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Vol. 3 No. 219 Decisions Released Nov. 17, 1995 STATE COURT CASES ADMINISTRATIVE LAW — WASTE HAULERS — RATES 01-2-7058 I/M/O Petition of A. Fiore & Sons for a Temporary and Permanent Increase in Rates, App. Div. (33 pp.) Board of Public Utilities had the power and authority to rescind an interim rate increase that had been granted to waste hauler, and hauler was granted all aspects of due process throughout the proceedings, so the decision to rescind rate increase is affirmed. CONSTITUTIONAL LAW — TEACHERS — OATH OF ALLEGIANCE 10-2-7059 Stephen John Gough v. State of N.J., App. Div. (35 pp.) The traditional statutory oath of allegiance required of school teachers does not violate state or federal constitutional rights of speech and expression or inhibit political beliefs or activities, and teacher’s challenge was properly dismissed. [Approved for publication Nov. 17, 1995. Available Online in NJ Libraries -Full-Text Decisions] FAMILY LAW 20-2-7060 Lynn J. Razzano v. Francis C. Razzano, App. Div. (3 pp.) Since the judge had previously allocated college expenses to be paid two-thirds by the husband and one-third by the wife, he erred when he inexplicably revised the parties’ respective obligations so that the wife must now pay 75 percent to 80 percent of those expenses, and that decision is reversed. INSURANCE — VERBAL THRESHOLD 23-2-7061 Pamela Sienkiewicz v. Frederick B. Stephans, et al., App. Div. (5 pp.) Although plaintiff alleges that her insurance company erroneously issued her automobile policy with the verbal threshold option, she is precluded as a matter of law from attempting to reform her insurance policy unilaterally, since she has not brought a third-party action joining the insurance company, and, therefore the judge properly applied the verbal threshold and dismissed her case, holding that there was no credible medical evidence to demonstrate that plaintiff’s objectively observable conditions did not abate or resolve by the date of her release from medical treatment. LAND USE 26-2-7062 Palisade Emergency Residence Corp. v. Bd. of Adjustment of the City of Union City, App. Div. (4 pp.) Judge’s finding that board of adjustment erred when it denied plaintiff site plan approval and variance to operate an emergency residential facility for the homeless is affirmed, since the facility is an inherently beneficial use, and the board’s decision was contrary to the credible evidence. NEGLIGENCE — APPORTIONMENT OF LIABILITY 31-2-7063 Betty Jane Cottrell, et al. v. Monmouth Medical Center, et al., App. Div. (7 pp.) Where hospital employee ran over the foot of a patient’s mother with a loaded garbage cart, the trial judge erred by instructing the jury to apportion negligence between the employee and the hospital, since there is no basis for a finding of the hospital’s independent negligence, such as negligent hiring or supervision, and the sole basis for the hospital’s liability was vicarious. TORTS — DEFAMATION — QUALIFIED PRIVILEGE 36-2-7064 Rose Marie Miller, et al. v. Helen Cook, et al., App. Div. (18 pp.) Since certain remarks concerning plaintiff were made in the course of the state Insurance Commissioner’s probe of insurance company for the purpose of its liquidation, the report generated with those remarks was produced as a matter of public concern, and the defendants are protected by qualified privilege; therefore, summary judgment was properly granted on that basis, and the court will not consider plaintiff’s alternative theory that the case should not have been dismissed as time-barred because the discovery rule should have been applied. CRIMINAL LAW AND PROCEDURE — MEGAN’S LAW — REGISTRATION 14-2-7065 In the Matter of Registrant A.B., etc., App. Div. (10 pp.) Since the notification letter to defendant, advising him of his tier classification, was handwritten, and the deadline date by which he must appeal was abbreviated, and not in a form universally used, the form could easily have led to the confusion the registrant claims to have encountered, and registrant has shown good cause to be allowed to file a late appeal. [Approved for publication Nov. 17, 1995. Available Online in NJ Libraries- Full-Text Decisions.] CRIMINAL LAW AND PROCEDURE — SENTENCING 14-2-7066 State v. Walter T. Bender, Sr., App. Div. (10 pp.) Where defendant asserts that the imposition of a 10-year disqualifier was beyond his expectations when he entered his plea, and that he was not properly apprised of the effect of the plea, the judge’s denial of defendant’s motion to withdraw his plea was erroneous, since a defendant cannot be sentenced to an extended term unless he had been apprised of the increased sentences permissible under N.J.S.A. 2C:43-7. CRIMINAL LAW AND PROCEDURE — SUPPRESSION 14-2-7067 State v. Kerry E. Evans, App. Div. (7 pp.) Since the detective, based on bservations of a vehicle at a liquor store, had probable cause to believe that alcohol was located under clothing on the seat of the car, which he later stopped for speeding, and that all of the occupants were underage, the vehicle’s search was proper and the trial judge erred in suppressing the evidence. FEDERAL COURT CASES CIVIL PROCEDURE — FRIVOLOUS SUITS — STANDARD FOR DISMISSAL 07-7-7068 Arlene A. Kierstead, pro se v. William K. Suter, Clerk, etc., et al., U.S. Dist. Ct. (5 pp.) Since the Supreme Court has held that a district court may dismiss an “in forma pauperis” complaint as frivolous even before it is docketed if the facts alleged are clearly baseless, which is a category including allegations that are fanciful, fantastic and delusional, plaintiff’s complaint alleging biomedical intrusions by the government is dismissed. [For publication.] CIVIL RIGHTS — SEARCH AND SEIZURE 46-7-7069 Joseph J. Fedorchak v. Det. Harry Shortway, et al., U.S. Dist. Ct. (17 pp.) Since investigators at the scene of a fire in plaintiff’s house had probable cause to investigate arson, and since an exigency existed after the fire was extinguished justifying the warrantless seizure of objects taken, and these objects also were in plain view, plaintiff’s suit for alleged civil rights violations in connection with the seized evidence is dismissed. ENVIRONMENT — REAL ESTATE CONTRACTS — E.C.R.A. 17-7-7070 New West Urban Renewal Co. v. Westinghouse Electric Corp., U.S. Dist. Ct. (25 pp.) (1) Although the contract for sale of industrial property from defendant to plaintiff contained a clause stating that the property was sold in “as is” condition, this does not shield defendant, as a seller of real property, from strict liability for cleanup of environmental contamination where there is no clear evidence that plaintiff/buyer knowingly agreed to assume such environmental liabilities; therefore, plaintiff/buyer is granted partial summary judgment on the “contract” issue, however, (2) since there is no evidence that defendant engaged in industrial activity on the property for a century and then attempted to avoid the imminent and expensive imposition of cleanup costs liability by transferring the property to plaintiff on the eve of ECRA’s effectiveness, defendant is granted partial summary judgment on the “ECRA” issue. [For publication Available Online in Library - 3rd Circuit - District Court.] JURISDICTION — FEDERAL TORT CLAIMS ACT — ESTOPPEL 24-7-7071 Itzhak Z. Mizrachi, et al. v. U.S.A., et al., U.S. Dist. Ct. (8 pp.) Where plaintiff was injured in an automobile accident with a U.S. Customs Service employee and retained several attorneys before filing suit, the government’s motion to dismiss for lack of subject matter jurisdiction is granted, since the suit was filed out of time, and the plaintiff’s argument that the government should be estopped from raising the limitations defense because it misled his attorneys as to the status of his federal tort claim is without merit, since he has not alleged any government conduct that even approaches the misconduct required for equitable estoppel.

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