New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htmKenneth Mr. Vercammen was included in the 2017 “Super Lawyers” list published by Thomson Reuters.

Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee,GP on Personal Injury and was a speaker at the ABA Annual Meeting attended by 10,000 attorneys and professionals. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

visit Website www.njlaws.com

Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

(732) 572-0500

Sunday, January 31, 2016

ANNETTE TROUPE VS. BURLINGTON COAT FACTORY WAREHOUSE CORPORATION A-1687-14T4

ANNETTE TROUPE VS. BURLINGTON COAT FACTORY WAREHOUSE CORPORATION 
A-1687-14T4 
Plaintiff, a customer of a retail clothing store, slipped and fell on a berry on the floor. Applying principles recently clarified in Prioleau v. Kentucky Fried Chicken, 223 N.J. 245 (2015), we affirm the trial court's grant of summary judgment dismissing plaintiff's personal injury action. We hold that the mode-of-operation rule does not apply because there was no clear nexus between the berry and the clothing store's self-service 

component. Nor did plaintiff show any breach of duty by the store to its customer. 

IN THE MATTER OF PAUL WILLIAMS, TOWNSHIP OF LAKEWOOD A-0341-15T2

IN THE MATTER OF PAUL WILLIAMS, TOWNSHIP OF LAKEWOOD 
A-0341-15T2 
In this case of first impression in New Jersey, we considered the issue of whether an employer's order that an employee undergo a psychological examination to determine his continued fitness for duty was reasonably justified under the Americans with Disabilities Act (ADA), 42 U.S.C.A. §§ 12101-12213. The employer ordered the examination after receiving a letter from an anonymous source complaining of the employee's disruptive behavior. The employer failed to take any action to investigate the allegation and waited over eight months to require the evaluation. When the employee refused to undergo the examination, citing the protections provided under the ADA, the employer terminated him from employment. The Civil Service Commission upheld the termination. 

After reviewing the applicable provisions of the ADA, together with the EEOC's regulations and interpretative Enforcement Guidance, we concluded that the termination was improper and provided guidance to employers on how these provisions should be applied in future cases. 

Christina Silviera-Francisco v. Board of Education of Elizabeth (A-28-14;


 Christina Silviera-Francisco v. Board of Education of 
Elizabeth (A-28-14; 074974) 

The Commissioner’s September 2012 decision, which rejected the ALJ’s Initial Decision and remanded to the OAL for calculation of tenure and seniority rights, was an interlocutory order. Until the calculation was complete and adopted by the Commissioner, all of the issues presented by the petitioner remained unresolved. The order became a final decision from which an appeal could be filed as of right only when the Commissioner adopted the decision of the ALJ following the remand proceedings. 

Sunday, January 24, 2016

JOSEPH A. BERKOWITZ VS. SUSAN J. SOPER A-5273-13T3

JOSEPH A. BERKOWITZ VS. SUSAN J. SOPER 
A-5273-13T3 
Defendant rear-ended plaintiff’s car while stopped at a traffic light. Plaintiff's damages were based on his account of the severity of his back pain and diagnostic tests that showed disc compression and bulges in the lumbar region of his spine. The jury awarded plaintiff $2,000,000 for pain and suffering. The trial court denied defendant's motions for a new trial and for remittitur. 

We reverse. The trial judge committed reversible error when he denied defense counsel’s request to adjourn the trial without applying the standards codified in Rule 4:36-3(b). Reversal is also warranted because plaintiff’s counsel made material misrepresentations in his opening statements, in violation of an attorney’s duty of candor established by our Supreme Court in Passaic Valley Sewerage Comm'rs v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960). Finally, the judge also erred in denying defendant’s motion for a new trial under Rule 4:49-1(a). The jury’s award of compensatory damages shocked our collective judicial conscience, was not supported by the evidence, and constitutes a clear miscarriage of justice. 

JOHN WELSH VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM A-0191-14T4

JOHN WELSH VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S 
RETIREMENT SYSTEM 
A-0191-14T4 
We affirm the determination of the Board of Trustees of the New Jersey Police and Firemen's Retirement System denying petitioner's request to reactivate and merge his former PFRS pension account with his current PFRS account. 

We distinguish our decisions in Sellers v. Board of Trustees of the Police & Firemen's Retirement System, 399 N.J. Super. 51 (App. Div. 2008), and Francois v. Board of Trustees, Public Employees' Retirement System, 415 N.J. Super. 335 (App. Div. 2010), where an equitable remedy was appropriate. Unlike those cases, the petitioner was unable to demonstrate detrimental reliance on the actions of either his employer or the Board. 

IN ENFORCEMENT SUPERVISORS ASSOCIATIONTHE MATTER OF STATE OF NEW JERSEY AND NEW JERSEY LAW A-3111-13T2

IN ENFORCEMENT SUPERVISORS ASSOCIATIONTHE MATTER OF STATE OF NEW JERSEY AND NEW JERSEY LAW 
A-3111-13T2 

In this appeal, appellant challenged an interest arbitration salary award rendered pursuant to N.J.S.A. 34:13A-16.7(b), the "2% salary cap." We held that PERC did not err in affirming the arbitrator's acceptance of the State's scattergram and methodology to calculate the costs of the salary award to establish that it would not violate the 2% salary cap, and PERC's decision fully comported with Borough of New Milford and PBA Local 83, P.E.R.C. No. 2012-53, 38 N.J.P.E.R. ¶340, 2012 N.J. PERC LEXIS 18 at 13 (2012) and its progeny. 

DIAL, INC., A NEW JERSEY NONPROFIT CORPORATION VS. CITY OF PASSAIC AND STATE OF NEW JERSEY A-2106-13T2

 DIAL, INC., A NEW JERSEY NONPROFIT CORPORATION VS. CITY OF PASSAIC AND STATE OF NEW JERSEY 
A-2106-13T2 
Invoking various federal and state anti-discrimination laws, plaintiff, a disability rights organization, challenges the validity of a portion of a state statute, N.J.S.A. 39:4 197.7. The provision authorizes municipalities to charge a permit fee to disabled persons who request a personally assigned, exclusive parking space on the street in front of their residences. 
On the same legal grounds, plaintiff challenges an ordinance adopted pursuant to N.J.S.A. 39:4-197.7 by the City of Passaic. The ordinance imposes an annual fee of $50 for a disabled person to obtain, upon request, a personally-assigned handicapped parking spot in front of his or her residence. The City conceded, however, that a separate provision within the ordinance that had imposed a fee for obtaining "generic" (i.e., not personally-assigned) handicapped parking spaces on residential streets was invalid. 
Plaintiff contends that fees imposed for personally assigned parking spaces represent an illegal surcharge that discriminates against the disabled. The trial court rejected this argument, finding that no federal or state anti-discrimination laws or regulations require public entities to provide such personally-assigned handicapped parking spaces on public streets. 
We affirm the trial court's rejection of plaintiff's facial challenge to the fee provisions within the statute and ordinance. The City is not precluded from charging a reasonable fee for a parking benefit that is not required under the anti-discrimination laws and which is not otherwise made available to non-disabled persons. 

