text:
    TRAP ROCK INDUSTRIES, INC., A NEW JERSEY CORPORATION, APPELLANT, v. JOHN C. KOHL, COMMISSIONER OF TRANSPORTATION, AND JAMES R. SCHUYLER, STATE HIGHWAY ENGINEER, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 15, 1971
    Decided June 30, 1971

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Justin P. Walder argued the cause for appellant (Messrs. Schapira, Steiner & Walder, attorneys).

      Mr. Stephen Skillman, Assistant Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Messrs. Alfred L. Nardelli, Roger L. Hillman and Courtland T. Babcock, II, Deputy Attorneys General, on the brief).

      Mr. Adrian M. Foley argued on behalf of amicus curiae New Jersey Heavy, Highway and Construction Industry Advancement Fund (Messrs. Hughes, McElroy, Connell, Foley & Geiser, attorneys; Mr. Theodore W. Geiser, of counsel; Mr. Richard D. Catenacci, on the brief.)
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

On May 7, 1971 the State Commissioner of Transportation made a determination that “Michael J. Stavola/Trap Rock Industries, Inc., be suspended from bidding until satisfactory explanations for the items contained in the indictment are adduced to satisfy this Department that Michael J. Stavola/Trap Rock Industries, Inc., possess the moral integrity to qualify as a bidder.”

Trap Rock Industries, Inc., prosecutes this appeal from that administrative determination. This company is a contractor and had been prequalified with the Department of Transportation prior to the above suspension.

The indictment referred to in the order of suspension, a copy of which was attached to the Commissioner’s determination, charged that Michael J. Stavola and Joseph Martinelli, between October 19, 1970 and March 17, 1971, did in four-named municipalities in New Jersey, conspire in violation of N. J. S. A. 2A:98-1 and 2A:98-2 to commit three specified crimes. The purported crimes constituting the basis of the alleged conspirac]*' all related to efforts made by Stavola and Martinelli to (1) induce Detective James Sweeney of the New Jersey State Police to intercede for Michael J. Stavola, defendant in a pending indictment for assault and battery upon a police officer, in violation of N. J. S. A. 2A:85-1 and 2A:85-14;(2) offer a bribe to Detective Sweeney in the same matter, and (3) obstruct justice by Sweeney’s endeavours to obtain a favorable disposition of the police officer assault and battery indictment.

The second count of the indictment charged the same defendants, in relation to the same matter, with violations of N. J. S. A. 2A:85-1, 2A:85-5 and 2A:85-14. The third count charged attempted bribery of Detective Sweeney for the same purpose, in violation of N. J. S. A. 2A:85-1 and 2A:85-14. The fourth count charged an obstruction of justice, all in relation to the same subject matter, contrary to N. J. S. A. 2A:85-1 and 14. In brief, the four-count indictment involves the same subject matter, but charges tire alleged offense in various aspects.

Trap Rock Industries, Inc., and Michael J. Stavola, its principal officer and stockholder, were notified by the Commissioner and given an opportunity to present any additional information at a hearing which might tend to substantiate the existing classification of being a “responsible” bidder. Stavola denied the charges set forth in the indictment but declined to elaborate thereon.

At the hearing no proof was received by the Commssioner as to the truth of the recitals in the indictment. The minutes of the grand jury were not disclosed to or examined by the Commissioner.

In brief, disqualification from bidding has been visited by the Commissioner upon this corporate public contractor solely on the basis of the indictment itself against its principal officer and 80% stockholder and Stavola’s failure to explain satisfactorily and justify the unproven recitals in the indictment. There is no question as to the competency of Trap Eock Industries, Inc., to perform any public contract which might be awarded to it. The company has the equipment, the experience, the supervisory and other personnel, financial stability and ability to post any required performance bond, all as demonstrated by a previous determination of qualification.

The reason for suspending the right to bid and enter into a contract with the State for public work is the Commissioner’s determination that the indictment, not satisfactorily explained away at an administrative hearing, is sufficient evidence of a lack of “moral integrity” to deprive one of being classified as a “responsible” bidder.

We pass the issue of whether a corporate entity may be deemed lacking in moral integrity, if its principal officer and controlling stockholder, a separate legal entity, is justifiably found to be lacking in moral integrity. We shall assume in this case, as did the Commissioner, that protection of the public interest warrants a “piercing of the corporate veil.”

So, too, we proceed upon the correctness of the rule laid down by us in Mal-Bros. Contracting Co. v. Kohl, 113 N. J. Super. 144, 147 (App. Div. 1971), certif. den. 58 N. J. 94 (1971), that determining the meaning of “responsible,” when related to a bidder for a public contract, embraces the factor of “moral integrity.” But Mai is factually distinguishable. There, we found that “there was substantial competent and relevant evidence in the record to support the Commissioner’s finding of a lack of moral integrity on the part of Mai." Ibid. We specified the three principal items supporting that conclusion. We particularly noted in Mai (at 147), “The Commissioner’s determination was not based on hearsay or other improper evidence.”

In the instant ease the Commissioner’s determination is based essentially, if not entirely, upon the hearsay recitals in the indictment, which in turn depend for their reliability upon grand jury testimony of a witness or witnesses whose credibility has not been tested.

The Commissioner relies upon the policy of administrative suspension of public employees upon return of indictments against them, citing De Marco v. Board of Chosen Freeholders of Bergen County, 21 N. J. 136 (Sup. Ct. 1956). The suspension of a police officer without pay pending favorable disposition of the indictment against him is distinguishable from the suspension of a contractor from bidding on public work. When cleared and reinstated, the police officer is entitled to reimbursement for his lost wages. But how is the disqualified contractor to be reimbursed when and if he is cleared? Then, too, there are the irretrievable losses suffered perhaps by his employees. It is alleged that Trap Rock Industries has from 500 to 800 employees and its average weekly payroll ranges from $110,000 to $125,000. In addition, there is the loss through lack of use of equipment.

The Commissioner recognized that an indictment is evidence only of the fact that a charge has been made; it in no wise establishes the truth of the charge or the presence of sufficient legal proof thereof. It is not uncommon for entirely innocent persons to be indicted. State v. Orecchio, 16 N. J. 125, 132 (1954). The presumption of innocence is deeply ingrained in our law. It is worthy of recognition before a State administrative agent as it is in a court of criminal justice. Stavola and the corporation, Trap Rock Industries, Inc., were entitled to application of that principle in the instant situation.

The determination of the Commissioner suspending Stavola/Trap Rock Industries, Inc., from the classified list of “responsible” bidders, is reversed and the Commissioner is directed to reinstate them to their former “qualified” position.


source: Caselaw Access Project

author: Consodine, J. C. C.

license: Public Domain

text:
    CAROLINE FERRIGNO, PLAINTIFF, v. SALVATORE FERRIGNO, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided June 11, 1971.

      Mr. Robert L. Doris, Jr. of Essex County Legal Services Corporation, attorney for plaintiff.

      Mr. Philip Insabella, attorney for defendant.
   Consodine, J. C. C.

(temporarily assigned) The questions involved in this otherwise uneontested divorce case are the ability of defendant to pay counsel fee and the right of plaintiff’s counsel to receive it. The parties are 58 years of age. The marriage was performed in 1934.

Plaintiff earns $59.77 a week. Defendant’s earnings, alleged to be equally low, are, however, dubious as to amount but sufficient for such luxuries as a 24-year-old mistress, a child by her, and, 1971 autovan. His purchasing power on a miniscule income is reminiscent of the miracle of the five barely loaves and two small fishes. Bible (King James Version), Matthew 14.15-21; Mark 6.3A-44; Luke 9.12-17; John 6.5-13.

Plaintiff was represented by an attorney affiliated with the Essex County Legal Services Corporation, a private, non profit corporation financed primarily by the Eederal Government under the Economic Opportunity Act of 1964 (42 U. S. C., § 2701).

Plaintiff seeks a counsel fee of $100. Our rule, B. 4:42-9(a) (1), allows counsel fees in a matrimonial action in the discretion of the court. See Lasasso v. Lasasso, 1 N. J. 324 (1949); Morrissey v. Morrissey, 1 N. J. 448 (1949).

As early as 1855 the court, in Anthony v. Anthony, 11 N. J. Eq. 70 (Ch. 1855), permitted a counsel fee to the wife in a divorce proceeding. This doctrine was further advanced in Johns v. Johns, 80 N. J. Eq. 257 (E. & A. 1913), and Verbeeck v. Verbeeck, 93 N. J. Eq. 17 (Ch. 1921).

The law is not static; it changes to meet changing social needs. A considerable number of divorces in New Jersey are now obtained by indigents represented by Legal Services attorneys. I do not believe that a defendant husband against whom a judgment for divorce has been awarded in a contested case should reap the benefits of free legal representation to his wife. Nor should a husband be encouraged to litigate under the assumption no counsel fee will be adjudged in favor of the indigent plaintiff represented by Legal Services. Put in another way, the public should be relieved from the financial burden of obtaining an indigent plaintiff’s divorce or successfully defending against a husband’s complaint, to the extent that the husband is able to pay all or part of her attorney’s fee. The taxpayer has an interest in recovering where possible a portion of the costs in these situations.

Plaintiff is awarded a counsel fee of $100 payable to the Treasurer of the United States of America.


author: Gaulkin, J. A. D.

text:
    STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, v. IN THE INTEREST OF R. W., JUVENILE-APPELLANT.
    Superior . Court ■ of New Jersey Appellate Division
    Argued March 9, 1971
    Decided June 30, 1971.

      .Before Judges Lewis, Gaulkin and Mintz.

      Mr. William, J. Rohr, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Martin R. Kayne, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph D. J. Gourley, Passaic County Prosecutor, attorney; Mr. Archibald Kreiger, Assistant County Prosecutor, of counsel).
   The opinion of the court was delivered by

Gaulkin, J. A. D.

