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Vol. 3 No. 240 Decisions Released Dec. 20, 1995 STATE COURT CASES AGENCY 02-2-7387 Catherine Colaizzo, D.C. v. Harry Schick, D.C., App. Div. (10 pp.) Trial judge correctly concluded that plaintiff chiropractor was entitled to receive a portion of accounts receivable collected by defendant chiropractic clinic from patients who had been treated before plaintiff left the clinic, but, since an agent may not engage in a rival business without the principal’s knowledge or consent, trial judge also properly found that plaintiff, as agent of defendant, had violated a duty of loyalty owed to defendant by soliciting customers from chiropractic clinic to plaintiff’s new practice and defendant’s damages attributable to such breach should be set off from the amounts owed to plaintiff; The setoff calculation, however, was erroneous. CONTRACTS 11-2-7388 Angelo Baldacchino v. Dan Butcher, App. Div. (5 pp.) Since the dispute over work performed by plaintiff excavator for defendant builder required an assessment of each party’s credibility, trial judge’s finding for excavator will not be disturbed. EDUCATION 16-2-7389 In the Matter of the Tenure Hearing of David C. Borrelli, etc., App. Div. (13 pp.) Decision of state Board of Education restoring physical education teacher to his position with full back pay is affirmed, since there were inconsistencies in the testimony of the student-complainants that cast doubt on their motives for accusing teacher of improper exposure and touching. FAMILY LAW 20-2-7390 Robert J. Skinner v. Lucy M. Skinner, App. Div. (4 pp.) Since husband’s doctor’s letter does not state that, as a result of his eye condition, he is unable to perform full- or even part-time work, husband has not proved changed circumstances necessary to justify reduction of relatively modest alimony obligation to first wife, and, further, to the extent that husband has chosen as his principal occupation to stay at home and be primary caretaker for the children of his second marriage, it is at least arguable that the value of the services which he renders in that important function should be imputable to him as income. FAMILY LAW — EMANCIPATION — RETROACTIVITY 20-2-7391 Robert Bowens v. Ingrid Lee Bowens, App. Div. (5 pp.) The anti-retroactive child-support modification statute does not bar the elimination of arrearages retroactively based on emancipation that occurred before the statute’s effective date. [Approved for publication Dec. 20, 1995. Available online in NJ Full-Text Decisions.] 20-2-7392 Jane Mahoney v. Robert Pennell, App. Div. (8 pp.) N.J.S.A. 2A:17-56.23a, which bars retroactive modification of child support arrearages, does not act as a bar to retroactive termination of the support obligation based upon the emancipation of the child where the date of emancipation occurs after the statute’s effective date. [Approved for publication Dec. 20, 1995. Available in NJ Full-Text Decisions.] LABOR AND EMPLOYMENT — PREVAILING WAGE ACT 25-3-7393 David Marr v. ABM Carpet Serv. Inc., Law Div. (7 pp.) The Wage Collection Section of the state Labor Department properly found that carpet company failed to pay appellant the prevailing wage of a journeyman carpenter for carpet installation performed on public works for a certain period of time, however, judgment entered in carpenter’s favor must be amended, since an employee is only entitled to the prevailing wage in the locality in which the public work is done, and another locality’s rate was used in this case. [Approved for publication Dec. 19, 1995. Available online in NJ Full-Text Decisions.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-7394 Donald G. Gehring v. Bd. of Review, et al., App. Div. (3 pp.) Board of Review correctly determined that employee was not entitled to benefits because he left work voluntarily, where he accepted an enhanced separation package when his company downsized, even though employee stated that he thought he would otherwise be laid off, and testified that he resigned to save a younger employee’s job. NEGLIGENCE — LANDOWNERS — ANIMALS 31-2-7395 John Anthony DeCastro, etc. v. Dominick Caruso, et al., App. Div. (8 pp.) Summary judgment was correctly entered in favor of landowners — in case where a horse stabled on landowners’ property was apparently spooked by a dog and kicked infant plaintiff in the head — since there was no evidence that animal had been known to have vicious propensities, and there was, therefore, no dangerous condition ** with which landowners can be charged. PUBLIC EMPLOYEES 33-2-7396 Clair Lee Jensen v. Bd. of Trustees, P.E.R.S., App. Div. (6 pp.) The court affirms the final determination of the Board of Trustees, Public Employees’ Retirement System — rejecting plaintiff’s application to purchase credit for her prior government service — since the application was not made in a timely fashion under the statutory and regulatory scheme. REAL ESTATE — FORECLOSURE 34-2-7397 Anthony Alfano, et al. v. Richard S. Mazawey, et al., App. Div. (10 pp.) Since there were disputed facts and legal issues as to whether there was an enforceable oral indemnification agreement between plaintiffs and certain defendants, summary judgment was improperly granted to defendants dismissing plaintiff’s case. FEDERAL COURT CASES PHYSICIAN/PATIENT — ERISA — REMAND 29-7-7398 Pasqualina Gramuglia, et al. v. Dr. Paul Sender, et al., U.S. Dist. Ct. (7 pp.) Since negligence or medical malpractice claims alleged against doctor and referring HMO are claims about the quality of benefits, not claims about terms of the plan or whether benefits were withheld, no federal question mandating ERISA preemption is involved, and the case is remanded to state court. SECURITIES 50-7-7399 In re: Merrill Lynch, et al. Securities Litigation, U.S. Dist. Ct. (51 pp.) In class action suit charging brokers with securities fraud, breach of fiduciary duty and unjust enrichment, the court grants summary judgment to defendants, finding that they did not violate the “duty of best execution” by exclusively relying on the National Best Bid and Offer price quotes during the class period, since, even if there might have been better prices available, a jury could not reasonably find that there was an intent to deceive or an “extreme departure from the standards of ordinary care” sufficient to constitute the requisite scienter for a claim of fraud. [For publication. Available online in 3rd Circuit Court of Appeals- District Courts.]

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