text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ROBERT J. RUSSELL, GERALD T. HYAMS, a/k/a GERALD T. HYAMES, EDWIN FREDERICK PIERCE a/k/a ED PIERCE, AND AAPCO, INC., A CORPORATION CHARTERED UNDER THE LAWS OF PENNSYLVANIA, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 16, 1972
    Decided June 12, 1972.

      Before Judges Lewis, Halperr and Lora.

      Mr. Michael R. Perle, Deputy Attorney General, argued the cause for appellant (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. George T. Dougherty, Deputy Attorney General, of counsel and on the brief).

      Mr. Archibald Kreiger argued the cause for respondent Eobert J. Eussell (Messrs. Orlando and Orlando, attorneys).

      Mr. Timothy J. P. Quinlan, Assistant Deputy Public Defender, argued the cause for respondent Gerald T. Hyams (Mr. Stanley O. Van Ness, Public Defender, attorney).

      Mr. M. Allan Vogelson, attorney for respondent Edwin Frederick Pierce, submitted on brief.
   Per Curiam.

Defendants were indicted in May 1910 for alleged violations of the New Jersey Uniform Securities Law (1961) and charged with the following offenses:

I. Willfully defrauding certain stockholders of AAPCO, Inc. (a Pennsylvania corporation with manufacturing headquarters in Pennsauken, N. J., and which conducted shareholders’ meetings within Camden County) by willfully failing to disclose that they were attempting to sell or selling a greater number of shares of AAPCO stock than was authorized by the corporate charter, in violation of N. J. S. A. 49:3-52 and N. J. S. A. 49:3-70.

II. Willfully attempting to sell AAPCO securities which were not registered as required by the provisions of N. J. S. A. 49:3-60, contrary to N. J. S. A. 49:3-60 and N. J. S. A. 49:3-70.

III. Willfully conspiring to violate the provisions of the Uniform Securities Law (N. J. S. A. 49:3-47 et seq.) to wit:

(a) defrauding stockholders;

(b) employing unregistered securities agents to sell, and by selling without being registered as licensed securities agents, the stock of AAPCO;

(c) attempting to sell unregistered securities;

(d) willfully disregarding the lawful orders and subpoenas of the Bureau of Securities, contrary to N. J. S. A. 2A:98-1.

IY. Willfully attempting to sell through unregistered and unlicensed securities agents the stock of AAPCO. Defendants were arraigned and admitted to bail.

In preparation for trial, the State filed and served a trial memorandum and requests to charge setting forth principles of law which the State sought to have applied. A pretrial conference was held pursuant to R. 3:13—1. By order and memorandum the pretrial judge denied plaintiff’s requests to charge as to the term “willful” as used in the New Jersey Securities Law. Motion for leave to appeal was granted.

The two denied requests to charge were as follows:

3. As the term “wilful” is used in the New Jersey Securities Law, it is not necessary that the person committing a violative act do so with an evil motive or with a will to violate the law. It is required only that he intended or willed to do an act, which act was prohibited under the law.
4. It is no defense to a charge of willful violation of the New Jersey Uniform Securities Law that the defendant was ignorant of the law or its provisions.

The State contends that the Uniform Securities Law as adopted in New Jersey mandates absolute liability for violations of its provisions and that such violations are punishable without regard to the existence of criminal intent as it is known in the criminal law.

N. J. S. A. 49:3-70(a) provides:

Any person who willfully violates any provision of this act, except section 7, or who willfully violates any rule or order under this law, or who willfully violates section 7 knowing the statement made to be false or misleading in any material respect, shall be guilty of a misdemeanor and fined not more than $5,000.00 or imprisoned not more than 3 years, or both; but no person may be imprisoned for the violation of any rule or order if he proves that he had no knowledge of the rule or order. No indictment or information may be returned under this law more than 5 years after the alleged violation.

Whether a statute provides criminal sanctions for proscribed conduct without the necessity of proving criminal intent is a matter of legislative intent. Morss v. Forbes, 24 N. J. 341, 358 (1957).

In support of its contention, the State argues the language in the statute regarding the section 7 exception clearly indicates a legislative intent that knowledge is necessary only in cases of such section 7 (N. J. S. A. 49:3-54) violations. It states that such intention is further manifested by the provision that no one may be imprisoned for the violation of any rule or order if he proves that he had no knowledge of the rule or order.

There is no reported decision in this State passing on this issue under the Uniform Securities Law. However, some guidance can be obtained from analogous federal decisions as well as decisions of sister states which have enacted the Uniform Securities Act, particularly in view of the declaration of statutory policy set forth in N. J. S. A. 49:3-75:

This law shall be so construed as to effectuate its general purpose to make uniform the law of those States which enact similar laws and to co-ordinate the interpretation and administration of this law with related Federal regulations.

The Commissioners’ Note appended to section 409(a) of the Uniform Securities Act (the source of N. J. S. A. 49:3-70(a)) refers to the comment under § 204(a) (2) (B) of the act with regard to the meaning of “willfully.” Section 204(a)(2)(B) thereof provides:

The [Administrator] may by order deny, suspend, or revoke any registration if [he] finds * * * that the applicant or registrant or, in the case of broker-dealer or investment adviser, any partner, officer or director, any person occupying a similar status or performing similar functions, or any person occupying a similar status or performing similar functions, or any person directly or indirectly controlling the broker-dealer or investment advisor * * * has willfully violated or willfully failed to comply with any provision of this act or a predecessor act or any rule or order under this act or a predecessor act * * *.

The Commissioners’ Note under this section states:

As the federal courts and the SEO have construed the term “willfully” in § 15(b) of the Securities Exchange Act of 1934, 15 U. S. C. § 78o(b), all that is required is proof that the person acted intentionally in the sense that he toas aware of what he was doing. Proof of evil motive or intent to violate the law, or knowledge that the lato was being violated, is not required. The principal function of the word “willfully” is thus to serve as a legislative hint of self-restraint to the Administrator. [Uniform Securities Act, § 204, 9C U. L. A.; emphasis added]

Section 15(b) of the Securities Exchange Act of 1934, 15 U. S. C. § 78o(b), like section 204(a)(2)(B) of the Uniform Securities Act, provides for administrative sanctions for any willful violation of the provisions of the act. Although it might be argued that a more stringent requirement as to mens rea should be applied in a criminal prosecution than in administrative action, it is clear the Commissioners applied the same standard to both.

The Commission has consistently held under § 15(b)(5), with some support from the courts both by way of review of the Commission’s orders and more recently in criminal cases, that the term “willfully” does not require proof of evil motive, or intent to violate the law, or knowledge that the law was being violated. All that is required is proof that the violator acted intentionally in the sense that he was aware of what he was doing. 5 Loss, Securities Regulation (2d ed. 1969) 3368-3374; see e.g. Hughes v. S. E. C., 85 U. S. App. D. C. 56, 174 F. 2d 969, 977 (1949); United States v. Sussman, 37 F. Supp. 294, 297 (E. D. Pa. 1941); Gearhart and Otis, Inc. v. S. E. C., 121 U. S. App. D. C. 186, 348 F. 2d 798, 802-803 (1965); United States v. Custer Channel Wing Corp., 247 F. Supp. 481, 494-495 (D. Md. 1965), aff’d 376 F. 2d 675, 681 (4 Cir.), cert. den. 389 U. S. 850, 88 S. Ct. 38, 19 L. Ed. 2d 119 (1967).

It is suggested in 2 Loss, supra at 1309, that “willfully” might conceivably mean something less in § 15(b) than it does in the penal provisions of the SEC acts (15 U. S. C. A. § 78ff), and that it means something less when applied to a provision like § 5 of the Securities Act, which is malum prohibitum, than to one of the fraud provisions, which more nearly approaches malum in se. However, Loss states that, as nearly as one can say, the courts are more concerned in criminal cases under § 5 with knowledge of lack of registration than with evil motive or specific intent to violate the law. 6 Loss, supra at 4126. He also states that it seems reasonably settled that “willfully” in the SEC statutes does not have any “'bad purpose” connotation (beyond whatever bad faith concept is inherent in the fraud provisions as distinct from the registration provisions and the like). 5 Loss, supra at 3374. See United States v. Sussman, supra, 37 F. Supp. at 296; see also United States v. Simon, 425 F. 2d 796 (2 Cir. 1969), cert. den. 397 U. S. 1006, 90 S. Ct. 1235, 25 L. Ed. 2d 420 (1970) (both cases involving criminal prosecutions for violations of provisions of the federal securities law).

In the few jurisdictions that have decided the question of whether a criminal intent is necessary under the criminal penalty section of the Uniform Securities Act, the courts appear to have required only an intent to do the proscribed act. While the decisions of sister states are not binding, they are of signal import and value as guiding precedent where the objective of a statute is the standardization of a particular subject matter; in this case the area of securities regulation. State v. Weissman, 73 N. J. Super. 274, 281 (App. Div.), certif. den. 37 N. J. 521 (1962).

In State v. Burrow, 13 Ariz, App. 130, 474 P. 2d 849, 851 (Ct. App. 1970) (which involved a prosecution for the sale of unregistered securities, and for carrying on transactions as an unregistered dealer), the court stated:

Our Supreme Court lias held that in the area of criminal intent, legislative policy fixes two types of crimes, those which require an evil intention and those which the mere doing of the act is criminal, in which case only an intent to so act is required. These latter acts, commonly denominated malum prohibitum, usually involve conduct which so threatens the public that there must be absolute prohibition. Troutner v. State, 17 Ariz. 506, 154 P. 1048 (1916) ; 21 Am. Jur. 2d Criminal Law §§ 81-91.
In the instant case we are confronted with statutes dealing with the sale and registration of securities and sales by unregistered dealers. The trial court, in delivering the instruction it did, obviously construed the statute as malum prohibitum.
The general rule is that the intent of the legislature is determinative of whether a criminal statute is malum prohibitum or malum in se. Troutner, supra; State v. Cutshaw, 7 Ariz. App. 210, 437 P. 2d 962 (1968) ; 21 Am. Jur. 2d Criminal Law § 91. The two sections here, A. R. S. § 44-1841 and § 44-1842, in all inclusive language prohibit the acts in question. No element of specific intent is mentioned, and the very subject matter of the statutes in question as a creature of modern commercial practice places them in the mainstream of modern “strict liability” statutes as malum prohibitum crimes are sometimes denominated.

