Published Appellate Court Opinions

In this appeal, defendant filed his first post-conviction relief (PCR) petition more than five years after the trial court signed the Judgment of Conviction. Despite this, neither the PCR court nor the State challenged the timeliness of the petition under Rule 3:22-12(a)(1)(A). At the conclusion of oral argument in this appeal, this court entered a sua sponte order directing the parties to submit supplemental briefs addressing: (1) whether the procedural bar in the Rule is subject to waiver if the State fails to raise it before the PCR court; and (2) if the Rule’s preclusive injunction is not subject to waiver, what should be the remedy on appeal.

Based on the policy concerns expressed by the Supreme Court in State v. Mitchell, 126 N.J. 565, 575-76 (1992), this court holds that a PCR judge has an independent, non-delegable duty to question the timeliness of a petition and to require a petitioner to submit competent evidence to satisfy the standards for relaxing the time restrictions codified by the Court under Rule 3:22-12. Absent sufficient competent evidence to satisfy the standards for relaxing these time restrictions, the PCR judge does not have the authority to review the merits of the claims asserted therein.

The principal issue in this appeal from a conviction for conspiracy to commit burglary after a guilty plea pertains to the limits placed on a prosecutor to resubmit a case to a grand jury after a previous grand jury panel refused to indict. The court concludes that the prosecutor's power to resubmit is broad but not boundless. It is subject to review in light of the grand jury's role to protect the innocent from unfounded prosecution; and the court's power to review prosecutorial discretion for abuse, and to assure fundamental fairness. However, under the circumstances of this case, the court rejects defendant's challenge to the resubmission, and affirms the trial court's denial of the motion to dismiss the indictment.

In this appeal, the court held that it was premature to mandate the insurance carrier to provide a defense to an insured on an environmental claim where the unambiguous exclusion contained anti-concurrent and anti-sequential language. The proper remedy at that stage in the proceedings, given the uncertainty of coverage, was to convert the duty to defend to a duty to reimburse as in Grand Cove II. The court further held that it was premature to apply the Griggs analysis to a settlement reached between the insured and the claimants prior to a determination that the insurance carrier breached its duty to defend.

In this class action against defendant Kia Motors America, Inc., (KMA) plaintiff class of 8455 Kia Sephia owners and lessees represented by Regina Little proved at a jury trial that the Sephia, model years 1997 through 2000, had a defective front brake system, which caused premature brake pad and rotor wear. Concluding that the defect amounted to a breach of express and implied warranties, and that all owners had suffered damage due to the defect, the jury awarded each member of the class $750 ($6.3 million total) in repair damages.

Determining for the first time post-trial that repair damages could not be awarded on a class-wide basis because they were dependent upon individual factors, the trial court granted KMA's motion for judgment notwithstanding the verdict on the repair damages award, decertified the class for purposes of damages, and ordered a new trial on repair damages only, to proceed by way of claim forms. With the advantage of recent case law unavailable to the trial judge, the court now reverses, reinstates the jury award and remands for determination of counsel fees.

This opinion involves two separate, but interrelated cases arising from the same core of operative facts. In the appeal filed by the local board of education under Docket Number A-5104-14, this court upholds the decision of the Public Employment Relations Commission (PERC) to assert its exclusive jurisdiction to decide complaints arising under the New Jersey Employer-Employee Relations Act (EERA), N.J.S.A. 34:13A-1 to -43, even when raised in the context of tenure charges. Applying the Supreme Court's holding in In re Local 195, IFPTE, 88 N.J. 393 (1982), this court also upholds the union's right to engage in good faith negotiations to ascertain the impact the installation of exposed cameras with both audio and video capabilities would have on the terms and conditions of employment for the employees.

In the separate, but related appeal filed by the union under Docket Number A-2956-15, this court holds the Law Division does not have jurisdiction under Rule 4:67-6 to enforce an order entered by PERC. Adhering to the Supreme Court's holding in Galloway Twp. Bd. of Educ. v. Galloway Twp. Educ. Ass'n, 78 N.J. 25 (1978), this court holds that only PERC may file a motion before the Appellate Division to enforce its own order under the EERA. A prevailing party in a PERC proceeding only has the right to request that PERC enforce its own order.

Defendant was convicted of a third or subsequent offense of driving while intoxicated (DWI). The Municipal Court allowed him to serve the mandatory 180-day sentence under N.J.S.A. 39:4-50(a)(3) two days per week. The Law Division reversed.