R. W. was adjudged a juvenile delinquent upon a complaint which charged that at 11 p.m. on December 10, 1969, on Route 4, he “did * * * have in his possession a stolen bike * * * rings, key chains, one jacket, a hand flashlight and one knife, stolen from Gimble’s [sic] and J. C. Penny’s department stores, Paramus” and “the act or acts when committed by a person of the age of 18 * * * would be in violation of 2A:119-2.” N. J. S. A. 2A :119-2 defines larceny as a misdemeanor when the value is under $200.

The principal ground of appeal is that the adjudication was based upon R. W.’s oral confession of theft which should not have been admitted in evidence. The State concedes that if the confession was improperly admitted, the adjudication must be reversed.

The Public Defender argues that the confession was inadmissible because made without the boy’s parents or counsel being present, and without having given him all of the Miranda warnings. The brief also says, “The Court abused its discretion in failing to determine whether or not the confession was voluntary.” It is not clear to us what appellant means by this last point. The argument made under it seems to be that, since it was apparent that the boy was very young and mentally deficient, the judge should have made more inquiry than did either counsel as to the circumstances surrounding the interrogation. But the ease was tried without a jury; there was never any claim (and there is none in the brief) of threats, force, prolonged interrogation or improper means or influence exerted on the boy, or that the confession was untrue. Defense counsel asked no questions directed to this area, nor did he ask the judge to do so. The boy did not take the stand. Although we think the prosecution should have developed the facts and the happenings, from arrest to interrogation, more fully, we do not think the case should be remanded for such proof, since appellant does not claim anything would be discovered other than the age of the boy, his low mentality, the place of interrogation and the lateness of the hour when he was questioned, which we already know.

R. W. was born in August 1957 and was just over 12 years old when he and his companion, W. T., 15 years old, were taken into custody and then to Paramus police head-; quarters. The record does not disclose the circumstances of the arrest; whoever arrested them did not testify.

Detective Plucinsky, assigned to the juvenile bureau of the Paramus police department, whose workday ended at 11 p.m., was summoned from his home and arrived at headquarters at 12:45 a.m. When he asked the boys their names and addresses, they gave fictitious names and false addresses in Paterson. The detective called the Paterson police to reach the parents; the Paterson police reported that “the two addresses were a burnt-out home and a vacant home.” The detective told the boys that if he “didn’t get their correct names, addresses and phone numbers, [he] would be forced to place them in the [Juvenile] Shelter,” but they continued to refuse to give their true names and addresses.

The boys had been found in possession of the items enumerated in the complaint. In response to the detective’s questions, R. W. picked out certain ones and said he had stolen them from department stores whose names he did not remember. These items carried Gimbel’s or Penney’s stock and price tags. The others, he said, were stolen by his companion.

We are told that the boys were then placed in the shelter. The shelter learned their names and notified their parents to be in Bergen County Juvenile Court at 9 a.m. The parents of neither boy appeared at that time, and the Bergen County Juvenile Court transferred the case to the Passaic County Juvenile Court, probably because the boys lived in Passaic County and were already under the supervision of that court.

We are informed by the Public Defender that R. W.’s contact with the Juvenile Court dates back to June 7, 1967, when R. W. was not quite ten years old. On that date he was found guilty of breaking, entering and larceny and placed on probation under the supervision of a minister. In October 1968 six more complaints against him of larceny were sustained. This time he was sent to the Diagnostic Center at Menlo Park for examination. The Center reported that he was a borderline mentally-retarded child with an I. Q. of 72.” Because of this and its other findings, the Center recommended that he be placed in a training school “such as the Elwyn School in Pennsylvania or the E. R. Johnstone Training and Research Center.” However, these are private schools; a judge may not commit to them; the parents must apply for such placement. Apparently R. W.’s mother opposed such a placement. Consequently, R. W. was continued on probation.

On May 21, 1969 defendant (and four other boys) was again charged with breaking, entering and larceny in a dwelling. This complaint was sustained on June 19, 1969, and he was again placed on probation. Then, in December 1969, came the present arrest.

Probably because of the boy’s previous record, the case was placed on the “formal” calender (B. 5:9-l) and the Public Defender was assigned to represent him. The case was tried on January 5, 1970.

The State produced no evidence other than the detective’s account of the confession and the items which the boy admitted he stole. The Public Defender offered no- evidence.

After both sides rested and defendant’s motion for acquittal was denied, the judge sustained the complaint. He then asked defendant’s father (who was present) and the Public Defender for suggestions as to what disposition should be made of the boy. They offered none. Thereupon the judge, after reviewing the boy’s record and the probation officers’ reports, said that Johnstone Training and Research Center (hereafter Johnstone) would have been the best place for the boy but, since the mother refused to send him there, the best place to which he had power to commit him was the Skillman Training Center, a division of the State Home for Boys. He felt he had to send him there because of his repeated misdeeds and “because he’s getting absolutely no supervision at home and * * * we’re never going to be able to do anything with him as long as he’s home.” Consequently, he committed him “to the State Home for Boys * * * with the specific request that he be assigned to Skillman * * * and if the father or the mother can arrange a private school placement anywhere else, I’ll recall him.”

(Parenthetically, we note that during the discussion with counsel and the father before the boy was committed it was reported that “B. informed Mr. Donati [his probation officer] that he did not care what happens to him. He doesn’t care if he is sent to Jamesburg. He also asked Mr. Donati to place him in the Shelter for Christmas because he wanted some peace and quiet * * *”)

Apparently, neither the father, counsel nor the judge knew that, in July 1969, the boy’s mother had changed her mind and had applied, through the Board of Children’s Services, to have him admitted to Johnstone. Why he was not then admitted we do not know. However, after he reached Skillman, it was arranged (on the basis of the mother’s application of July 1969 or a later one) that he enter Johnstone. To enable him to do that, he was paroled from Skillman, his attendance at Johnstone being made a condition of his parole.

Shortly after entering Johnstone, and while home on furlough, he and other juveniles allegedly broke, entered and committed larceny. Even though defendant was then on parole from Skillman, the last-mentioned complaint against him was placed on the inactive list “until B. W.’s attendance at Johnstone is concluded.” He was returned to Johnstone, where he is now.

The Public Defender filed this appeal in February 1970, when defendant was in Skillman. When he appeared before us the Public Defender knew nothing of what had happened to the boy since that date. Neither did we. Consequently, we asked Mm to find out and he reported to us the facts above set forth.

Since it appeared that the boy, with the approval of the mother, now is in the place apparently best equipped to help him, and another charge is hanging over his head if he leaves Johnstone, we asked the Public Defender to inquire whether the boy and his parents desired that the appeal go forward. The Public Defender reported to us that he had spoken to the mother over the telephone and had tried to explain all of the pertinent considerations to her; he was not sure she was able to comprehend them, but she did say she wanted the boy home and, since a reversal might accomplish that purpose, she wanted the appeal to go forward. Apparently neither the boy nor his father has been consulted. The Public Defender deems it his duty to follow the mother’s directions. Hence we proceed to decide the appeal.

The Public Defender contends that the Miranda warnings given defendant were not complete because they did not include a statement that, if he wanted a lawyer to advise him whether to answer questions, one would be assigned to represent him without cost.

The detective testified that, prior to the questioning:

I advised the boys of their rights to remain silent * * * that they were entitled to an attorney, and * * * that anything they said to me * * * could be used against them in any trial or hearing.

When the detective was asked what R. W. had said, the Public Defender said, “Objection to any further questions * * * it is an improper foundation.” This may have been insufficient to alert the court to what counsel had in mind, for when the detective said he had “advised the boys * * * that they were entitled to an attorney” he may have meant that he told them one would be assigned free of charge if they wanted one. Had counsel been more specific, the detective might have been asked to be more explicit. Likewise, if the Public Defender had objected on the ground that it had not been established that the confession was in fact voluntary, the court might have gone into that more fully.

When the Public Defender moved for an acquittal, he argued that the confession should not have been admitted because, due to his tender age and low mentality, the boy did not “have any knowledge of what was being said to him. It’s not a question of his not being able to understand English * * In the course of his argument the Public Defender said that when he interviewed the boy, after his assignment, “he didn’t even know he was allowed a lawyer or was going to have a lawyer.” Only in passing did he allude to the lack of specific proof that defendant had been told a lawyer would be assigned if he wanted one. However, he made no claim that the confession was untrue or obtained by threats, force, prolonged interrogation or other improper means, and he makes no such claim now. The question therefore narrows down to the effect of (1) the allegedly incomplete Miranda warnings, and (2) the absence of parent, adviser or counsel during the interrogation.

We agree that even if the Miranda warnings had been letter perfect, this boy did not have the age, mentality, schooling (he was in the third grade) or experience to understand them well enough to knowingly and intelligently choose whether or not to talk or to ask for a lawyer.

When a defendant over 18 is charged in a criminal court, a confession obtained without the Miranda warnings may not be introduced in evidence by the State as part of its direct case. On the other hand, if the warnings are given and the defendant elects to confess without a lawyer, we conclude (whether he is 18 or 80) that he “knowingly and intelligently waived” his privilege against self-incrimination. This conclusion probably is a legal fiction, for few laymen are equipped to make such a choice, since it involves an understanding of the charge, the possible defenses, the nature of the evidence against defendant and how it was obtained, the presumption of innocence and the burden of proof, etc., which only those trained in crime or in the law possess. There are policy considerations which justify our indulging in that fiction — the chief one being that otherwise no one 18 or over could be questioned without a lawyer present to explain to him in detail what he will waive if he does waive.

The same legal fiction has been indulged in juvenile courts with reference to admissions by juveniles approaching 18. See, for example, West v. United States, 399 F. 2d 467 (5 Cir. 1968), cert. den 393 U. S. 1102, 89 S. Ct. 903, 21 L. Ed. 2d 795 (1969), in which a 16-year-old boy confessed to auto theft after being given the Miranda warnings, but without parents or counsel present, and it was held that the confession was properly admitted; see also, People v. Lara, 67 Cal. 2d 365, 62 Cal. Rptr. 586, 432 P. 2d 202 (Sup. Ct. 1967), cert. den. 392 U. S. 945, 88 S. Ct. 2303, 20 L. Ed. 2d 1407 (1968). But when the age (or the mentality) of the youth falls below a certain level, the Miranda warnings, no matter how perfectly given, must mean little or nothing to him. We cannot say with certainty what that age level is. Unfortunately, juvenile courts deal with children as young as eight. Children of tender years may understand each word of the Miranda warnings when plainly and clearly given; they may have street or movie knowledge about the right to keep silent and to demand a “mouthpiece,” but, nevertheless, up to a certain age they cannot be deemed to be able to waive the Miranda privileges. Query, then, are they not to be questioned at all?

