BERGENCOUNTY IMPROVEMENT AUTHORITY AND BERGEN COUNTY v. BERGEN REGIONAL MEDICAL CENTER LP, SOLOMON HEALTH GROUP, LLC SOLOMON HEALTHCARE GROUP, LLC GLOBAL EMPLOYEE BENEFITS MANAGEMENT, LLC, BERGEN REGIONAL ANESTHESIOLOGY GROUP, PA, BERGEN REGIONAL MEDIC

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0050-16T4



BERGEN COUNTY IMPROVEMENT
AUTHORITY AND BERGEN COUNTY,

        Plaintiffs-Respondents,

v.

BERGEN REGIONAL MEDICAL CENTER,
LP, SOLOMON HEALTH GROUP, LLC,
SOLOMON HEALTHCARE GROUP, LLC,
GLOBAL EMPLOYEE BENEFITS
MANAGEMENT, LLC, BERGEN REGIONAL
ANESTHESIOLOGY GROUP, PA, BERGEN
REGIONAL MEDICAL CENTER RADIOLOGY
ASSOCIATES, PA, LIFE SOURCE
SERVICES, LP, INTERNATIONAL
INFORMATION TECHNOLOGIES, LP,
CURRENT ELEVATOR TECHNOLOGY, INC,
JOSEPH GLASKI, HERMAN LINDENBAUM,
DAVID SEBBAG, UNITED STATES ELEVATOR,
INC., ELNATAN RUDOLPH,

        Defendants,

and

EDWARD H. HYNES,

        Defendant-Respondent,

and

BERGEN REGIONAL MEDICAL CENTER, LP,
     Third-Party Plaintiff,

v.

COUNTY OF BERGEN, JOHN M. CARBONE,
in his capacity as the Bergen County
Adjuster, and PROPOCO, INC. d/b/a
PROFESSIONAL SERVICES,

     Third-Party Defendants.
____________________________________________

         Argued October 30, 2017 – Decided March 2, 2018

         Before Judges O'Connor and Vernoia.

         On appeal from Superior Court of New Jersey,
         Law Division, Bergen County, Docket No.
         L-0374-12.

         Ronald L. Israel argued the cause for pro se
         appellant Chiesa Shahinian & Giantomasi, PC.

         Padraig P. Flanagan argued the cause for
         respondents Bergen County Improvement
         Authority and the County of Bergen (Florio
         Perrucci Steinhardt & Fader, attorneys;
         Brian R. Tipton, on the brief).

         Michael J. Breslin, Jr., argued the cause
         for respondent Edward H. Hynes.

PER CURIAM

     Appellant is the law firm Chiesa Shahinian & Giantomasi PC,

which has claimed to be the successor of the firm Wolff & Samson

PC (Wolff).   At one time, Wolff represented plaintiff Bergen

County Improvement Authority (Authority) in this matter.



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Neither appellant nor Wolff have ever been parties to this

litigation.

     Appellant appeals from a September 1, 2015 order compelling

the Authority and plaintiff County of Bergen to pay defendant

Edward H. Hynes's attorney $180,465.50 in counsel fees and

$4854.20 in costs, pursuant to 
N.J.S.A. 2A:15-59.1.    We dismiss

this appeal because appellant failed to file a motion for leave

to intervene.

                                I

     From 2003 to 2012, defendant Hynes was the executive

director of the Authority.   In addition to its many functions,

the Authority was in part responsible for the management of

defendant Bergen Regional Medical Center (hospital).   In 2012,

Wolff filed a complaint in federal district court on behalf of

the Authority, alleging defendants engaged in various acts of

wrongdoing, none of which is pertinent here.   Defendant Hynes

was not named in that complaint.

     Later that year, Wolff filed a second amended complaint on

the Authority’s behalf naming Hynes as a defendant.1   The

Authority alleged an elevator company had billed the hospital

for repair and maintenance services the company had not in fact


1
   Two months after the second amended complaint was filed, the
federal district court remanded this matter to the State court.
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provided, and the company also billed for materials the company

had never supplied to the hospital.   Hynes approved the payment

of these fraudulent bills.   Further, when he did so, he signed

the form of certification pre-printed on each voucher, which

stated "I hereby certify from personal knowledge that all of the

goods and services charged for in the within claim have been

received and rendered."

    The Authority alleged Hynes's misrepresentations the

subject services had been performed and the materials supplied

constituted a malicious breach of his fiduciary and contractual

duties to the Authority.   However, the Authority did not allege

Hynes colluded with or was in fact aware the elevator company

had overbilled and defrauded the hospital.

    In 2014, Wolff was substituted as counsel by Archer &

Greiner and, in 2015, Archer & Greiner was substituted by Florio

Perrucci Steinhardt & Fader.   Thereafter, the court granted

Hynes's unopposed motion for summary judgment.   Believing the

claims against him had been frivolous, Hynes filed an

application for sanctions in the form of counsel fees and costs

against appellant and both plaintiffs, pursuant to Rule 1:4-8

and 
N.J.S.A. 2A:15-59.1.

    By order dated September 1, 2015, the court granted Hynes's

request for sanctions against plaintiffs, directing they
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reimburse his counsel $185,319.79 in the aggregate for fees and

costs.   In its oral findings2, the court noted the claims against

Hynes had "no merit from the outset."     The court found it was

"painfully obvious" plaintiffs knew it was not the function of a

person as high on the "chain of command" as Hynes to both

personally inspect the work done on the elevators and to account

for materials received by the hospital.    The court further

observed:

            [T]here were others along the way who would
            approve invoices, et cetera. And [Hynes]
            would look to see if those people along the
            way down at the hospital, et cetera, had
            signed off on the work, which they had done,
            and then he signed off on their . . .
            paperwork.

