author: Griffin, J. C. C.,

text:
    JOSEPH SIKORA, IND., AND JEFFREY SIKORA, AN INF. BY HIS G/A/L, JOSEPH SIKORA AND KATHLEEN MARIE SIKORA, PLAINTIFFS, v. WESLEY WADE, KELSEY WADE AND IDA WADE, AND RAYMOND J. McERLEAN, JR., DEFENDANTS.
    Superior Court of New Jersey Law Division
    May 23, 1975.

      Mr. Robert J. T. Mooney for plaintiffs (Messrs. Butter-more and Mooney, attorneys).

      Mr. Mark Stanton for defendants Wade (Messrs. Stanton and Recht, attorneys).

      Miss Joan Sherman for the defendant McErlean (John W. Taylor, attorney).
   Griffin, J. C. C.,

Temporarily Assigned. Plaintiff was injured in an automobile accident. He has started suit against Wesley Wade an unlicensed driver, Wesley Wade’s parents, and Raymond McErlean, the donor of the car. At the close of plaintiff’s case defendant Raymond McErlean moved for an involuntary dismissal of the claim against him. Pursuant to B. 4:37-2(c) the court reserved decision until the conclusion of the trial.

The issue is one of first impression in New Jersey. The court must determine whether the donor of an automobile may be held liable in tort to third persons injured by the negligence of the donee after title to the automobile has been transferred.

McErlean had title to a 1963 Rambler which was used by his 18-year old son. The car failed to pass inspection in August 1972. His son was not permitted to take the car to college. McErlean decided to dispose of the car for junk. At this point McErlean’s son found that Wesley Wade, whom he knew slightly but not particularly well, would like to have the car. Upon discussing this with his father, his father consented to give the car to young Wade. Wade was, in fact, about 16 years and 10 months old and unlicensed. Mc-Erlean had never met, seen or talked to him. He had no knowledge of his prior driving experience and no knowledge as to whether or not he was licensed. He made no inquiry. He simply endorsed the certificate of title, gave it to his son and instructed his son to give the certificate together with the car to Wade.

The day after this was done plaintiff, while a passenger in the Wade car, was injured while Wade was driving on private property. Giving the plaintiff the benefit of all inferences on the motion, it may be assumed that McErlean should have known that Wade was unlicensed because he knew Wade was behind his own son in high school.

The Restatement, Torts 2d § 390, reads:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

The comment under this section reads, in part:

The rule stated applies to anyone who supplies a chattel for the use of another. It applies to sellers, lessors, donors or lendors, and to all kinds of bailors, irrespective of whether the bailment is gratuitous or for a consideration.

New Jersey has recognized the rule, at least in principle, .in two cases involving parents giving children access to firearms. See Mazzilli v. Selger, 13 N. J. 296 (1963), and Stoelting v. Hauck, 32 N. J. 87 (1960).

In other jurisdictions it has been held that one who lends his motor vehicle to another knowing him to be incompetent may be held liable for such person’s negligence. See Snow-white v. State, 243 Md. 291, 221 A. 2d 342 (App. Ct. 1966) (owner knew driver frequented bars and was often intoxicated) ; Fogo v. Steele, 180 Kan. 326, 304 P. 2d 451 (Sup. Ct. 1956) (mother knew son was a reckless driver). Most of the eases, however, do not impose this liability when title to the car has been transferred, even in the case of a parent-child relationship. There is some split authority on this, however. See Jenkins v. Bridges, 93 Ga. App. 241, 91 S. E. 2d 317 (App. Ct. 1956); Brown v. Harkleroad, 39 Tenn. App. 657, 287 S. W. 2d 92 (Tenn. Ct. App. 1955); but see, Golembe v. Blumberg, 262 App. Div. 759, 27 N. Y. S. 2d 692 (App. Div. 1941) (father liable for accident caused by epileptic son who had seizure while operating car).

Both sides of this issue are presented in the case of Estes v. Gibson, 257 S. W. 2d 604 (Ky. Ct. App. 1953). In that case a parent purchased an automobile for an adult son known to be an inebriate and drug addict. Plaintiff was seriously injured as a result of an accident caused by the son. The court held that a cause of action was not stated against the parent and said:

To impose legal liability there must always be a reasonably close causal connection between an act and the resulting injury. The vicarious liability of an owner or controller for putting an automobile, which is not in itself inherently a dangerous instrumentality, in possession of another person known to be habitually unfit to drive it, with the foreseeable and probable consequences that he will hurt somebody, is at most a secondary liability. The doctrine ought not to be extended where the party sought to be charged had no control over the machine and the other party actually committing the injurious wrong was the owner, sui juris. In addition, and ordinarily, as here, the causation is too tenuous and too remote. There are too many probable and imponderable intervening events and conditions between the gift of the car and its negligent operation by the owner-driver. [at 607-608]

In a strong dissent the following language was used:

I am unable to discern a reasonable basis distinction in the negligence of one who lends his car and one who gives a car to a known incompetent or reckless driver. If there is a distinction, the more reasonable view would suggest that one who gives an automobile to a known incompetent driver, placing in him power to use it at any and all times, drunk or sober, sane or insane, is more negligent than one who merely lends the vehicle for one specific occasion, [at 608]

In the case at bar there was no family relationship nor was there actual knowledge of incompetence. At most there may have been an obligation to inquire.

None of the cases reviewed discuss the problem of public policy which seems important to the court in this situation. If the donor of a car has an obligation to inquire into the donee’s driving ability, so also would the vendor of a car. Must the vendor who advertises a car for sale check the background of the stranger who comes to purchase? Must an automobile dealer check the driving ability of every potential purchaser? The answer is obviously no. Such a requirement would unduly hamper commerce and would pose an undue burden on ordinary business relationships. It is one thing to impose liability on the possessor of a ear who lends it to a person known to be a dangerous driver, but it is quite another to take the two steps required in order to hold defendant McErlean in this litigation. The first step would be to impose a duty of inquiry upon the possessor when he has no actual knowledge as to the driving ability of the borrower, and the second would be to impose such liability after title to the ear has been transferred.

In this case the certificate of title had been properly endorsed and delivered, together with the physical possession of the automobile, the day before the accident occurred. The fact that the donee had not yet registered the car in his own name has no bearing on ownership as between donor and donee. It is simply a requirement in order to enable the donee to legally operate the motor vehicle.

The motion of defendant McErlean for a dismissal will be granted.


source: Caselaw Access Project

author: Petrella, J. C. C.,

license: Public Domain

text:
    LLOYD E. CALDWELL, PLAINTIFF, v. TOWNSHIP OF ROCHELLE PARK, DEFENDANT.
    ■Superior Court of New Jersey Law Division
    Decided June 2, 1975.

      Mr. William, M. Messineo for plaintiff (Messrs. Messineo & Messineo, attorneys).

      Mr. Elmer J. Skiba for defendant (Messrs. Skiba & Atkins, attorneys).
   Petrella, J. C. C.,

Temporarily Assigned. This matter is before the court on cross-motions for summary judgment. Both parties agree that the controversy is ripe for summary judgment on the legal issue.

It is undisputed that plaintiff was employed as a patrolman by the Borough of Ramsey from June 1, 1964 to April 30, 1967, when plaintiff voluntarily transferred from the Police Department of Ramsey to that of defendant Township of Rochelle Park. A March 20, 1967 township committee resolution appointed plaintiff a patrolman “effective May 1, 1967 at a salary as provided in the Salary Ordinance for a patrolman having two years prior experience.” The appointment was conditioned on an initial one-year probationary period and was expressly subject to the terms and conditions of the salary ordinance adopted March 6, 1967. In February 1975 (apparently after learning in 1974 of certain recent court decisions), and relying on the 1971 enactment of N. J. 8. A. 40A:9-5, plaintiff filed a complaint in lieu of prerogative writ seeking additional longevity and vacation pay from the township based on his 2 years and 11 months prior experience with the Ramsey Police Department. Apparently he also seeks credit for an additional 11 months of benefits not received under his appointment resolution. Defendant denies plaintiff is entitled to additional compensation or benefits.

The parties agree that the issue before the court is the applicability of N. J. S. A. 40A:9-5 to plaintiff upon a transfer from employment in one municipality to employment in another municipality in the same county.

The Appellate Division has recently ruled on transfers from municipal to county employment under N. J. 8. A. 40A:9-5, effective July 1, 1971 in L. 1971, c. 200. This statute provides as follows:

Rights of certain employees transferred to other positions.
Whenever heretofore or hereafter a transfer has been or shall be effected by appointment, assignment or promotion of a municipal employee to any other department or position in municipal employment, or to a position or department of the county government; or of a county employee to any other position or department in county employment, or to a department or position of a municipal government, in counties of the first or second class, the period of such prior service in said county or municipal employment, for any purpose whatsoever, shall be computed as if the whole period of employment of such employee had been in the service of the department, or in the position, to which the said employee had been transferred.

If the above statute applies to Officer Caldwell then he would be entitled to credit for previous municipal employment, measured from the date of his first employment with Ranise}’, and a salary adjustment from either that date or the effective date of N. J. S. A. 40A:9-5, unless limited by laches or waiver. See Libby v. Union Cty. Bd. of Freeholders, 125 N. J. Super. 471, 474 (App. Div. 1973).

Defendant township contends that N. J. S. A. 40A:9-5 is inapplicable to plaintiff and that while New Jersey cases have held that a transfer described in the statute need not be involuntary, they involved employee transfers from municipal employment to positions in county government, relying upon Libby v. Union Cty. Bd. of Freeholders, supra (voluntary municipal to county employment) and an unreported decision of this court decided in Bergen County on December 6, 1974.

The municipality urges that the statute was not designed to cover individuals employed in one municipality who voluntarily resign and take employment in another municipality. Bather, it contends the statute was designed to cover employees who are involuntarily transferred from one position to another position in the same municipality by appointment, assignment or promotion, or a transfer from municipal to county employment.

Plaintiff argues that N. J. S. A. 40A:9-5 and subsequent case law entitle him to the relief sought. See also Fivehouse v. Passaic Valley Water Comm’n, 127 N. J. Super. 451 (App. Div.), certif. don. 65 N. J. 565 (1974) (transfer between municipal employment and public agency not covered). In addition, plaintiff contends that changes in the wording of A. J. S. A. 40A :9-5 from the source law, N. J. S. A. 40 :ll-5, as well as the wording of the current statute itself, would support a finding of legislative intent to make the statute applicable where a municipal employee voluntarily transfers to employment in another municipality as opposed to a transfer within the same municipality.