Even Justice Eortas did not say that in In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). Gault did not deal with pre-adjudicatory admissions but with the proceedings at the adjudicatory trial. Yet even at such a trial Justice Eortas called for “due process standards intelligently and not ruthlessly administered,” and he recognized “that special problems may arise with respect to the waiver of the privilege [against self-incrimination] by or on behalf of children, and that there may be differences in technique — but not in principle •— depending upon the age of the child and the presence and competence of parents * *

In short, the Miranda rule and its corollaries are not to be mechanically — “ruthlessly” — applied when dealing with juveniles of tender age. We think that instead the test must be whether the juvenile was treated with the utmost fairness and with every consideration that his age and all of the surrounding circumstances indicate should have been accorded him. That includes having his parents present, whenever possible, and giving the Miranda warnings on the chance that the boy or his parents may understand them — not as mechanical preconditions to the reception of admissions, as the oath is a precondition to the reception of testimony, but rather as facts tending to show that the admissions were in fact voluntary.

Before Gault was decided, our Supreme Court said, in State in the Interest of Carlo, 48 N. J. 224 (1966), that, whenever possible, the juvenile’s parents should be present during his interrogation. In his concurring opinion the Chief Justice said that the purpose of their presence is not to make sure the infant receives the Miranda warnings or to protect him against self-incrimination or to decide for him whether to waive his rights (which the parents may have no right to do), but rather to make sure that the interrogation itself was fairly conducted and the boy’s statements are true.

If a boy is not old enough to understand the Miranda warnings and the constitutional provisions against self-incrimination, and he answers upon the instruction of his parents, he has not knowingly and intelligently waived whatever rights against incrimination he has; he has merely obeyed his parents. Is such a boy, therefore, not to be questioned at all, or his admissions excluded from evidence?

Although Gault (which was decided after Carlo) probably made it necessary to give juveniles (and their parents, if present) the Miranda warnings, we think that, at least with reference to pre-adjudicatory interrogation, it did not fasten upon the juvenile court all of the automatic and mechanical results of noncomplianee with Miranda which follow in the criminal courts.

If the parents cannot or will not appear, the warnings should be given anyway, as a practical matter, against the possibility that the youth might understand and act upon them. But if the child is not old enough to understand and waive, and the parents cannot be found or cannot or will not attend, we hold that the questioning may go forward, even without the Miranda warnings, provided it is conducted with the utmost fairness, without force or other improper influence, mental or physical, and in accordance with the highest standards of due process and fundamental fairness. Unless the case clearly appears to be one which will be transferred to the criminal courts, we do not think that counsel must be assigned at that point simply because the parents cannot be present, although it is always desirable to have counsel present if one is readily available.

It must be remembered that children as young as eight are taken into custody for reasons other than the commission of crime; N. J. S. A. 2A:4r-14 lists 12 such categories, including such things as habitual vagrancy, idly roaming the streets at night, knowingly associating with thieves or vicious or immoral persons, etc. N. J. S. A. 2A:A-32 directs that, whenever possible, all children under 16 be released in the custody of the parents. B. 5:8-2 provides:

(a) Custody; Release without Detention. A law enforcement officer may take into custody without process any juvenile who in his opinion is engaging in conduct defined by law as juvenile delinquency. Such action shall not be construed as an arrest but shall be deemed a measure to protect the health, morals, and well-being of the juvenile. The ofiicer taking the juvenile into custody shall make immediate arrangements to have the juvenile taken to his home, where he shall be released in the custody of his parents, guardian, or custodian, upon the written promise of such person to assume responsibility for the presence of the juvenile in court should a hearing be scheduled; or the juvenile may be released in the custody of a probation officer or other person designated by the court.
(b) Detention of Juveniles; Notice to Court. If it is impracticable for the officer to proceed in accordance with paragraph (a) of this rule after taking the juvenile into custody, or if the nature of the offense requires his immediate detention, the officer shall make immediate arrangements to place the juvenile in a detention facility approved by the court. * * *
(c) Complaint. Whenever a juvenile has been taken into custody in accordance with this rule, the officer taking the child into custody or his superior officer shall forthwith file a complaint with the court in accordance with R. 5 :8-l.

State v. Smith, 32 N. J. 501 (1960), recognized that, in spite of the peremptory language of the statutes and the rules, it is almost always necessary to ask the juvenile some questions before releasing him or returning him to his parents. Obviously, it is necessary to learn his name, where he lives, the names of his parents and their telephone number, if they have one. But must the questioner stop there? The child may have an explanation for his conduct which would entitle him to instant release, without complaint or further record, or immediate delivery to his home without strings attached. As the Supreme Court said in Smith, the authorities have “a definite obligation of the highest order” not to subject juveniles “to any kind of a formal charge without * * * investigation.” Therefore, said the court:

* * * wo do not conceive that R. R. 6:8-3(b) and (c), [now R. S :8-2] in speaking of an officer who has taken a juvenile into custody without process making “immediate arrangements” to have him removed to his home or placed in an approved detention facility, requires that such must necessarily be done before the police are afforded a reasonable opportunity to question, where that course is desirable or important. Especially is this true in a situation like the instant one where the crime was most serious and the police information of somewhat doubtful character. Under such circumstances, confinement, even in a juvenile detention facility to await juvenile court hearing, is not justified in the absence of something more trustworthy than hearsay. Suspects might well be able to satisfy the authorities of their innocence and be entitled to be released completely as a result of the interrogation. * * *
* * * * * * :!? ^
Although defendants do not explicitly say so in their brief, it appears nonetheless to be suggested that at least the spirit of our juvenile rules precludes police questioning of juvenile suspects. We should consequently make it clear that our practice does not contemplate any such blanket prohibition. Speaking generally, talking to people and asking them questions, whether they be suspects or not, is a standard and most essential element of crime solution and law enforcement. While police brawn and bluster to extort confessions cannot be a substitute for brains and leg work and will not be countenanced, the public interest requires that interrogation, and that at a police station, not completely be forbidden, so long as it is conducted fairly, reasonably, within proper limits and with full regard to the rights of those being questioned. [32 N. J. at 533-534]

Suppose a ten-year-old boy is found late at night sleeping in an automobile and, when awakened, runs away. Apprehended and brought to headquarters, may he not be asked, without waiting for his parents to arrive, whose car it was, why he was sleeping in it and why he tried to run away ? It may be that it was his father’s ear, that his father was visiting nearby and that, frightened, he was running to seek his father. Or he may answer that he ran away from home or was lost. If it is proper to ask these questions without waiting for the parents — and we think it is — does it serve any purpose to require the police to give such youngsters the Miranda warnings before asking the questions, for fear that the boy might say he ran because he had stolen, robbed or burned?

Suppose the boy answers that he was afraid to go home because he had stolen a neighbor’s purse, or set fire to a house, or pushed a playmate off a roof to his death, or that the car was stolen and the trunk was full of stolen goods which he was guarding. Are those admissions to be barred because the Miranda warnings were not given? If they are, it must be remembered that the police might be barred from using even that proof which they might thereafter obtain of the theft, the fire or the homicide because it was fruit of the poisonous tree, and the boy might then go without the help or correction which he needed and which the Juvenile Court was designed to give him. As the Chief Justice said in Carlo:

With respect to crime, we suppress the truth even if it means the release of one who is plainly guilty, and this in the belief that the support thereby given a constitutional value outweighs the price tomorrow’s victims may pay. I would suggest that it need not follow that the same course should be pursued with respect to juvenile delinquency, since as to it there is still another value to be weighed, to wit, the rehabilitation of the infant. To deny an infant the attention he needs because the police erred in obtaining evidence of that need may not be the parental thing to do. [48 N. J. at 245-246]

It may be argued that when the juvenile does make inculpatory admissions in the absence of his parents, the admissions should not be admitted unless they are later repeated in the presence of parents or counsel, after Miranda warnings. Such repetition may be desirable, but why should it always be necessary? It must be remembered that thousands of juveniles are questioned annually, and that all but a very few are restored to their parents forthwith, even after admissions of what, done by an adult, would be considered serious crime. To require such double questioning against the possibility that this might be the one case in which the boy might be sent away would add a large and unnecessary burden and mean added delay, even in the release of the boy to his parents.

Pursuant to R. 5:9-1 we now have in the Juvenile Court a “formal” and “informal” trial list. The rule provides that “All juvenile complaints which in the opinion of the judge may result in the institutional commitment of the juvenile shall be listed on the formal calendar”; all others on the informal one. In cases on the formal calendar, counsel is assigned to represent the indigent juvenile, the prosecutor may appear for the State, and the proceedings are conducted with formality. Complaints listed on the informal calendar are conducted “in summary manner and may result in any disposition provided in R. 5:9-9 except commitment.” R. 5:9 — 1(e)

It may be argued that in cases which are destined for the formal calendar, interrogation of the youth should be forbidden unless parents or counsel are present and Miranda strictly obeyed, and that confessions obtained without these safeguards be excluded in formal calendar adjudicatory proceedings.

We think such distinctions impractical. When an officer first questions a youngster just taken into custody, he has no way of knowing whether there will be any complaint against him, much less whether the complaint will be on the formal or informal calendar. He has no way of knowing what his answers will be and, as the Supreme Court said in State v. Smith, supra, 33 N. J. at 530, with reference to a parallel question, "the police could not know whether, if and when there was enough to fairly charge the defendants as the guilty parties, the juvenile court would later direct adult prosecution or retain the matter for protective and rehabilitative treatment under the Juvenile Court Act.”

