IN THE MATTER OF THOMAS ORBAN/SQUARE PROPERTIES, LLC, FRESHWATER WETLANDS GENERAL PERMIT 6 NO. 1XXX-XX-0003.1 FWW070001, CHALLENGED BY SAVE HAMILTON OPEN SPACE (DEPARTMENT OF ENVIRONMENTAL PROTECTION) (A-3072-16T2)

IN THE MATTER OF THOMAS ORBAN/SQUARE PROPERTIES, LLC, FRESHWATER WETLANDS GENERAL PERMIT 6 NO. 1XXX-XX-0003.1 FWW070001, CHALLENGED BY SAVE HAMILTON OPEN SPACE (DEPARTMENT OF ENVIRONMENTAL PROTECTION) (A-3072-16T2)

Save Hamilton Open Space, a local citizens group, challenged the Department of Environmental Protection's issuance of a freshwater wetlands general permit 6 to Thomas Orban/Square Properties, LLC in connection with the construction of a shopping center in Hamilton Township

The court affirms the Commissioner's decision that SHOS is not entitled to an adjudicatory hearing. Because the court is unable, however, to discern where the agency has explained why Square Properties' use of the GSR-32 methodology to calculate recharge is consonant with the Department's regulations, which appear to expressly prohibit its use in these circumstances, it vacates the GP6 permit and remands for further fact-finding. In light of this disposition, the court does not address SHOS's argument that the agency needed to proceed through rulemaking.

STATE OF NEW JERSEY VS. TEOSHIE WILLIAMS (14-09-0992, MIDDLESEX COUNTY AND STATEWIDE) (A-3944-16T2)

STATE OF NEW JERSEY VS. TEOSHIE WILLIAMS (14-09-0992, MIDDLESEX COUNTY AND STATEWIDE) (A-3944-16T2)

In this appeal, the court addressed whether police officers must inform the occupant of a residence that he or she has the right to refuse the officers' request to enter the residence. The court determined that while officers are required to inform the occupant of the right to refuse to consent to a search of the premises, a similar requirement does not apply to requests to simply enter the residence. Finding that the initial entry into defendant's apartment based on her consent to enter was permissible, the court affirmed the trial court's denial of defendant's motion to suppress evidence seized in a subsequent consent search of the apartment following a lawful protective sweep.

SCOTT ROGOW (DECEASED) V. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (A-1346-17T2)

SCOTT ROGOW (DECEASED) V. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (A-1346-17T2)

Scott Rogow was a firefighter with the City of Paterson who retired on an accidental disability retirement allowance under N.J.S.A. 43:16A-7 and received his monthly accidental disability retirement allowance until his death approximately six years later. Approximately four years after his death, Rogow's widow, who had already received her survivor accidental disability benefits under N.J.S.A. 43:16A-7(3), filed a request with the Board to amend Rogow's pension status so that she could receive the enhanced survivor accidental death benefits under N.J.S.A. 43:16A-10.

N.J.S.A. 43:16A-10(1) provides for payment of survivor accidental death benefits "[u]pon the death of a member in active service as a result of . . . an accident met in the actual performance of duty at some definite time and place[.]" The court held that a PFRS member who is retired and receiving a retirement allowance from the PFRS at the time of his death is not a "member in service" and thus is not entitled to accidental death benefits under N.J.S.A. 43:16A-10.

MERRILL CREEK RESERVOIR C/O PROJECT DIRECT VS. HARMONY TOWNSHIP (TAX COURT OF NEW JERSEY) (CONSOLIDATED) (A-1498-16T3/A

MERRILL CREEK RESERVOIR C/O PROJECT DIRECT VS. HARMONY TOWNSHIP (TAX COURT OF NEW JERSEY) (CONSOLIDATED) (A-1498-16T3/A-1500-16T3/A-1509-16T3)

Plaintiff Merrill Creek Reservoir c/o Project Direct, a consortium of electric utility companies and owner of the Merrill Creek Reservoir in Harmony Township, challenges three 2016 Tax Court judgments affirming the 2011-2013 tax assessments on its property. Harmony cross-appeals alleging error in adjustments the Tax Court made to value. Merrill Creek concedes the improvements should be valued using the cost approach the Tax Court employed but argues the Tax Court erred in accepting the Township's trend analysis, which it characterized as "a rarely used valuation methodology, discredited by New Jersey Tax Court precedent," instead of its own quantity survey method. Finding no error in the court's acceptance of a trend analysis in this case or its adjustments to value based on the evidence adduced at trial, we affirm the opinion of the Tax Court whose opinion is reported at 29 N.J. Tax 487 (Tax 2016).

