Opinion Summaries

          The court affirms the New Jersey Commissioner of Education's final agency decision finding petitioner Stephanie Angus is entitled to sick leave under N.J.S.A. 18A:30-1 during the period the Board of Education of the Borough of Metuchen excluded Angus from working in her position as a tenured teacher, pursuant to a directive from the New Jersey Department of Health, because of her exposure to a person who tested positive for COVID-19.  The court determined Angus qualified for sick leave under N.J.S.A. 18A:30-1's plain language, which in part defines sick leave to include an absence from an employee's "post of duty . . . because he or she has been excluded from school by the school district's medical authorities on account of a contagious disease." 

          The court rejected the Board of Education's claim N.J.S.A. 18A:30-1 qualifies an employee for sick leave when the employee is excluded from school "on account of a contagious disease" only where the employee personally suffers from the disease.  The court reasoned the Board's interpretation is not supported by the statute's plain language.  The court also determined acceptance of the Board of Education's interpretation of N.J.S.A. 18A:30-1 would render the exclusion-from-work-on-account-of-a-contagious-disease sick leave qualification superfluous because the statute otherwise separately defines sick leave to include an employee's absence from work where the employee suffers a personal disability due to an illness.  

At issue in this appeal is whether a warrant is required to seize a vehicle pursuant to the plain-view exception.  The court granted the State leave to appeal from a Law Division order, which suppressed evidence seized from a motor vehicle that police believed defendant used during the commission of a fatal shooting.  The motion judge essentially reasoned police improperly impounded the car because probable cause did not arise spontaneously prior to the warrantless seizure.  The judge suppressed the evidence seized, following issuance of a warrant to search the car, as fruit of the poisonous tree.

The State argued police were permitted to seize the vehicle pursuant to the plain-view exception to the warrant requirement while they awaited issuance of the search warrant.  The State further contended the "unforeseeability and spontaneity" requirement espoused in State v. Witt, 223 N.J. 409 (2015), applies to the automobile – not the plain-view – exception to the warrant requirement. 

The court concludes the motion judge mistakenly conflated the discrete rules for the warrantless search and seizure of an automobile, and erroneously reintroduced the inadvertence prong of the plain-view exception to the warrant requirement, eliminated by our Supreme Court in State v. Gonzales, 227 N.J. 77 (2016).  The court therefore reverses the Law Division order and remands for further proceedings. 

Plaintiff Delaware River Joint Toll Bridge Commission (Commission) is a bi-state entity created by an interstate compact between the State of New Jersey and the Commonwealth of Pennsylvania and approved by the United States Congress.  In this matter, arising out of a construction project to replace the Scudder Falls Bridge that connects the two states, the court considered whether the Commission was authorized to approve, use, and enforce a project labor agreement (PLA) as a mandatory requirement in its bid specifications.  

This mandate required all bidding contractors and subcontractors to enter into a PLA with certain named unions affiliated with the local building and construction trades councils, recognizing those unions as the sole and exclusive bargaining representatives of the bidder's project workforce.

Defendant George Harms Construction Co. was prevented from bidding on the project because it was a party to a collective bargaining agreement with United Steel Workers (USW), which was excluded from the PLA.  Harms threatened to seek an injunction if the Commission did not add USW as a signatory union to the PLA.

Only one company bid on the project, submitting a bid $69 million over the projected cost of the project and $71 million more than Harms' projected bid.

The Commission sought a declaratory judgment permitting it to award the contract, including the PLA, to the successful bidder.  Harms answered and asserted numerous counterclaims, including a violation of competitive bidding laws.  The trial court dismissed the complaint as moot (the project was completed during the litigation) and granted summary judgment to the Commission on the counterclaims.

The court preliminarily determined the issue was not moot because of the importance of interstate compacts and the high likelihood that the Commission would use a PLA in a future contract.

The issue, then, was whether the Commission had the authority under its compact to approve and use a PLA in its bidding process.  The compact itself is silent on PLAs.  Therefore, the panel looked to the two states' treatment of PLAs.