In determining whether plaintiff comes within the statutory provision, the court has examined the source law, case interpretation of the prior statute, the circumstances leading to its amendment in a legislative revision and the changes made in its wording, to see if they shed light on legislative intent.

The Appellate Division, in construing N. J. S. A. 40A :9-5, did not cite or rely on the case of Carroll v. Caufield, 80 N. J. Super. 472 (Law Div. 1963), as to legislative history or interpretation. In Carroll five Newark employees who voluntarily became members of that city’s fire department sought credit for past service with various other city departments from which they had voluntarily resigned after successfully passing Civil Service examinations. The court in Cairoll looked to the legislative intent of N. J. 8. A. 40 :ll-5 (in effect since at least 1931) and other applicable laws, including the 'Civil Service laws, to resolve conflicting policies, and said:

This case must turn, then, on the intent of the Legislature in enacting R. S. 40 :ll-5. It is clear that the interpretation urged by plaintiffs would cast its shadow on certain sections of the Civil Service Act. For example, R. S. 11:22-6 provides for a probationary period of three months following appointment or promotion to a new position. N. J. S. A. 11:22-34 provides that seniority be given due consideration in making promotions. Could the probationary period be held to apply to one who already has lengthy service in another Civil Service post? Should this service be counted as seniority, thus entitling a new recruit to the Fire Department, for example, who has had five years in the Police Department, to priority on the promotion list over a four-year veteran of the Fire Department? Can it be said that such a result is any more incongruous than having newly appointed firemen paid at a higher rate than firemen with three or four years of experience as is urged hy plaintiffs herein? Did the Legislature intend such an effect?
Even more basically at issue is the question of whether or not the Legislature intended that R. S. 40 :ll-5 be applicable to those situated as plaintiffs herein, thus limiting the power of the municipality to set salary schedules by ordinance for its firemen. Defendant city claims this power under three statutes. [at 475-476]

It also examined the preamble and the statement that accompanied the bill when it was introduced in the Legislature, as well as the wording of the statute itself, and found that:

Each of these * * * appears to be protective in tone. The wording of each (as well as R. S. 40 :ll-5 itself) implies passivity in the employee. Each indicates that the act is designed to supply a measure of security for the employee who would otherwise, through forces beyond his control, be deprived of certain of his rights insofar as continuity of service as a public employee is concerned. The accompanying statement is the most clear as it cites those who “must begin as new employees thereby losing their seniority rights, which their previous service entitled them to.” [at 480]

The court concluded in Carroll that since plaintiffs in that action were volunteers, they did not come under the protection of seniority rights afforded by the statute.

V. J. 8. A. 40 :ll-5, entitled “Eights of certain employees transferred to other positions in certain counties,” was repealed and replaced by N. J. 8. A. 40A :9-5 as part of a revision or codification of Title 40. The appendix to the bill introduced in the Legislature (Senate Bill 641 of 1970) indicates that the repealed section was the source of the present section. The changes in the wording of this specific section are few and insubstantial, and its basic design was kept intact. On March 8, 1971 Governor Cahill conditionally vetoed Senate Bill 641 embracing the statute here under consideration, returning it with his objections for reconsideration with suggested amendments. His veto message stated that:

Senate Bill No. 641 is the result of a long and arduous effort to codify existing laws relating to county and municipal officers and employees and to eliminate obsolete statutory provisions in Title 40 of the New Jersey Statutes.

There was no recommended change by the Governor in his conditional veto message to the section which was enacted subsequently as section 5 of Chapter 9 of Title 40A, “Officers and Employees.” Nor had there been any amendment in the legislative process or statement of the sponsor regarding that section. The general rule is that where a statute is ambiguous, messages of the Executive to the Legislature can be used to determine legislative intent, and the action of a Governor in approving or vetoing a bill is part of the legislative process. State v. Madden, 61 N. J. 377, 388 (1972); Asbury Park Bd. of Ed. v. Hoek, 38 N. J. 213, 235-236 (1962); Dept. of Health v. Sol Schnoll Dressed Poultry Co., 102 N. J. Super. 172, 176-177 (App. Div. 1968); and 2A Sutherland on Statutory Construction (4 ed. 1973), § 48.05 at 201. It is also clear that when the Legislature enacts a codification or amendment of existing laws it is presumed to do so with knowledge of prior court decisions and the judicial construction placed thereon. Brewer v. Porch, 53 N. J. 167, 174 (1969); Petrozzino v. Monroe Calculating Machine Co., Inc., 47 N. J. 577, 582 (1966); In re KeoghDwyer, 45 N. J. 117, 120 (1965); Bialkowski v. Ridgefield, 118 N. J. Super. 354, 358-359 (Law Div.), aff’d 120 N. J. Super. 194 (App. Div. 1972). Generally, there is a presumption against legislative intent to effect a change of substance by a revision of laws, and that presumption is not necessarily overcome by mere change of phraseology or addition or omission of words, In re Glen Rock, 25 N. J. 241, 249 (1957); Kessler v. Zink, 136 N. J. L. 479, 482 (E. & A. 1948); Hammonton v. Civil Service Comm’n, 82 N. J. Super. 64, 73 (App. Div.), certif. den. 42 N. J. 140 (1964), unless there is a clear indication of a desire by the Legislature to alter existing law. New Shrewsbury v. Block 105, Lot 11, etc., 104 N. J. Super. 360, 365 (Ch. Div. 1969), aff’d o.b., 111 N. J. Super. 550 (App. Div. 1970). It might be presumed that if no substantive change was made in N. J. S. A. 40A :9-5, that the Legislature was aware of the Carroll court’s interpretation and was in agreement with the judicial construction placed thereon.

Essex Cty. Welfare Bd. v. Perkins, 333 N. J. Super. 189, 198 (App. Div. 1975), in commenting on the case of Lathrop v. Lathrop, 57 N. J. Super. 532 (App. Div. 1959), said:

The correctness of the decision in Lathrop has never been questioned in subsequent cases. Nor has any attempt been made in the intervening years to amend the statute and thus the construction placed upon the first sentence thereof in Lathrop may be deemed to have been acquiesced in by the Legislature.

The prior statute, N. J. S. A. 40 :11-5, when compared with its superceding counterpart section, bears a marked similarity. The repealed statute is set out hereinafter, with the changes worked in the section under review indicated by brackets for deletions and emphasis for additions:

40:11-5 [now repealed] Rights of certain employees transferred to other positions in certain counties.
Whenever heretofore [there has been] or hereafter a transfer has been or shall be [there may be] effected by appointment, [transfer,] assignment or promotion[,] of a municipal employee[,] to any other department or position in [the] municipal employment, or to a position or department of the county government; or [when there has been or hereafter may be effected by appointment, transfer, assignment or promotion,] of a county employee[,] to any other position or department in [the] county employment, or to a department or position of a [the] municipal government, in counties of the first or second class, the period of such prior service in said county or municipal employment, for any purpose, whatsoever, shall be computed as if the whole period of employment of such employee had been in the service of the department, or in the position, to which the said employee had been [appointed,] transferred [, assigned or promoted].

Sources. L. 1931, c. 216; L. 1933, c. 154 (repealed by N. J. S. A. 40A:9-22).

Carroll had been a reported case construing N. J. S. A. 40:11 — 5 since 1963. Although N. J. S. A. 40A :9 — 5 made some changes in N. J. S. A. 40:11-5, examination of these changes shows they are largely in sentence structure and organization, with the substitution of the phrase “municipal employment” for “the municipal employ.” It seems unlikely that a significant change of legislative intent could be found in the change of “employ” to “employment.” By common definition and usage they are interchangeable and synonymous. The deletion of the article “the” is more troublesome. Certainly its deletion could eliminate any restriction to one specific municipality.

The Appellate Division did not mention Carroll v. Canfield, supra, in either Libby or Fivehouse, supra. Thus, this court must determine (1) whether the statutory changes affect Carroll since a fortiori if the statute did not apply to intramunicipal transfers it would seem unlikely it could extend to intermunicipal transfers, or (2) whether Carroll has or has not been overruled by implication regarding the categories of intramunicipal or intermunicipal transfers. True, Carroll is a trial court opinion which binds neither this court nor the Appellate Division. See State v. Hudes, 128 N. J. Super. 589, 596 (Cty. Ct. 1974); State v. Pittman, 124 N. J. Super. 334, 337 (Law Div. 1973); Wolf v. Home Ins. Co., 100 N. J. Super. 27, 35-36 (Law Div.), aff’d 103 N. J. Super. 357 (App. Div. 1968).

It is also true that in many, if not all employments in municipalities, there may be certain common threads (even though the actual employer is a separate entity), such as pension plans, health benefits and civil service. However, the question is whether for the purposes embraced in the statute the rights of “certain employees” apply to all municipalities and municipal employees (in first and second class counties).

Of course, a trial court is bound to follow the rulings of an appellate court in this State, which decisions are binding when the same issues are presented. Reinauer Realty Corp. v. Paramus, 34 N. J. 406, 415 (1961); State v. Sheppard, 125 N. J. Super. 332, 335 (App. Div. 1973); Mannillo v. Gorski, 100 N. J. Super. 140, 150 (Ch. Div. 1968); Bozmierski v. Newark, 42 N. J. Super. 14, 17 (Law Div. 1956).

Libby held that when a municipal employee leaves his employment and is immediately thereafter appointed to a position in county government, N. J. S. A. 40A:9-5 applies since involuntary transfers from municipal to county employment or vice versa would be a rarity and for the statute to apply only in the event of an involuntary transfer would require the court to assume that the statute was useless legislation.

Likewise here, in the case of Officer Caldwell, the court has not been directed to any statute which could compel Officer Caldwell’s transfer to another municipality, except that the court can take judicial notice of N. J. S. A. 40A:14r-156 and N. J. S. A. 40A:14-26 regarding certain temporary emergency duty.

