text:
    D. STAMATO & CO., INC., PLAINTIFF-APPELLANT, v. TOWNSHIP OF VERNON AND INTERCOUNTY PAVING, INC., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 6, 1974 —
    Decided November 6, 1974.

      Before Judges Kolovsky, Lyxoii and Loka.

      Mr. Herbert R. Ezor argued the cause for appellant (Messrs. Heller & Laiks, attorneys; Mr. Murray A. Laiks, of counsel).

      Mr. Paul F. Koch argued the cause for respondent Township of Vernon (Messrs. Shelton and Koch, attorneys).

      Mr. Robert L. Podvey argued the cause for respondent Intercounty Paving, Inc. (Messrs. Podvey, Sachs & Witherington, attorneys; Ms. Kathleen Moran, on the brief).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

Defendant township advertised for bids for paving of a portion of Canistear Koad with a bituminous concrete surface upon an existing foundation, the advertisement stating that the “estimated amount of bituminous surface required is 1420 tons.”

Bids were received by the township committee on September 23, 1974. The bid of plaintiff D. Stamato & Co., Inc., at a unit price of $15.15 a ton for a total of $21,513, was the lowest of the four bids submitted. However, the township committee rejected that bid and adopted a motion awarding the contract to the next lowest bidder, defendant Intercounty Paving, Inc. (Intercounty),, whose bid was $15.30 a ton, or a total of $21,726 “because of dissatisfaction with the last performance of D. Stamato & Co. Inc.”

Plaintiff then instituted this action to set aside the award of the bid to Intercounty and to require the township to award the contract to it. On the return day of the order to show cause with restraints which issued on the filing of the verified complaint, the judge continued the restraints and ordered the township “to conduct a hearing on October 21, 1974 to determine whether plaintiff is the lowest responsible bidder.”

At the conclusion of the October 21 hearing before the township committee it recessed its meeting to October 23, 1974 “to render our decision.” The minutes of the township committee’s meeting of October 23 contain no findings as to the responsibility of plaintiff except that to be inferred from the only action taken, the passage of a motion awarding the contract to Intercounty, the “second lowest bidder,” and authorizing the mayor and clerk to sign the contract which had already been signed by Intercounty.

The parties returned to the trial court on October 24, 1974. After hearing argument — although a transcript of the hearing of October 21 was not yet available • — ■ the judge ruled that there was no showing of any abuse of discretion by the township committee. A final judgment in defendant’s favor was entered, embodying a restraint against the performance of any work until October 25 in order to enable plaintiff to apply to this court for a stay.

Plaintiff filed a notice of appeal and applied for a stay. The stay was granted on condition that the filing of briefs be expedited so that the appeal might be argued on its merits, as it was, on November 6, 1974.

We reverse.

At the outset, we are satisfied that there is no merit to the township’s contention that since July 1, 1971, the effective date of “Local Public Contracts Law,” N. J. 8. A. 40A:11-1 ei seq., a municipality required to advertise for bids need no longer award the contract to the lowest responsible bidder and may, in its discretion, award the contract to a higher bidder.

It is conceded that the contract here involved is not one excepted from the bidding requirements of N. J. S. A. 40A: 11-4, which provides in pertinent part:

Every contract or agreement, for the performance of any work or the furnishing or hiring of any materials or supplies, the cost or the contract price whereof is to be paid with or out of public funds, s- * * shall be made or awarded only after public advertising for bids and bidding therefor * * No work, materials or supplies shall be undertaken, acquired or furnished for a sum exceeding in the aggregate $2,500.00, except by contract or agreement.

The township’s contention is bottomed on the omission from N. J. S. A. 40A :ll-4 of the language appearing in the predecessor statute, N. J. S. A. 40:50-l, expressly requiring the "award [of] the contract to the lowest responsible bidder.” The township argues that the omission, is significant because that language does appear in N. J. S. A. 40A:11~16 dealing with the award of contracts for construction, alteration and repair of public buildings. Cf. M. A. Stephen Const. Co. v. Rumson, 125 N. J. Super. 67, 72 (App. Div. 1973), certif. den. 64 N. J. 315 (1973).

To accept the township’s argument would render meaningless the statutory mandate for competitive bids. Further, the argument ignores the elementary rule that "the true meaning and intention of legislation must he derived from the whole and not from any single component part, or else distortion is sure to result.” Denbo v. Moorestown Tp., 23 N. J. 476, 481 (1957).

Nothing in the revision of Title 40 embodied in the Loral Public Contracts Law reveals a legislative intent to abandon the strong public policy underlying the irranicipal bidding statutes, a policy designed to secure economy and to prevent fraud, favoritism and extravagance “to the end that all bidders will be on the same basis in matters material to the proposed municipal action.” Waszen v. Atlantic City, 1 N. J. 272, 283 (1949); Hillside Tp. v. Sternin, 25 N. J. 317, 322 (1957). On the contrary, it is clear from a reading of the Local Public Contracts Law as a whole that there has been no change in that aspect of the prior law; contracts for which bids must be advertised still must be awarded to the lowest responsible bidder. See, for example, N. J. S'. A. 40A :ll-5 (4) which authorizes the award of :a contract without public bidding where the contracting unit had advertised for bids on two occasions and the governing body had rejected the bids on each occasion because the prices had not been independently arrived at in open competition or because, on the basis of cost estimates made before the advertising, the prices bid appeared unreasonable. The authority so granted is limited, however, by a provision that no such negotiated contract may be entered into unless “the negotiated price is lower than the lowest rejected bid price of a responsible bidder who bid thereon * * *.’*

A municipality, may reject the lowest bid, after affording a hearing to the lowest bidder before awarding the contract to a higher bidder, if it finds that the lowest bidder is not a “responsible” bidder. Arthur Venneri Co. v. Paterson Housing Authority, 29 N. J. 392, 402-403 (1959), and cases cited therein. “The determination of the question of who is the lowest responsible bidder does not rest in the exercise of arbitrary and unlimited discretion, but upon a bona fide judgment, based upon facts tending to support the determination.” 10 McQuillin, Municipal Corporations (3 ed. 1966), § 29.73 at 425-426. “To reject tire lowest bid there must be evidence of such character concerning the irresponsibility of the bidder as would cause fair-minded and reasonable men to believe it was not in the best interest of the municipality to award the contract to the lowest bidder.” Arthur Venneri Co. v. Paterson Housing Authority, supra at 402.

The rejection of plaintiff’s bid at the township committee meeting of September 23, 1974 without first affording it a hearing on the issue of responsibility was without warrant in law. That deficiency was corrected when, pursuant to the trial court’s order, such a hearing was held before the township committee on October 21, 1974. But the October 23 decision of the township committee following that hearing should have set forth expressly findings and reasons why it found plaintiff not to be a responsible bidder so that a court, after reviewing the evidence adduced at the hearing, might determine whether or not such findings were arbitrary and unreasonable.

However we find it unnecessary to remand the matter to the township committee for appropriate findings since we are satisfied from our review of the testimony adduced at the October 21 hearing that it would be arbitrary and unreasonable to find therefrom that plaintiff is not a responsible bidder.

Essentially, responsibility involves experience, financial ability, moral integrity and the availability of facilities necessary to perform the contract. Arthur Venneri Co. v. Paterson Housing Authority, supra at 402-403; Sellitto v. Cedar Grove Tp., 133 N. J. L. 41, 43 (Sup. Ct. 1945).

The township does not challenge plaintiff’s experience, financial ability or moral integrity, nor does it even suggest that plaintiff does not have the facilities necessary to perform the contract. At best, its decision not to award the bid to plaintiff stems from a dispute as to whether there had been defective performance in plaintiff’s resurfacing, in October 1973, of a portion of Moe Mountain Road, work done as an “extra” after plaintiff had completed a contract awarded it as the lowest bidder for the repavement of portions of four other township roads, MePeak Road, Breakneck Road, Lake Pochung Road and Barry Drive North.

The specifications for those four roads called for a bituminous concrete surface two inches thick and there is no criticism of plaintiff’s work on those four roads.

After provision for payment of the cost of repaving those four roads, the township still had funds available for road resurfacing. It directed plaintiff to resurface a portion of Moe Mountain Road. But, as 1ho Township Road Superintendent testified, the available funds were limited and since township employees had previously “taken care of so called bad spots,” he decided that a lj4-inch thickness of bituminous concrete would be sufficient .and directed plaintiff “to put it down [that] way.” The township does not dispute the authority of the road superintendent to give those instructions to plaintiff — and indeed coul'd not in view of the provisions in the specifications granting authority to the “Township Engineer and/or Road Foreman.”

Sometime after the work of resurfacing Moe Mountain Road was completed and the road put in use, the township engineer concluded that the road had begun to ravel and that the fault allegedly was attributable to- an improper bituminous concrete mix. Witnesses called by plaintiff disputed this and attributed such fault as there might be to the fact that the pavement was 1J4 rather than 2 inches thick. Despite negotiations, the dispute has as yet not been resolved. The township has withheld and still retains $10,000 of the contract price due plaintiff. It has rejected plaintiff’s tender of a three-year guarantee bond instead of the one-year bond called for by the contract and plaintiff’s suggestion that two winters be permitted to pass to see “what really happens” so that if the road “unravels, then we got to go back and do something about it.”

We express no views as to the merits of the dispute between the township land plaintiff with respect to the work done on Moe Mountain Road. That dispute, if not otherwise settled, may be resolved in an action for breach of contract brought either by the plaintiff or the township.

We are satisfied that, in the circumstances revealed by the record in this case, the existence of that single dispute with respect to Moe Mountain Road affords no justification for a finding that plaintiff is not a responsible bidder so that now, and until the dispute is resolved to the township’s satisfaction, it is to be foreclosed from bidding for other resurfacing work in the Township. Peluso v. Hoboken, 98 N. J. L. 706 (Sup. Ct. 1923); see also, Arthur Venneri Co. v. Paterson Housing Authority, supra, 29 N. J. at 402-403; cf. Auto matic Laundries, Inc. v. Bayonne Housing Authority, 45 N. J. Super. 266 (Law Div. 1957).

