BOBBIE LYNN PIERCE v. CHERRY HILL TOWNSHIP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3264-08T33264-08T3

BOBBIE LYNN PIERCE, Individually

and as Administratrix of the

Estate of Joseph Pierce,

Plaintiff-Appellant,

v.

CHERRY HILL TOWNSHIP and CHERRY

HILL TOWNSHIP POLICE DEPARTMENT,

Defendants-Respondents.

____________________________________

 

Argued March 17, 2010 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5868-08.

Anthony L. Marchetti, Jr. argued the cause for appellant (Cureton Clark, P.C., attorneys; Matthew C. Waldt and Mr. Marchetti, on the brief).

Jeffrey R. Johnson argued the cause for respondents (Brown & Connery, LLP, attorneys; Mr. Johnson, on the brief).

PER CURIAM

Plaintiff Bobbie Lynn Pierce, individually and as administratrix of the Estate of Joseph Pierce (decedent), her husband, appeals the denial of her application for leave to file a late notice of claim pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:8-1 to -11. We reverse and remand for an evidentiary hearing.

I.

We discern the following facts from the record. This litigation arises out of an altercation in the parking lot of the Cherry Hill Diner during the early morning hours on November 22, 2007. The altercation started after two vehicles narrowly avoided a collision, and it ended with the stabbing of one participant and the severe beating of another, the decedent.

The Cherry Hill police arrived at the scene and separated the combatants. The decedent was handcuffed and detained by the police as part of their investigation. However, he was subsequently taken to the emergency room of a nearby hospital, where he died. He had apparently suffered a heart attack at some point during or following the altercation. Pierce, who had remained at the scene, was informed of his death by the police.

Pierce asserts that she was devastated by her husband's death and the fact that she was not with him at the time. She provided a medical opinion that she was "rendered [] powerless, overwhelmed and unable to cope with the loss," that she suffered from "deep depression," and was "mentally and physically unable to perform tasks such as investigating legal rights and claims, understanding complex theories, and understanding the ramifications of her failure to do so." Nevertheless, she certified that she attempted, without success, to obtain information and copies of reports about the incident shortly after it took place.

On December 12, 2007, the Cherry Hill police charged Pierce and others who were present at the altercation with "fighting" in violation of N.J.S.A. 2C:33-2(a)(1). Pierce retained an attorney in connection with the disorderly conduct charge. She and the attorney discussed a claim against the police, but the attorney apparently advised her that she needed to wait until she received the discovery in the municipal matter before she could file a claim. She asserts that she nevertheless continued her attempts to obtain information and records.

The municipal charges were dismissed in May 2008. On June 6, 2008, Pierce wrote to the Cherry Hill Police Department to give notice that she "intend[ed] to file suit . . . regarding the death of [her] husband, Joseph Pierce." By letter dated June 9, 2008, Cherry Hill Township's solicitor acknowledged receipt of the notice and requested Pierce to complete a tort claim notice included with the letter. However, by letter dated June 13, 2008, the Township's claims administrator denied the claim on the basis of late notice, citing N.J.S.A. 59:8-8. Nevertheless, by letter dated July 2, 2008, Pierce's new attorney forwarded the tort claim form to the Township's solicitor, noting that he was still seeking additional information requested in the form.

Pierce filed a motion for leave to file a late notice of claim on November 21, 2008. The Township opposed the motion. Following oral argument on January 23, 2009, the Law Division denied the motion, finding that Pierce had failed to satisfy the "extraordinary circumstances" requirement of N.J.S.A. 59:8-9. This appeal followed.

II.

On appeal, Pierce argues that the motion judge erred in denying her motion for leave to file a late notice of claim.

A.

The legal standards applicable in this case were discussed at length in our opinion in Leidy v. County of Ocean, 398 N.J. Super. 449, 455-57 (App. Div. 2008):

Claims against public entities are governed by the Tort Claims Act. N.J.S.A. 59:8-1 to -11. A party has ninety days from the accrual of his claim to file notice of a claim against a public entity. N.J.S.A. 59:8-8(a). This notice requirement was created:

(1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; and (4) to inform the State in advance as to the indebtedness or liability that it may be expected to meet.

[Moon v. Warren Haven Nursing Home, 182 N.J. 507, 514 (2005) (quoting Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)) (internal quotation marks and citations omitted in original).]

 
There is an exception to the ninety-day notice rule. N.J.S.A. 59:8-9 provides:

A claimant who fails to file notice of his claim within 90 days as provided in section 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided 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.

[N.J.S.A. 59:8-9 (emphasis added).]

Thus, although the decision to grant a plaintiff permission to file late notice of a tort claim "'is a matter left to the sound discretion of the trial court,'" R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 340 (App. Div. 2006) (quoting Ohlweiler v. Twp. of Chatham, 290 N.J. Super. 399, 403 (App. Div. 1996), overruled on other grounds by Beauchamp, supra, 164 N.J. at 120), this "discretion is limited to cases in which the claimant's affidavit shows 'sufficient reasons constituting extraordinary circumstances' for the delay and there is no 'substantial[] prejudice[]' to the public entity or employee." Ibid. (quoting Ohlweiler, supra, 290 N.J. Super. at 403) (alterations in original). Findings about "the lack of 'substantial prejudice' and the presence of 'extraordinary circumstances' . . . . must be expressly made in order to comply with the legislative mandate and to justify the entry of an order permitting the filing of a late notice of claim under N.J.S.A. 59:8-9." Allen v. Krause, 306 N.J. Super. 448, 455-56 (App. Div. 1997).