MOSHE ROZENBLIT, ET AL. VS. MARCIA V. LYLES, ET AL. (C-000002-17, HUDSON COUNTY AND STATEWIDE) (A-1611-17T1)

MOSHE ROZENBLIT, ET AL. VS. MARCIA V. LYLES, ET AL. (C-000002-17, HUDSON COUNTY AND STATEWIDE) (A-1611-17T1)

This appeal challenges the legality of a section in the collective bargaining agreement (CBA) entered into between the Jersey City Board of Education and the Jersey City Education Association, Inc., which requires the Board to pay the salaries and benefits of two teachers who were selected by the members of the union to serve as "president and his/her designee," during the three-year term of the CBA, and to allow them to devote all of their work-time to the business and affairs of the union.

The Chancery Division, General Equity Part found this contractual arrangement did not violate Article VIII, § 3, ¶ 3 of the New Jersey Constitution, commonly referred to as the "gift clause." The court found the Board was authorized to enter into this arrangement with the union under N.J.S.A. 18A:30-7, which permits the payment of salary in cases of absence not constituting sick leave.

This court adheres to jurisprudential principles established by our Supreme Court and declines to reach the constitutional question raised by plaintiffs in this case because there are sufficient statutory grounds to definitively decide this appeal. In re Plan for the Abolition of the Council on Affordable Hous., 214 N.J. 444, 461 (2013). This court holds that in adopting N.J.S.A. 18A:30-7, the Legislature did not expressly or implicitly intend to authorize boards of education to enter into this type of contractual arrangement. The disbursement of public funds pursuant to this contractual arrangement was an ultra vires act by the Board.

DCPP V. K.G., IN THE MATTER OF M.G. AND J.C.W., MINORS (FG-19-0024-16, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1556-17T2)

DCPP V. K.G., IN THE MATTER OF M.G. AND J.C.W., MINORS (FG-19-0024-16, SUSSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1556-17T2)

This appeal involves the trial court's denial of defendant's request to have the same counsel represent him in Title Nine abuse and neglect proceedings and a criminal matter arising from the same allegations of sexual abuse of a child. In N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593 (App. Div. 2010), we held that simultaneous representation is permissible where the trial court is able to implement measures sufficient to protect the confidentiality of DCPP records disclosed during the Title Nine proceedings. We directed courts to undertake a case-by-case analysis when deciding requests for simultaneous representation.

The panel held that the trial court failed to undertake the analysis required by N.S. and summarily denied defendant's request for simultaneous representation. In addition, the panel clarified that N.S. applies to both Title Nine dispositional hearings and Title Nine fact finding hearings. Finally, the panel held that the denial of defendant's choice of counsel was a structural error requiring reversal of the abuse and neglect finding reached after a hearing at which defendant was represented by counsel that was not his choice.

OPEX REALTY MANAGEMENT, LLC V. ROBERT TAYLOR AND MILDRED TAYLOR (LT-034082-18)

OPEX REALTY MANAGEMENT, LLC V. ROBERT TAYLOR AND MILDRED TAYLOR (LT-034082-18)

In this landlord-tenant case, the court was charged with deciding whether the City of Newark’s rent control ordinance prohibited the assessment of “additional rent,” for purposes of a summary dispossess action, if the total amount assessed, including this contractually provided for “additional rent,” exceeded the maximum rent permitted by the ordinance. The court answered the question in the affirmative.

