken place, without waiting for the plaintiff tow truck operator to reach a place of safety. The jury’s rejection of a claim of municipal immunity was affirmed by the Appellate Division.

As noted earlier, plaintiff here alleges that (a) the police had received warnings of threats with firearm near police headquarters, (b) the police ignored the warnings, and (c) the shooting followed within 12 hours thereafter by the named killer in the stated location. Under these alleged circumstances does an immunity apply ? If an immunity applies, it must be because the police decision to ignore the warnings was a high-level discretionary act (not alleged by the township), or, if it was a ministerial act enveloped with some discretion, then the liability established by the act may he subject to one of the claimed express statutory immunities of the public entity (N. J. S. A. 59:2-l(b); 59:5-4; and 59:5-5).

Police officers have the right, indeed the duty, to investigate seemingly criminal behavior or activity. State v. Royal, 115 N. J. Super. 439, 441 (App. Div. 1971); Anderson v. Sills, 56 N. J. 210, 222 (1970). When an officer recognizes apparent criminal activity, he has the right to detain the persons involved in such activities and to make inquiries of them. State v. Gray, 59 N. J. 563, 567-568 (1971); State v. Dilley, 49 N. J. 460, 467-468 (1967). He may detain a person for questioning, upon reasonable suspicion based upon the totality of the circumstances. State v. Tanzola, 83 N. J. Super. 40, 46-47 (App. Div. 1969). When a citizen informant reports criminal activity, probable cause may be easily satisfied to warrant an investigation.

The imputation of reliability with respect to information given by an ordinary citizen, and the founding of probable cause for effective police action based on such cooxieration and concern are particularly appropriate in a context where the reactive measures taken are for the limited purpose of neutralizing a dangerous situation. [State v. Lakomy, 126 N. J. Super. 430, 436 (App. Div. 1974)]

Based upon the above, this court finds that once the police had received warnings as alleged by plaintiff, their obligation to investigate was clear. It was not discretionary but ministerial.

Do the restrictive police immunity statutes cited by defendant township somehow provide an automatic protection against ministerial neglect? Statutes should be read in pari materia when the statutes in question were enacted during the same session or went into effect at the same time, Mimkon v. Ford, 66 N. J. 426 (1975); all the more so when the sections are part of the same act. Despite the language of N. J. S. A. 59 :5-4, 59 :5-5, and 59 :2-4 stating that, respectively, police are not liable for failure to arrest or to provide any or sufficient police protection or to enforce a law, these sections must be read in pari materia with N. J. S. A. 59:2-3(d), application of resources must not be palpably unreasonable, and with N. J. S. A. 59:2-2, the public entity is liable for injury proximately caused by an act or omission of the employee within the scope of his employment. This court construes N. J. S. A. 59 :2-2 to hold the public entity clearly liable for acts or omissions of a low-level discretionary or ministerial nature.

Despite apparent absoluteness, an unreasonable construction of a statute will be rejected when a reasonable reading may be found. In re Brennan, 126 N. J. Super. 368 (App. Div. 1974); State v. Campobasso, 125 N. J. Super. 103 (Law Div. 1973). One can easily imagine fully justifiable applications of the absolute police immunity statutes cited by the township. Under N. J. S. A. 59 :5-5, for example, neither the public entity nor the employee is liable although police may have been given a precise description of a suspect yet were unable to apprehend him before he committed another crime; or if one who has been arrested has escaped. Under N. J. S. A. 59:5-4, neither the public entity nor employee is liable despite the decision of the governing body Of a large but sparsely populated township to employ no police of its own, or to employ only a few policemen — although this may delay response to alarms. Yet under N. J. 8. A. 59:2-3(d) there may be a challengeable grant of the policy-making discretion given only to the public entity when senior police officials determine, for example, to reduce personnel on a given shift or in a certain area of the community; they may be required to justify that decision by demonstrating competing demands for service.

Although only the public entity is stated in N. J. 8. A. 59 :2-4 as not being liable for injury caused by failure to enforce any law, any liability for injury caused by the employee’s acts or omissions may, at times, be borne under the principle of respondeat superior, as evidenced by the last sentence in N. J. 8. A. 59:2-3(d). In police work we must now consider the lower-level discretionary area which tends to merge with ministerial-operational duties ■ — - those of the "man on the beat.” On this individual level, some discretion must still exist. An officer may refuse to arrest an alleged offender if, in the exercise of his discretion, he does not believe an offense has occurred or if other police considerations so dictate. But in such a situation this discretion must actually be exercised and claimed by way of defense. In the case at bar the township remains silent. A fair reading of the three sections cited by the township indicates absolute immunity for higher-level discretionary acts, and not for those of individual police officers whose actions may be partly discretionary and partly of a ministerial nature (as defined in the comment to N. J. S. A. 59:2-3).