Justice Harlan, concurring in Gault, rejected the selective as well as the mechanical application of Miranda to juvenile cases. The true test, he said, was due process and fundamental fairness; whether or not the Miranda warnings were given is only one fact to be considered with all the facts to determine whether that test was met; and any difference in calendar, the title of the proceeding or the definition of the offense could not justify a greater or lesser need of the Miranda warnings. He said:

It must be remembered that tbe various classifications of juvenile court proceedings are * * * often arbitrary or ambiguous [as between truancy, etc. and crimes] ; it would therefore be imprudent, at the least, to build upon these classifications rigid systems of procedural requirements which would be applicable, or not, in accordance with the descriptive label given to the particular proceeding. It is better, it seems to me, to begin by now requiring the essential elements of fundamental fairness in juvenile courts, whatever the label given by the State to the proceeding; * * *. [387 U. S. at 77, 87 S. Ct. at 1469.]

• Under our rules the juvenile may not be committed if his case is on the informal calendar. But he may be adjudged a delinquent; in that case he may be placed on probation, and for violation of that probation he may be committed. State v. Interest of G. J., 108 N. J. Super. 186 (App. Div. 1969); but see Gutierrez v. State ex rel. Wichita County, 433 S. W. 2d 777 (Tex. Civ. App. 1968).

In short, we think the same rules should govern the admissibility of juvenile admissions, whether the adjudication is on the formal or informal calendar; the test is due process and fundamental fairness, and the giving of the Miranda warnings is not an absolute necessity in every case but an important element in determining whether the admission was truly voluntary.

We believe that Gault does not compel a contrary conclusion. Gault dealt only with proceedings at the adjudicatory hearing. Justice Eortas stated for the majority that:

We do not in this opinion consider the impact of these constitutional provisions upon the totality of the relationship of the juvenile and the state. We do not even consider the entire process relating to juvenile “delinquents.” For example, we are not here concerned with the procedures or constitutional rights applicable to the pre-judicial stages of the juvenile process. * * * We consider only the problems presented to us by this case. These relate to the proceedings by which a determination is made as to whether a juvenile is a “delinquent” * * *. [387 U. S. at p. 13, 87 S. Ct. at 1436]

The court expressly stated that it did not pass upon Gault’s pre-adjudicatory admissions to probation officers.

The question then comes down to this: Was the confession here involved voluntary and obtained with due process and fundamental fairness? We think it was.

Here the detective tried at once to reach the parents, but he was unable to do so because the boys concealed their names and addresses. Under the circumstances, we think it was proper for the detective to continue the questioning. Appellant’s companion was 15 years old, and it was possible that appellant was the wholly innocent companion of the thief. In any event, it was important to know which of the items enumerated in the complaint were stolen, from whom, how, etc., not with a view to building an ironclad case against R. W. but with the purpose of doing what proper police work requires — determining the facts, the ramifications and accomplices, if any, the true owners, etc.

It was the detective’s duty to determine whether to release the boys or whether to have them detained “in a detention facility approved by the court” pending further investigation and complaint. To determine this, the detective needed to ask questions. And having properly asked the questions, the answers were properly admitted in evidence.

The other points raised by the Public Defender do not require extended comment. We have studied them and find in them no reason to reverse the judgment.

Affirmed.

      Comment, “A Balancing Approach to the Grant of Procedural Rights in the Juvenile Court,” 64 Nw. U. L. Rev. 87 (1969), suggests such an approach but recognizes its drawbacks. Cf. Rodriquez v. Rosenblatt, 58 N. J. 281 (1971).


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

text:
    IN THE MATTER OF THE APPLICATION OF BERKELEY SAVINGS AND LOAN ASSOCIATION FOR THE COMMISSIONER’S APPROVAL OF RELOCATION OF BERKELEY MAIN OFFICE FROM NEWARK TO MILLBURN, NEW JERSEY. INVESTORS SAVINGS & LOAN ASSOCIATION, APPELLANT, v. JAMES C. BRADY, JR., COMMISSIONER OF BANKING OF NEW JERSEY AND THE BERKELEY SAVINGS AND LOAN ASSOCIATION OF NEWARK, NEW JERSEY, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 2, 1971
    Decided June 30, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Vincent D. Manahan, III, argued the cause for appellant (Messrs. Herrigel, Bolan & Herrigel, attorneys).

      Mr. Martin S. Fox argued the cause for respondent The Berkeley Savings and Loan Association of Newark, New Jersey (Messrs. Fox & Fox, attorneys).
    Statement in lieu of brief on behalf of respondent James C. Brady, Jr., Commissioner of Banking of New Jersey. (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney; Mr. T. Robert Zochowski, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Kilkenny, P. J. A. D.

On September 15, 1970 the State Commissioner of Banking approved a relocation of the principal office of The Berkeley Savings and Loan Association to Millburn, conditioned upon its relocation of a branch at the old site. Investors Savings and Loan Association (hereinafter “Investors”) appeals from the final decision of the Commissioner.

Investors contends that (1) the procedure involved in reaching this determination constituted in fact the establishing of a branch office in Millburn which was proscribed under N. J. S. A. 17:12B-26, and (2) the application failed to meet the statutory prerequisites for principal office relocation under N. J. S. A. 17:12B-43.

The Berkeley Savings and Loan Association (hereinafter “Berkeley”) was chartered in 1941 and began doing business in 1942 in the Weequahic section of Newark. Its total assets at that time were one million dollars.

In 1952 it moved its only office at that time to 88 Lyons Avenue in Newark; and in 1954 a branch office was opened by Berkeley on Chancellor Avenue, also in the Weequahic section of Newark. By 1961 the assets of Berkeley totaled $48 million and continued to increase until they amounted to $89 million at the time of this application.

With the change in the character of the Weequahie community during the 1950’s and 1960’s, the source of the assets began to shift from the residents of the Weequahie section to depositors from outside that area. By October 1969 less than 15% of the savings came from the area surrounding the Berkeley principal and branch offices. Many of the former customers had moved into the suburbs and numerous businesses in the area had found it economically unwise to remain.

Berkeley began to seek a suburban location. A suitable site was found in Millburn. $18 million in Berkeley’s assets then flowed from the Millburn area, which contained only one other savings and loan association. It was determined by Berkeley to apply to make the Millburn site the location of its principal office. It would be advertised as such; principal officers would be transferred there; the board of directors would meet there, and orders would emanate from there. Upon approval of the relocation $9 million would be transferred to the Millburn office the first three years of operation.

However, Berkeley did not intend to abandon its Weequahic site. In 1968 it had purchased the assets of the Police Savings and Loan Association for relocation of the Lyons Avenue place of business as a branch office. In fact, the Commissioner’s approval of relocation of the principal office was conditioned upon Berkeley’s so doing.

Much testimony was taken concerning the feasibility of the relocation. Raymond Treasure testified on behalf of Berkeley, and submitted a feasibility report. He testified that homeownership was high in Millburn and there was a middle to upper income population. He found the primary trade area to have a 12,000 population. His report concluded that: (1) the relocation would be in the public interest; (2) it would be of benefit to the area; (3) there would be no undue injury to any existing association, and (4) the office would have a reasonable prospect of success.

Bruce Riddle testified on behalf of Investors. He concluded that Millburn had reached a saturation point as far as population growth and new home construction were concerned. He felt that the citizens of Millburn were adequately served by existing facilities.

Wilson Yulman testified for Investors as to a telephone study his corporation had conducted. This survey allegedly indicated that only a small percentage of the residents approached would be willing to switch accounts or open a new account at the Berkeley.

The Commissioner reviewed the evidence and specifically concluded that the application met the statutory prerequisites.

I

We find substantial evidence in the record to support the administrative finding that the statutory requirements were satisfied.

In order to qualify for a relocation under N. J. S. A. 17:12B-40, the Commissioner must find, in accordance with section 43, that

(a) the proposed change of location is in the public interest, and
(b) will be of benefit to the area to which it is proposed to remove such office, and
(c) that the removal of such office will not result in undue injury to any other association in the area to which it is proposed to remove such office, and
(d) the State association will have a reasonable prospect of success in the proposed new location.

Once these are found, the application shall be granted. In the instant case the Commissioner held that Berkeley had complied with these requirements.

The findings of the Commissioner should not be upset absent a showing that they were arbitrary, unreasonable, or capricious, or that they lacked substantial support in the evidence. In re Application of Montclair Savings Bank, 114 N. J. Super. 196, 199 (App. Div. 1971). Due regard must be given to the expertise of the administrative agency regarding its review of the marketing data and determination of the economic feasibility of the proposed bank. In re Application of Kenilworth State Bank, 49 N. J. 330, 334 (1967).

In the instant case there was minimal dispute as to the material facts. The experts agreed as to the primary service area and the deposit potential. The reasoning of the Commissioner as to the effect of Berkeley’s entrance into this area is supported by substantial credible evidence and certainly not arbitrary.

II

Investors next contends that the relocation was barred by the “home office” protection rule set forth in N. J. S. A. 17:12B-26(c). It argues that, although the application is phrased in terms of section 40, it is not in fact a principal office relocation at all but a de novo branch application. Thus, it maintains the application would be barred by the “home office” protection of section 26(c). Investors notes that a large portion of Berkeley’s deposits would remain in Newark, and Newark would remain for a few years the center of its deposit flow. Erom these facts it argues that granting the application would amount to condoning a maneuver contrary to the intent of the act.

N. J. S. A. 17:12B-26(c) provides that a savings and loan association may establish a branch office “where, at the date of the application, there is no principal office of any other association in operation at the time it is proposed to establish such branch office * * Since Investors has its principal office in Millburn, Berkeley could not establish a branch there. Investors contends that Berkeley is attempting to achieve indirectly what it cannot do directly and should be barred from doing so.