The judgment is reversed; the award by the Township of Yernon of the contract for the resurfacing of Canistear Road to Intereounty Paving, Inc. is set aside; and the township is ordered to award that contract to plaintiff as the lowest responsible bidder.


source: Caselaw Access Project

author: Lora, J. A. D.

license: Public Domain

text:
    HUDIK-ROSS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. 1530 PALISADE AVENUE CORP., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT. H-R PLUMBING, INC., ET ALS., PLAINTIFFS-RESPONDENTS, v. 1530 PALISADE AVENUE CORP., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT. HUDIK-ROSS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. H. R. SHAPIRO, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT. H. R. SHAPIRO CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. HUDIK-ROSS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT. HERBERT W. DAVIS, ET ALS., PLAINTIFFS-RESPONDENTS, v. AMERICANA ASSOCIATES, DEFENDANT-APPELLANT THIRD-PARTY PLAINTIFF, v. HUDIK-ROSS, INC., THIRD PARTY DEFENDANT-RESPONDENT. BERNARD BLATT, PLAINTIFF-RESPONDENT, v. AMERICANA ASSOCIATES, DEFENDANT-APPELLANT THIRD-PARTY PLAINTIFF, v. HUDIK-ROSS, INC., THIRD-PARTY DEFENDANT-RESPONDENT. LARRY MANUS, PLAINTIFF-RESPONDENT, v. AMERICANA ASSOCIATES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 15, 1974 —
    Decided November 6, 1974.

      Before Judges Codlester, Lora and Handler.

      Mr. Benjamin P. Michel argued the cause for defendants-appellants H. R. Shapiro, Inc. and 1530 Palisade Avenue Corp. (Messrs. Riker, Danzig, Scherer and Brown, attorneys).

      Mr. Theodore W. Geiser argued the cause for plaintiffs-respondents Hudik-Ross, Inc. and H-R Plumbing, Inc. and for defendant-counterclaimant Hudik-Ross, Inc. (Messrs. McElroy, Connell, Foley and Geiser, attorneys; Mr. Mack L. Fleder on the brief).

      Mr. Daniel M. Hurley submitted a statement in lieu of brief for defendant-respondent Hudik-Ross, Inc. (Messrs. Conway, Reiseman, Michals and Wahl, attorneys).

      Mr. Allan Maitlin submitted a statement in lieu of brief for plaintiff-appellant H. R. Shapiro, Inc. (Messrs. Feuerstein, Sachs and Maitlin, attornej^s).

      Mr. Peter R. Feehan submitted a statement in lieu of brief for defendant-respondent Hudik-Ross, Inc. (Messrs. Feehan and Feehan, attorneys).

      Mr. Daniel A. Fierro, Jr. submitted a statement in lieu of brief for plaintiffs-respondents Herbert W. Davis and Margaret C. Davis (Messrs. Fierro, Fierro and Mariniello,-attorneys).

      Mr. George A. Vaccaro submitted a, statement in lieu of brief for defendant-third party plaintiff-appellant Americana Associates (Messrs. Vaccaro, Osborne and Curran, attorneys) .

      Mr. William Goldberg filed a statement in lieu of brief for plaintiffs-respondents Larry Manus and Bernard Blatt.
   The opinion of the court was delivered by

Lora, J. A. D.

This controversy arises out of contracts entered into by plaintiffs-respondents, Hudik-Ross, Inc. and its related corporation, H-R Plumbing, Inc. (both hereinafter referred to as Hudik-Ross) and defendants-appell'ants H. R. Shapiro, Inc. and its related corporation, 1530 Palisade Avenue Corp. (both hereinafter referred to as H. E. Shapiro) for construction work to be performed by plaintiffs. On August 6, 1970 H. E. Shapiro entered into a contract with Hudik-Ross under which Hudik-Ross was to provide all the labor and materials for the plumbing work at the Colony Apartments in Port Lee, New Jersey for $1,460,000.

On November 20, 1970 defendants and plaintiffs entered into a similar contract for the heating, ventilating and air conditioning (HVAC) at the Colony for $1,300,000. On September 8, 1971 the parties contracted for plaintiffs to provide all the plumbing and HVAC work at the site of Regency Towers in Allentown, Pennsylvania for $707,500.

Defendants allege serious disputes arose between the parties over the work on both projects because plaintiffs failed to do work properly and provided inadequate materials for which defendants delivered numerous “back-charges” to Hudik-Ross, totaling “at last count” $1,091,573. Plaintiffs assert all work was completed on two contracts by October 9, 1972 and on the third by May 15, 1973; they deny any disputes arose during performance of the work and state no arbitration was demanded while work was in progress.

H. R. Shapiro refused to make the final contract payments and on August 20, 1973 Hudik-Ross instituted three suits against defendants under the three contracts. They claimed $110,500 for the Allentown job, and on the Colony job some $183,393.40 for the HVAC work and $242,915 for the plumbing work, in all a total of $536,808.40. Defendants answered alleging they refused to pay because of the “back-charges” in dispute, and by separate affirmative defense set forth their contractual right to go to arbitration.

In October 1973 defendants filed in each of the throe separate suits a notice of motion for an order to consolidate the three cases and for an order staying the cases so that the controversies could be submitted to arbitration in accordance with a provision contained in all three contracts. The motion was not granted by the trial judge at that time because a separate written demand for arbitration had not yet been made upon plaintiff as called for in the arbitration clause. In December 1973 defendants served separate written demands for arbitration on plaintiffs and requested reargument on the motion. On February 6, 1974, following reargument, an order issued staying all three actions pending arbitration, but consolidating only the two actions involving construction at Fort Lee, New Jersey.

Subsequently, on February 20, 1974 a complaint was filed in the name of H. R. Shapiro, Inc. against Hudik-Ross by defendants’ insurance carrier under its subrogation rights to recover for water damage that occurred on two occasions because of alleged defective work bjr Hudik-Ross, who then answered and counterclaimed asserting the three claims made in the original three suits.

Three other suits for damages were filed by tenants in the Fort Lee building against Americana Associates, the management corporation for the apartments, who, in turn, filed third-party complaints against Hudik-Ross alleging they had caused the damage by faulty workmanship.

Hudik-Ross then moved to consolidate all seven cases and to dissolve the order entered in the three original suits on February 6, 1974 to stay and to arbitrate.

On May 31, 1974 an order was entered dissolving the order of February 6, 1974 and consolidating all seven cases. On •June 27, 1974 leave to appeal from this order was granted iby this court.

The contracts between Hudik-Ross and H. R. Shapiro entered into on August 6, 1970 and November 20, 1970 contained the following clause:

Arbitration Article VIII. All questions that may arise under this -contract and in the performance of the work hereunder shall be submitted to arbitration at the choice of either of the parties hereto. The demand for arbitration shall be filed in writing with the party against whom it is sought. Each of the parties shall, within three -days after such demand, name one arbitrator and they shall select a third arbitrator. If any party shall fail to select an arbitrator within three days after the demand for arbitration is made or if a third arbi-fralor is not selected within ten days after the demand for arbitration, the additional arbitrator or arbitrators shall be chosen by a Justice of the Supreme Court, or by a Justice of a court of equal jurisdiction. The arbitrators shall act with promptness. The Buies of the American Arbitration Association shall govern and the cost of such arbitration shall be borne equally between the Contractor and Subcontractor. The decision of any two shall be binding on all the parties to the dispute. The decision of the arbitrators upon any question subject to arbitration under this contract, shall be a condition precedent to any right of legal action. The award of the arbitrators must be in writing and if in writing shall not be subject to objection, on account of the procedure or form of the award.

The contract for the work in Allentown contained the same clause except that it provided that if the parties did not choose the arbitrators, they would be chosen by the American Arbitration Association.

The initial question for our determination is whether the controversies presently in litigation between TTudik-Eoss and H. E. Shapiro are subject to arbitration under the contracts. Hudik-Eoss asserts that because the work has been performed and the disputes in question did not arise until long after the work was completed, they cannot bo considered as involving questions that “may arise under this contract and in the performance of the work.” It is their position the arbitration clause ivas intended to apply only to contract disputes which might arise during the work; that after completion of the work, the parties were to resort to the courts.

While arbitration agreements are to bo “construed according to the usual methods of contract interpretation whereby a mutual, reasonable and meaningful design is sought from the language used by the parties and maximum effect is given to their intentions,” Keppler v. Terhune, 88 N. J. Super. 455, 462 (App. Div. 1965), they “should be read liberally to find arbitrability if reasonably possible,” Moreira Constr. Co., Inc. v. Wayne Tp., 98 N. J. Super. 570, 576 (App. Div. 1968), certif. den. 51 N. J. 467 (1968).

In our view Hndik-Eoss5 construction of the contract provision is hyperteehnical. If they were correct in their interpretation, any dispute between the parties would have had to have been resolved by immediate arbitration while the work was still in progress. A more reasonable interpretation would make subject to the arbitration clause any question relating to the contract and involving the manner in which the work was performed. This interpretation is strengthened by the strong public policy in favor of arbitration reflected in N. J. S. A. 2A :24-l et seq. Cf. Public Utility Workers v. Public Service Co., 35 N. J. Super. 414 (App. Div. 1955), certif. den. 19 N. J. 333 (1955); United Steelworkers v. Warrior & G. Nav. Co., 363 U. S. 574, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960).

Hudik-Ross further contends that even if the matters in dispute are arbitrable, H. R. Shapiro waived its right to arbitrate by reason of its delay in demanding arbitration. They assert Shapiro failed to make a timely demand for arbitration, as required by the contracts, prior to institution of legal action by plaintiffs, and additionally that there was no effective or timely demand in writing for arbitration.

