Opinion Summaries

This opinion decides whether the mobile baking pan racks (“Racks”) used by plaintiff in its business of manufacturing baked products are subject to use tax. The amount of tax in dispute is $19,319.65 (exclusive of interest and penalties). Plaintiff claims that the Racks are indispensable to the manufacturing process, and therefore, are exempt under N.J.S.A. 54:32-8.13(a), which statute exempts from tax (sales or use), receipts from sales of “machinery, apparatus, or equipment” (hereinafter “MAE”) which is used or consumed “directly and primarily in the production of tangible personal property by manufacturing, processing, assembling or refining.” Defendant claims that the exemption does not apply to the Racks because they are trolleys akin to dollies, used for the convenience of plaintiff to manually transport the to-be-baked products from one area to another since they are too heavy to be carted or carried by foot.

In considering the nature of a "pay-and-go" consent judgment, which resolved a summary dispossess action, and the judgment's impact on later-asserted claims for damages, we hold that by entering into such a consent judgment the parties entered into an accord and satisfaction and thereby finally resolved all the known claims arising out of the tenancy. Consequently, we affirm the trial court's rejection of the tenants' counterclaim in the landlord's subsequent action for enforcement of the pay-and-go judgment because the counterclaim was based on a claim then known to the tenants that they should have raised during the negotiations that led to the pay-and-go judgment.

In this appeal, we address the issue of whether, following the Legislature's 2011 amendment of N.J.S.A. 17:22-6.64, plaintiff Johnson & Johnson (J&J) was required to pay an insurance premium tax (IPT) based upon all the risks it insured throughout the United States or based upon only those risks localized in New Jersey. Because both before and after the 2011 amendment, N.J.S.A. 17:22-6.64 provided that IPT was to be calculated at the rate of "5% of the gross amount of such premium" paid for insurance procured "upon a subject of insurance resident, located or to be performed within [New Jersey]," we conclude that J&J's IPT obligation should have continued to be based solely upon the risks it insured that were located within New Jersey, rather than upon the total United States premium for the applicable coverage policies. Accordingly, we reverse the Tax Court's contrary interpretation of the statute which is at odds with the plain language of N.J.S.A. 17:22-6.64, and remand for further proceedings.

The Court brings the use of remittitur and additur in line with basic notions of fair play and equity. When a damages award is deemed a miscarriage of justice requiring the grant of a new trial, then the acceptance of a damages award fixed by the judge must be based on the mutual consent of the parties. Going forward, in those rare instances when a trial judge determines that a damages award is either so grossly excessive or grossly inadequate that the grant of a new damages trial is justified, the judge has the option of setting a remittitur or an additur at an amount that a reasonable jury would award given the evidence in the case. Setting the figure at an amount a reasonable jury would award -- an amount that favors neither side -- is intended to give the competing parties the greatest incentive to reach agreement. If both parties accept the remittitur or additur, then the case is settled; if not, a new trial on damages must proceed before a jury.

This matter comes before the court on plaintiff’s application and defendant’s counterclaim. In her application, plaintiff seeks, among other things, an initial custody determination concerning the parties’ minor child. In his counterclaim, defendant opposes plaintiff’s application and contests jurisdiction. Plaintiff, the child’s natural mother, resides in New Jersey. Defendant, the child’s natural father, resides in New York.

On March 7, 2018, J.T. (hereinafter “J.T.”),1 a senior at LEAP Academy University Charter School in Camden, New Jersey (hereinafter “LEAP Academy”), received an Instagram message from defendant, a middle school guidance counselor at the same school. That message asked J.T. to “[s]how me them huge rockets of your [sic] . . . .” Defendant was subsequently charged and indicted with third-degree endangering the welfare of a child under N.J.S.A. 2C:24-4(a)(1).

The question presented by this appeal, here on leave granted, is whether the changed circumstances standard of Lepis v. Lepis, 83 N.J. 139, 157 (1980), continues to apply to a motion to suspend or terminate alimony based on cohabitation following the 2014 amendments to the alimony statute, N.J.S.A. 2A:34-23(n). We determine the party seeking modification still has the burden of showing the changed circumstance of cohabitation so as to warrant relief from an alimony obligation, see Martindell v. Martindell, 21 N.J. 341, 353 (1956), and hold the 2014 amendments to the alimony statute did not alter the requirement that "[a] prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status." Lepis, 83 N.J. at 157. Because the trial court ordered discovery in this case without a prima facie showing of changed circumstances, we reverse.