In In re Princeton Bank and, Trust Co., 87 N. J. Super. 247 (App. Div. 1965), the petitioner bank had its main office in Princeton with a branch in Princeton Township. With the opening of a shopping center in the township, the bank deemed it in its best interests to open a second branch at the shopping center. However, they were barred from establishing the second branch because of the existence of a banking office in the township. In an attempt to solve the dilemma, they applied for and were granted an interchange of their main and branch offices, and thus purported to move the “main” office to the township. Then, no longer barred by “home office” protection because of a main office in the township, it applied for a branch at the shopping center. The grant was allowed but this court noted that the maneuver was an admitted attempt to circumvent the statute. We reversed the grant of the second branch, stating: “What Trust Company could not do directly, it sought to do indirectly. The Banking Act * * * cannot be used to that end.” Id. at 261.

What was crucial to the decision in that case was the finding that Princeton never intended to make a bona fide interchange of its principal office with its township branch, but merely a paper change to permit it to open the branch at the shopping center. Id. at 259.

Although the case at bar deals with a separate act, referring to savings and loan associations, it is reasonable to apply a similar rationale. If the plan of Berkeley was not a bona fide relocation of its principal office, but merely an attempt to stretch out its arms into a lucrative area, we would follow the rationale of the Princeton case, supra.

The major difficulty in cases such as this is in drawing the distinction between the “principal” office and the “branch.” Cf. Ramapo v. Camp, 425 F. 2d 333 (3 Cir. 1970), cert. den. 400 U. S. 828, 91 S. Ct. 57, 27 L. Ed. 2d 58 (1971). Would Berkeley’s operation intended for Millburn amount to a bona fide “principal” office? That is the question.

In Bamapo, Prospect Park National Bank (PPNB) made application to the Comptroller of the Currency to relocate its principal office from Prospect Park to Wayne pursuant to 12 U. S. C. § 30, which provides that a national bank may relocate its main office within 30 miles of the present site. A concurrent application was made to open a branch at the Prospect Park site. The reason for the application was to relieve overcrowding at the present office; to serve customers who were moving to areas such as Wayne, and to move the bank from an area of declining population and economy into a rapidly developing community.

It was argued that PPNB was merely opening a branch in Wayne and thus achieving through “subterfuge” what was prohibited by both New Jersey and federal law. However, the Court of Appeals accepted the District Court’s finding that the relocation was bona fide. Since this was so, the new location was not a branch and the court found it unnecessary to consider the operation of the New Jersey Bank Act through 12 U. S. C. § 36(c). The court held that the differentiation between the “main” office does not rest upon the mass transfer of customer accounts or deposit moneys, nor upon the fact that the “service area” of the old site will continue to be many times greater than that of the new. See also, in accord, Traverse City State Bank v. Empire National Bank, 228 F. Supp. 984 (W. D. Mich. 1964).

In the instant case, the Commissioner has specifically found that the Millburn site would be the “principal” office. He set forth a list of the criteria, considered by him in making the determination, to wit:

(a) The office with the highest volume of accounts; (b) the office with the highest volume of loans; (c) the office at which the board of directors regularly meet; (d) the office where the greatest number of senior officers are permanently located; (e) the office to which reports are made and orders emanate; (f) the office which is officially designated as the principal office; (g) the office which is known to the public as the principal office; (h) the office where a majority of the key departments are; (i) the office where the payroll and bookkeeping records are kept.

The Commissioner concluded that Berkeley’s application satisfied these tests. His findings were reasonable and supportable by substantial credible evidence. We find no valid basis for disturbing the result. In re Application of State Bank of Plainfield, 61 N. J. Super. 150, 158 (App. Div. 1960).

The decision and order of the Commissioner of Banking is affirmed.


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

text:
    THOMAS PATRICK MINOGUE, PETITIONER-APPELLANT, v. LAWRENCE PACKAGING SUPPLY CORP., RESPONDENT-APPELLEE.
    Superior Court of New Jersey Appellate Division
    Argued March 25, 1971

    Decided July 1, 1971.

      Before Judges Conford, Kolovsky and Carton.

      Mr. Jack Mandell argued the cause for petitioner (Messrs. Balk, Jacobs, Goldberger & Mandell, attorneys).

      Mr. Theodore E. Maloof argued the cause for respondent (Messrs. Vaccaro and Osborne, attorneys).
   The opinion of the court was delivered by

Conford, P. J. A. D.

The question presented on this appeal is whether the Division of Workmen’s Compensation, when awarding petitioner 100% permanent disability of his right hand for injuries thereto while at work, was required to deduct the amount of an award for a previous employment accident resulting in the amputation of part of the index finger of that hand. The statutory provision requiring construction is N. J. S. A. 34:15-12(d). The Division ruled a deduction was not called for; the Essex County Court held to the contrary. 111 N. J. Super. 510 (1970).

The issue presented has its difficulties. Our conclusion is for reversal of the County Court judgment.

The judge of compensation described the amputation resulting from the earlier 1964 accident as involving “one-half an inch of flesh and perhaps bone” (up to the first joint). For that he was previously awarded 40% disability of the finger ($800).

The accident resulting in the award under review occurred in May 1967 when petitioner’s right hand slipped off a machine and was caught and crushed between two rollers. The accident required surgery. Medical testimony on petitioner’s behalf indicated that after the accident there was “marked gross deformity involving the entirety of the hand with shortening through the metacarpal level of all of the fingers” and gross atrophy of musealature. Wrist extension was restricted 30 degrees. Use of fingers for grasp was precluded. There were gross neurovascular changes, residuals of multiple metacarpal fractures and loss of tendon function. After surgery there was slight increase in hand vascularization but no benefit in terms of functional capacity of the hand.

On credible proofs the lower tribunals found the hand to be totally and permanently disabled.

Prior to the 1967 accident and after the 1964 amputation petitioner could bend the finger involved without pain although with some restriction, but he could not bend it at all after the 1967 accident and surgery.

Both tribunals below allowed petitioner 100% of the right hand and 12%% of permanent partial disability for neuropsychiatric injury. Neither of these awards is in issue on this appeal.

The pertinent statutory provision, N. J. S. A. 34:15-18(d) (added to the Compensation Act by A. 1956, c. 141), reads:

If previous loss of function to the body, head, a member or an organ, due to any previous compensable accident or accidents, is established by competent evidence, and subsequently an injury arising out of and in the course of an employment occurs to that part of the body, head, member or organ, where there was a previous loss, then and in such case, the employer or his insurance carrier at the time of the subsequent injury shall not be liable for any loss for which compensation has previously been paid or awarded. In either event, credit shall be given the employer or his insurance carrier to the extent of the previous loss for which compensation has been paid.

Respondent argues for its view as to tbe intended purport of the foregoing, in short, that the later accident and injury to the hand was to the same part of the body where there was a previous loss (i. e., to the finger as an anatomical part of the hand); that the loss to the finger was a part of the same loss compensated by the second award, and consequently the statute requires the deduction of the first award.

Petitioner’s argument is two-fold:

(1) N. J. S. A. 34:15-12(c) schedules certain “members” of the body for fixed loss awards, including various fingers of the hand, individually, or the hand, separately (including thumb and first and second fingers of the same hand, or four fingers of the same hand, respectively, as a unit equivalent to a hand). Subsection (d)’s reference to previous loss to a “member” should be construed in pari materia, and therefore an injury to the anatomical hand as a whole is not an injury “to * * * that member” or part thereof previously injured where the prior injury was to a single finger of the hand. In this connection petitioner cites the Statement appended to the bill that became L. 1956, c. 141, which says: “The provision relative to the employer * * * being allowed credit for any payments made in connection with a previous compensable accident to the same part of body, head, member, or organ is equitable.” (Emphasis added.)

(2) If the later disability is total to the member or part of the body involved, the product of the later accident, and is not contributed to at all by the disability arising out of the prior accident, then no deduction should be allowed, because in such case it cannot be said that the loss compensated by the prior award is in actuality any part of the loss for which the later award is made. Nelson v. Meeker Foundry Co., 30 N. J. 139 (1959), and Caputo v. Kero, 84 N. J. Super. 279 (App. Div. 1964), are cited to support this phase of petitioner’s position.

In Nelson, supra, the earlier injury in 1931 entailed the loss of the thumb and the first two fingers of the left hand (not at that time scheduled as equivalent of loss of the hand); the second accident in 1956 caused the loss of the fourth finger of the same hand. Thereafter disability of the hand was total. Subsection (d) had not yet been enacted as of the occurrence of the second accident, and the court’s decision was independent thereof. In determining that the act required the deduction of the award for the first accident from an adjudicated award of total disability of the hand consequent upon the second accident, the court stressed (30 N. J-, at 148) that “* * * it is the combination of the two accidents which produced petitioner’s disability. In the absence of the first injury the second could not have resulted in the disability to the entire hand.” It was “the 1956 (later) accident which * * * brought his hand disability to total” (id.), and it “would not be just to charge the employer, who had already paid compensation for the earlier digital loss, with total loss of the hand.” [at 149] In so ruling the court cited (at 149) the provision here under analysis in the following manner: “Cf. N. J. S. A. 34:15-12(d),” thereby indicating that the policy underlying the section now before us for construction lent some support to the rationale of the court’s conclusion. This may possibly indicate that the court would interpret subsection (d) in accord with the second phase of petitioner’s argument.

This court, in Caputo v. Kero, supra, accepting Nelson as authoritative in relation to a posi-subsection (d) situation, distinguished it, in refusing credit for a prior award, on the ground that in the case before it there was no functional loss-relationship between the earlier and later injuries there involved 84 N. J. Super., at 281-282. We thus inferentially applied the Nelson rationale to the problem under examination.

In the case before us it was expressly found by both lower tribunals that petitioner’s present total disability of the right hand was due entirely to the current accident and not at all to the prior one. These conclusions appear to be supported by the proofs. It is evident therefrom that the nature of the trauma sustained by the hand in the second accident was such that the hand would have been totally disabled without regard to the debatable contributory effect, if any, of the earlier injury to the finger to any disability of the hand as a whole.

