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Vol. 4 No. 103 – MAY 30, 1996 STATE COURT CASES ARBITRATION — EDUCATION 03-2-9046 Garfield Fed. of Teachers, etc. v. Garfield Bd. of Educ., App. Div. (4 pp.) Although the “MA+30 designation is customarily interpreted as requiring 30 credits beyond the master s degree, the arbitrator correctly found that plaintiff teachers had relied on board of education’s past practice of allowing teachers with fewer credits beyond their degree to be classified as “MA+30, and an order directing the board to so classify plaintiffs is affirmed. 03-2-9047 Piscataway Twp. Educ. Ass’n Inc. v. Bd. of Educ., etc., App. Div. (5 pp.) The arbitrator did not exceed the scope of his authority, and his award was consistent with collective bargaining agreement contractual language, therefore his decision that denied plaintiff’s grievance — challenging the board’s decision to more widely implement a six-period teaching schedule at the high school — is affirmed. ARBITRATION — PUBLIC EMPLOYEES 03-2-9048 In the Matter of the Arbitration Between Edison Firefighters’ Ass’n, etc. v. Twp. of Edison, App. Div. (7 pp.) Judge erred in vacating arbitrator’s award — in township’s favor on firefighters’ challenge to extension of a promotion eligibility list — since the arbitrator did not exceed her powers and her conclusion was based upon a reasonably debatable interpretation of the parties’ contract. FAMILY LAW 20-2-9049 Karen Flynn Johnson v. Michael Alan Johnson, App. Div. (9 pp.) Judge correctly denied defendant’s motion to terminate child support obligation, finding that defendant voluntarily stood in loco parentis to the child, although she was not his biologically, and that defendant waived his right to counsel and knew what he was doing when had entered into settlement agreement with his ex-wife — the child’s mother. 20-2-9050 Marlene Wasserman v. Donald M. Wasserman, App. Div. (11 pp.) Judge did not err in rejecting defendant’s application for modification of his alimony obligation, since defendant failed to demonstrate a substantial change in his financial condition to justify a reduction in his obligation. 20-2-9051 Mary Anne Morgan v. James G. Morgan, App. Div. (5 pp.) Order modifying defendant’s child-support obligation is affirmed, since the record clearly shows that, contrary to the parties’ contemplation at the settlement agreement, the son did not return home to live with the plaintiff as frequently or for as long as expected. 20-2-9052 A. Fred Maffeo v. Jean M. Maffeo, App. Div. (4 pp.) Order denying plaintiff’s motion to terminate or reduce his alimony obligation is affirmed, since, although the plaintiff’s earned income had decreased, he had other asset sources from which funding of his alimony obligation could be obtained. HEALTH 22-2-9053 In the Matter of the Application of Wills, etc., for a Certificate of Need, App. Div. (14 pp.) Although the decision of the Commissioner of Health is vaguely worded in some respects, the decision — authorizing petitioner to construct a freestanding ambulatory two-bed surgical facility — is affirmed, since it adequately sets forth his rationale, represents a reasonable exercise of his discretion and finds support in the record. INSURANCE — VERBAL THRESHOLD 23-2-9054 Steven J. Koff, et al. v. Barbara A. Carrubba, App. Div. (9 pp.) Plaintiff’s tort claim for injuries sustained in a motorcycle accident is subject to the verbal threshold where he chose that option on a liability policy which insured only his automobile, even though that policy did not also insure the motorcycle. [Approved for publication May 30, 1996.] LABOR/EMPLOYMENT — EDUCATION 25-2-9055 Robert L. Effenberger v. Bd. of Educ. of the Toms River Regional School Dist., etc., App. Div. (11 pp.) In case where plaintiff was terminated due to a reduction in force and filed suit, the state board correctly affirmed the education commissioner’s decision that plaintiff had failed to prove violation of his alleged tenure rights under N.J.S.A. 18A:17-2(b)(1) — which grants such protection to persons holding a clerical position with the school board for a minimum of three years — since plaintiff failed to prove that the duties he performed constituted a clerical position. 