The Appellate Division holds a third or subsequent DWI offender is ineligible for periodic service. Michael's Law amended the DWI statutes to require the 180-day sentence be spent in jail, excepting only up to ninety days spent in inpatient drug or alcohol rehabilitation, and to preclude other options. The amendment to N.J.S.A. 39:4-51 was intended only to bar work release for such offenders, not to lift the prohibition on their release before the jail term had been served. The specific law governing DWI sentences governs over the general provision for periodic service in N.J.S.A. 2B:12-22. The court disapproves State v. Grabowski, 388 N.J. Super. 431 (Law Div. 2006), which permitted such periodic service.

After plaintiff Egg Harbor, a New Jersey nursing facility, commenced a collection action against various parties, the Californian defendant, Corey Pagano, moved to dismiss the case based upon a lack of personal jurisdiction. Defendant Pagano had not lived in New Jersey in over three decades and had not set foot in our state in seventeen years. Pagano's only connection to the forum stems from his mother, New Jersey and Egg Harbor resident Patricia Scheraldi, as he served as the payee for her incurred obligations, contacted plaintiff Egg Harbor surrounding her health care, and attempted to obtain her Medicaid coverage. In accordance with the purposeful availment requirement necessary to support minimum contacts, we conclude that it is inappropriate for a nonresident defendant to be subjected to personal jurisdiction based upon contacts with the forum state that cannot be reasonably prevented by the defendant. Based upon Pagano's contacts with New Jersey, it violates the longstanding principles of minimum contacts and reasonableness outlined in Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) to hale him into our courts to defend this action. We affirm and remand with directions to amend the order to dismiss the case without prejudice.

The court finds that the plain language of N.J.S.A. 2C:40-26(b), the fourth-degree offense of driving while suspended, includes both driving while under the influence (DWI), N.J.S.A. 39:4-50, and refusal to submit to breath testing (refusal), N.J.S.A. 39:4-50.4a. They are predicate offenses even where the prior conviction history consists of one conviction under the separate sections of the Motor Vehicle Code. In other words, one DWI and one refusal suffice for the criminal offense of driving while suspended.

The mayor and council of the Borough of Belmar, in response to a protest petition seeking a referendum on an ordinance appropriating funds and authorizing the issuance of bonds and notes to construct a beach pavilion, passed a resolution to place the referendum on the ballot.

The court held a later-submitted permissive – not mandatory – interpretive statement of the ordinance was invalid because: 1) neither the borough administrator nor the borough attorney had authority to author and submit the interpretive statement to the county clerk without formal public approval of the mayor and counsel, and 2) the interpretive statement was misleading and contained extraneous language. The court also determined the interpretive statement's phraseology deprived plaintiffs of their substantive right of referendum protected by the New Jersey Civil Rights Act.

The court also upheld the trial judge's award of counsel fees and costs despite the absence of a retainer agreement between plaintiffs and counsel; and the judge's refusal to allocate fees and costs to beachgoers – not Belmar voters – as beneficiaries of plaintiffs' efforts.

The panel addresses whether New Jersey's six-year statute of limitations or Pennsylvania's two-year statute of limitations applies to a legal malpractice claim against a lawyer, who is licensed in both states and works in New Jersey, and his law firm, which has offices in both states. The legal services in question concerned a Pennsylvania lawsuit relating to a fire loss at a Pennsylvania restaurant. Applying the substantial-interest test for resolving statute-of-limitations conflicts, which our Supreme Court adopted in McCarrell v. Hoffman-La Roche, Inc., 227 N.J. 569, 574 (2017), we reverse the trial court's decision, which applied New Jersey law.

A forty-four-year-old emergency medical technician engaged in an unlawful sexual relationship with the then fifteen-year-old plaintiff, who, after the EMT was convicted, commenced this action for damages against the EMT, who defaulted, and against – among others – the EMT's employer and co-worker. In this appeal, the court held that the trial judge erroneously limited discovery from the prosecutor's office that investigated the crime and, also, prematurely granted summary judgment in favor of the co-worker and employer. These dispositions precluded a full and clear understanding of the extent to which the co-worker and employer knew or should have known of the EMT's unlawful acts, as well as the extent of the co-worker's relationship with the EMT. These limitations hampered the court's determination of whether it would be appropriate to extend the common-law duty imposed in J.S. v. R.T.H., 155 N.J. 330, 334 (1998) (holding that "a wife who suspects or should suspect her husband of actual or prospective sexual abuse of their neighbors' children has [a] duty of care to prevent such abuse") to a co-worker or employer or both. Thus, the orders under review were either reversed or vacated and the matter remanded for further proceedings.