In Firehouse, supra, plaintiff’s action for longevity pay based on her prior municipal employment with the City of Paterson and its Housing Authority failed, not because her transfer was voluntary, but because the Passaic Valley Water Commission (a public agency) was not a county or municipal agency within the scope of N. J. S. A. 40A:9-5. The court noted:

Employment by defendant does not constitute employment by a department or position in municipal or county government so as to bring plaintiff within the purview and meaning of A. J. S. A. 40A:9-5. The benefits conferred by this act are extended solely to municipal employees who are transferred to positions in municipal or county government and to county employees who are transferred to positions in county or municipal government. The application of the act (A. J. S. A. 40A:9-5) must be limited to what the Legislature intended by the express language of the statute. [127 A. J. Super. 456]

The reference in this quotation to benefits being conferred on municipal employees who are transferred to positions in municipal government, although an interpretation of the section, was dictum in Firehouse.

Can these later cases be reconciled with the Carroll case and the legislative intent of the source statute which, according to its introductory statement, “merely establishes a seniority right which has heretofore been denied”?

The Libby holding did not deal with every voluntary transfer. Because there was no law which would require a municipal employee to submit to an involuntary transfer to county government or vice versa, it was held that the transfer in that situation of necessity would have to be voluntary. Similarly, the court in Fivehouse acknowledges the Libby decision in concluding the trial court erred in construing the act to apply only to involuntary transfers, while affirming on the other ground stated above. However, these decisions reflect a basic change in interpretation and the philosophy of the Carroll case, with an expansion in construction of the applicability of the statute to not only involuntary but also voluntary transfers. Carroll appears to have been silently overruled or disapproved insofar as it declined to apply the statute to voluntary municipal transfers. In addition, the change in the wording in the statute referring to municipal employees from “position in the municipal employ” to “position in municipal employment” by deletion of the limiting article, while not indicating a clear legislative intent to confer the benefits of the statute upon municipal employees who transfer to another municipality, certainly removes a potential barrier to it. Thus, even if the 1971 changes to Chapter 9 of Title 40A represented a revision or codification of previous statutes, and there was no substantive change in the wording or amendment from the source law, N. J. 8. A. 40 :ll-5, the changes leave no rational basis for limiting Libby and Fivehouse to transfers between municipalities and counties of the first and second class.

N. J. 8. A. 40A-.9-5 does apply to “a transfer * * * by appointment * * * of municipal employee to any other department or position in municipal employment” and “the period of such prior service in said * * * municipal employment, for any purpose whatsoever, shall be computed as if the whole period of employment of such employee had been in the service of the department, or in the position, to which the said employee had been transferred.” The deletion of the article “the” allows the statute to clearly apply to intermu-nieipal transfers. It is clear that N. J. S. A. 40A:9-5 now applies to plaintiff, and thus, regardless of the purpose of the transfer, the computation of prior service is mandatory. However, the court must still determine from what date the statute applies to this plaintiff.

Carroll, even though a trial court decision, was unchallenged and unmodified by amendment to the statute between 1963 and July 1, 1971, and was the law regarding the interpretation of N. J. S. A. 40 :ll-5 until its repeal. From that date on plaintiff came under the mandatory provisions of N. J. S. A. 40A :9 — 5 which applied to his transfer from one municipal employment to such employment in another municipality in the same county by virtue of the statutory language change and to his past service by use of the phrase “heretofore or hereafter”. Prior to that date the applicable law was as stated in the Carroll decision, which apparently had been acquiesced in by the Legislature.

Plaintiff cannot be considered to be guilty of laches or waiver as regards longevity or salary in view of the change in the statute and the fact that the decision in Libby was not generally available to the public until after it was decided on November 15, 1973 and subsequently approved for publication. Compare Libby, supra (125 N. J. Super, at 474).

Although computation of prior service is mandated by the the statute, which uses the phrase “whenever heretofore or hereafter,” there is nothing therein that specifies how far prior to application therefor compensation mav be recovered by an employee claiming entitlement to application of its coverage, or whether, for periods prior to the effective date of N. J. S. A. 40A :9 — 5, any back payments are to be made, as opposed to taking such time into account for computation of present status.

In other words, did the Legislature contemplate that actual reimbursements for such credit should be given retroactively? If this were required, serious fiscal problems and confusion might result in view of the requirements of municipal budget laws. It is doubtful the Legislature intended such a result since it was not until 1973 that the Appellate Division in Lilly determined that N. J. S. A. 40A :9-5 applies to voluntary as well as involuntary transfer. And, it was not until the deletion of the article "the" (as discussed above), that, so far as this court can determine, the conclusion can clearly be made that it is not limited to intramunicipal transfers. Thus, the statute by its silence lends itself to a distinction between use of prior service for computation of "the period of such prior service * * * for any purpose whatsoever” and reimbursement solely for compensation and benefits prior to its effective date. The court would require a clear expression of legislative intent before concluding that complete retro-activity of pay was required.

All of plaintiff’s prior service determines present and future compensation and benefits, and indeed, under the undisputed facts in this case such compensation and benefits would be payable from the effective date of N. J. S. A. 40A:9-5. Retroactive pay would not precede that date. Plaintiff concedes that he bargained for the salary of a person with two years’ prior service. He was granted that status in the township’s 1967 resolution of appointment and accepted it, both parties relying on the then status of the law.

Thus, a reasonable application of the statute here would appear to make retroactivity to the effective date somewhat discretionary, depending on the facts and circumstances, taking into account any factual defenses that may exist, such as waiver and laches.

Accordingly, plaintiff would be entitled to credit for his entire period of employment with the Ramsey Police Department, and to reimbursement for additional compensation (including benefits) from and after July 1, 1971, by virtue of N. J. 8. A. 40A-.9-5.

Plaintiff’s motion for summary judgment is granted and defendant’s cross-motion is denied in accordance with the foregoing, both without costs.

      There were questions raised by defendant regarding the propriety of a prerogative writ action and noncompliance with R. 4:69-6. The court allowed enlargement of time under subsection (e) of the rule and decided to consider the merits of the case.

      The other three statutes were: R. S. 40:48-1 and N. J. S. A. 40:69A-29 (both still in effect) ; and N. J. S. A. 40:46-23 (now N. J. S. A. 40A-.9-165).

      Compare N. J. S. A. 40A :1~2.

      Compare N. J. S. A. 40A:1-5 which provides: “Construction with prior law. The provisions of Title 40A not inconsistent with those of prior laws shall be construed as a continuation of such laws.”

       So referred to in the section heading — which is not part of the law but which may aid in interpretation. State v. Greene, 33 N. J. Super. 497, 500 (App. Div. 1955). See also, N. J. S. A. 40A:1-7.


author: Thuring, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. CATHERINE McCARTIN AND MARY ORR, DEFENDANTS.
    Superior Court of New Jersey Law Division ■ — ■ (Criminal)
    Decided June 18, 1975.

      Mr. Gerald D. Miller for defendants (Messrs. Miller, TLoch-mcm, Meyerson & Miller, attorneys).

      Mr. Robert Zatorslci, Assistant Prosecutor for the State (Mr. James T. O’Halloran, Prosecutor of Hudson County, attorney).
   Thuring, J. S. C.

This is a motion by defendants pursuant to 18 U. S. C. A. § 2518(10) and N. J. S. A. 2A:156A-21 to suppress at trial (a) evidence of telephone conversations overheard and taped, and (b) evidence of gambling paraphernalia seized under search warrants issued partially on the basis of the telephone conversations.

At noon on October 5,1971 the Kearny Police were advised by a local resident that he heard considerable static and strange voices on his daughter’s telephone. "Fearful of being robbed,” he alerted the police. The police, on invitation, listened in on the telephone and overheard extensive evidence of horse-race betting at unknown locations. They then recorded gambling oriented, conversations by means of a cassette tape recorder attached with a suction cnp and induction coil to the back of the telephone receiver. With the information provided by the conversations the police pressed their search for the illicitly used telephones. A nearby duplex apartment where defendants lived side by side became the focus of the police investigation. Search warrants were issued on October 6, 1971. A raid on defendants’ premises netted implements of gambling and large sums of money. Both defendants were in-dieted for bookmaking, N. J. 8. A. 2A :112-3, and defendant Orr was also indicted under another provision of the same statute for keeping a place to which persons may resort for gambling.

Defendants contend that the police without having first obtained a court order illegally intercepted and taped telephone conversations, in violation of the Omnibus Grime Control Act of 1968, Title 3, Wiretap Provisions, 18 U. S. C. A. § 2510 et seq. and the New Jersey Wiretapping and Electronic Surveillance Control Act, N. J. S. A. 2A:156A-1 et seq.

The State’s position is that the actions of the police in listening to and taping the conversations heard over the citizen’s telephone did not come within the proscription of federal or state law since no “interception” of conversations, as defined in the statutes ever took place.

Both statutes are aimed at the willful interception and revelation of wire or oral communications where privacy is an anticipated concomitant of the instrument’s use. The language of the federal statute is identical with that used in N. J. S. A. 2A:156A-3(a), which reads:

Except as otherwise specifically provided in this act, any person who:
a. Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication; * * *

shall be punished as provided by law.

Thus this court must determine whether there was a willful interception of telephone conversations and improper disclosures of such conversations.

Both statutes define “intercept” to mean:

s- a> * thg aurai acquisition of tbe contents of any wire or oral communication through the use of any electronic, mechanical, or other device. [N. J. S. A. 2A:156A-2(c) ; 18 U. S. C. A. § 2510(4)3

In addition, in both enactments, an “electronic, mechanical or intercepting device” is defined to mean any device or apparatus which can be used to intercept a wire or oral communication other than:

(a) Any telephone or telegraph instrument, equipment or facility, or any component thereof, furnished to the subscriber or used by a communication common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business. * * * [N. J. S. A. 2A:156A-2(d) ; 18 U. S. C. A. I 2510(5)3

N. J. S. A. 2A156A-3 has never been judicially construed in a reported case in our State, but in State v. Vizzini, 115 N. J. Super. 97 (App. Div. 1971), the court did consider the New Jersey predecessor “wiretap” statute and 18 U. S. C. A. § 2511 as they relate to unlawful interception of a wire or oral communication. See Flaherty v. State, 255 Ark. 187, 500 S. W. 2d 87 (Sup. Ct. 1973), cert. den. sub nom. Flaherty v. Arkansas, 415 U. S. 995, 94 S. Ct. 1599, 39 L. Ed. 2d 893 (1974) (Douglas, J. dissenting).