YVIETTA MATISON VS. MARK LISNYANSKY A-5656-13T2

YVIETTA MATISON VS. MARK LISNYANSKY 
A-5656-13T2 

The father's appeal of a default judgment awarding the mother palimony and custody of the couple's two children is dismissed based on the legal doctrine of fugitive disentitlement. A bench warrant for non-payment of child support remains outstanding against the father. He is not entitled to the protection of the court while he flaunts the court's authority from overseas. 

LUIS PEREZ VS. ZAGAMI, LLC, ETC., AND NASH LAW FIRM, LLC, ET AL. A-3268-14T2

LUIS PEREZ VS. ZAGAMI, LLC, ETC., AND NASH LAW FIRM, LLC, ET AL. 
A-3268-14T2 
This case of first impression presents the question of whether an affidavit of merit is required to support a malicious use of process claim when an advice of counsel affirmative defense is asserted in a SLAPP-back suit. The court concludes it is not. 
After a defamation case (SLAPP suit) brought by defendants was dismissed, plaintiff filed a complaint for malicious use of process (SLAPP-back suit). Defendants asserted an advice of counsel affirmative defense in their responsive pleading. Plaintiff moved to amend his complaint to add the law firm and individual attorneys as defendants. The law firm then moved to dismiss the action contending that plaintiff was required to file an affidavit of merit to support his claims. 

The court upholds the trial judge's denial of the motion to dismiss. The court finds that a malicious use of process action is an intentional tort requiring proof of malice and not a deviation from a standard of care and therefore no affidavit of merit is needed to support the claim. 

VICTOR ROSARIO, ET AL. VS. MARCO CONSTRUCTION AND MANAGEMENT INC. A/K/A MARCO CONSTRUCTION, ET AL. A-1562-14T3

VICTOR ROSARIO, ET AL. VS. MARCO CONSTRUCTION AND MANAGEMENT INC. A/K/A MARCO CONSTRUCTION, ET AL. 
A-1562-14T3 

Plaintiffs urged us to conclude that in tort cases, the commencement of the statute of limitations (SOL) under the Uniform Fraudulent Transfer Act, N.J.S.A. 25:2-20 to -34, runs from a different date than in commercial contract transaction cases. Plaintiffs admitted that in commercial contract transaction cases, the SOL runs from the date of the transfer. They maintained, however, that in tort cases, the SOL is triggered once they obtain a judgment. We declined to make that distinction, concluded that the SOL under N.J.S.A. 25:2-31(a) expired, and affirmed an order denying their motion to file a fourth amended complaint. 

GRANT W. MORGAN VS. RAYMOURS FURNITURE COMPANY, INC., ET AL. A-2830-14T2

GRANT W. MORGAN VS. RAYMOURS FURNITURE COMPANY, INC., ET AL. 
A-2830-14T2 

Defendants appealed the denial of their motion to compel arbitration of claims contained in plaintiff's complaint, which included age discrimination and wrongful termination claims, arguing that within its employee handbook could be found plaintiff's agreement to both arbitrate and waive his right to sue. Although those provisions were located within, the employer had prefaced the handbook with a disclaimer against any assumption that its provisions were "contractual in nature." The court affirmed the denial of arbitration, concluding the employer could not equitably have it both ways and that the presence of the employer's disclaimer precluded a determination that the employee had contracted away his right to sue. 

IMO the Revocation of the Access of Block #613, Lots #4 & 5, Township of Toms River

IMO the Revocation of the Access of Block #613, Lots 
#4 & 5, Township of Toms River (A-102-13; 074011) 
The record fully supports that the Department of Transportation satisfied its burden of proof to establish that the revocation of direct access from Route 166 to commercial property belonging to Arielle Realty, L.L.C. conforms with the State Highway Access Management Act and the State Highway Access Management Code. 

1-13-16 State v. 

Anthony C. Major v. Julie Maguire (A-110-13

 Anthony C. Major v. Julie Maguire (A-110-13; 074345)

Plaintiffs, who commenced an action under the statute, alleged in detail their involvement in their granddaughter’s life from birth and contended that their alienation from the child will cause her harm. Based on these allegations, plaintiffs established a prima facie showing of harm to the child at the pleading stage, as required by Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177 (2004). The trial court should have denied defendant’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden of proving harm. Procedural guidelines are now established for proceedings under the statute.

Wednesday, January 20, 2016

Advance Directive for Health Care

All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care.
States recognize in their law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject or to choose among alternative courses of medical and surgical treatment.
WHY LIVING WILLS
Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure.
For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial prolongation of life may seen to provide nothing medically necessary or beneficial, serving only to extend suffering and prolong the dying process.
States recognize the inherent dignity and value of human life and within this context recognizes the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, with- held, or withdrawn.
States recognize the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as living wills and durable powers of attorney, and to have their wishes respected, subject to certain limitations.
PURPOSE OF LIVING WILLS
In order to assure respect for patients previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients interests both in self-determination and in well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and public policy of this State, the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.
REQUIREMENTS OF STATUTE
The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of thestate law. It must be either signed and dated in front of an attorney at law or other person authorized to administer oaths, or in the presence of two subscribing adult witness.
If the two adult witness are used, they both must attest that the declarant is of sound mind and not under undue influence. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute
HEALTH CARE REPRESENTATIVE
The declarant may designate one or more alternative health care representatives. Health care representative means the person designated by you under the Living Will for the purpose of making health care decisions on the your behalf.
WHEN DOES THE ADVANCE DIRECTIVE BECOME OPERATIVE
An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision.
Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physicians opinion concerning the nature, cause, extent, and probable duration of the patients incapacity, and shall be made a part of the patients medical records. For additional information or to have a Living Will prepared, see your attorney. In addition, be certain your Last Will and testament is up to date.

