Opinion Summaries

The Court affirms the panel’s order shielding the redacted document from discovery because the PSA’s self-critical-analysis privilege prevents its disclosure. The Court also affirms the panel’s determination that, when reviewing a discovery dispute such as this, a trial court should not be determining whether a reportable event under the PSA has occurred. The Court reverses the judgment to the extent it ends defendants’ discovery obligation with respect to this dispute, finding that defendants have an unmet discovery duty under Rule 4:17-4(d) that must be addressed. Accordingly, the Court provides direction on how the court should have addressed, through New Jersey’s current discovery rules, the proper balancing of interests between the requesting party and the responding party here, and remands to the trial court.

Although an affidavit of a police officer familiar with the investigation is preferable, a hearsay certification from an assistant prosecutor may support probable cause to compel a defendant to submit to a buccal swab if it sets forth the basis for the prosecutor’s knowledge. Second, an affidavit or certification supporting probable cause to compel a buccal swab must establish a fair probability that defendant’s DNA will be found on the evidence. Here, the State failed to show probable cause.

The principal issue in this appeal from a conviction for conspiracy to commit burglary after a guilty plea pertains to the limits placed on a prosecutor to resubmit a case to a grand jury after a previous grand jury panel refused to indict. The court concludes that the prosecutor's power to resubmit is broad but not boundless. It is subject to review in light of the grand jury's role to protect the innocent from unfounded prosecution; and the court's power to review prosecutorial discretion for abuse, and to assure fundamental fairness. However, under the circumstances of this case, the court rejects defendant's challenge to the resubmission, and affirms the trial court's denial of the motion to dismiss the indictment.

In this appeal, defendant filed his first post-conviction relief (PCR) petition more than five years after the trial court signed the Judgment of Conviction. Despite this, neither the PCR court nor the State challenged the timeliness of the petition under Rule 3:22-12(a)(1)(A). At the conclusion of oral argument in this appeal, this court entered a sua sponte order directing the parties to submit supplemental briefs addressing: (1) whether the procedural bar in the Rule is subject to waiver if the State fails to raise it before the PCR court; and (2) if the Rule’s preclusive injunction is not subject to waiver, what should be the remedy on appeal.

Based on the policy concerns expressed by the Supreme Court in State v. Mitchell, 126 N.J. 565, 575-76 (1992), this court holds that a PCR judge has an independent, non-delegable duty to question the timeliness of a petition and to require a petitioner to submit competent evidence to satisfy the standards for relaxing the time restrictions codified by the Court under Rule 3:22-12. Absent sufficient competent evidence to satisfy the standards for relaxing these time restrictions, the PCR judge does not have the authority to review the merits of the claims asserted therein.

In this appeal, the court held that it was premature to mandate the insurance carrier to provide a defense to an insured on an environmental claim where the unambiguous exclusion contained anti-concurrent and anti-sequential language. The proper remedy at that stage in the proceedings, given the uncertainty of coverage, was to convert the duty to defend to a duty to reimburse as in Grand Cove II. The court further held that it was premature to apply the Griggs analysis to a settlement reached between the insured and the claimants prior to a determination that the insurance carrier breached its duty to defend.

The high-low agreement is a settlement subject to the rules of contract interpretation. Based on the expressed intent of the parties and the context of the agreement, the agreement set $1,000,000 as the maximum recovery. Therefore, Serico may not seek additional litigation expenses allowed by Rule 4:58. The judgment of the Appellate Division is accordingly affirmed.

If the reasons given by the dealers present a colorable dispute of facts or at least the presence of mitigating evidence, the Commission is required to provide an in-person hearing pursuant to N.J.S.A. 39:10-20. An in-person hearing must be held prior to a license suspension or revocation when the target of the enforcement action requests it. Accordingly, the Court reverses the judgment of the Appellate Division and remands.

In this class action against defendant Kia Motors America, Inc., (KMA) plaintiff class of 8455 Kia Sephia owners and lessees represented by Regina Little proved at a jury trial that the Sephia, model years 1997 through 2000, had a defective front brake system, which caused premature brake pad and rotor wear. Concluding that the defect amounted to a breach of express and implied warranties, and that all owners had suffered damage due to the defect, the jury awarded each member of the class $750 ($6.3 million total) in repair damages.