The court engaged in an extensive analysis of the case law and legislative history in New Jersey and Pennsylvania regarding PLAs.  Currently New Jersey has a statute governing PLAs, N.J.S.A. 52:38-1 to -7.  Pennsylvania does not have any legislation.  The case law, emanating from the Commonwealth Court disfavors PLAs unless the project involves "extraordinary circumstances" and the PLA treats union and nonunion contractors evenly.  Therefore, New Jersey and Pennsylvania do not have parallel or substantially similar state legislation or common law regarding the use of PLAs.

The court concluded the Commission did not have the power to create and authorize use of the mandatory PLA for its project because: (1) there is no express authority for unilateral action in the compact; (2) New Jersey and Pennsylvania have not enacted complementary or parallel legislation and do not have similar common law on PLAs; and (3) the Commission has not consented to exercise of single-state jurisdiction.

The court affirmed the dismissal of the declaratory judgment complaint, albeit for different reasons than articulated by the trial court.  The court reversed the dismissal of the counterclaims and remanded to the trial court.

     Plaintiff filed a products-liability complaint against defendant, alleging the invisible tooth aligners he purchased on-line damaged his teeth and resulted in lasting injuries.  Defendant moved to dismiss the complaint, citing an arbitration provision that was embedded in the first of three hyperlinked underlined documents that appeared in different colored font.  The hyperlinked document, entitled "Informed Consent," included not only the arbitration agreement but also explanations of the benefits and risks of using the aligners, representations by plaintiff regarding his oral health, and his consent to the treatment.  Users could not proceed to open an account and order the aligners unless they clicked on a box next to the three hyperlinked documents, "I Agree," and another button, "FINISH MY ACCOUNT."
      The Law Division denied defendant's motion, relying extensively on our recent decision in Wollen v. Gulf Stream Restoration & Cleaning, LLC, 468 N.J. Super. 483 (App. Div. 2021).  The court reversed, drawing distinctions between the "browsewrap" agreement at issue in Wollen, and the "clickwrap" agreement in this case.  See, e.g., Skuse v. Pfizer, Inc., 244 N.J. 30, 55 n.2 (2020) ("Contracts that require 'that a user consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed with the internet transaction' are sometimes called 'clickwrap' agreements," and "are 'routinely enforced by the courts.'"  Skuse, 244 N.J. at 55 n.2 (first quoting Feldman v. Google, Inc., 513 F. Supp. 2d 229, 236 (E.D. Pa. 2007); and then quoting HealthPlanCRM, LLC v. AvMed, Inc., 458 F. Supp. 3d 308, 334–35 (W.D. Pa. 2020)).

Section 543(a)(1) of the Cable Act does not preempt the proration requirement in N.J.A.C. 14:18-3.8. The regulation does not regulate “rates for the provision of cable service,” but rather prevents cable companies from charging for cable service that customers have cancelled. The regulation does not set the “rate” that companies can charge. It simply protects cable users from paying for service they no longer want. Furthermore, contrary to Altice’s alternative argument, neither Altice nor its predecessor sought or received a BPU waiver from prorating cable bills.

     The court determined an insured's satisfaction of its deductible or copayment obligation under a standard automobile policy does not operate to also reduce the $15,000 statutory Personal Injury Protection (PIP) limits of liability.  In reaching its decision, the court examined the policies' declaration pages, PIP policy provisions, and the incorporated Buyer's Guide, and concluded Travelers did not clearly express to reasonable insureds, like plaintiffs, that the limits of liability would be reduced if their claims exceeded $15,000.  The court also evaluated the legislative history of New Jersey's no-fault scheme and determined its decision did not violate the Legislature's overarching goal of reducing the costs of auto insurance.  
     Further, the court held absent legislative and regulatory approval, defendant was likely precluded from providing less than $15,000 of PIP medical expense benefits, regardless of the clarity of its policies or declaration pages.  Finally, the court distinguished our previous decision in IMO Industries Inc. v. Transamerica Corp., 437 N.J. Super. 577, 622 (App. Div. 2014), as that case involved a commercial general liability policy between sophisticated parties and relied in part on Benjamin Moore & Co. v. Aetna Co., 179 N.J. 87, 93 (2004), which involved a commercial general liability policy whose express language clearly indicated to the insured that the insurer's limit was reduced by the policy's deductible.  