In support of this contention Hudik-Ross states that work on two of the contracts was completed by October 9, 1972 at the latest, and on the third contract, by May 15, 1973. Suits for payment were instituted by them in August 1973. Thereafter, in October 1973 H. R. Shapiro moved for a stay pending arbitration. An order of November 30, 1973 denied such motion because a formal demand for arbitration had not been made. A formal, written demand for arbitration was made in December 1973. In February 1974, after reargument of the motion, an order issued staying the suits pending arbitration. H. R. Shapiro thereupon submitted an arbitrator but Hudik-Ross withheld doing so pending disposition of its motion to dissolve the order to stay and to arbitrate.

Hudik-Ross additionally argues H. R. ^hapiro waived its right to arbitration by resorting to the cburts through the medium of the suit filed in its behalf by its insurance car-,,, rier against Hudik-Ross. However, it is noted, counsel for the carrier has agreed to take a voluntary dismissal of the action or go to arbitration.

It has been stated that an arbitration clause in a contract will be enforced according to its tenor, and the terms thereof will not be “rewritten” by the court for the benefit or advantage of either party. Moreira, supra 98 N. J. Super. at 576. An arbitration agreement may be waived, and upon waiver judicial remedies will be available. La Stella v. Garcia, 128 N. J. Super. 173, 177 (App. Div. 1974). However, our review of the record in the light of these precepts satisfies us that there was no such “delay” on the part of Shapiro as would be tantamount to a waiver of its contractual right to demand arbitration. Nor does it appear that H. R. Shapiro has used arbitration as “a means of furthering and extending the delay.” Cf. Poray v. Royal Globe, Ins. Co., 90 N. J. Super. 454 (Law Div. 1966).

We are mindful that participation in prolonged litigation, without a demand for arbitration or an assertion of a right to arbitrate, may operate as a waiver. Cf. McKeeby v. Arthur, 7 N. J. 174, 182 (1951). Also generally, Pyramid Electric Co. v. Staklinski, 61 N. J. Super. 278 (App. Div. 1960), certif. den. 33 N. J. 117 (1960); Poray, supra. On the other hand, the mere institution of legal proceedings or the assertion of an affirmative defense by way of an answer, without ostensible prejudice to the other party, do not, in our opinion, constitute a waiver of a right to proceed with arbitration in accordance with the terms of an arbitration agreement. Kincar Franchise Inc. v. Estate of Carey, 118 N. J. Super. 463, 468 (Law Div. 1972).

Then, too, although there was no written demand for arbitration until four months after the institution of plaintiff’s lawsuits, the arbitration clausa was set forth in an affirmative separate defense in the answers filed by H. R. Shapiro. Plaintiffs were thereby apprised of defendants’ position that the matters in dispute should be arbitrated.

Lastly, Hudik-Ross contends the institution of the four other actions containing issues closely related to the initial three suits warrants the consolidation land litigation of all seven actions; that to do otherwise would result in great inconvenience and might lead to inconsistent results and the prejudicial application of the doctrine of collateral estoppel.

We are, of course, cognizant of the salutary objectives of our consolidation procedures, but a contractual right to arbitration cannot be abridged in favor of consolidation. Wm. C. Blanchard Co. v. Beach Concrete Co., 121 N. J. Super. 418 (Ch. Div. 1972); Pyramid Electric Co., supra 61 N. J. Super. at 282.

Likewise, we may not be dissuaded from finding the arbitration clause enforceable because issues settled thereby might conceivably have an effect upon pending law suits. Collateral estoppel with respect to particular controversies or issues cannot be assessed at this juncture of the proceedings since the possibility of such estoppel depends on many factors, including “mutuality of estoppel.” Cf. Continental Can Co. v. Hudson Foam Latex Prod., 129 N. J. Super. 426 (App. Div. 1974).

The order of the Law Division entered on May 31, 1974 is reversed and the matter is remanded to the Law Division with a direction to reinstate the orders of February 6, 1974 staying the three contract actions between Hudik-Ross and H. R. Shapiro and requiring that the matters in dispute between them be submitted to arbitration.


author: Bischoff, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. WAYNE K. GODFREY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted October 21, 1974 —
    Decided November 14, 1974.

      Before Judges Leonard, Seidmant and Bischoff.

      Mr. Thomas J. Shusted, Camden County Prosecutor, attorney for appellant (Mr. Arnold Golden, Assistant Prosecutor, of counsel).

      Mr. Stanley C. Van Ness, Public Defender, attorney for respondent (Mr. Leonard S. Baker, Assistant Deputy Public Defender, of counsel).
   The opinion of the Court was delivered by

Bischoff, J. A. D.

The State appeals, pursuant to leave granted, from an order suppressing defendant’s confession. The suppression motion was made on the day of trial but before jury selection. After the motion was granted, further proceedings in the trial, court were stayed by order of this court pending our review of that order.

Defendant is charged by indictment with atrocious assault and battery, assault with a dangerous weapon, assault with intent to kill and unlawful possession of a shotgun. The proofs on the motion to suppress show the following facts.

On January 19, 1973 William Erazier was shot while sitting in a bar in Camden. Detective Upshaw learned that the night before the shooting eight or nine persons had been involved in an argument with the victim and that defendant was one of them. In the course of his investigation he sought ■to interview all of them. Defendant learned through his girlfriend that the police wanted him to come to the police station, and he voluntarily did so. Upon his arrival Upshaw discussed the shooting with defendant and then asked him to take a polygraph test. Defendant did not understand the mature or purpose of such a test and it was explained to him. He agreed to take the test and Upshaw took defendant to a different, location in the building where Detective Balzano was to administer the test.

Using the form employed to obtain a written consent to the administration of the polygraph test as a guide, Balzano informed defendant of his rights concerning the polygraph test. When' it became apparent to Balzano -that defendant was unable to read the form, a clerk was called in to explain to defendant his rights and' the form. Defendant initialed the form opposite each warning and signed it. The rights explained to defendant by Balzano and the clerk did not include the warning that anything defendant said could be used against him. Nor is that warning included in the recitation of defendant’s rights contained on the printed form which was signed by defendant. Defendant was informed he had a right to remain silent, to have a lawyer before submitting to the test, to have a lawyer appointed by the court if he could not afford one and that he could stop answering questions anytime he wanted to do so. This form also authorized disclosure of the results of the polygraph test to all interested persons even though the results may be unfavorable to defendant, and included therein was a release by defendant of the City of Camden and its employees and officers: from liability for disclosures.

The test took approximately two hours to administer, and after its completion Balzano left the room to study the results. He returned to the room 'and informed defendant that the test results indicated that he had lied during the administration of the polygraph test; that he was present at the time of the shooting and that he was the one who did the shooting. Defendant continued to deny his presence at the scene of the fight the night before Erazier was shot and denied he had killed Erazier. Balzano continued to confront defendant with the test results and defendant finally confessed to the shooting. Balzano immediately summoned Up-shaw who was given the test results and told that defendant had confessed. Upshaw took defendant to the Detective Bureau where he was given full Miranda warnings. He was interrogated and a written confession was obtained.

Admitted into evidence at the hearing was a report from a psychiatrist finding defendant mentally retarded, unable to read a newspaper and unable to understand the written waiver from which he had signed.

The trial judge found:

1) the warnings given prior to administration of the polygraph test were adequate for that purpose;

2) once the defendant knew he had failed the polygraph test he was in custody and Miranda warnings were necessary;

3) the warnings given prior to administration of the polygraph test did not satisfy the requirements of Miranda;

4) the oral confessions were not voluntary but the result of interrogation and should be suppressed;

5) the written confession taken immediately thereafter, even though immediately preceded by full Miranda warnings, was tainted by the prior inadmissible, involuntary, oral confession and, 'as such, was also inadmissible;

6) defendant was of such limited mentality and understanding that considering the totality of the circumstances the confessions were the result of overbearing of the defendant’s will by the police action.

The order of suppression followed.

It is not clear in the record whether the State sought to admit into evidence the written confession or both the oral and written confessions. Nor is it clear whether the motion to suppress was directed to one or both. The order appealed from simply orders “that the confession obtained from defendant shall be suppressed.” However, our determination makes resolution of that issue unnecessary.

On this appeal the State contends:

1) the oral confessions of defendant were not the result of custodial interrogation 'as defendant was not in custody and was free to leave the police station;

2) the oral confessions were volunteered and spontaneous, not the result of interrogation;

3) the warnings given to defendant prior to his oral confession were adequate;

4) both defendant’s oral and his written confessions were voluntary and admissible.

Before proceeding to a discussion of the issues, a statement of basic principles is appropriate. At a Miranda voir dire the State must prove the confessions were voluntary and knowingly made beyond a reasonable doubt. State v. Yough, 49 N. J. 587, 600-601 (1967); State v. Franklin, 52 N. J. 386, 405 (1968). The findings of a trial judge, will not be disturbed if they could reasonably have been reached on sufficient credible evidence in the record, State v. Johnson, 42 N. J. 146, 162 (1964), though we will not hesitate to make new fact findings on the record in a situation where the findings are not exclusively factual but interwined with legal conclusions drawn from the Miranda case and its progeny. State v. Yough, supra, 49 N. J. at 596.

I. CUSTODY

The State contends that the warnings required by Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), are not necessary when, as here, a defendant voluntarily goes to a police station upon request and gives an inculpatory statement. It argues that defendant here voluntarily appeared at the police station, was not placed under arrest, was free to leave before taking the polygraph test and free to leave after the conclusion of it.

The protection afforded by Miranda cannot be so narrowly construed. Miranda warnings are required whenever custodial interrogation occurs.

* * * By custodial interrogation, [is meant] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Id. at 444, 86 S. Ct. at 1612].

Thus, the initial inquiry is, “Was defendant in custody or was he deprived of his freedom of action in a significant way ?”

It is clear that custody in the Miranda sense does not necessitate a formal arrest, nor does it require physical restraint in a police station, nor the application of handcuffs, and may occur in a suspect’s home or a public place other than a police station. Orozco v. Texas, 394 U. S. 324, 326, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (1969); Miranda v. Arizona, supra; Rosario v. People of Territory of Guam, 391 F. 2d 869, 872 (9 Cir. 1968); cf. State v. Graves, 60 N. J. 441 (1972); State v. Seefeldt, 51 N. J. 472 (1968).