In accord is State v. Hodge, 204 Kan. 98, 460 P. 2d 596 (Sup. Ct. 1969) (involving prosecution for the sale of unregistered securities, and failure to register as a broker-dealer), in which the court stated that no specific intent is necessary to constitute the offense where one violates the securities act except the intent to do the act denounced by the statute. The court relied upon the Commissioners’ Note relating to the manner in which the federal courts have construed the term “willfully” in the Securities and Exchange Act of 1934. See also Nelson v. State, 355 P. 2d 413, 419 (Okl. Cr. App. 1960) (prosecution for selling unregistered securities), in which the court stated that the burden is placed upon the offeror or seller of stock to ascertain if the security may be sold lawfully, and that the law requires registration of the security and the seller to guarantee protection to the public against blue-sky transactions. The court continued:

The law, however, puts the bux-den of such investigation on the pax-ty selling, and it is no excuse if he fails to ascertain if such security cannot in fact be legally sold. He is bound to make such investigation, if the security is not issued by him, before attempting to make a sale thereof, and we may well presume that he did so, as it would not seem reasonable to presume that, knowing the law as he must, he would go ahead with the sale without an independent investigation. [at 419]

The public sale of corporate securities is a sensitive, highly and peculiarly specialized field of activity to which the investing public is exposed and one in which the public is generally not well versed. The potential for serious financial injury to the buying public mandates that all sellers of securities be charged with knowledge of and compliance with all rules and regulations governing such sales.

In view of all of the foregoing, the history of the legislation on this subject and the nature and purpose of the act, it is our conclusion that a specific criminal intent, an evil motive, or knowledge that the law was being violated is not required in order to find a criminal violation of the New Jersey Securities Law. To the contrary, all that is required is that the State prove the defendant acted intentionally in the sense that he was aware of what he was doing.

The pretrial order denying the state’s requests to charge is reversed and the matter remanded for trial.


source: Caselaw Access Project

author: Pashman, A. J. S. C.

license: Public Domain

text:
    EAST RUTHERFORD INDUSTRIAL PARK, INC., A CORPORATION OF NEW JERSEY; COSTA ENTERPRISES, A PARTNERSHIP OF NEW JERSEY; AND EAST RUTHERFORD INDUSTRIAL CENTRE, A PARTNERSHIP OF NEW JERSEY, PLAINTIFFS, v. THE STATE OF NEW JERSEY; NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, A BODY CORPORATE AND POLITIC; AND HACKENSACK MEADOWLANDS DEVELOPMENT COMMISSION, DEFENDANTS. M. VINCENT COSTA t/a TRIANGLE REALTY COMPANY, A PARTNERSHIP OF THE STATE OF NEW JERSEY; KNICKERBOCKER DEVELOPMENT CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, FORMERLY KNOWN AS T.N.J. CONSTRUCTION CO., INC., A CORPORATION OF NEW JERSEY; AND ROYAL DEVELOPERS, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFFS, v. THE STATE OF NEW JERSEY, NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, A BODY CORPORATE AND POLITIC; HACKENSACK MEADOWLANDS DEVELOPMENT COMMISSION; BOROUGH OF EAST RUTHERFORD; EAST RUTHERFORD INDUSTRIAL CENTER, A PARTNERSHIP OF THE STATE OF NEW JERSEY; AND COSTA ENTERPRISES, A PARTNERSHIP OF THE STATE OF NEW JERSEY, DEFENDANTS. SMILA RUTHERFORD, INC., A CORPORATION OF NEW JERSEY, PLAINTIFF, v. HACKENSACK MEADOWLANDS DEVELOPMENT COMMISSION AND NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided June 2, 1972.

      Mr. Eugene C. Dinallo, for plaintiffs East Butherford Industrial Park, Inc., et als. (Mr. Malcolm Blum, on the brief).

      Mr. Malcolm Blum, for plaintiffs M. Vincent Costa t/a Triangle Eealty Company, et als.

      Mr. Qerold Kanengiser, for plaintiff Smila-Butherford, Inc. (Messrs. Gordon and Kanengiser, attorneys).

      Mr. John W. Bissell, for defendant New Jersey Sports and Exposition Authority (Messrs. Pitney, Hardin & Kipp, attorneys; Mr. Ronald L. Davison and Mr. John W. Bissell, on the brief).

      Mr. Joseph M. Clayton, Jr., Deputy Attorney General, for defendants State of New Jersey and Hackensack Meadow-lands Development Commission (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. William D. Gorgone, for defendant Borough of Bast Butherford.
   Pashman, A. J. S. C.

These matters are before the court on motion for summary judgment by defendant, New Jersey Sports and Exposition Authority (hereinafter Authority), and complaint and order to show cause why relief should not be granted. Defendants urge that the three complaints in lieu of prerogative writs fail to state a claim upon which relief may be granted.

The material facts are not disputed. Defendants accept as true all relevant factual allegations contained in the plaintiff’s pleadings and all inferences that reasonably ffow therefrom. Accordingly, these cases are ripe for disposition. R. 4:46-2; Bruno v. Long Branch, 35 N. J. Super. 304, 310 (App. Div. 1955), aff'd 21 N. J. 68 (1956). The parties are generally in accord with respect to the propriety of a summary judgment disposition and recognize that the issues in controversy are legal rather than factual in nature.

In a recent decision, New Jersey Sports and Exposition Authority v. McCrane, 119 N. J. Super. 457 (Law Div. 1971), aff’d 61 N. J. 1 (1972), this court had occasion to observe that the question of whether there has been a taking of property in a given situation “can be a vexing and thorny problem when encountered in the context of a regulation upon land use.” In that case, it was held that the mere enactment of a statute and the stipulation by counsel for the Authority as to the projected site for the complex do not constitute a “taking” of property in the constitutional sense. See Wilson v. Long Branch, 27 N. J. 360, 373-375 (1958), cert. den. 358 U. S. 873, 79 S. Ct. 113, 3 L. Ed. 2d 104; Jersey City Redevelopment Agency v. Kugler, 58 N. J. 374 (1971). In this case, the court is confronted with regulatory actions by a state agency in contemplation of the construction of the aforesaid sports complex. The facts are as follows:

The plaintiffs in all three actions consolidated herein for the purpose of summary judgment are possessed of some interest in lands located in the Hackensack meadowlands. Plaintiff Smila-Eutherford, Inc., is the owner in fee title of various premises located therein. In the second action plaintiff East Butherford Industrial Park, Inc. (hereinafter Park, (is a lessee of approximate^ 89 acres of land therein owned by the Borough of East Butherford and leased for a term of 60 years. Among the varous obligations on the part of Park were the securing of a release from the State of its riparian claims and the development of the land which is presently undeveloped. Costa Enterprises and East Eutherford Industrial Centers are sublessees of Park. In the third action the plaintiffs are sublessees of Costa Enterprises, one of the plaintiffs in the second action.

All of the lands in question lie within the special district created by the Hackensack Meadowlands Eeelamation and Development Act (hereinafter Commission) (N. J. S. A. 13:17-1 et seq.) and are under the jurisdiction of the Commission. Prior to June of 1971, the respective plaintiffs had commenced to develop their respective parcels and Smila to' construct commercial buildings thereon with the intention of leasing the same. To date, several buildings have been completed and are currently occupied. After undertaking the construction of those buildings, the plaintiffs, during the .Spring of 1971, filed the necessary applications for a waiver of subdivision regulation with the Commission in accordance with the rules and regulations promulgated by it.

On May 10, 1971, the Legislature of the State of New Jersey enacted the “New Jersey Sports and Exposition Authority Law” granting exclusive jurisdiction upon a site not to exceed 750 acres in the Hackensack Meadowlands to the Authority. N. J. S. A. 5:10-1 et seq. The Authority is possessed with the power of eminent domain and is authorized to construct various facilities for the holding of sporting events, expositions, etc. N. J. S. A. 5:10-2, 6(a), 9.

On May 12, 1972, the New Jersey Supreme Court upheld the constitutionality of that act and declared the Authority to constitute a valid public purpose. New Jersey Sports and Exposition Authority v. McCrane, supra.

In the aforementioned case, attorneys for the Authority stipulated arguendo that the projected site for the complex is the area adjacent to and bounded by Eoute 3, Berry’s Creek, Paterson Plank Eoad and the New Jersey Turnpike’s western spur. Plaintiffs also allege that the Authority has publicly announced the above location, which announcement has been publicized through the various news media.

Prior to the McOrane decision, supra, on or about June 11, 1971, the Commission communicated with the plaintiffs concerning their subdivision applications by the following letter:

The Hackensack Meadowlands Development Commission at a public meeting, on this date, adopted a Resolution directing me to deny your application without prejudice. This action was taken by the Commission after the New Jersey Sports and Exposition Authority had officially informed the Commission that your property may be the site of the Sports Complex.

After receiving this communication, plaintiff Smila-Eutherford, Inc. requested a review of the file with the Commission. In response to that request, Mr. Eichard P. Harries, the Chief Engineer of the Commission wrote:

Pursuant to your request, I have reviewed our file and determined that you have fully complied with all the Regulations of the Hackensack Meadowlands Development Commission pertaining to a final plat of a subdivision.
As you are aware, the Hackensack Meadowlands Development Commission has been requested by the New Jersey Sports & Exposition Authority to with hold [sic] any approval on the proposed site for the Sports Complex in East Rutherford. A couple of days ago, you received correspondence from me indicating that your application has been denied without prejudice pending a final determination by the New Jersey Sports & Exposition Authority regarding the site of the Sports Complex.

In addition to denying the subdivision applications of the plaintiffs, Smila-Eutherford on November 17, 1971 was notified by letter to cease construction of a manufacturing and warehouse building which it had undertaken pursuant to a building permit previously granted by East Eutherford.