The Court reverses as to all three issues and remands for a new trial. The Court prescribes a framework for trial courts to assess requests for access to internal affairs records and provides guidance for the application of that framework on remand in this case. Because the defense argues Officer Lee discharged his firearm first, defense counsel could potentially be allowed to explore Officer Lee’s history of past shootings on cross-examination. On remand, defendant will be entitled to access the internal affairs file as outlined in the Court’s opinion, and that evidence may be used to cross-examine Officer Lee subject to any objections pursuant to N.J.R.E. 403 or 404(b). Detective Green’s testimony was based entirely on his lay opinion from watching the video, which was impermissible under N.J.R.E. 701. The video was already in evidence, so the jury was able to view the video and determine for themselves what the video showed. Finally, applying the factors in N.J.R.E. 609(b)(2), it was error for the trial court to admit defendant’s remote convictions because the State did not meet its burden of establishing that the probative value outweighed the prejudicial effect of admitting the old convictions.

     The court holds that the January 3, 2002 amendment to the criminal statute of limitations, N.J.S.A. 2C:1-6, does not apply retroactively to an offense when the limitations period in effect when the offense was committed had expired.  Accordingly, the court reverses an order denying defendant's motion to dismiss an April 2022 criminal complaint charging him with a May 1990 second-degree sexual assault, N.J.S.A. 2C:14-2(c)(2).  The criminal statute of limitations in effect in May 1990 provided that a prosecution for a sexual assault had to be commenced "within five years after it is committed."  N.J.S.A. 2C:1-6(b)(1) (1989).  
     Effective January 3, 2002, the statute was amended to carve out an exception for circumstances in which the prosecution includes DNA or fingerprint evidence.  L. 2001, c. 308, § 1.  The amendment provides that the limitations period "does not start to run until the State is in possession of both the physical evidence and the DNA or fingerprint evidence necessary to establish the identification of the actor by means of comparison to the physical evidence."  The State argued that the 2002 amendment "tolled" the running of the statute of limitations related to defendant's May 1990 alleged sexual assault until May 2021, when it collected DNA from defendant.  
     The court rejects the State's construction of the 2002 amendment.  The court's interpretation of the amendment as applying prospectively avoids a violation of the ex post facto clauses of both the federal and New Jersey constitutions.  U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3.  The court, therefore, reverses the order denying defendant's motion and remands with direction that the trial court enter an order dismissing, with prejudice, the criminal complaint in this matter. 
 

The court affirms Law Division's orders denying defendants' motion to enforce an unsigned settlement agreement arising from a voluntarily entered mediation.  The court agreed with the Law Division that, in accordance with Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 215 N.J. 242, 262 (2013), no agreement was reached because the parties did not sign the agreement before the mediation concluded.  The court, as did the Law Division, rejected defendants' argument that Willingboro's holding did not apply because, there, the mediation was court-ordered, and, in the present case, the mediation was voluntary.  Based upon the principles set forth in Willingboro, whether mediation is court-ordered or voluntary is a distinction without a difference. Furthermore, the parties' post-mediation conduct evidence there was no meeting of the minds that a settlement was reached.   

Defendant appeals from the trial court's order denying his motion to dismiss an indictment, which charged him with fifteen counts of second-degree child endangerment, N.J.S.A. 2C:24-4(b)(4), (5)(a)(i), (5)(a)(ii); and one count of third-degree child endangerment, N.J.S.A. 2C:24-4(b)(5)(b)(iii).  These provisions were enacted in 2018 as part of the child erotica amendment to the endangerment statute.  L. 2017, c. 141 (the child erotica amendment).  Finding that the statute is both unconstitutionally vague and overbroad, the court reversed.