In Vizzini a police officer present in a raided premises under a warrant heard the phone ring. The officer lifted the phone after he attached an induction coil to the back of the telephone receiver and connected it to a tape recorder. The officer engaged in and recorded his conversations with the caller relative to gambling activities. The conduct of the officer was upheld because the officer was a “party” to the telephonic conversation; thus his conduct was found to be exempt from the statute’s prohibition. 18 U. S. C. A. § 2511(c) The court in Vizzini relied on Rathbun v. United States, 355 U. S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134 (1957), and State v. Carbone, 38 N. J. 19 (1962), the latter of which held that interception of the communication did not occur where the “bettor intended the words to reach the officer, albeit the bettor thought he was someone else” (at 26, 183 A. 2d at 5).

The facts in Vizzim are not at all analagous to the instant case, requiring this court to test the applicability of the statutes in a new factual context. Here we do not have a direct party to the conversation as found in Vizzini but do have an inadvertent overhearing of conversations by a person who in no way initiated mechanical interference with the telephone or its line.

The State and defendant cite Lee v. Florida, 392 U. S. 378, 88 S. Ct. 2096, 20 L. Ed. 2d 1166 (1967). In that case a phone on a four-party line was installed in Lee’s home. A week later the police directed that a telephone in a neighboring house be connected to the same party line. Equipment was attached which permitted the overhearing of conversations on the party line without lifting the receiver. On defendant’s trial for lottery charges, recordings of conversations heard on the party line were admitted into evidence over defendant’s objection. The conviction was affirmed by the Supreme Court of Elorida, holding that no federal or state law precluded the admissibility of the conversations.

The State of Elorida contended that no interception could have taken place since persons using party lines must realize that their conversations might be overheard. The court responded :

This is not a case, however, where the police merely picked up the receiver on an ordinary party line, and we need not decide whether § 605 would be applicable in those circumstances. For here the police did much more. They deliberately arranged to have a telephone connected to Lee’s line without his knowledge, and they altered that connection in such a way as to permit continuous surveillance and recording of all conversations on the line [392 U. S. at 381; 88 S. Ct. at 2098; emphasis supplied]

The court reversed on the basis that § 605 of 47 U. S. C. A. the forerunner to 18 U. S. C. A. § 2510, was applicable to the states under the exclusionary rule of Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

Section 605 of the Federal Communications Act was amended in 1968 and certain mandates in connection with “wiretapping” were transferred to the Omnibus Crime Control Act of 1968, 18 U. S. C. A. § 2510 et seq. By the amendation of § 605 Congress intended that law enforcement officers’ activities regarding wiretapping be governed by the new Crime Control Act. United States v. Hall, 488 F. 2d 193, 195 (9 Cir. 1973); 1968 U. S. Code Cong, and Adm. News, P. 2196. The New Jersey Wiretapping and Electronic Surveillance Control Act, N. J. S. A. 2A:156A-1 et seq., is comparable to the federal act.

Under the pre-1968 § 605 illegal “interception” by wire connoted in general a situation in which by surreptitious means a third party willfully overhears a telephone conversation between two other persons. United States v. Pasha, 332 F. 2d 193 (7 Cir. 1964), cert. den. 378 U. S. 839, 85 S. Ct. 75, 13 L. Ed. 2d 45 (1964). The term “interception” was carried over to both the federal and New Jersey statutes and still means the willful overhearing by a third person of conversations of others via a device of some sort. State v. Vizzini, supra. It has been recently held that the willful interception can be accomplished by use of a telephone extension. United States v. Harpel, 493 F. 2d 346 (10 Cir. 1974); Horn v. State, 298 So. 2d 194 (Fla. D. Ct. App. 1974).

The court in Lee v. Florida, supra, found that the facts clearly spelled out a deliberate illegal “interception” coupled with an improper divulgence of the telephone communications, and ordered the conversations suppressed.

The ease at bar factually begins as an inadvertent not a deliberate interception; thus Lee v. Florida, clearly does not decide the issue here.

In Roberts v. State, 453 P. 2d 898 (Alaska Sup. Ct. 1969), cert. den. 396 U. S. 1022, 90 S. Ct. 594, 24 L. Ed. 2d 515 (1970), a defendant was convicted of second degree murder. He appealed on the grounds that evidence obtained in violation of § 605 of the federal act and a section of Alaska’s State Wiretap Act should have been suppressed on his pretrial motion. There a private citizen, who had no knowledge that the telephone company had connected another party to her private line, picked up her receiver and overheard conversations between persons connected with an unlawful shooting. Upon report to the police she was encouraged to continue to listen to and tape conversations. Defendant moved to suppress evidence obtained, alleging illegal interception. The Alaska court affirmed the conviction and distinguished Lee v. Florida, supra, and decided:

We are persuaded that the Congress of the United States never intended to prohibit disclosure to law enforcement authorities in the case where a private citizen, such as Mrs. Marine, on her own initiative without any suggestions of police direction, coercion, or assistance, inadvertently overheard a conversation over which was believed by her to be a private line. * :h *
On the basis of this record, we do not believe that the federal exclusionary rule would encompass the situation where a private citizen, acting independently of any police solicitation, cooperation, or assistance violated section 605 of the Federal Communications Act by perpetrating an unlawful interception and then divulging the communication to the police. . . . Weighing against the necessity for respect of federal law is the inadvertent conduct of a private citizen and the duty of all citizens to cooperate and assist law enforcement agencies and officers in the detection and prevention of criminal conduct. [453 P. 2d at 904-905]

As stated previously, the ease at bar does not involve a willful interception but rather one inadvertently made by a private citizen. To suppress this evidence would be the same as holding that it was a useless gesture for this public-spirited citizen to report possible criminal activity to the police.

A further question presents itself, i.e., whether the malfunctioning telephone was an “intercepting device” or whether that phone falls within the exception of N. J. S. A. 2A:156A-2(d)(1) and 18 U. S. C. A. 2510(5) (a) (i) of a telephone “furnished to the subscriber * * * and being used by the subscriber or user in the ordinary course of its business.” If it does fit the exception, then necessarily the police conduct on October 5 and 6, 1971 does not fall within the purview of the cited statutes.

It is obvious that under the circumstances of this case the telephone was employed by the subscriber in the ordinary course of his daily activities. The fact that the telephone was malfunctioning does not change the situation. There is no evidence that the police caused the malfunction. The police had every right to be where they were because of the invitation of the subscriber.

Eurther, it cannot reasonably be argued that where the police fortuitously are made aware of a malfunctioning telephone which enables them to gain evidence of a crime, and the owner of the telephone invites the police to listen to the conversation, that such evidence may not properly be admitted at trial. The exclusionary rule espoused in Mapp v. Ohio, supra, was intended to discourage illegal police conduct of the type not here present. State v. Zito, 54 N. J. 206 (1966); State v. Kasabucki, 52 N. J. 110 (1968).

It would be patently wrong to deny law enforcement the right to use inculpatory evidence derived purely from the chance circumstance of a malfunctioning telephone. It would likewise be grossly improper for the police to ignore the obvious in their fight against crime. As Chief Justice Weintraub noted in State v. Giardina, 27 N. J. 313, 318 (1958), “A criminal statute should not be invoked in defiance of the common sense of the situation.”

Whatever was heard by virtue of the phone subscriber picking up the receiver of the malfunctioning phone which was used in the ordinary course of the subscriber’s activities was clearly not an interception under either N. J. S. A. 2A :156A-2(d) or 18 U. S. C. A. § 2510(5) (a). Accordingly, since there was no interception, the police did not violate either N. J. S. A. 2A :156A — 3 or 18 U. S. C. A. § 2511.

The recording of the phone conversation is immaterial when “the overhearing is itself legal,” United States v. Harpel, supra, 493 F. 2d at 350. A tape recorder is a mere áécessory to better memorialize the overheard conversation. Lopez v. United States, 373 U. S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963).

The court therefore concludes that there was no willful interception of the telephone conversations making unnecessary any finding with respect to the revelation of such communications at time of trial.

Additionally, the court finds the search warrants issued proper in all respects and the evidence seized thereunder may properly be submitted to the jury at the trial of the matter.

The motion is denied and the State will submit an appropriate order.

      The girl’s telephone had been installed a month earlier and was in proper operating condition until the morning in question.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. RAYMOND BRAEUNIG, DEFENDANT.
    Superior Court of New Jersey Law Division — (Criminal)
    June 16, 1975.

      Mr. Solomon Forman, First Assistant Prosecutor, for the State (Mr. Bichará J. Williams, Atlantic County Prosecutor, attorney).

      Mr. Robert J. Moran, Deputy Public Defender, for the defendant (Mr. Stanley O. Van Ness, Public Defender, attorney).
   Horn, A. J. S. C.

The issue presented in this proceeding appears to be a novel one in this State. Defendant seeks relief by way of credit on his sentence after conviction for the time he was on probation after sentence was imposed but during a stay thereof pending appeal.

He instituted these proceedings by filing a “notice of motion to correct sentence pursuant to N. J. S. A. 2A:168-1-4.” Determining that the proceeding was more appropriately one for post-conviction relief, I considered it as if he had filed a petition for post-conviction relief pursuant to R. 3:22-l et seq.

At the hearing it was disclosed that there is substantially no dispute as to the salient facts.

In July 1971 defendant Braeunig was convicted after a jury trial of conspiracy to violate the gambling laws and also of substantive gambling offenses. In August 1971 he was sentenced in the aggregate to two to three years at State Prison, Trenton, a fine of $1,000, costs and one year’s probation following his release from custody.

Upon announcing his intention to appeal, he remained at liberty by complying with an order for increased bail. Appeal to the Appellate Division ensued.

None of the persons who participated in bringing about what appears in the following excerpt from the presentence report prepared for resentencing of defendant, which took place July 3, 1973, has any personal recollection of the events described therein. Nor is there any doubt as to the authenticity of the excerpt, which reads as follows:

On September 14, 1971, tbe Honorable Herbert Horn directed the subject, through his counsel and the probation office, that the defendant was instructed to report for his probation term and to pay his total fine of $1,000., and $650. costs during the period of that probation and during the time the appeal was being processed.
The defendant started reporting to the Probation Office as directed and on August 27, 1972, his probation was extended for one year to enable him to complete the payment on his fines and costs totalling $1650.00. On August 27, 1973 subject’s probation was terminated with improvement.