ACME Fall Downs

     Kenneth Vercammen & Associates Law Office helps people injured due to the negligence of others. We provide representation throughout New Jersey. The insurance companies will not help. Don't give up! Our Law Office can provide experienced attorney representation if you are injured in an accident and suffer a Serious Injury.
Sometimes, store customers are injured in fall downs caused by wet and slippery floors or failure by stores to clean up broken or fallen items. No one plans on being injured in an accident, whether it is a car accident, fall down or other situation. Speak with a personal injury attorney immediately to retain all your rights. The stores are responsible for the maintenance of their premises which are used by the public. It is the duty of the store to inspect and keep said premises in a safe condition and free from any and all pitfalls, obstacles or traps that would likely cause injury to persons lawfully thereon.
It is further the duty of the store to properly and adequately inspect, maintain and keep the library premises free from danger to life, limb and property of persons lawfully and rightfully using same and to warn of any such dangers or hazards thereon. You may be lawfully upon the premises as a business invitee in the exercise of due care on your part, and solely by reason of the omission, failure and default of the store, be caused to fall down If the store did not perform their duty to plaintiff to maintain the premises in a safe, suitable and proper condition, you may be entitled to make a claim. If severely injured, you can file a claim for damages, together with interest and costs of suit. Injured people can demand trial by jury.
The following information is taken from the old model jury charges dealing with fall downs by store customers:
INVITEE - DEFINED AND GENERAL DUTY OWED
An invitee is one who is permitted to enter or remain on land (or premises) for a purpose of the owner (or occupier). He/She enters by invitation, expressed or implied. The owner (or occupier) of the land (or premises) who by invitation, expressed or implied, induced persons to come upon his/her premises, is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes embraced in the invitation. Thus, he/she must exercise reasonable care for the invitees safety. He/She must take such steps as are reasonable and prudent to correct or give warning of hazardous conditions or defects actually known to him/her (or his/her employees), and of hazardous conditions or defects which he/she (or his/her employees) by the exercise of reasonable care, could discover.
BUSINESS INVITEE FALL DOWNS:
The basic duty of a proprietor of premises to which the public is invited for business purposes of the proprietor is to exercise reasonable care to see that one who enters his/her premises upon that invitation has a reasonably safe place to do that which is within the scope of the invitation.
Notes:
(1) Business Invitee: The duty owed to a business invitee is no different than the duty owed to other invitees.
(2) Construction Defects, Intrinsic and Foreign Substances: The rules dealt with in this section and subsequent sections apply mainly to those cases where injury is caused by transitory conditions, such as falls due to foreign substances or defects resulting from wear and tear or other deterioration of premises which were originally constructed properly.
Where a hazardous condition is due to defective construction or construction not in accord with applicable standards it is not necessary to prove that the owner or occupier had actual knowledge of the defect or would have become aware of the defect had he/she personally made an inspection. In such cases the owner is liable for failing to provide a safe place for the use of the invitee.
Thus, in Brody v. Albert Lipson & Sons, 17 N.J. 383 (1955), the court distinguished between a risk due to the intrinsic quality of the material used (calling it an intrinsic substance case) and a risk due to a foreign substance or extra-normal condition of the premises. There the case was submitted to the jury on the theory that the terrazzo floor was peculiarly liable to become slipper when wet by water and that defendant should have taken precautions against said risk. The court appears to reject defendants contention that there be notice, direct or mputed by proof of adequate opportunity to discover the defective condition. 17 N.J. at 389.
It may be possible to reconcile this position with the requirement of constructive notice of an unsafe condition by saying that an owner of premises is chargeable with knowledge of such hazards in construction as a reasonable inspection by an appropriate expert would reveal. See: Restatement to Torts 2d, §343, Comment f, pp. 217-218 (1965), saying that a proprietor is required to have superior knowledge of the dangers incident to facilities furnished to invitees.
Alternatively, one can view these cases as within the category of defective or hazardous conditions created by defendant or by an independent contractor for which defendant would be liable (see introductory note above).
Cases:
Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1954) (slip and fall on sticky, slimy substance in self-service cafeteria which inferably fell to the floor as an incident of defendants mode of operation).
Buchner v. Erie Railroad Co., 17 N.J. 283, 285-286 (1955) (trip over curbstone improperly illuminated).
Brody v. Albert Lifson & Sons, 17 N.J. 383, 389 (1955) (slip and fall on wet composition floor in store).
Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954) (slip on smooth stairway in railroad station).
Williams v. Morristown Memorial Hospital, 59 N.J. Super. 384, 389 (App. Div. 1960) (fall over low wire fence separating grass plot from sidewalk).
Nary v. Dover Parking Authority, 58 N.J. super. 222, 226-227 (App. Div.
1959) (fall over bumper block in parking lot).
Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day).
Nelson v. Great Atlantic & Pacific Tea Co., 48 N.J. Super. 300 (App. Div. 1958) (inadequate lighting of parking lot of supermarket, fall over unknown object).
Barnard v. Trenton-New Brunswick Theatre Co., 32 N.J. Super. 551, 557 (App. Div. 1954) (fall over ladder placed in theatre lobby by workmen of independent contractor).
Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
DUTY TO INSPECT OWED TO INVITEE The duty of an owner (or occupier) of land (or premises) to make the place reasonably safe for the proper use of an invitee requires the owner or occupier to make reasonable inspection of the land (or premises) to discover hazardous conditions.
Cases:
Handelman v. Cox, 39 N.J. 95, 111 (1963) (salesman showing merchandise to employees of defendant fell down cellar stairway partially obscured by carton)
NOTICE OF PARTICULAR DANGER AS CONDITION OF LIABILITY If the jury members find that the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner (or occupier) knew of the unsafe condition for a period of time prior to plaintiffs injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiffs injury that in the exercise of reasonable care the owner (or occupier) should have discovered its existence and corrected it.
Cases:
Tua v. Modern Homes, Inc., 64 N.J. Super. 211 (App. Div. 1960), affirmed, 33 N.J. 476 (1960) (slip and fall on small area of slipper waxlike substance in store); Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (slip and fall on wet linoleum near entrance of store on rainy day); Ratering v. Mele, 11 N.J. Super. 211, 213 (App. Div. 1951) (slip and fall on littered stairway at entrance to restaurant).
Notes:
