PorzioAppealLaw

A Partial Victory For A Pro Se Prisoner In The Third Circuit On His Eighth Amendment Claim

We see a lot of opinions issued by federal appellate courts in which a prisoner representing himself or herself challenges some policy, procedure, or action relating to his or her confinement.  Far more often than not, the District Court rejects the plaintiff’s claim and the appellate court affirms.  Thus, today we are writing about Mutschler v. SCI Albion, No. 10-4242 (3d Cir. Sept. 27, 2011), because the pro se plaintiff convinced the Third Circuit to reverse a part of the District Court’s ruling that had granted the defendants’ motion to dismiss.

Appellate Division Vacates Summary Judgment Because Of Procedural Errors

Rule 1:6-2(d) provides in pertinent part that unless a civil motion “involves pretrial discovery or is directly addressed to the calendar,” a party’s request for oral argument “shall be granted as of right.”  For motions that can be appealed as of right, Rule 1:7-4(a) requires a trial court to “by opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon.”  In Stephenson v. Rutgers University, No. A-1660-10 (App. Div. Sept. 22, 2011), the Appellate Division highlighted the importance of those Rules in vacating the trial court’s entry of summary judgment for the defendants because the trial court did not conduct oral argument and did not provide a proper explanation for its ruling. 

Underage Drinking Conviction Overturned Because: 1) Sniff Test For Alcohol Insufficient; 2) Miranda Violations; and 3) Improperly Excluded Evidence

In State v. Koch, No. A-0602-10 (App. Div. Sept. 26, 2011), the defendant was convicted in municipal court of underage consumption of alcohol.  The defendant was fined $250 and assessed $33 in court costs.  The defendant appealed to the Law Division, which affirmed following a trial de novo.  The defendant then appealed that judgment, and the Appellate Division reversed on several grounds. 

On May 8, 2009, the defendant, an eighteen-year-old high school student, went to a house party with his girlfriend, Ashley, who was nineteen.  A neighbor complained to the police that partygoers were smoking marijuana and urinating on his lawn.  There was no dispute that alcohol was being consumed by partygoers in and around the home. 

Don’t Forget To Provide The Appellate Division With The Complete Record

Two procedural provisions, Rule 2:5-1(b) and Rule 2:6-1(a)(1)(I), were the focus of Raspavolo v. New Jersey State Police, No. A-3099-09 (App. Div. (Orig.) July 20, 2011, (Amended) Sept. 20, 2011).  After a party files a notice of appeal with the Appellate Division, Rule 2:5-1(b) allows the trial court to “file and mail to the parties an amplification of a prior statement, opinion or memorandum made either in writing or orally pursuant to R. 1:2-2.”  In essence, the provision provides the trial court with the opportunity to correct or supplement a prior opinion that will be the focus of the appeal.  Rule 2:6-1(a)(1)(I) requires the appellant to provide the Appellate Division with all parts of the record that are “essential to the proper consideration of the issues[.]”  In Raspavolo, the Appellate Division affirmed the trial court’s ruling that upheld an earlier dismissal of the plaintiff’s complaint because the plaintiff did not provide the Appellate Division with the trial court’s Rule 2:5-1(b) supplementary ruling.

A Case That Could Have Been On “To Catch a Predator”

State v. Champagne, No. A-1365-08 (App. Div. Sept. 19, 2011), sounds like a case that could have been featured on the NBC show, “To Catch a Predator.”  The defendant engaged in sexually graphic Internet conversations with a person whom he thought was a boy between the ages of thirteen and sixteen.  In their conversations, the defendant tried to make arrangements to meet the “boy” at a motel to engage in sexual relations.  In reality, however, the “boy” was an undercover investigator with the State’s Division of Criminal Justice.  The defendant was indicted on three counts of second-degree attempted sexual assault and third-degree luring/enticing a child.

Appellate Division Rejects Woman’s Argument That She Has Right To Be Topless On Beach

In June 2008, the defendant, a woman, was sitting on a public beach in Spring Lake and took off her bathing suit top.  State v. Feeley, No. A-0115-10 (App. Div. Sept. 14, 2011).  A police officer approached her and asked her to put the top back on.  The defendant declined, at which time the police officer arrested her.  The defendant was brought to police headquarters and was given a t-shirt.  She was processed and released.  Shortly thereafter, the police received a call about a topless woman at an intersection near the police headquarters.  The police responded and again arrested the defendant.  The t-shirt that the police gave to the defendant was found at the door of the police headquarters.  The defendant was charged with various offenses, including two violations of the town’s public nudity ordinance.