Plaintiff here seemingly bases her complaint against the municipality upon the township’s failure to prevent the shooting by arresting or disarming Delia. We have discussed above the possibly discretionary nature of these bases of this complaint. Nevertheless, B. 4:42-6 says that a party shall receive the relief to which he (she) is entitled even though he has not demanded such relief in the pleadings. In that spirit this court must consider that a jury could find that the police owed a ministerial duty to decedent and to the community to take reasonable steps at least to investigate and determine whether it was necessary to protect persons from foreseeable criminal acts committed by third persons.

Thus, we are not here concerned with the failure of the police to apprehend or to arrest defendant Delia in the sense of taking him into custody for the purpose of holding or detaining him to answer a criminal charge — physically seizing him — as arrest and apprehension are defined in Black’s Law Dictionary (4 Ed., 1951). We are concerned with the failure of the police to investigate the complaint duly received at headquarters about an armed man (with name and location reported) in the immediate vicinity of the police headquarters, making threats of imminent harm to identified persons.

As for what a reasonable response to receipt of a warning of firearm threat might be, we may consider Corridon v. Bayonne, 129 N. J. Super. 393 (App. Div. 1974). It dealt with responsibility of the city for the death of victim Corridon shot by an intoxicated off-duty municipal police officer. While the thrust of the opinion was that the act of an off-duty officer should not bind the city under respondeat superior, the city could be found primarily negligent, the court held, for permitting the arming of an officer it knew or should have known was often intoxicated in public places. The court noted:

It is clear that the- hazard of firearms is so extraordinarily' great that a municipality has a plain duty of care in its supervision of those whom it arms. McAndrew v. Mularchuk, 33 N. J. 172 (1960). If a municipality is required ‘to use care commensurate with the risk’ in providing adequate training and experience in the proper handling and use of .weapons, as in McAndrew, it certainly is no less responsible for appropriate iaction when situations unreasonably increasing the already great hazard become known to it. The duty is one to abate such an extraordinary risk if in related circumstances danger to others is reasonably to be perceived. [129 N. J. Super, at 397; citing cases]

In Harris v. State, 61 N. J. 585 (1972), dealing with a pre-act injury, prison officials were found not liable where one- prisoner assaulted another, where there had been no prior warning to any of the officials of the impending attack nor had they been made aware of any circumstances calling for special precautions on their part. All the cases cited therein refer to no liability having been found where there was no warming of danger.

The fact that the risk of harm to the plaintiff was attributable to voluntary activity of others not under the control of the defendant does not of itself preclude liability if the harm by human intervention was foreseeable and a reasonable man so situated would take precautions to prevent it. * *' * The criminality of the activity is but one circumstance in the foreseeability of the harm. [Braitman v. Overlook Terrace Corp., 132 N. J. Super. 51, 55 (App. Div. 1974) ; citations omitted]

This court concludes that once clear warning of a threat to take life was received by the police, the police had a ministerial and operational duty to investigate, and a jury may find liability on the part of the public entity for omission to so investigate. Alternatively, the decision not to investigate, while arguably of a low-level discretion, may after a consideration of competing demands be found by a jury to have been palpably unreasonable. If the police understood the warning and 'chose not to respond, the burden shifts to them to come forward and explain why competing demands prevented them from carrying out their duty to investigate. N. J. 8. A. 59 :2-3(d) clearly recognizes a public demand for accountability by public entities.

Defendant township’s motion for judgment for failure to state a claim upon which relief can be granted, R. 4:6-2(e), is denied.


author: Staller, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. STUART M. KRAFT, DEFENDANT.
    Atlantic County Court Criminal Division
    May 20, 1975.

      Mr. David Forman, Assistant Prosecutor, for the State of New Jersey (Mr. Richard Williams, Prosecutor, attorney).

      Mr. Samuel Epstein for defendant.
   Staller, J. C. C.

This municipal court appeal encompasses a novel question; whether in a prosecution for driving while under the influence of drugs (N. J. 8. A. 39:4-50) the State has met its burden of proof by showing the course of operation and physical characteristics of defendant and a laboratory report concluding that defendant’s blood and urine were positive for amobarbital and secobarbital. .