In a per curiam opinion, the panel affirms the denial of defendant's petition for post-conviction relief without an evidentiary hearing substantially for the reasons stated in the trial court's published opinion reported at 448 N.J. Super. 113 (Law Div. 2016).

In Pool v. Morristown Memorial Hospital, 400 N.J. Super. 572, 577 (App. Div. 2008), this court ruled that a worker's compensation lien under N.J.S.A. 34:15-40 attached to funds that an injured plaintiff received from a defendant physician in a medical malpractice case pursuant to the terms of a "high/low" agreement. Pool held that the money paid to plaintiff as the negotiated "low" figure in accordance with the agreement was subject to the statutory lien, even though a jury had rendered a "no cause" verdict in favor of the physician and absolved him of liability. Id. at 575-77.

Similarly, in the present case, despite a "no cause" decision, an injured plaintiff recovered the "low" amount under a high/low agreement he entered into with defendants who provided medical treatment to him after a work-related accident. Relying upon Pool, his employer's workers' compensation carrier seeks to enforce its lien for compensation benefits it paid to plaintiff. Plaintiff argues that N.J.A.C. 11:1-7.3(a)(1), a regulation adopted by the Department of Banking and Insurance exempting certain payments made under a high/low agreement from physician reporting requirements, alters the analysis in Pool. Plaintiff claims the regulation renders the compensation lien unenforceable in this setting. In essence, plaintiff desires a lien-free "low."

The panel rejects plaintiff's novel argument. It concurs with the trial court that the regulation does not affect the validity and enforceability of the carrier's Section 40 lien, and that the lien applies to the proceeds collected by plaintiff from the medical malpractice defendants. A contrary result would allow plaintiff to retain an inappropriate double recovery.

The Mayor of the City of Orange Township appointed defendant as Acting Business Administrator. Plaintiff did not confirm the appointment, and the municipal ordinance required the mayor to remove acting persons after ninety days. In contravention of the Council's directive and the applicable law, the mayor appointed defendant as Deputy Business Administrator. Defendant thereafter performed functions, signed official documents and collected a salary as the Business Administrator. Following the entry of an order to show cause directing defendant to cease performing all functions of a Business Administrator, defendant left the position. The mayor then appointed him as chief of staff. A second judge vacated certain portions of the order to show cause, but left intact the provision that only a department director had authority to appoint a deputy. Nevertheless, defendant resumed the title and salary, and performed the functions of Business Administrator. N.J.S.A. 40:69A-43.1 provides that only the director of a department may appoint a deputy director. Therefore, the mayor had no authority to appoint defendant to the position. Furthermore, the City abolished the position of deputy business administrator in 1985 by municipal ordinance. The panel finds defendant's appointment as deputy was an illegal act — an act that was ultra vires in the primary sense and, therefore, void. The panel rejects defendant's argument that he accepted the position of Deputy Business Administrator in good faith and with the "reasonable understanding" that the mayor had the authority to appoint him to the post. Defendant is a highly educated man who had served in the state legislature and taught college courses in municipal government and public administration. He acknowledged having reviewed the Faulkner Act, N.J.S.A. 40:69A-1 to -210, and the City ordinances that pertained to his employment. Defendant did not demonstrate any factual dispute in the events surrounding his appointment, nor any ambiguity in the controlling statutes. Because he lacked good faith in accepting and remaining in the post, the panel rejects defendant's argument that he should be permitted to retain his salary under equitable theories of quantum meruit or equitable estoppel. The sole remedy to make the aggrieved taxpayers whole is to disgorge defendant of the monies paid to him during his service in the unlawful appointment.

In a residential foreclosure where an investor such as Freddie Mac owns the note but not the mortgage, the plaintiff must have both the note and a valid assignment of mortgage to have standing to foreclose. Given that defendant knew the servicer for Freddie Mac, given that Freddie Mac is a GSE (government-sponsored enterprise) that publicly declares its policy to foreclose through its servicers, and given that the servicer did possess the note at an earlier foreclosure proceeding and had a valid mortgage assignment, the irregularities are insufficient to defeat this foreclosure. Standing is not jurisdictional in New Jersey, and the equities here favor foreclosure.