All complaints allege that the Commission’s actions are arbitrary and interfere with the property rights of plaintiffs without due process. It is contended that these acts constitute a taking of property without compensation in violation of the Federal and State Constitutions. Accordingly they seek injunctive relief compelling the approval of the subdivision applications, or in the alternative compelling the defendants to compensate the plaintiffs. Further, they seek damages for the unreasonable delay in approving the applications. Alternatively, the Costa and Park cases seek a declaration to the effect that the premises are not within the jurisdiction of the Hackensack Meadowlands Development Commission.

Smila-Eutherford, in addition to the aforementioned relief, seeks an injunction against the interference with the construction of its warehouse currently under way. Further, this plaintiff petitions for a declaration that the Commission’s actions constitute an option to purchase its premises for which it is to be compensated.

The other two actions contain additional demands. All plaintiffs seek damages for the publicizing of the proposed site which they claim has interfered with their ability to rent their premises or otherwise derive profits therefrom. Additionally, the Costa suit contains prayers for reformation or recission of its contracts (leases) with the Borough of East Eutherford and its lessees.

The Borough of East Eutherford has adopted the position of the State, Commission and Authority to dismiss the complaints in the Costa case. However, the matter at hand is not concerned with the relationships arising out of the respective leases of the parties. The Authority’s position is concerned only with the actions of the Commission and not with the leases emanating from East Eutherford. Accordingly, the recission and reformation aspects of the Costa case are not dealt with herein. Those issues will be decided another day when East Eutherford formally moves for summary judgment or other relief.

We shall consider the merits of the respective claims. The issues to be decided are whether (1) Smila-Eutherford’s claim is barred for failure to comply with the time limitations imposed by R. 4:69—6(a); (2) publicizing of the proposed site for the Sports Complex creates an actionable suit for damages sustained therefrom; (3) defendants’ actions constitute a taking in the constitutional sense.

I

The defendants attack the action instituted by Smila-Eutherford on the grounds that it has failed to comply with the time limitations of R. 4:69-6 (a) which require the bringing of an action in lieu of prerogative writs within 45 days after the accrual of the right to review. In addition, the Commission argues that the action should have been brought pursuant to R. 2:4-1 which provides for appeals from final determination of state administrative agencies to the Appellate Division.

Smila-Eutherford’s complaint was filed on January 17, 1972, some six months subsequent to the initial action by the Commission. A second basis for the complaint relates to the cease and desist order of November 17, 1971. The time for review expired on that claim at the beginning of 1972.

The plaintiff urges the reasoning in the case of Thornton v. Ridgewood, 17 N. J. 499 (1955), wherein Justice Burling permitted a late action on the grounds that the suit sought injunctive and other equitable relief in addition to the review of the municipality’s actions. Id. at 510. The plaintiff also seeks equitable relief and poses that aspect of his complaint as grounds for an exception to R. 4:69-6.

Beyond Justice Burling’s decision, R. 4:69-6(c) permits the enlargement of the time where the interests of justice so require. The cases of Kent v. Borough of Mendham, 111 N. J. Super. 67 (App. Div. 1970), and Haack v. Ranieri, 83 N. J. Super. 526 (Law Div. 1964), speak in terms of substantial constitutional rights in considering the propriety of granting an extension.

In the present case, the plaintiff alleges constitutional infirmities in the Commission’s actions which, if unchecked, may cause considerable harm to it. The question of whether there has in fact been a taking raises serious problems of vital concern to the plaintiff.

Two additional considerations seem to place the equities on the side of the plaintiff. First, the other two actions are not challenged and are properly before the court. Hence, any damage resulting from the plaintiff’s tardiness is minimized. Moreover, while neither of the complaints has been brought as a class action, it is apparent that the Commission’s determinations will affect a broad class of persons who possess property rights in the area tentatively designated by the Authority as the site for the Sports Complex. As such, the questions are of public concern.

Accordingly, I shall allow Smila-Rutherford’s action pursuant to the exception of R. 4:69-6(e). The interests of justice clearly dictate that result. The motion to dismiss the complaint on the ground that the plaintiff has not complied with R. 4:69-6 (a) is denied.

II

The plaintiffs contend that the publicity surrounding the proposed site fox the Sports Complex has caused substantial damage to them in terms of securing willing purchasers and lessees of their premises. They point in particular to the controversy and widely broadcast announcements concerning the lease agreement entered into between the New York Giants and the State of New Jersey. They further allege that the State and the other defendants have acted with complete disregard for their property rights and have actively and wantonly devalued their lands.

The claim asserted by plaintiffs is governed by the same considerations as in McCrane. The public announcements and publicity surrounding the projected site can no more constitute a taking than a declaration of blight, Wilson v. Long Branch, 27 N. J. 360 (1958); cert. den., 358 U. S. 873, 79 S. Ct. 113, 3 L. Ed. 2d 104; Jersey City Redevelopment Agency v. Kugler, 58 N. J. 374, (1971); Danforth v. United States, 308 U. S. 271, 284-285, 60 S. Ct. 231, 236-237, 84 L. Ed. 230, 238-239 (1939) ; the filing of a map indicating the actual situs, Bauman v. Ross, 167 U. S. 548, 596-597, 17 S. Ct. 966, 984-985, 42 L. Ed. 270, 290-291 (1897), or the enactment of a statute. McCrane, supra. Injuries resulting from such publicity must be considered incidents of ownership and are damnum, absque injuria. Danforth v. United States, supra 308 U. S. at 284, 60 S. Ct. at 236. It may be that if and when the plaintiffs’ lands are ultimately purchased or condemned, those injuries may be taken into consideration in awarding damages. See Jersey City Redevelopment Agency v. Kugler, supra. However, that issue will be determined another day.

One last observation on this point is proper. The public has an interest in keeping apprised of impending governmental action. To that end, the press and government are granted untold liberty of expression and reporting under the Dirst Amendment of the United States Constitution. This public interest must take precedence over the possible and speculative injury to property rights resulting from the freedom of expression and the press. In a day when the right of government to suppress and classify information which it deems vital to the nation’s security is being seriously argued and challenged, the plaintiffs’ alleged incidental damages pale into insignificance. See New York Times Company v. United States, 403 U. S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971).

For the foregoing reasons, I find that the plaintiffs’ allegations grounded on the publicity and announcements concerning the projected site of the Sports Complex do not support a claim upon which relief may be granted. Defendants’ motions to dismiss those counts are granted. Accordingly, counts 3, 6 and 10 of the action entitled M. Vincent Costa et al. v. The State of New Jersey et al., Docket No. L 6241-71 P.W., and count 2 of the action entitled East Rutherford Industrial Park et al. v. The State of New Jersey et al., Docket No. L 3825-71 P.W. are hereby dismissed.

Ill

We now reach the “vexing and thorny” issue to which the court previously referred. The Fifth Amendment to the United States Constitution provides, “nor shall property be taken for a public use without compensation.” It has similarly been held that the Fourteenth Amendment of the United States Constitution includes a requirement that states must compensate an owner when it takes private property for a public purpose. Chicago, B. & Q. R. R. Co. v. Chicago, 166 U. S. 226, 241, 17 S. Ct. 581, 586, 41 L. Ed. 979, 986 (1897). The New Jersey Constitution also provides for the same. N. J. Const. (1947), Art. I, par. 20.

The question confronting this court is whether the exercise of the Commission’s power to regulate the lands in question contravened the aforementioned constitutional provisions.

No plaintiff disputes the Commission’s compliance with the statutory guidelines relating to subdivision in general. N. J. S. A. 13:17-13 and 14 set forth the standards for reviewing subdivision applications and call for the adoption of resolutions by the Commission relevant thereto. In this case, the Commission in its communications with the plaintiffs indicated that it had acted pursuant to such a resolution. N. J. S. A. 13:17-18 governs the waiver of compliance with the subdivision regulations.

In considering the problem of distinguishing between “regulation” and “taking” it is perhaps appropriate to begin with the oft quoted statement of the issue by Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922) :

Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legislature but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power.

Looking at the facts in the matter at hand, it is clear that the plaintiffs, by the resolution of the Commission, will be denied the opportunity to improve their lands. This is a temporary condition and is subject to a final determination as to whether the Authority will condemn. When litigation concerning the constitutionality of the Authority is terminated, it will, depending on the outcome of that litigation, act with respect to plaintiffs’ property. This action must clearly be expeditious and with dispatch just as the courts have acted expeditiously to adjudicate the various constitutional issues.

One collateral note should be disposed of at this point. Plaintiffs declare that the Authority has definitely determined to condemn or purchase their lands. I find no indication that such a definite determination has been made. A review of the pleadings, briefs and exhibits reveals that the Authority has only stipulated preliminarily that the lands in dispute may comprise the eventual site. The communication of the Commission to the plaintiffs reveals that subdivision applications shall be denied “pending a final determination by the New Jersey Sports and Exposition Authority regarding the site of the proposed project.” Moreover, a final determination cannot possibly be made at this juncture. Just as the Giants’ lease is subject to the outcome of the litigation involving the Authority, so are any determinations or plans with respect to the site of the Complex subject to judicial review of the act. Accordingly, I find that no definite plans relevant to the plaintiffs’ properties have been or can be made; no such inference can properly be gleaned from the facts.

In seeking guidance with respect to the issue at hand from the United States Supreme Court, a less than clear or consistent picture emerges. Clearly, one of the major considerations has been, as Mr. Justice Holmes states, the extent or magnitude of the regulation or taking. Thus in Pennsylvania Coal, supra, the abridgment of the right to mine coal under plaintiff’s property was held to constitute a taking. Yet, in other cases, substantial interferences with certain rights were considered not to have constituted a taking. In Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205 (1833), for example, a state statute which destroyed entirely the highly valuable property rights of liquor merchants was held not to constitute a taking. And, in Euclid v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926), zoning restrictions on the use of property which severely curtailed the value of plaintiff’s property were upheld. See, however, United States v. Causby, 328 U. S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206 (1946), holding that regular and frequent flights over private property by low-flying military planes constituted a partial taking for which compensation had to be paid.

