ALM Properties, Inc.
Page printed from: http://www.njlj.com
Select 'Print' in your browser menu to print this document.
Daily Decision Service Alert: Vol. 22, No. 9 ? January 14, 2013
New Jersey Law Journal
STATE COURT CASES
10-3-8700 E & J Equities, LLC v. Board of Adjustment of the Township of Franklin, Law Div.-Somerset Cy. (Buchsbaum, J.S.C.) (25 pp.) Plaintiff E & J Equities brought a claim against the Board of Adjustment of the Township of Franklin, challenging the denial of plaintiffs application for a use variance to erect a digital billboard in the M-2 zone. Plaintiff also sued the Township of Franklin, challenging the constitutional validity of the Townships ordinance, which prohibits digital billboards in the M-2 industrial zone. The court finds the present ordinance directly curtails a form of speech in banning digital billboards. The court deems the ordinances ban on digital/electronic billboard unconstitutional, as it violates the First Amendment right to free speech. It will be excised from the ordinance. The ordinances ban on digital/electronic billboards does not violate the Equal Protection Clause of the Fourteenth Amendment. However, the Boards decision to deny plaintiffs conditional use variance was not arbitrary, capricious, or unreasonable, and is due deference by the court.
11-3-8701 B&H Securities Inc. v. Pinkney, Law Div. (Union Cty.) (Kessler, P.J.Ch.) (14 pp.) Plaintiff, a New Jersey corporation that supplies security and safety systems to business, filed this action against several former employees alleging breach of their confidentiality agreements arising out of their formation and participation in a competing business. After a trial against defendant Poisler, which also served as a proof hearing with respect to claims against defendants Pinkney, Advanced Integration Security LLC and the Vorst Group Inc., who failed to appear, the court finds that Pinkney breached his duty of loyalty and the restrictive covenant, misappropriated confidential information, and violated the Computer Related Offenses Act and that these charges are also applicable to AIS and Vorst, and it awards compensatory damages as to these claims as measured by plaintiff's lost profits, punitive damages, and attorney fees and costs. As to Poisler, the court finds that he breached the confidentiality agreement, misappropriated confidential information, and violated the CROS and it awards compensatory damages, attorney fees and costs but not punitive damages because of the absence of evidence establishing that his acts were actuated by malice or accompanied by wanton and willful disregard. [Filed January 2, 2013]
CREDITORS' AND DEBTORS' RIGHTS
15-2-8702 Educap Inc. v. Williams, App. Div. (per curiam) (7 pp.) Plaintiff appeals the Law Division order denying its motion pursuant to N.J.S.A. 2A:17-64 to require defendant, who co-signed a student loan on which his daughter had defaulted and had been ordered to pay $50 weekly out of her wages to repay, to make installments out of his paycheck until the loan was repaid. Declining to decide if the court has discretion to determine whether to enter an installment payment order pursuant to the statute if the creditor submits proof of the judgment and the debtor's liability, the panel holds that, assuming there is some discretion, the court mistakenly exercised that discretion in denying relief as defendant and his daughter are jointly and severally liable on the judgment and the execution against her wages has no bearing on whether he should also be required to pay a portion of his wages to satisfy the judgment and there is no support in the record for the lower court's finding that "the equities" required denial of plaintiff's motion.
23-2-8703 Pizzio v. Metrick, App. Div. (per curiam) (7 pp.) Plaintiff Joseph Pizzio was riding as a passenger in a van being operated by defendant Frank Metrick when it struck a utility pole causing Pizzio's injuries. Metrick's vehicle was insured by Appellant Citizens United Reciprocal Exchange (CURE) with liability limits of $100,000/$300,000. CURE's post-accident investigation revealed that although Pizzio had become a member of the Metrick household, Metrick never advised the insurer of that changed circumstance. Also, CURE discovered that Metrick had suffered a stroke and disability prior to renewing the insurance policy which he did not disclose. Lastly, Metrick was using the van for a business purpose which was also not disclosed. The motion court found that CURE had demonstrated a sufficient misrepresentation by Metrick in his renewal application to void the policy. It went on to conclude that Pizzio was an innocent third party who would enjoy only the minimum mandatory liability limits of a standard automobile policy -- $15,000/$30,000. Based upon the court's interlocutory decision, CURE provided indemnification to Metrick and settled the liability action on his behalf with Pizzio. On appeal, CURE does not seek to "upset the settlement." Where CURE seeks a prohibited advisory opinion, the appellate panel dismisses the appeal as moot.