Special Officer Demora of the Atlantic City Police Department testified that he observed defendant driving in a very erratic manner, at a high rate of speed. After stopping defendant’s vehicle, the officer observed that defendant’s face was flushed, eyes were watery and bloodshot, his speech was slurred and he staggered. There was no odor of alcoholic beverage and no physical tests were given at the scene. A breathalyzer test result was .03 percent blood alcohol. At the police station defendant lost consciousness and was transported to the Atlantic City Medical Center. A medical doctor took blood and urine samples, which were transported to the Hammonton State Police Laboratory. The test results were positive for amobarbital and secobarbital. Clearly, the taking of the blood and urine samples was not constitutionally defective. Schmerber v. California, 384 U. S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); State v. Macule, 57 N. J. 1, 11-15 (1970); State v. Blair, 45 N. J. 43. (1965). Over objection, the laboratory analysis was admitted into evidence. The chemist did not testify.

The admission into evidence of this document was error because, although it is a business record under Evid. R. 63(17), it was not properly authenticated under Evid. R. 68. However, assuming that the laboratory report was properly authenticated, it is the opinion of this court as hereinafter amplified that the State has still failed to meet its burden of proof.

In State v. Tiernan, 123 N. J. Super. 322 (Cty. Ct. 1973), the court held that mere lay testimony (of a police officer) is insufficient to prove that a person was under the influence of drugs within the meaning of N. J. S. A. 39 :4-50. In the present case the State has attempted to circumvent Tiernan with' the use of the laboratory analysis showing defendant’s blood and urine were positive for drugs. The state police expert was not produced as a witness and, hence, not subject to cross-examination.

The Sixth Amendment of the United States Constitution guarantees a criminal defendant a right to confront witnesses against him. In a prosecution for a violation of N. J. S. A. 39:4-50 an accused is afforded basic constitutional rights, State v. Lanish, 103 N. J. Super. 441 (App. Div. 1968), aff’d 54 N. J. 93 (1969), because the prosecution is gmsi-criminal.

There are no reported New Jersey cases dealing with the precise issue presented here. However, in a prosecution for driving while under the influence of alcoholic beverages the accused does have the right to confront and cross-examine the breathalyzer operator as to the test itself and the machine. See State v. Macuk, 57 N. J. 1 (1970); State v. Conners, 125 N. J. Super. 500 (Cty. Ct. 1973), aff’d 129 N. J. Super. 476 (App. Div. 1974). In State v. Johnson, 42 N. J. 146 (1964), the Supreme Court discussed this problem and held:

It is, of course, most essential, in view of the heavy impact of the result [of the breathalyzer] can have, that proper administration of the test be clearly established before the reading is admitted into evidence. This includes full proof that the equipment was in proper order, the operator qualified and the test given correctly. * * * [at 171]

Furthermore, in a prosecution for possession or use of controlled dangerous substance, an essential element is that the alleged drug is in fact a drug. Proof of such is required. State v. Campisi, 23 N. J. 513 (1957). This requires testimony of an expert.

It would be illogical to conclude, then, that since an accused had the right to confront and cross-examine the breathalyzer operator, in a driving while under the influence prosecution, he does not have a similar right to confront and cross-examine an expert where the essential element is being under the influence of drugs. Especially is this so in light of the fact that the lay police officer (who can testify as to an accused being under the influence of alcoholic beverage) cannot testify as to the defendant being under the influence of drugs. State v. Tiernan, supra.

It is concluded that in a prosecution for driving while under the influence of drugs the expert who examined and tested the drug must be produced by the State to clearly establish the presence of the narcotic drug proscribed as well as the manner in which the expert reached such determination, i.e., the testing process. Since this was not done in this case the State has not met its burden of proof that defendant was under the influence of drugs.

Defendant is found not guilty.


author: Per Curiam.

text:
    SEGAL CONSTRUCTION COMPANY, PLAINTIFF-APPELLANT, v. ZONING BOARD OF ADJUSTMENT, BOROUGH OF WENONAH, NEW JERSEY, DEFENDANT-RESPONDENT, AND MAYOR AND BOROUGH COUNCIL OF BOROUGH OF WENONAH, INTERVENERS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued September 23, 1974 — -Remanded May 5, 1975.
    Reconsidered July 2, 1975.
    Decided July 18, 1975.

