Grant W. Morgan v. Raymours Furniture Company, Inc. ( 2016 )

DATE NAME OF CASE (DOCKET NUMBER)
01/07/16 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.
12/30/15 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.
12/30/15 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.
12/29/15 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
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.
12/28/15 STATE OF NEW JERSEY VS. MWANZA FITZPATRICK/
STATE OF NEW JERSEY VS. KEEYAN BRISTER
A-2477-14T3/ A-2478-14T3
These consolidated appeals present a question of first
impression of what is the time within which the State can appeal
the denial of a drug offender restraining order sought in
connection with a sentence. At sentencing, the State requested
drug offender restraining orders in accordance with N.J.S.A.
2C:35-5.7(h). The sentencing court denied those applications
and the State appealed. We hold that the governing statute,
N.J.S.A. 2C:35-5.7(k), requires such appeals to be filed within
ten days of the date of sentencing. Because the State failed to
file its notices of appeal in these matters within the ten-day
period, we dismiss both appeals for lack of jurisdiction.
12/22/15 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.
12/21/15 STATE OF NEW JERSEY VS. DAVID HUDSON
A-2943-14T4
In this interlocutory matter, we review an order
disqualifying counsel and his firm from representing defendant,
a former Newark police officer. The State moves for
disqualification alleging an actual conflict of interest
resulted because one of the ten Newark police officers
identified by the State as possible witnesses was counsel's
former client. Additionally, the State alleges counsel had a
current conflict based on an appearance of impropriety as he was
an attorney for the Newark Fraternal Order of Police lodge, in
which the Newark police officers are members.
We reverse the order and remand for further proceedings,
concluding the record did not support the finding or existence
of an actual conflict of interest. Further, the trial judge
erred in grounding his determination of a potential conflict on
the appearance of impropriety. We hold the appearance of
impropriety standard may not be used as a basis to find a
conflict of interest under RPC 1.7 or 1.9. In re Supreme Court
Advisory Comm. on Prof'l Ethics Op. No. 697, 188 N.J. 549, 563
n.5, 568 (2006).
12/18/15 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.
12/17/15 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.
12/15/15 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.
12/15/15 STATE OF NEW JERSEY VS. RODNEY J. MILES
A-2692-12T1
The defendant was arrested during an undercover drug
operation. Defendant was charged on a warrant with possession
of a CDS with intent to distribute on or near school property.
Defendant was also charged on a summons with a disorderly
persons offense of possession of marijuana.
After defendant was indicted, he appeared pro se in
municipal court via video conference after being incarcerated
for a family matter. The disorderly persons drug offense, which
was not joined with the indictable offense, was pending.
Without the presence or participation of the State, but in
accord with the existing "practice," the judge amended the
offense to loitering and then took a plea from defendant.
Predicated upon his plea, defendant sought to bar the
prosecution of the indictable charge.
The court held that the subsequent prosecution and
conviction on the indictable charge was barred under the "same
evidence" test which is still recognized under state
constitutional principles. The court reasoned that the
"fundamental fairness" doctrine did not apply, notwithstanding
the State's failure to join the disorderly offense with the
indictable charges and defendant's reasonable expectation that
his plea to the disorderly offense charge resolved all charges
which arose out of his arrest.
12/11/15 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.
12/08/15 IN THE MATTER OF BOARD OF FIRE COMMISSIONERS, FIRE
DISTRICT NO. 1, MONROE TOWNSHIP AND MONROE TOWNSHIP
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.
12/03/15 STATE OF NEW JERSEY VS. WALTER A. TORMASI
A-3830-13T4
Defendant, convicted of his mother's 1996 murder, filed in
2011 a post-conviction relief petition based on an incomplete
affidavit purporting to contain his father's acknowledgement
that he, not defendant, was responsible for the murder; this
thirty-eight-page document was discovered by defendant's brother
shortly after the father's death in 2010. The PCR judge
conducted a testimonial hearing limited solely to the
admissibility of the document; defendant's siblings testified
they had seen the complete document, with a signed and notarized
thirty-ninth page years earlier. The PCR judge concluded —
without opining on the siblings' credibility — that the document
was inadmissible because it was neither handwritten, signed, nor
capable of being authenticated. The court reversed, holding
that, even though incomplete, the document was admissible
pursuant to N.J.R.E. 803(c)(25) and capable of being
authenticated pursuant to N.J.R.E. 901. The court remanded for
consideration of the witnesses' credibility and the other
factors relevant to claims of newly-discovered evidence.