The Supreme Court has also discussed the public interest in evaluating such cases. Thus in Panhandle Eastern Pipe Line Co. v. State Highway Comm., 294 U. S. 613, 55 S. Ct. 563, 79 L. Ed. 1090 (1935), the court held that a pipeline company could not be compelled to move its lines at its own expense in order to permit the construction of highways over its lines. The court emphasized the lack of any danger to the public from the lines and distinguished cases which had held that railroads were required to eliminate grade crossings at highways to avoid danger to the public. See also, Goldblatt v. Hempstead, 369 U. S. 590, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962), holding that an ordinance which eliminated the right of the defendant to excavate gravel and destroyed the beneficial use of the property was passed as a safety measure to avoid a public menace and did not constitute a taking. The appellant therein was held not to have met the burden of proving that the excavating would have a de minimis effect on the public safety.

While the federal cases are somewhat obscure in their consistency, our courts provide a somewhat clearer picture. In Grosso v. Board of Adjustment of Millburn Tp., 137 N. J. L. 630 (Sup. Ct. 1948), an application for a variance by plaintiff was denied by the defendant. The variance would have permitted an automobile showroom and service garage in a single-family residential zone. Pending a determination by the Board of Adjustment, an ordinance was enacted changing the “official map.” The effect of the map was to place the plaintiff’s property in the midst of the bed of a proposed street. Accordingly, the variance was denied. The court, speaking through Justice Heher, held that:

It was plainly not open to the defendant municipality, in the exercise of the planning power, to dedicate the locus to highway uses on the “official map” and thereby deprive the landowner of all use thereof, without making compensation, until the municipality was prepared to lay out the street. That would constitute a palpable deprivation of the property without due process of law. [at 633]

The Grosso case was subsequently cited in Plainfield v. Middlesex Borough, 69 N. J. Super. 136 (Law Div. 1961). In that case, the municipality sought to purchase the land in question from the plaintiff for the use of public schools. The plaintiff rejected the offering price of the defendant. Thereafter, the municipaltiy enacted an ordinance limiting the use of plaintiff’s property for a school, public parks or playground. The effect of the ordinance was to drive down the value of the plaintiff’s land and limit his ability to find a purchaser. The court held that while the ordinance conceivably permitted the sale of the land to a private school, the ordinance was confiscatory and constituted a taking if not voided.

While the Grosso case illustrated a case of an outright taking of the plaintiff’s property through a zoning ordinance by placing it in a bed of a street which would ultimately be condemned, the Plainfield case exhibited a regulatoiy action by the municipality which the court held was tantamount to a taking.

Both decisions were cited in the subsequent case of Morris County Land, etc. v. Parsippany-Troy Hills Tp., 40 N. J. 539 (1963). There, the defendant municipality adopted a zoning ordinance which greatly restricted the plaintiff’s land. The land was primarily swampland and tideland. The ordinance permitted the following uses:

* * * agricultural uses; raising of woody or herbaceous plants; commercial greenhouses; raising of aquatic plants, fish and fish food (with a one-family dwelling as an adjunct to any of these uses, provided its lowest floor was a specified distance above flood level) ; outdoor recreational uses operated by a governmental division or agency; conservation uses * * * hunting and fishing preserves; public utility transmission lines and substations; radio or television transmitting stations and antenna towers; and township sewage treatment plants and water supply facilities, [at 545]

Plaintiff sought permission to develop the laud which permission was denied. Justice Hall speaking for the court concluded from the evidence that the “almost “freezing’ regulations were enacted as a stopgap or interim measure with the expectation or hope that higher governmental authority might well acquire the area as part of a large and much discussed flood control project to benefit the entire Passaic Valley — a project which has not yet come to pass.” Id. at 544. The court then went on to hold that the restrictions were far too restrictive and stated:

While the issue of regulation as against taking is always a matter of degree, there can be no question but that the line has been crossed where the purpose and practical effect of the regulation is to appropriate private property for a flood water detention basin or open space. These are laudable public purposes and we do not doubt the high-mindedness of their motivation. But such factors cannot cure basic unconstitutionality. * * * [T]he uses are necessarily so all-encompassing as practically to prevent the exercise by a private owner of any worthwhile rights or benefits in the land, [at 557]

The court in Morris County Land, supra, introduced the concept of “freezing” or stop-gap measures pending ultimate condemnation. But the court noted that no condemnation was in sight. The question whether the same result would be reached where condemnation or a decision to condemn is imminent was not decided. Thus, all of the foregoing cases involved situations where, unlike the present case, the landowners were denied the beneficial use of their lands for unlimited periods of time.

The preceding undecided issue was not long in waiting for clarification. In Lomarch Corp. v. Mayor of Englewood, 51 N. J. 108 (1968), the issue arose in the context of the Official Map Act, N. J. S. A. 40:55-1.32, 1.38. The plaintiff in that case applied to the defendant for approval of its plans to subdivide some 16 acres of land in order to construct single family dwellings. Pending consideration of his application, the defendant, pursuant to N. J. S. A. 40 :55-1.32 and N. J. S. A. 40:55-1.34, adopted an ordinance which placed the land on the official map of the city and designated it land reserved for use as a park. The applicable statute provided that no improvements were to be permitted or undertaken on property so designated. However, if, within one year after the approval of the map, the municipality shall not have entered into a contract to purchase or undertaken condemnation proceedings, the owner shall not be bound by the reservation. The effect of the statute, as pointed out by the court, was to freeze for a one year period any attempt to develop the designated land. Id. at 111.

The court held:

Whenever the legislature authorizes municipal action which, if taken, would require, under the Constitution, that just compensation be paid, it follows that if the municipality wishes to exercise that power it must comply with the constitutional mandate and pay. The statute is not constitutionally defective for failure to expressly provide for compensation.
Consonant with the foregoing, we conclude that the “option” for the purchase of land upon the unilateral action of the municipality without any consensual action of the landowner, was statutorily granted to the municipality only upon the implied duty and obligation to make payment of adequate compensation to the landowner for the temporary taking and his deprivation of use. [at 113]

The Lomarch decision was somewhat puzzling. There was little discussion pertaining to previously adjudicated cases in arriving at the conclusion that the act constituted a “temporary taking,” although Morris County Land Improvement Co. was cited. Moreover, while it was clear that the defendant was ordered to compensate the defendant on the basis of constitutional mandates, the defendant was not ordered to condemn. Nor was compensation ordered to be paid forthwith. The court merely went on to suggest the manner in which just compensation was to be paid, presumably at a time when the municipality determined to condemn or not.

While it would seem at first blush that the present matter is governed by Lomarch, a second line of cases, relied upon by both plaintiffs and defendants, is relevant to some extent. These cases deal with land which is declared blighted for the purpose of urban renewal.

As previously noted, the case of Wilson v. Long Branch, supra, held that a declaration of blight does not in itself eonstitute a “taking” for which compensation is required. Wilson recognized that such a declaration tends to lessen the value of the land in question and in effect prevents the sale ox improvement of the property. 27 N. J. at 374. However, as subsequently pointed out in the case of Jersey City Redevelopment Agency v. Kugler, supra, 58 N. J. at 380 and 382, Wilson never established the amount of damages or the formula for arriving at just compensation. Similarly, in Lyons v. City of Camden, 52 N. J. 89 (1968), the court noted:

There can be no doubt that a declaration of blight ordinarily adversely affects the market value of property involved. This is unfortunate because in so many instances the physical taking of the property does not occur for a number of years. In the meantime the owner can only wait for that ultimate taking; there is usually no reasonable market otherwise open to him for sale of the property.
In fairness, it is not enough to assure the property owner that at some time, perhaps years hence, he will receive the market value of his property as of the date of the declaration of blight. Meanwhile, he and his family may well be imprisoned economically in the blighted area because he needs the capital invested in the blighted area dwelling in order to purchase a new home elsewhere. Consequently, he must endure the deterioration that afflicts a neighborhood at an accelerated pace following a declaration of blight, [at 99]

If the consequences that accrue from a declaration of blight are so devastating in terms of the value of the land involved, it is indeed difficult to comprehend why in Lomarch the regulation amounted to a taking, while in blight cases, no taking is involved. The fact that in one case the condemning authority may decide not to condemn as stated in Danforth v. United States, supra, cannot serve to distinguish the eases. In Lomarch too, it was possible for the municipality to abandon its intention to condemn the land. Nevertheless, the court ordered compensation.

A distinction must lie in the fact that in one case, the action taken by the sovereign amounts merely to a diminution in value to the property, while in the other the landowner is denied the beneficial use of the land. The Jersey City case points out that:

It might well be that if the Legislature had not acted, this Court in a proper case would have declared that just compensation within the meaning of the Constitution required valuation as of the date of the declaration.

Moreover, in a subsequent Jersey City ease, Jersey City Redev. Agency v. Bancroft Realty Co., 117 N. J. Super. 418 (App. Div. 1971), Judge Mintz indicates that in a proper case, that is, where evidence could properly support a finding of affirmative conduct on the part of the condemning authority prior to the institution of condemnation proceedings, a constructive or de facto taking may be found. Id. at 424.

It would seem that the Lomarch line of decisions and the decisions dealing with blight are not so far apart as they first appear. As previously indicated, in the blight context, the owner is not deprived entirely of the beneficial use of his property. Moreover, it is clear that the recent Jersey City decisions signal a finding of a constructive or de facto taking in appropriate circumstances. See In re Elmwood Park Project Section 1, Group B, 376 Mich. 311, 136 N. W. 2d 896 (Sup. Ct. 1865); Foster v. Herley, 330 F. 2d 87 (6 Cir. 1964); City of Cleveland v. Carcione, 118 Ohio App. 525, 190 N. E. 2d 52 (Ohio Ct. App. 1963). See also, Board of Educ. of Morristown v. Palmer, 88 N. J. Super. 378, 386-387 (App. Div. 1965), rev’d 46 N. J. 522 (1966), wherein Judge Ooldmann found that a proposed highway would deprive the plaintiff school of the beneficial use of its property by encircling the exits, creating noise and interference, and endangering the students. The Supreme Court reversed on the grounds of additional plans not available to the Appellate Division which rendered the complaint speculative. That is not the case here, where there is no speculation as to the effects of the Commission’s actions. The decision was that no subdivision would be permitted. temporarily.