LAND USE AND PLANNING
26-2-8704 Bisceglie v. Oz, App. Div. (per curiam) (15 pp.) Plaintiff appeals the dismissal of his action in lieu of prerogative writs alleging that defendants' planting of three cedar pine trees in their back yard violated the municipal fencing ordinances. Despite being supplied with an advance copy of the landscape plan, plaintiff never appealed to the zoning board of adjustment for a determination of the issue. The panel affirms for the reasons expressed below, finding no mistaken exercise of discretion in the judge's determination that exhaustion of administrative remedies was required. The panel adds that where an action relates to the interpretation of a zoning ordinance, the trial court has the discretion to determine whether the case should be dismissed for failure to exhaust administrative remedies, the case involves both interpretation and application of the ordinance, and that permitting plaintiff to fie this action would render nugatory the time constraint in N.J.S.A. 40:55D-72a.
14-2-8705 State v. Anderson, App. Div. (per curiam) (25 pp.) Defendant's convictions for reckless driving and failure to stop at a stop sign are affirmed, but his conviction for second-degree eluding is reversed and the matter remanded because the trial court erred in admitting into evidence audiotapes of two 9-1-1 calls made by a civilian as he followed defendant's car which contained dramatic and high prejudicial subjective statements conveying his perceptions of defendant's erratic driving and his supposed dangerousness that could have unduly prejudiced the jury's objective assessment of whether defendant's conduct created a risk of death or injury, thereby elevating the offense from a third-degree to a second-degree crime.
14-2-8706 State v. Isaksen, App. Div. (per curiam) (13 pp.) Defendant William Isaksen challenges his convictions of conspiracy to commit a theft by unlawful taking and burglary. At trial, defendant elected not to testify, and asked the judge to instruct the jury on the exercise of his right to remain silent. However, the judge omitted those instructions. The State presented strong circumstantial evidence that defendant conspired with co-defendant Justin Mercer to commit a burglary, theft or attempted theft and was Mercer's accomplice in the commission of the burglary. Mercer gave the police a statement that he and defendant had agreed to commit the burglary. At trial, Mercer testified that he did not recall making those statements, it was his idea to commit the burglary, he and defendant had not agreed to commit the offense, and defendant was not involved in the burglary. The jury was thus required to consider whether Mercer was telling the truth when he implicated defendant in the statement he gave to the police, or in his trial testimony. The judge's failure to instruct the jury on defendant's decision not to testify may have played a role in the jury's credibility determination and may have contributed to defendant's conviction. The appellate panel reverses and remands for a new trial.
CRIMINAL LAW EXPERT WITNESSES
14-1-8707 State v. Sowell, Sup. Ct. (Rabner, C.J.) (27 pp.) The experts opinion regarding the exchange of narcotics was improper because it related to a straightforward factual allegation that was not beyond the understanding of the average juror, and because the expert referred to facts not contained in the hypothetical question. Under the plain-error standard, however, defendants conviction is affirmed based on the overwhelming evidence of his guilt.
