NEW JERSEY LAWYER

DAILY BRIEFING      11/03/2005


News Briefs

THIRD CIRCUIT RULES NO DEATH PENALTY FOR ROBERT MARSHALL
The 3rd U.S. Circuit Court of Appeals has affirmed the District Court ruling vacating the death sentence given in 1986 to Robert O. Marshall for hiring someone to kill his wife. No inmate in New Jersey has been on death row longer than Marshall. In Marshall v. Cathel, Circuit Judge Marjorie O. Rendell said the New Jersey Supreme Court unreasonably applied decisions relating to ineffective assistance of counsel. Marshall had challenged his attorney’s strategy regarding the testimony of his sons. She said their testimony “gave no clue as to [their] feelings for their father. … Surely, the jury was left wondering why the sons would not have pled for their father’s life and could have reasonably drawn a negative inference from their absence from the courtroom during the penalty phase, as well.” (A full text of Marshall, Facts-on-Call Order No. 92715, can be obtained from NJL Online or by calling 800-670-3370.) 11-2-05

LUM DANZIS PARTNER DIES AT 67
Memorial services have been held for Colin M. Danzis, a partner at Lum, Danzis, Drasco & Positan, who died Oct. 29. Danzis, 67, spent his entire career with the Roseland firm where he focused on taxation, transactional matters and corporate governance, as well as privatization of municipal service, charter schools and builder’s remedies in affordable housing cases. He litigated major cases in the U.S. Tax Court, including a leading case involving stock dividends in closely held corporations, and in the 3rd U.S. Circuit Court of Appeals involving guaranties and stock redemption obligations of an insolvent corporation. He graduated from New York University School of Law in 1962 and earned his LLM in taxation from the school the following year. 11-2-05

NEBRASKA JURY SLAPS BACK AT ‘SLAPP’ SUIT
Nebraska’s biggest hog company’s suit against some of its critics has resulted in a $900,000 jury award plus attorney fees for the defendants. Hayes County farmers Char Hamilton and Duane Fortkamp and Ogallala attorney Amy Svoboda were sued in 2001 after they wrote a critical letter to the Department of Environmental Quality when Sand Livestock applied for a permit to build a new facility. The critics said information alleging bad environmental management of the company’s existing facilities came from the department’s files, but the company claimed the letter was inaccurate. A Nebraska law passed in 1994 was designed to discouraged such “SLAPP” suits — strategic lawsuits against public participation — and the Sand case was the first test. The case drew nationwide attention, and the defendants were helped by a legal coalition headed by Robert F. Kennedy Jr. “These bullying tactics have a chilling effect on the democratic process,” Kennedy said. Anti-SLAPP measures have been proposed in the New Jersey legislature for a decade, but none has come to a vote. 11-2-05

HUNTING BY WEB BANNED IN PENNSYLVANIA
Pennsylvania has enacted a law prohibiting something that many folks might view as outrageous in the first place. Gov. Ed Rendell this week signed a bill banning “computer-assisted remote harvesting of an animal.” Pennsylvania lawmakers wanted to ensure a Texas rancher’s idea didn’t catch on in their state. The rancher created a site that would allow hunters to shoot live animals with remote-controlled guns fired by the click of a mouse. The ban passed both houses unanimously. 11-2-05

FIRST BLOGGING, NOW PODCASTING
Lawyers who want to tinker in the latest communication technology are recording audio feeds called podcasts. Users of MP3 players and Apple’s iPod can download podcasts and listen whenever they want, such as in their car or while walking, and store them for future reference. According to an online review of podcasters from Corporate Counsel, some are not just promotional fluff. Recent topics include Vioxx, sexual harassment, technology, environmental audits, tort reform, Sarbanes-Oxley compliance and patents. 11-2-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, NOVEMBER 2, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, NOVEMBER 2, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, NOVEMBER 3, 2005.


APPROVED FOR PUBLICATION
INSURANCE
HARDISON v. KING
Appellate Division, A-3790-04T5, approved for publication November 2, 2005. (13 pages). Facts-on-Call Order No. 92712

In this verbal threshold case, a comparative analysis under Polk v. Daconceicao was not required because the plaintiff claimed that his injuries were caused solely by his accident with the defendants in June 2002 and that the accident did not aggravate the minor injuries that he had suffered in 1991 and 1993.