(1) The above charge is applicable to those cases where the defendant is not at fault for the creation of the hazard of where the hazard is not to be reasonably anticipated as an incident of defendants mode of operation. See: Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966) (dictum).
(2) An employees knowledge of the danger is imputed to his/her employer, the owner of premises. Handelman v. Cox, 39 N.J. 95, 104 (1963).
NOTICE NOT REQUIRED WHEN CONDITION IS CAUSED BY DEFENDANT
If the jury members find that the land (or premises) was not in a reasonably safe condition and that the owner (or occupier) or his/her agent, servant or employee created that condition through his/her own act or omission, then, in order for plaintiff to recover, it is not necessary for the jury members also to find that the owner (or occupier) had actual or constructive notice of the particular unsafe condition.
Cases:
Smith v. First National Stores, 94 N.J. Super. 462 (App. Div. 1967)(slip and fall on greasy stairway caused by sawdust tracked onto the steps by defendants employees); Plaga v. Foltis, 88 N.J. Super. 209 (App. Div. 1965) (slip and fall on fat in restaurant area traversed by bus boy); Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div. 1959) (slip and fall in self-service market on wet floor near vegetable bin). Also see: Thompson v. Giant Tiger Corp., 118 N.J.L. 10 (E. & A. 1937); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1956); Lewin v. Orbachs, Inc., 14 N.J. Super. 193 (App. Div. 1951); Maugeri v. Great Atlantic & Pacific Tea Company, 357 F.2d 202 (3rd Cir. 1966).
BURDEN OF GOING FORWARD
In Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430 (1966), the court held that where string beans are sold from bins on a self-service basis there is a probability that some will fall or be dropped on the floor either by defendants employees or by customers. Since plaintiff would not be in a position to prove whether a particular string bean was dropped by an employee or another customer (or how long it was on the floor) a showing of this type of operation is sufficient to put the burden on the defendant to come forward with proof that defendant did what was reasonably necessary (made periodic inspections and clean-up) in order to protect a customer against the risk of injury likely to be generated by defendants mode of operation. Presumably, however, the burden of proof remains on plaintiff to prove lack of reasonable care on defendants part. If defendant fails to produce evidence of reasonable care, the jury may infer that the fault was probably his. See also: Bozza, supra, 42 N.J. at 359.
Whether or not defendant has furnished an invitee with a reasonably safe place for his/her use may depend upon the obviousness of the condition claimed to be hazardous and the likelihood that the invitee would realize the hazard and protect himself/herself against it. Even though an unsafe condition may be observable by an invitee the jury members may find that an owner (or occupier) of premises is negligent, nevertheless, in maintaining said condition when the condition presents an unreasonable hazard to invitees in the circumstances of a particular case. If the jury members find that defendant was negligent in maintaining an unsafe condition, even though the condition would be obvious to an invitee, the fact that the condition was obvious should be considered by the jury members in determining whether the invitee was contributorily negligent (a) in proceeding in the face of a known hazard or (b) in the manner in which the invitee proceeded in the face of a known hazard.
DISTRACTION OR FORGETFULNESS OF INVITEE
Even if the jury members find that plaintiff knew of the existence of the unsafe or defective condition, or that the unsafe or defective condition was so obvious that defendant had a reasonable basis to expect that an invitee would realize its existence, plaintiff may still recover if the circumstances or conditions are such that plaintiffs attention would be distracted so that he/she would not realize or would forget the location or existence of the hazard or would fail to protect himself/herself against it.
Thus, even where a hazardous condition is obvious the jury members must first determine whether in the circumstances the defendant was negligent in permitting the condition to exist. Even if defendant was negligent, however, if plaintiff knew that a hazardous condition existed, plaintiff could not recover if he/she was contributorily negligent, that is to say, plaintiff could not recover if he/she did not act as a reasonably prudent person either by proceeding in the face of a known danger or by not using reasonable care in the manner in which he/she proceeded in the face of the danger. In considering whether plaintiff was contributorily negligent the jury members may consider that even persons of reasonable prudence in certain circumstances may have their attention distracted so that they would not realize or remember the existence of a hazardous condition and would fail to protect themselves against it. Mere lapse of memory or inattention or mental abstraction at the critical moment is not an adequate excuse. One who is inattentive or forgetful of a known and obvious danger is contributorily negligent unless there is some condition or circumstance which would distract or divert the mind or attention of a reasonably prudent person.
Note:
In McGrath v. American Cyanamid Co., 41 N.J. 272 (1963), the employee of a subcontractor was killed when a plank comprising a catwalk over a deep trench up-ended causing him to fall. The court held that even if the decedent had appreciated the danger that fact by itself would not have barred recovery. The court said if the danger was one which due care would not have avoided, due care might, nevertheless, require notice of warning unless the danger was known or obvious. If the danger was created by a breach of defendants duty of care, that negligence would not be dissipated merely because the decedent knew of the danger.Negligence would remain, but decedents knowledge would affect the issue of contributory negligence. The issue would remain whether decedent acted as a reasonably prudent person in view of the known risk, either by incurring the known risk (by staying on the job), or by the manner in which he proceeded in the face of that risk.
In Zentz v. Toop, 92 N.J. Super. 105, 114-115 (App. Div. 1966), affirmed o.b., 50 N.J. 250 (1967), the employee of a roofing contractor, while carrying hot tar, tripped over a guide wire supporting an air conditioning tower on a roof. The court held that even if plaintiff had observed the wires or if they were so obvious that he/she should have observed them, the question remained whether, considering the hazard and the work of the employee, he/she was entitled to more than mere knowledge of the existence of the wires or whether he/she was entitled to a warning by having the wires flagged or painted in a contrasting color. This was a fact for the jury to determine. The jury must also determine whether defendant had reason to expect that the employees attention would have been distracted as he/she worked or that he/she would forget the location of a known hazard or fail to protect himself against it. The court also held the plaintiffs knowledge of the danger would not alone bar his/her recovery, but this knowledge goes to the issue of contributory negligence.