11/25/15 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.
11/25/15 STATE OF NEW JERSEY V. JEAN A. SENE
A-2256-13T1
The question of first impression presented on this appeal
is whether contact between defendant's vehicle and a victim is a
necessary element of leaving the scene of an accident in
violation of N.J.S.A. 2C:11-5.1. Defendant was driving a taxi
when a pedestrian stepped into his lane of traffic. The
pedestrian fell into the adjoining lane of traffic and was
killed when she was run over by another vehicle. Defendant did
not stop his taxi at the scene and left without speaking to
anyone. A jury convicted him of leaving the scene of a fatal
motor vehicle accident under N.J.S.A. 2C:11-5.1. On appeal,
defendant contends that a necessary element to the crime is
contact between his vehicle and the victim. We disagree and
hold that such contact is not an element of this crime. We also
hold that N.J.S.A. 2C:11-5.1 is not unconstitutionally vague.
We, therefore, affirm defendant's second-degree criminal
conviction.
Because the sentencing judge did not correctly identify the
aggravating and mitigating factors, we remand for resentencing.
We also vacate a $5000 restitution award and remand for a
hearing in accordance with N.J.S.A. 2C:44-2(b), (c).
11/24/15 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.
11/19/15 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
father's work on cars was not sufficiently frequent, regular,
and proximate to withstand the automotive defendants' motions
for summary judgment.
11/18/15 STATE OF NEW JERSEY IN THE INTEREST OF C.L.H.'S
WEAPONS
A-0072-14T2
The State appeals from a final order of the Family Part
denying its motion to have C.L.H. forfeit five illegal assault
rifles, among other weapons, and his firearms purchaser
identification card seized pursuant to the Prevention of
Domestic Violence Act of 1991.
Following the entry of a temporary restraining order
against C.L.H.'s wife arising out of a domestic violence
complaint brought by her eighty-one-year-old father, the police
seized the weapons from the couple's home pursuant to N.J.S.A.
2C:25-28j. While the forfeiture action was pending, C.L.H.
advised the prosecutor he was transferring the confiscated
weapons to a licensed firearms dealer pursuant to the 2013 gun
amnesty law. The Family Part determined that because C.L.H. was
not a defendant in the domestic violence case, and the guns were
seized solely because of a restraining order against C.L.H.'s
wife, not allowing him to take advantage of the gun amnesty law
was "not equitable."
The panel reversed, concluding the court erred in
determining the gun amnesty law applied because the weapons were
in the possession of the prosecutor on the law's effective date.
Instead it held that because the five assault firearms were
seized pursuant to the Prevention of Domestic Violence Act and
cannot be returned to C.L.H. under the Domestic Violence
Forfeiture Statute as they are contraband under N.J.S.A. 2C:64-
1a(1), C.L.H. is expressly disqualified from obtaining a handgun
purchase permit or firearms purchaser identification card under
the Gun Control Law, N.J.S.A. 2C:58-3c(8), and thus from
regaining possession of his remaining firearms and his firearms
purchaser identification card held by the prosecutor.
11/18/15 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
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).
11/13/15 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.
11/12/15 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.
11/09/15 LISA IPPOLITO VS. TOBIA IPPOLITO
A-4840-13T1
In this matrimonial action, the family judge instituted a
contempt proceeding, pursuant to Rule 1:10-2, against defendant
upon the judge's receipt of a letter from plaintiff's counsel
claiming that defendant violated an order which prohibited
defendant from "threatening or intimidating any expert in this
matter." Because the judge presided over the very contempt
proceeding he initiated, failed to appoint counsel to prosecute
the matter, and shifted the burden of persuasion to defendant,
the court vacated the order under review and remanded the
contempt proceeding to the assignment judge to designate another
judge to preside over the contempt proceeding.
11/06/15 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.