      Before Judges Michels, Morgan and Demos.

      Mr. Frank H. Wisniewski argued the cause for appellant (Messrs. Archer, Greiner & Bead, attorneys; Mr. Lee M. Hymerling, on the brief).

      Mr. Donald A. Smith, Jr. argued the cause for defendant-respondent.

      Mr. David J. Strout argued the cause for intervenersrespondents (Mr. Ronald J. Uzdavinis, on the brief).
   Per Curiam.

The judgment below is affirmed substantially for the reasons set forth in the trial judge’s unpublished decision dated September 13, 1973. Because that opinion was written before the recent opinion in Southern Burlington County N.A.A.C.P. v. Mount Laurel Tp., 67 N. J. 151 some additional comment concerning the effect of that decision upon the trial court’s opinion is required.

The portion of the Mount Laurel decision which carefully delineates its intended applicability, reads as follows:

As already intimated, the issue here is not confined to Mount Laurel. The same question arises with respect to any number of other municipalities of sizeable land area outside the central cities and older built-up suburbs of our North and South Jersey metropolitan areas (and surrounding some of the smaller cities outside those areas as well) which, like Mount Laurel, have substantially shed rural characteristics and have undergone great population increase since World War II, or are now in the process of doing so, but still are not completely developed and remain in the path of inevitable future residential, commercial and industrial demand and growth. Most such municipalities, with but relatively insignificant variation in details, present generally comparable physical situations, courses of municipal policies, practices, enactments and results and human, governmental and legal problems arising therefrom. It is in the context of communities now of this type or which become so in the future, rather than with central cities or older built-up suburbs or areas still rural and likely to continue to be for some time yet, that we deal with the question raised.

We conclude that the Borough of Wenonah remains unaffected by Mount Laurel. Wenonah is not a municipality of “sizeable land area”; it occupies scarcely one square mile of space. (Mount Laurel was described as a “sprawling township, 22 square miles, or about 14,000 acres, in area)”. Of the 660 acres which comprise this tiny borough, only 109 acres have yet to be developed and the only sizeable tract available for multi-family construction is the 41-acre parcel upon which Segal, as contract purchaser, proposes to erect its 340-unit condominium complex. In the Township of Mount Laurel 65% of the township’s land area remains vacant or devoted to agricultural use. Wenonah cannot therefore be regarded as one of the developing communities of “sizeable land area” to- which the requirements imposed by Mount Laurel apply.

The record does not support any conclusion that Wenonah has endeavored by its zoning to exclude the more modestly circumstanced. Wenonah is not a wealthy community. The average value of the single-family dwellings located within its borders is approximately $23,000. Most of the houses are valued at between $25,000 to $35,000, which values are competitive with prices for which plaintiff’s condominiums are to be offered. Since 101 single-family residences can lawfully be located on the 41-acre tract upon which plaintiff proposes to erect his condominiums, it is clear that generous lot sizes are not contemplated by the challenged ordinance. Moreover, single-family dwellings can ordinarily accommodate larger family units, with more children and teenagers than can a one or two-bedroom apartment or condominium. Indeed, one of the arguments made by plaintiff to the zoning board in support of its proposed project was that it would minimize the numbers of children drawn to the town, thus limiting the costs attendant upon their care and education. But see, Molino v. Glassboro Mayor and Council, 116 N. J. Super. 195 (Law Div. 1971). It thus may well be that the modest type, single-family dwelling is less expensive to those needing more space because of family size than the condominiums proposed by plaintiff or some other apartment house rental complex.

Wenonah currently boasts 731 ■ dwelling units within its one-mile square area. During the ten-year period from 1960 to 1970, Wenonah’s population grew but 13%. Permitting plaintiff’s proposed condominium complex or some other extensive multi-family construction on this one remaining developable parcel of land could almost double the number of dwelling units in a three-year period of time. Requiring multi-family use of this last sizeable parcel of developable land within this tiny borough would thus subject Wenonah to a judicially created explosive growth phenomenon for which it may be ill equipped to deal.

As presently zoned the Segal tract will accommodate 101 families living in single-family dwelling units built over a period of years. Assuming only three to a family, those dwellings would ultimately house 330 persons. On the same modest assumption, a little over a thousand would be housed in plaintiff’s proposed condominium development, a difference of approximately 700 in round figures. Wenonah’s contribution to the housing needs of Gloucester County must perforce be a minor one because of its limited size, but requiring Wenonah to make this minor contribution may well prove catastrophic to its way of life. This is what the trial judge meant when he noted that- Wenonah could not be regarded as the last hope for Gloucester County. On balance, the minor contribution of Wenonah to the housing needs, if there be any, of Gloucester County, as against the major impact on Wenonah resulting from this contribution, removes any constitutional or statutory compulsion upon this borough to provide this alternative mode of housing.