25-2-9056 Roberta Messa v. Bd. of Educ. of Washington Twp., App. Div. (11 pp.) Although the board of education’s promise to hire plaintiff while she was uncertified was unenforceable, plaintiff does have a claim for damages from the date of her certification forward to the end of the school year, and the judge should have severed the contractually enforceable terms from the unenforceable, rather than dismissing plaintiff’s entire claim for damages for breach of employment contract. LANDLORD/TENANT 27-2-9057 Cheryl Trabocco v. Reliable Hi-Way Furniture Inc., etc., et al., App. Div. (4 pp.) (1) The record of tenant’s haphazard payments supports judge’s conclusion that the landlord had not waived its right to require full rent nor had landlord agreed by its acceptance of these payments to a lease modification. (2) Although guaranties are normally strictly construed in favor of the guarantor, this does not apply where, as here, the guarantor has drafted the agreement, and therefore ambiguity as to whether lease guaranty extended beyond lease term is resolved in favor of landlord and against guarantor — the parent company of the tenant. LAND USE 26-2-9058 Joseph A. Hamin v. Zoning Bd. of Adj. of the Twp. of Cherry Hill, et al., App. Div. (5 pp.) Law Division correctly set aside zoning board’s grant of plaintiffs’ application for a side yard dimensional variance — for an addition to their garage — because the plaintiffs failed to satisfy the negative criteria under the land use law, and did not show the absence of substantial detriment to the public good and to the zone plan and ordinance. MUNICIPAL LAW — BIDS 30-2-9059 Anthony D. Errico, et al. v. City of Jersey City, et al., App. Div. (10 pp.) Trial judge correctly held that municipality’s entire bidding process was an improper attempt to circumvent a N.J.S.A. 54:5-113.1(b) requirement that tax sale certificates may not be sold for less than 70 percent of their face value, and invalidated awarded certificates. [Approved for publication May 30, 1996.] 30-2-9060 Bldg. Inspection Underwriters Inc. v. Harriet Derman, Comm’r, etc., App. Div. (6 pp.) Dept. of Community Affairs properly invalidated the three-year contract between plaintiff and Atlantic City — for on-site elevator inspection and maintenance services — since the city had solicited proposals for one-year contracts and received bids based on that term, yet offered a three-year contract to plaintiff without giving the other bidders an opportunity to consider revision of their bids for a three-year term. NEGLIGENCE — LANDLORDS 31-2-9061 Michelle D. Hoagland, et al. v. William Gomez, etc., et al., App. Div. (8 pp.) If municipality had an ordinance requiring landlord to install a smoke detector in lease premises, then landlord’s failure to install a detector would be evidence of negligence, and, if the jury found that such negligence was the proximate cause of plaintiff’s injuries — suffered in fire on the premises which landlord leased to plaintiff’s hosts — then a damage verdict in plaintiff’s favor against landlord would be sustainable; therefore, summary judgment was improvidently granted to landlord. [Approved for publication May 30, 1996.] PARENT/CHILD — PATERNITY — CHILD SUPPORT 28-2-9062 W.S., etc. v. X.Y., App. Div. (8 pp.) The duty of child support in both paternity and divorce cases is always subject to review and modification upon a showing of changed circumstances, and the fact that defendant’s obligation to support his child arose as a result of a settlement of a paternity suit makes it no less reviewable than a support order in any other type of family law matter; therefore, judge’s increase of support obligation was not an abuse of discretion and is affirmed. [Approved for publication May 30, 1996.] TORTS — DEFAMATION 36-2-9063 John Beck v. The Times, etc., et al., App. Div. (8 pp.) Because a newspaper article written about plaintiff and the criminal trial in which he was a defendant failed to present the trial expert’s testimony with the fairness, completeness, and accuracy required by the fair-reporting privilege, the trial court’s grant of summary judgment to the defendants on plaintiff’s defamation claim is reversed. WRONGFUL DEATH — REMITTITUR 40-2-9064 Mary Thalman, etc. v. Owens-Corning Fiberglas Corp., et al., App. Div. (9 pp.) In wrongful death action against asbestos manufacturers and distributors, the judge erred in remitting the gross amounts for (1) loss of consortium to $50,000 from $168,000 and (2) for wrongful death to $150,000 from $300,000, by substituting his own judgment for that of the jury and failing to