11/05/15 MICHAEL CONLEY, JR. AND KATIE M. MAURER VS. MONA
GUERRERO, BRIAN KRAMINITZ, AND MICHELE TANZI
A-3796-13T2
We affirm the trial court's determination that a
residential seller effectively terminated her sale agreement
with plaintiffs during the agreement's three-day attorney review
period, mandated by New Jersey State Bar Association v. New
Jersey Association of Realtor Boards, 93 N.J. 470 (1983), mod.,
94 N.J. 449 (1983). The agreement requires notice of
disapproval by certified mail, telegram or personal delivery to
the realtors; no delivery method is prescribed for notice to
parties. The seller's attorney sent the disapproval letter by
facsimile and email to the buyer's attorney and by email to the
realtor, a dual agent. It was undisputed that the realtor, the
buyer's attorney, and the buyers received actual notice of the
disapproval. The realtor did not complain about the method of
delivery. We conclude that, even assuming the buyers could
enforce the realtor's right to notice by the prescribed delivery
methods, substantial compliance sufficed, since the buyer did
not dispute actual notice and enforcement of the method-of-
delivery requirement would result in a disproportionate
forfeiture of the seller's right to disapprove the contract.
11/02/15 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.
10/30/15 STATE OF NEW JERSEY VS. RICKY ZUBER
A-4169-11T2
The United States Supreme Court has held that the Eighth
Amendment forbids the sentence of life without parole for a
juvenile offender who did not commit homicide. Graham v.
Florida, 560 U.S. 48, 74, 130 S. Ct. 2011, 2030, 176 L. Ed. 2d
825, 845 (2010). We hold that Graham applies retroactively.
Assuming Graham can be extended to aggregate term-of-years
sentences imposed consecutively for separate criminal episodes,
defendant's aggregate sentence of fifty-five years before parole
eligibility is not the "functional equivalent" of life without
parole. His sentence gives him a meaningful and realistic
opportunity for parole well within the predicted lifespan for a
person of defendant's age.
This predicted lifespan should be determined using the
CDC's National Vital Statistics Reports, "United States Life
Tables," as used in Appendix I of our Court Rules. When a
Graham claim is raised at a sentencing or PCR hearing, the court
should use the most recent table available for a person of the
defendant's age at the time of the hearing, without injecting
disparities regarding race, sex, and ethnicity.
10/29/15 BOUND BROOK BOARD OF EDUCATION VS. CIRIPOMPA
A-2198-14T1
This appeal involves a teacher-tenure arbitration conducted
pursuant to the Tenure Employees Hearing Law (TEHL), N.J.S.A.
18A:6-10 to -18.1. The Bound Brook Board of Education charged a
high school teacher with two counts of unbecoming conduct and
sought his dismissal. The arbitrator found that the Board
proved the first charge, but not the second charge, and modified
the penalty from dismissal to a 120-day suspension without pay.
The Board then filed an action in the Chancery Division
challenging the arbitrator's award. The Chancery Division judge
vacated the award as procured by undue means pursuant to
N.J.S.A. 2A:24-8(a) and remanded for a new arbitration hearing
before a different arbitrator.
We reversed the vacatur of the arbitration award and
reinstated the award. We also rejected the teacher's argument
that the court lacked authority to order a rehearing before a
different arbitrator beyond forty-five days of the first
arbitration hearing date.
10/26/15 STEPHEN BARR VS. BISHOP ROSEN & CO., INC.
A-2502-14T2
Plaintiff was employed for seventeen years with defendant,
a securities broker-dealer. In defining their relationship by
written agreements in 1997 and 2009, plaintiff consented to
arbitrate any dispute, but he did not expressly waive his right
to sue in a judicial forum. In 2000, defendant advised
plaintiff by memorandum of a federal regulation that required
broker-dealers to advise employees that, when agreeing to
arbitrate, the employee surrenders the right to sue. The court
held, in affirming the trial judge's denial of a motion to
compel arbitration of plaintiff's complaint regarding
compensation, that the 2000 memorandum could not inform or pour
content into the arbitration agreements executed in 1997 and
2009, because the disclosure was not simultaneously made.
10/23/15 IN THE MATTER OF THE ADOPTION OF A CHILD BY J.E.V. AND
D.G.V.