N.J.S.A. 2C:24-4(b)(4) makes it a second-degree crime to photograph or film a child in a sexually suggestive manner, which necessarily requires the viewing and possession of such material.  N.J.S.A. 2C:24-4(5)(a)(ii) makes it a second-degree crime to possess child erotica with intent to distribute it.  Finally, N.J.S.A. 2C:24-4(5)(b)(iii) makes it a third-degree crime to possess child erotica.  The amendment's expanded definition of child pornography, which includes child erotica (i.e., images that "portray a child in a sexually suggestive manner"), is at odds with New York v. Ferber, 458 U.S. 747 (1982); Osborne v. Ohio, 495 U.S. 103 (1990); and Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

The child erotica amendment is overbroad because it precludes the private possession of material the United States Supreme Court has said is protected by the First and Fourteenth Amendments.  Based on the amendment's definition of "portray a child in a sexually suggestive manner," any image of a child could appeal to sexual interests and thus be proscribed.  Therefore, the amendment is also vague because a person of ordinary intelligence would not understand the limits of permissible conduct.

    In this case of first impression, the court determines that N.J.S.A. 2C:58-3(c)(5), which precludes the issuance of a handgun purchase permits (HPP) or a firearms purchaser identification card (FPIC) "where the issuance would not be in the interest of the public health, safety or welfare" is constitutional, applying the analytic paradigm adopted by the United States Supreme Court's recent Second Amendment decision in New York State Rifle & Pistol Association v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022).  Considering the historical traditions and analogues present leading up to and during the ratification of the Second Amendment, the court holds that N.J.S.A. 2C:58-3(c)(5) "is consistent with this Nation's historical tradition of firearm regulation," and that individuals who engaged in repetitive misconduct without being convicted of a crime or felony-equivalent offense, are not "law-abiding citizens" whom the Second Amendment protects.  

    The court also holds that expunged records may be considered when determining whether to grant a HPP or revoke a FPIC.  The court affirms the denial of appellant's HPP application and revocation of his previously issued FPIC.  

    The court reverses the forfeiture and compelled sale of appellant's firearms under N.J.S.A. 2C:58-3(f), which addresses revocation of FPICs and carry permits but provides no basis for the forfeiture of firearms already possessed.  
 

The trial court properly instructed the jury on the State’s burden in disproving self-defense and no specific unanimity charge was required.

In this interlocutory appeal, the court considered the protective breadth of the Expungement of Records statute, N.J.S.A. 2C:52-1 to -31.1 (the expungement statute), against the statutory provisions regulating Transportation Network Companies N.J.S.A. 39:5H-1 to -27 (the TNC statute), where a conviction for aggravated assault bars employment as a rideshare driver and Uber's potential culpability under a theory of negligent hiring or employment.  T.C., an Uber driver, had a previous conviction for aggravated assault of a law enforcement officer.  Uber had knowledge of T.C.'s prior conviction for aggravated assault—in the form of the two background checks—for some period of time prior to the entry of an order of expungement. 

The court addressed the narrow issue of whether the expungement gives T.C.'s employer the ability to assert T.C.'s rights so as to imply ignorance of the prior assault conviction.  The court read N.J.S.A. 2C:52-19 to prevent the evidence of an expunged record to be used against the person for whom the expungement is meant to benefit: the recipient of the expungement.  The court does not read N.J.S.A. 2C:52-19 to give instant cover to third parties without further examination of that third-party's conduct, duty and responsibility in a negligent hiring claim.  The court remanded for further development of the record.

In these appeals, calendared back-to-back and consolidated to issue a single opinion, the court granted plaintiff Norma Davis leave to challenge two separate Law Division discovery orders arising from her lawsuit alleging that defendants Disability Rights New Jersey, Gwen Orlowski, and Ellen Catanese terminated her employment in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.  The orders were stayed pending these appeals. 