articulate reasons for doing so. [Approved for publication May 30, 1996.] CRIMINAL LAW AND PROCEDURE — D.W.I. 14-2-9065 State v. William H. Marsh, App. Div. (6 pp.) The Law Division did not err in refusing to enforce an “agreement” between the defendant and a police detective — which agreement called for the dismissal of a DWI summons against defendant if he cooperated in an unrelated drug investigation — since the detective had no authority to make such an agreement, and it was therefore illegal. [Approved for publication May 30, 1996.] FEDERAL COURT CASES CONSTITUTIONAL LAW — SCHOOL PRAYER 10-8-9066 American Civil Liberties Union of N.J., etc., et al. v. Black Horse Pike Regional Bd. of Ed., et al., Third Cir. (68 pp. – includes dissent) Since the policy adopted by the board of education — which allowed a senior class vote to determine if prayer would be included in high school graduation ceremonies — is inconsistent with the First Amendment, the District Court correctly issued a permanent injunction against the policy, which is modified, but affirmed. CORRECTIONS — CIVIL RIGHTS 13-7-9067 Thomas C. Lockhart v. Edwin J. Englehardt, Sheriff, etc., et al., U.S. Dist. Ct. (11 pp.) In a case where inmate alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated when the prison officials failed to honor his request to seek health care, (1) since inmate has failed to provide any evidence that sheriff was deliberately indifferent to inmate’s medical needs, or that sheriff was personally involved in any manner in health care decisions regarding the inmate, his claim against sheriff is dismissed, and (2) since the county defendants were not executing a governmental “policy” or “custom” which adversely affected the inmate, the county defendants are not liable under Section 1983 and claims against them are also dismissed. LABOR/EMPLOYMENT — CONST. LAW — ENTIRE CONTROVERSY 25-7-9068 Benjamin Adams, et al. v. City of Jersey City, et al., U.S. Dist. Ct. (26 pp.) In claim by police officers alleging various property deprivations with respect to elimination of pay differentials, (1) the defendants are precluded by legal precedent from the claim that a detective on the defendant’s police force who either holds that position “permanently” or “receives a fixed annual salary from the municipality” with respect to that position does not have a protected property interest in that position, however (2) summary judgment cannot be granted as to liability, because there is a genuine issue of fact regarding whether plaintiffs meet the criteria for possessing the protected property interest in the position of detective in this case. (3) Since the chief of police could not reasonably know that his conduct was unlawful when he issued the order eliminating the pay differential, he is entitled to qualified immunity and summary judgment is granted in his favor. (4) Although the elimination of the pay differentials was the subject of several grievances filed and arbitrated by the police union, the suit before the court is not precluded by the entire controversy doctrine since the arbitration forum is not one of equal jurisdiction to the federal court, and the arbitrator did not have jurisdiction over the due process claims. PENSIONS 56-7-9069 John Agathos, et al. v. Starlite Motel, U.S. Dist. Ct. (20 pp.) Because of the “break in service rule,” none of defendant’s employees in question had a colorable claim against the pension fund, and therefore defendant was not required to make any pension fund contributions for any of those employees and summary judgment is denied to plaintiffs for their claims against the pension fund; however, defendant has failed to meet its burden to show that the particular employees do not have colorable claims against the “welfare fund,” and summary judgment is granted requiring defendant to make welfare fund contributions for all employees that defendant concedes are members of the bargaining unit during the time in question. CRIMINAL LAW AND PROCEDURE 14-7-9070 U.S.A. v. Daniel Richards, U.S. Dist. Ct. (28 pp.) Defendant’s various challenges — seeking to dismiss parts of the indictment against him — are dismissed on the merits, with the exception that the motion to dismiss certain counts based on the statute of limitations are dismissed without prejudice as premature. A Daily Reporter of New Jersey Court Decisions

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