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Vol. 4, No. 151 – August 7, 1996 STATE COURT CASES CONTRACTS — STORAGE — WAREHOUSING CHARGES 11-2-9794 DAS Supply Co. Inc., etc. v. Schindler Elevator Corp., etc., et al., App. Div. (7 pp.) In suit for storage of inventory after breach of contract, warehousing fees were properly awarded as incidental damages under N.J.S.A. 12A:2-710, despite the fact that there was no specific contract for such fees, and the appellate panel reverses its earlier decision to the contrary. [For earlier decision, see DDS No. 11-2-6237 in the Alert dated July 25, 1995.] LABOR AND EMPLOYMENT — EDUCATION — C.E.P.A. 25-2-9795 Robert E. Murphy v. The Windsor School Inc., et al., App. Div. (10 pp.) Judge correctly entered a directed verdict for defendants on fired teacher s complaint under the Conscientious Employee Protection Act, since teacher failed to prove that he had an objectively reasonable belief that his principal s direction to him — to change students grades — violated a law, was fraudulent or criminal, or against public policy. REAL ESTATE — CONDOMINIUMS 34-2-9796 The Korman Co., et al. v. Palmyra Harbour Condo. Ass’n, App. Div. (5 pp.) Since the Condominium Act has been amended to empower a condominium association to impose reasonable fines upon unit owners for failure to comply with master-deed provisions, by-laws or rules and regulations, and since these amendments are to be applied retroactively, judge s decision that defendant s assessment of such fines on plaintiffs was ultra vires and unenforceable is reversed and remanded for reconsideration. TORTS — DEFAMATION 36-2-9797 Richard O Neill v. William Clark, et al., App. Div. (13 pp.) Summary judgment dismissing defamation complaint is affirmed, since the statements made by corporate official defendants about plaintiff s termination are subject to a qualified privilege, and plaintiff has made no showing that the privilege was abused. WORKERS COMPENSATION 39-2-9798 Cynthia Kristiansen, etc., et al. v. State, Dep’t of Transp., et al., App. Div. (9 pp.) Negligence claim against the state should have been dismissed and judgment against it is reversed, since the accident suffered by plaintiff s decedent — a bridge worker who was killed while crossing the bridge after the end of his shift — was compensable under the coming-and-going rule, and plaintiff was entitled to relief only under the Compensation Act. CRIMINAL LAW AND PROCEDURE Now on Counsel Connect 14-1-9799 State v. Winston Roach, Supreme Ct. (37 pp. – includes concurring/dissenting opinion) The prosecutor s use of conflicting theories regarding the commission of the crimes in separate criminal proceedings against the co-defendants did not violate defendant s right to a fair trial, however, the record in this case does not present an acceptable justification of the disparity in the defendant s sentence in light of the sentence imposed on his co- defendant. FEDERAL COURT CASES ATTORNEY/CLIENT — ETHICS — PROSECUTORS 04-8-9800 U.S.A. v. Richard Balter, et al., Third Cir. (34 pp.) New Jersey Rule of Professional Conduct 4.2 — which prohibits an attorney from contacting a represented party — is inapplicable to contacts made by prosecutors or their agents with criminal suspects in the course of a pre-indictment investigation, and the district court, therefore, did not abuse its discretion in refusing to suppress taped statements at issue here. [Filed July 29, 1996.] CONTRACTS — PHYSICIANS — TORTIOUS INTERFERENCE 11-7-9801 Robert A. Herbert, M.D. v. Newton Memorial Hosp., et al., U.S. Dist. Ct. (35 pp.) Hospital defendant is granted summary judgment dismissing a complaint where doctor alleges that hospital tortiously interfered with contract — for the purchase of the doctor s professional practice between the doctor and another physician — by refusing to entertain the purchasing doctor s application for staff privileges, since refusing to consider the purchasing doctor s application under the circumstances of the case was well within the hospital s discretion, in furtherance of the hospital s fiduciary duty to the public to ensure quality health care, and the hospital did not act with malice. [Filed July 29, 1996.][For publication.] CORRECTIONS — CIVIL RIGHTS 13-7-9802 David James Manning v. Thomas J. D Alessio, etc., et al., U.S. Dist. Ct. (5 pp.) Former inmate s civil rights complaint — alleging that his Eighth Amendment rights were violated because he contracted hepatitis through ingestion of rat dropping-infested food prepared by the jail — is dismissed as time barred, since it was not brought within the applicable two-year statute of limitations which began running when the inmate contracted food poisoning. [Filed July 29, 1996.] 13-7-9803 Frank Dice, et al. v. Robert Untig, et al., U.S. Dist. Ct. (12 pp.) Former inmate s civil rights complaint — alleging that the sheriff did not provide him with adequate medical care while he was in sheriff s custody — is dismissed as time-barred, and the plaintiff s contention that the statute of limitations should be tolled because his attorney had told the plaintiff that the complaint had been filed (only to learn that his attorney was having ethics problems and had not filed the complaint) is without merit, since the plaintiff did nothing to follow up or make reasonable inquiry with due diligence. [Filed July 30, 1996.] IMMIGRATION 51-8-9804 Mario Ruiz Massieu v. Janet Reno, etc., et al., Third Cir. (33 pp.) The district court lacked jurisdiction to entertain plaintiff s constitutional challenge to Section 241(a)(4)(C)(I) of the Immigration and Nationality Act, as plaintiff was required to object to efforts to deport him through available administrative procedures, then petition for any needed review to the Third Circuit, therefore, the district court s order, holding the law unconstitutional and enjoining plaintiff s deportation, is reversed. [Filed July 29, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … The attorney for a woman suing one New Jersey’s largest and highest-grossing law firms for sexual harassment was disqualified by the judge in the case. The judge ruled that since the attorney had read an internal memo prepared by members of the firm, the integrity of the judicial process had been impugned. The memo details the actions the firm took to investigate the plaintiff’s charges. See page 3 of the Aug. 5 Law Journal.

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