While many New Jersey cases exemplify situations where custody has not occurred, State v. Graves, supra; State v. Seefeldt, supra; State v. Zucconi, 50 N. J. 361 (1967); State v. Boscia, 93 N. J. Super. 586 (App. Div. 1967); State v. Williams, 97 N. J. Super. 573, 599 (Cty. Ct. 1967), aff’d 106 N. J. Super. 371 (App. Div.), certif. den. 55 N. J. 76 (1969), cert. den. 397 U. S. 1069, 90 S. Ct. 1510, 25 L. Ed. 2d 691 (1970), it is not clear when circumstances short of formal arrest will meet the requirements of the terms “custody” or “deprivation of freedom of action in a significant way.” United States ex rel. DeRosa v. Superior Court of N. J., 379 F. Supp. 957, 960 (D. N. J. 1974).

One court, in commenting on this Miranda phase, said:

* * * in the absence of actual arrest, something must he said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so. [United States v. Hall, 421 F. 2d 540, 545 (2 Cir. 1969), cert. den. 397 U. S. 990, 90 S. Ct. 1123, 25 L. Ed. 2d 398 (1970)].

Various tests have been formulated by different jurisdictions in an effort to determine when existing circumstances require the administration of Miranda warnings prior to interrogation.

IVe are satisfied that no precise definition can be formulated which would apply in advance to all cases and prescribe the outer limits of the protection afforded. The problem must be dealt with through a casc-by-case approach in which the totality of the circumstances must be examined.

The Supreme Court in the Miranda opinion referred to many of the methods of police investigation which impelled them to formulate the necessary pre-interrogation warnings. Some of them are present here, that is: the inherent pressures of the interrogation atmosphere; defendant’s interrogation occurring in a room cut off from the outside world; a police-dominated atmosphere. These facts, coupled with defendant’s knowledge of the negative results of his polygraph test, are significant when considering whether defendant “was taken into custody or otherwise deprived of his freedom of action in any significant way” so as to require the administration of the four-fold Miranda warning.

It cannot be seriously argued that after the police had administered a polygraph test to defendant, and as a result thereof were in possession of information indicating to them that (1) defendant had lied to them, (2) defendant was present at the shooting and (3) defendant was actually the man who shot Frazier, they would have permitted him to walk from the inner office where he had been placed by Up-shaw and out of the police station. Statements by the detectives to that effect are incredible and not worthy of belief.

We accordingly agree with the finding of the trial Judge that at the conclusion of the polygraph test, when the detectives learned defendant had lied about his involvement in the affair, he was from that point forward deprived of his freedom of action in a significant degree and was entitled to full Miranda warnings before any statements made by him thereafter could be considered voluntary.

II. WAS THE DEFENDANT SUBJECTED TO INTERROGATION?

The State contends that even if defendant was in custody the oral confession was spontaneous and voluntary, not the result of interrogation. This argument is predicated on the premise that Balzano’s statement to defendant, “You’re a liar. You were there. You did it. You did it,” was not interrogation, that it amounted simply to confronting the witness with the evidence against him making his subsequent confession voluntary and, as such, admissible.

Volunteered statements are not affected by Miranda. The fundamental import of the privilege against self-incrimination while an individual is in custody is not whether he is to be allowed the benefit of warnings or counsel but whether he can be interrogated without them. Miranda v. Arizona, supra, 384 U. S. at 478, 86 S. Ct. 1602. “Interrogation” occurs when the subject is placed under a compulsion to speak. Id. at 461, 86 S. Ct. 1602. It is implicit in Miranda that interrogation in this context need not be of the question and answer type. Commonwealth v. Mercier, 451 Pa. 211, 302 A. 2d 337, 339-340 (Pa. 1973). Cf. State v. Barnes, 54 N. J. 1 (1969), cert. den. 396 U. S. 1029, 90 S. Ct. 580, 24 L. Ed. 2d 525 (1970); State v. Gallicchio, 51 N. J. 313, cert. den. 393 U. S. 912, 89 S. Ct. 233, 21 L. Ed. 2d 198 (1968); State v. Vogel, 45 N. J. 400 (1965); State v. Johnson, 106 N. J. Super. 295, dissenting opinion at 299 (App. Div. 1969), rev’d and dissenting opinion adopted, 55 N. J. 331 (1970).

The exchange in question between defendant and Balzano was initiated by the detective. Defendant’s response cannot be termed a spontaneous utterance. The exchange, while not of the question and answer type, was certainly more than idle conversation. Coming immediately after the disclosure of a polygraph test result, the accusation that, “You’re a liar. You were there. You did it. You did it,” was clearly made in an attempt to obtain a confession. What was said by the police officer under the circumstances here present was equivalent to interrogation within the intent and meaning of Miranda, supra, requiring full and complete warnings.

III. ADEQUACY OF THE WARNINGS

Having concluded that defendant was subjected to custodial interrogation at the time he made his oral confession, we pass to a consideration of the adequacy of the warnings given. Prior to the administration of the polygraph examination there was read to defendant and explained to him the warnings contained on the form used to obtain his consent to the administration of the polygraph test. This form did not contain the warning that anything said by him could be used against him. It is clear that such a warning would not be necessary prior to the proper administration of the polygraph test. Our cases uniformly hold that the results of such a test, whether favorable or unfavorable, are inadmissible. An exception to this exclusionary rule is recognized where the State and a defendant enter into a stipulation to take the polygraph test and have its results admitted into evidence. Such a stipulation must be “clear, unequivocal and complete.” State v. McDavitt, 62 N. J. 36, 46 (1972); State v. Clark, 128 N. J. Super. 120 (App. Div. 1974).

The State recognizes the necessity of warning the defendant that anything he says could be used against him but contends that the warnings given to Mm were adequate. The State argues that this warning can be clearly inferred from the last paragraph of the form giving consent to the polygraph test. That paragraph reads:

I hereby authorize the Camden Police to disclose both orally and in writing, the results and opinions of the polygraph examination to all interested persons. I further understand that such results and opinions may prove unfavorable to me . . .

Substance is to be considered rather than form in passing upon the adequacy of the required Miranda warnings. The Miranda case and those which have followed it do not require that any specific language be used to inform an accused of his rights. Miranda v. Arizona, supra, 384 U. S. at 467, 86 S. Ct. 1602. State v. Melvin, 65 N. J. 1, 14 (1974). However, the Supreme Court in State v. Melvin, supra, did voice strong disapproval of warnings which deviate from the words of the Miranda opinion. Id., 65 N. J. at 14.

It is our task to determine if the warnings given herein afforded defendant the protection against waiving his constitutional immunity against self-incrimination to which he was entitled. It is clear to us that they did not. The portion of the consent form on which the State rests its contention falls far short of informing defendant in clear, unequivocal language that anytMng he said could be used against him.

There have been cases where confessions made following the administration of a polygraph test have been held admissible. However, the nature of the warning given prior to the administration of the test in those cases makes their holding inapposite. In the Melvin case, supra, defendant volunteered to take a polygraph test. Prior to its administration the rights contained on the consent form were explained to him. But, in addition thereto, defendant was orally advised at the same time that what he said could be used for or against him. The court there held that post-polygraph test admissions were admissible. See also, State v. Magee, 52 N. J. 352, 374 (1968), cert. den. 393 U. S. 1097, 89 S. Ct. 891, 21 L. Ed. 2d 789 (1969); United States v. Delay, 500 F. 2d 1360, 1365 (8 Cir. 1974).

We, therefore, conclude that defendant was subjected to custodial interrogation at the time he made his oral confession and that he had not been given adequate warnings prior thereto and such admissions are accordingly inadmissible and were properly suppressed.

We likewise hold that while the subsequent written confession was preceded by full and adequate warnings, the circumstances were such that it was tainted by the prior inadmissible oral confession. The short period of time between the two confessions, the continuance of the police atmosphere, the same interrogation personnel — together with the psychological factor of having once “let the eat out of the bag” — United States v. Bayer, 331 U. S. 532, 540, 67 S. Ct. 1394, 1398, 91 L. Ed. 1654 (1946); State v. Melvin, supra, 65 N. J. at 13, all combined to taint the written confession with the constitutional infirmity of the oral confession.

This conclusion makes it unnecessary for us to consider the finding of the trial judge that defendant was of such low mentality and understanding that considering the totality of the circumstances the confessions were the result of overbearing of defendant’s will by police action and we express no opinion thereon.

Accordingly, the order of suppression of both the oral and written confessions is affirmed and the stay against further proceedings is vacated.

       Some of the tests are:
      (1) the “objective reasonable man test” which holds that custody exists if the action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably have led him to believe he could not leave freely. United States v. Bekowies, 432 F. 2d S (9 Cir. 1970); People v. Arnold, 66 Cal. 2d 438, 58 Cal. Rptr. 115, 426 P. 2d 515 (Cal. 1967) ;
      (2) a subjective test in which custody occurs if a suspect is led to believe as a reasonable person that he is being deprived or restricted of his freedom of action or movement under pressure of official authority. Myers v. State, 3 Md. App. 534, 240 A. 2d 288 (Md. Ct. Spec. App. 1968). Thus, State v. Graves, supra, by way of dictum, notes that where a “welfare official so behaves as to lead the individual to believe, as a reasonable person, that he will be restrained if he attempts to leave, it may well be that Miranda should apply.” See also, Commonwealth v. O’Shea, 456 Pa. 288, 318 A. 2d 713 (Pa. Sup. Ct. 1974); Commonwealth v. Marabel, 445 Pa. 435, 283 A. 2d 285 (Pa. Sup. Ct. 1971); People v. P., 21 N. Y. 2d 1, 286 N. Y. S. 2d 225, 233 N. E. 2d 255 (N. Y. Ct. App. 1967). As another court stated it, the test is not what a defendant thought but rather “what a reasonable man, innocent of any crime, would have thought, had he been in defendant’s position.’’ People v. Yukl, 25 N. Y. 2d 585, 589, 307 N. Y. S. 2d 857, 860, 256 N. E. 2d 172, 174 (N. Y. Ct. App. 1969), cert. den. 400 U. S. 851, 91 S. Ct. 78, 27 L. Ed. 2d 89 (1970);
      (3) in other jurisdictions the intent of the officer and the belief of the person interrogated are both rejected in favor of an objective standard which considers the officer’s statements and acts and the surrounding circumstances gauged by a reasonable man test. Lowe v. United States, 407 F. 2d 1391, 1397 (9 Cir. 1969) ;
      (4) still other jurisdictions require a showing by at least some objective evidence that defendant was deprived of freedom of action in some way. Fisher v. Scafati, 439 F. 2d 307, 310 (1 Cir.), cert. den. 403 U. S. 939, 91 S. Ct. 2256, 29 L. Ed. 2d 719 (1971).

