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VOL. 2, NO. 156 DECISIONS RELEASED SEPTEMBER 6, 1994 AND SEPTEMBER 7, 1994 ATTORNEY/CLIENT – CONTRACTS 04-2-3961 Garrett M. Heher v. Smith, Stratton, Wise, Heher & Brennan, et al., App. Div. (13 pp.) Where plaintiff former partner sued defendant law firm challenging the partnership agreement requiring former partners to forfeit benefits, which also required all disputes to be arbitrated, trial court erred in holding that the forfeiture provisions were not arbitrable, since arbitrators are not precluded from deciding issues implicating public policy. CORPORATIONS 12-2-3962 Duncan Thecker Assocs., et al. v. Robert Schug Co., et al., App Div. (4 pp.) Trial court erred in granting summary judgment to plaintiff creditors holding defendant company owner personally for debts incurred after his business was incorporated, since factual questions existed as to whether notices of incorporation to creditors were sufficient. ENVIRONMENT – GOVERNMENT 17-2-3963 In the Matter of Passaic County Health Dep’t CEHA Certification and Delegation of Authority, App. Div. (8 pp.) DEPE commissioner did not abuse discretion in certifying the Passaic County Health Department to implement the County Environmental Heath Act directives throughout Passaic County – and not certifying the Paterson Health Department to implement the directives within the city of Paterson – since the county’s program was inconsistent with Paterson’s request to provide services within the city. FAMILY LAW 20-2-3964 Linda Solomita v. Chris Solomita, App. Div. (5 pp.) Despite husband’s claim that wife’s custody of children should be terminated because wife’s live-in boyfriend was abusing her – which resulted in a domestic violence restraining order – there was not proof of changed circumstances that would support termination of custody. INSURANCE – AUTOMOBILES 23-2-3965 Victoria Andujar and Miguel Andujar v. Thomas Talley, App. Div. (4 pp.) Where plaintiff injured her back in an automobile accident, trial court properly dismissed the complaint for failure to meet verbal-threshold criteria, since plaintiff did not submit sufficient proof that the back injury rendered her unable to work. LABOR AND EMPLOYMENT – TORTS 25-2-3966 Joseph L. Picogna v. Bd. of Educ. of the Township of Cherry Hill, et al., App. Div. (11 pp. incl. concurrence and dissent) Although trial judge, after bench trial, properly found that plaintiff was wrongfully terminated without cause, award of damages to plaintiff for the balance of his working life was highly speculative and shocked the judicial conscience. LAND USE 26-2-3967 Bergen Community Regional Blood Center v. Mayor and Council of the Borough of Paramus, et al., App. Div. (4 pp.) Where board of adjustment granted blood center’s use variance to build an addition, but on appeal the Paramus mayor and council denied the application, trial court properly overturned the application denial, since the mayor and council’s decision was not supported by the evidence. UTILITIES 37-2-3968 Leo Orlandi and Geoffrey Orlandi v. Jersey Cent. Power and Light Co. and Tree Preservation Co., Inc., App. Div. (13 pp.) New Jersey Board of Regulatory Commissioners properly held that farm owners failed to prove that utility company, which had an utility easement, and its contractor went beyond the “necessary” trimming of plaintiffs’ tree away from power lines, and negligence suit was properly denied. CRIMINAL LAW AND PROCEDURE 14-2-3969 State v. Vinson Bennett, App. Div. (7 pp.) Although prosecutor’s comments, during summation, on the possible uses that the defendant may have had for the drugs allegedly in his possession were improper, reversal of conviction of possession of a controlled dangerous substance was not warranted, since defense counsel did not object and the remarks did not constitute plain error. 14-2-3970 State v. Robert B. Burgit, App. Div. (7 pp.) Where defendant was brought to trial in New Jersey for cocaine and heroin possession 203 days after asking the charges to be brought to trial under the Interstate Agreement on Detainers, N.J.S.A. 2A:159A-1 et seq., while in prison in Pennsylvania, trial court properly denied defendant’s request to dismiss the indictment for failure to begin the trial within 180 days after his request, since the statute allows a trial court to grant any “necessary or reasonable continuance.” 14-2-3971 State v. Isaac Cruz, App. Div. (13 pp.) Where defendant was convicted of three controlled dangerous substance offenses, trial court properly let the arresting officer testify as to his use of a rolotape device to measure the defendant’s distance from a school without the officer’s first being qualified as an expert, since it was based on his personal experience, and was not sufficiently complicated. 14-2-3972 State v. Alexander J. Garay, App. Div. (6 pp.) Where defendant was convicted of two counts of fourth-degree aggravated assault and one count of third-degree aggravated assault, trial court erred in failing to merge the convictions, since there was one single aggravated assault. CRIMINAL LAW AND PROCEDURE – ALCOHOLIC BEVERAGES 14-2-3973 State v. Jan Konopka, App. Div. (4 pp.) Where defendant was convicted of drunk driving after an officer found him slumped over the truck’s steering wheel in the middle of a two-way road with the headlights on, the key in the ignition in the on position, but the motor not running, trial court properly found operation of the motor vehicle, since the truck was located in an area not normally used for parking.

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