Relevant to the issue presented by the preceding cases is the defendants’ observation relating to the distinction between constitutional provisions for the payment of compensation. Judge Goldmann in Palmer recognized that certain state constitutions, unlike the New Jersey Constitution, require payment for a “taking or damage,” rather than a “taking” alone. 88 N. J. Super. at 385. The defendants accurately point out that the former provision has consistently motivated more lenient standards and decisions for the payment of compensation than has the latter. See Bakken v. State, 142 Mont. 166, 382 P. 2d 550, 551; Board of Educ. of Morristown v. Palmer, supra 88 N. J. Super. at 385.

While the distinction may serve to explain adjudications in other jurisdictions which seemingly contradict the position taken by the defendants herein, see e. g., Kissinger v. Los Angeles, 161 Cal. App. 2d 454, 327 P. 2d 10 (Sup. Ct. 1958); Peacock v. County of Sacramento, 271 Cal. App. 2d 845, 77 Cal. Rptr. 391, 37 A. L. R. 3d 163 (D. Ct, App. 1969); Miller v. Beaver Falls, 368 Pa. 189, 82 A. 2d 34 (Sup. Ct. 1951); Hager v. Louisville & Jefferson County P. & Z. Comm., 261 S. W. 2d 619 (Ky. Ct., App. 1953), it is obvious that it does not dispose of the problem. It is indeed difficult to ponder with any degree of certainty upon the results of those cases had the constitutional language been otherwise. More importantly, the distinction serves little use in considering the applicability of Lomarch to the present situation.

Eeturning therefore to the two lines of decisions set forth above, it remains to be decided which of the two should govern the instant situation. While the inquiry thus far has served to reconcile the different approaches taken in the blight and Jjomarch cases, it is incumbent upon the court to consider the practical effects of both. The question of when a taking is accomplished in the context of regulatory action generally arises at the point of actual condemnation when damages are to be assessed. The primary exceptions have been situations wherein the regulatory action has deprived the landowner of all beneficial use of 'his lands for indeterminate lengths of time. Lomarch presents a further exception. In Lomarch, the length of time was fixed by statute to one year. A decision as to damages at that stage of the case was eminently practical and warranted under the circumstances. On the other hand, the blight cases provide authority for just compensation in situations which arise after actual condemnation occurs.

It is apparent that the present case falls into the factual structure of neither Lomarch nor the blight cases. Nor are the Grosso, Plainfield or Morris County cases squarely on point. In the present situation, a determination as to condemnation is imminent. Any delay is not occasioned, as in Grosso and Morris County, by administrative consideration, but appeals within the court system as to the constitutionality of the Complex statute. As previously indicated, this process has been expeditious and timely. As such, a denial of the right to develop their properties continues as to the defendants on a month-to-month basis.

I find that the regulation exercised by the Hackensack Meadowlands Development Commission does not constitute such a deprivation of property rights as to warrant a determination of damages or the ordering of condemnation by the defendants at this time.

And there is no inclination on the part of this court to declare the Commission’s actions arbitrary and capricious. Danforlh v. United States, supra, provides support for a realistic appraisal of these cases. Just as the Supreme Court in that case recognized that a requirement that the Authority therein condemn a blighted area would be impractical to the extent that the Authority might decide never to redevelop the area in question, so here, it would be ludicrous indeed if a condemning authority were required to permit improvements to properties only to demolish them at some later date. At least in part, this result is posed by plaintiffs as desirable. Kirschke v. City of Houston, 330 S. W. 2d 629 (Tex. Ct. of Civil Appeals), app. dism., 364 U. S. 474, 81 S. Ct. 242, 5 L. Ed. 2d 221 (1960); Froehlich v. Johnson, 14 Misc. 2d 33, 176 N. Y. S. 2d 505 (Sup. Ct. 1958) aff’d o.b., 7 A. D. 2d 757, 181 N. Y. S. 2d 771 (App. Div. 1958); Hunter v. Adams, 180 Cal. App. 2d 511, 4 Cal. Rptr. 776 (D. Ct. App. 1960).

Accordingly, in weighing the factors of the magnitude of the loss to the plaintiffs, the time elements involved, the public interest and the discreet exercise of the police power, it is my conclusion that the issues brought before the court at the present time do not constitute a deprivation of property rights requiring a taking or payment of damages by the defendants.

It may well be that the plaintiffs are entitled to compensation for the delay. It may well be that the Eminent Domain Act of 1971 which became effective December 21, 1971 (N. J. S. A. 20 :3-1 et seq.) will determine the date as of which compensation, if any, shall be determined. There are three guidelines:

Just compensation shall be determined as of the date of the earliest of the following events: (a) the date possession of the property being condemned is taken by the condemnor in whole or in part; (b) the date of the commencement of the action; (c) the date on which action is taken by the condemnor which substantially affects the use and enjoyment of the property by the condemnee. [N. J. S. A. 20:3-30]

But in light of the imminence of a final decision and the fixing of the time during which they will be barred from improving or utilizing their properties, that determination must await a later date. The plaintiffs may, at that time, present these issues to the court.

In accordance with the foregoing, counts numbers 1, 5 and 9 of the complaint in the action entitled M. Vincent Costa v. The State of New Jersey et al., Docket No. L 6241-71 P. W.; counts 1, 3 and 4 of the complaint in the action entitled East Rutherford Industrial Park, Inc., et al. v. The State of New Jersey et al., Docket No. L 3825—71 P. W.; and counts 1, 2 and 3 of the complaint in the action entitled Smila-Rutherford Inc., v. Hackensack Meadowlands Development Commission et al., Docket No. L 13797-71 P. W. are dismissed without prejudice.

The motions for summary judgment brought by the New Jersey Sports and Exposition Authority are granted. The motion for summary judgment brought by the Hackensack Meadowlands Development Commission in the Smila-Rutherford action is also granted. While no formal motion was brought by that agency in the other two eases, the complaints are dismissed as against the State and Commission.

Present order.


author: Per Curiam.

text:
    STATE TROOPERS FRATERNAL ASSOCIATION, INC., A CORPORATION OF THE STATE OF NEW JERSEY, STANLEY HETMAN, ROBERT BABIAK, AND THOMAS ISKRZYCKI, PLAINTIFFS-APPELLANTS, v. STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF STATE POLICE AND STATE OF NEW JERSEY, DEPARTMENT OF CIVIL SERVICE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 23, 1972
    Decided June 7, 1972.
    Before Judges Labkecque, Kolovsicy and Allcoen.

      Mr. Frank J. Miele argued the cause for appellants, [Biker, Danzig, Scherer & Brown, attorneys; Gerald A. Libia, of counsel; William O. Dodd, on the brief).

      Mr. Theodore A. Winard, Deputy Attorney General, argued the cause for respondents (Mr. George F. Kugler, Jr., Attorney General, attorney).
   Per Curiam.

We concur in the finding and determination of the trial judge that the members of the State Police are excluded from the classified service, substantially for the reasons set forth in the opinion of Judge Seidman.

On this appeal, the plaintiffs also argue the constitutional issue of improper delegation of legislative authority. Although this issue was not raised below and, consequently, there is some doubt that it should be considered at this stage of the proceedings, Deerfield Estates, Inc. v. East Brunswick, 60 N. J. 115 (1972), we nevertheless will consider and dispose of the issue on the merits.

A review of the legislation discloses no delegation of legislative authority whatever. But, even assuming a delegation of legislative authority, the delegation is accompanied by adequate standards. Motyka, et al. v. McCorkle, et al., 58 N. J. 165 (1971); Schierstead v. City of Brigantine, 20 N. J. 164 (1955).

So far as concerns procedural safeguards, they necessarily inhere in the ready availability of judicial supervision and review whenever lack of fairness in the performance of the administrative procedure is asserted. Burton, et al. v. Sills, 53 N. J. 86, 91 (1968).

Affirmed.


text:
    F. S. DONAHUE, SANTO & CO., F. STEVEN DONAHUE, ANDREW RISSO, GREGORY A. YACULLO, AND RAYMOND G. SEAKEN, PLAINTIFFS-APPELLANTS, v. GEORGE F. KUGLER, JR., ATTORNEY GENERAL FOR THE STATE OF NEW JERSEY, JOSEPH F. KRUPSKY, CHIEF OF THE NEW JERSEY BUREAU OF SECURITIES, THE NEW JERSEY BUREAU OF SECURITIES, STEPHEN G. WEISS, SPECIAL CHIEF OF THE NEW JERSEY BUREAU OF SECURITIES, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 30, 1972
    Decided June 8, 1972.

      Before Judges Coheord, Matthews and Eritz.

      Mr. Donald A. Robinson argued the cause for appellants (Messrs. Robinson, Wayne & Greenberg, attorneys; Mr. Nicholas L. Ribis, on the brief).

      Mr. Charles R. Parker, Deputy Attorney General, argued the cause for respondents {Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   Per Curiam.

The Chancery Division held that the Attorney General has authority to designate a person totally unconnected with the Bureau as “Special Chief” of the Bureau of Securities in the Department of Law and Public Safety for the sole and limited purpose of conducting the hearing and deciding the penalty in the matter of alleged violations of the Uniform Securities Law, N. J. S. A. 49:3-47 et seq., by the plaintiffs.

The occasion for the questioned designation was a previous injunction by the same Chancery Division judge against the hearing and determination of the matter by Joseph E. Krupsky, Chief of the Bureau, on the ground of unconstitutional concentration in said Krupsky of the administrative functions of investigator, preliminary finder of fact and gwasi-judicial adjudicator of guilt. That decision has not been appealed by the State and of course is not now before us for review.

