ADP, LLC VS. ERIK KUSINS ADP, LLC VS. RYAN HOPPER ADP, LLC VS. ANTHONY M. KARAMITAS ADP, LLC VS. NICK LENOBLE ADP, LLC VS. MICHAEL DEMARCO ADP, LLC VS. DANIEL HOBAICA (C-000264, C-000023-16, C-000143-16, C-000117-16, C-000120-16, AND C-000118-16, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-4664-16T1/A-0692-17T3/A-0693-17T3/A-2990-17T4/A-4407-17T4/A-4527-17T4)

ADP, LLC VS. ERIK KUSINS ADP, LLC VS. RYAN HOPPER ADP, LLC VS. ANTHONY M. KARAMITAS ADP, LLC VS. NICK LENOBLE ADP, LLC VS. MICHAEL DEMARCO ADP, LLC VS. DANIEL HOBAICA (C-000264, C-000023-16, C-000143-16, C-000117-16, C-000120-16, AND C-000118-16, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-4664-16T1/A-0692-17T3/A-0693-17T3/A-2990-17T4/A-4407-17T4/A-4527-17T4)

In these consolidated appeals, the court considers the enforceability of the restrictive covenant agreements (RCAs) executed by the six defendants during their employment with plaintiff ADP, LLC. Each defendant was a top-performing sales representative. To award and incentivize their success, ADP invited defendants to participate in a stock award incentive program conditioned on their acceptance and execution of an RCA. The RCA included non-solicitation and non-compete provisions that restricted an employee from soliciting ADP's clients and competing with ADP upon leaving the company. The defendants left ADP at varying times and each accepted employment with the same direct competitor.

The court concluded that ADP demonstrated a legitimate and protectable interest in its customer relationships sufficient to justify enforcing the RCAs. However, the court also found the RCAs were overly broad and imposed an undue hardship on defendants. Therefore, the court blue-penciled the non-solicitation and non-compete provisions.

The court held that ADP may only prohibit its employees, upon separation from the company, from soliciting any of ADP's actual clients with whom the former employee was directly involved or who the employee knew was ADP's client.

As to the solicitation of prospective clients, the court found it unreasonable and onerous to restrict defendants from soliciting clients unknown to them while at ADP. Therefore, when working for a competitor, a former employee is only prohibited from soliciting a prospective ADP client if the employee gained knowledge of the potential client while at ADP and directly, or indirectly, solicits that client after leaving.

In considering the non-compete provision, the court determined it was reasonable for ADP to restrict its former employees, for a reasonable time, from providing services to a competing business in the same geographical territory in which the employee operated while at ADP.

The court reverses the summary judgment orders in favor of each defendant. Because each defendant breached the RCAs to some extent, the court remands the cases to the trial court to determine the appropriate remedy for the breach and to consider ADP's applications for counsel fees.

CENTRAL 25, LLC VS. ZONING BOARD OF THE CITY OF UNION CITY (L-1246-16, HUDSON COUNTY AND STATEWIDE) (A-0263-17T1)

CENTRAL 25, LLC VS. ZONING BOARD OF THE CITY OF UNION CITY (L-1246-16, HUDSON COUNTY AND STATEWIDE) (A-0263-17T1)

The Union City Zoning Board of Adjustment denied plaintiff's application for preliminary and final site plan approval, which required a number of bulk variances and a use variance. In an action in lieu of prerogative writs, the Law Division rejected plaintiff's claim that the two members of the Board should have recused themselves due to a conflict of interest. Applying the Supreme Court's recent decision in Piscitelli v. City of Garfield Zoning Bd. of Adjustment, 237 N.J. 333 (2019), this court reverses and remands the matter for the Law Division to conduct an evidentiary hearing to determine whether the two Board members should have recused themselves.

RICHARD MARCONI VS. UNITED AIRLINES (DIVISION OF WORKERS' COMPENSATION) (A-0110-18T4)

RICHARD MARCONI VS. UNITED AIRLINES (DIVISION OF WORKERS' COMPENSATION) (A-0110-18T4)

Petitioner, a New Jersey resident, sought benefits under the Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -128, alleging injuries both as the result of a specific incident, and occupational injuries "while performing repetitive duties" as an aircraft technician while employed by United Airlines at the airport in Philadelphia. The judge of compensation dismissed both petitions for lack of jurisdiction.