      This is not an exact quote from the testimony but the paraphrasing used by the State in its brief, which is fully supported by the testimony.


author: Dreier, J. D. C.,

text:
    MARGARET I. BRANDT, GENERAL ADMINISTRATRIX, ETC., ET AL., PLAINTIFF, v. CHARLES J. GRUBIN, M.D., ET ALS., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided November 15, 1974.

      Mr. William O. Barnes, Jr. argued the motion for plaintiff.
    , Mr. George F. Murphy, Jr. argued the motion for defendant (Messrs. McDonough, Murray & Korn, attorneys).
   Dreier, J. D. C.,

Temporarily Assigned. In this medical malpractice action defendant Dr. Charles J. Grubin has moved for summary judgment. This case raises an issue of first impression in New Jersey concerning the alleged abanr donment by 'a physician who had referred a patient for specialized services.

Both R. -4:46-2 and the cases interpreting this rule and its predecessor R. 4:58-3 dictate that this court must find that there is an absence of dispute as to material facts, and must give to plaintiff all favorable inferences reasonably to be drawn from the expert’s report, depositions and interrogatories. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67, 74-76 (1954). This court, therefore, has searched the depositions and other documents supporting plaintiff’s position to see if there is a palpably genuine issue -as to any material fact. Erom that point of departure, the following facts appear.

Defendant Dr. Grubin is a licensed and practicing physician of the State of New Jersey engaged in the general practice of medicine. He is alleged to have been the physician of plaintiff, the decedent’s mother, but her depositions show his earlier services had been limited to signing one or two death certificates for the family. On October 25, 1971, and for some time prior thereto, decedent, George E. Brandt, Jr., then 21 years of age, was alleged to have experienced periods of anxiety, loneliness and insomnia., as described by Dr. Grnbin. On this date (and perhaps one other occasion) decedent consulted Dr. Grnbin for examination, care and treatment of these conditions.

In answers to interrogatories Dr. Grnbin stated:

The patient was seen on 10/25/71. He came to defendant’s office at 123 Hillside Avenue, Hillside, New Jersey. He showed symptoms of anxiety, loneliness and insomnia. He presented a history of having LSK [sic] but no other drugs. He gave an impression of schizophrenia and was referred to Elizabeth Mental Hygiene Clinic or the Mount Carmel Guild Menial Hygiene Clinic in Cranford. He was given a prescription of thorazine 10 mmgs. #15 one or two three times daily no refills. * *

At his deposition Dr. Grnbin characterized the decedent’s mental condition on October 25, 1971 as “an anxiety syndrome.” He admitted that he was not a psychiatrist, hut nevertheless prescribed thorazine to be taken by decedent “to take the edge off his anxiety.” He admitted that the principal contraindication for the nse or prescription of thorazine is depression, and the second most important contraindication is liver disease. With respect to depression as a contraindication, he noted that “the literature says in the presence of depression thorazine should be used very cautiously and that’s all I have to see and T don’t touch it.

After this one visit, and perhaps an additional contact a few days later (see Mrs. Freda’s deposition quoted infra), decedent did not return to Dr. Grubin. A month later, on November 21, 1971, decedent was treated at the Elizabeth General Hospital Emergency Doom and was again advised to go to the Union County Psychiatric Clinic for further treatment. Two days later (on November 23, 1971) be was again admitted into the hospital’s medical ward, and then placed in the psychiatric ward just prior to his suicide on November 26, 1971.

On the subject of Dr. Grubin’s later alleged unavailability, decedent’s sister, Mrs. Frances Freda, stated in her depositions that 'the family attempted repeatedly to contact Dr. Grubin the week prior to decedent’s confinement at Elizabeth General Hospital on November S3, 1971. She testified that "for the whole weekend we tried to reach Dr. Grubin and we just got a series of runarounds,” and further:

My mother’s neighbor was there also. She even attempted to get in touch with Dr. Grubin. We called the priest to come. He said he needs a doctor. There was nothing he could do. I mean, it just seemed that Dr. Grubin was evasive.
At one point my mother called him and spoke with the nurse again. We explained to him all these times it was an emergency, that we had to speak to him immediately. We told him who we were, who we were calling for, and this last time when my mother called she asked him has Dr. Grubin returned yet and the nurse said, “Returned? He’s always been here. He hasn’t gone anyplace.” It was as if, you know, we are lying, that we are calling him and we never really talked to any of the answering services. We waited and Dr. Grubin wasn’t there from what we gathered from the answering service, that’s as far as I can remember.

Plaintiff has submitted an expert report from Dr. Lewis J. Vorhaus II, of New York City. This report is over seven single-spaced typewritten pages in length, less than a page of which concerns the actions of Dr. Grubin. Although the basis for Dr. Grubin’s alleged liability is set forth in one paragraph, in reality three separate claims are made. Set apart, these are:

With respect to Dr. Grubin I think that he was also guilty of departing from accepted standards of practice in not adequately assessing the seriousness of the situation when he saw the patient in his office. It was not enough that he merely suggest to the patient that he get psychiatric help. He obviously was not competent to make judgments for himself or to follow directions given by a physician. Responsibility for this should have been placed in the hands of the family and they should have been notified about the seriousness of his problem.
The treatment that was given was totally inadequate. If there was any question in Dr. Grubin’s mind about the severity of the psychiatric problem he should have seen to it that the patient got psychiatric consultation and evaluation before making any recommendations whatsoever. Simply to give the patient a small dose of thorazine and tell the patient to get psychiatric help was clearly inadequate for the needs of the situation.
With respect to Ms further conduct there apparently is a difference of opinion between the mother of the decedent and the doctor. She Claims she tried to reach Mm and he did not respond to her calls. He claims he got no calls. This would be a matter obviously for the jury to decide. I can only say that if it can be demonstatted that he did not respond to calls for help from the patient’s mother and failed to call her back when she sought his help subsequent to his first examination of the boy then this too would be a departure from accepted standards of practice in that he failed to meet Ms obligations toward the patient or failed to be adequately responsive to the needs in this case.

In short, the three claims of malpractice are Dr. Grubin’s (1) inadequate assessment of the “seriousness of the situation,” (2) “inadequate” treatment and (3) abandonment of the patient. The adverse physiological consequences of the dose of thorazine and its causal connection with the suicide are nowhere substantiated by competent medical proof, and thus will not be considered with respect to this motion, since the same would be excluded at the trial (unless the expert’s report had been supplemented). After the first argument of this motion counsel wore given an opportunity to supply the court with a,n expert’s report prior to the reargument on November 1, 1974, and the above-quoted extracts from plaintiff’s expert were the only references to the actions of Dr. Grubin. No affidavits were submitted by either party.

With respect to plaintiff’s claim that Dr. Grubin did not adequately assess the situation and should have informed the family of the need for additional treatment and the seriousness of the problem, the deposition of Mrs. Freda is revealing. Where Dr. Grubin has alleged in his interrogatories that he referred the decedent to a competent mental hygiene clinic, it appears that the reference was by means of a written direction which decedent was instructed to bring home to his family, and which they in fact received. The deposition, states:

Q. You mentioned earlier when you were trying to convince your brother to seek psychiatric help that you did this on Dr. Grubin’s advice.
A. Yes. That was only from the form that he sent to my brother. He wrote on it that my brother needed psychiatric help. He wrote exactly what was wrong, that he was religious orientation and schizophrenia, something about schizophrenia, and something on the bottom he wrote, “needs psychiatric treatment.” This is when Dr. Grubin had given this to my brother several days after he saw him. He told him that he would examine, you know, the case to find out just what should be done, and he told my brother to come back and my brother did go back and brought this form home for us.
Q. Do you still have that form?
A. No. That was to be brought to the Mt. Carmel Guild, which my brother did.

The mother, however, gave a different account. She stated:

“[Dr. Grubin] just told me what my boy needed and told him to go to Mount Carmel Guild.”
Q. In other words, your son had some writing on a slip of paper, is that correct?
A. Yes, written down.
Q. Do you know what George did with the piece of paper?
A. He went to Mt. Carmel Guild with it.

Later she also stated with respect to the Mt. Carmel Guild treatment: “He did went there a few times.” [sic]

Thus we see that over a month before decedent’s suicide Dr. Grubin had recommended psychiatric care not only directly to decedent, but in the note brought home to decedent’s family; also, decedent entered into the recommended relationship with the mental health clinic. It was not until a month later that decedent went to the emergency room at Elizabeth General Hospital for treatment, !and was advised to go to the Union County Psychiatric Clinic for further treatment. Two days after that decedent was admitted to the hospital, placed in a medical ward initially, and then in the psychiatric ward just prior to his death. At these latter dates there was no contact with Dr. Grubin. The treatment by the doctor had terminated with respect to this illness when Dr. Grubin informed the patient and family that the decedent needed psychiatric help and referred decedent to a psychiatric clinic. There is- no legal authority to support Dr. Vorhaus’ opinion that there is a duty (especially in light of the confidential physician-patient relationship) of a physician to contact an adult patient’s family with respect to treatment. But here responsibility was in effect placed in the hands of decedent and his family, who were specifically notified of the seriousness of the problem by the note on which was written (according to decedent’s sister) “exactly what was wrong,” and when the mother was told (according to her) “what my boy needed.”