Determining for the first time post-trial that repair damages could not be awarded on a class-wide basis because they were dependent upon individual factors, the trial court granted KMA's motion for judgment notwithstanding the verdict on the repair damages award, decertified the class for purposes of damages, and ordered a new trial on repair damages only, to proceed by way of claim forms. With the advantage of recent case law unavailable to the trial judge, the court now reverses, reinstates the jury award and remands for determination of counsel fees.

The dictates of Jerista apply to the facts presented here. The res ipsa inference of negligence is applicable because common experience instructs that elevator doors -- however complex their operation may be -- ordinarily should not strike a person entering or exiting an elevator in the absence of negligence. To warrant the inference, plaintiff had no obligation to exclude other possible causes that might explain the malfunctioning of the elevator doors or to show that defendants were on notice of some defect in the doors’ operation.

This opinion involves two separate, but interrelated cases arising from the same core of operative facts. In the appeal filed by the local board of education under Docket Number A-5104-14, this court upholds the decision of the Public Employment Relations Commission (PERC) to assert its exclusive jurisdiction to decide complaints arising under the New Jersey Employer-Employee Relations Act (EERA), N.J.S.A. 34:13A-1 to -43, even when raised in the context of tenure charges. Applying the Supreme Court's holding in In re Local 195, IFPTE, 88 N.J. 393 (1982), this court also upholds the union's right to engage in good faith negotiations to ascertain the impact the installation of exposed cameras with both audio and video capabilities would have on the terms and conditions of employment for the employees.

In the separate, but related appeal filed by the union under Docket Number A-2956-15, this court holds the Law Division does not have jurisdiction under Rule 4:67-6 to enforce an order entered by PERC. Adhering to the Supreme Court's holding in Galloway Twp. Bd. of Educ. v. Galloway Twp. Educ. Ass'n, 78 N.J. 25 (1978), this court holds that only PERC may file a motion before the Appellate Division to enforce its own order under the EERA. A prevailing party in a PERC proceeding only has the right to request that PERC enforce its own order.

Defendant was convicted of a third or subsequent offense of driving while intoxicated (DWI). The Municipal Court allowed him to serve the mandatory 180-day sentence under N.J.S.A. 39:4-50(a)(3) two days per week. The Law Division reversed.

The Appellate Division holds a third or subsequent DWI offender is ineligible for periodic service. Michael's Law amended the DWI statutes to require the 180-day sentence be spent in jail, excepting only up to ninety days spent in inpatient drug or alcohol rehabilitation, and to preclude other options. The amendment to N.J.S.A. 39:4-51 was intended only to bar work release for such offenders, not to lift the prohibition on their release before the jail term had been served. The specific law governing DWI sentences governs over the general provision for periodic service in N.J.S.A. 2B:12-22. The court disapproves State v. Grabowski, 388 N.J. Super. 431 (Law Div. 2006), which permitted such periodic service.

The Court reverses Alex’s delinquency adjudication on state-law grounds, concluding that the video-recorded statement did not possess a sufficient probability of trustworthiness to justify its introduction at trial under N.J.R.E. 803(c)(27). Striking the juvenile’s recorded statement from the record does not leave sufficient evidence in the record to support, on any rational basis, the adjudication of delinquency against Alex. Accordingly, the sexual assault charge must be dismissed. The Court concludes that the incompetency proviso of the present version of N.J.R.E. 803(c)(27) is flawed and remands that rule for review to the Supreme Court Committee on the Rules of Evidence.

The court finds that the plain language of N.J.S.A. 2C:40-26(b), the fourth-degree offense of driving while suspended, includes both driving while under the influence (DWI), N.J.S.A. 39:4-50, and refusal to submit to breath testing (refusal), N.J.S.A. 39:4-50.4a. They are predicate offenses even where the prior conviction history consists of one conviction under the separate sections of the Motor Vehicle Code. In other words, one DWI and one refusal suffice for the criminal offense of driving while suspended.