FEDERAL COURT CASES
CIVIL PROCEDURE JURISDICTION AND SERVICE OF PROCESS
07-7-8708 Shaffer v. Galub, Dist. Ct. (Hillman, U.S.D.J.) (4 pp.) The Court ordered defendant to file a certification attesting to his state of citizenship so that the Court could determine whether diversity of citizenship exits between the parties to support jurisdiction over plaintiffs action pursuant to 28 U.S.C. § 1332. Defendant filed his certification, wherein he supports his contention that he is a citizen of the state of New Jersey, which is also plaintiffs state of citizenship, by attaching numerous documents. The Court declines to grant plaintiffs renewed request for jurisdictional discovery. The Court orders defendant to file a supplemental certification attesting to: (1) whether he has been registered to vote in the past 10 years, and if so, (2) in what state and at what time, and (3) whether and when he voted during that time period. The Court directs defendant to file a supplemental certification attesting to: (1) whether he or his business maintains an EZ-Pass account, and if so, (2) a full statement of such account or accounts for the past 12 months. The Court will allow plaintiff the opportunity to respond to both of defendants certifications. [Filed December 31, 2012]
09-7-8709 United Communities LLC v. Hallowell International LLC, Dist. Ct. (Williams, U.S.M.J.) (7 pp.) In this action asserting claims for breach of warranty and fraud in connection with plaintiff's purchase of heat pumps from defendants, the court grants plaintiff's motion seeking final judgment by default and, after finding that plaintiff has submitted sufficient evidence regarding its purchase of replacement pumps and parts, labor costs to replace the defective pumps, and employee wages and benefits to service the defective pumps, it awards plaintiff $878,997.95 in damages. [Filed January 10, 2013]
23-7-8710 Owens v. American Hardware Mutual Ins. Co., Dist. Ct. (Hillman, U.S.D.J.) (11 pp.) While employed by Delaware Valley Lift Truck, Inc. (DVLT), plaintiff was involved in an automobile accident in New Jersey caused by Imran Khan. The car Khan was driving was insured by Allstate Insurance Company with $50,000 in liability coverage. The DVLT van was insured by defendant American Hardware Mutual Insurance Company, which provided $500,000 in Pennsylvania underinsured motorist (UIM) coverage. Plaintiff filed suit against American Hardware alleging that the UIM policy requires that his claim be arbitrated, but American Hardware refused to go to arbitration. Plaintiff alleges American Hardware is equitably estopped from denying his UIM claim and refusing to arbitrate his UIM claim because he settled his case against Khan, and accepted a fraction of his damages, based on the representation by American Hardware that up to $500,000 was available to him through the UIM policy. Plaintiffs motion for summary judgment is denied without prejudice to plaintiffs right to re-file his motion. If he does so, he must comply with Local Civil Rule 56.1 by providing a separate statement of undisputed material facts. Plaintiff must present his argument for the application of New Jersey law, and American Hardware will have the opportunity to argue why Pennsylvania law should apply. Both sides should address New Jerseys choice of law rules. [Filed December 31, 2012]
LABOR AND EMPLOYMENT
25-7-8711 Ribustello v. Wilson Sporting Goods Company, Dist. Ct. (Martini, U.S.D.J.) (3 pp.) Plaintiff, a New Jersey citizen and formerly a National Account Manager for defendant, filed this action against Wilson, a Delaware corporation with its principal place of business in Illinois, Considine, its president, and Kirchner, its Vice President of Sales and Service, both Illinois residents, asserting causes of action for discrimination in violation of the New Jersey Law Against Discrimination, intentional infliction of emotional distress, and quantum meruit. Determining that it lacks personal jurisdiction over Considine and Kirchner because the facts alleged by plaintiff are insufficient to show that they purposely availed themselves of the benefits and protections of New Jersey law, the court grants their motions to dismiss the complaint. [Filed January 9, 2013]
32-7-8712 Begley v. Bristo-Myers Squibb Co., Dist. Ct. (Wolfson, U.S.D.J.) (26 pp.) In this action alleging that plaintiff suffered injury as the result of defendants' design, development, manufacture, testing, packaging, promoting, marketing, distributing, labeling and sale of their prescription drug Plavix, and asserting various Illinois state and common law claims against defendants, including failure-to-warn, defective design, manufacturing defect and negligence, the court grants defendants' motion for summary judgment based on a number of theories, including the learned intermediary doctrine under Illinois law. [Filed January 11, 2013]
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-7-8713 Gallo v. PHH Mortgage Corporation, Dist. Ct. (Hillman, U.S.D.J.) (39 pp.) In this proposed class action, Plaintiff Patrick Gallo brings claims against Defendant PHH Mortgage Corporation (PHH) on behalf of himself, and all other similarly situated homeowners who have or had residential mortgage loans owned and/or serviced by Defendant PHH Mortgage ... and, in connection therewith, were required to pay for lender-placed or force-placed hazard insurance policies. PHH filed a motion to dismiss. The Court grants the motion with respect to Plaintiffs claims for breach of contract founded upon an express contractual duty. But Plaintiff has alleged sufficient facts to support a claim that Defendant breached the implied covenant of good faith and fair dealing. In light of the express contract between the parties, Plaintiffs unjust enrichment claim is also dismissed. As to Plaintiffs CFA claim, the Court finds that an actual conflict exists between the consumer fraud laws of Pennsylvania and New Jersey but is unable to proceed with a fact-intensive choice-of-law determination at this early stage of the proceedings. [Filed December 31, 2012]