This was an action seeking eviction for non-payment of rent. The tenant brought a motion arguing that the local rent control ordinance prohibited the incorporation of additional rent of the kind that was at issue in a summary dispossess action. The tenant argued that the ordinance established a maximum rent cap and any rent that exceeded that amount could not form a basis for eviction. The tenant further argued that regardless of whether defined as “additional rent,” fees should be considered in the ordinance’s definition of “rent” and thus capped thereby. The landlord countered that assessing the additional rent was not contrary to the subject ordinance and the lease expressly provided for such assessment. The landlord further argued that the fees sought are such a common form of additional rent that the local ordinance’s failure to specifically exclude it in the definition should be understood to be mean that the ordinance does not prohibit it.

The court held that the landlord was not entitled to evict the tenant based upon the failure to pay the “additional rent,” notwithstanding that the lease memorialized that legal and late fees were collectible as “additional rent.” The court found that the total amount of rent that could be assessed and thus put at issue in a summary dispossess case was limited by the local ordinance. The court established that the assessment of “additional rent” is still the imposition of rent, and because the ordinance governs all rent without exception, the rent could not exceed the municipal ordinance rate cap. Accordingly, the landlord was disallowed from seeking any rents in excess of the maximum rent permitted by the ordinance in a summary dispossess action. The landlord’s contractual remedy was preserved.

E.S. v. C.D. (FV-02-1094-19)

E.S. v. C.D. (FV-02-1094-19)

This case is a domestic violence action in which plaintiff had employed defendant as a nanny. The issue is whether plaintiff is a party entitled to protection under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, given the economic relationship of the parties. It is held that under the circumstances, plaintiff is a party entitled to such protection.

RACETRACK SUPERMARKET, LLC. V. THE MAYOR AND TOWNSHIP COUNCIL OF CHERRY HILL (L-003400-16)

RACETRACK SUPERMARKET, LLC. V. THE MAYOR AND TOWNSHIP COUNCIL OF CHERRY HILL (L-003400-16)

Plaintiffs sought recusal of assigned trial judge based upon alleged violation of "objectively reasonable" standard of impropriety set forth in DeNike v. Cupo, 196 N.J. 502 (2008) based on the alleged personal animus of the judge against plaintiffs’ counsel. Before becoming a member of the judiciary, the judge had been a candidate for local office in his town approximately 14 years prior. Plaintiffs’ counsel was a member of the opposite party and also resided in the same town and was politically active. Plaintiffs’ counsel alleged that anonymous and other sources had indicated the judge held him responsible for campaign materials which called into question the judge’s character and fitness for office during the campaign in 2004. Plaintiffs’ counsel alleged the judge, when he was county chairman, took action to thwart his renomination to a state commission in 2013 four years before joining the judiciary, which was alleged to evidence the judge’s personal animus. Additionally, the judge had also served as county chairman of his political party for the 6 years prior to joining the judiciary. During this time, the son of the principal member of plaintiff LLC was an elected official in the judge’s home town and a member of the judge’s opposite party during which time the judge, as county chairman, had supported the members of his own party over the principal member’s son.

The court held that, under the DeNike standard, a reasonable, fully-informed person would not have doubts about the judge’s impartiality under the circumstances in this matter. The court considered the lack of a prospective financial benefit to the judge, the remoteness in time of the alleged statements by the judge to the present matter, the lack of evidence of a continuous personal animus, the professional dealings between Plaintiff’s counsel and the judge when he was a practicing attorney, and the fact that Plaintiffs’ counsel’s firm, of which Plaintiffs’ counsel was a named partner, had previously appeared before the judge without objection or incident, all weighed against recusal under the standard. The court also found political motive is not objective evidence of personal animus. The motion to recuse was denied.

JODI SHAW, ET AL. VS. BRIAN SHAND, ET AL. (L-0408-16, SUSSEX COUNTY AND STATEWIDE) (A-5686-17T1)

JODI SHAW, ET AL. VS. BRIAN SHAND, ET AL. (L-0408-16, SUSSEX COUNTY AND STATEWIDE) (A-5686-17T1)

In this interlocutory appeal, the court considers whether a licensed home inspector home inspector is a "learned professional" and therefore excluded from liability under Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -210.