This case presents an issue of first impression: whether an out of state conviction for an offense classified as a crime in a foreign jurisdiction acts as a bar to the expungement petition of a successful graduate from the drug court program, when that same offense is classified as a motor vehicle offense in New Jersey? During his term on special probation, the petitioner was arrested in Philadelphia, Pennsylvania and charged with driving under the influence. J.S. was convicted of this charge on January 3, 2017. Under Pennsylvania law, this DUI charge is graded as a misdemeanor level crime. The Prosecutor opposed this petition for expungement on the basis that petitioner had been charged and convicted of a crime in the Commonwealth of Pennsylvania while a participant in the drug court program.

The court found that the Pennsylvania DUI conviction is not a statutory bar to this drug court graduate’s expungement because: (1) there exists a strong presumption towards expungement; (2) petitioner completed the drug court’s rigorous monitoring program, and; (3) such an offense, under the laws of the State of New Jersey, does not constitute a crime, disorderly persons or petty disorderly persons offense.

The excerpts from the settling defendants’ interrogatory answers and corporate representative depositions were admissible as statements against interest under N.J.R.E. 803(c)(25). Those statements, in combination with other evidence presented at trial, gave rise to a prima facie showing that the settling defendants bore some fault in this matter. The trial court properly submitted to the jury the question of whether a percentage of fault should be apportioned to the settling defendants.

Save Hamilton Open Space, a local citizens group, challenged the Department of Environmental Protection's issuance of a freshwater wetlands general permit 6 to Thomas Orban/Square Properties, LLC in connection with the construction of a shopping center in Hamilton Township

The court affirms the Commissioner's decision that SHOS is not entitled to an adjudicatory hearing. Because the court is unable, however, to discern where the agency has explained why Square Properties' use of the GSR-32 methodology to calculate recharge is consonant with the Department's regulations, which appear to expressly prohibit its use in these circumstances, it vacates the GP6 permit and remands for further fact-finding. In light of this disposition, the court does not address SHOS's argument that the agency needed to proceed through rulemaking.

In this appeal, the court addressed whether police officers must inform the occupant of a residence that he or she has the right to refuse the officers' request to enter the residence. The court determined that while officers are required to inform the occupant of the right to refuse to consent to a search of the premises, a similar requirement does not apply to requests to simply enter the residence. Finding that the initial entry into defendant's apartment based on her consent to enter was permissible, the court affirmed the trial court's denial of defendant's motion to suppress evidence seized in a subsequent consent search of the apartment following a lawful protective sweep.

Scott Rogow was a firefighter with the City of Paterson who retired on an accidental disability retirement allowance under N.J.S.A. 43:16A-7 and received his monthly accidental disability retirement allowance until his death approximately six years later. Approximately four years after his death, Rogow's widow, who had already received her survivor accidental disability benefits under N.J.S.A. 43:16A-7(3), filed a request with the Board to amend Rogow's pension status so that she could receive the enhanced survivor accidental death benefits under N.J.S.A. 43:16A-10.

N.J.S.A. 43:16A-10(1) provides for payment of survivor accidental death benefits "[u]pon the death of a member in active service as a result of . . . an accident met in the actual performance of duty at some definite time and place[.]" The court held that a PFRS member who is retired and receiving a retirement allowance from the PFRS at the time of his death is not a "member in service" and thus is not entitled to accidental death benefits under N.J.S.A. 43:16A-10.

Plaintiff Merrill Creek Reservoir c/o Project Direct, a consortium of electric utility companies and owner of the Merrill Creek Reservoir in Harmony Township, challenges three 2016 Tax Court judgments affirming the 2011-2013 tax assessments on its property. Harmony cross-appeals alleging error in adjustments the Tax Court made to value. Merrill Creek concedes the improvements should be valued using the cost approach the Tax Court employed but argues the Tax Court erred in accepting the Township's trend analysis, which it characterized as "a rarely used valuation methodology, discredited by New Jersey Tax Court precedent," instead of its own quantity survey method. Finding no error in the court's acceptance of a trend analysis in this case or its adjustments to value based on the evidence adduced at trial, we affirm the opinion of the Tax Court whose opinion is reported at 29 N.J. Tax 487 (Tax 2016).