HOSPITALS
THE COMMUNITY HOSPITAL GROUP, INC. v. BLUME GOLDFADEN BERKOWITZ DONNELLY FRIED & FORTE, P.C.
Appellate Division, A-5561-03T1, approved for publication November 2, 2005. (13 pages). Facts-on-Call Order No. 92713

A hospital (1) does not have standing to institute an invasion of privacy action on behalf of its patients under the federal Health Insurance Portability and Accountability Law, (2) may not maintain such an action after the patients themselves have sued for the invasion, and (3) may not institute such an action under its general right to manage its own affairs. However, the defendants were not entitled to attorney’s fees under the frivolous claims statute and Rule 1:4-8.

CONSTITUTIONAL LAW
NEW JERSEY STATE CONFERENCE-NAACP v. HARVEY
Appellate Division, A-6881-03T5, approved for publication November 2, 2005. (8 pages). Facts-on-Call Order No. 92714

N.J.S.A. 19:4-1(8), which disenfranchises anyone “who is serving a sentence or is on parole or probation as the result of a conviction of any indictable offense,” does not violate the New Jersey Constitution. N.J.S.A. 19:4-1(8) is authorized by Article II, Section 1, Paragraph 7 of the New Jersey Constitution, which empowers the Legislature “to deprive persons of the right of suffrage who shall be convicted of such crimes” as the Legislature may designate.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
UNIVERSITY OF MASSACHUSETTS MEMORIAL MEDICAL CENTER, INC. v. GOLDBERGER
Appellate Division, A-3866-04T3, November 2, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18758

Denial of the parties’ cross-motions for summary judgment in a legal malpractice action affirmed and remanded for further proceedings; the plaintiff medical providers, who were not clients of the defendant attorneys, alleged that the attorneys’ malpractice had prevented them from obtaining reimbursement for medical services that they had provided to the decedent, whom the attorneys had represented in a workers’ compensation action that led to a $50,000 settlement with the decedent’s parents; the medical providers sought to recover their legal expenses for this action and for an earlier action in Hudson County in which the medical providers settled their claim for medical services for $625,000; although the attorneys “clearly” had breached their duty to the medical providers by lulling them into believing that their bills would be presented for payment in the workers’ compensation action, the medical providers could not prove that the breach was the proximate cause of the damages they sought because they had not established that they would have won in the workers’ compensation action if they had intervened; contrary to the attorneys’ argument on appeal, the entire controversy doctrine did not bar the medical providers’ claim.

CONSUMER PROTECTION
LONG v. ENTERPRISE MOTORS, INC.
Appellate Division, A-7016-03T1, November 2, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18759

Judgment against the defendant car dealership for $6,996 in treble damages and $12,478.55 in attorney’s fees and costs affirmed in an action for violation of the Consumer Fraud Act arising from the plaintiff’s purchase of a vehicle; the defendant individual owners of the car dealership advertised the sale of a vehicle, but the advertisement did not mention that the sale was by a dealer; the owners’ argument that they always had intended to pay for transmission repairs to the vehicle that the plaintiff had purchased overlooked the premise of N.J.S.A. 56:8-2 and the regulations that govern the advertisement and sale of motor vehicles; the advertisement and the “front yard” transaction at the owners’ home was the “unconscionable commercial practice, deception, fraud, false pretense, false promise, [and] misrepresentation” by a used car dealer that is prohibited by §56:8-2; although the owners asserted that they told the plaintiff that they were used car dealers, the evidence “more than adequately” supported the trial court’s finding that the owners lacked credibility; the plaintiff’s cross-appeal from the amount of the attorney’s fee award lacked merit.

EMPLOYMENT LAW
ABEIGON v. UNITED PARCEL SERVICE, INC.
Appellate Division, A-4207-03T2, November 2, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18757

Summary judgment for the defendant employer in an action alleging violations of the Conscientious Employee Protection Act and the Law Against Discrimination affirmed substantially for the reasons expressed by the trial court; after the plaintiff deliveryman was threatened by an individual who was expecting a package containing illegal drugs, the plaintiff became frightened and requested a transfer; the plaintiff received the transfer he asked for and still was working in that position when the judgment was entered; there was no evidence to support the plaintiff’s claims that he had suffered retaliation for whistleblowing, that he was discriminated against due to his handicap, or that his medical condition was not properly accommodated.