In Parker v. Goldstein, 78 N. J. Super. 472, 479 (App. Div. 1963), certif. den. 40 N. J. 225 (1963), the court stated:

In an action for negligence or malpractice against a physician, the plaintiff ordinarily is required to establish that defendant’s treatment or care fell below the standard established and recognized by the medical profession for the indicated condition of the patient, and the standard must be proven by expert medical testimony, [citation omitted] * * *.

There, a hypothetical question posed to an expert postulated an incorrect delivery date of the pregnant decedent. The court commented (at 480) : “As will shortly appear, this misleading assumption directly led to the opinion of Dr. Grauba.rd that the defendant deviated from the standard pertaining to [the] claim * * *.” The court therefore did not consider the expert’s report as providing a basis for withstanding the argument that plaintiff’s claims were unsupported. The seriousness of the situation had been assessed by Dr. Grubin, and procedure similar to that suggested by Dr. Vorhaus was actually followed.

With respect to the treatment that was given, the inadequacy noted in Dr. Vorhaus’ report was that Dr. Grubin should have seen that the patient obtained a psychiatric consultation and evaluation before making recommendations and administering the small dose of thorazine. But, applying the principles described above in Parker, the facts in our case show that the patient was sent for the very help noted by Dr. Vorhaus —■ a psychiatric consultation. To require a physician to obtain a consultation from the same source to which he is about to refer his patient would be meaningless. A general practitioner, when faced with a specialized problem, should not be faulted because he referred his patient to a specialist, or in this case a clinic of specialists, in a situation where the patient presumably could not afford private psychiatric help. The duty of the initial doctor ends upon the patient’s undergoing the subsequent treatment. (See the following discussion concerning the abandonment issue.)

As noted earlier, no causal connection has been supported by an expert’s opinion with respect to the administration of thorazine. Even if Dr. Grubin had been negligent in failing to diagnose depression, and therefore should not have administered or prescribed thorazine, there is no showing that this drug was a factor substantially contributing to the suicide. When this motion was initially argued this court was concerned with whether there could be a causal connection between the administration of thorazine and decedent’s death. Consequently, plaintiff’s counsel was then given the opportunity to supplement his proof by submitting an expert’s report. He was specifically directed to the problem of connecting the thorazine to the death. Since no such connection was supplied by Dr. Vorhaus’ report, this court cannot supply this missing medical link in plaintiff’s chain of proof. Parker v. Goldstein, supra, 78 N. J. Super. at 480.

It is the third allegation that presents the greatest problem in assessing this case on a motion for summary judgment. The first two points had involved factual references by the expert which were not borne out by the statements of plaintiff’s own witnesses in depositions and interrogatories. This third basis, however, involves a sharp conflict as to the facts and an application of legal principles. Of course, this court will accept plaintiff’s version of the facts in deciding this motion and assume that Dr. Grubin was repeatedly called for assistance during the days immediately preceding decedent’s hospitalization.

The question of proximate cause, given the alleged subsequent negligence of the hospital and supervising doctors, should not be passed upon on this motion, for summary judgment. This ought to wait a jury’s determination, but only if there were a legal duty of the doctor to give advice to the family and perhaps see that decedent was hospitalized sooner.

The question of abandonment of a patient was considered in detail in Clark v. Wichman, 72 N. J. Super., 486, 491-492 (App. Div. 1962). In that case plaintiff had been injured in an automobile accident and had been taken to a hospital for treatment of a fractured femur. She developed a traumatic psychosis and was committed by court order to a state mental hospital for approximately 2)4 weeks, during which period she was not under the care of her orthopedic surgeon. She argued that the surgeon abandoned her when she was committed to the mental hospital, but the court held that this argument was without merit, particularly when the transfer had been pursuant to an order of the court.

* * *• This is not a case of unwarranted forsaking of a patient without notice or without providing a competent substitute physician [citing- authorities]. Where a physician under appropriate circumstances ceases to attend a patient, his responsibility ordinarily ceases without any formality [citing cases]. An abandonment consists of “a failure by the physician to continue to provide service to the patient when it is still needed in a case for which the physician has assumed responsibility and from which he has not been properly relieved.” [citing authorities]. [at 491-492; emphasis in original]

The eases bearing on this point are collected in an Annotation, “Liability of Physician Who Abandons Case,” 57 A. L. R. 2d 432, 439-443. The general statement of the rule concerning a physician’s withdrawal from the ease is expressed as follows:

It is the settled rule that one who engages a physician to treat his case impliedly engages him to attend throughout that illness, or until his services are dispensed with. In other words, the relation of physician and patient, once initiated, continues until it is ended by the consent of the parties or revoked by the dismissal of the physician, or until the latter’s services are no longer needed. However, the relationship of physician and patient may also be terminated by the physician’s withdrawal from the case. It is icell recognized that the physician has a right to withdraw from the case, but only after giving the patient reasonable notice so as to enable him to secure other medical attendance, and such a withdrawal does not constitute abandonment, [at 439, emphasis supplied]

See also, Ricks v. Budge, 91 Utah 307, 64 P. 2d 208 (Sup. Ct. 1937); Mucci v. Houghton, 89 Iowa 608, 57 N.W. 305 (Sup. Ct. 1894); Gray v. Davidson, 15 Wash. 2d 257, 130 P. 2d 341, 136 P. 2d 187 (Sup. Ct. 1942), Noren v. American School of Osteopathy, 223 Mo. App. 278, 2 S.W. 2d 215 (App. Ct. 1928), cert. quashed 322 Mo. 991, 18 S.W. 2d 487 (Sup. Ct. 1929); Lawson v. Conaway, 37 W. Va. 159, 16 S.E. 564 (Sup. Ct. 1892); Lathrope v. Flood, 6 Cal. Unrep. 637, 63 P. 1007 (Sup. Ct. 1901) rev’d on other grounds 135 Cal. 458, 67 P. 683 (Sup. Ct. 1902). Cf. Sibert v. Boger, 260 S.W. 2d 569, 571-572 (Mo. Sup. Ct. 1953). In Sibert negligence and abandonment of plaintiff were alleged where a doctor had been unable successfully to treat plaintiff and had told her “he could do nothing further for her and suggested that she go to someone else.” The Supreme Court of Missouri found that the physician had withdrawn after reasonable notice. The court stated:

It is true respondent told appellant on February 16, 1944, to go to another physician, but the evidence shows that she was already consulting another physician in the same town during the time she was under the care of respondent. She, therefore, was not abandoned without medical care. Moreover, in a city as large as Sedalia, medical service could have been obtained any day. At least, there is no evidence to the contrary, [at 572]

The editors of the Annotation note further:

It is a corollary to the physician’s right to withdraw from a case upon giving proper notice that he is under a duty to continue his attendance upon the patient until all the conditions for his rightful withdrawal are complied with, and that a breach of this duty may render him liable.
Thus it may be stated as a general rule that a physician who is engaged to attend a patient is liable for any damages caused by his abandoning the patient without due notice to his patient, and without affording the latter an opportunity to procure the attendance of another doctor. Expressed differently, abandonment of a case by a physician without sufficient notice or adequate excuse is a dereliction of duty, and if injury results therefrom, the physician may be held liable in damages. * * * 157 A. L. R. 2d at 440]

This principle is merely an expansion of the brief statement quoted earlier in Clark v. Wichman (72 N. J. Super. at 492), and is supported in the Annotation and Supplements by eases too numerous to cite.

The foregoing statements of the rule pertain to a physician who has undertaken the general treatment of a patient without an agreement limiting his services. A modified rule pertains, however, to a physician who has been employed only for a specific occasion or service, and such physician “is under no duty to continue his visits or treatment thereafter, and is consequently not liable for abandonment if he ceases treatment of his patient after performance of the specific service.” 57 A.L.R. 2d at 460. The Annotation cites two cases where a physician’s services were limited to one call only. “Under such an agreement the physician is not liable for abandonment if he fails or refuses to treat the patient any further.” See Miller v. Blackburn, 170 Ky. 263, 185 S.W. 864 (Ct. App. 1916); Brown v. Dark, 196 Ark. 724, 119 S.W. 2d 529 (Sup. Ct. 1938). A similar rule applies if a physician is called for consultation or assistance only. Shannon v. Ramsey, 288 Mass. 543, 193 N.E. 235 (Sup. Jud. Ct. 1934); Tomer v. Aiken, 126 Iowa 114, 101 N.W. 769 (Sup. Ct. 1904), and Nelson v. Farrish, 143 Minn. 368, 173 N.W. 715 (Sup. Ct. 1919).

This court is of the opinion that the same rule must apply if a patient is examined by a physician who by reason of his general practice determines that he is unable to provide needed specialized treatment and that the patient must therefore be referred to a specialist. In this case the reference was made to specific clinics where specialized help would be available, and the patient actually underwent care at one of these clinics. The fact that the decedent’s mother had briefly utilized defendant’s serviees on an earlier occasion did not render him decedent’s physician under any general contract to provide care. The only proofs before the court by way of expert reports, depositions and interrogatory answers show that decedent visited Dr. Grubin for a specific purpose, and after this one visit Dr. Grubin found that he was incapable of providing the requested services. This was explained to decedent, and the subsequent events cannot be legally ascribed to any abandonment by Dr. Grubin. Whatever efforts were made by decedent’s family to contact Dr. Grubin are of no legal' import since no duty then flowed from Dr. Grubin to decedent.

To summarize, the record has been closely reviewed to determine whether there is a factual and legal basis- for plaintiff’s claims against Dr. Grubin. In malpractice actions, unlike most other negligence cases, the trial itself may have an adverse effect upon defendant’s professional life. Courts should be aware that even allegations of malpractice'against physicians and other professionals may have such effect. As noted in this opinion, the application of the principles of negligence law to the facts alleged by plaintiff should not render the defendant liable, and therefore the matter should be terminated at this stage insofar as Dr. Grubin is concerned. A physician who upon an initial examination determines that he is incapable of helping his patient, and who refers the patient to a source of competent medical assistance, should be1 held liable neither for the actions of subsequent treating professionals nor for his refusal to become further involved with the case.