After plaintiff Egg Harbor, a New Jersey nursing facility, commenced a collection action against various parties, the Californian defendant, Corey Pagano, moved to dismiss the case based upon a lack of personal jurisdiction. Defendant Pagano had not lived in New Jersey in over three decades and had not set foot in our state in seventeen years. Pagano's only connection to the forum stems from his mother, New Jersey and Egg Harbor resident Patricia Scheraldi, as he served as the payee for her incurred obligations, contacted plaintiff Egg Harbor surrounding her health care, and attempted to obtain her Medicaid coverage. In accordance with the purposeful availment requirement necessary to support minimum contacts, we conclude that it is inappropriate for a nonresident defendant to be subjected to personal jurisdiction based upon contacts with the forum state that cannot be reasonably prevented by the defendant. Based upon Pagano's contacts with New Jersey, it violates the longstanding principles of minimum contacts and reasonableness outlined in Int'l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945) to hale him into our courts to defend this action. We affirm and remand with directions to amend the order to dismiss the case without prejudice.

The mayor and council of the Borough of Belmar, in response to a protest petition seeking a referendum on an ordinance appropriating funds and authorizing the issuance of bonds and notes to construct a beach pavilion, passed a resolution to place the referendum on the ballot.

The court held a later-submitted permissive – not mandatory – interpretive statement of the ordinance was invalid because: 1) neither the borough administrator nor the borough attorney had authority to author and submit the interpretive statement to the county clerk without formal public approval of the mayor and counsel, and 2) the interpretive statement was misleading and contained extraneous language. The court also determined the interpretive statement's phraseology deprived plaintiffs of their substantive right of referendum protected by the New Jersey Civil Rights Act.

The court also upheld the trial judge's award of counsel fees and costs despite the absence of a retainer agreement between plaintiffs and counsel; and the judge's refusal to allocate fees and costs to beachgoers – not Belmar voters – as beneficiaries of plaintiffs' efforts.

The panel addresses whether New Jersey's six-year statute of limitations or Pennsylvania's two-year statute of limitations applies to a legal malpractice claim against a lawyer, who is licensed in both states and works in New Jersey, and his law firm, which has offices in both states. The legal services in question concerned a Pennsylvania lawsuit relating to a fire loss at a Pennsylvania restaurant. Applying the substantial-interest test for resolving statute-of-limitations conflicts, which our Supreme Court adopted in McCarrell v. Hoffman-La Roche, Inc., 227 N.J. 569, 574 (2017), we reverse the trial court's decision, which applied New Jersey law.

The panel erred in its application of the “plain feel” doctrine. Officer Laboy had witnessed “hundreds” of instances where defendants concealed contraband in the front of their pants and therefore immediately recognized the “rocklike” substance he felt to be similar to crack cocaine. Between the officer’s experience-derived identification of the substance and the presence of $2000 in cash, the “plain feel” exception -- which the Court adopts -- applied.

New Jersey law on the allocation of liability among insurers applies in this matter, and the Court sets forth the pertinent choice-of-law principles to resolve this dispute over insurance coverage for numerous products-liability claims. Concerning the second question, on these facts, the Court also affirms the determination to follow the unavailability exception to the continuous-trigger method of allocation set forth in Owens-Illinois.

The Borough’s zoning officer did not adhere to the precise statutory procedures for processing Harz’s appeal, and the Court does not take issue with Harz’s claims that the Borough could have responded in a more efficient way to her objections. In the end, however, Harz has not established that the Borough denied her the right to be heard before the Planning Board. She therefore cannot demonstrate that she was deprived of a substantive right protected by the Civil Rights Act.

A forty-four-year-old emergency medical technician engaged in an unlawful sexual relationship with the then fifteen-year-old plaintiff, who, after the EMT was convicted, commenced this action for damages against the EMT, who defaulted, and against – among others – the EMT's employer and co-worker. In this appeal, the court held that the trial judge erroneously limited discovery from the prosecutor's office that investigated the crime and, also, prematurely granted summary judgment in favor of the co-worker and employer. These dispositions precluded a full and clear understanding of the extent to which the co-worker and employer knew or should have known of the EMT's unlawful acts, as well as the extent of the co-worker's relationship with the EMT. These limitations hampered the court's determination of whether it would be appropriate to extend the common-law duty imposed in J.S. v. R.T.H., 155 N.J. 330, 334 (1998) (holding that "a wife who suspects or should suspect her husband of actual or prospective sexual abuse of their neighbors' children has [a] duty of care to prevent such abuse") to a co-worker or employer or both. Thus, the orders under review were either reversed or vacated and the matter remanded for further proceedings.