            Dragging [Hynes] in [was] in fact a very
            despicable act on behalf of the County
            because there was no basis [to do so]. . . .

            [E]veryone knew what he had done and how he
            had done it, that he had signed a piece of
            paper that was submitted in accordance with
            the chain of authority that he had, that he
            looked at the paper and just signed it and
            that was . . . merely his function.

     By order dated September 25, 2015, the court denied Hynes’s

request to similarly sanction appellant.    Appellant appeals only

the September 1, 2015 order.



2
   The court subsequently supplemented its oral findings with a
written opinion.
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                                  II

    On appeal, appellant's primary contention is the trial

court erred when it ordered plaintiffs to pay Hynes's counsel

fees and costs.   Appellant argues the Authority's claims against

Hynes were grounded in law and fact; therefore, there was no

justification for finding the Authority had prosecuted a

frivolous claim against him.   In its initial brief, appellant

does not address whether it has standing to challenge the

September 1, 2015 order.

    Plaintiffs' and Hynes's principal argument in response is

appellant lacks standing to appeal the September 1, 2015 order,

because the order was entered against only plaintiffs, the sole

parties aggrieved by the order.    They further argue appellant

cannot assert the rights of a third party and, as appellant was

not harmed by the September 1, 2015 order, appellant cannot

claim to be the real party in interest, see Rule 4:26-1.

    Although the issue of its standing is an obvious and

essential question, appellant makes no mention of this issue

except in reply to plaintiffs’ and Hynes’s briefs.   In its reply

brief, appellant endeavors to show it has standing by revealing

Hynes "took an adverse action" against Wolff as a result of the

September 1, 2015 order.   Appellant does not disclose the nature

of the action, claiming the Rules of Court prohibit it from
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doing so, but asserts, without any explanation, that Hynes’s

action confers it with standing to challenge the September 1,

2015 order.

    Another issue has surfaced.     In its briefs before us,

appellant takes the position it is the successor to the Wolff

firm.   In fact, a form of order appellant submitted to the court

for its use after deciding Hynes’s motion to sanction appellant

states it was “formerly known as Wolff & Samson PC.”    Yet,

during oral argument, appellant's counsel admitted he was unsure

of the relationship between appellant and Wolff, and whether

appellant is Wolff's successor.   Counsel also advised that the

Wolff firm has not yet dissolved.

    If Wolff and appellant are separate and distinct entities,

appellant may not represent Wolff,    unless it does so as Wolff’s

counsel.   Therefore, without question, the issue of standing is

pivotal and one appellant should have addressed by filing a

timely motion to intervene.   "Whether a party has standing is 'a

threshold justiciability determination . . . .'"    N.J. Dep't of

Envtl. Prot. v. Exxon Mobil Corp., ____ N.J. Super. ____, ____

(App. Div. 2018) (slip op. at 19) (quoting In re Six Month

Extension of N.J.A.C. 5:91-1 et seq., 
372 N.J. Super. 61, 85

(App. Div. 2004)).   "[A] lack of standing . . . precludes a

court from entertaining any of the substantive issues for
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                                                          A-0050-16T4
determination."     Ibid. (alterations in original) (quoting

EnviroFinance Grp. v. Envtl. Barrier Co., 
440 N.J. Super. 325,

339 (App. Div. 2015)).

      In general, to appeal from an order, one must be aggrieved

by it.   Calabro v. Campbell Soup Co., 
244 N.J. Super. 149, 169

(App. Div. 1990) (quoting Howard Savings Inst. v. Peep, 
34 N.J.
 494, 499 (1961)).    In order to be aggrieved, "a party must have

a personal or pecuniary interest or property right adversely

affected by the judgment in question."     State v. A.L., 
440 N.J.

Super. 400, 418 (App. Div. 2015) (quoting Howard Sav. Inst., 
34 N.J. at 499).

      The fact a party aggrieved by an order has not appealed

from it does not necessarily preclude another party from doing

so.   "Our prior decisions have recognized the appropriateness of

granting a party affected by a judgment leave to intervene to

pursue an appeal if a party with a similar interest who actively

litigated the case in the trial court has elected not to

appeal."   CFG Health Sys., L.L.C. v. Cty. of Essex, 
411 N.J.

Super. 378, 385 (App. Div. 2010).    Moreover, the right to appeal

is not conditioned upon having participated as a party in the

prior proceeding.    Exxon Mobil Corp., ____ N.J. Super. ____

(slip op. at 32) (quoting SMB Assocs. v. N.J. Dep't of Envtl.

Prot., 
264 N.J. Super. 38, 44 (App. Div. 1993)).
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                                                           A-0050-16T4
    Here, appellant has not identified how it is aggrieved by

the September 1, 2015 order.   More important, appellant did not

avail itself of the remedy of filing a motion for leave to

intervene, see Rule 4:33-1 and Rule 4:33-2, so the question of

its standing could have been properly reviewed and decided.

Because the question of whether appellant has standing and is

entitled to intervene remains unanswered, we are precluded from

considering the substantive issues appellant asserts.   Exxon

Mobil Corp., ____ N.J. Super. ____ (slip op. at 19) (quoting

EnviroFinance, 
440 N.J. Super. at 339).   Accordingly, the appeal

is dismissed.

    Dismissed.




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