Interlocutory Appeal Involving An Inadvertently Produced – And Purportedly Privileged – Document

First Industrial, L.P. v. General Insurance Co. of America, No. A-1705-10 (App. Div. Aug. 29, 2011), arose from environmental property damage at a complex that was owned by the plaintiff’s predecessor in interest.  The plaintiff informed the New Jersey Department of Environmental Protection about the damage and agreed to investigate and remediate the property.  As the successor to its predecessor’s insurance policies, the plaintiff filed claims with defendants General Insurance Company of America (“General”) and Harleysville Insurance Company (“Harleysville”) in which it demanded defense and indemnification for losses it would incur to remediate the property.  From 2000 through 2007, the parties negotiated but could not reach an agreement about the claims.  Therefore, the plaintiff filed a complaint against Harleysville and General in April 2007.  In November 2008, the parties entered into an agreement whereby the complaint was dismissed without prejudice so that the parties could again try to resolve their dispute.  Negotiations again proved unsuccessful and in February 2009 the plaintiff re-filed its complaint and added Pennsylvania General Insurance Company (“Pennsylvania”) as a defendant.

New Jersey State League Of Municipalities Is Subject To OPRA

The New Jersey State League of Municipalities (“League”) was formed in 1915 pursuant to a law that authorized its creation.  It is a non-profit, unincorporated association that represents all 566 of the State’s municipalities.  Its board includes several elected municipal officials.  More than 13,000 elected and appointed municipal officials are League members and its employees are members of the Public Employees’ Retirement System.  The League’s budget is partially financed through public funds.  One of the League’s main objectives is to lobby for legislation that benefits municipalities and to pursue litigation that furthers the interests of municipalities.  In Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, ___ N.J. ___ (2011), the Supreme Court held that the League was a “public agency” within the meaning of the Open Public Records Act (“OPRA”) and, therefore, had to make available government documents pursuant to OPRA’s provisions.

Employer Not Liable On Emotional Distress Claim Where Supervisor Instructed Plaintiff To Stop Talking About Her Deceased Daughter & To Remove Daughter’s Photos From Her Cubicle

The plaintiff worked for the defendant Ortho-McNeil Pharmaceutical from 1994 to 2006.  Ingraham v. Ortho-McNeil Pharmaceutical, ___ N.J. Super. ___ (App. Div. 2011).  In 2006, she was an administrative assistant in a marketing department.  The plaintiff’s immediate supervisors reported to defendant Carl DeStefanis, the department’s director, but the plaintiff had only infrequent contact with him.

In 2003, the plaintiff’s only child, Tatiana, was diagnosed with acute lymphocytic leukemia while she was in her third year of high school.  Tatiana was a talented, excellent student who belonged to several honor societies and had been accepted at Cornell University.  In addition, she studied at the New Jersey School of Ballet but had to stop dancing because of her illness.  Tatiana died in May 2005.  As the Appellate Division noted, the “[p]laintiff’s mourning was deep and enduring[,]” and she kept pictures of Tatiana and her ballet slippers at her work cubicle.

Deceased Driver’s Failure To Have Auto Insurance Bars Heirs From Pursuing Wrongful Death Claims

New Jersey’s Survivors Act, N.J.S.A. 2A:15-3, allows an appointed representative to file any cause of action that the decedent could have brought if he or she had not died.  Such an action belongs to the estate and any recovery is for the benefit of the estate.  The Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, provides a decedent’s heirs with a cause of action to recover pecuniary damages for their direct losses as a result of the decedent’s death if caused by the tortious conduct of another person.  However, the Act further provides that heirs can recover only if the decedent would have been “entitled … to maintain an action for damages resulting from the injury” had “death not ensued.”  A provision of New Jersey’s automobile insurance law, N.J.S.A. 39:6A-4.5(a), provides that any individual who fails to have statutorily required no-fault insurance “shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of the accident while operating an uninsured automobile.” 

The intersection of these statutes was considered by the Supreme Court in Aronberg v. Tolbert, ___ N.J. ___ (2011).  Specifically, the Court had to decide whether the decedent’s failure to maintain no-fault insurance barred his mother’s wrongful death claims against the defendants whose negligence allegedly caused his death in an automobile accident.  The Court, relying primarily upon the plain statutory language of the Wrongful Death Act and N.J.S.A. 39:6A-4.5(a), held that because the decedent was an uninsured driver and therefore “could not have maintained a cause of action had he lived due to the statutory bar in N.J.S.A. 39:6A-4.5(a), his heirs cannot recover under the Wrongful Death Act.”