A-3238-13T3
The order terminating parental rights is reversed because
the indigent mother, who placed her special-needs two-year-old
daughter in foster care with a State-licensed private adoption
agency, had a constitutional and statutory right to court-
appointed counsel, beginning when the agency first determined to
proceed with an adoption over the mother's objection. The
agency decided on its own that the mother was an unfit parent
and had abandoned her child. In the future, in similar
circumstances, a private adoption agency must notify the court
when advising an indigent parent of its intention to proceed
with an adoption. The court must devise a procedure for
assigning pro bono counsel to represent an indigent parent in
this situation, prior to the filing of the adoption complaint.
10/22/15 JOHN M. GATELY AND PATTY SUE GATELY VS. HAMILTON
MEMORIAL HOME, INC., D/B/A BRENNA-CELLINI FUNERAL
HOME, AND MARIA E. BRENNA
A-4458-13T2
This appeal arises out of a no-cause jury verdict rejecting
a father's claims that a funeral home wrongfully released the
remains of his adult son for cremation without the father's
authorization. The father contends that he told an individual
employed by the home (known in the trade as an "intern") that he
did not want his son to be cremated. He claims that the intern
and funeral home ignored his protestations and instead
improperly acceded to the contrary direction of the decedent's
mother.
The main and novel legal issue presented to us is whether
the qualified immunity from civil liability granted to funeral
directors under N.J.S.A. 45:7-95 and N.J.S.A. 45:27-22(d)
extends to interns who are employed by funeral homes pursuant to
regulations issued by the State Board of Mortuary Science. The
immunity precludes liability unless the defendant had
"reasonable notice" of untrue representations or a lack of
authorization by the decedent's surviving next of kin.
We conclude that the statutory immunity does extend to such
interns. The trial judge consequently did not err in charging
the elements of the immunity to the jury.
10/21/15 CAROL JACOBY VS. ZONING BOARD OF ADJUSTMENT OF THE
BOROUGH OF ENGLEWOOD CLIFFS, ET AL./ MARCIA DAVIS, ET
AL. VS. BOARD OF ADJUSTMENT OF THE BOROUGH OF
ENGLEWOOD CLIFFS, ET AL.
A-0007-13T1/A-0259-13T1/A-0404-13T1(CONSOLIDATED)
In this prerogative writs case involving the proposed
construction of a building in close proximity to the historic
Palisades Cliffs, we reversed an order upholding a height
variance and remanded to the Zoning Board to conduct further
proceedings consistent with the enhanced standards of N.J.S.A.
40:55D-70(d)(6), as articulated in Grasso v Borough of Spring
Lake Heights, 375 N.J. Super. 41 (App. Div. 2004). We held that
in determining whether the height of the building is "consistent
with the surrounding neighborhood," the Board was obligated to
consider the impact that the structure would have on all
reasonable visual vantage points. We otherwise affirmed the
order upholding a bulk variance pursuant to N.J.S.A. 40:55D-
70(c)(2).
10/20/15 DEPARTMENT OF CHILDREN AND FAMILY, INSTITUTIONAL
ABUSE INVESTIGATION UNIT VS. D.B./ DEPARTMENT OF
CHILDREN AND FAMILIES, INSTITUTIONAL
ABUSE INVESTIGATION UNIT VS. A.G.
A-5434-12T3/A-0276-13T3 (CONSOLIDATED)
(NEWLY PUBLISHED OPINION FOR OCTOBER 20, 2015)
Applying established case law to N.J.A.C. 10:129-7.3,
effective April 1, 2013, the Institutional Abuse Investigation
Unit of the Department of Children and Families appropriately
entered findings of "not established" after investigating
allegations against two defendants — a teacher's aide for a
special needs child and an elementary school art teacher. The
reports, however, must be rewritten to clarify that no
determination as to the validity of the witness's statements was
made.
10/16/15 STANLEY E. WILLIAMS VS. BOROUGH OF CLAYTON
A-3191-14T2
We affirm the trial court's issuance of a declaratory order
confirming that N.J.S.A. 40A:14-129 and -130 restrict the
appointment of Police Chiefs in smaller cities (i.e., those not
of the "first class" or "second class" in population and which
are not civil service jurisdictions) to police officers who have
served in those police departments for at least three years.
