NEW JERSEY LAWYER

DAILY BRIEFING     03/01/2006


News Briefs

HUNTERDON BAR OFFERS LATINOS LEGAL INFO
An influx of Spanish-speaking people into Hunterdon County has prompted the Hunterdon County Bar Association to plan free seminars to educate Latinos about New Jersey law, legal procedures, citizens rights and legal resources available to them. The seminars will be presented by bilingual attorneys. Topics include divorce, criminal law, arrests, summonses, jail, violations, traffic court, driver’s licenses, child support, domestic violence and abuse. Suzanne Vrancken, the bar’s executive director, says the group sought a $3,500 grant from the Interest on Lawyers’ Trust Accounts fund for the seminars after judges were finding more Latinos appearing before them who were at a disadvantage because of cultural and language barriers. “These people are coming into the courts clueless, and so there’s a need there to inform them about New Jersey law and procedure,” she said. 2-28-06

FARMER’S LOSS IN COURT FORCES HIM TO CLOSE PRESERVATION DEAL
Lee Mixner, mired in Chapter 12 bankruptcy that protected him from creditors while he reorganized his farm’s finances, is being forced to go through with preservation of his 109 acres. Mixner, a member of the Hopewell Township Planning Board in Cumberland County, balked at signing closing papers and a subdivision plan that would turn his property over to the township for open space. He sought to back out of the preservation deal after land values began increasing. The county Agriculture Development Board took Mixner to court to enforce the September 2004 agreement. U.S. Bankruptcy Judge Gloria Burns ordered the farmer to seal the deal, which will give him about $4,000 per acre. Other land in the area reportedly is going for $25,000 per acre to developers. 2-28-06

PETTY POLITICAL SHENANIGANS CREATES A ROW
It was a perfect case for mediation to keep a matter of this ilk out of court. And while the Case of the Stolen Campaign Signs resulted in a mediated settlement, the parties are still battling in Brick Township. Nearly three months after finishing last in a three-way race for two town council seats, Susanne Dyer has apologized in public at a Brick Township Council meeting for swiping her opponents’ campaign signs the day before the Nov. 8 election. She was miffed because her own signs were torn to shreds and appeared to be slashed by a box cutter. But the victor, Councilman Stephen C. Acropolis, is still complaining, saying her general, short statement wasn’t what they agreed upon in mediation. “It’s an apology,” said Dyer. “I don’t understand what else he wants from me.” 2-28-06

STONE HARBOR PUTS LOCAL LAWS ONLINE
Heading to the beach in Stone Harbor and want to know whether you can take your football and play? Want to find out what construction permits you need before picking up a hammer? It’s all available with a few keystrokes. Borough officials say the new online version of its otherwise thick book of ordinances will make it easy, especially for out-of-towners who own property in the beach community, to look up zoning and other rules and regulations. The ordinances are searchable, too. Type in “dog” and you get everything about licensing and regulating canines. Type in “clothes” and you find that changing in a car is prohibited. Type in “beach” and discover it’s outlawed to “throw, bat or catch a baseball, football, basketball, softball, metal horseshoes, beach darts, or engage in the playing of any game, which endangers the health and safety of others.” 2-28-06

FEDERAL JUDGE STRIKES DOWN PENNSY GUN LAW
Saying it violates the federal Privacy Act, a federal judge in Pennsylvania has struck down a state requirement that anyone seeking a permit to carry a concealed weapon or to purchase a gun must provide their Social Security number. Lawyers for the Pennsylvania State Police are reviewing the opinion of U.S. District Judge Juan R. Sanchez of the Eastern District of Pennsylvania and are considering whether to appeal. The ruling in Stollenwerk v. Miller is considered significant since it comes as most government agencies are requiring more information from the public. 2-28-06

A PAY INCREASE FOR JUDGES?
After the lame-duck legislature rejected a pitch by Chief Justice Deborah T. Poritz for a pay raise for nearly 450 judges, there was some hope the salary issue might be considered in the new session. But, now, there's little enthusiasm in Trenton for approving pay raises anytime soon. In fact, it might be the end of 2007 before it even comes up. An article detailing the salary situation was published in the Feb. 27 New Jersey Lawyer. To read the full story at no charge, visit www.njlnews.com.




