Font Size: 
Judge's Knuckles Rapped for Giving Litigant a 'Sophie's Choice'
New Jersey Law Journal
April 03, 2009
The judiciary appreciates judges working hard to keep calendars moving and avoid backlogs, but an Ocean County judge pushed the envelope too far in Pangione v. Floral Expressions Inc.
Superior Court Judge Thomas O'Brien denied plaintiff Linda Pangione's request to delay trial of her suit for six months so she could care for her mortally ill, 89-year-old father in Florida.
O'Brien complained the case was "backlogged," since it was two years and four months old, and said it was "time to go." After some wrangling with counsel, he dismissed the suit with prejudice.
On Tuesday, an appeals court called that unduly harsh, restored the case and remanded it for a new trial date.
"At the time of trial, this plaintiff was faced with a 'Sophie's Choice.' She could have abandoned her eighty-nine-year-old seriously ill father in Florida to pursue this litigation or she could have stayed to care for him and his affairs and see any chance of any adjudication of this litigation on the merits evaporate," said Appellate Division Judges Thomas Lyons and Alexander Waugh Jr. "Such a situation was unfortunate, special, and avoidable. It merits a solution short of dismissal with prejudice in light of the judiciary's fundamental principles."
Pangione's was a tale of woe befitting a Dickens novel. A floral designer at a Manahawkin flower shop, she was fired in mid-2005 and sued later that year for gender discrimination. When the case came up for trial, it was twice adjourned, first due to the employer's illness and then because Pangione's mother died in Florida on Jan. 2, 2008.
As the new trial date of March 31, 2008, loomed, Pangione's lawyer, Jordan Irwin, asked O'Brien for another adjournment. Pangione was still in Florida with her widowed father, who had a heart condition, diabetes and limited mobility and needed around-the-clock care.
Irwin said Pangione had meant to return to New Jersey by the end of January but could not because her sister had filed papers seeking to have the father declared incompetent and challenging control of his estate. A guardian appointed by a Florida court had named Pangione as the caretaker.
O'Brien denied the request and Irwin appeared on the March 31 trial date to renew it, asking for a delay until at least September or October. O'Brien suggested he could dismiss the case without prejudice so it could be refiled later, but defense counsel objected. O'Brien then offered a one-week adjournment, but Irwin said Pangione could not make it back by then due to her family situation and fear that her father might die while she was away. The defense objected to another lengthy delay.
O'Brien, again citing the backlog issue, said "this isn't the only case I have to worry about, Mr. Irwin. Your client may think that. She may think she's the only one in the world with problems, but I can assure you there is [sic] a lot of people with a lot of problems.
"I don't know that this problem is so unusual, so unique," he added. "It sounds like it's ongoing, it's not going to resolve itself. So, I am going to dismiss the case with prejudice."
On appeal, Lyons and Waugh said that while court rules, particularly R. 1:1-2, are meant to eliminate "unjustifiable expense and delay," the goal is not "the elimination of any and all delay but the elimination of 'unjustifiable' delay."
The judges said they understood the pressure on O'Brien to reduce case backlogs and the desire on the part of the defense to dispose of the case. "But these notable objectives do not stand alone. The fundamental aim is a just determination following a trial on the merits," they said.
O'Brien could have granted a shorter delay in order for Pangione to resolve the litigation involving her sister and arrange for someone to care for her father while she was in New Jersey, they said, adding, "The principles of achieving a just determination and fairness in the administration of the Rules outweigh any short delay in this situation."
Floral Expressions' lawyer, Judy Lansing, says O'Brien did nothing inappropriate. "The judge gave [Pangione] every break he could," says Lansing, of Lakewood's Lansing and Hannum.
The Appellate Division, she says, "didn't consider both sides. The opinion never speaks to my client's position and expenses, and I think that's wrong."
Irwin, of Cherry Hill's Begelman Orlow & Melletz, did not return telephone calls seeking comment.