Relying on dicta in Bunk v. Port Authority of New York & New Jersey, 144 N.J. 176, 180-81 (1996), petitioner claimed residency alone was sufficient to confer jurisdiction. Alternatively, he argued that United's business was "localized" in New Jersey, and combined with his residency, New Jersey should exercise jurisdiction over his petitions.

The court affirmed the dismissal for lack of jurisdiction, concluding the dicta in Bunk was not controlling, and residency alone is insufficient to confer jurisdiction. The court also concluded that although United maintained a "localized" presence in New Jersey, petitioner lacked any employment relationship to that presence.

LILLIAN COLLAS VS. RARITAN RIVER GARAGE, INC. (DIVISION OF WORKERS' COMPENSATION) (A-3103-17T4)

LILLIAN COLLAS VS. RARITAN RIVER GARAGE, INC. (DIVISION OF WORKERS' COMPENSATION) (A-3103-17T4)

After awarding dependent benefits under N.J.S.A. 34:15-13 to the surviving spouse of a worker who succumbed to an occupational disease, the judge of compensation awarded counsel fees based on the spouse's expected lifetime – in accordance with a 1995 amendment to N.J.S.A. 34:15-13(j) which provided that compensation shall be paid to a surviving spouse "during the entire period of survivorship" – as determined from the table of mortality and life expectancy printed as Appendix I to the New Jersey Rules of Court.

The court rejected the employer's argument on appeal that the proper calculation should have been based on the long-standing basis for counsel fee awards: the 450-week period of payments provided in N.J.S.A. 34:15-12(b) and portions of N.J.S.A. 34:15-13. N.J.S.A. 34:15-64 authorizes a judge of compensation to allow a prevailing party "a reasonable attorney fee, not exceeding [twenty percent] of the judgment." Although the court did not hold the use of the 450-week method traditionally used to calculate counsel fees was improper, it concluded the use of the table to calculate counsel fees was reasonable because it is designed to actuarially calculate the amount of time over which a surviving spouse can expect to receive benefits; in other words, it is based on the judgment amount calculated using the spouse's projected lifespan.

ALCATEL-LUCENT USA INC. VS. TOWNSHIP OF BERKELEY HEIGHTS (TAX COURT OF NEW JERSEY) (A-0743-16T1)

ALCATEL-LUCENT USA INC. VS. TOWNSHIP OF BERKELEY HEIGHTS (TAX COURT OF NEW JERSEY) (A-0743-16T1)

Alcatel-Lucent USA Inc. (Alcatel), is the owner of real property in the Township of Berkeley Heights on which is located its North American headquarters.1 There are approximately 1.5 million square feet of improvements on the 153.4 acre Berkeley Heights property – of which Alcatel contends 53 acres are woodlands.

N.J.S.A. 54:4-34 – commonly referred to as Chapter 91 (you have to read the decision to find out why) – requires every real property owner to provide "a full and true account of his [or her] name and real property and the income therefrom, in the case of income-producing property" to the municipal tax assessor upon the assessor's written request. The statute also precludes the owner from appealing the assessor's valuation and assessment if the owner fails or refuses to respond to the Chapter 91 request.

After Alcatel failed to respond to the tax assessor's request for information pertaining to its Berkeley Heights property, LTI filed a farmland assessment application for the woodland portion of the property. The assessor denied the application concluding agriculture was not the dominant use of the property; Alcatel filed a complaint with the Tax Court challenging the denial. The Tax Court dismissed the complaint holding it was precluded under Chapter 91 because Alcatel failed to respond to the assessor's Chapter 91 request.

The court rejected Alcatel's arguments that the Tax Court erred in: extending the application of the Chapter 91 preclusion penalty to its farmland assessment appeal; applying the Chapter 91 preclusion penalty to the woodland property because it is not income producing; and formulating a new rule that misinterprets our prior holding and undermines the legislative purpose of Chapter 91 and the Act. It also argued that technical deficiencies in the Township's Chapter 91 request bar preclusion of its claim.