The Appellate Division remanded the matter for several purposes, including resentencing, to eliminate certain doubts which arose respecting same and to vacate the imposition of the costs. State v. Braeunig, 122 N. J. Super. 319 (App. Div. 1973).

Following the remand substantially the same sentence was imposed, i. e., incarceration at State Prison for a minimum term of two years and a maximum term of three years, a fine of $1,000 and probation for one year following his release from custody. Imposition of costs was eliminated. Another appeal resulted in affirmance by the Appellate Division in an unreported opinion released August 1, 1974, and denial of certification by the New Jersey Supreme Court. State v. Braeunig, 66 N. J. 325 (1974).

Since apparently, according to the above-quoted portion of the presentence report, defendant conformed to an order for probation for 23 months, representing substantially the interval between the initial imposition of sentence and the date of resentenee, defendant contends, first, that he is entitled to an order relieving him from the probationary term of 12 months to follow release from incarceration, which was part of the initial sentence and resentenee; second, he is entitled to credit on the custodial portion of his sentence equivalent to th 11-months’ probation to which he was subjected beyond the initial 12 months. :

I disagree and accordingly deny his application. Not having actual recollection, I can only surmise the reason for the directive to the probation department. When sentence was imposed initially, defendant’s activities disclosed at the trial were then fresh in mind. These activities were sufficient to impel a conviction by a jury that defendant was the dominating figure in a bookmaking conspiracy. He had set up' the scheme and recruited his aides, consisting of his co-defendants, who were indicted and convicted with him. His telephone conversations reproduced at the trial clearly indicated that in his mind he had little regard for the law or its enforcement. This probably led me to believe that some type of supervision over him should be exercised in order to prevent his engaging in illegal activity pending appeal.

It is definite that the supervision or probation was never intended to be a substitute, partial or otherwise, for the sentence which had been imposed only about 18 days earlier and which was awaiting execution. It is also certain that although defendant was represented by counsel, the issue was never raised until this proceeding was commenced in December 1974.

Probation is commonly believed to be regulated and authorized by our statute, N. J. S. A. 2A:168-1 et seq. With certain exceptions the statute authorizes probation “after conviction or after a plea of guilty or non vult for any crime or offense * * *.” The court mandates the conditions of probation and a written copy of same is delivered to defendant. N. J. S. A. 2A: 168 — 2; R. 3:21-7.

Post-conviction probation is said to differ from imprisonment in that it seeks to achieve the rehabilitation of persons convicted of crime by returning them to society during a period of supervision, rather than sending them into the unnatural and, all too often, socially unhealthful atmosphere of prisons and reformatories. State v. Moretti, 50 N. J. Super. 223 (App. Div. 1958).

Post-conviction probation preceded the above-mentioned statutory enactment as a matter of common law. Adamo v. McCorkle, 13 N. J. 561 (1953), and authorities cited therein. Our first statute relating to probation, and the statutory precursor of N. J. S. A. 2A:168-1 et seq., was adopted in 1900. L. 1900, c. 102 (repealed L. 1906, c. 74). But in New Jersey suspension of sentence during good behavior was a recognized practice long before 1900 as an inherent judicial prerogative. Adamo v. McCorkle, supra at 564 See also State v. Carter, 64 N. J. 382, 390 (1974).

It follows that pre-conviction probation likewise is within the inherent and implied Judicial authority. United States v. Smith, 444 F. 3d 61-63 (8 Cir. 1971), cert. den. 405 U. S. 977, 93 S. Ct. 1205, 31 L. Ed. 3d 253 (1974). The court there said, “[W]e think the course of the common law in England and the development of the common law and statutory law in the United States demonstrate that the courts have the inherent power to place restrictive conditions upon the granting of bail.” The Federal Bail Reform Act (1966), 18 U. S. C. A. 3146 et seq., authorizes federal courts to place an accused in the custody of a designated person or organization agreeing to supervise him, or to place restrictions on his travel, associations or place of abode, pending trial.

American Bar Ass’n, Standards Relating to Pretrial Release (1968), recommends the same type of restrictions and includes the placing of an accused under the supervision of a probation officer or other public official. § 5.2(b) (ii). See also R. 3:26-1 (a).

It is certainly a reasonable conclusion that, if to insure the appearance of an accused before trial, the court may place him under probationary supervision without subsequent credit on the sentence, it has such authority after conviction pending appeal without credit.

Commonly, in this and other Jurisdictions, courts suspend custodial sentences and place defendants on probation for a definite term. For violation of the terms of their probation they may be resentenced to custodial punishment. But they are not entitled to credit on any subsequent sentence for the earlier terms of probation. State v. Fisher, 115 N. J. Super. 373 (App. Div. 1971). The same is true in parole eases. State v. Allison, 81 N. J. Super. 390 (App. Div. 1963).

The fact that it is legal and is common practice, as illustrated by such cases as State v. Fisher, supra; State v. Pascal, 133 N. J. L. 528 (Sup. Ct. 1946); Id. 1 N. J. 261 (1949), to impose the same or even greater custodial sentence than that which was suspended without any credit for probationary time indicates that defendants are not entitled to credit either on account of the term of a custodial sentence or upon an additional probationary term.

As stated by the Appellate Division in Adamo v. McCorkle, supra, 26 N. J. Super. 562 (App. Div. 1953), rev. on other grounds 13 N. J. 561 (1953), probation is not a sentence in itself, but rather is a device that, among other things, designates a period during which the imposition of the execution of the sentence is suspended and the convicted person is permitted to continue at large upon stated conditions, upon the violation of which he makes himself liable to imprisonment.

B. 3 :21-8 states that a defendant shall receive credit on the term of a custodial sentence for any time he has served in custody in jail or in a state hospital between his arrest and imposition of sentence. This rule, by its failure to even refer to probation, impliedly confirms that it was never even considered as a basis for credit in any situation where it occurs before execution of sentence.

Torres v. Wagner, 121 N. J. Super. 457 (App. Div. 1972), held that a statute (N. J. S. A. 30:4-140) which specifically excluded time credits for time served in custody between arrest and imposition of sentence from being calculated with respect to credits against maximum and minimum terms of the sentence of persons committed to state correctional institutions, was free of constitutional defect.

What was said in State v. Lee, 60 N. J. 53, 58 (1972), is pertinent. In that case the court held that, pursuant to R. 3 :21-8, time served in a state hospital between arrest and imposition of sentence was to be credited upon an indeterminate sentence imposed on defendant under the Sex Offender Act, N. J. S. A. 2A:164-3 et seq. The court, in reference to R. 3:21-8, said: “Where, as here, the defendant was not placed on probation (N. J. S. A. 2A:164-6(a)) but was committed to an institution (N. J. S. A. 2A:164-6(b)), his sentence under the Act was clearly a custodial one which comes within the letter as well as the purpose of the rule.”

The adoption of R. 3:21-8 was probably influenced by State v. Benes, 16 N. J. 389 (1954), in which the court held that time spent in a state hospital by defendant for purposes of presentence examination was not to be credited against his sentence under then R. R. 3:7-10 (g). But regardless of whether this is so or not it is a clear holding that, except for a statute or rule otherwise requiring same, even custodial retention will not be credited upon a custodial sentence subsequently imposed.

As with parole, probation may likewise be considered as an act of favor on the part of the State, not a matter of right on the part of the prisoner. State ex rel. Kincaid v. State Parole Board, 53 N. J. Super. 526 (App. Div. 1959).

Pretrial probation may be said to be due to some demand of the law other than that based on a criminal conviction. It is a necessary part of the process in the criminal procedures system, as much for the benefit of a defendant as for the facility of the system. It need not be considered as part of the punishment which the law exacts. State v. Kennedy, 106 Ariz. 190, 192, 472 P. 2d 59, 61 (Sup. Ct. 1970).

Our own cases and other authorities as already referred to hereinabove indicate that although probation may be considered as painful and burdensome — as part of a condition for withholding the execution of the sentence pending appeal — a defendant is not entitled to any credit on either the subsequent term of incarceration or probation. It is more appropriately a “demand of the law other than that based upon his conviction.” State v. Kennedy, supra, 106 Ariz. at 193, 472 P. 2d at 61.

In the instant ease, realistically, there was a quid pro quo in that Braeunig remained at large and at the same time the court was satisfied with respect to the payment of the fine and costs (viewing the situation as of September 1971) and his eventual appearance when and if his appeal was futile.

Eor these reasons I deny defendant’s application.

      Since September 14, 1971 defendant appealed twice to the Appellate Division, applied for certification to the Supreme Court, appeared for resentencing in July 1973, appeared at hearings before me June 18, 1973 and June 22, 1973, and applied for reconsideration of his sentence. No question was raised by him or his counsel as to the present issue at any time until December 1974.


author: Lora, J. A. D. Handler, J. A. D.

text:
    LYNN SHEPARD, PLAINTIFF-RESPONDENT, v. WOODLAND TOWNSHIP COMMITTEE AND PLANNING BOARD, LARRY JONES AND SUNNY PINE, INC., a/k/a CREST-WOOD VILLAGE, INC., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 19, 1975
    Decided June 30, 1975.

      Before Judges Oollestee, Lora and Handler.

      Mr. Robert J. Partlow argued the cause for appellant Sunny Pine, Inc., a/k/a Crestwood Village, Inc. (Messrs. Parker, McGay and Criscuolo, attorneys).

      Mr. Mark A. De Marco argued the cause for appellant Woodland Township Committee (Messrs. Donio and De Marco, attorneys).

      Mr. Charles A. Little argued the cause for respondent (Messrs. Bleakly, Stockwell and Zink, attorneys; Mr. H. Bruce Abbott on the brief).
   The opinion of the court was delivered by

Lora, J. A. D.

Defendants appeal from that part of the judgment of . the Law Division whose opinion is reported at 138 N. J. Super. 379, holding subsection 8(a) of Art. VI, § 603, of the Woodland Township zoning ordinance unconstitutional insofar as it purports to confine the residents of a senior citizens community to persons who are 53 years of age or over, except for one child who may be 19 years of age or over.