The parties have argued before us the effect which should be accorded the decision in Heidel v. Wallace & Tiernan, 37 N. J. Super. 522 (Cty. Ct. 1955), aff’d o. b. 21 N. J. 335 (1956), decided prior to adoption of L. 1956, c. 141. Because the court there disallowed a deduction for a prior award, and the Legislature shortly thereafter adopted what is now subsection (d), respondent argues that today the Seidel ease would have to be decided the other way. It further contends the Seidel fact situation is similar to that here presented. We are not too certain of the merits of the first hypothesis stated. Compare the discussions of Seidel in Nelson (30 N. J., at 148) and Caputo (84 N. J. Super., at 281-282). But even if we accepted it, the facts there were substantially different from here. In Seidel the hand was substantially useless after the first and before the second accident, at least in legislative contemplation, as the first loss was of four fingers of one hand which the statute scheduled as loss equivalent to loss of the hand. (The second accident entailed amputation below the elbow, which is also statutorily the loss of a hand.) In other words, the first accident most decidedly contributed toward total disability of the hand. In the instant case, by contrast, as noted above, the whole present total disability of the hand is substantially all attributable to the second accident without significant contributive effect by the first.

The County Court judge found apposite an Illinois statute and the interpretation thereof by the Illinois Supreme Court. There are sufficient differences between the Illinois statute and our own to render the Illinois decision of little help in deciding this ease.

Citation of authority is not needed to support the thesis that the Workmen’s Compensation Act, as beneficent social legislation for the amelioration of the condition of injured workmen, should be construed liberally in their favor. The discussion aforesaid establishes that the position with respect to subsection (d) advocated by respondent is at least attended by considerable doubt on the facts here presented. On the other hand, that advocated by petitioner has the seeming support of the reasoning in the opinion of this court in Caputo, supra. We therefore hold that where, as here, the prior accident has been but minimally contributive to any disability of the hand existing after that accident, and the second accident and injury is the effective and substantially sole cause of the ultímate disability to the hand, the statute does uot call for deduction of an award for the first injury.

The judgment of the County Court is reversed and that of the Division of Workmen’s Compensation reinstated.


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

text:
    MOTOROLA COMMUNICATIONS AND ELECTRONICS, INC., A CORPORATION OF THE STATE OF ILLINOIS, APPELLANT, v. JAMES A. O’CONNOR, DIRECTOR, DIVISION OF PURCHASE AND PROPERTY, DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 7, 1971
    Decided June 21, 1971.

      Before Judges Sullivan, Collester, and Labrecque.

      Mr. Walter J. Bilder argued the cause for appellant.

      Mr. Arthur S. Duffy, Jr., Deputy Attorney General, argued the cause for respondent (Mr. Stephen Skillman, Assistant Attorney General, of counsel; Mr. Alfred L. Nardelli, Deputy Attorney General, on the brief; Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Sullivan, P. J. A. D.

Motorola Communications and Electronics Inc., a corporation of the State of Illinois (Motorola) , appeals from the action of the Director of the Division of Purchase and Property of the State of New Jersey awarding a contract for the furnishing of a radio communications system for the Division of State Police, including 800 mobile two-way radio communications units to equip the Division’s entire fleet of vehicles.

Bids were invited on the aforesaid system subject to detailed specifications which required the submission of a bid sample of the mobile unit offered. The specifications also provided that each mobile unit offered “shall be an approved equal or superior to” one of four models; namely, the General Electric Master Progress Line Royal Professional, Motorola Motran, Motorola Micor and RCA Series 1000. Each of the specified models is classed as the top of its respective manufacturer’s line.

The specifications further provided that bids would be evaluated on the following criteria: (1) bid price, (2) delivery schedule, (3) performance characteristics, (4) service and performance industry record, (5) parts and replacement service, (6) responsiveness to technical and general specifications, and (7) warranty.

Pursuant to the foregoing, Motorola submitted its bid and a sample mobile unit in August 1970. Bids were also submitted by General Electric and RCA. Upon the opening of the bids on September 1 it was ascertained that Motorola had submitted the low bid for each mobile unit as well as the low bid for the entire system.

On September 18, 1970 Paul Godley Co., a firm of communications engineers retained as communications consultant for the State Police, submitted to the Division a preliminary evaluation report following examination of the equipment samples. A final report was submitted on September 24, 1970. In the latter report each mobile unit sample was evaluated as to advantages and disadvantages. The Motorola sample was listed as having two advantages and ten disadvantages. The first disadvantage listed was “Not equal or superior to specified units.” Most of the other items identified the “major points” in which the sample unit was not equal or superior.

On October 8, 1970 the Director advised Motorola by letter that its sample unit had been evaluated and ten deficiencies, which were listed, found. The letter further stated that a hearing would be held on October 19, 1970 to discuss these deficiencies. Motorola replied that its management, legal and technical personnel would be at the hearing and inquired as to the reasons for certain listed deficiencies, as well as who would be in attendance at the hearing. By letter dated October 14, 1970 Motorola was notified that the deficiencies represented the evaluation of the State’s consulting engineer who would be present at the October 19, 1970 hearing, together with appropriate staff members, to answer all questions. The hearing was held as scheduled and was attended by representatives of all interested parties. A tape recording of the hearing was made but proved to be not transcribable. Unfortunately, on this appeal, no effort was made to reconstruct the record of what transpired at the hearing except for a largely unsuccessful attempt by Motorola to make the tape readable. It is to be noted, however, that the short transcript of the audible portion of the tape plainly indicates that a major item of discussion was the Godley evaluation that the Motorola sample unit was not equal or superior to its Motran or Micor. Moreover, as a result of arguments presented by Motorola representatives at the October 19 hearing, Godley updated its evaluation of the Motorola sample unit and dropped two of the listed deficiencies. Other representations made by Motorola at the hearing were “not considered to be sufficient to eliminate listed deficiencies and disadvantages.” The updated report, dated October 23, 1970, stated that the Motorola sample unit was a beefed up Motorola Mocom 70, “and such was admitted by Motorola representatives at the October 19th hearing.” It added that the Mocom 70 is a medium to low end of the line unit originally built as equipment for the taxicab and business radio service. The evaluation concluded by finding specified operational, service and relative disadvantages in the unit bid by Motorola.

In addition to the Paul Godley Co. evaluation, the Director had before him a memorandum dated October 1, 1970 from the Superintendent of the State Police regarding the relative merits of the mobile unit samples, and a memorandum dated October 27, 1970 regarding the State Police radio communications system from O. H. Hibbs, Purchase Bureau Supervisor.

On November 12, 1970 the Director awarded the contract to General Electric Company, whose unit bid was $275 higher and whose system bid was $250,000 higher than Motorola’s. On December 1, 1970 Motorola filed its notice of appeal to this court.

Motorola argues that the rejection of its bid was arbitrary and a gross abuse of discretion. It is contended that the alleged deficiencies attributed to its sample unit were mere allegations or assertions unsupported by credible evidence. In effect, Motorola asserts that it was entitled to an adversary type of hearing at which evidence of the alleged deficiencies would have to be presented and appropriate findings of fact thereon made by the Director. Absent this, Motorola says that its low bid may not be rejected and the higher General Electric bid accepted.

We do not agree. The award of bids by the state Dierctor of Purchase is controlled by statute. N. J. S. A~ 52:34-12(d), which governs such awards, makes it clear that the Director is to consider not only price, but also the conformity of respective bids to the invitation, in deciding which bid will be most advantageous to the State. In awarding a contract, the Director necessarily exercises business-like judgment. Thus, the selection of a bid involves the making of an executive or managerial decision rather than the performance of an administrative function which is subject to the Administrative Procedure Act. It has been held that the Director is not required to hold a judicial or trial-type of hearing before rejecting a low bid and that good practice and principles of fairness are satisfied if an informal hearing or conference is granted. Commercial Clean. Corp. v. Sullivan, 47 N. J. 539 (1966). Of course, the bidder should have notice of the basis of the proposed rejection and an opportunity to be heard thereon.

Motorola was afforded such a hearing. As far as the record discloses, the Director’s decision to select the General Electric equipment was based on his impartial consideration of expert evaluations of, and reports on, the three types of samples submitted. It is to bo noted that the final evaluation by Godley weighed the representations made by Motorola at the October 19 hearing but concluded that they were not sufficient to eliminate listed deficiencies. In this highly sophisticated and complex field of two-way radio communications systems, the Director must necessarily rely on such expert evaluations and reports.

His decision has not been shown to be arbitrary or an abuse of discretion. Commercial Clean. Corp. v. Sullivan, supra.

Affirmed.


author: Per Curiam.

text:
    FRANCES ROSENBERG, PLAINTIFF-APPELLANT, v. TOWNSHIP OF NORTH BERGEN, A MUNICIPAL CORPORATION, PUBLIC SERVICE COORDINATED TRANSPORT, NEW JERSEY ASPHALT & PAVING COMPANY, AND LETTIERI & BELLEZZA COMPANY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 7, 1971
    Decided June 25, 1971.

      Before Judges Goldmann, Leonard and Fritz.

      Mr. Seymour Margulies argued the cause for appellant (Messrs. Levy, Lemken & Margulies, attorneys).

      Mr. Joseph L. Freiman argued the cause for respondent North Bergen Township.

      Mr. John Gero argued the cause for respondents New Jersey Asphalt &• Paving Company and Lettieri & Bellezza Company.
   Per Curiam.

Plaintiff appeals, pursuant to leave granted, from a summary judgment in favor of defendants New Jersey Asphalt & Paving Company (hereinafter Asphalt Co.) and Lettieri & Bellezza Company (hereinafter Lettieri Co.), its successor in interest. Plaintiff’s claims against defendants North Bergen Township and Public Service Coordinated Transport were not affected by the summary judgment and they are not here involved.

The basic facts are not disputed. On June 6, 1968 plaintiff, an elderly lady, was crossing from the westerly side of Bergenliue Avenue, Township of North Bergen, to the easterly side thereof, at or near its intersection with 82nd Street. She was attempting to reach a bus stop for the purpose of boarding a Public Service bus when the heel of her shoe became caught between the concrete lanes on the east side of Bergenline Avenue causing her to trip and fall.