The "extraordinary circumstances" requirement was not part of the original Act, and mere "sufficient reasons" sufficed to warrant relief from the statutory time bar. Lowe v. Zarghami, 158 N.J. 606, 625 (1999). The "extraordinary circumstances" language was added by amendment in 1994, L. 1994, c. 49, 5, in order to "raise the bar for the filing of late notice from a 'fairly permissive standard' to a 'more demanding' one." Beauchamp, supra, 164 N.J. at 118 (quoting Lowe, supra, 158 N.J. at 625). "'[T]he amendment may have signaled the end to a rule of liberality' in filing." Ibid. (quoting Lowe, supra, 158 N.J. at 626) (alteration in original). Notably, the 1994 amendment "'does not define what circumstances are to be considered "extraordinary" and necessarily leaves it for a case-by-case determination as to whether the reasons given rise to the level of "extraordinary" on the facts presented.'" Lowe, supra, 158 N.J. at 626 (quoting Allen, supra, 306 N.J. Super. at 455; Ohlweiler, supra, 290 N.J. Super. at 404; O'Neill v. City of Newark, 304 N.J. Super. 543, 551 (App. Div. 1997); Margolis and Novack, Claims Against Public Entities, Comment on N.J.S.A. 59:8-9 (1999)).

Because no notice of claim was filed within ninety days of November 22, 2007, the date of the altercation and decedent's death, the inquiry becomes whether Pierce has demonstrated "extraordinary circumstances" for the delay. As noted in Leidy, the TCA does not define the term, instead leaving "for a case-by-case determination . . . whether the reasons given rise to the level of 'extraordinary' on the facts presented." Lowe v. Zarghami, 158 N.J. 606, 626 (1999) (quoting Allen v. Krause, 306 N.J. Super. 448, 455 (App. Div. 1997)). The judge may consider a "combination of factors" in determining whether plaintiff has demonstrated "extraordinary circumstances." Lowe, supra, 158 N.J. at 629. We have noted that even if the reasons suggested for a plaintiff's delay "when offered individually, were inadequate, a judge must consider the collective impact of the circumstances offered . . . ." R.L. v. State-Operated Sch. Dist., 387 N.J. Super. 331, 341 (App. Div. 2006).

B.

In discounting Pierce's medical evidence, the motion judge relied upon his doubts that a doctor of osteopathy was capable of giving opinions with respect to mental health issues and what he perceived to be a shift in that opinion between the doctor's two statements. He also noted the apparent conflict between the doctor's assertions of disability and Pierce's efforts to obtain information and reports following her husband's death.

In New Jersey, doctors of osteopathy and doctors of medicine are licensed to practice medicine and surgery without distinction as to whether they have been trained in osteopathic or homeopathic medicine. See Eatough v. Bd. of Med. Exam'rs, 191 N.J. Super. 166, 170 (App. Div. 1983) ("It is the expressed legislative policy of the State as well as the policy of the Board [of Medical Examiners] to recognize graduates of osteopathic medical schools as fully competent in every respect to practice medicine and surgery.").

With respect to the doctor's two statements, we note that they were prepared for different purposes. Both relate Pierce's condition to the death of her husband, although, as the motion judge noted, the earlier statement has a misstatement with respect to the date. The earlier statement was contained on a State form and submitted to the State Division of Family Development in connection with Pierce's application for Work First New Jersey benefits. It specifically addressed her ability to work. The later statement was a certification specifically prepared for use in this litigation.

Although the opinions are stated differently, the two do not necessarily reach different conclusions. The earlier statement opines that Pierce was "suffering from severe anxiety/depression with panic attacks" and that she was "not functioning well at home." The later statement, quoted above at page 3, certainly describes Pierce's disability more extensively. However, on its face, it does not amount to something akin to a "sham affidavit" that can simply be ignored. See Shelcusky v. Garjulio, 172 N.J. 185, 201-02 (2002) ("Courts should not reject alleged sham affidavits where the contradiction is reasonably explained [or] where an affidavit does not contradict patently and sharply the earlier deposition testimony . . . . ").

Our review of the record leads us to the conclusion that a plenary hearing is necessary to determine whether a late notice of claim should be permitted. Although ordinarily decided on the papers, the facts in this case are subject to different interpretations and sufficiently complicated to warrant judicial fact-finding to decide the issue. Pierce relies on her mental condition, her unsuccessful attempts to obtain information, the upset caused by the filing of charges against her, the apparently erroneous advice received from her criminal attorney, and the delay in receiving full discovery from the police until shortly before she filed her pro se notice of claim. The truth of these assertions, as well as their relationship to each other, need to be tested in the context of a plenary hearing. They are the "combination of factors" that go into a determination as to whether there were exceptional circumstances. Lowe, supra, 158 N.J. at 629.

In remanding, we note that there does not appear to be any prejudice to Cherry Hill Township with respect to a late notice of claim. The Township Police were certainly well aware of the altercation and subsequent death of a suspect who had been in their custody shortly before he died. The record suggests that there was an internal investigation with respect to the death. We glean from the Township's appellate argument that Township officials were also well aware that Pierce was asking questions and seeking information about the death of her husband within the ninety-day period.

For the reasons stated, we reverse the order on appeal and remand to the Law Division for a plenary hearing to determine whether Pierce has satisfied the "extraordinary circumstances" requirement of N.J.S.A. 59:8-9.

 
Reversed and remanded.

Although the merits of the underlying claim are not appropriately considered in connection with the issue before us, we note that there is apparently evidence suggesting that the decedent stabbed one participant in the argument, leading to the stabbing victim's companions attacking and beating him in reprisal.

The date of the retention is not contained in the record. We grant Pierce's motion to supplement the record to include the attorney's February 21, 2008, letter to the municipal prosecutor seeking discovery. The date of initial consultation and retention can be established at the remand hearing.

(continued)

(continued)

11

A-3264-08T3

April 12, 2010