The property was conveyed by Lucent Technologies, Inc. (Lucent) to LTI NJ Finance LLC (LTI), which simultaneously entered into a twenty-year agreement with Lucent, the sole member of LTI, pursuant to which Lucent was considered the "beneficial owner." Lucent merged with Alcatel, a French company, in 2006, to form Alcatel-Lucent USA Inc. The agreement between LTI and Lucent was terminated in 2013 and LTI was merged into Alcatel. The court was informed by Alcatel's merits brief that it is now known as "Nokia".

The court perceived no reason why Chapter 91's preclusion should not apply to Alcatel's farmland assessment complaint and affirmed Judge Joshua D.Novin's dismissal. The court recognized that the comprehensive statutory scheme requires tax assessors to assess every property at its full and fair value each year. Inasmuch as the Chapter 91 data is essential to the valuation of a split-use property, and, in turn, to the fulfillment of the assessor's statutory duties for the entire municipality, the court agreed with Judge Novin that the statute's preclusion provision should be applied to owners who fail to respond to the assessor's request.

ANASIA MAISON VS. NJ TRANSIT CORP., ET AL. (L-3535-14, ESSEX COUNTY AND STATEWIDE) (A-3737-17T2)

ANASIA MAISON VS. NJ TRANSIT CORP., ET AL. (L-3535-14, ESSEX COUNTY AND STATEWIDE) (A-3737-17T2)

A jury awarded plaintiff $1.8 million in damages against New Jersey Transit and its bus driver for injuries she sustained when an unidentified bus passenger struck plaintiff in the head with a thrown glass bottle. We affirm the trial court's determination to hold defendants to the common carrier standard of negligence but conclude the trial court misinterpreted applicable statutes when it denied defendants' request to include the bottle thrower on the verdict sheet.

We hold that joint tortfeasors are not required to apportion liability in cases involving a public entity. Instead, a jury should be permitted to apportion liability when a public employee or entity is determined to be a tortfeasor in a cause of action with one or more other tortfeasors.

We therefore affirm the liability verdict and award of damages but vacate the final judgment and remand for another jury to address the issue of allocation of fault between the bottle thrower and defendants.

IN THE MATTER OF CHANGES IN THE STATE CLASSIFICATION PLAN, COMMUNICATIONS OPERATOR, DEPARTMENT OF CORRECTIONS (NEW JERSEY CIVIL SERVICE COMMISSION) (A-5150-16T1)

IN THE MATTER OF CHANGES IN THE STATE CLASSIFICATION PLAN, COMMUNICATIONS OPERATOR, DEPARTMENT OF CORRECTIONS (NEW JERSEY CIVIL SERVICE COMMISSION) (A-5150-16T1)

The court held that the Chairperson of the Civil Service Commission was authorized to approve the creation of a new job title and did not act arbitrarily in approving the title at issue in this case.

CHARLES L. BOVE VS. AKPHARMA INC., ET AL. (L-0982-15, ATLANTIC COUNTY AND STATEWIDE) (A-2342-17T3)

CHARLES L. BOVE VS. AKPHARMA INC., ET AL. (L-0982-15, ATLANTIC COUNTY AND STATEWIDE) (A-2342-17T3)

In this appeal, the court considered whether an employee could seek damages from a former employer in a civil suit or was limited to recovery under the Workers Compensation Act (WCA) for injuries allegedly sustained from use of a nasal spray product developed by the employer. The court also examined whether frivolous litigation sanctions could be imposed, absent a finding the employee's attorneys acted in bad faith, particularly when the prevailing party's "safe harbor" letter failed to alert the employee's attorneys about the immunity.bar under the WCA and the prevailing party's initial motion for summary judgment was denied on all but one cause of action. The court affirmed the grant of summary judgment in the employer's favor, due to the employee's inability to demonstrate his employer had committed an "intentional wrong" under the two-prong test outlined in Millison v. E.I. du Pont de Nemours & Co.,101 N.J. 161, 178-79 (1985) and reversed the frivolous litigation sanction

ROBERT CAMERON, ETC. VS. SOUTH JERSEY PUBS, INC., D/B/A TGI FRIDAY'S, INC. (L-2106-14, BURLINGTON COUNTY AND STATEWIDE) (A-5177-17T2)

