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Morrocco v. Felton

Decided: September 25, 1970.

VINCENT J. MORROCCO, AS AGENT FOR ROY PETERSON, PLAINTIFF,
v.
JOHN FELTON; JOHN HOLMES; LONNIE IRVING; JOHN JAMISON; JAMES KEATON; GEORGE LIGHTFOOT; JOHN LOCKETT; JOHN MILNER; JOHN NAPPER; WILLIE NORMAN; JOHN POTEAT; JAMES SHIRLEY; WALLACE SMITH; MARY STEVENS; BETTY WILLIAMS; OLIVER WILLIAMS; AND MARY YOUNG, DEFENDANTS



Tumulty, J.s.c.

Tumulty

This is a motion upon order to show cause by defendant tenants to remove these 17 actions for possession from the Essex County District Court to the Superior Court pursuant to N.J.S.A. 2A:18-60, and for consolidation of the same with the class action previously filed with this court by these tenants as plaintiffs in the matter of North Day Tenants Ass'n v. Peterson , under R. 4:38-1(b).

Plaintiff Roy Peterson is the owner of certain multiple dwelling apartments located at 292, 288 and 284 North Day Street in Orange, New Jersey. Defendants are all tenants residing at these premises under oral month-to-month agreements. On August 17, 1970 Peterson through his agent Vincent J. Morrocco filed summary dispossess proceedings pursuant to N.J.S.A. 2A:18-53 in the Essex County District Court against these defendants for nonpayment of rent. These tenants had formed the North Day Tenants Association in May 1970 and had since that time been withholding their rents and paying the same into an escrow account due to an alleged continued lack of habitability of the premises.

On August 27, 1970 the tenants filed a verified complaint with the Superior Court upon order to show cause, and at the same time brought the present application under order to show cause, seeking to remove the dispossess actions and consolidate them with their affirmative action. Brought as a class action pursuant to R. 4:32-1 et seq. , the tenants as

plaintiffs joined the landlord Peterson, his agent and the four mortgagees of the premises as defendants, seeking declaratory judgment, injunctive relief and damages on the issue of habitability. N.J.S.A. 2A:16-50 et seq. Plaintiffs allege that any or all of the defendants joined may be jointly or severally liable under the causes of action set forth.

N.J.S.A. 2A:18-60 provides that

At any time before an action for the removal of a tenant comes on for trial, either the landlord or person in possession may apply to the superior court, which may, if it deems it of sufficient importance, order the cause transferred from the county district court to the superior court. * * *

This statute "recognizes that certain types of proceedings to remove a tenant involve rights or issues too important to be heard in a summary manner without a right of appeal." Master Auto Parts, Inc. v. M. & M. Shoes, Inc. , 105 N.J. Super. 49, 52 (App. Div. 1969); see Sbrolla v. Hess , 133 N.J.L. 71 (Sup. Ct. 1945), and Red Oaks, Inc. v. Dorez, Inc. , 117 N.J.L. 280 (Sup. Ct. 1936).

It is a matter of discretion with the Superior Court to decide if an action is "of sufficient importance," and thus should be removed. Carteret Properties v. Variety Donuts, Inc. , 49 N.J. 116, 130 (1967). "However, discretion means legal discretion in the exercise of which the trial judge must take account of the applicable law and the particular circumstances of the case, to the end that a just result is reached." Master Auto Parts, Inc. v. M. & M. Shoes, Inc. supra , 105 N.J. Super. at 53.

Under N.J.S.A. 2A:18-53 the county district court is normally the proper place to institute and adjudicate dispossess proceedings. Those proceedings, however, must be heard in a summary manner, and that court lacks any general equitable jurisdiction. Scott v. Bodnar , 52 N.J. Super. 439 (1958), certif. den. 29 N.J. 136 (1959). Although the county district court may hear equitable defenses

and entertain equitable concepts, it is beyond the power of that court to grant permanent injunctive or other equitable relief to these parties as may appear just and appropriate under the circumstances presented. See Vineland Shopping Center, Inc. v. DeMarco , 35 N.J. 459 (1961); Citizens First National Bank v. Brierly , 98 N.J. Super. 497 (1968), and Olstowski v. Schreck , 91 N.J. Super. 100 (1966).

N.J.S.A. 2A:18-59 provides that summary dispossess actions in the county district court "shall not be appealable except on the ground of lack of jurisdiction," while N.J.S.A. 2A:18-61 allows a general appeal of right from the judgment of the Superior Court in actions which have been removed. Although our Supreme Court has questioned the wisdom of this distinction in Marini v. Ireland , 56 N.J. 130 (1970), at 140, fn. 1, the statute presently remains in force. Further, the decision in Marini , at 138, 139, fails to make clear what may now be considered a jurisdictional question and thus appealable on the ground of lack of jurisdiction. When, as here, the diverse issues of law and questions of ...


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