We note, however, that the trial court affirmed the action of the zoning board of adjustment in denying plaintiff its requested variance without making any findings of fact or conclusions of law directed to that issue. We therefore remand the case to the trial court for the required findings of fact and conclusions of law, the results of which should be forwarded to this court within 30 days from the date of this opinion.

The judgment below is affirmed with respect to the issue concerning the validity of the zoning ordinance, and the matter is remanded for findings of fact and conclusions of law concerning the trial court’s affirmance of the zoning board of adjustment denial of plaintiff’s requested variance. We retain jurisdiction.

Supplemental Opinion

This case was remanded to the trial court for findings of fact and conclusions of law in support of the trial court’s affirmance of the Zoning Board of Adjustment denial of plaintiff’s requested variance. Segal Construction Company v. Zoning Board of Adjustment, et al, Docket A-797-73, decided May 5, 1975.

We have reviewed the extensive and carefully considered findings of fact and conclusions of law submitted to us by the trial court in compliance with the instructions on remand and affirm the judgment substantially for the reasons stated therein for which there exists substantial evidential support. State v. Johnson, 42 N. J. 146, 162 (1964).

Affirmed.

      Briefs concerning the application of Southern Burlington v. Mount Laurel, supra, were' solicited and submitted by all interested parties.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. PHILLIP SIDOTI, JOHN GUANCIONE AND RAYMOND DE FILIPPIS, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 12, 1975
    Decided May 22, 1975.

      Before Judges Leonard, Seidman and Bischoff.

      Mr. Donald S. Goldman argued the cause for appellants Sidoti and Guancione (Messrs. Goldman, Goldman and Caprio, attorneys).

      Mr. Raymond DeFilippis, Jr., appellant, joined in the brief filed on behalf of the appellants Sidoti and Guancione.

      Mr. David L. Rhoads, Assistant Prosecutor of Essex County, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   Per Curiam.

This is an appeal by three defendants, Phillip Sidoti, John Guancione and Raymond DeEilippis, from convictions for gambling offenses in violation of N. J. 8. A. 2A :98 — 1. Defendant Sidoti also appeals from his conviction for additional gambling offenses in violation of N. J. S. A. 2A:112-3 and N. J. 8. A. 2A:121-3A. The factual background is detailed in two reported opinions, 116 N. J. Super. 70 (Cty. Ct. 1971), and 120 N. J. Super. 208 (App. Div. 1972), and need not be restated here.

Our decision reported at 120 N. J. Super. 208 remanded the matter “to the trial court to hold a plenary hearing to determine the means used and the circumstances under which the Mitarotonda wiretap was executed * * *.” Id. at 214.

Eollowing that remand a rehearing was held by the trial judge, who found that the wiretap was executed in good faith and in compliance with the wiretap order. Defendant at the hearing also contended that the contents of the wiretap should be excluded because the State failed to serve an inventory within 90 days of the termination of the original order, in violation of N. J. 8. A. 2A:156A-16. The trial judge rejected that contention and denied the motion to suppress. Trial, conviction, sentence and this appeal followed.

Defendants contend on this appeal that (1) the failure of the State to comply with the inventory requirements of N. J. S. A. 2A:156A-16 and 18 U. S. C. A. § 2518(8) (d) “vitiates the legality of the Mitarotonda wiretap”; (2) it was error to allow into evidence taped conversations between defendant Sidoti and his wife; (3) the New Jersey Wiretap and Electronic Surveillance Control Act fails to conform to federal law and is, therefore, illegal; (4) all evidence seized from the Mitarotonda wiretap should have been suppressed; (5) the Mitarotonda wiretap was unlawful because the order was in violation of the Fourth Amendment standards of particularity and reasonableness, and (6) the application for the wiretap did not demonstrate a special need.

We note at the outset that many of the grounds upon which this wiretap and the evidence obtained therefrom are attacked are beyond the scope of our limited remand, and we could for that reason refuse to consider them. We elect, however, to dispose of this appeal on its merits.