In A-0269-22, the trial court order (cell phone record order) granted in part and denied in part plaintiff's motion to quash defendants' subpoena to her cellular provider seeking her cell phone records.  Plaintiff used her cell phone to perform her work duties while allowed to work from home.  The order required plaintiff:  (1) to produce a redacted copy of her personal cell phone records indicating work-related calls and texts made and received during her normal workday from January 1, 2018 to January 31, 2020; and (2) to submit to the court a copy of the redacted records provided to defendants, as well as a Vaughn[1] index of an unredacted copy of the records showing all calls and texts made and received during that period.  National Employment Lawyers Association/New Jersey (NELA) filed an amicus brief in support of plaintiff.

In A-0270-22, the trial court order (social media posts order) granted in part and denied in part defendants' motion to compel plaintiff to provide copies of her private social media posts, profiles, and comments (collectively "social media posts" or "social media content") from January 1, 2020 to August 29, 2022, depicting an emotion, attaching a picture of herself, or mentioning:  Disability Rights or her lawsuit's allegations; her vacations or celebrations; her being ill or worrying about being ill; and her work.  NELA and New Jersey Association of Justice (NJAJ) filed amicus briefs in support of plaintiff. 

The court is unpersuaded by plaintiff's and amici's arguments that the trial judge abused his discretion in entering orders which abridged her privacy interests.  The court concludes the judge appropriately considered plaintiff's privacy interests in her social media posts and cell phone bills and did not err in allowing defendants' discovery of limited private social media posts and cell phone bills to defend against her claims that her termination violated the LAD, causing her emotional distress.  The court, however, remands for the judge to add the requirement in the social media posts order –– similar to the cell phone record order –– that plaintiff submit a redacted copy of her private social media posts to defendants and the trial court as well as an unredacted copy of the posts with a Vaughn index to the trial court.

[1]  As pronounced in Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973). 

The Court concurs with the Appellate Division that the trial court properly exercised its discretion when it set the reasonable hourly rate for plaintiff’s counsel’s work, assessed the number of hours reasonably expended by plaintiff’s counsel in pretrial proceedings and at trial, reduced the lodestar because of plaintiff’s limited success and other factors, and determined plaintiff’s application for an award of costs.

Like many older buildings, the Library needed improvements in a number of areas. But the record did not establish that it suffered from obsolescence, faulty arrangement, or obsolete layout in a way that harmed the welfare of the community. To designate property for redevelopment under the LRHL, a municipality must demonstrate that certain specified problems exist and that they cause actual detriment or harm. There is insufficient evidence in the record to meet that standard. The designation of the Library as an area in need of redevelopment is invalid.

The circumstances giving rise to probable cause in this case were not “unforeseeable and spontaneous.” Those circumstances included investigating previous information from the CI and concerned citizen about defendant, the vehicle, and narcotics trafficking in the area; lengthy surveillance of defendant and the vehicle; reasonable and articulable suspicion that defendant had engaged in a drug deal; and a positive canine sniff of the vehicle. The Court therefore affirms the order suppressing the physical evidence seized from the vehicle.

At issue in this medical negligence matter is the kind-for-kind specialty requirement embodied in the New Jersey Medical Care Access and Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A-37 to -42.  This appeal requires the court to determine whether the affidavit of merit (AOM) of a board-certified hematology expert satisfied the PFA's equivalency requirement where neither defendant doctor specialized, nor was board certified, in hematology when they rendered care to the decedent.  Instead, both defendants specialized in internal medicine at the time of the alleged treatment, and one was board certified in that specialty, but plaintiff's proffered expert did not specialize in internal medicine.  The trial court denied defendants' motion to dismiss plaintiff's complaint for failure to provide a sufficient AOM, essentially concluding the affiant's hematology subspecialty was "subsumed" in defendants' internal medicine specialty and, as such, the affiant was qualified to opine that defendants deviated from the standards of medical care by improperly prescribing heparin to the decedent.