Considering the CFA's remedial purpose and applying well-established canons of statutory construction, the court concludes that the judicially created learned professional exception must be narrowly construed to exempt liability only as to those professionals who have historically been recognized as "learned" based on the requirement of extensive learning or erudition. To the extent this court's prior decisions, including Plemmons v. Blue Chip Insurance Services, Inc., 387 N.J. Super. 551 (App. Div. 2006), have applied the learned professional exception to "semi-professionals" who are regulated by a separate regulatory scheme, we are constrained to depart from that reasoning as inconsistent with the Supreme Court's decision in Lemelledo v. Beneficial Management Corp. of America, 150 N.J. 255 (1997). As the Court explicitly held in Lemelledo, the existence of a separate regulatory scheme will "overcome the presumption that the CFA applies to a covered activity" only when "a direct and unavoidable conflict exists between application of the CFA and application of the other regulatory scheme or schemes." 150 N.J. at 270. The court's decision today comports with the amicus curiae Attorney General's persuasive interpretation of the CFA and addresses the Attorney General's policy concern that an expansive interpretation of the learned professional exception unduly curtails the authority of the Attorney General and the Division of Consumer Affairs to protect New Jersey consumers and limits the redress available to private litigants.

Accordingly, because home inspectors are not historically recognized learned professionals and because no direct and unavoidable conflict exists between the CFA and the regulations governing home inspectors, the court concludes that the CFA applies to the activities of licensed home inspectors and reverses the trial court's summary judgment dismissal of the CFA claim against defendants.

Judge Sabatino filed a concurring opinion.

KEVIN HARVARD V. STATE OF NEW JERSEY JUDICIARY, ATLANTIC-CAPE MAY VICINAGE (A-5091-15T1)

KEVIN HARVARD V. STATE OF NEW JERSEY JUDICIARY, ATLANTIC-CAPE MAY VICINAGE (A-5091-15T1)

This case stemmed from the termination of the appointment of a Special Civil Part Officer (SCPO) following the discovery of numerous violations of AOC directives. The SCPO filed a Law Division complaint against the State, the Judiciary, and the Atlantic/Cape May vicinage alleging violations of CEPA and related claims. We affirm the summary judgment dismissal of plaintiffs' claims since plaintiff was not a Vicinage employee for CEPA purposes and plaintiff failed to establish a whistle-blower claim under CEPA. This opinion was originally issued in January 2018 as an unpublished opinion. We now publish this opinion, following a request from the Committee of the Special Civil Part Supervising Judges, which submitted "that the publication of this opinion will provide important precedent to our records, practitioners and the public with regard to [SCPOs] and their status as independent contractors."

MONMOUTH MEDICAL CENTER VS. STATE FARM INDEMNITY COMPANY SAINT BARNABAS MEDICAL CENTER VS. STATE FARM INDEMNITY COMPANY (L-2482-17 AND L-0126-18, MORRIS COUNTY AND STATEWIDE) (CONSOLIDATED) (A-3004-17T1/A-4208-17T1)

MONMOUTH MEDICAL CENTER VS. STATE FARM INDEMNITY COMPANY SAINT BARNABAS MEDICAL CENTER VS. STATE FARM INDEMNITY COMPANY (L-2482-17 AND L-0126-18, MORRIS COUNTY AND STATEWIDE) (CONSOLIDATED) (A-3004-17T1/A-4208-17T1)

In these back-to-back appeals, State Farm Indemnity Company (State Farm) appeals from two trial court orders that vacated awards entered by dispute resolution professionals (DRP) pursuant to the Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30, in connection with payment for out-patient hospital services provided to two claimants involved in separate automobile accidents. In each appeal, the trial court entered a modified judgment against State Farm, finding that the DRP committed prejudicial error. The court determined that the trial court properly exercised the authority granted to it under the APDRA, adhered to the statutory grounds in vacating the DRPs' awards, and provided rational explanations of how the respective DRPs committed prejudicial error within the meaning of N.J.S.A. 2A:23A-13(c)(5). Because there was no principled reason for the exercise of the court's supervisory jurisdiction, or any unusual circumstances where public policy required the court's intervention, the court adhered to the strictures of N.J.S.A.2A:23A-18(b), barring further appeals or reviews of trial court judgments, and dismissed the appeals.