In Ferrie v. DArc, 31 N.J. 92, 95 (1959), the court held that there was no reasonable excuse for plaintiffs forgetfulness or inattention to the fact that a railing was temporarily absent from her porch, as she undertook to throw bones to her dog, and fell to the ground because of the absence of a railing she customarily leaned upon. The court held: When an injury results from forgetfulness or inattention to a known danger, the obvious contributory negligence is not excusable in the absence of some condition or circumstance which would divert the mind or attention of an ordinarily prudent man. Mere lapse of memory, or inattention or mental abstraction at the critical moment cannot be considered an adequate diversion. One who is inattentive to or forgetful of a known and obvious condition which contains a risk of injury is obvious condition which contains a risk of injury to guilty of contributory negligence as a matter of law, unless some diversion of the type referred to above is shown to have existed at the time.
The following discussion in 2 Harper & James, Torts, §27.13, pp. 1489 et seq., (1956), cited with approval in Zentz v. Toop, supra, 92 N.J. Super. at 112, may be helpful in understanding the principles involved in the above charges:
Once an occupier has learned of dangerous conditions on his/her premises, a serious question arises as to whether he/she may--as a matter of law under all circumstances--discharge all further duty to his/her invitees by simply giving them a warning adequate to enable them to avoid the harm. A good many authorities, including the Restatement, take the position that he/she may. But this proposition is a highly doubtful one both on principle and authority. The alternative would be a requirement of due care to make the conditions reasonably safe--a requirement which might well be satisfied by warning or obviousness in any given case, but which would not be so satisfied invariably.
* * *
1. Defendants duty. People can hurt themselves on almost any condition of the premises. That is certainly true of an ordinary flight of stairs. But it takes more than this to make a condition unreasonably dangerous. If people who are likely to encounter a condition may be expected to take perfectly good care themselves without further precautions, then the condition is not unreasonably dangerous because the likelihood of harm is slight. This is true of the flight of ordinary stairs in a usual place in the daylight. It is also true of ordinary curbing along a sidewalk, doors or windows in a house, counters in a store, stones and slopes in a New England field, and countless other things which are common in our everyday experience. It may also be true of less common and obvious conditions which lurk in a place where visitors would expect to find such dangers. The ordinary person can use or encounter all of these things safely if he/she is fully aware of their presence at the time. And if they have no unusual features and are in a place where he/she would naturally look for them, he/she may be expected to take care of himself if they are plainly visible. In such cases it is enough if the condition is obvious, or is made obvious (e.g., by illumination). * * *
On the other hand, the fact that a condition is obvious--i.e., it would be clearly visible to one whose attention was directed to it--does not always remove all unreasonable danger. It may fail to do so in two lines of cases. In one line of cases, people would not in fact expect to find the condition where it is, or they are likely to have their attention distracted as they approach it, or, for some other reason, they are in fact not likely to see it, though it could be readily and safely avoided if they did. There may be negligence in creating or maintaining such a condition even though it is physically obvious; slight obstructions to travel on a sidewalk an unexpected step in a store aisle or between a passenger elevator and the landing furnish examples. Under the circumstances of any particular case, an additional warning may, as a matter of fact, suffice to remove the danger, as where a customer, not hurried by crowds or some emergency, and in possession of his/her facilities, is told to watch his/her step or step up at the appropriate time. When this is the case, the warning satisfies the requirement of due care and is incompatible with defendants negligence. Here again, plaintiffs recovery would be prevented by thatfact no matter how careful he/she was. But under ordinary negligence principles the question is properly one of fact for the jury except in the clearest situations.
In the second line of cases the condition of danger is suchthat it cannot be encountered with reasonable safety even if the danger is known and appreciated. An icy flight of stairs or sidewalk, a slippery floor, a defective crosswalk, or a walkway near an exposed high tension wire may furnish examples. So may the less dangerous kind of condition if surrounding circumstances are likely to force plaintiff upon it, or if, for any other reason, his/her knowledge is not likely to be a protection against danger. It is in these situations that the bit of the Restatements adequate warning rule is felt. Here, if people are in fact likely to encounter the danger, the duty of reasonable care to make conditions reasonably safe is not satisfied by a simple warning; the probability of harm in spite of such precaution is still unreasonably great. And the books are full of cases in which defendants, owing such a duty, are held liable for creating or maintaining a perfectly obvious danger of which plaintiffs are fully aware. The Restatement, however, would deny liability here because the occupier need not invite visitors, and if he/she does, he/she may condition the invitation on any terms he/she chooses, so long as there is full disclosure of them. If the invitee wishes to come on those terms, he/she assumes the risk.
The Restatement view is wrong in policy. The law has never freed landownership or possession from all restrictions or obligations imposed in the social interest. The possessors duty to use care towards those outside the land is of long standing. And many obligations are imposed for the benefit of people who voluntarily come upon the land. For the invitee, the occupier must make reasonable inspection and give warning of hidden perils. . . But this should not be conclusive. Reasonable expectations may raise duties, but they should not always limit them. The gist of the matter is unreasonable probability of harm in fact. And when that is great enough in spite of full disclosure, it is carrying the quasi-sovereignty of the landowner pretty far to let him ignore it to the risk of life and limb.
So far as authority goes, the orthodox theory is getting to be a pretty feeble reed for defendants to lean on. It is still frequently stated, though often by way of dictum. On the other hand, some cases have simply--though unostentatiously--broken with tradition and held defendant liable to an invitee in spite of his/her knowledge of the danger, when the danger was great enough and could have been feasibly remedied. Other cases stress either the reasonable assumption of safety which the invitee may make or the likelihood that his/her attention will be distracted, in order to cut down the notion of what is obvious or the adequacy of warning. And the latter is often a jury question even under the Restatement rule. It is not surprising, then, that relatively few decisions have depended on the Restatement rule alone for denying liability.
2. Contributory Negligence. . . But there are several situations in which a plaintiff will not be barred by contributory negligence although he/she encountered a known danger. . . For another, it is not necessarily negligent for a plaintiff knowingly and deliberately to encounter a danger which it is negligent for defendant to maintain. Thus a traveler may knowingly use a defective sidewalk, or a tenant a defective common stairway, without being negligent if the use was reasonable under all the circumstances.
CONCLUSION These situations show that the invitee will not always be barred by his/her self-exposure to known dangers on the premises.