The court granted defendants leave to appeal from the April 14, 2022 Law Division order.  The court holds the PFA's kind-for-kind specialty requirement embodied in N.J.S.A. 2A:53A-41(a) is not satisfied when the AOM's affiant specialized in a subspecialty of the treating doctor's specialty but did not specialize, nor was board certified, in the physician's specialty when the alleged medical negligence occurred.  The court therefore concludes plaintiff failed to satisfy the PFA's equivalency requirements and reverse the trial court's order denying defendants' dismissal motion.  In doing so, the court rejects plaintiff's alternate argument that she satisfied the waiver exception to the PFA under N.J.S.A. 2A:53A-41(c), which would have rendered moot defendants' appeal.

Appellants, parents of children enrolled in the Lakewood Public School District (District or Lakewood), filed a petition alleging the District was not providing its public-school students a thorough and efficient education as required by our State's Constitution.  N.J. Const. art. VIII, § 4, ¶ 1.  They contend this is due to the failure of the New Jersey Department of Education (DOE) to adequately fund the District.  To that end, they assert the School Funding Reform Act (SFRA), N.J.S.A. 18A:7F-43 to -70, which sets certain standards for the DOE, is unconstitutional as applied to Lakewood.  The record demonstrates Lakewood's school district is in a unique and precarious position.  Due, in large part, to demographic trends in the area.  Lakewood Township has seen a population rise in recent decades, primarily resulting from a thriving Orthodox Jewish community.  As a result of this demographic shift, the township has approximately 37,000 school-aged children, however, only about 6,000 are enrolled in the secular public schools.  The majority—eighty-four percent—are enrolled in private religious schools.  Testimony before the Administrative Law Judge (ALJ) established this demographic trend is likely to continue and accelerate.

Like other districts, Lakewood's state-issued school aid is calculated based upon its 6,000 enrolled public-school students.  The total budget for the most recent school year at the time of that decision was $143.45 million.  Of that, over half—$78 million—went to transportation and special education tuition for non-public students.  This is an abnormal and unsustainable imbalance.  The court concluded the record generated before the ALJ cannot fairly be said to support a finding Lakewood's students are receiving a constitutionally sound education.

The court held the Commissioner utilized an incorrect standard in rejecting the ALJ's finding, and further held the Commissioner owed appellants a thorough review of their substantive argument:  the funding structure of the SFRA was unconstitutional as applied to Lakewood's unique demographic situation.  The court reversed and remanded for the agency to consider the substantive arguments pertaining to SFRA in light of our Supreme Court's previous directive in Abbott ex rel. Abbott v. Burke (Abbott XX), 199 N.J. 140, 146 (2009):  the State has a continuing obligation to "keep SFRA operating at its optimal level" and "[t]here should be no doubt that we would require remediation of any deficiencies of a constitutional dimension, if such problems do emerge." 

The court granted defendants leave to appeal from the Law Division's orders denying summary judgment and reconsideration.  Plaintiff was injured while driving his motorcycle when defendants' tractor trailer pulled into plaintiff's lane of travel.  Plaintiff admitted having several drinks throughout the day and that he was speeding at the time of the accident, but, at his deposition, equivocated as to whether he was intoxicated.  Blood was drawn at the hospital, and defendants' expert extrapolated from that sample that plaintiff's BAC at the time of the accident was between .159 and .162.  Police issued no motor vehicle summonses to plaintiff.

In moving for summary judgment, defendants relied upon N.J.S.A. 39:6A-4.5(b), which provides:

Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of [N.J.S.A.] 39:4-50, [N.J.S.A. 39:4-50.4a], or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident.

[(Emphasis added).]

The motion judge denied the motion, concluding that the statute did not apply to plaintiff because he was not convicted of DWI and also because there were material disputed facts as to whether plaintiff was legally intoxicated at the time of the accident.

The court affirmed, agreeing with the motion judge that there were material factual disputes as to plaintiff's state of intoxication at the time of the accident.  More importantly, the court concluded the plain language of the statute denied a cause of action only to those plaintiffs actually convicted of DWI.