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Vol. 3 No. 119 DECISIONS RELEASED JUNE 26, 1995 STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE — PLUMBERS 01-2-5988 I/M/O the Suspension or Revocation of the License of Joseph Fichner, Jr., App. Div. (11 pp.) The decision of the N.J. State Board of Master Plumbers to suspend plumber’s license for engaging in unconscionable overpricing, occupational misconduct and fraud) is reversed since several of the board members were not qualified under N.J.S.A. 45:14C-3 to serve on the board, and the matter is remanded for a new hearing before a properly constituted quorum. [Approved for publication June 23, 1995.] [Available online in N.J. Full- Text Decisions.] FAMILY LAW 20-2-5989 Joanne P. Nager v. Robert S. Nager, App. Div. (8 pp.) Father,s appeal from judicial order that he pay 80 percent of his daughter’s college education expenses is affirmed, since the evidence adequately supports the judge’s calculations of the parties’ respective finances and determination of an 80/20 split in payment of the expenses incurred (and to be incurred). 20-2-5990 Denise Bertolo v. Tom Bertolo, App. Div. (13 pp.) The trial judge should not have awarded wife equitable distribution of proceeds derived from the 1989 sale of Rahway property, since any entitlement she had should have been limited to the increase in property value between her 1972 marriage and her 1976 divorce complaint, and the reduction in the mortgage principal between those two dates. LABOR AND EMPLOYMENT 25-2-5991 Joseph Connell, et al. v. National Car Rental, Inc., et al., App. Div. (8 pp.) Summary judgment in favor of employer, dismissing plaintiff’s complaint alleging retaliation in violation of the Conscientious Employee Protection Act, was proper since the act provides that any action be filed within one year of the act of retaliation, and plaintiff’s complaint was filed more than two years after the last alleged specific act of retaliation. LAND USE 26-2-5992 Midas Realty Corp., et al. v. Planning Bd. of the Borough of Park Ridge, App. Div. (10 pp.) Because there was insufficient evidence in the record to accurately ascertain whether applicant’s proposed use of portion of shopping center as an automobile service facility contemplated a substantial change in the use of the property, such that the variance running with the land would be lost, the decision denying the application is vacated and remanded. FEDERAL COURT CASES IMMIGRATION 51-7-5993 Balarangini Ratnam v. Warren Lewis, Dist. Dir., Immigration and Naturalization Svc., U.S. Dist. Ct. (45 pp.) The evidence requires a finding that the past actions taken against the petitioner in her native country of Sri Lanka (including arrest and torture) were on account of her race and her husband’s political opinions, and the findings of the immigration judge and the immigration appeals board leading to a contrary conclusion cannot be supported; therefore, since petitioner has demonstrated that there is a clear probability of persecution should she return to her native land, her application not to be deported to Sri Lanka is granted and, having established that she is entitled not to be deported, she also has met the less stringent standard for asylum, and a writ of habeas corpus will be issued. [Approved for publication.] [Available online in N.J. Full- Text Decisions.] INSURANCE 23-7-5994 General Electric Co. v. Arkwright Mut. Ins. Co., et al., U.S. Dist. Ct. (11 pp.) In a case where a fire damaged buildings and equipment at a GE plant in Mexico, and a dispute arose over the insurable loss attributable to the interruption of business under all-risk insurance policy issued and adjusted by defendants, GE’s motion for partial summary judgment is denied, since GE functionally broadened the scope of its original motion from merely determining when the “period of interruption” ended to include how “actual loss sustained under the policy” should be calculated, and GE has not shown clearly that its interpretation of the policy is the only possible reading, nor has it demonstrated through the application of case law and undisputed material facts that its policy interpretations can be resolved in its favor as a matter of law. PRODUCT LIABILITY — DISCOVERY 32-7-5995 Williams v. American Cyanamid, et al., U.S. Dist. Ct. (8 pp.) In a case where an infant plaintiff was given an oral polio vaccine manufactured by defendant, and she later developed AIDS, her parents sued maker of vaccine in this product liability action, and their motion to conduct certain tests on certain “monopools” of the vaccine to determine the presence of various strains of the HIV virus is granted as to tests for HIV-1, since that is the strain with which plaintiff is infected, but denied as to HIV-2 and SIV, since plaintiffs have not produced any expert opinion supporting their theory that the other strains can mutate into HIV-1; since all parties agree that the failure to take proper procedural precautions greatly increases the risk of obtaining a false positive, the testing must adhere strictly to certain specified procedures. SECURITIES 50-7-5996 Sec. and Exch.Comm’n v. Hughes Capital Corp., et al., U.S. Dist. Ct. (15 pp.) In the SEC’s renewed summary judgment motion against an individual defendant involved in a sham public offering in violation of Securities Act of 1933, since the motion claims violations which do not require proof of scienter, and, since SEC has proven that the defendant negligently participated in the scheme and that his actions operated as fraud upon the securities purchasers, the SEC’s motion is granted; a request for a permanent injunction against defendant, however, is denied, since his wrongdoing was not shown to be intentional and the SEC has not established a reasonable likelihood that the wrongs will be repeated. CRIMINAL LAW AND PROCEDURE 14-7-5997 Michael A. Davis v. Patrick Arvonio, et al., U.S. Dist. Ct. (5 pp.) Prisoner’s petition for a writ of habeas corpus is denied, without prejudice, since the doctrine of exhaustion requires that any claim sought to be presented to federal court on a habeas corpus application first should have been presented to the state courts, giving those courts the first opportunity to consider the claim, and, since petitioner’s claim of ineffective assistance of counsel, although made in a petition for post-conviction relief and denied, was not appealed, prisoner did not exhaust all of his possible remedies.

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