Preliminarily, the defendant argues that there is no jurisdiction in the Chancery Division to entertain this action as the subject matter thereof, state administrative action, is solely for review by appeal to the Appellate Division. Since the matter has been fully briefed, the case is here, and the issue is of public concern, we go to the merits.

Our close anatysis of the statute discloses no evidence of express or implied legislative intent that the Attorney General is empowered to designate any officer having to do with the administration of the statute other than the Bureau Chief himself. Here the designation was not only by the Attorney General, but was of one purported to be authorized to act as ad hoc Bureau Chief for a particular case only. The fact that the Bureau Chief serves at the pleasure of the Attorney General, N. J. S. A. 49:3—66, does not imply a power to supersede him temporarily and empower a stranger to act in his place for a specific case only. (Compare the power of the Bureau Chief to employ officers and employees, N. J. S. A. 49:3-66, and to designate hearing officers, N. J. S. A. 49:3-68(b)). Were it otherwise, and in the context of the occasion for the special designation here, we would be faced with the potential spectacle of a special chief being designated by the Attorney General for every hearing in matters where the Bureau Chief had made the preliminary finding of fact in accordance with N. J. S. A. 49:3-58. We cannot deem such a prospect remotely within legislative contemplation. If the prior adjudication of uneonstitutionality ultimately stands, and other expedients are not available through the other provisions of the act cited above or otherwise, legislative revision of the act would obviously be indicated as the appropriate course for provision of administrative sanctions.

In the meantime the agency is not without other recourse against plaintiffs if they are in fact in violation of the act. Any illegal action by them may be enjoined and so may any activity of any nature in furtherance of the securities business. N. J. S. A. 49:3-69(a) and (b). Moreover a receiver may be appointed. Id., (c). Further, willful violation of the act may be prosecuted as a misdemeanor. N. J. S. A. 49:3-70 (a). And, finally, pecuniary penalties are recoverable. Id., (b).

Eeversed; no costs.


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

text:
    GOLDA KRACKOMBERGER AND WILLIAM KRACKOMBERGER, HER HUSBAND, PLAINTIFFS-APPELLANTS, v. VORNADO, INC., A KANSAS CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 23, 1972
    Decided June 9, 1972.

      Before Judges Labbecque, Kolovsky and Allcoen.

      Mr. Richard J. Levinson argued the cause for appellants (Messrs. Levinson, Conover, Fink & Axelrod, attorneys).

      Mr. Robert J. Casidli argued the cause for respondent (Mr. Edward C. Eillis, of counsel and on the brief).
   The opinion of the court was delivered by

Labrecque, P. J. A. D.

Plaintiff Golda Kraekomberger was injured on December 9, 1969 as a result of a fall while shopping in a store owned and operated by defendant Vornado, Inc. She sued for her injuries and her husband, William, joined per quod. They appeal from a judgment in favor of defendant and from the denial of their motion for a new trial.

The facts were not in dispute (defendant produced no witnesses). The accident occurred as plaintiff and a woman companion were walking through an aisle in the ladies wear section of defendant’s “Two Guys From Harrison” discount store in East Brunswick, Middlesex County. Plaintiff testified that she slipped and was caused to fall on a clear plastic coat or dress cover (in store parlance, a plastic blouse protector) which she had not previously observed in the aisle. Her companion, who had been following behind her due to the narrowness of the available aisle space at that point, had not previously observed it. The aisle was bordered on one side by display counters and on the other side by racks of clothing. Plastic covers of the type which allegedly caused plaintiff to fall were used in displaying certain items of merchandise on the racks. At the place where she fell the racks intruded into the aisle space.

The case was tried as to liability only. In response to written interrogatories the jury found negligence on defendant’s part and contributory negligence on the part of plaintiff. The court molded the verdict to one of no cause for action and entered judgment accordingly. A subsequent motion for a new trial was denied.

Among the requests to charge submitted by plaintiffs was one which provided that “Mrs. Kraekomberger had the right to assume that the floor of the defendant’s store was free from obstruction as she walked down the aisle. This right existed until she was aware or should have been aware of the hazard which caused her fall.” Plaintiffs challenge the court’s refusal to so charge as error. We agree.

Plaintiff was a business invitee to whom defendant owed the duty of exercising reasonable care to maintain the aisle in a reasonably safe condition for passage. Finnegan v. Goerke Co., 106 N. J. L. 59, 61—62 (E. & A. 1929). See also Wollerman v. Grand Union Stores, Inc., 47 N. J. 426 (1966). The layout of the store was such that shoppers walking down the aisle were confronted with a display of defendant’s products on both sides which they were invited to examine and purchase. Shoppers desirous of purchasing an article displayed on a rack would remove the article from the rack and take it to the cashier. There was no contention at the trial that plaintiff was not using the aisle in the manner intended. She testified she had already picked out three items from the counter and had them in her hand.

The defense of contributory negligence was based upon plaintiff’s admission that immediately before she fell she had been looking at the displays on the counter rather than looking at the floor. However, plaintiff had the right to assume that defendant had performed its duty of exercising reasonable care to maintain the aisle in a reasonably safe condition. Finnegan v. Goerke Co., supra, 106 N. J. L. at 62; Cooper v. Reinhardt, 91 N. J. L. 402, 404 (S. Ct. 1918). Cf. Bates v. Valley Fair Enterprises, Inc., 86 N. J. Super. 1, 7-9 (App. Div. 1964). Her right to assume that the aisle was clear, until she had notice or was chargeable with notice to the contrary, had a direct bearing on the issue of whether she was in the exercise of reasonable care in proceeding as she did. The request asked no more than that the jury be charged as to a rule directly applicable to plaintiff’s conduct. It was not enough to charge, as the court did, that she was not required to maintain a continuous surveillance of the floor. Contributory negligence could be based only upon the fact that immediately before the accident she had been looking at the display rather than the floor.

We are convinced that the omission to so charge worked substantial prejudice to plaintiffs. This is especially so in view of the somewhat attenuated charge as to con-tributary negligence •—• which the plaintiffs also challenge. Thus the court, after defining contributory negligence, charged that:

For breach of any duty as I have set them out to you, you may conclude that the plaintiff was, herself, negligent. You will then go on to a determination whether such negligence by the plaintiff was a contributing, proximate cause of this accident.
You will consider my previous charge to you on proximate cause, and you will apply the law as I have stated it to you in my previous charge on proximate cause.
A plaintiff who is found guilty of contributory negligence contributing in any way to the accident to herself is guilty of contributory negligence and is not entitled to your verdict. (Emphasis added)

Plaintiffs’ counsel objected to this portion of the charge, pointing out that to find plaintiff guilty of contributory negligence the jury was required to find that her asserted negligence was a substantial factor in bringing about the accident.

We incline to the view that the failure to so charge was error. In O’Brien v. Bethlehem Steel Corporation, 59 N. J. 114, 124-135 (1971) (decided one month after the trial), the court held that a plaintiff’s contributory negligence would not operate as a bar to his claim unless it is a substantial factor in bringing about his harm. See also Dziedzic v. St. John’s Cleaners & Shirt Launderers, Inc., 53 N. J. 157, 161, 164-165 (1969); Restatement, Torts 2d § 465, at 510 (1965). In O’Brien the court noted that when phrases such as “to any extent,” “however slight,” “in any degree,” are used to modify negligence, it should be made clear to the jury that plaintiff’s negligence must be found to be a substantial factor in bringing about the harm complained of. O’Brien, supra, 59 N. J. at 125. It recommended that in the future the use of such phrases be eliminated. See also Pignatore v. Public Service Coordinated Transport, 26 N. J. Super. 234 (App. Div. 1953).

Defendant seemingly does not quarrel with the law but argues that the court, in defining proximate cause in relation to defendant’s negligence, had included the substantial factor rule and, since the court in charging contributory negligence had referred to its prior charge as to proximate cause in relation to negligence, that was enough. We disagree. In the context of the charge as given, we are convinced that the omission to charge fully on the subject opened the door to misunderstanding by the jury. The court having elected to separately utilize the “in any way” charge should have completed it to meet the objection. The mere fact that plaintiff was not looking at the floor was not enough to establish contributory negligence — there was no certainty that even had she been looking down she would have observed the offending object —- either because it was clear and colorless or because of the racks which were encroaching upon the aisle.

We find no merit to the remaining point raised by plaintiffs.

The errors which we have noted mandate a new trial. Since the issues of negligence and contributory negligence are so closely interwined, the new trial should be as to both issues.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GERALD KARR AND BARRY WALKER, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 23, 1972
    Decided June 12, 1972.

      Before Judges Lewis, Halpebií and Loba.

      Mr. Richard L. ZucJcer argued the cause for appellants.

      Mrs. Sara A. Friedman, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   Per Curiam.

Defendants were convicted in municipal court for treaspassing on school property in violation of N. J. S. A. 2A:170-31. After a trial de novo on the record below, the Essex County Court affirmed the convictions. Both courts imposed suspended sentences.

The record reveals that defendants, who were not students at the school, set up a card table on school property in connection with their distribution of leaflets, booklets and buttons for the purpose of promoting an anti-war demonstration to be held in Washington, D. C. They refused to leave when asked by the assistant principal, but did so after police arrived and so requested.

Approximately one hour later defendants returned to the school property and again set up their table and paraphernalia, including a cannister for the deposit of contributions to the anti-war effort. Ao disturbance was caused by defendants, although some students were standing around the table during school hours. Defendant Walker testified they would offer a leaflet to any person asking them what they were doing; that they did not force a leaflet on anyone, and that they did not overtly solicit funds. Defendants were arrested and charged with illegal trespass.

Appellants urge that their actions are protected by the First Amendment of the Federal Constitution and that N. J. S. A. 2A:170-31 is unconstitutional as applied to them. They further argue that the regulations promulgated by the local board of education, and more particularly “Section J” thereof dealing with “Money Drives,” were not utilized at the municipal court level and hence should not have been considered by the County Court at the de novo trial. Additionally they contend “Section J” was not validly enacted and, in any event, is not applicable to nor enforceable against them.