Sunday, January 10, 2016

GRANT W. MORGAN VS. RAYMOURS FURNITURE COMPANY, INC., ET AL. A-2830-14T2


GRANT W. MORGAN VS. RAYMOURS FURNITURE COMPANY, INC., ET AL.
A-2830-14T2
Defendants appealed the denial of their motion to compel arbitration of claims contained in plaintiff's complaint, which included age discrimination and wrongful termination claims, arguing that within its employee handbook could be found plaintiff's agreement to both arbitrate and waive his right to sue. Although those provisions were located within, the employer had prefaced the handbook with a disclaimer against any assumption that its provisions were "contractual in nature." The court affirmed the denial of arbitration, concluding the employer could not equitably have it both ways and that the presence of the employer's disclaimer precluded a determination that the employee had contracted away his right to sue. 

SEOUNG OUK CHO, ET AL. VS. TRINITAS REGIONAL MEDICAL CENTER, ET AL. A-5923-13T2


SEOUNG OUK CHO, ET AL. VS. TRINITAS REGIONAL MEDICAL CENTER, ET AL.
A-5923-13T2
On the day before jury selection in this medical malpractice case, defendant filed a motion that was purportedly a "motion in limine," but which sought the dismissal of the complaint against him in its entirety, an admitted violation of the rule governing summary judgment motions.
The fact that this misuse of the motion in limine occurs sufficiently often to win our notice, despite our repeated cautions against such practice, leads us to conclude it necessary to state clearly what a motion in limine is not. It is not a summary judgment motion that happens to be filed on the eve of trial. When granting a motion will result in the dismissal of a plaintiff's case or the suppression of a defendant's defenses, the motion is subject to Rule 4:46, the rule that governs summary judgment motions. We hold the trial court's consideration of these motions and dismissal of the complaint against defendant deprived plaintiffs of their right to due process of law, reverse that dismissal and remand for restoration of the complaint to the trial calendar. 

J-M MANUFACTURING COMPANY, INC. VS. PHILLIPS & COHEN, LLP, AND JOHN HENDRIX A-5867-13T2

J-M MANUFACTURING COMPANY, INC. VS. PHILLIPS & COHEN, LLP, AND JOHN HENDRIX
A-5867-13T2
 We affirm the Rule 4:6-2(e) dismissal of J-M's complaint based on application of the entire controversy doctrine. In 2006, defendant John Hendrix, plaintiff J-M's former employee, filed a federal qui tam action in California under the False Claims Act (FCA), 31 U.S.C.A. §§ 3729-3732, alleging J-M defrauded various governmental entities in the sale of PVC pipe. Hendrix gathered the information which formed the basis of the FCA action while represented by his attorneys, defendant Phillips & Cohen. The FCA protects legitimate whistleblowers from counterclaims meant to harass or indemnify a liable defendant by holding the counterclaims in abeyance until a defendant's liability is decided. If a defendant is found liable, the counterclaim is dismissed as the FCA prohibits a defendant from obtaining indemnification or offset for its wrongdoing. No counterclaim was filed by J-M.
While the qui tam action was pending final resolution, J-M sued in New Jersey seeking damages against Hendrix and his attorneys for Hendrix's investigatory activities, including the removal or duplication of confidential documents, customer information, and other claimed breaches of Hendrix's contractual commitments to J-M. We conclude that the entire controversy doctrine mandates dismissal of the New Jersey complaint because it was based on the same transaction or transactional circumstances as the California proceedings. We further conclude that in light of the purpose of the entire controversy doctrine and the policy aims of the FCA, the fact that the cases were being pursued simultaneously did not prevent application of the doctrine. 

IN THE MATTER OF THE NEW JERSEY MARITIME PILOT & DOCKING PILOT COMMISSION'S DETERMINATION REGARDING EXAMINATION REQUIREMENT FOR LICENSURE OF NEW JERSEY DOCKING PILOTS A-5176-13T1

IN THE MATTER OF THE NEW JERSEY MARITIME PILOT & DOCKING PILOT COMMISSION'S DETERMINATION REGARDING EXAMINATION REQUIREMENT FOR LICENSURE OF NEW JERSEY DOCKING PILOTS
A-5176-13T1
In this appeal, appellants challenged the validity of a regulation adopted by the New Jersey Maritime Pilot & Docking Pilot Commission, which required docking pilot apprentices to pass an examination before licensure as a docking pilot. We rejected appellants' contentions that the regulation was inconsistent with the New Jersey Maritime Pilot and Docking Act, which had no such requirement, was contrary to legislative intent, transgressed the Commissions enabling legislation, and lacked regulatory standards. We held that the regulation fell within the substantive authority vested in the Commission under the Act and was consistent with and achieved the express
page2image20488 page2image20648 page2image20808 page2image20968

legislative policies and overall objectives underlying the Act. We also held that the docking pilot regulations as a whole provided sufficient regulatory standards to inform the public and docking pilot apprentices of the content of the examination. 

HACKENSACK RIVERKEEPER, INC. AND NY/NJ BAYKEEPER VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION A-1752-12T3


HACKENSACK RIVERKEEPER, INC. AND NY/NJ BAYKEEPER VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION A-1752-12T3
Two non-profit organizations challenged DEP's promulgation of its "public trust rights rule," N.J.A.C. 7:7-9.48, and "public access rule," N.J.A.C. 7:7-16.9, first adopted in 2012, re-codified in 2014, and re-adopted as re-codified in 2015. In Borough of Avalon v. New Jersey Department of Environmental Protection, 403 N.J. Super. 590 (App. Div. 2008), certif. denied, 199 N.J. 133 (2009), we concluded earlier versions of the rules were "not statutorily authorized and therefore invalid." Id. at 597. In this opinion, we conclude that the current regulations are not authorized by case law developed under the "public trust doctrine," or by CAFRA, and invalidate the regulations. 

IN THE MATTER OF THE NEW JERSEY FIREMEN'S ASSOCIATION OBLIGATION TO PROVIDE RELIEF APPLICATIONS UNDER THE OPEN PUBLIC RECORDS ACT JEFF CARTER VS. JOHN DOE A-2810-13T2


IN THE MATTER OF THE NEW JERSEY FIREMEN'S ASSOCIATION OBLIGATION TO PROVIDE RELIEF APPLICATIONS UNDER THE OPEN PUBLIC RECORDS ACT
JEFF CARTER VS. JOHN DOE

A-2810-13T2
In this OPRA and common law right of access case, the New Jersey State Firemen's Association secured a declaratory judgment that it correctly denied access to records of a relief award to an Association member. The records requestor appealed.
We conclude a records custodian may not bring a declaratory judgment action against a record requestor to enforce its right to withhold records, because OPRA does not provide the records custodian an independent right of action. As to both OPRA and the common law, declaratory relief was inappropriate in this case because the declaratory judgment action was essentially an effort to preempt an imminent claim by the records requestor; and allowing a declaratory judgment action solely with respect to the common law would unnecessarily fragment claims. As a substantive matter, we conclude that under the circumstances presented, both OPRA and the common law required disclosure of documents containing the applicant's name and the award amount.
Judge Messano concurs in the judgment, but declines to join in the section of the opinion that expresses the general principle that if there is no private right of action under a particular statute, a party may not secure a declaration of its statutory rights under the Declaratory Judgment Act. 