This appeal challenges the legality of a section in the collective bargaining agreement (CBA) entered into between the Jersey City Board of Education and the Jersey City Education Association, Inc., which requires the Board to pay the salaries and benefits of two teachers who were selected by the members of the union to serve as "president and his/her designee," during the three-year term of the CBA, and to allow them to devote all of their work-time to the business and affairs of the union.

The Chancery Division, General Equity Part found this contractual arrangement did not violate Article VIII, § 3, ¶ 3 of the New Jersey Constitution, commonly referred to as the "gift clause." The court found the Board was authorized to enter into this arrangement with the union under N.J.S.A. 18A:30-7, which permits the payment of salary in cases of absence not constituting sick leave.

This court adheres to jurisprudential principles established by our Supreme Court and declines to reach the constitutional question raised by plaintiffs in this case because there are sufficient statutory grounds to definitively decide this appeal. In re Plan for the Abolition of the Council on Affordable Hous., 214 N.J. 444, 461 (2013). This court holds that in adopting N.J.S.A. 18A:30-7, the Legislature did not expressly or implicitly intend to authorize boards of education to enter into this type of contractual arrangement. The disbursement of public funds pursuant to this contractual arrangement was an ultra vires act by the Board.

This appeal involves the trial court's denial of defendant's request to have the same counsel represent him in Title Nine abuse and neglect proceedings and a criminal matter arising from the same allegations of sexual abuse of a child. In N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593 (App. Div. 2010), we held that simultaneous representation is permissible where the trial court is able to implement measures sufficient to protect the confidentiality of DCPP records disclosed during the Title Nine proceedings. We directed courts to undertake a case-by-case analysis when deciding requests for simultaneous representation.

The panel held that the trial court failed to undertake the analysis required by N.S. and summarily denied defendant's request for simultaneous representation. In addition, the panel clarified that N.S. applies to both Title Nine dispositional hearings and Title Nine fact finding hearings. Finally, the panel held that the denial of defendant's choice of counsel was a structural error requiring reversal of the abuse and neglect finding reached after a hearing at which defendant was represented by counsel that was not his choice.

In this appeal, we address whether a resident of a boarding house has a reasonable expectation of privacy in a common hallway accessible by other residents. The court determined that the Law Division improperly denied defendant's motion to suppress evidence seized from his bedroom after the police observed contraband while standing in a hallway in front of defendant's bedroom door. The court concluded that boarding house residents have a reasonable expectation of privacy in the hallways linking their bedrooms to areas traditionally contained within one living unit, such as a bathroom or kitchen, and the warrantless police entry into the home was not justified by the plain view doctrine because the officers did not have a lawful right to enter.

According to the court, whether the residential structure's front door was locked was not dispositive of whether defendant's reasonable expectation of privacy extended beyond his bedroom door, as the exterior door was equipped with a lock and the evidence showed only that the door was unlocked when the police made their warrantless entry, but not at any other time. In addition, drawing on a distinction recognized by courts in other states between apartment buildings and boarding or rooming houses, the court concluded that a boarding house resident's need to use a shared hallway to access his or her bathroom supports a reasonable expectation of privacy in that hallway notwithstanding an unlocked front door. Accordingly, the court held that the trial court should have granted defendant's motion to suppress because he had a reasonable expectation of privacy in the place searched, and the State did not establish the warrantless search of the home was justified by the plain view doctrine or any other exception to the warrant requirement.

In this interlocutory appeal, the court considers whether a licensed home inspector home inspector is a "learned professional" and therefore excluded from liability under Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -210.

Considering the CFA's remedial purpose and applying well-established canons of statutory construction, the court concludes that the judicially created learned professional exception must be narrowly construed to exempt liability only as to those professionals who have historically been recognized as "learned" based on the requirement of extensive learning or erudition. To the extent this court's prior decisions, including Plemmons v. Blue Chip Insurance Services, Inc., 387 N.J. Super. 551 (App. Div. 2006), have applied the learned professional exception to "semi-professionals" who are regulated by a separate regulatory scheme, we are constrained to depart from that reasoning as inconsistent with the Supreme Court's decision in Lemelledo v. Beneficial Management Corp. of America, 150 N.J. 255 (1997). As the Court explicitly held in Lemelledo, the existence of a separate regulatory scheme will "overcome the presumption that the CFA applies to a covered activity" only when "a direct and unavoidable conflict exists between application of the CFA and application of the other regulatory scheme or schemes." 150 N.J. at 270. The court's decision today comports with the amicus curiae Attorney General's persuasive interpretation of the CFA and addresses the Attorney General's policy concern that an expansive interpretation of the learned professional exception unduly curtails the authority of the Attorney General and the Division of Consumer Affairs to protect New Jersey consumers and limits the redress available to private litigants.