Admission of the regulations was harmless since the County Court judge did not consider them in relation to the substance of defendants’ conduct but rather with relation to the authority of the school officials to request them to leave school grounds, and which authority they had as agents of the board of education, quite apart from the alleged authority conferred upon them by the school regulations. Then, too, the convictions were not for violating the regulations, but for violating a criminal trespass statute, which provides that any person who trespasses on any lands, after being forbidden to do so by the owner, is a disorderly person and may be punished by a fine of not more than $50. The regulations were only probative collaterally to demonstrate defendants alleged unlawful activities incident to the illegal trespass.

None of the cases cited by defendants supports their position that their activity on school grounds was protected by the First Amendment. Defendants’ reliance upon cases such as Tinker v. Des Moines Independent Community School District, 393 U. S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969) and State v. Besson, 110 N. J. Super. 528 (Cty. Ct. 1970) is misplaced. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U. S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968), and Shelton v. Tucker, 364 U. S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960), are inapposite.

Here we have a simple trespass case. Defendants were not students and were engaged in non-school activities and they returned to the school grounds after they had been forbidden to be on the property. The public’s right and overriding need to have its schools run without outside interference permits a reasonable limitation on defendants’ First Amendment rights. Anderson v. Sills, 56 N. J. 210 (1970). See also Adderley v. Florida, 385 U. S. 39, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966).

Affirmed.


text:
    INTERNATIONAL UNION OF AUTOMOBILE AEROSPACE AND IMPLEMENT WORKERS OF AMERICA (UAW), ET AL., COMPLAINANTS-APPELLANTS, v. TOWNSHIP OF MAHWAH, NEW JERSEY., ET AL., RESPONDENTS-APPELLEES.
    Superior Court of New Jersey Appellate Division
    Argued May 22, 1972
    Decided June 12, 1972.
    Before Judges Sullivan, Lbonakd and Collesteb.

      Mr. Paul Ciblin argued the cause for appellant Begion 9, United Auto Workers Housing Corporation.

      Mr. Richard F. Bellman, a member of the New York Bar, argued the cause for appellant National Committee Against Discrimination in Housing, Inc.

      Mr. Alfred S. Nugent, Jr. argued the cause for respondents Township of Mahwah and members of the Township Committee (Messrs. Orbe and Nugent, attorneys).

      Mr. Thomas W. Dunn argued the cause for respondents Planning Board of the Township of Mahwah and members of the Planning Board of the Township of Mahwah (Messrs. Wittman, Anzalone, Bernstein & Dunn, attorneys).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, filed a statement in lieu of brief on behalf of Division of Civil Rights (Mr. David Ben-Asher, Deputy Attorney General, of counsel).

      Mr. Michael R. Griffinger, filed a brief on behalf of American Jewish Committee as amicus curiae.

      Messrs. Lowenstein, Sandler, Brochin, Kohl & Fisher, filed a brief on behalf of the League of Women Yoters of the United States of America, New Jersey and Bergen Count}'', as amicus curiae (Ms. Sarel M. Kandell, attorney, for the League of Women Yoters of the United States, of counsel; Mr. Michael L. Rodburg and Mr. Stephen N. Dermer, on the brief).

      Messrs. Mazer & Lesemann filed a brief on behalf of the Pair Housing Council of Bergen County, as amcius curiae (Mr. Kenneth S. Abraham, Mr. Peter Buchsbaum and Mr. Arthur J. Lesemann, on the brief).
   Per Curiam.

Complainants-appellants filed a complaint with the New Jersey State Division on Civil Rights (Division) alleging that respondent Township of Mahwah’s zoning ordinance and land use policies and practices thereunder were racially discriminatory and in violation of New Jersey Laws Against Discrimination, as well as contrary to state and federal constitutional guarantees of due process and equal protection of the laws.

Mahwah’s current zoning ordinance requires that all future residential construction be single-family homes; construction of multi-family dwellings of any type is barred. The ordinance also requires that new single-family homes be built on lots no smaller than one acre.

Complainants charged that Mahwah is experiencing substantial industrial growth and that a number of industrial plants have located in Mahwah and employ a large number of lower income workers. It is alleged that Mahwah’s zoning and land use policies and practices exclude from residency the large majoritjr of the work force at the Mahwah plants because of their lower income, particularly black and Spanish-speaking persons. The Division was asked to assume jurisdiction of the complaint and order the township to submit for approval by the Division a new zoning ordinance which would provide for and insure the development of multi-family residential units to serve and meet the housing needs of persons employed in Mahwah.

The Division, after receiving a written opinion from the Attorney General that it did not have the statutory power to review municipal zoning practices, dismissed the complaint on the ground that it did not have jurisdiction “to evaluate charges of racial discrimination in zoning.” Complainants appeal, the sole issue raised being whether the Division should have heard and decided the matter on its merits.

We affirm the Division order for the reason stated therein.

There is no doubt that the legislature by enacting the Law Against Discrimination, N. J. S. A. 10:5—1 et seq., has granted the Division broad power “to prevent and eliminate discrimination in the manner prohibited by this act against persons * * * and to take other actions against discrimination * * * as herein provided” with “general jurisdiction and authority for such purposes.” N. J. S. A. 10:5—6. However, the jurisdiction vested in the Division is over particular acts of discrimination. It does not extend to charges of discrimination levelled against duly enacted zoning ordinances. The Division’s power to issue a cease and desist order and take implementing affirmative action is simply not appropriate where zoning is involved. It is to be noted that the Division’s power to enforce its own orders is limited to the filing of a complaint in the Superior Court.

N. J. Const. 1947 Art. IV, § VI, par. 2, provides that the Legislature may enact general laws under which municipalities other than counties may adopt zoning ordinances and that such laws shall be subject to repeal or alteration by the Legislature. In N. J. S. A. 40:55-30 et seq., the Legislature, pursuant to the constitutional authorization, has enacted laws granting municipalities authority to adopt zoning ordinances. Review of these municipal legislative acts has always been in the courts. We find nothing in the Law Against Discrimination, supra, to suggest that the Division was given jurisdiction to pass upon a charge of racial discrimination involving a municipal zoning ordinance. Indeed, we are informed by counsel for complaints that no civil rights agency in any state has attempted to exercise jurisdiction in the field of zoning.

Our recent decision in Blair v. Mayor, etc., Freehold, 117 N. J. Super. 415 (App. Div. 1971), certif. den. 60 N. J. 194 (1972) is not at odds with the foregoing. In Blair all we held was that the Division on Civil Rights had jurisdiction to pass on charges of discrimination and unlawful employment practices involving admission procedures for membership in the borough volunteer fire department.

At oral argument of this appeal counsel for appellants conceded that the courts have full jurisdiction to hear and decide the critical issue (whether the Mahwah zoning ordinance is racially discriminatory), but suggested that the Division would be the more appropriate forum since it could establish state-wide uniformity and guidelines for zoning ordinances, whereas the courts could only act on a case-by-case basis.

We do not agree. A court ruling becomes the case law of this State. The courts have consistently established state-wide standards for municipal zoning ordinances. For a recent trial court decision showing how directly a court can deal with a charge of economic discrimination against the poor in a zoning ordinance, see Southern Burlington County NAACP v. Mount Laurel Tp., 119 N. J. Super. 164 (Law Div. 1972). See also Oakwood at Madison, Inc. v. Madison Tp., 117 N. J. Super. 11 (Law Div. 1971).

Our conclusion is that the Division does not have jurisdiction to adjudicate that a municipal zoning ordinance is discriminatory and must be revised.

Affirmed.

      We do not agree with the Attorney General’s opinion that the Division’s jurisdiction is limited to the acts of discrimination specified in N. J. S. A. 10:5-12. However, that section does indicate the type of discrimination the Division may “prevent and eliminate.”


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

text:
    FLORENCE RANKIN AND RICHARD RANKIN, PLAINTIFFS-RESPONDENTS, v. RONALD SOWINSKI, D.D.S., JOSEPH T. RUFF, D.D.S. AND MARK DONNER, D.D.S., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued November 8, 1971
    Decided June 3, 1972.

      Before Judges Collester, Mintz and Lynch.

      Mr. Harry R. Burton argued the cause for appellants Eon-aid Sowinski and Mark Donner (Messrs. Burton, Quachenboss & Axelrod, attorneys; Robert T. Quachenboss of counsel).

      Mr. John E. Keefe argued the cause for appellant Joseph T. Ruff (Messrs. Cohen, Hoagland, Cohen & Keefe, attorneys).

      Mr. Melvin Tolstoi argued the cause for respondents (Mr. William O. Barnes, Jr., attorney).
   The opinion of the court wras delivered by

Collester, P. J. A. D.

Defendants appeal from the denial of their motions for summary judgment in this dental malpractice action.

On January 15, 1969 Florence Rankin (hereafter plaintiff) instituted suit against defendants to recover damages for injuries sustained as a result of the alleged negligence of the defendants. Her husband joined in the suit per quod. In her complaint plaintiff alleged that on February 3, 1964 Dr. Ronald Sowinski negligently extracted an impacted wisdom tooth causing an injury to her jaw. She also alleged that Dr. Joseph Ruff on February 6, 1964 and Dr. Mark Donner on February 12, 1964 negligently diagnosed her injury and failed to render proper treatment. Defendants answered denying negligence and raised as a special defense the bar of the statute of limitations, N. J. S. A. 2A:14-2. At the subsequent pretrial conference plaintiff added the charge that defendants fraudulently concealed the fact of her injury and the cause thereof.

Following answers to interrogatories and depositions of the parties, defendants moved for summary judgment of dismissal on the ground that plaintiff’s cause of action was barred by the two-year statute of limitations. The court denied the motions and defendants appealed.