ROBERT CAMERON, ETC. VS. SOUTH JERSEY PUBS, INC., D/B/A TGI FRIDAY'S, INC. (L-2106-14, BURLINGTON COUNTY AND STATEWIDE) (A-5177-17T2)

this appeal, plaintiff's claims were similar to those considered by the New Jersey Supreme Court in Dugan v. TGI Fridays, Inc., 231 N.J. 24 (2017), as they related to defendant's sale of beverages from menus that did not include prices for the items sold. The court's majority determined that the Law Division improperly denied plaintiff's motion for class certification under Rule 4:32-1(b)(2). The majority concluded that the concerns raised by the Dugan Court about class certification under Rule 4:32-1(b)(3) of claims for damages under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210, and the Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18, did not apply to plaintiff's class action for injunctive relief under (b)(2) in this case.

According to the majority neither the Dugan's Court's concern about whether plaintiff could make a showing that members of the putative class sustained an ascertainable loss under the CFA, nor its trepidation that certifying a (b)(3) class exposed the Dugan defendant to a disproportional amount of civil penalties under the TCCWNA were considerations applicable to plaintiff's motion in this case. Here, the majority held that in determining whether cohesiveness existed among class members, the trial court should have considered whether the remedy sought would be applicable to all members or to none of them.

The dissenting opinion concludes that the trial court correctly denied the motion for class certification under Rule 4:32-1(b)(2). According to the dissent, certification of the class for the CFA claims was not warranted because plaintiff would be required to establish that all members of the class sustained a bona fide ascertainable loss, which is an essential element of a claim under the CFA. Such claims are not cohesive since they depend on the individual's experience in purchasing beverages at defendant's restaurants. The claims under the TCCWNA also lack cohesion because relief could only be awarded to members of the class are "aggrieved consumers," and such claims also are dependent upon the class members' personal experiences.

FRANK HOLTHAM, JR. VS. KATHERINE LUCAS (FM-02-1695-14, BERGEN COUNTY AND STATEWIDE) (A-3073-17T1)

FRANK HOLTHAM, JR. VS. KATHERINE LUCAS (FM-02-1695-14, BERGEN COUNTY AND STATEWIDE) (A-3073-17T1)

In this post-judgment matrimonial case, the trial court imposed a penalty on plaintiff, in accord with his matrimonial settlement agreement (MSA), for violating one of the MSA's terms. On appeal from the award, plaintiff invoked the contract law principle that bars, as an unenforceable penalty, liquidated damages that unreasonably exceed normally compensable contract damages. The court concludes that the contract rule against penalties does not apply with equal force to MSAs. The court emphasizes that family judges retain the authority to modify an MSA's penalty provision to assure fairness and equity. Since no modification was warranted under the facts of the case, the court affirms the penalty award.

F.K. VS. INTEGRITY HOUSE, INC., ET AL. (L-2239-16, ESSEX COUNTY AND STATEWIDE) (A-1862-18T1)

F.K. VS. INTEGRITY HOUSE, INC., ET AL. (L-2239-16, ESSEX COUNTY AND STATEWIDE) (A-1862-18T1)

Plaintiff F.K. appeals the trial court's December 11, 2018 order granting summary judgment to defendant Integrity House and dismissing her complaint with prejudice. The trial court determined that defendant was entitled to immunity from plaintiff's negligence action under New Jersey's Charitable Immunity Act ("the Act"), N.J.S.A. 2A:53A-7 to -11. On appeal, plaintiff contends that the amount of private contributions received by defendant, roughly $250,000 or 1.26% of annual revenue, is too insignificant to entitle defendant to charitable immunity.

"Charitable immunity is an affirmative defense, as to which, like all affirmative defenses, defendants bear the burden of persuasion." Abdallah v. Occupational Ctr. of Hudson Cty., Inc., 351 N.J. Super. 280, 288 (App. Div. 2002). The court concludes that defendant did not present sufficient evidence to support its entitlement to the affirmative defense of charitable immunity. The summary judgment record does not allow for a conclusive determination as to the source and use of Integrity House's funding. Therefore, the court is unable to determine whether Integrity House receives substantial funding from private contributions or relieves the government from a burden it would otherwise have to perform, as is required to be entitled to charitable immunity.