These three appeals involve the non-consensual towing of vehicles and raise questions concerning the Predatory Towing Prevention Act (Towing Act), N.J.S.A. 56:13-7 to -23, the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and the Truth-In-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18. The court holds that: (1) the Towing Act does not require the exhaustion of administrative remedies before the Division of Consumer Affairs (Division) or dispute resolution procedures established by municipalities that have towing ordinances; (2) the Tort Claims Act (TCA) does not provide immunity against claims based on the fees companies charge for non-consensual towing of vehicles; and (3) the Towing Act and its regulations limit the services for which a towing company can charge. The court also holds that the TCCWNA applies to the non-consensual towing of vehicles because the bills issued by towing companies are contracts and notices within the definition of the TCCWNA. Finally, the court holds that class actions may, in the right circumstances, be appropriate for claims under the Towing Act, the CFA, and the TCCWNA. Accordingly, we reverse the orders on appeal in each of these three cases and remand for further proceedings.

The panel reverses the denial of an accidental disability pension to a corrections officer who was disabled after falling on ice near the parking lot on the grounds of jail where she worked. Unexpectedly directed to serve a second consecutive shift, the officer was on her way to retrieve feminine hygiene products from her car, because she was menstruating. In holding that her fall "occurr[ed] during and as a result of the performance of [her] regular or assigned duties," N.J.S.A. 43:16A-7(1), the panel concludes the officer took the equivalent of a restroom break, which the Court in Kasper v. Board of Trustees of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 586 n.7 (2000), stated was included within "an employee's performance of his or her regularly assigned tasks," if "within the confines of the workday at the work location." The panel rejects the Board's statement that parking lot accidents are categorically not eligible for accidental disability pensions, and distinguishes a parking lot accident that occurs during the journey to or from work, such as the one presented in Mattia v. Board of Trustees, Police and Firemen's Retirement System, decided today.

The panel affirms the final determination of the Board of Trustees of the Police and Firemen's Retirement System, finding former corrections officer Paul Mattia was not eligible for accidental disability retirement benefits, pursuant to N.J.S.A. 43:16A-7. The panel distinguished Kasper v. Board of Trustees, Teachers' Pension and Annuity Fund, 164 N.J. 564 (2000), where the Supreme Court determined an education media specialist, who was mugged on the steps of the school when she arrived early to distribute materials prior to the official start of classes, had finished her commute for purposes of pension analysis.Mattia suffered a disabling injury when he slipped and fell on ice in the parking lot of the jail where he was employed, before he was able to check in and receive his assignment. Because Mattia had not yet begun performing his regular assigned duties, the Board denied his claim for accidental disability retirement benefits, determining he was still commuting when he was injured. In doing so, the Board rejected the decision of an Administrative Law Judge granting Mattia's petition. The panel affirmed, finding he was still commuting when he fell in the parking lot.

A jury found defendant guilty of aggravated manslaughter of her husband, as a lesser included offense of murder; first degree attempted murder and second degree endangering the welfare of her minor daughter; and second degree endangering the welfare of her minor son. Defendant asserted the affirmative defense of insanity under N.J.S.A. 2C:4-1. The central issue in this appeal concerns the proper assessment of this defense by the jury. This court reverses defendant's conviction and remands the matter for a new trial. As a matter of plain error under Rule 2:10-2, this court concludes that the State's expert witness' testimony usurped the jury's exclusive role to decide defendant's state of mind at the time she committed these offenses, rendering the verdict unsustainable. State v. Simms, 224 N.J. 393, 396 (2016); State v. Cain, 224 N.J. 410, 424 (2016). The trial judge also engaged in ex parte interactions with the pool of prospective jurors before the jury selection process had even begun. Although not outcome determinative, this court also holds that the trial judge's ex parte interactions with the pool of prospective jurors violated defendant's right under Rule 3:16(b) to be present "at every stage of the trial, including the impaneling of the jury," as well as the Supreme Court's holding in Davis v. Husain, 220 N.J. 270 (2014), not to engage in ex parte interactions with the jury at any stage of the trial. See also Rule 1:2-1.