GIOVANNI ASTORINO v. NEW JERSEY TRANSIT et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3062-06T20003-07T3

GIOVANNI ASTORINO and

SANDRA ASTORINO, husband

and wife, MARK SHTRAUS and

LILIA SHTRAUS, husband and

wife,

Plaintiffs-Appellants,

v.

NEW JERSEY TRANSIT and NEW

JERSEY TRANSIT RAIL OPERATIONS,

Defendants-Respondents.

_______________________________________________

 

Submitted May 13, 2008 - Decided

Before Judges Simonelli and King.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3443-06.

Law Offices of Fredric L. Bor, P.C., attorneys for appellants (Mr. Bor, on the brief).

Anne Milgram, Attorney General, attorney for respondents (Melissa H. Raksa, Deputy Attorney General, of counsel; Karen L. Jordan, Deputy Attorney General, on the brief).

PER CURIAM

Plaintiffs Giovanni Astorino, Sandra Astorino, Mark Shtraus, and Lilia Shtraus, appeal from the order of July 20, 2007, granting summary judgment to defendants dismissing their complaint with prejudice pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3. We affirm.

I.

The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). On July 14, 2003, plaintiffs Giovanni Astorino and Mark Shtraus, both Pennsylvania residents, were passengers in a commuter train car owned and operated by defendants, New Jersey Transit and New Jersey Transit Rail Operations (collectively New Jersey Transit). Plaintiffs claim they were injured as a result of a train derailment in Secaucus. On October 10, 2003, plaintiffs filed a Notice of Claim in compliance with N.J.S.A. 59:8-8.

On April 13, 2005, plaintiffs filed a complaint in the Court of Common Pleas, Philadelphia County, Philadelphia, Pennsylvania (the Pennsylvania Complaint). On July 15, 2005, New Jersey Transit filed an answer and separate defenses, including a statute of limitations defense. On September 26, 2005, New Jersey Transit filed a motion for judgment on the pleadings grounded on lack of jurisdiction. On November 16, 2005, the Pennsylvania trial court granted the motion and dismissed the complaint. On November 23, 2005, plaintiffs filed a motion for reconsideration, which was granted. However, on January 17, 2006, the court once again dismissed the complaint for lack of jurisdiction.

On February 9, 2006, plaintiffs filed an appeal in the Superior Court of Pennsylvania, and on March 17, 2006, they filed a second motion for reconsideration. On March 28, 2006, the trial court dismissed the second motion for reconsideration. On July 10, 2006, plaintiffs filed a complaint in Superior Court of New Jersey (the New Jersey Complaint).

On October 24, 2006, the Pennsylvania Superior Court affirmed the dismissal. Astorino v. N.J. Transit Corp., 912 A.2d 308 (Pa. Super. 2006). Plaintiffs then filed a request for re-argument en banc, which was denied on December 28, 2006. On February 22, 2007, plaintiffs filed an appeal in the Supreme Court of the Commonwealth of Pennsylvania, which was denied on September 29, 2007.

On June 22, 2007, New Jersey Transit filed a motion for summary judgment to dismiss the New Jersey Complaint with prejudice based upon the two-year limitations period prescribed in N.J.S.A. 59:8-8. Plaintiffs countered that the equitable tolling doctrine should apply because they filed a timely notice of claim with New Jersey Transit; they filed a timely complaint in Pennsylvania; the Pennsylvania and New Jersey Complaints are identical; they had a good faith belief that Pennsylvania had jurisdiction; the Pennsylvania court did not have the power to transfer the case to New Jersey pursuant to Pennsylvania R.C.P. 1032; and plaintiffs' counsel had a good faith belief that Pennsylvania had jurisdiction.

On July 20, 2007, Judge Sarkisian granted the motion, finding that equitable tolling does not apply to the TCA, and that plaintiffs did not diligently prosecute the New Jersey Complaint, having delayed almost six months after the dismissal of the Pennsylvania Complaint to file it. The judge also found inapplicable plaintiffs' reliance on Galligan v. Westfield Centre Serv., Inc., 82 N.J. 188 (1980) and Jaworowski v. Ciasulli, 490 F.3d 331 (3d Cir. 2007).

II.

Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). "Genuine" issue of fact means "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid. Even if the allegations in the pleadings raise an issue of fact, if the other papers show that there is not a real material issue, then summary judgment can be granted. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).

In deciding a summary judgment motion, the trial court's "'function is not . . . to weigh the evidence and determine the truth . . . but to determine whether there is a genuine issue for trial.'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d. 202, 212 (1986)). To determine that, the trial judge must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. If there is "a single, unavoidable resolution of the alleged disputed issue of fact," then the issue is not "genuine." Ibid. The thrust of Brill is that "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. (quoting Liberty Lobby, Inc., supra, 477 U.S. at 252, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214).

We apply the same standard as the trial court in reviewing summary judgment orders. Liberty Surplus Ins. Corp., Inc. v. Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Thus, a movant must show there is no "genuine issue" of material fact "and not simply one 'of an insubstantial nature'; a non-movant will be unsuccessful 'merely by pointing to any fact in dispute.'" Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998) (quoting Brill, supra, 142 N.J. at 529-30), certif. denied, 154 N.J. 608 (1998). If there is no genuine issue of fact, we must then decide whether the lower court's ruling on the law was correct. Ibid. We must consider the correctness of the lower court's decision based on the case only as it had unfolded to the point of the motion, and the evidential material submitted on that motion. Bilotti v. Accurate Forming Corp., 39 N.J. 184, 188 (1963).

Applying these standards, we determine that Judge Sarkisian properly granted summary judgment. Plaintiffs had no good faith basis to file the Pennsylvania Complaint because Pennsylvania courts did not have jurisdiction over claims against New Jersey Transit arising from accidents occurring in New Jersey. See Flamer v. N.J. Transit Bus Operations, Inc., 607 A.2d 260, 360 (Pa. Super. 1992). Plaintiffs did not diligently pursue the New Jersey Complaint, they were not prevented from doing so, and they took no action within the limitation period to protect their claims by filing in New Jersey. They also do not explain why they waited six months after the Pennsylvania Complaint was dismissed to file the New Jersey Complaint.

More importantly, unlike Galligan and Jaworowski, this matter involves the TCA. The TCA is to be strictly construed. Hawes v. N.J. Dep't of Transp., 232 N.J. Super. 160, 164 (Law Div.), aff'd, 232 N.J. Super. 159 (App. Div. 1988). There is no provision in the TCA permitting equitable tolling. Rather, N.J.S.A. 59:8-9 clearly mandates that "in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim." This bar applies regardless of whether a notice of claim was timely filed. Anaya v. Twp. Of Vernon, 139 N.J. Super. 409, 412 (App. Div.), certif. denied, 71 N.J. 494 (1976).

Affirmed.

Plaintiffs Sandra Astorino and Lilia Shtraus sought per quod damages.

Plaintiffs also contend for the first time that the doctrine of substantial compliance applies. We decline to consider this issue. R. 2:6-2(a)(1); Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).

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A-0003-07T3

June 26, 2008