SUSAN LUCAS VS. 1 ON 1 TITLE AGENCY, INC., ET AL. SUSAN LUCAS VS. NEW JERSEY DEPARTMENT OF TRANSPORTATION, ET AL. (L-3144-13 AND L-0701-14, OCEAN COUNTY AND STATEWIDE) (A-2217-16T2)

SUSAN LUCAS VS. 1 ON 1 TITLE AGENCY, INC., ET AL. SUSAN LUCAS VS. NEW JERSEY DEPARTMENT OF TRANSPORTATION, ET AL. (L-3144-13 AND L-0701-14, OCEAN COUNTY AND STATEWIDE) (A-2217-16T2)

Appellant is a law firm who successfully represented plaintiff in the prosecution of a legal malpractice action. Appellant sought counsel fees from plaintiff that exceeded the amount of consequential damages proximately caused by the attorney/tortfeasor. Saffer v. Willoughby, 143 N.J. 256, 272 (1996). When plaintiff and appellant were unable to agree, the trial judge who presided over the legal malpractice action sua sponte decided to adjudicate the fee dispute over appellant's objection. This court reverses and holds the trial judge did not have subject matter jurisdiction to adjudicate this counsel fee dispute. Appellant was not a party in the case, had not filed a collection action against plaintiff, nor sought relief under N.J.S.A. 2A:13-5, commonly known as the Attorney's Lien Act.

NOEMI ESCOBAR VS. DAVID A. MAZIE, ET AL. (L-8329-17, ESSEX COUNTY AND STATEWIDE) (A-2509-18T1)

NOEMI ESCOBAR VS. DAVID A. MAZIE, ET AL. (L-8329-17, ESSEX COUNTY AND STATEWIDE) (A-2509-18T1)

The court reverses an order entered under RPC 3.7 barring a lawyer and every lawyer in his firm, save one, from representing themselves at deposition and trial in defense of a malpractice action brought against them by a former client. The court follows established federal authority in this circuit holding RPC 3.7 is a rule addressed only to a lawyer acting as an advocate at trial. Thus there is no ethical prohibition against a lawyer acting as an advocate in a deposition in a case in which the lawyer is likely to be a necessary witness at trial.

The court further holds that RPC 3.7 does not apply to a lawyer who is a party in the case. As lawyers have the same rights as other individuals appearing in our courts, they may appear in their own behalf at trial even if likely to be a necessary witness. Law firms, likewise, are to be treated as other entities, and thus must appear through counsel to the same extent. RPC 3.7 is fully applicable to lawyers appearing on the firm's behalf, even if the lawyer is employed by the firm. Imputed disqualification is limited as set forth in RPC 3.7.

J.H. and A.R. v. R & M Tagliareni, LLC (081128)(Hudson County and Statewide) (A-6-18;

J.H. and A.R. v. R & M Tagliareni, LLC (081128)(Hudson County and Statewide) (A-6-18; 081128)

The Court is unpersuaded that N.J.A.C. 5:10-14.3(d) imposes any regulatory duty on landlords to cover in-unit radiators with insulating material or a cover. The regulatory scheme provides no evidence of an express or implied intent to include radiators as part of the “heating system” required to be insulated. Having concluded that no such regulatory duty has been imposed, and because the tenants in this case maintained exclusive control over the heat emanating from the radiator, the Court declines to impose on landlords a new common law duty to cover all in-unit radiators.

US Masters Residential Property (USA) Fund v. New Jersey Department of Environmental Protection (081137)(Statewide) (A-78-17; 080562)

US Masters Residential Property (USA) Fund v. New Jersey Department of Environmental Protection (081137)(Statewide) (A-78-17; 080562)

Flaws in the substantive reasoning of the arbitration decision as well as procedural fairness considerations undermine confidence in the outcome of this arbitration enough to persuade the Court, in the interest of fairness, to require that a new arbitration be conducted.