The roadbed of this avenue was repaved in either 1935 or 1937 so that each side thereof was divided into three separate and contiguous lanes of concrete. The two easternmost lanes separated sometime since. Plaintiff asserts that the separation was caused by improper and negligent construction in that a proper road base was not provided under the reinforceed pavement.

Defendants Asphalt Co. and Lettieri Co. admit that the former constructed and laid down the concrete pavement on Bergenline Avenue and that the latter, as its successor, assumed all of its obligations. However, they moved for a summary judgment on the ground that plaintiff’s claims against them were barred by N. J. S. A. 2A:14-1.1 which provides as follows:

No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an impovement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any pei'son performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.

Eollowing argument the trial judge held that the construction or paving of a street was an “improvement to real property” within the scope of the above statute and therefore plaintiff’s claim was barred as against defendants Asphalt Co. and Lettieri Co. The summary judgment here under appeal followed.

Plaintiff contends that the trial judge’s holding was erroneous and consequently the summary judgment should be reversed. She argues that the statute relates only to improvements made to private real property and in no event does it apply to the paving of a public street.

Thus, we must ascertain the true meaning of “improvement to real property,” as that language is used in N. J. S. A. 2A:14-1.1. The true meaning and intention of legislation must be derived from a reading of the whole statute. Denbo v. Moorestown Twp., 23 N. J. 476, 481 (1957). In enacting legislation the lawmakers are deemed to have a definite purpose in mind, and to have included the component parts of the enactment to accomplish that purpose. Ibid. Of significance are the words deficiency in the “design, planning, supervision or construction” and the fact that the ten-year statutory limitation shall not apply “to any person in actual possession cmd control as owner, tenant or otherwise of the improvement” (emphasis added) at the time of the occurrence.

A reading of the above-quoted language clearly demonstrates that the “improvement” the Legislature had in mind was in the nature of a building or a structure. It is to be noted that the statutory exception applies to a person in actual possession and control of the “improvement,” not one in possession and control of the real property. One cannot be said to be “in possession and control” of the instant improvement, the repaving of the street. On the other hand, a building or structure — following its design, planning, and construction — ordinarily does have a person in actual possession and control thereof as owner, tenant or otherwise.

We find no language to support plaintiff’s contention that the Legislature intended this statute to be applicable only to private real property and not to such property owned and controlled by a municipality or other public body. However, we do not believe it intended to include a public street within the statutory designation of “real property.” In this State, the status of the legal ownership of a public street is unique. The abutting landowners usually own the fee, be it only the bare legal title, up to the center thereof, J. R. Christ Constr. Co. v. Willete Associates, 47 N. J. 473, 480 (1966), subject to the easement or privilege of the public to use it according to the effect of the dedication. State by State Highway Commissioner v. Cooper, 24 N. J. 261, 266-267 (1957), cert. den. 355 U. S. 829, 78 S. Ct. 41, 2 L. Ed. 2d 42 (1957).

N. J. S. A. 40:56-48 and N. J. S. A. 40:56~53, relied upon by defendants, deal with local street improvements and the payment therefor by assessment or otherwise. They are not relevant to the interpretation of the instant statute.

Accordingly, we conclude that N. J. S. A. 2A: 14-1.1 does not bar plaintiff’s present action against defendants Asphalt Co. or Lettieri Co. The summary judgment entered in their favor is reversed and the matter remanded to the trial court for a plenary trial against these defendants.

The above disposition makes it unnecessary for us to consider plaintiff’s other contention that N. J. S. A. 2A :14^1.1 is unconstitutional and invalid.

Reversed and remanded in accordance herewith.


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

text:
    REMSCO ASSOCIATES, INC., A CORPORATION OF THE STATE OF NEW JERSEY, AND JOSEPH WENDLINGER, PLAINTIFFS-APPELLANTS, v. RARITAN TOWNSHIP MUNICIPAL UTILITIES AUTHORITY, A BODY PUBLIC, POLITIC AND CORPORATE (AND EIGHT OTHERS), DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 10, 1971
    Decided June 28, 1971.

      Carton, J. A. D., filed concurring opinion.

      Before Judges Conford, Kolovsky and Carton.

      Mr. William J. O’Hagan, Jr. argued the cause for appellants (Messrs. Stout, O’Hagan, DeVito & Hertz, attorneys).

      Mr. Sydney S. Souter argued the cause for respondent The Raritan Township Municipal Utilities Authority (Mr. Alfred L. Kettell, Jr., on the brief).

      Mr. Seymour I. Marcus argued the cause for respondent Perkins, Kanak and Poster, Inc. (Messrs. Levy, Levy, Albert & Marcus, attorneys).

      Mr. Alfred A. Porro, Jr., attorney for respondents Municiplex, Inc. and Gibraltar Securities Co., filed a brief.
   The opinion of the court was delivered by

Kolovsky, J. A. D.

A three-count complaint was filed in this action on June 11, 1970 by a taxpayer of Earitan Township and by Eemsco Associates, Inc. (Eemsco), allegedly the lowest bidder responding to an invitation for bids for the construction of a sewage treatment plant advertised by defendant Earitan Township Municipal Utilities Authority (the Authority).

The first count sought an adjudication that the Authority acted illegally when, on April 28, 1970, it awarded the contract for such construction to defendant Perkins, Kanak & Poster, Inc. (P. K. & P.) instead of to plaintiff Eemsco. The second count demanded damages from the individual members of the Authority; the third sought a determination that the sale of the Authority’s bonds was “invalid.”

The trial court granted defendants’ motion for summary judgment on all three counts; this appeal followed. Plaintiffs have expressly abandoned their appeal from the grant of summary judgment on the second and third counts, leaving for our consideration only the propriety of the grant of summary judgment on the first count.

The Authority was created pursuant to the Municipal Utilities Authorities Law, N. J. S. A. 40:14B-1 et 'seq. It advertised for bids on three contracts: Contract No. 1, for sewer lines, trunks, and collector systems; Contract No. 3, for the construction of a sewage treatment plant, and Contract No. 3, for pumping stations.

At the Authority’s meeting of April 10, 1970 plaintiff Remsco, defendant P. K. & F. and several other companies submitted bids on Contract No. 3. Remsco’s total bid was $1,975,000; P. K. & E.’s was $3,154,000. The bids were referred to the Authority’s engineer for his examination and report.

At its meeting of April 15, 1970 the Authority was advised by its engineer and attorney that irregularities in Remsco’s bid made it impossible to determine whether Remsco or P. K. & E. was in fact the low bidder. Remsco requested a public hearing to review its bid. That hearing took place at a special meeting of the Authority held on April 38, 1970 at which representatives of Remsco (its vice-president) and P. K. & E. were present.

The minutes of the meeting disclose that it opened with a statement by the Authority’s attorney, that

* * * there were several things about the bid of Remsco, Inc. that bothered the Authority; namely, Remsco, Inc. did not appear to follow bidding instructions in two areas and failed to complete either the required information for alternate equipment or the required information for subcontractors. Mr. Souter read paragraph 16 “Substitution of Equal Products” contained in the instructions to Bidders on page 1-6 and referred to page C-1B where the instructions required the contractor to complete information in four categories if the contractor intends to substitute major equipment or products. These four categories are Product of Manufacturer, Alternate Manufacturer, Addition in Price and Decrease in Price.

Remsco’s representative did not dispute that its hid did not indicate either what its hid would he if it furnished the equipment specified in the instructions to bidders or what, if any, the difference in price would be if it furnished some ten items of equipment which it proposed to substitute for the specified items and which its bid stated were equal to the specified items. Rather, he contended that “he was not obliged to list any differences in price” and that any differences should inure to Remsco’s benefit and not to the Authority.

When pressed as to whether Remseo would perform the contract for its bid of $1,975,000 if the Authority insisted on the use of the specified items, he said, “I’m not prepared to answer but our bid would probably be about $100,000 greater.” (Defendants contend that a week earlier Remseo had told the Authority’s engineer it would be approximately $150,000 higher.)

Eollowing some additional colloquy and statements by the Authority’s engineer and attorney, respectively, as to why they had “concluded that the bid of Remseo, Inc. is not in proper form and so improperly prepared that it is not possible to determine the actual cost to the Authority if specific equipment is required,” the Authority adopted a resolution rejecting Remsco’s bid and a second resolution “tentatively” awarding the contract to P. K. & E., the “bona fide” low bidder. The “tentative” nature of the award was eliminated when “the State and Eederal authorities” involved in the financing of the construction approved the Authority’s action.

Thereafter, on June 3, 1970, at Remsco’s request, the Authority again met with Remsoo’s attorney to consider legal arguments presented by him in support of his claim that the award of the contract to P. K. & E. should be rescinded. The Authority’s reaction to the legal arguments is embodied in the resolution adopted by it at its meeting of June 11, 1970. The resolution set forth the Authority’s conclusion that “the legal arguments advanced by Eemsco Associates, Inc. are not persuasive and that Eemsco Associates, Inc. has otherwise failed to cure the defects in its bid,” and “resolved that the request of Eemsco Associates, Inc. that the Authority rescind its award of April 28, 1970 be, and hereby is denied.”

On the very same day, June 11, 1970, plaintiffs filed the verified complaint herein and obtained an order to show cause, returnable June 26, 1970, which among other things restrained defendants “from executing [the contract] and pursuing any work in connection therewith.” Defendants then served motions, supported by affidavits, seeking (1) to dissolve the restraints and (2) summary judgment.

After hearing argument on June 19, 1970 the court ruled that the restraints would be dissolved. On June 22, 1970 an amended complaint was filed joining additional taxpayers as parties plaintiff. On July 10, 1970 the court heard argument on and granted defendants’ motions for summary judgment. The order for judgment was entered on September 30, 1970.

Plaintiffs filed their notice of appeal on November 4, 1970. However, plaintiffs did not seek a reinstatement of the restraints pending appeal. At oral argument we learned not only that the contract between the Authority and P. K. & P. had been executed but also that by then more than 95% of the work called for by the contract had been completed.