MARK LAGERKVIST VS. OFFICE OF THE GOVERNOR OF THE STATE OF NEW JERSEY AND JAVIER DIAZ, LEGAL SPECIALIST/RECORDS CUSTODIAN A-0250-14T3


MARK LAGERKVIST VS. OFFICE OF THE GOVERNOR OF THE STATE OF NEW JERSEY AND JAVIER DIAZ, LEGAL SPECIALIST/RECORDS CUSTODIAN
A-0250-14T3

A journalist appeals a Law Division order denying him access to records of the Governor and unspecified members of his senior staff's third-party funded travel. He contends that the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, required the custodian of the records to have attempted to reach an agreement with him before denying the request, and that in any event, his inquiry, which covered a two-year period and did not specify dates, events, or participants other than the Governor himself, was not unclear or overbroad.
Having decided the inquiry exceeded OPRA's scope, we also declined to expand the effect of N.J.S.A. 47:1A 5(g), which requires the custodian to "attempt[] to reach a reasonable solution with the requestor" when a records request would "substantially disrupt agency operations." We found it does not include this scenario, when research and information, not records, are sought. 

MICHAEL BANDLER VS. ROCCO MELILLO A-1315-14T2


MICHAEL BANDLER VS. ROCCO MELILLO
          A-1315-14T2
In this opinion, we address a situation where plaintiff's only argument on appeal is that the trial judge included dictum in his written opinion dismissing plaintiff's complaint. He asked that we redact the dictum from the judge's decision.
We concluded that a party may not parse through the opinion of a trial judge and take an appeal from words, sentences, or sections of the opinion that he or she finds objectionable when the party is not asserting the order or judgment was made in error. Because appeals are taken from actions of a trial court, and not from the trial court's rationale, much less dicta, we dismissed plaintiff's appeal for want of jurisdiction. 

IN THE MATTER OF THE ESTATE OF MICHAEL D. FISHER, II A-0878-14T2


 IN THE MATTER OF THE ESTATE OF MICHAEL D. FISHER, II
          A-0878-14T2
In this case of first impression, we interpret N.J.S.A. 3B:5-14.1(b)(1), which provides that a parent who is deemed to have "abandoned" his or her child "by willfully forsaking" the child is barred from sharing in the child's estate if the child dies intestate. Among other things, we conclude that the party seeking to apply the statute to bar recovery must demonstrate by a preponderance of the evidence that the parent, through his or her intentional conduct, manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child.
In our case, we determined that while the parent did not take the steps needed to resume parenting time with his child after a final restraining order prohibiting parenting time was issued near the time of the parties' divorce, he did not intend to permanently forego all parental duties and claims. Most notably, the parent continued to pay child support, and was in contact with the child over social media several months prior to the child's death. 

IN THE MATTER OF BOARD OF FIRE COMMISSIONERS, FIRE DISTRICT NO. 1, MONROE TOWNSHIP AND MONROE TOWNSHIP page6image19576 page6image19736 page6image19896 PROFESSIONAL FIREFIGHTERS ASSOCIATION, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 3170 A-0765-14T2

IN THE MATTER OF BOARD OF FIRE COMMISSIONERS, FIRE DISTRICT NO. 1, MONROE TOWNSHIP AND MONROE TOWNSHIP
page6image19576 page6image19736 page6image19896

PROFESSIONAL  FIREFIGHTERS  ASSOCIATION,  INTERNATIONAL
          ASSOCIATION OF FIREFIGHTERS, LOCAL 3170
          A-0765-14T2
Applying the dual motivation test in In re Township of Bridgewater, 95 N.J. 235 (1984), PERC determined that anti-union animus was a substantial or motivating factor for the Board's termination of firefighters. It also rejected as pretextual the Board's assertion that it fired the firefighters as a cost saving measure.
We affirmed PERC's determinations and held that after it reinstates an aggrieved employee, a public employer retains its rights under the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -43, "to discharge a worker for a legitimate business reason, unrelated to the employee's union activities." Twp. of Bridgewater, supra, 95 N.J. at 237. The reinstatement of the employee, therefore, does not forever preclude the public employer from making legitimate and non- retaliatory employment decisions. 

IN THE MATTER OF THE ADOPTION OF THE MONROE TOWNSHIP HOUSING ELEMENT AND FAIR SHARE PLAN AND IMPLEMENTING ORDINANCES A-0688-15T1

IN THE MATTER OF THE ADOPTION OF THE MONROE TOWNSHIP HOUSING ELEMENT AND FAIR SHARE PLAN AND IMPLEMENTING ORDINANCES A-0688-15T1
In the wake of In re N.J.A.C. 5:96 & 5:97, 221 N.J. 1 (2015), and In re Failure of the Council on Affordable Housing To Adopt Trust Fund Commitment Regulations, 440 N.J. Super. 220 (App. Div. 2015), the trial court denied the motion of the Department of Community Affairs to intervene in this action, which was commenced by the Township of Monroe for a judgment declaring its housing plan presumptively valid. The DCA sought to file a counterclaim seeking an accounting and turnover of Monroe's affordable housing trust funds based on an allegation that Monroe failed "to spend or commit to spend" the funds with the period prescribed by law. The court granted leave to appeal and affirmed substantially for the reasons set forth in Judge Douglas K. Wolfson's published written opinion. 

LISA B. FREEDMAN AND JEFFREY C. ENDA VS. MURRAY N. SUFRIN AND ELLEN L. SUFRIN, ET AL. A-4942-13T1


LISA B. FREEDMAN AND JEFFREY C. ENDA VS. MURRAY N. SUFRIN AND ELLEN L. SUFRIN, ET AL.
A-4942-13T1
Plaintiffs commenced this quiet-title action in response to defendants' assertion that a restrictive covenant, which they imposed years earlier on a former owner of plaintiffs' property, required that "as many trees . . . as possible" be retained on plaintiffs' property. In applying the long-standing rule of strict construction of restrictive covenants of this nature, the court found numerous ambiguities in the language employed by the covenant's drafter that suggested, among other things, that the tree-removal restriction was likely intended to apply only during the construction of a residence on plaintiffs' property that occurred many years earlier. Because the strict- construction rule barred enforcement of the covenant in light of these ambiguities, the court affirmed the summary judgment entered in favor of plaintiffs. 