In addition, although a determination of the specific percentage of funding Integrity House receives from private contributions is not necessary for the court's analysis, the court notes that no published case has granted charitable immunity to a non-religious, non-educational entity with such a small portion of funding from private contributions.

Accordingly, the court reverses the trial court's grant of summary judgment.

DAVID F. CALABOTTA VS. PHIBRO ANIMAL HEALTH CORPORATION, ET AL. (L-1979-17, BERGEN COUNTY AND STATEWIDE) (A-1576-17T3)

DAVID F. CALABOTTA VS. PHIBRO ANIMAL HEALTH CORPORATION, ET AL. (L-1979-17, BERGEN COUNTY AND STATEWIDE) (A-1576-17T3)

This lawsuit is brought by an Illinois resident against his New Jersey-based former employer. Plaintiff alleges the company wrongfully denied him a promotion to a position in New Jersey and thereafter wrongfully terminated him from his job with its subsidiary in Illinois.

Plaintiff claims the company engaged in "associational" discrimination against him, in violation of the New Jersey Law Against Discrimination ("NJLAD"), based on the fact that his wife was then terminally ill with cancer. The company maintains it treated plaintiff fairly, and that it justifiably discharged him for engaging in inappropriate conduct at a trade show.

The trial court concluded that Illinois law, rather than the NJLAD, must apply to plaintiff's claims of discrimination because he lived in Illinois and worked for defendants' subsidiary in Illinois. Given that Illinois law has yet to recognize a cause of action for associational discrimination, the court granted defendants' motion to dismiss plaintiff's claims with prejudice.

On appeal in this case of first impression, this court holds that the NJLAD, notwithstanding the solitary reference to "inhabitants" in its preamble, can extend in appropriate circumstances to plaintiffs who reside or work outside of this state. However, whether the NJLAD applies to a particular nonresident plaintiff's claims turns upon a weighing of the multiple choice-of-law factors set forth in the Restatement (Second) of Conflicts of Laws (Am. Law Inst. 1971), as adopted and construed by the New Jersey Supreme Court.

The court concludes that New Jersey law (specifically the NJLAD's ban against associational discrimination) applies to defendants' alleged failure to give plaintiff fair consideration for a promotion to a position in New Jersey. The Second Restatement factors strongly weigh in favor of applying New Jersey law, not Illinois law, to this failure-to-promote claim. This court therefore reverses the trial court’s dismissal of that discrete claim and reinstate it.

As for plaintiff's wrongful discharge claim, this court vacates its dismissal and remands the choice-of-law issue pertaining to that claim to the trial court, to enable the further development of critical facts and analysis bearing on the Second Restatement factors.

L.R. v. Camden City Public School District (080333)(Camden, Morris, and Somerset Counties and Statewide) (A-61/62-17; 080333)

L.R. v. Camden City Public School District (080333)(Camden, Morris, and Somerset Counties and Statewide) (A-61/62-17; 080333)

The six members of the Court who participated in this matter agree upon the non-exclusive factors identified in the concurring opinion that govern a court’s determination when a requestor, not otherwise authorized by statute or regulation to have access to a given student record, seeks a court order mandating disclosure of that record pursuant to N.J.A.C. 6A:32-7.5(e)(15). An equally divided Court affirms the Appellate Division’s determination that a "student record" under N.J.A.C. 6A:32-2.1 retains its protected status under New Jersey law notwithstanding the school district’s redaction from that record of "personally identifiable information," as required by FERPA and its implementing regulations.

Sergeant First Class Frank Chiofalo v. State of New Jersey (081607)(Mercer County and Statewide) (A-30-18; 081607)

Sergeant First Class Frank Chiofalo v. State of New Jersey (081607)(Mercer County and Statewide) (A-30-18; 081607)

The Court does not agree that the trial court erred in refusing to grant defendants summary judgment on plaintiff’s CEPA claim related to the alleged refusal to destroy documents, but affirms as to the fraudulent timekeeping allegations.