Plaintiff contends not only that the qualification for residency, based upon age, is unconstitutional but additionally that the trial judge erred in his determination that authorization of a senior citizens community as a land use regulation is not foreign to the authority granted to municipalities in N. J. S. A. 40:55-30, 33.

Section 603, entitled “Special Uses” by the amendment in question, was employed to add an exception permitted in the residential-agricultural zone, under terms and conditions set forth therein as follows:

8. Senior Citizen Communities. In R-A Zones where one or more parcels of land having a contiguous total area of at least 500 acres are under common ownership or control, there may be established a Senior Citizen Community in accordance with the laws of the State of New Jersey and with the following additional requirements:
a. Age and Occupancy Eequirements. The permanent residents of a Senior Citizen Community shall bo confined to persons who are 52 years of age or over except that one child who is 19 years of age or over may be permitted to reside in any senior citizen dwelling unit occupied by his or her parent(s) or guardian(s). Full time occupancy of any residential unit shall be limited to 3 individuals.

We are of the view the quoted ordinance provisions do not constitute a valid exercise of the zoning power granted to municipalities by the enabling statute. As stated in Taxpayers Ass’n. of Weymouth Tp. v. Weymouth Tp., 125 N. J. Super. 376, 380 (App. Div. 1973), Certif. granted 65 N. J. 570:

Nothing in N. J. S. A. 40:55-30, which grants zoning powers to municipalities, authorizes a zoning regulation limiting the age of those, whether it be individuals or families, who may reside in a structure, be it a house or mobile home, otherwise permitted in a particular zoning district.
All that a municipality may validly be concerned with in the exercise of its zoning power is the physical use of lands and structures thereon. Bridge Park Co. v. Highland Park, 113 N. J. Super. 219, 221-222 (App. Div. 1971).

Cf. Hinman v. Planning and Zoning Comm’n, 26 Conn. Sup. 125, 214 A. 2d 131 (Comm. Pl. 1965). The provision for a senior citizens community does not involve the physical use of the land within the permissible district but rather seeks to regulate the age or makeup of the family unit permitted to reside in the structure in contravention of N. J. S. A. 40:55-30, 32, Bridge Parle Co. v. Highland Park, 113 N. J. Super. 219, 221-222 (App. Div. 1971).

Defendants argue that Woodland Township is authorized to enact subsection 8 (a) of the ordinance by virtue of its power to regulate land use to “promote health, morals or the general welfare * * N. J. S. A. 40:55-32. While we appreciate that senior citizens may have special housing needs meriting special considerations, as evidenced by N. J. S. A. 55:141-1 et seq., the “Senior Citizens Nonprofit Rental Housing Tax. Law” and N. J. S. A. 55 :14A-1 el seq., the “Local Housing Authorities Law,” and that housing needs are encompassed within the concept of general welfare, Oakwood at Madison, Inc. v. Madison Tp., 117 N. J. Super. 11 (Law Div. 1971), certif. granted 62 N. J. 185 (1973), we are constrained to conclude that absent specific enabling legislation, zoning for senior citizens communities is not within the township’s authority to regulate land use to promote the general welfare.

Evidence of such legislative interpretation of the scope of the enabling statute may be found in Assembly Bill No. 1338 introduced March 18, 1974 which passed both Houses of the Legislature but was vetoed by the Governor on April 7, 1975.

Defendants attempt to distinguish Weymouth from the instant case in that in Weymouth the physical use of the land was for mobile park homes irrespective of the age of its occupants, and the 53-year limitation was not functionally or directly related to the establishment of a senior citizen community, whereas the subject ordinance, by § 8(b), permits not only residences as a use of the land but also limited commercial facilities and service establishments intended primarily for the use and convenience of the residents of such senior citizen community, and by § 8(c) requires recreational and cultural facilities for their sole use. Then, too, they assert no exclusive zone has been established since senior citizen communities are merely a permitted use in a R — A zone. We find such distinctions to be without significance. The end result of the requirement of a contiguous total area of at least 500 acres under common ownership or control in effect constitutes a zone within a zone.

Having concluded that the amendment to the ordinance is invalid for the reasons above stated, we do not deem it necessary to pass upon the validity of the amended ordinance’s qualification for' residency, based upon age, and the limitation of full-time occupancy of any residential unit therein to three individuals.

Affirmed as modified.

Handler, J. A. D.

(dissenting). The majority adopts the view that the amendment to the municipal zoning ordinance of Woodland Township, authorizing as a special use “senior citizen communities,” was not a valid exercise of the zoning power granted municipalities under the enabling statute. I respectfully differ.

My basic premise is that elderly persons have special housing requirements and deserve special consideration with respect to housing and related needs. See, e. g., the Senior Citizens Nonprofit Rental Housing Tax Law, N. J. S. A. 55 :141-1 et seq; Senior Citizens Recreational Opportunities Act of 1968, N. J. S. A. 52:27D-29.1 et seq; generally, N. J. Dept. of Community Affairs, “The Impact of Retirement Communities” (1974). Housing for elderly people is one aspect of the generally acknowledged need for greater housing for many classes of people. See, “New Horizons in Housing,” A Special Message by William T. Cahill, Governor of New Jersey (1972); “A Blueprint for Housing in New Jersey,” A Special Message by William T. Cahill, Governor of New Jersey (1970); also N. J. S. A. 55:16-2. Housing needs are clearly encompassed within the general welfare and indeed may embrace a governmental imperative. “It is plain beyond dispute that proper provision for adequate housing of all categories of people is certainly an absolute essential in promotion of the general welfare required in all local land use regulation.” So. Burl. Cty. N.A.A.C.P. v. Mt. Laurel Tp., 67 N. J. 151, 179 (1975); De Simone v. Greater Englewood Housing Corp. No. 1, 56 N. J. 428 (1970); Oakwood at Madison Inc. v. Madison, 117 N. J. Super. 11 (Law Div. 1971), appeal pending.

There must also be invoked in these circumstances the presumption that the municipal zoning ordinance is valid. Vickers v. Gloucester Tp. Comm., 37 N. J. 232 (1962), cert. den. and app. dism. 371 U. S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963); Ward v. Montgomery Tp., 28 N. J. 529 (1959). That presumption of validity may be overcome only upon a clear and affirmative showing that the ordinance is arbitrary or capricious, bears no reasonable relationship to the public health, morals, safety or general welfare or is plainly contrarjr to fundamental principles of zoning or the statute, N. J. S. A. 40:55-31, 32. Bow & Arrow Manor v. West Orange, 63 N. J. 335 (1973); Harvard Ent. Inc. v. Madison Tp. Bd. of Adj., 56 N. J. 362 (1970); Kozesnik v. Montgomery Tp., 24 N. J. 154 (1957).

The particular amendments to the local zoning ordinance, which are the subject of this suit, recite that provision for safe, adequate and modern housing for persons over 52 years of age is in the public interest, necessary and desirable for the public welfare, and that control and regulation, of the design of such communities is necessary • to safeguard the public health, safety and welfare. The purpose of the amendment is to provide in the R-A zone, with open agricultural areas, large lot residential development and senior citizen communities. These communities require one or more parcels of land with a contiguous total area of at least 500 acres. Uses which are permitted in senior citizen communities are one-family dwellings and one-story attached dwellings such as townhouses and apartments, limited commercial facilities and service establishments “intended primarily for the use and convenience of the residents” of the community. In addition, certain recreational and cultural uses are required for the sole benefit of the community members and their guests, including at least a clubhouse and recreational building or a shuffleboard court or swimming pool or combination of these facilities. Shopping centers may also be allowed as a special permitted use.

Other provisions of the ordinance contain detailed and tailored specifications with respect to residential density, building coverage, minimum floor areas, setbacks and distances between buildings, length of blocks, roads and drainage, oil-street parking, utilities and lights, sanitation, fire protection, “green areas,” including lakes or streams which in part must he dedicated as a park with suitable landscaping and the protection of top soil, trees, water courses and unique physical geographical and historic landmarks.

This ordinance thus represents a comprehensive scheme for the regulation of the physical use of land. It is comparable in overall design to several ordinances for senior citizens communities, copies of which were made available through, the New Jersey State League of Municipalities. Such ordinances have been enacted and senior citizen community developments presently exist in several municipalities. “The Impact of Retirement Communities,” supra. It is the evident purpose of these municipal enactments, and that of the Woodland Township ordinance, to regulate and control in a comprehensive fashion the physical use of land, molded to the objective that a special type of community or neighborhood will thereby be established and evolve with qualitative characteristics uniquely related to a style of life appropriate for older persons.

The trial judge, according to my perception, was correct in his partial conclusion that “authorization of a senior citizen community as a land use regulation is not foreign to the authority granted to municipalities in the enabling act * * 128 N. J. Super, at 384. The majority of this court, however, has overruled this aspect-of the determination, drawing support from Taxpayers Ass’n. of Weymouth Tp. v. Weymouth Tp., 125 N. J. Super. 316 (App. Div. 1913), appeal pending.

Aside from whether Weymouth Tp. is correctly decided, I believe it is distinguishable. There the court held that a municipality could not limit the occupancy of mobile homes to persons over the age of 52 years. While the age limitation of 52 years has been utilized in the Woodland Township zoning ordinance as a basis for residency within the senior citizen community, that limitation is only one of a matrix of provisions for the regulation of the use of land and is related functionally to the establishment of a neighborhood suitable for older persons. In this perspective, reliance upon Bridge Park Co. v. Highland Park, 113 N. J. Super. 219 (App. Div. 1971), is similarly misplaced. There the court held that the municipal zoning power cannot lawfully be exercised to govern the ownership of land rather than its physical use. Here, to iterate, occupancy qualifications according to age is only one aspect of a comprehensive scheme for land use development. Contra, Hinman v. Planning and Zoning Common, 26 Conn. Sup. 125, 214 A. 2d 131 (Com. Pl. 1965).

