SADIE TEDESCO, et al. v. THOMAS TRANTINO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1062-05T11062-05T1

SADIE TEDESCO, Administratrix

ad Prosequendum for the

Estate of Gary Tedesco,

Deceased and ELAINE TEDESCO

HARVEY, General Administratrix

of the Estate of Gary Tedesco

(deceased),

Plaintiffs-Respondents,

v.

THOMAS TRANTINO,

Defendant-Appellant.

_______________________________

JERRY VOTO, Administrator ad

Prosequendum for the heirs-at-

law of Peter Voto, deceased,

and Administrator of the Estate

of Peter Voto, deceased, and

individually,

Plaintiff-Respondent,

v.

THOMAS TRANTINO,

Defendant-Appellant.

_________________________________

 

Argued October 31, 2006 - Decided November 20, 2006

Before Judges Skillman, Lisa and Grall.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket Nos. L-5066-03 and L-5068-03.

Jeffrey E. Fogel argued the cause for appellant.

Stephen A. Geffner argued the cause for respondents Sadie Tedesco and Elaine Tedesco Harvey (Gallo Geffner Fenster, attorneys; Mr. Geffner, of counsel, Valerie A. Vladyka, on the brief).

John J. Piserchia argued the cause for Jerry Voto.

Lisa A. Puglisi, Deputy Attorney General, argued the cause for amicus curiae Department of Law and Public Safety, Division of Law (Stuart Rabner, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Puglisi, on the brief).

PER CURIAM

This appeal involves the interpretation and constitutionality of the 2000 amendment to N.J.S.A. 2A:31-3, which established an exception to the two-year limitations period for bringing an action under the Wrongful Death Act in cases where "death resulted from murder, aggravated manslaughter or manslaughter for which the defendant has been convicted[.]" L. 2000, c. 157, 1.

In 1964, defendant Thomas Trantino was found guilty of the execution-style murders of Sergeant Peter Voto of the Lodi Police Department and Gary Tedesco, a young man who was about to be appointed a Lodi patrolman, and was sentenced to death. State v. Trantino, 44 N.J. 358, 361-63 (1965). The Supreme Court of New Jersey affirmed Trantino's conviction and sentence, id. at 363-71, and the Supreme Court of the United States denied his petition for a writ of certiorari, Trantino v. New Jersey, 382 U.S. 993, 86 S. Ct. 573, 15 L. Ed. 2d 479 (1966). Based on subsequent decisions of the Supreme Court of the United States, our Supreme Court concluded that this State's prior death penalty statute was unconstitutional and set aside the death penalty imposed upon Trantino and numerous other defendants and commuted Trantino's death sentence to a single sentence of life imprisonment. State v. Funicello, 60 N.J. 60, 67-68 (1972).

In Trantino v. New Jersey State Parole Board, 166 N.J. 113, 198 (2001), our Supreme Court reversed a final decision of the Parole Board denying Trantino's application for parole and ordered the Board to grant Trantino parole subject to the satisfactory completion of a twelve-month halfway house placement and other pre-release conditions. Pursuant to this decision, Trantino was subsequently released on parole.

In 2000, the Legislature amended the Wrongful Death Act to allow a wrongful death action to be maintained against a convicted murderer even though the complaint was filed beyond the two-year limitations period applicable to other actions under the Act. L. 2000, c. 157, 1. As amended, with the new exception underscored, N.J.S.A. 2A:31-3 now provides:

Every action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter, provided, however, that if the death resulted from murder, aggravated manslaughter or manslaughter for which the defendant has been convicted, found not guilty by reason of insanity or adjudicated delinquent, the action may be brought at any time.

The 2000 amendment to N.J.S.A. 2A:31-3 "reflects a legislative policy judgment that it is fair to toll the running of the statute of limitations applicable to a wrongful death claim if the defendant has been found guilty in a criminal trial." Bernoskie v. Zarinsky, 383 N.J. Super. 127, 140 (App. Div. 2006).

Around the time of Trantino's release on parole, the administrators ad prosequendum of the estates of Peter Voto and Gary Tedesco brought separate wrongful death claims against Trantino.

While these actions were pending in the trial court, this court held, in a published opinion by Judge Conley, that the Legislature intended the 2000 amendment to N.J.S.A. 2A:31-3 to apply to causes of action that accrued more than two years before its enactment and that the application of the amendment to such causes of action was constitutional. Short v. Short, 372 N.J. Super. 333 (App. Div. 2004). The Supreme Court of New Jersey denied a petition for certification to review this decision. Short v. Short, 182 N.J. 429 (2005).

Before our decision in Short, the trial court denied Trantino's motion to dismiss Voto's complaint in a written opinion that rejected Trantino's challenge to the retroactive application of N.J.S.A. 2A:31-3 on grounds similar to those subsequently set forth in Short. After Short, the trial court denied Trantino's motion to dismiss the wrongful death claims asserted in the Tedesco complaint based on our opinion in Short. Subsequently, the plaintiffs in both actions entered into stipulations of liability and damages with Trantino that preserved his right to appeal the denial of his motions to dismiss on the ground that the 2000 amendment to N.J.S.A. 2A:31-3 could not be constitutionally applied to their wrongful death claims.

On appeal, Trantino presents substantially the same arguments we rejected in Short and contends that Short was wrongly decided. We adhere to the conclusions reached in Judge Conley's opinion in Short and therefore affirm the denial of Trantino's motions to dismiss plaintiffs' wrongful death claims substantially for the reasons set forth in that opinion. We add the following supplemental comments.

Trantino argues that Short did not consider whether the retroactive application of the 2000 amendment to N.J. Super. 2A:31-3 violates the Fourteenth Amendment to the United States Constitution. However, the court in Short stated that defendant's primary argument was that "retroactive application is unconstitutional because it revives causes of action that would have otherwise been barred, thereby depriving him of a vested right," without suggesting that defendant's argument was limited to the New Jersey Constitution. 372 N.J. Super. at 338. Moreover, in considering this argument, the court relied upon Twiss v. State Dep't of Treasury, 124 N.J. 461, 469-70 (1991) and Panzino v. Continental Can Co., 71 N.J. 298, 304-05 (1976), which rejected challenges to the retroactive application of statutes under the due process clauses of both the New Jersey and United States Constitutions. See Short, 372 N.J. Super. at 338. Therefore, we are satisfied that the reasons for sustaining the constitutionality of retroactive application of the 2000 amendment to N.J.S.A. 2A:31-3 set forth in Short require rejection of Trantino's argument under the Due Process Clause of the Fourteenth Amendment. See also G.D. Searle & Co. v. Cohn, 455 U.S. 404, 408, 102 S. Ct. 1137, 1141, 71 L. Ed. 2d 250, 256 (1982); Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 311-16, 65 S. Ct. 1137, 1140-43, 89 L. Ed. 2d 1628, 1634-37 (1945).

Affirmed.

 

(continued)

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A-1062-05T1

 

November 20, 2006