Defendant Grubin’s motion for summary judgment is therefore gránted.


author: Gelman, J. S. C.

text:
    PASCACK ASSOCIATION, LIMITED, PLAINTIFF, v. MAYOR AND COUNCIL OF THE TOWNSHIP OF WASHINGTON, BERGEN COUNTY, NEW JERSEY, DEFENDANT. WALDY, INC., A NEW JERSEY CORPORATION, PLAINTIFF, v. THE BOARD OF ADJUSTMENT AND THE TOWNSHIP COUNCIL OF THE TOWNSHIP OF WASHINGTON, BERGEN COUNTY, NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided February 1, 1974.

      Mr. Allan J. Werksman, for plaintiffs Pascack Association, Limited and Waldy, Inc. (Messrs. Werksman, Saffron and Cohen, attorneys).

      Mr. Leonard Adler, for defendant Mayor and Council of the Township of Washington.

      Mr. Kevin M. O’Halloran, for defendant-Board of Adjustment (Messrs. Morrison & Griggs, attorneys).

      Mr. Robert S. Kleinberg, for defendant Washington Lakes Association (Messrs. Kleinberg & Kleinberg, attorneys).
   Gelman, J. S. C.

This matter is before the court on plaintiff’s application for enforcement of a final judgment entered on January 12, 1973. A brief review of the procedural history of this litigation is essential to an understanding of the issues projected by this application.

These actions were commenced in lieu of prerogative writs by the owner (Pascack Association Ltd.) and contract purchaser (Waldy, Inc.), of lands in the Township of Washington, in which plaintiffs challenged the validity of the basic zoning ordinance of the township. In addition, Waldy appealed from the denial to it of a subsection (d) variance to permit construction of a garden apartment development on the subject property. The actions were consolidated and tried in October and November 1972.

An opinion was filed on December 20, 1972, holding: (1) an amendment to the Washington Township zoning ordinance establishing a two-acre minimum lot size for residential use of the subject property was invalid; (2) the existing zoning ordinance was invalid insofar as it failed to make any provision for multi-family or rental-type housing, and (3) the zoning board’s denial of the variance for multi-family use was based on. an erroneous view of the statutory requirements for a subsection (d) variance.

Judgment was entered in accordance with the opinion on January 12, 1973. It is important to note in the present context the following language in the court’s opinion as to the township’s obligations in connection with the judgment entered on January 12, 1973:

. In. holding the zoning ordinance under review invalid it must be noted that the court is not directing the municipality to rezone the plaintiffs’ property for multi-family use. While the experts who testified on both sides were in general agreement that the subject premises would be suitable for this type of land use and development, it is not the province of the court to specify zoning densities or to exercise any other control at this juncture over the manner in which the township must meet its obligation to provide for multi-family or rental-type housing within its borders. Obviously, in view of the township’s state of development, the range of choices available to it is limited, but these choices are properly a function of the legislative power which it must exercise with reasonable promptness and in accordance with the requirements of the statute.

Despite the foregoing statement in the opinion and a recital in the judgment that it was final, the township did not file a timely notice of appeal from the judgment declaring the zoning ordinance invalid.

On January 29, 1973 the township adopted an amendment to its zoning ordinance establishing a multi-family district consisting of approximately 34 acres located in the southeastern area of the township (Ordinance No. 73-1). Of the acreage included within the new MF district almost half (16.3 acres) is owned by the Young Men’s Hebrew Association which has announced plans to utilize its property for nonresidential purposes; 6.5 acres are owned by the township, and 4 acres are owned by an organization known as the Columbian Club. Within the MF district, there is one other sizeable parcel (approximately five acres) under common ownership and development of this property for a four-story, 82-unit condominium has been proposed.

Ordinance 73-1 imposes the following restrictions upon multi-family development within the MF district:

(1) Minimum lot size of four acres;
(2) Minimum street frontage of 225 feet;
(3) Minimum lot depth of 700 feet;
(4) Minimum front yard of 100 feet, rear yard 68 feet, and side yards 50 feet;
(5) Off-street parking equal to two spaces for each dwelling unit, of which at least 25 % must be enclosed;
(6) Minimum floor areas of 1,000 square feet for one-bedroom units and 1,200 square feet for two-bedroom units, with two complete bathrooms required for the latter;
(7) One-bedroom units must constitute at least 70% of the total number of dwelling units.
(8) The maximum density of units per acre may not exceed six for two-story buildings, nine for three-story buildings, and fifteen four-story buildings.

In addition to the foregoing controls, the ordinance imposes certain construction standards which include provision for a central air conditioning system, landscaping requirements, and site plan review and approval by the planning board.

No action was taken by the township to rezone plaintiffs’ property, and on June 29, 1973 a hearing was held on plaintiffs’ motion to compel the township to comply with the judgment entered on January 12, 1973. At the hearing plaintiffs urged that Ordinance 73 — 1 did not constitute compliance with the judgment in that the area rezoned for multifamily was, because of its diverse ownership, limited in its application to but a single, five-acre parcel; the ordinance imposed unreasonable and arbitrary restrictions with respect to zoning density, minimum door areas, numbers of bedrooms and bathrooms, garages and other factors which were designed and intended to preclude any multi-family residential use consistent with the economic needs of the residents of the township and the region for such housing; and the township had failed to rezone plaintiffs’ property for multifamily use although the evidence at the trial established that its property was the most suitable land available within the township for such development.

Under date of July 9, 1973 an order was entered directing the township to carry out “all rezoning required for compliance” with the prior judgment within 60 days'. On July 20, 1973 the township moved to vacate this order because the township planning board had recommended adoption of an ordinance similar to Ordinance 73-1 for an area which would include plaintiffs’ property. Following a hearing on this application, an order was entered denying the motion. Thereafter, the township filed a notice of motion for leave to appeal to the Appellate Division from all of the orders previously entered, but leave to appeal was subsequently denied by that court.

Fo further zoning action having been taken by the township within the 60-day period set forth in the order, plaintiffs moved for an order directing the township to issue to Waldy a building permit for a multi-family garden type complex in accordance with the plans and the site plan originally submitted to the board of adjustment in support of its application for a variance. Those plans called for the construction of 520 multi-family dwelling units in two-story buildings'. Plaintiffs again urged that Ordinance 73-1 did not comply with the court’s mandate to provide multi-family zoning for the reasons already described, and that it was entitled to immediate relief in accordance with the judgment and prior orders of the court.

A hearing was held on this motion on October 4, 1973, at which the township urged that it needed additional time to make a zoning decision with respect to plaintiffs’ property. At the conclusion of the hearing this court held that the township had been afforded sufficient opportunity to comply with the judgment of January 12, 1973, and stated that it would appoint planning and zoning consultants to review all proceedings theretofore had in these actions and to report to the court on the following:

(1) Whether by the adoption of Ordinance 73-1 the township had satisfied the January 12 judgment requiring it to rezone for multifamily or rental-type housing sufficient to meet the statutory requirements of a valid zoning plan.
(2) If it had not, to recommend a zoning plan for the township that would carry out the terms of the judgment, giving- due consideration to all lands available for multi-family use and development within the township, and
(3) To recommend zoning controls and regulations appropriate to multi-family zoning in Washington Township consistent with the purposes of zoning as set forth in the zoning statutes of the State of New Jersey.

Thereafter the court appointed Dr. Melvin Levin, Chairman of the Department of Urban Planning, Eutgers University, and Dr. Jerome G. Eose, Professor of Urban Planning, Eutgers University, as consultants to the court in accordance with the opinion of October 4, 1973. The report of the court’s consultants was submitted under date of January 9, 1974 and was immediately distributed to the parties upon receipt.

The consultants’ report recognized a public need for apartment rental units to serve at least two sizeable groups in the present population of Washington Township: young married couples whose incomes and needs do not yet require large free-standing residences; and "overhoused” older people who wished to remain in the community. Considering the problem either from a municipal or a regional vantage point, the report concluded that Ordinance 73-1, with its excessive restrictions creating unnecessarily high construction costs and its limited site applicability, did not comply with the court’s judgment of January 12, 1973.

The consultants recommended the addition of a northeastern site (including plaintiffs’ property) to the MF District and the modification of certain restrictive provisions of Ordinance 73-1 by (1) reducing minimum floor space requirements to 850 square feet for one-bedroom units and to 1,000 for two-bedrooni units; (2) eliminating'a second bathroom in the two-bedroom units; (3) setting the percentage of one-bedroom and two-bedroom units at 50% each, and (4) allowing for a minimum density of six units per acre, and a maximum density of nine units per acre with Planning board approval.

Following the receipt of the consultants’ report and an opportunity for the parties to comment thereon, a hearing was held on January 25, 1974 for the taking of testimony and argument on the order to be entered by this court by way of enforcing the final judgment of January 12, 1973.

The township urges that the court lacks jurisdiction to enforce the January 12, 1973 judgment insofar as that judgment directed the municipality to amend its zoning ordinance to provide for multi-family housing. The argument is premised upon the proposition that the exercise of the zoning power is a local legislative function and is wholly immunized from judicial direction or control. The township says, in essence, that the court is powerless to provide a remedy where the legislative body refuses to comply with a judgment which includes a direction to rezone.