The issuance of declaratory relief in this case was
appropriate because there was an actual controversy presented by
the Borough's plan to include external candidates who lack such
statutory eligibility in the testing and selection process for
Police Chief.
We also note that the trial court's order does not require
the Borough to appoint plaintiff, the sole statutorily-qualified
officer who had applied for the position, as Chief. The Borough
may choose to re-advertise the position or pursue other options
not contrary to these statutes.
10/14/15 DEBORAH SPANGENBERG VS. DAVID KOLAKOWSKI
A-2655-14T1
Among the issues reviewed in this post-judgment matrimonial
matter is defendant's argument that plaintiff's cohabitation
requires termination of his alimony obligation, as required by
newly enacted subsection (n), amending N.J.S.A. 2A:34-23. We
rejected defendant's suggestion applying N.J.S.A. 2A:34-23(n),
concluding the provisions are inapplicable to post-judgment
orders finalized before the statute's effective date.
10/14/15 STATE OF NEW JERSEY VS. VANCLEVE ASHLEY
A-0403-12T2
When there has been a plea agreement and a defendant seeks
to withdraw his guilty plea to multiple counts after providing
an inadequate factual basis to support the plea, the remedy is
to vacate the plea in its entirety, reinstate the dismissed
charges and restore both the State and the defendant to their
positions prior to the guilty plea. State v. Campfield, 213
N.J. 218, 232 (2013) (citing State v. Barboza, 115 N.J. 415, 420
(1989)). In this case, we consider whether the same remedy
applies when the guilty plea, lacking an adequate factual basis
for two of three charges, is entered without a plea offer from
the prosecutor, but after the defendant has been advised by the
trial court regarding the maximum sentence the judge was
"inclined" to impose. Because it was intended that the maximum
ten-year sentence the judge was inclined to impose would
globally address all charges and defendant provided an
inadequate factual basis for the most serious offenses, it was
error to deny his motion to vacate his plea and sentence him to
the ten year term.
09/17/15 A.A. VS. CHRISTOPHER J. GRAMICCIONI, ESQ., CAREY J.
HUFF, ESQ., AND OFFICE OF THE COUNTY PROSECUTOR OF
MONMOUTH COUNTY, NEW JERSEY
A-0946-13T3
This appeal involves an anonymous requestor of records
pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1
to -13, and alternatively under the common law right of access,
who seeks to remain anonymous when litigating in the Superior
Court. We conclude there is no statutory authorization, rule
authorization or compelling reason permitting A.A. to prosecute
this matter anonymously. We also conclude that the trial judge
properly dismissed the complaint for failure to comply with Rule
4:67.
09/17/15 JACQUELINE SCHIAVO, ET AL. VS. MARINA DISTRICT
DEVELOPMENT COMPANY, LLC, D/B/A BORGATA CASINO HOTEL &
SPA
A-5983-12T4
Plaintiffs, twenty-one women who are present or former
employees of defendant Marina District Development Company, LLC,
operating as the Borgata Casino Hotel & Spa, appeal from the
summary judgment dismissal of their complaint alleging
violations of the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49, as informed by Title VII of the Civil
Rights Act of 1964 (Title VII), 42 U.S.C.A. §§ 2000e to 2000e-
17. Plaintiffs allege defendant's adoption and application of
personal appearance standards (the PAS) subjected them to
illegal gender stereotyping, sexual harassment, disparate
treatment, disparate impact, and as to some plaintiffs, resulted
in adverse employment actions.
We examine the types of decimation claims and generally
hold the PAS requirements were permitted by N.J.S.A. 10:5-12(p),
a provision allowing an employer to establish reasonable
employee appearance standards and the LAD does not encompass
allegations of discrimination based on weight, appearance, or
sex appeal.
The evidence does not support plaintiffs' claims of gender
stereotyping, disparate treatment, and disparate impact.
However, the record does present a material dispute of facts
regarding defendant's application of the PAS weight standard to
harass certain plaintiffs whose lack of compliance resulted from
documented medical conditions and post-pregnancy, thus targeting
them because of their gender. As to those claims, summary
judgment is reversed and the matter remanded.