PARENT AND CHILD
RYLICK v. RYLICK
Appellate Division, A-499-04T5, November 1, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18755

Post-divorce-judgment orders affirmed in part, reversed in part, and remanded; an August 2003 order appointed a therapeutic monitor to help the parties resolve parenting issues, and two August 2004 orders denied the defendant father’s requests for a credit for child support payments and for a recalculation of his child support obligation; as to the 2003 order, the appeal was untimely, and the appointment of a monitor was “entirely appropriate”; as to the 2004 orders, reversal and remand were required (1) because the trial court had failed to make proper findings of fact and conclusions of law, (2) because the trial court should not have denied oral argument, and (3) because the record was insufficient for the Appellate Division to determine whether the father’s child support obligation had been miscalculated due to a clerical error.

CIVIL ACTIONS
ROGERS v. UNITED WATER NEW JERSEY, INC.
Appellate Division, A-761-04T1, November 1, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18756

Summary judgment for the defendant private water company and the contractors that the company hired to repair a water main affirmed in an action for damages arising from an interruption to the plaintiff customers’ water service; the trial court correctly concluded that the action was barred by N.J.S.A. 48:19-22 and by the filed-rate doctrine; as to §48:19-22, refunds for periods of nonsupply are available only to customers who pay in advance, but none of the plaintiffs had paid in advance; as to the filed-rate doctrine, the action could not proceed because it was a “direct challenge” to the conditions of the company’s tariff, which been approved by the Board of Public Utilities and which provided that the company was not liable for damages arising from service interruptions; any challenge to the tariff had to be brought before the BPU.

FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
THACKER v. BOARD OF TRUSTEES FOR THE POLICE & FIRMEN’S RETIREMENT SYSTEM
OAL Docket Nos. TYP 8062-02 and TYP 2329-03, Agency Docket No. PFRS #3-10-26133, Initial Decision: September 15, 2005, Final Agency Decision: October 18, 2005. By Bruno, ALJ. (12 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the initial decision of the administrative law judge that reversed the Board’s original decision, which had applied N.J.S.A. 43:16A-15.3 to cancel the petitioner retired police lieutenant’s retirement benefits, to re-enroll him in PFRS, and to direct him to return retirement checks he had received because he had returned to employment covered by PFRS. The Board’s original decision was based on a finding that the petitioner was performing the same duties as a civilian manager in the City of Trenton Communications Division following his retirement from the Trenton Police Department that he had performed for the Department before his retirement. The ALJ determined (1) that the Board also had relied on N.J.S.A. 43:16A-3.1, which specifies the service with a law enforcement or firefighting unit that constitutes “service as a member” of PFRS, (2) that the record did not support the claim that the petitioner as a civilian manager had “administrative or supervisory duties over policemen or firemen” within the meaning of §43:16A-3.1, and (3) that the petitioner’s employment as a civilian manager was neither service with a law enforcement or firefighting unit nor service as a member of PFRS under §43:16A-3.1.

PENSIONS AND BENEFITS
MUCCIGROSSI v. BOARD OF TRUSTEES OF THE POLICE AND FIREMEN’S RETIREMENT SYSTEM
OAL Docket No. TYP 2293-04, Agency Docket No. PFRS #61854, Initial Decision: August 12, 2005, Final Agency Decision: October 18, 2005. By Tylutki, ALJ (temporarily assigned). (13 pages).

The Board of Trustees of the Police and Firemen’s Retirement System adopted the initial decision of the administrative law judge that affirmed the Board’s denial of accidental disability retirement benefits to the petitioner police officer. When the officer responded in 1993 to a call about a blender that had exploded at a laboratory, he was exposed to chemicals and had to be decontaminated. A doctor warned the officer of possible pulmonary problems in the future, and the officer began to have pulmonary problems in 2001. The Board had determined that no “traumatic event” had occurred and that the officer’s disability was not the direct result of the 1993 incident. The ALJ conducted a bifurcated proceeding to resolve the threshold issue of whether a traumatic event had occurred and concluded that the petitioner had not demonstrated that the 1993 incident was a traumatic event. Applying the test for a traumatic event set forth in Kane v. Board of Trustees, Police and Firemen’s Retirement System, the ALJ reasoned that the 1993 incident “clearly” did not satisfy the third prong, which requires the source of a petitioner’s injury to be “a great rush of force or uncontrollable power.”


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