The record consists of the pleadings, pretrial order, the interrogatories, and depositions of the parties. Mrs. Rankin testified that Dr. Sowinski extracted her impacted wisdom tooth on February 3, 1964. She said that during the extraction the dentist held the instrument in one hand and gripped her jaw tightly with the other. The hand on her jaw was positioned so as to form a “V” with the thumb and first finger, and Dr. Sowinski kept holding her jaw, applying pressure during the 15-minute period it took to remove the tooth. Two days later, when she began to eat solid foods, she discovered she could not open her mouth wide and that her jaw made a “clicking” noise when she chewed. She testified that she felt an injury had been inflicted upon her by Dr. Sowinski and saw him on February 6. He said the clicking noise was caused by her chewing too much on the right side of her mouth. He recommended that she should consult with Dr. Ruff, an oral surgeon, for his opinion.

Plaintiff testified that she was examined by Dr. Ruff on February 7, 1964. She stated, in answers to interrogatories, that she consulted Dr. Ruff on that day “for the purpose of examining and treating the injury inflicted upon her by Dr. Sowinski.” She said that Dr. Ruff heard the clicking noise and told her that the “joint of her jaw” was slipping — that the jaw shifted to the left side. Dr. Ruff recommended wiring her jaw and prescribed a muscle relaxing drug. He told her to return within a week but she did not do so. She also testified Dr. Euff said “in effect” that there was nothing wrong with her.

On February 14, 1964 Mrs. Eankin was examined by Dr. Mark Donner, an oral surgeon of her own selection. On her first visit Dr. Donner expressed the opinion that the clicking noise was due to a dislocation of the jaw and was caused by pressure having been applied to the jaw area during the extraction. On her second visit, three or four weeks later, Dr. Donner took X-rays of her jaw. He then said that it was not a true dislocation but she had lost fluid in the joint. He recommended cortisone injections to replace the fluid but said it would be painful and he could not guarantee that it would be the answer to the problem. Although she was supposed to return to Dr. Donner she did not do so.

Mrs. Eankin said that the clicking continued but she saw no other doctors or dentists until after she conferred with her lawyer in August 1968. He recommended that she see Dr. Ira Berio ve, a dentist in New York City. She was examined by Dr. Berlove on September 12 and 19, 1968. When asked during the deposition hearing what Dr. Berlove’s X-rays revealed and when she first realized the probability of malpractice existed, her attorney refused to permit her to answer.

In his deposition Dr. Sowinski said he extracted plaintiff’s impacted wisdom tooth on March 3, 1964 but could not recall any complaint by plaintiff thereafter except discomfort which he attributed to the healing process. He referred her to Dr. Euff to put her mind at ease. Dr. Euff testified that he saw plaintiff only once, on March 17, 1964. His examination revealed a clicking of the jaw which he said was probably caused by the extraction. He prescribed a muscle relaxing drug and said it was very likely he told plaintiff about a possible wiring of the jaw. Although she was supposed to return in a week plaintiff did not do so. Dr. Donner testified that he examined plaintiff on March 20, 1964, at which time she complained of a clicking of the right temporomandibular joint. On May 4, 1964 he took X-rays and prescribed a muscle relaxing drug. The X-rays revealed a “slight slippage.” She was to return on May 18 but did not keep the appointment.

The trial judge found that plaintiff knew she had sustained an injury to her jaw immediately after the extraction in 1964. However, he concluded that the discovery rule enunicated in Fernandi v. Strully, 35 N. J. 434 (1961), was applicable and that the statute of limitations did not accrue until plaintiff realized the nature and extent of her injuries. He held that there were factual issues to be determined at a trial both as to the bar of the statute and the claim of fraudulent concealment by defendants.

Defendants contend here, as they did below, that the testimony shows that plaintiff knew her jaw was injured during the extraction in Eebruary or March 1964. They maintain that plaintiff’s cause of action accrued on that day and thus was barred by the two-year statute of limitations. They argue that the discovery rule was not applicable to the facts of the case and, if it did apply, the testimony showed that plaintiff discovered she had been injured by Dr. Sowinski within two or three days after the extraction and before she was examined by Dr. Ruff and Dr. Donner. They further contend that there was no evidence of fraudulent concealment on the part of the defendants.

Plaintiff alleges the discovery rule applies because she did not know she had a cause of action until September 1968 when she was examined by Dr. Berlove. She further alleges that defendants fraudulently concealed the malpractice by Dr. Sowinski and such concealment tolled the accrual of the statute of limitations until she discovered the fraud. She argues that factual issues were raised in the interrogatories and despositions which should be determined by a jury and therefore the court properly denied the motions for summary judgment.

The central issue in this ease is when plaintiff’s cause of action accrued. The statute of limitations, N. J. S. A. 2A:14-2, provides that every action for an injury to a person caused by the wrongful act or neglect of another “shall be commenced within two years next after the cause of any such action shall have accrued.” In Tortorello v. Reinfeld, 6 N. J. 58, 65 (1950), the court, interpreting the statute, said it was firmly settled that the “accrual” of a cause of action means the time when a right first arises to institute and maintain an invasion of one’s rights against the wrongdoer, and that the statutory period is computed from that time.

Several exceptions to the rule have been made by our courts, including the “discovery rule” laid down in Fernandi v. Strully, supra. In that case the evidence indicated that a surgeon during an operation had left a foreign object, a wing nut from a retractor, in the plaintiff’s body which was not discovered until more than three years later. The court held that the case fell within a special grouping or class of cases where the period of limitation of the cause of action began to run when the plaintiff knew or had any reason to know about the foreign object and the existence of a cause of action based upon its presence. The discovery rule was also invoked in Yerzy v. Levine, 108 N. J. Super. 222 (App. Div. 1970), mod. 57 N. J. 234 (1970), where a bile duct was severed during an operation, and in Lopez v. Swyer, 115 N. J. Super. 237 (App. Div. 1971), eertif. granted 59 N. J. 361 (1971), where the patient did not discover X-ray treatments had been negligently administered until five years later. But see Rothman v. Silber, 90 N. J. Super. 22 (App. Div. 1966), certif. denied 46 N. J. 538 (1966), where the court held the discovery rule did not apply in a malpractice suit brought more than two years after an operation during which negligence in the administration of anesthesia was alleged to have been the cause of plaintiff’s injury.

Motions for summary judgment pursuant to R. 4:46-2 do not admit all the well-pleaded facts in a complaint. Summary judgment is not to be denied if other papers pertinent to the motion show palpably the absence of any issue of material fact, although the allegations of the pleadings, standing alone may raise such an issue. Summary judgment procedure pierces the allegations of the pleadings to show that the facts are otherwise than as alleged. Sokolay v. Edlin, 65 N. J. Super. 112, 121 (App. Div. 1961).

A review of the depositions and interrogatories indicates there was no dispute as to the material facts in this case and that it was ripe for summary judgment. Plaintiff knew her jaw had been injured by Dr. Sowinski in February or March 1964, within two or three days after the extraction. The fact that she had been injured was confirmed during her subsequent examinations by Dr. Ruff and Dr. Donner. There is no evidence to support her contention that she did not discover the nature of her injury until she was examined by Dr. Berlove after conferring with her attorney in September 1968. In fact, there was no evidence adduced to show the result of such examination.

We find no authority to support the trial judge’s conclusion that lack of knowledge of the extent of the injury tolls the running of the statute. Quite to the contrary, Tortorello v. Reinfeld, supra, states that any wrongful act resulting in an injury to a person, though slight, gives rise to a right to institute an action and the cause of action accrues at that time. 6 N. J. at 65.

Plaintiff cites Lopez v. Swyer, supra, for the proposition that in order for the statute of limitations to run it must be established that she not only knew she had been injured by Dr. Sowinski in 1964 but also knew that the treatment by the dentist was negligent. Lopez holds that where there are factual issues with respect to the knowledge of the injured persons as to the negligent actions of a doctor, summary judgment should be denied. The court, in Lopez, reached that result based on Fernandi v. Strully, supra, and Yerzy v. Levine, supra, where the injured plaintiff could not know he or she had a malpractice claim until discovery of the hidden condition in the body.

Here, within two or three days after the extraction, Mrs. Eankin knew the injury she sustained was caused by Dr. Sowinski. To say that she had to know or be informed that she had a cause of action before the statute would begin to run would be unreasonable. By way of analogy, the statute begins to run against a person struck by an automobile at the time he is hit. He knows he is injured and by whom and that he may have a claim for injuries against the driver of the automobile. It is not necessary for him to know that the driver was negligent in order for his cause of action to accrue. The same standard should apply here. The statute began to run against Mrs. Eankin in February or March 1964, when she knew she was injured and by whom. To accept the premise that the statute did not begin to run until she was advised by her attorney or Dr. Berlove in September 1968 that she had a cause of action for malpractice (which, incidentally, is not supported by the record) would be to disregard the basic policy of repose, which underlies the statute of limitations, thus extending the threat of litigation indefinitely.

Plaintiff also claims the question of whether the statute of limitations was tolled by defendants’ fraudulent concealment of her injury and the cause thereof was a matter for determination by the jury. The testimony shows that both Dr. Euff and Dr. Donner diagnosed plaintiff’s condition which they felt required treatment, prescribed medication, and asked her to return. Dr. Euff told her the clicking was caused by the shifting of her jaw to the left side; Dr. Donner said the injury was caused by pressure applied to the jaw area during the extraction. We find no evidence in the record that Dr. Euff or Dr. Donner fraudulently concealed from plaintiff knowledge of any condition resulting from any alleged malpractice.

Moreover, concealment presupposes knowledge of a fact and concealment of it from one not in possession of such knowledge. Rothman v. Silber, supra, 90 N. J. Super. at 35. Here plaintiff knew she had been injured by Dr. Sowinski during the extraction before she was examined and treated by Dr. Ruff or Dr. Donner.

We are satisfied that plaintiff’s cause of action accrued in February or March 1964. Since she did not institute suit until January 15, 1969, approximately five years later, it was barred by the statute of limitations. The order denying defendants’ motions for summary judgment is reversed and the case is remanded for entry of judgment in favor of defendants.

      The dates of examinations and treatment of plaintiff were changed by amendment of the complaint and pretrial order from February 1964 to March 1964. It is conceded that the change in dates does not affect the issue raised of the bar of the statute of limitations.