Accordingly, because home inspectors are not historically recognized learned professionals and because no direct and unavoidable conflict exists between the CFA and the regulations governing home inspectors, the court concludes that the CFA applies to the activities of licensed home inspectors and reverses the trial court's summary judgment dismissal of the CFA claim against defendants.

Judge Sabatino filed a concurring opinion.

In this landlord-tenant case, the court was charged with deciding whether the City of Newark’s rent control ordinance prohibited the assessment of “additional rent,” for purposes of a summary dispossess action, if the total amount assessed, including this contractually provided for “additional rent,” exceeded the maximum rent permitted by the ordinance. The court answered the question in the affirmative.

This was an action seeking eviction for non-payment of rent. The tenant brought a motion arguing that the local rent control ordinance prohibited the incorporation of additional rent of the kind that was at issue in a summary dispossess action. The tenant argued that the ordinance established a maximum rent cap and any rent that exceeded that amount could not form a basis for eviction. The tenant further argued that regardless of whether defined as “additional rent,” fees should be considered in the ordinance’s definition of “rent” and thus capped thereby. The landlord countered that assessing the additional rent was not contrary to the subject ordinance and the lease expressly provided for such assessment. The landlord further argued that the fees sought are such a common form of additional rent that the local ordinance’s failure to specifically exclude it in the definition should be understood to be mean that the ordinance does not prohibit it.

The court held that the landlord was not entitled to evict the tenant based upon the failure to pay the “additional rent,” notwithstanding that the lease memorialized that legal and late fees were collectible as “additional rent.” The court found that the total amount of rent that could be assessed and thus put at issue in a summary dispossess case was limited by the local ordinance. The court established that the assessment of “additional rent” is still the imposition of rent, and because the ordinance governs all rent without exception, the rent could not exceed the municipal ordinance rate cap. Accordingly, the landlord was disallowed from seeking any rents in excess of the maximum rent permitted by the ordinance in a summary dispossess action. The landlord’s contractual remedy was preserved.

This case stemmed from the termination of the appointment of a Special Civil Part Officer (SCPO) following the discovery of numerous violations of AOC directives. The SCPO filed a Law Division complaint against the State, the Judiciary, and the Atlantic/Cape May vicinage alleging violations of CEPA and related claims. We affirm the summary judgment dismissal of plaintiffs' claims since plaintiff was not a Vicinage employee for CEPA purposes and plaintiff failed to establish a whistle-blower claim under CEPA. This opinion was originally issued in January 2018 as an unpublished opinion. We now publish this opinion, following a request from the Committee of the Special Civil Part Supervising Judges, which submitted "that the publication of this opinion will provide important precedent to our records, practitioners and the public with regard to [SCPOs] and their status as independent contractors."

In these back-to-back appeals, State Farm Indemnity Company (State Farm) appeals from two trial court orders that vacated awards entered by dispute resolution professionals (DRP) pursuant to the Alternative Procedure for Dispute Resolution Act (APDRA), N.J.S.A. 2A:23A-1 to -30, in connection with payment for out-patient hospital services provided to two claimants involved in separate automobile accidents. In each appeal, the trial court entered a modified judgment against State Farm, finding that the DRP committed prejudicial error. The court determined that the trial court properly exercised the authority granted to it under the APDRA, adhered to the statutory grounds in vacating the DRPs' awards, and provided rational explanations of how the respective DRPs committed prejudicial error within the meaning of N.J.S.A. 2A:23A-13(c)(5). Because there was no principled reason for the exercise of the court's supervisory jurisdiction, or any unusual circumstances where public policy required the court's intervention, the court adhered to the strictures of N.J.S.A.2A:23A-18(b), barring further appeals or reviews of trial court judgments, and dismissed the appeals.