In the Matter of Joseph Peter Barrett, an Attorney at Law (081035)(Statewide) (D-126-17

In the Matter of Joseph Peter Barrett, an Attorney at Law (081035)(Statewide) (D-126-17; 081035)

Because the Utah court limited the presentation of evidence of a business dispute between respondent and the law firm, and because evidence that may exist in Utah cannot be compelled by respondent here, the Court cannot conclude that the OAE has proven by clear and convincing evidence that respondent knowingly misappropriated law firm funds under circumstances justifying greater discipline than that imposed in Utah.

THE MATTER OF CHANGES IN THE STATE CLASSIFICATION PLAN, COMMUNICATIONS OPERATOR, DEPARTMENT OF CORRECTIONS (NEW JERSEY CIVIL SERVICE COMMISSION) (A-5150-16T1)

N THE MATTER OF CHANGES IN THE STATE CLASSIFICATION PLAN, COMMUNICATIONS OPERATOR, DEPARTMENT OF CORRECTIONS (NEW JERSEY CIVIL SERVICE COMMISSION) (A-5150-16T1)

The court held that the Chairperson of the Civil Service Commission was authorized to approve the creation of a new job title and did not act arbitrarily in approving the title at issue in this case.

CHARLES L. BOVE VS. AKPHARMA INC., ET AL. (L-0982-15, ATLANTIC COUNTY AND STATEWIDE) (A-2342-17T3)

CHARLES L. BOVE VS. AKPHARMA INC., ET AL. (L-0982-15, ATLANTIC COUNTY AND STATEWIDE) (A-2342-17T3)

In this appeal, the court considered whether an employee could seek damages from a former employer in a civil suit or was limited to recovery under the Workers Compensation Act (WCA) for injuries allegedly sustained from use of a nasal spray product developed by the employer. The court also examined whether frivolous litigation sanctions could be imposed, absent a finding the employee's attorneys acted in bad faith, particularly when the prevailing party's "safe harbor" letter failed to alert the employee's attorneys about the immunity.bar under the WCA and the prevailing party's initial motion for summary judgment was denied on all but one cause of action. The court affirmed the grant of summary judgment in the employer's favor, due to the employee's inability to demonstrate his employer had committed an "intentional wrong" under the two-prong test outlined in Millison v. E.I. du Pont de Nemours & Co.,101 N.J. 161, 178-79 (1985) and reversed the frivolous litigation sanction

ROBERT CAMERON, ETC. VS. SOUTH JERSEY PUBS, INC., D/B/A TGI FRIDAY'S, INC. (L-2106-14, BURLINGTON COUNTY AND STATEWIDE) (A-5177-17T2)

ROBERT CAMERON, ETC. VS. SOUTH JERSEY PUBS, INC., D/B/A TGI FRIDAY'S, INC. (L-2106-14, BURLINGTON COUNTY AND STATEWIDE) (A-5177-17T2)

this appeal, plaintiff's claims were similar to those considered by the New Jersey Supreme Court in Dugan v. TGI Fridays, Inc., 231 N.J. 24 (2017), as they related to defendant's sale of beverages from menus that did not include prices for the items sold. The court's majority determined that the Law Division improperly denied plaintiff's motion for class certification under Rule 4:32-1(b)(2). The majority concluded that the concerns raised by the Dugan Court about class certification under Rule 4:32-1(b)(3) of claims for damages under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210, and the Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18, did not apply to plaintiff's class action for injunctive relief under (b)(2) in this case.

According to the majority neither the Dugan's Court's concern about whether plaintiff could make a showing that members of the putative class sustained an ascertainable loss under the CFA, nor its trepidation that certifying a (b)(3) class exposed the Dugan defendant to a disproportional amount of civil penalties under the TCCWNA were considerations applicable to plaintiff's motion in this case. Here, the majority held that in determining whether cohesiveness existed among class members, the trial court should have considered whether the remedy sought would be applicable to all members or to none of them.

The dissenting opinion concludes that the trial court correctly denied the motion for class certification under Rule 4:32-1(b)(2). According to the dissent, certification of the class for the CFA claims was not warranted because plaintiff would be required to establish that all members of the class sustained a bona fide ascertainable loss, which is an essential element of a claim under the CFA. Such claims are not cohesive since they depend on the individual's experience in purchasing beverages at defendant's restaurants. The claims under the TCCWNA also lack cohesion because relief could only be awarded to members of the class are "aggrieved consumers," and such claims also are dependent upon the class members' personal experiences.