Plaintiffs argue here, as they did in the trial court, that the Authority was obligated under N. J. S. A. 40:50-1 to award the contract to the lowest responsible bidder; that Eemsco was the lowest responsible bidder, or at least that the proofs indicated a factual dispute on that issue so that it was error to grant summary judgment.

The trial judge ruled that Eemsco’s bid did not comply with the instructions to' bidders because it did not specify, as was required, “a plus or minus figure by virtue of the use of [the] alternatives” which Eemsco proposed to use. He chose, however, to base his grant of summary judgment not on that ruling but on his further determination that the restrictions contained in N. J. S. A. 40:50-l, that

No municipality shall enter into any contract for the doing of any work, or for the furnishing of any materials, supplies or labor, or the hiring of teams or vehicles, where the sum to he expended exceeds the sum of $2,500.00, unless the governing body shall first publicly advertise for bids therefor, and shall award the contract to the lowest responsible bidder,

are, by virtue of N. J. S. A. 40:14B-68, inapplicable to an authority created under the Municipal Utilities Authorities Law, N. J. S. A. 40:14B-1 et seq.

We agree with the trial court that the Legislature has by N. J. S. A. 40:14B-68 exempted municipal utilities authorities from compliance with N. J. S. A. 40:50-l when awarding a contract such as is here involved. It is therefore immaterial that absent the exempting language of section 68 of N. J. S. A. 40:14B, N. J. S. A. 40:50 — 1 would control the exercise of such contract powers by an authority or body created to perform municipal functions. See Glick v. Trustees of Free Public Library, 2 N. J. 579, 582-585 (1949).

N. J. 8. A. 40:14B-68 is clear and explicit:

This act shall be construed liberally to effectuate the legislative intent and as complete and independent authority for the performance of each and every act and thing herein authorized, and a municipal authority [created under N. J. S. A. 40.14B-4] shall not be subject to, or constitute a municipality or agency or component of a municipality subject to, the provisions of chapter 50 or any other provisions of Title 40 of the Revised Statutes * * *.

That the language used in section 68 is effective to relieve the Authority from compliance with N. J. S. A. 40:50-l is evident. Similar language used in N. J. S. A. 40:11A-23(4), a section of the Parking Authority Law, viz.,

A parking authority shall not be subject to, or constitute a municipality or agency or component of a municipality subject to, the provisions of chapter 50 or any other provision of Title 40 of the Revised Statutes,

has been recognized as having that effect. See Broadway Nat’l Bank of Bayonne v. Parking Authority, Bayonne, 40 N. J. 227 (1963):

Indeed, an authority has broader powers in some respects than the municipality which created it, e. g., it is not bound by Chapter 50 of Title 40, which imposes restrictions upon the power of municipalities to enter into contracts. N. J. S. A. 40 :llA-23 (4). [At 233]

Although the argument was not advanced in the trial court, on appeal plaintiffs contend that even if N. J. S. A. 40:50-l does not apply to municipal utilities authorities, nevertheless the Authority was obligated to award the contract to Eemseo as the low bidder and that its refusal to do so “constituted an unreasonable, arbitrary and capricious act” which the court should set aside.

Plaintiffs’ failure to raise the point at the trial level is itself fatal to their attempt to argue it here. Moreover, on the merits, the contention finds no support in the record or in the governing law. There is no indication in the proofs submitted on the motion for summary judgment that the Authority acted in bad faith; quite the contrary. Absent a showing of bad faith, the rule applicable to the situation where N. J. S. A. 40:50-l does not apply is that set forth in A. C. Schultes & Sons v. Haddon Tp., 8 N. J. 103:

If the statutes do not apply, the municipality had the right to award the contract in question to the bidder it felt would best serve the interests of its taxpayers. [Citations omitted] Even though the municipality actually advertised as it did here, nevertheless, if the statutes are inapplicable, there is no obligation upon the city to award the contract to the low bidder. [At 107-108]

Further, we note that even if N. J. S. A. 40:50 — 1 were to be deemed applicable to the Authority, summary judgment was properly granted in defendants’ favor. The only relevant proofs on the motion — the specifications or instructions to bidders and Eemsco’s bid — established without contradiction that its bid did not comply with the instructions to bidders. Eemseo was therefore not the “lowest bidder.” Hillside Tp. v. Sternin, 25 N. J. 317 (1957) :

The law is clear that bids must meet the terms of the notice. The significance of the expression “lowest bidder” is not restricted to the amount of the bid; it means also that the bid conforms with the specifications. * * * Minor or inconsequential variances and technical omissions may be the subject of waiver. * * * But any material departure stands in the way of a valid contract, and the defaulting person cannot be classed as a bidder at all.” [At 324; citations omitted]

Here the instructions to bidders required the bidder affirmatively to indicate the amount of the additions or decreases in price if the alternate products it proposed to use were accepted by the Authority, and also the names of the subcontractors it proposed to employ. The requirements are reasonable. There was no warrant for Remsco’s ignoring them as it did by leaving blank the spaces calling for the differences in price and by answering “not known” to the question asking for the names of its proposed subcontractors. Those material departures from the specifications may not be disregarded. Cf. J. Turco Paving Contractor Inc. v. City Council of Orange, 89 N. J. Super. 93, 103 (App. Div. 1965).

The judgment is affirmed.

Carton, J. A. D.

(concurring). I would affirm on the ground that Remsco did not comply with the bidding requirements and therefore was not the lowest responsible bidder. Consequently, in my view, it is not necessary to decide whether the Legislature intended to exempt a municipal authority from the bidding requirements applicable to municipalities themselves. Nor is it necessary to consider whether plaintiff may also be barred by reason of estoppel and public policy inasmuch as no restraints were sought pending this appeal and as a consequence the contract has been nearly completed.


author: Per Curiam. Carton, J. A. D.

text:
    EDWIN J. DOBSON, JR., INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. THE RARITAN TOWNSHIP MUNICIPAL UTILITIES AUTHORITY, A BODY PUBLIC, POLITIC AND CORPORATE, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 10, 1971
    Decided June 28, 1971.
    Carton, J. A. D., filed concurring opinion.
    Before Judges Conford, Kolovsky and Carton.

      Mr. William C. Nowels argued the cause for appellant (Messrs. Mirne, Nowels, Tumen & Fundler, attorneys).

      Mr. Alfred L. Kettell, Jr. argued the cause for respondent The Raritan Township Municipal Utilities Authority {Mr. Sydney S. Souter, attorney).
    • -Mr. Seymour I. Marcus argued the cause for respondent Perkins, Kanak and Poster, Inc. {Messrs. Levy, Levy, Albert & Marcus, attorneys).
   Per Curiam.

On April 28, 1970 the Raritan Township Municipal Utilities Authority (the Authority) awarded a contract for the construction of a sewage treatment plant to Perkins, Kanak & Poster, Inc. Two actions were instituted attacking the award of the contract, one on June 1.1, 1970 by Remseo Associates, Inc. and a taxpayer, the other on June 12, 1970 by plaintiffs herein, a corporate plumbing contractor and two taxpayers of Raritan Township. In each action the trial court granted summary judgment to defendants. Separate appeals followed.

In the Remseo action, the principal contention, unsuccessfully advanced by plaintiffs, was that under N. J. S. A. 40:50-1 the Authority was required not only to advertise for bids for the construction but also to award the contract to the lowest bidder, alleged to have been Remseo.

In Remsco Associates, Inc. v. Raritan Township Municipal Utilities Authority, 115 N. J. Super. 326, decided this day, we sustained the grant of summary judgment to defendants. We held not only that Remseo was not the lowest responsible bidder but also that N. J. S. A. 40:14B-68, a section of the Municipal Utilities Authority Law, exempted municipal utilities authorities from compliance with the bidding statute, N. J. S. A. 40:50 — 1.

The latter determination is dispositive of the sole contention advanced by plaintiffs in the present action, viz., that under N. J. S. A. 40:9-3 the Authority was required

* * * in its Plans and Specifications for the erection of tbe treatment plant, to prepare separate Plans and Specifications for the plumbing, and gas fittings, and all kindred work; and steam and hot water heating ventillating [sic] apparatus, steam power plants and kindred work, and electrical work, structural steel and ornamental iron work.

N. J. S. A. 40:9-3 provides, insofar as here pertinent, that

“In preparation of plans and specifications for the erection, alteration or repair of any public building by any political subdivision of this State, when the entire cost of the work will exceed $1,000.00 in amount, the architect engineer or other person preparing the plans and specifications, shall prepare separate plans and specifications for the plumbing and gas fitting, and all kindred work, and of the steam and hot water heating and ventilating apparatus, steam power plants and kindred work, and electrical work, structural steel and ornamental iron work.
The board, body or person authorized by law to award contracts for the erection, construction, alteration or repair of any such public building, shall advertise for and receive, in the manner provided by law, (a) separate bids for each of said branches of work, and also (b) bids for all the work and materials required to complete the building to be included in a single over-all contract * * =:’.
Contracts shall be awarded to the lowest responsible bidder in the following manner: * * *.

We need not decide whether the construction of a sewage treatment plant is encompassed within the words “erection * * * of any public building” as used in N. J. S. A. 40:9-3, for we are satisfied that in any event the section has no application to a municipal utilities authority. See N. J. S. A. 40 :14B-68.

It is clear from the language of N. J. S. A. 40 :9-3 that it applies only in situations where the political subdivision is required by a bidding statute such as N. J. S. A. 40:50-l, to advertise for bids and award the bid to the lowest responsible bidder. Since we have held in Remsco, supra, that the relevant bidding statute, N. J. S. A. 40:50-l is not applicable to a municipal utilities authority, it follows that the restrictions of N. J. S. A. 40:9-3 are likewise not applicable to it.

The judgment is affirmed.

Carton, J. A. D.

(concurring). I concur that the judgment should be affirmed. Plaintiff’s action was not brought within the time prescribed by the rules and no manifest injustice compels a consideration on the merits. Indeed, equitable and public policy considerations point in the opposite direction inasmuch as no restraints were obtained pending appeal and in the meantime this public project has now been practically completed.