The trial judge, and the majority, conceived that the Achilles heel of this ordinance inhered in its limitations of residents as to age and occupancy. Section 8(a) of the ordinance, quoted in both opinions, confines permanent residency of the senior citizen community to persons 52 years of age or over; additionally, a child or ward of such a resident, over the age of 19 years, may live with the older occupants but such occupancy within a dwelling unit is limited to three individuals. The court below aptly framed the legal issue, viz:

The question whether the line to be drawn to define “senior citizen” as a qualification for occupancy ought to be by a numerical age or whether some other means of definition or identification ought to be devised is a matter of exercise of discretion and normally, in matters of this kind, that exercise of discretion is a legislative rather than a judicial function. The court’s function, on review, is to determine whether there is a rational relationship between the legislative line drawn and the goals sought to be attained. In the absence of such relationship, the drawing of the line would be arbitrary and not sustainable. [128 N. J. Super, at 383]

The trial judge eoueluded that the age qualification was “constitutionally impermissible” and did not bear anjr realistic relationship to a recognized objective of zoning legislation. The majority of this court makes a precatory concession that “senior citizens may have special housing needs meriting special considerations.” Those needs, in my view, are a genuine and sore concern of government and constitute a legitimate and priority objective upon which the zoning powers of a municipality can be exercised. In a variant context it was said that “[t]he question of whether a citizenry has adequate and sufficient housing is certainly one of the prime considerations in assessing the general health and welfare of that body.” N. J. Mortgage Finance Agency v. McCrane, 56 N. J. 414, 420 (1970). The legislative conception of the public health and general welfare, as expressed in N. J. S. A. 40 :55-32, is expansive. So. Burl. Cty. N.A.A.C.P. v. Mt. Laurel Tp., supra; Roman Catholic Diocese of Newark v. Ho-Ho-Kus, 42 N. J. 556 (1964.); Id. 47 N. J. 211 (1966) ; Ward v. Montgomery Tp., supra; cf. Kunzler v. Hoffman, 48 N. J. 277 (1966).

The present zoning statutes, without additional specific enabling legislation, are sufficiently broad in their sweep to sanction affirmative local action in promoting the public good. So. Burl. Cty. N.A.A.C.P. v. Mt. Laurel Tp., supra, 67 N. J. at 193 (Pashman, J. concurring). This may include the implementation of this broad statutory authority by appropriate regulation of land use for senior citizen communities. The failure of passage of a recent proposed zoning amendment. Assembly Bill 1338, through the Governor’s veto, which amendment would have authorized specifically the regulation of land use for senior citizen communities, is not persuasive, under the circumstances, on the issue of the intent of the Legislature as to the parameters of the general welfare as reflected on the basic zoning laws. Cf. Donaldson v. No. Wildwood Bd. of Ed., 65 N. J. 236 (1974).

It has not been shown, on this record, that the age and occupancy requirements of the township ordinance are not reasonably and functionally focused upon the salutary goal of meeting the demands of older people for housing and related needs. While there may be other techniques or approaches for defining the composition of a community to consist of older persons, certainly age as a criterion is logical and conducive toward attaining the end sought. It bears a reasonable relationship to a permissible objective of zoning. Cf. Vickers v. Gloucester Tp. Comm., supra; Schmidt v. Newark Bd. of Adjust., 9 N. J. 405 (1952); Napierkowski v. Gloucester Tp., 29 N. J. 481 (1959).

It is contended by plaintiff that section 8(a) of the ordinance unconstitutionally and unlawfully restricts the numbers- and kinds of persons who may reside together within a dwelling unit in a senior citizen community. On constitutional grounds support for these restrictions may be found. Village of Belle Terre v. Boraas, 416 U. S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974). The limitation as to the relationship of individuals who may reside together in residential communities, however, has been considered invalid on statutory grounds in different contexts. E. g., Kirsch Holding Co. v. Manasquan, 59 N. J. 241 (1971) ; Gabe Collins Realty, Inc. v. Margate City, 112 N. J. Super. 341 (App. Div. 1970). Such regulations, when imposed to eliminate, discourage or suppress antisocial conduct or activities thought to be offensive to the general atmosphere of a residential neighborhood, quite properly have been considered overreaching and invalid. The evils to be combated by such regulations can more appropriately and directly be controlled by other measures under the police powers of a municipality or by other regulatory techniques under the zoning laws. Kirsch Holding Co. v. Manasquan, supra; generally, also see, Napierkowski v. Gloucester Tp., supra, 29 N. J. at 491; also, Donadío v. Cunningham, 58 N. J. 309, 326, n. 8 (1971).

Here, in contrast, provisions as to occupancy appear integrally related to the overall design of promoting the physical use of land for the development of a unique community of and for older persons. It has not been demonstrated by the opponents of this ordinance that the objective could be more effectively accomplished through the exercise of the municipal police powers or other zoning regulations. Thus, the presumption of the validity of these particular regulations as to age and occupancy has not been overcome. I would conclude, therefore, that these limitations are lawful. It might also be noted, in passing, that if it be proved in another ease that the regulations as to age and occupancy are arbitrary, unreasonable and invalid, or that, as applied in a particular situation, they are unlawful or unconstitutional, there is a severability clause in the ordinance which might, if appropriate, be invoked. Consideration of that issue in this litigation, however, would be premature.

The trial judge also determined that the age and occupancy restrictions were unconstitutionally discriminatory. The ordinance permitting senior citizen communities may have the potentiality for this mischief ■— the invidious exclusion from the municipality of persons entitled to reasonable housing. Compare Molino v. Glassboro Mayor and Council, 116 N. J. Super. 195 (Law Div. 1971); also Rudderow v. Mt. Laurel Tp. Comm,., 114 N. J. Super. 104 (Law Div. 1971), rev’d 121 N. J. Super. 409 (App. Div. 1972). The ordinance, however, does not designate a use district exclusively for senior citizen housing and it is not suggested that in its failure to provide an exclusive district for this use, the ordinance transcends the authority of the zoning statutes. Cf. So. Burl. Cty. N.A.A.C.P. v. Mt. Laurel Tp., supra, 67 N. J. at 166, n. 6, and 182; Rudderow v. Mt. Laurel Tp. Comm., supra, 121 N. J. Super. 409. Rather, the ordinance allows such a use in an R-4 district as one of several “special uses.” There has been no showing, prima facie or otherwise, that the allowance of such a use within the township trenches unduly upon other land areas available for general housing or would bar entry into the municipality of all classes of persons in need of reasonable housing. So. Burl. Cty. N.A.A.C.P. v. Mt. Laurel Tp., supra.

I would, therefore, reverse the decision of the court below and uphold the validity of the. ordinance.


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

text:
    HAZEL MAE FOX, PLAINTIFF-APPELLANT, v. PASSAIC GENERAL HOSPITAL, GUADALUPE OLIVAR, AND EMILIA C. LAYUGAN, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 2, 1975
    Decided June 26, 1975.

      Before Judges Michels, Moegae and Milmed.

      Mr. Daniel Crystal argued the cause for appellant (Messrs. Cohn & Liflcmd, attorneys).

      Mr. Edward E. Euebler argued the cause for respondents.
   Per Curiam.

Plaintiff appeals from a summary judgment entered in favor of defendants in the Law Division on the ground that plaintiff’s claim was barred by the statute of limitations.

Plaintiff was admitted on October 25, 1970 to defendant Passaic General Hospital by Dr. Peter J. DeBell. A cholecystectomy was performed by Doctor DeBell on October 26, 1970. The next morning Doctor DeBell changed the dressing covering the incision, at which time plaintiff observed a drain in the incision. Frequent changes of the dressing were necessary in order to absorb the fluid draining from the incision. After a few days Doctor DeBell shortened the length of the drain. Thereafter, on or about October 30, 1970 the nurses who were changing the dressing were unable to locate the drain. The following morning plaintiff informed Doctor DeBell that the drain was missing, and he assured her that “[i]t didn’t matter. It was going to come out in a day or two anyway.”

Plaintiff was discharged from Passaic General Hospital on November 3, 1970 but continued to feel miserable, complaining that she felt something jabbing inside of her stomach. She developed a fever which she thought was due to the flu. When her fever became very high and her pain more severe she returned to Doctor DeBell, who diagnosed her condition as a post-operative infection and arranged for her to be readmitted to Passaic General Hospital the following day. Plaintiff re-entered the hospital on November 17, 1970, at which time Doctor DeBell by operative intervention drained the intra-abdominal abscess and reinserted another drain in the incision. Plaintiff was discharged from the hospital on November 30, 1970 with instructions to return to Doctor DeBell for follow-up care. Plaintiff did so. When Doctor DeBell removed the drain sometime in December 1970 plaintiff told Doctor DeBell that she still had pain in the lower portion of her abdomen and suggested to him that perhaps the original drain might still be inside her body. Doctor DeBell reassured her that it was not, specifically telling her that he had looked for the drain during the second operation and that "it wasn’t there.”

The incision, however, continued to drain, causing plaintiff severe pain. Finally, on February 22, 1971 she went to the Emergency Ward of the Chilton Memorial Hospital where x-rays revealed the presence of a foreign body in her right mid-abdomen. Arrangements were immediately made for plaintiff to enter St. Joseph’s Hospital that same day. On March 2,1971 another abdominal operation was performed by another surgeon, and the original drain was removed from plaintiff’s abdomen. Plaintiff was discharged on March 7, 1971.

On March 31, 1971 plaintiff filed suit against Doctor De-Bell, charging him with medical malpractice arising out of his failure to locate the drain and remove it during the course of his post-operative care and treatment. Following the settlement of the claim against Doctor DeBell, plaintiff instituted this action against Passaic General Hospital and one of its nurses, Guadalupe Olivar, on December 1, 1972, charging them generally with negligence in her post-operative treatment and care. Thereafter the complaint was amended to join as a defendant Emilia Layugan, another nurse employed by the hospital, who rendered care to plaintiff following her first operation.

Prior to the selection of a jury defendants moved for summary judgment on the ground that plaintiff had failed to institute suit within the time prescribed by the statute of limitations. The trial judge granted defendants’ motions, holding that the discovery rule did not apply in view of the particular fact situation presented, and therefore the statute commenced to run from the date of injury rather than from the date plaintiff knew that the drain was in her abdomen. We disagree.

The discovery rule, which was first announced by our Supreme Court in Fernandi v. Strully, 35 N. J. 434 (1961), provides that in an appropriate case a cause of action will not be held to accrue until the injured party discovers or by an exercise of reasonable diligence and intelligence should have discovered that a basis for an actionable claim exists. Although the Fernandi decision confined itself to foreign body malpractice actions, subsequent decisions have gone much further, applying the discovery doctrine to medical malpractice actions involving claims other than foreign objects in the body. See Lopez v. Swyer, 62 N. J. 267, 273 (1973); Yerzy v. Levine, 108 N. J. Super. 222 (App. Div. 3970), aff’d as mod. 57 N. J. 234 (1970).