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Today's Decision Summaries

FROM THE NEW JERSEY SUPREME COURT, TUESDAY, FEBRUARY 28, 2006:
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, FEBRUARY 28, 2006:

ENVIRONMENTAL LAW
IN RE ADOPTION OF N.J.A.C. 7:26E-1.13
New Jersey Supreme Court, A-20/21, February 28, 2006. (5 pages). Facts-on-Call Order No. 92870.

In a one-sentence opinion, the New Jersey Supreme Court affirmed substantially for the reasons expressed in the Appellate Division opinion reported at 377 N.J. Super. 78 (2005). N.J.A.C. 7:26E-1.13, which was adopted by the Department of Environ-mental Protection to set minimum groundwater and surface water remediation stan-dards for the cleanup of contaminated property under all New Jersey environmental remediation laws, does not violate the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1 to -31, and therefore is valid.


THE SUPREME COURT has announced that it will release an opinion in IN RE ALLEGED NON-COMPLIANCE BY RCN OF NY, A-138, on March 1, 2006. The is-sue on appeal in RCN of NY addresses whether a satellite master antenna television system constitutes a “cable system” within the meaning of 47 U.S.C. §5227(7) and is therefore subject to the jurisdiction of the Board of Public Utilities.



APPROVED FOR PUBLICATION
PRODUCTS LIABILITY
BANNER v. HOFFMANN-LA ROCHE INC.
Appellate Division, A-4493-03T3, approved for publication February 28, 2006. (27 pages). Facts-on-Call Order No. 92871.

An action by the plaintiff Virginia residents seeking damages from the defendant New Jersey drug manufacturer and distributor in connection with the birth of their son — who was born disabled after the plaintiff mother became pregnant while taking the drug Accutane — was properly dismissed because the warnings that the defendant supplied were adequate as a matter of law.

CHOICE OF LAW
ROWE v. HOFFMAN-LA ROCHE INC.
Appellate Division, A-4522-03T3, approved for publication February 28, 2006. (36 pages). Facts-on-Call Order No. 92872.

The Michigan plaintiff’s complaint against the defendant New Jersey drug manufac-turer and distributor alleging a failure to warn of a side effect of the prescription drug Accutane was improperly dismissed based on Michigan products liability law, which provides that prior approval of a warning by the U.S. Food and Drug Administration renders the warning adequate as a matter of law. Instead, N.J.S.A. 2A:58C-4 of the Products Liability Act — which provides that FDA approval of a warning creates only a rebuttable presumption that the warning is adequate — applies to the plaintiff’s claim pursuant to a governmental interests analysis. Judge Wefing dissented.

NOT APPROVED FOR PUBLICATION
CIVIL RIGHTS
PELL v. ROSS
Appellate Division, A-4799-03T5, February 28, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19296.

Summary judgment for the defendant judges, the defendant chief probation officer, the defendant administrative director of the courts, and the defendant Sheriff affirmed in an action alleging violations of 42 U.S.C. §1983 and New Jersey law in connection with the plaintiff attorney’s arrest and incarceration for nonpayment of child support; the Appellate Division was “concerned” (1) that the probation office had the attorney incarcerated instead of accepting a check from his attorney firm account or taking him to the bank to obtain a certified check or a bank check and (2) that no hearing was held before the attorney was taken into custody, especially because courts were in session when he was incarcerated; however, the complaint was properly dismissed because there was no adequate showing that the alleged constitutional violations were based on an official policy or custom and because there was no State policy in-tended to allow child support obligors to be incarcerated without a hearing; to the ex-tent that the attorney sought relief against the defendants in their individual capaci-ties, they were shielded by judicial and quasi-judicial immunity; the claims under New Jersey law were properly dismissed for failure to comply with the notice provisions of the Tort Claims Act.

WORKER'S' COMPENSATION
CHERILUS v. LION EXTRUDING CORP.
Appellate Division, A-1919-04T3, February 28, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19297.

Division of Workers’ Compensation judgment that awarded the petitioner worker 5 percent permanent partial disability benefits affirmed; while firing the petitioner, the respondent employer assaulted and injured him; the petitioner later obtained a new job; even if the petitioner’s earning capacity was not impaired, the award was justified based on the first doctor’s findings, which the judge of compensation accepted, and on the petitioner’s testimony that he was able to perform his new job without difficulty because the work was “not heavy”; the judge’s finding that the petitioner’s “true dis-ability lies somewhere between the varying estimates of the experts” was entitled to respect both as a credibility assessment and as an exercise of expertise; the judge did not violate Allen v. Ebon Servs. Int’l, Inc. by accepting the findings of the first doc-tor, who examined the petitioner 19 months after the assault but almost two years be-fore the second doctor.