Municipalities, like other agencies of government, must operate within a framework of constitutional government under which the judicial branch has been assigned jurisdiction to adjudicate cases and controversies arising out of the exercise of governmental powers by the legislative and executive branches. This was the concept of the judicial role laid down by Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137, 5 U. S. 137, 2 L. Ed. 60 (1803), and it remains a valid concept today. See, for example, Brown v. Board of Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), supplemented 349 U. S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955); Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971); Baker v. Carr, 369 U. S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Jackman v. Bodine, 43 N. J. 453 (1964); Robinson v. Cahill, 62 N. J. 473, supplemented 63 N. J. 196 (1973); Molino v. Mayor, etc., of Glassboro, 116 N. J. Super. 195 (Law Div. 1971); Southern Burlington County NAACP v. Mount Laurel Tp., 119 N. J. Super. 164 (Law Div. 1972); Gautreaux v. Chicago Housing Authority, 296 F. Supp. 907, 304 F. Supp. 736 (N. D. Ill. 1969); Kennedy Park Homes Ass’n v. City of Lackawanna, 318 F. Supp. 669 (W. D. N. Y. 1970), aff’d 436 F. 2d 108 (2 Cir., 1970), cert. den. 401 U. S. 1010, 91 S. Ct. 1256, 28 L. Ed. 2d 546 (1970).

Coincident with the performance of its role in the constitutional scheme, the judiciary has historically and necessarily exercised its power to compel coordinate branches of government to fulfill their obligations as defined by the courts in the decisional process and as embodied in their orders and judgments. In Brown v. Board of Education, supra, the United States Supreme Court declared segregated public school systems unconstitutional. The following year in Brown II, supra, the court addressed itself to the question of the manner and extent of judicial involvement in the remedial process by which segregation would be eliminated from school systems. The court foresaw the problems that lay ahead for the judiciary and set forth the standards for judicial remedial relief. It said:

In fashioning' and effectuating the decrees, the Courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954 decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. [349 U. S. at 300, 75 S. Ct. at 756.]

An illustration of the judicial role in the fashioning of remedies following Brown II may be found in Swann v. Charlotte-Mecklenburg Board of Education, supra. There the United States District Court had ordered defendant to submit a school desegregation plan in compliance with a prior court order. Upon defendant’s failure to meet the deadline fixed in the order the court appointed an educational consultant to recommend a desegregation plan. The District Court ultimately entered an order substantially adopting the plan submitted by its own expert. On appeal the United States Supreme Court sustained the procedure as well as the substance of the District Court’s order, sajdng:

If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.
•fc sj« t'/> *
Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.
$ $ :h *
As with any equity case, the nature of the violation determines the scope of the remedy. In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system. [402 U. S. at 15-16, 91 S. Ct. at 1276.]

Where the duty to be enforced by judicial decree impinges upon the exercise of executive or legislative functions by coordinate branches of government, remedial judicial intervention has been and should he exercised only as a last resort and after the legislative or executive branch has defaulted in its obligation to act. Thus, in Jackman v. Bodine, supra, having declared the New Jersey Constitution’s legislative apportionment scheme to be in violation of the Federal Constitution, our Supreme Court dealt with the question of remedy and said:

The duty to comply with the equal protection clause rests upon the three branches of State Government and upon the people of the State as well. The question is what part must be played by each.
We think it clear that the judiciary should not itself devise a plan except as a last resort. The reasons, simply stated, are that the prescription of a plan of apportionment is laden with political controversy from which the judiciary cannot be too distant, and further, that if the judiciary should devise an interim plan, that plan will likely seem so attractive to some as to impede the search for common agreement. We therefore will confine our role for the present to the minimum demands of the Federal and State Constitutions, retaining jurisdiction, upon applications directly to us and within this cause, to grant further relief if circumstances so require and to resolve such additional issues as may arise. [43 N. J. 473-474]

As the subsequent history of the J ademan litigation bears witness, the Supreme Court did, in fact, fashion orders directly altering legislative districting as the exigencies and circumstances required that such action be taken. As one example, see Jackman v. Bodine, 53 N. J. 585 (1969).

In Reynolds v. Sims, 377 U. S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), the District Court had declared Alabama’s legislative apportionment scheme unconstitutional and fixed a deadline for action by the state legislature to accomplish a constitutional plan of reapportionment. The Alabama legislature adopted two such plans within the time allowed the court, both of which were rejected by the court after hearing. The court then devised its own temporary reapportionment plan and ordered that primary and general elections be held pursuant to its plan. The District Court’s action was affirmed on appeal to the United States Supreme Court, and Chief Justice Warren offered the following comments upon the propriety of the course followed by the lower court:

We feel that the District Court in this case acted in a most proper and commendable manner. It initially acted wisely in declining to stay the impending primary election in Alabama, and properly refrained from acting further until the Alabama Legislautre had been given an opportunity to remedy the admitted discrepancies in the State’s legislative apportionment scheme, while initially stating some of its views to provide guidelines for legislative action. And it correctly recognized that legislative reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so. Additionally, the court below acted with proper judicial restraint, after the Alabama Legislature had failed to act effectively in remedying the constitutional deficiencies in the State’s legislative apportionment scheme, in ordering its own temporary reapportionment plan into effect, at a time sufficiently early to permit the holding of elections pursuant to that plan without great difficulty, and in prescribing a plan admittedly provisional in purpose so as not to usurp the primary responsibility for reapportionment which rests with the legislature. [377 U. S. at 586, 84 S. Ct. at 1394.]

In Kennedy Park Homes Ass’n v. City of Lackawanna, supra, the court found- that certain amendments to the municipal zoning ordinance as well as other municipal action had been undertaken, to prevent construction of a multifamily subdivision intended-for-black,residents. The court held that such actions constituted a denial to plaintiffs of the.equal protection of the law. and ordered the municipality to affirmatively take whatever steps were necessary to permit the construction of the housing, desired by plaintiffs.

In the Mount Laurel case, supra, which is presently pending before the Yew Jersey Supreme Court-, the Law Division invalidated a zoning ordinance which prohibited multi-family dwellings, principally for the reason the ordinance discriminated against the poor and deprived them of adequate housing and the opportunity to secure publicly-subsidized housing. The court, as part of its judgment, directed the municipality to take affirmative action, not merely to rezone, but to develop a plan to provide for publicly subsidized housing within the community.

The cases which have been cited above illustrate the principles which have guided courts in the past in fashioning remedies to meet' the adjudicated facts in specific controversies involving the application of the judicial power to compel affirmative action by other branches of government. Those principles sustain the court’s jurisdiction to act here, but at the same time impose a heavy burden to exercise that jurisdiction with restraint and only to the extent necessary to accomplish a reconciliation of the public and private interests involved in this dispute.

The question, then, is not whether but the manner in which the inherent equity power of the court should be exercised. The traditional method of enforcing judicial decrees through contempt proceedings is singularly inappropriate in resolving a zoning controversy; its use would afford no practical benefit to plaintiffs and would be inadequate to vindicate plaintiffs’ rights established by the judgment. The remedy espoused by plaintiffs — to compel the issuance of a building permit for the development of their property as they have proposed it —■ has the virtue of simplicity but nothing else to commend it. While this course has been followed in at least one other jurisdiction, see Appeal of Girsh, 437 Pa. 237, 263 A. 2d 395 (Sup. Ct. 1970), it affords no protection to other property owners in the community who might be adversely affected by what in essence would be the unregulated development by the plaintiffs of their property.

The only viable remedy is a limited intervention by the court in the zoning process. Since judges have not been known to possess any particular expertise in cither zoning or planning, it is incumbent upon the court to utilize the services of independent expert consultants to assist in formulating a remedy consistent with effectuating the judgment. See Swann v. Charlotte-Mecklenburg Board of Education, supra. With such guidance “judicially discoverable and manageable standards” are readily available for resolving this controversy. See Baker v. Carr, supra, 369 U. S. at 217, 82 S. Ct. 691, 7 L. Ed. 2d 663.

The purpose of this proceeding is to ensure that the municipal zoning ordinance meets the general welfare requirements of the zoning statute, N. J. S. 40:55-32, and if possible to avoid an adverse impact upon the existing zoning plan of the township. The consultants’ report substantially accomplishes that objective. The answers the consultants have supplied to the questions asked of them are amply supported by their reasoning and analysis as well as the statistical evidence they have supplied. Their recommendations as to zoning controls and densities are designed primarily to meet existing and prospective needs for multi-family housing emanating from within the township itself, and are in harmony with the maintenance of the suburban residential character of this community.

IJpon review of the consultant’s report and the recommendations contained therein as well as the evidence received at the hearing on January 25, 1974, an order will be entered as follows:

(1) Upon proper application being made by plaintiff to the appropriate municipal departments and agencies having jurisdiction thereof, including but not limited to application to the Washington Township Planning Board for site plan review pursuant to Ordinance 73-1, the Township of Washington is ordered and directed to issue to the plaintiff a building permit for the construction of multiple-family garden-type dwelling units, not exceeding two stories in height on premises known as Lot 1 in Block 3202; Lots 1 through 14, inclusive, in Block 3204, Lots 5 through 10, inclusive, in Block 3203, and Lots 2 and 4 in Block 3201, subject to the following:
(a) The maximum number of multiple-family dwelling units permitted as of right shall be not less than nine units per acre;
(b) The minimum offstreet parking spaces required shall be not less than two spaces for each dwelling unit, which shall include enclosed offstreet parking spaces in an amount not less than 25% of the number of dwelling units to be constructed;
(c) 50% of the multiple-family dwelling units shall have one bedroom and the balance of the multiple-family dwelling units shall have two bedrooms;
(d) The minimum floor area requirements for each dwelling unit shall be as follows:
(1) One-bedroom dwelling unit — 800 square feet;
(2) Two-bedroom dwelling unit — 1,000 square feet;
(e) The building plans and specifications shall comply with the applicable building code of the Township of Washington then in effect on the date of the application.
(f) The township planning board shall be authorized to approve an application for site plan approval increasing the density of units per acre and without the minimum floor area limitations hereinabove set forth upon a finding that such dwelling units shall, by reason of location, amenities and design, provide special requirements to meet the housing needs and requirements of residents of the age of fifty-five and above.
(2) This court will retain jurisdiction upon proper application being made to enforce the provisions of this order.

      Prior to the adoption of Ordinance 73-1 the Washington Township zoning ordinance prohibited any multi-family or apartment use. All residential uses were restricted to one-family detached dwellings on lots ranging from 10,000 square feet to one acre.