ESTATE OF SANDRA BRUST AND PHILIP BRUST, ETC. VS. ACF INDUSTRIES, LLC, ET AL. A-3431-13T4

 ESTATE OF SANDRA BRUST AND PHILIP BRUST, ETC. VS. ACF
          INDUSTRIES, LLC, ET AL.
A-3431-13T4
Sandra Brust's father, John Noga, was employed by the Port Authority Transit Corporation (PATCO) from 1970 to 1977. His job duties included adjustment and repair of locomotive brakes, which allegedly released friable asbestos particles into the air. He also worked on approximately one car a year for resale after hours at home, removing and replacing automotive brake shoes in the process. That also allegedly released asbestos particles into the air. The family moved from New Jersey in 1977. Brust, who was born in 1963, came into contact with Noga's asbestos-laden clothes when he came home from work and when she helped her mother wash his laundry. She developed mesothelioma in 2010. Plaintiffs sued the locomotive and automotive defendants for personal injuries based on Brust's secondary exposure to asbestos.
We conclude that Brust's state law claims against the locomotive defendants regarding her secondary exposure to asbestos in the years Noga was a PATCO employee were preempted by federal law, specifically, the Locomotive Inspection Act (LIA), 49 U.S.C.A. §§ 20701-20703. We further conclude that Brust's secondary exposure to asbestos resulting from her
page9image19064 page9image19224 page9image19384 page9image19544 page9image19704

father's work on cars was not sufficiently frequent, regular, and proximate to withstand the automotive defendants' motions for summary judgment. 

CASEY PIATT VS. POLICE AND FIREMEN'S RETIREMENT SYSTEM, NEW JERSEY DEPT. OF CORRECTIONS, AND STATE OF NEW JERSEY A-5504-12T1

CASEY PIATT VS. POLICE AND FIREMEN'S RETIREMENT SYSTEM, NEW JERSEY DEPT. OF CORRECTIONS, AND STATE OF NEW JERSEY
A-5504-12T1

Under N.J.S.A. 43:16A-3 and N.J.A.C. 17:4-2.5(a), a person must be no more than thirty-five years old when becoming a
page10image18960 page10image19120 page10image19280 page10image19440 page10image19600

member of the Police and Firemen's Retirement System (PFRS). Plaintiffs are State corrections officers who claim that age requirement cannot be applied to them. However, the long history of PFRS makes clear that the Legislature intends to restrict PFRS membership to persons meeting that age requirement at the time they become a "policeman" or "fireman." N.J.S.A. 43:16A-3. Although N.J.S.A. 43:16A-3 applies by its terms to political subdivisions, it also applies to State corrections officers because the Legislature has included them in the definition of "policeman." The age requirement serves the Legislature's goals of using PFRS's heightened benefits to encourage persons to become officers while young and fit, and to retire at a relatively early age. Moreover, the PFRS Board by regulation has properly applied this construction of the PFRS Act for more than forty years. N.J.A.C. 17:4-2.5(a). 

SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION LOCAL UNION 22 VS. RAYMOND KAVANAGH VS. DAVID CASTNER, ET AL. A-3646-13T1


SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION LOCAL UNION 22 VS. RAYMOND KAVANAGH VS. DAVID CASTNER, ET AL.
A-3646-13T1

In this appeal of a summary judgment that affirmed a union's imposition of fines against defendant, the court affirmed the judge's upholding of the union's finding of violations and also rejected defendant's contention that he was wrongfully denied counsel at the union disciplinary proceedings. The court, however, reversed the trial judge's determination that the fines were reasonable because the judge did not consider factors relevant and necessary to that determination. The case is remanded for the trial judge to employ relevant factors as set forth in this opinion in assessing the reasonableness of the fine. 

IN THE MATTER OF THE IMPLEMENTATION OF L. 2012, C. 24, N.J.S.A. 48:3-87(t), ETC. A-4565-13T3


IN THE MATTER OF THE IMPLEMENTATION OF L. 2012, C. 24, N.J.S.A. 48:3-87(t), ETC.
A-4565-13T3
Construing the Solar Act, N.J.S.A. 48:3-87, we affirmed a decision of the Board of Public Utilities that appellant's application could not be considered under N.J.S.A. 48:3-87(t), because it concerned a solar project to be sited on property which had been valued, assessed and taxed as farmland. Such applications are governed by N.J.S.A. 48:3-87(s). In addition, subsection (t) did not apply to the application because the property was not a contaminated industrial or commercial site within the definition of a brownfield, as set forth in N.J.S.A. 48:3-51. 

Saturday, January 9, 2016

ROSALIE BACON VS. NEW JERSEY STATE DEPARTMENT OF EDUCATION A-2452-14T1


 ROSALIE  BACON  VS.  NEW  JERSEY  STATE  DEPARTMENT  OF
          EDUCATION
A-2452-14T1
Plaintiffs, a group of fifteen school districts, and parents and children from those districts, appeal from the Law Division's order dismissing their complaint for failure to state a claim upon which relief can be granted. Plaintiffs brought the complaint as a summary action "to enforce agency orders" under Rule 4:67-6(a)(2). Plaintiffs sought to compel defendant New Jersey State Department of Education to provide the funding provided by the School Funding Reform Act of 2008 (SFRA), along with facilities improvements and other measures.
In this opinion, we hold that plaintiffs could not bring their complaint as a summary action under Rule 4:67-6(a)(2) because the district-specific needs assessments which plaintiffs sought to enforce did not require the Department to fully fund the districts under the SFRA or otherwise provide for specific relief and, therefore, there were no orders capable of being enforced under the rule 

O.Y.P.C. VS. J.C.P. A-0334-14T1

O.Y.P.C. VS. J.C.P.
          A-0334-14T1

We remanded this case to the trial court, based on the Supreme Court's recent decision in H.S.P. v. J.K., __ N.J. __ (2015), and we provided guidance for the trial court to follow on remand. The trial court had dismissed the application for lack of jurisdiction, because it concerned an immigrant who was over the age of eighteen. Following H.S.P., we held that in addressing an application filed as a predicate step in seeking special immigrant juvenile (SIJ) status for a person under age twenty-one, Family Part judges must make the required SIJ findings regardless of whether other relief can be granted. We also noted that the Family Court has some sources of jurisdiction over persons between the ages of eighteen and twenty-one, and the trial court's reliance on the definition of "juvenile" set forth in the Code of Juvenile Justice was misplaced.  11/02/15