While we recognize that it is not every belated discovery that will justify lifting the bar of the statute of limitations, we are satisfied from a fair consideration of all of the relevant facts and circumstances that plaintiff was equitably entitled to the benefit of the rule. Although plaintiff observed that the drain was missing when the nurse changed the dressing on October 30, 1970, and while she suspected that it might be inside her thereafter, she did not know nor did she have reason to know of the existence of this object in her abdomen until the x-ray was taken on February 22, 1971 and it was removed by subsequent surgical intervention on March 2, 1971. Whatever suspicion she may have had as to the existence of this fact was allayed by Doctor DeBell, particularly when he told her sometime in December 1970 that the drain was not there. The conclusion is inescapable that plaintiff did not know or have reason to know of the existence of the drain in her abdomen until it was discovered by x-ray and surgically removed. The trial court’s finding of fact to the contrary was not supported by sufficient credible evidence. State v. Johnson, 42 N. J. 146, 162 (1964).

The lapse between the time the drain was first missed on October 30, 1970 and the institution of this action on December 1, 1972 (approximately 25 months) did not create the danger of a false, frivolous, speculative or uncertain claim. The claim does not raise questions as to plaintiff’s credibility nor does it rest on matters of professional diagnosis, judgment or discretion. Plaintiff’s claim rests on the presence of a foreign object within her abdomen following the post-operative care by Doctor DeBell and defendant hospital and its emplojree nurses. See Fernandi v. Strully, supra, 35 N. J. at 450-451; Yerzy v. Levine, supra. See also, New Market Volunteer Farms, Inc. v. Fellows, 51 N. J. 419, 425 (1968). Moreover, the witnesses and written evidence, including all hospital records, are available. There is no suggestion that the delay has prejudiced defendants in any way.

Finally, we do not agree with defendants’ contention that the discovery rule should not apply because plaintiff had approximately 20 months remaining of the statutory two-year period in which to commence suit after she knew of the existence of the cause of action. Fernandi v. Strully, supra, and the cases which followed make it clear that the period of limitations does not begin to run until plaintiff knows or has reason to know of the existence of the foreign object and the cause of action based upon its presence. Notwithstanding the suggestion to the contrary in the concurring opinion in Rothman v. Silber, 90 N. J. Super. 22, 36-38 (App. Div. 1966), certif. den. 46 N. J. 538 (1966), we conclude that plaintiff had two years within which to institute suit after she knew or had reason to know that she had a basis for a claim against any of the defendants. In Yerzy v. Levine, supra, decided after Rothman v. Silber, our Supreme Court in a brief per curiam opinion affirmed the Appellate Division decision for the reasons stated therein, “with the modification that under the facts of this ease (1) the question with respect to the statute of limitations is whether plaintiff brought this action within two years after plaintiff knew or had reason to know that plaintiff might have a basis for a claim against the defendant, * * *.” Id., 57 N. J. at 235. Here, plaintiff instituted this action against the hospital and its nurses within that period of time.

Accordingly, the summary judgment in favor of defendants is reversed and the matter remanded for a trial on the merits.

Morgan, J. A. D.

(dissenting). Implicit in the majority opinion is the view that the discovery rule automatically applies in all “foreign substance” malpractice cases so as to extend the limitation period for two years following actual or constructive discovery. I disagree and conclude that the circumstances of the present ease do not equitably entitle plaintiff to the “indulgence” of the rule. Lopez v. Swyer, 62 N. J. 267, 276 (1973).

In all of the eases in which the rule has been successfully invoked, the cause of action had been barred by the normal period of limitations before the plaintiff became aware either of the injury or damage or the possibility that a claim therefor may exist. See, e. g., Lopez v. Swyer, supra; Yerzy v. Levine, 108 N. J. Super. 222 (App. Div. 1970), aff’d as mod. 57 N. J. 234 (1970); Fernandi v. Strully, 35 N. J. 434 (1961). In the present case, however, plaintiff obtained actual knowledge of her injury, the cause thereof, the real possibility of a claim and the identity of a tortfeasor within four months of the date of the tort as recited in her complaint, leaving her approximately 19 months of the statutory period of limitations in which to start suit against them. In fact, she did start suit against the doctor within weeks after she learned what had happened. At no time during the pendency of that suit did she seek to- add the present defendants as parties to that action although she knew or easily could have discovered their identity or attempt to start an independent action against those parties. Lather she pursued her claim against the doctor which resulted in a settlement in which she was paid $25,000. It was only after that settlement that-the complaint initiating the present matter was filed, after the bar of statute, against those who she now contends were also tortfeasors. The delay was not the result of lack of knowledge concerning her injury, damages, the possible cause of action or the identity of the tortfeasors, the essential basis for invoking the relief provided by the discovery rule.

Moreover, this case does not present a classic instance of a foreign substance case. Plaintiff was not anesthetized at the time the drain was found missing. She was fully awake and aware of the possibility of what had happened because the doctor she sued was told at that time. Despite his reassurances that the drain had not fallen into the wound, she nonetheless, and with justification, continued to suspect its presence. Its discovery, some four months later, came as no surprise to her, but rather confirmed all of her suspicions which Dr. DeBell had tried to assuage. Her discovery triggered the expeditious commencement of a lawsuit against Doctor DeBell.

It was in these circumstances, evidenced by her own un-contradicted and accepted testimony, that the trial judge concluded, in substance, that plaintiff had failed to meet her burden of proving her right to the indulgence of the discovery rule. Lopez v. Swyer, supra 62 N. J. at 276. The conclusion reached finds ample support in the record, is neither arbitrary, capricious or contrary to law, and should not be disturbed by this court on appeal. State v. Johnson, 42 N. J. 146, 162 (1964). To do otherwise is to extend the benefits of the rule beyond the necessity for its creation and would result in substituting one court-created period of limitations for the normal statutory one in eases to which the discovery rule is held applicable. Hone of the cases dealing with various aspects of the rule gives any indication that such was the intendment of this recently developed extraordinary relief.

The discovery rule is one of equity and was developed as a means of avoiding the harsh results flowing from rigid adherence to the statutory period in cases in which the injured person is barred from recovery before he knew or could have known of his injuries or his possible claim therefor. All of the cases in which it has been successfully invoked involve that kind of situation — where plaintiff would be barred before suit was possible. This rule was developed to avoid that grotesque result. See, e. g., the footnote in Lopez v. Swyer, supra at 276, in which English procedure is described and assimilated to our own wherein plaintiff must show that 'material facts of a decisive character’ were not known to the plaintiff until after the running of the statute.”

Rothman v. Silber, 90 N. J. Super. 22, 36 (App. Div. 1966), certif. den. 46 N. J. 538 (1966), provides one example of a case in which plaintiff’s claim to the benefit of the discovery rule was rejected, albeit on grounds not particularly germane to the present problem. In the singularly perceptive concurring opinion, however, Judge GauUrin. identifies a problem remarkably similar to the one confronting this court and gave as his opinion that were the discovery rule to be applied, plaintiff would nonetheless be barred because the period of 16 months of the customary period of limitations following discovery of the injury and the possible claim was a fully sufficient time in which to bring suit.

Judge Gaulkin’s conclusion in Rothman is equally applicable to the present case:

True, in Fernandi, the court was dealing with an action instituted more than two years after the operation. However, if the patient must proceed with reasonable diligence after knowledge after the statutory period has run, why not before? Here Mrs. Rothman had left 16 months of the statutory two years. It seems to me that under these circumstances justice does not require that an exception be made for her. On the contrary justice would seem to require that here the policy of the statute be upheld. [90 N. J. Super, at 37-38].

See also, Kyle v. Green Acres at Verona, Inc., 44 N. J. 100, 112 (1965).

The purpose of statutes of limitations is to “stimulate litigants to pursue their causes of action diligently and to ‘spare the courts from litigation of stale claims.’ ” Farrell v. Votator Div. of Chemetron Corp., 62 N. J. 111, 115 (1973) :

When a plaintiff knows or has reason to know that he has a cause of action against an identifiable defendant and voluntarily sleeps on his rights so long as to permit the customary period of limitations to expire, the pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his action. Where, however, the plaintiff does not know or have reason to know that he has a cause of action against an identifiable defendant until after the normal period of limitations has expired, the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play. [I'd.]

The discovery rule, to date, has been applied only to the latter situation described in Farrell — where the claim is barred before plaintiff has knowledge of it, and the language referred to in the majority opinion, concerning the delayed accrual of a cause of action, must be read in that context. I am not suggesting that if the injured party learns of the injury and the possible claim at the eleventh hour before the statutory period expires, that he is not equitably entitled to a reasonable time in which to expeditiously institute suit. He should not, however, be automatically given the same period of time afforded by the statutory period of limitation, and no case so holds. Rothman, in the concurring opinion, is to the contrary. See also, Fernandi v. Strully, supra 35 N. J. at 451.

For example, in a property damage case, such as was involved in Rosenau v. New Brunswick and Gamon Meter Co., 51 N. J. 130 (1968), where the statutory period is six, rather than two jrears, it is inconceivable that if plaintiff learns of the cause of action within months after the bar, he is entitled to wait an additional six years in the absence of an affirmative showing of prejudice to defendant. Equity enjoins those who seek its favors not to sleep on their rights. By automatically affording a plaintiff favored with the discovery rule the statutory period in which to sue, the courts would be encouraging dilatoriness in derogation of both the purpose of the normal period of limitations and the policy that equity only aids the vigilant.

Two closely allied problems are here intertwined and are almost inseparable. The first is whether the present case is an appropriate one for the equitable application of the discovery rule. If it isn’t, as I believe, then the statutory period applies and the claim is barred. If the rule is held applicable, then it must be determined whether the time afforded for suit after discovery equals the statutory period of limitations or whether suit must be brought expeditiously, within a reasonable time after discovery.

I have concluded that, whichever approach is taken, the claim is barred. Application of the discovery rule is not appropriate to this case, and if it were, the cause of action would nonetheless be barred because not expeditiously pursued. Rothman v. Siller, supra (concurring opinion).