FRANK HOLTHAM, JR. VS. KATHERINE LUCAS (FM-02-1695-14, BERGEN COUNTY AND STATEWIDE) (A-3073-17T1)

FRANK HOLTHAM, JR. VS. KATHERINE LUCAS (FM-02-1695-14, BERGEN COUNTY AND STATEWIDE) (A-3073-17T1)

In this post-judgment matrimonial case, the trial court imposed a penalty on plaintiff, in accord with his matrimonial settlement agreement (MSA), for violating one of the MSA's terms. On appeal from the award, plaintiff invoked the contract law principle that bars, as an unenforceable penalty, liquidated damages that unreasonably exceed normally compensable contract damages. The court concludes that the contract rule against penalties does not apply with equal force to MSAs. The court emphasizes that family judges retain the authority to modify an MSA's penalty provision to assure fairness and equity. Since no modification was warranted under the facts of the case, the court affirms the penalty award.

F.K. VS. INTEGRITY HOUSE, INC., ET AL. (L-2239-16, ESSEX COUNTY AND STATEWIDE) (A-1862-18T1)

F.K. VS. INTEGRITY HOUSE, INC., ET AL. (L-2239-16, ESSEX COUNTY AND STATEWIDE) (A-1862-18T1)

Plaintiff F.K. appeals the trial court's December 11, 2018 order granting summary judgment to defendant Integrity House and dismissing her complaint with prejudice. The trial court determined that defendant was entitled to immunity from plaintiff's negligence action under New Jersey's Charitable Immunity Act ("the Act"), N.J.S.A. 2A:53A-7 to -11. On appeal, plaintiff contends that the amount of private contributions received by defendant, roughly $250,000 or 1.26% of annual revenue, is too insignificant to entitle defendant to charitable immunity.

"Charitable immunity is an affirmative defense, as to which, like all affirmative defenses, defendants bear the burden of persuasion." Abdallah v. Occupational Ctr. of Hudson Cty., Inc., 351 N.J. Super. 280, 288 (App. Div. 2002). The court concludes that defendant did not present sufficient evidence to support its entitlement to the affirmative defense of charitable immunity. The summary judgment record does not allow for a conclusive determination as to the source and use of Integrity House's funding. Therefore, the court is unable to determine whether Integrity House receives substantial funding from private contributions or relieves the government from a burden it would otherwise have to perform, as is required to be entitled to charitable immunity.

In addition, although a determination of the specific percentage of funding Integrity House receives from private contributions is not necessary for the court's analysis, the court notes that no published case has granted charitable immunity to a non-religious, non-educational entity with such a small portion of funding from private contributions.

Accordingly, the court reverses the trial court's grant of summary judgment.

G.A.-H. v. K.G.G.(081545)(Ocean County and Statewide) (A-25/26-18; 081545)

G.A.-H. v. K.G.G.(081545)(Ocean County and Statewide) (A-25/26-18; 081545)

No reasonable trier of fact could find that Arthur knew or had special reason to know that Kenneth was engaged in a sexual relationship with a minor. Accordingly, Arthur had no duty to report Kenneth. The record similarly fails to provide a basis for liability to attach to GEM. Because the record here is determinative of Arthur’s and GEM’s liability, the Court need not decide whether a co-worker or employer with knowledge or a special reason to know that a co-worker or employee is engaged in a sexual relationship with a minor has a legal duty to report that co-worker or employee.

S.L.W. v. New Jersey Division of Pensions and Benefits (081723) (Statewide) (A-32-18; 081723)

S.L.W. v. New Jersey Division of Pensions and Benefits (081723) (Statewide) (A-32-18; 081723)

Upon review of the PFRS statute’s plain language and history, the Court finds that the Legislature did not intend for children of PFRS members to meet a dependency requirement to receive survivor benefits. The Court’s finding is consistent with the PFRS’s underlying policy goal of financially protecting the family members of deceased PFRS members.