One requirement of the New Jersey Wiretapping and Electronic Surveillance Control Act, N. J. S. A. 2A:156A-1 et seq., is that:

Within a reasonable lime but not later than 90 days after the termination of the period of the order * * * the issuing or denying judge shall cause to be served on the person named in the order or application, and such other parties to the intercepted communications as the judge may in his discretion determine to be in the interest of justice, an inventory [containing certain facts relating to the wiretap order]. N. J. S. A. 2A:156A-16],

A similar provision appears in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. A. § 2510 et seq., at § 2518(8) (d).

It is conceded by the State that the application for an order for service of the inventory was not made until six weeks beyond the time period provided in the statute. Defendant contends this delay, even though inadvertent and unintentional and without proof of prejudice resulting therefrom, mandates suppression of the evidence received from the tap. While this statutory provision has not been construed in any reported New Jersey decision, it has received considerable attention in the federal courts where it has generally been held that an inadvertent delay in service of an inventory does not require suppression of the fruits of the wiretap. United States v. Wolk, 466 F. 2d 1143 (8 Cir. 1972); United States v. Lucido, 373 F. Supp. 1142, 1144 (E. D. Mich. 1974); United States v. LaGorga, 336 F. Supp. 190, 194 (W. D. Pa. 1971); cf. United States v. Chun, 503 F. 2d 533, 542, n. 20 (9 Cir. 1974); United States v. Eastman, 465 F. 2d 1057, 1062 (3 Cir. 1972). The reasoning stated in these cases is that the purpose of the time limit is to prevent governmental abuse. Where no prejudice results .to defendant from an inadvertent delay, no purpose would be served by excluding evidence.

W.e are not here concerned with a failure or refusal to file an inventory, as appeared in the case of United States v. Eastman, supra. Here the delay was inadvertent — there was no intentional or insolent flouting of the statute. Further, defendants do not demonstrate any prejudice resulting from the delay, and we affirm the action of the trial judge in refusing to suppress the evidence obtained from the wiretap for that reason.

During the course of the trial certain tapes were played to the jury over defendant’s objection which contained recorded conversations between defendant Sidoti and his wife. Defendant, while conceding that the conversations thus admitted into evidence did not contain confidential communications and did not in any way refer to illegal activity, contends that the admission of the conversations constituted a violation of N. J. S. A. 2A:156A-11, which provides in part:

No otherwise privileged wire or oral communication intercepted in accordance with, or in violation of, the provisions of this act, shall lose its privileged character,

and Evid. B. 23. We disagree.

It is generally held that a third person overhearing a confidential communication between a husband and wife may testify as to it. 8 Wigmore, Evidence (McNaughton rev. 1961), § 2339(1) at 667; 3 Jones, Evidence (6 ed. 1972), § 21:5 at 754; 97 C. J. S. Witnesses § 271 at 778.

Evid. B. 23(2), to which defendant refers, bars one spouse from testifying against the accused in a criminal action but does not bar third persons from testifying as to the conversation overheard. See Narten v. Eyman, 460 F. 2d 184, 191 (9 Cir. 1969); State v. Young, 97 N. J. L. 501, 505 (E. & A. 1922), and Commonwealth v. Wakelin, 230 Mass. 567, 120 N. E. 209, 212 (Mass. 1918). In similar fashion, Evid. B. 28 bars a disclosure by a spouse of a confidential communication and is, therefore, not applicable here, for defendant concedes the taped conversations were not confidential.

Defendant admits the conversations were used only as corroboration of his identity. In view of other evidence of identity in the record, we find the admission of these conversations, even if error, was harmless beyond a reasonable doubt. State v. Macon, 57 N. J. 325, 339-341 (1971); Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

Defendant’s attack on the New Jersey statute as being unconstitutional since it is less restrictive than the federal act is without merit. State v. Dye, 60 N. J. 518, 535 (1972), cert. den. 409 U. S. 1090, 93 S. Ct. 699, 34 L. Ed. 2d 675 (1972). The further arguments that the evidence obtained from the wiretap should be suppressed as coming from an illegal wiretap, the application for the Mitarotonda tap did not demonstrate a special need and that the Mitarotonda wiretap was unlawful because it was in violation of Fourth Amendment standards of particularity and reasonableness, were decided adversely to defendant in our former opinion, State v. Sidoti, supra, and are not properly raised here. State v. Cusick, 116 N. J. Super. 482, 485 (App. Div. 1971); Deverman v. Stevens Builders, 35 N. J. Super. 300 (App. Div. 1955).

Affirmed.