TAXATION
BRIGHTON v. BOROUGH OF RUMSON
Appellate Division, A-3383-04T5, February 28, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19298.

Tax Court judgment that affirmed the denial of the plaintiff landowners’ application to have their 6.167-acre property valued, assessed, and taxed as farmland for the 2002 tax year affirmed substantially for the reasons expressed by the Tax Court; the land-owners claimed that their property qualified for farmland assessment under N.J.S.A. 54:4-23.2 because more than five acres of their property were “actively devoted” to agricultural uses, including raising and selling miniature horses and keeping bees to produce honey for sale; the defendant Borough claimed that only 4.717 acres of the property were devoted to agricultural use; the Tax Court properly applied the “domi-nant use” test to ascertain whether the property was “actively devoted” to agricultural use under §54:4-23.2, properly determined that the “bulk of the property” was “not actually devoted to anything,” and properly concluded that the landowners had not established that agricultural use of at least five acres of the property was the dominant use.

EMPLOYMENT LAW
TOTARO, DUFFY, CANNOVA & CO., LLC v. LANE, MIDDLETON & CO., LLC
Appellate Division, A-2649-03T1, February 27, 2006, not approved for publication. (12 pages). Facts-on-Call Order No. 19295.

Judgment that found the defendant accountant liable for violating a non-solicitation agreement with the plaintiff accounting firm and that awarded $67,612.35 in damages to the firm affirmed; despite the agreement, the accountant mailed a “solicitation packet” to the firm’s clients when he opened a competing practice; within two weeks of the mailing, the firm received from 159 clients disengagement letters that were prepared by the accountant, who now does work for 140 of those 159 clients; as to liability, the conclusion that the defendant breached the agreement was “amply supported” by the evidence; as to the “more difficult question” of calculating damages, “at first blush” there was “no rational basis” to link the accountant’s breach of contract to the firm’s damages because “all of the evidence” indicated that the clients who retained the accountant after he left the firm were not induced by the packets; however, the “close temporal proximity” between the mailing of the packets and the firm’s receipt of the 159 disengagement letters was sufficient evidence to infer that, without the accountant’s interference, the firm would have had the economic benefit of serving those clients; the calculation of the firm’s actual damages was “sound”; Judge Wefing dissented.

PUBLIC EMPLOYEES
VECCHIA v. BOARD OF TRUSTEES, POLICE AND FIREMEN’S RETIREMENT SYSTEM
Appellate Division, A-5636-03T5 and A-5639-03T5, February 27, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19293.

Final decision of the Board of Trustees of the Police and Firemen’s Retirement Sys-tem that denied on remand the appellant firefighters’ requests to enroll in PFRS re-manded; the Board had initially concluded that the firefighters, who were former vol-unteer firefighters and later became paid firefighters, did not satisfy the N.J.S.A. 43:16A-3(1) age requirement but had conceded that the requirement had been waived for certain enrollees based on equitable estoppel; on remand, the Board had to consider whether the firefighters qualified for such a waiver, and it concluded that they did not; on appeal from the remand, the Appellate Division was “troubled” by the firefighters’ argument that the Board had relied on evidence that was not disclosed to them and by the Board’s failure to respond to that argument; the “proper course” was to grant the firefighters’ motion to supplement the record and to remand the matters again to allow the firefighters to submit evidence and written arguments to establish how their circumstances compare to enrollees who had obtained waivers.

PUBLIC EMPLOYEES
IN RE BUCCHI
Appellate Division, A-1266-04T2, February 27, 2006, not approved for publication. (12 pages). Facts-on-Call Order No. 19294.

Final decision of the Merit System Board that determined that the five appellant civil service employees of the Department of Education were not eligible to sit for the promotional examination for the position of Management Assistant affirmed; the appellants had to substitute work experience for education to meet the posted requirements for the position; the Division of Selective Services determined that the appellants’ experience was insufficient, and the Board denied their appeals and their motions for reconsideration; the Board’s decision comported with legislative policies and was not arbitrary, capricious, or unreasonable; the appellants did not present “good cause” under N.J.A.C. 4A:4-2.6 to permit out-of-title work to be credited toward the experience requirement, and the record did not indicate that their out-of-title work was the type of experience required for the position; furthermore, the record did not establish the appellants’ eligibility based on the reclassification of three of them after the examination closing date or on past practice.

To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)



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