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Perillo v. Dreher

Decided: January 16, 1974.

JOSEPHINE PERILLO, ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF RALPH J. PERILLO, DECEASED AND JOSEPHINE PERILLO, INDIVIDUALLY AND AS MOTHER AND NATURAL GUARDIAN OF JUNE ANN PERILLO AND RALPH PERILLO, PLAINTIFFS-APPELLANTS,
v.
THOMAS J. DREHER AND THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Halpern, Matthews and Bischoff.

Per Curiam

This is a wrongful death action instituted on November 9, 1972 by Josephine Perillo as administratrix ad prosequendum against Thomas J. Dreher and the State of New Jersey. On December 31, 1970 Ralph Perillo, a project manager for Kaufman and Broad residential developers, was involved in a collision on Hooper Avenue, Dover Township, with a vehicle driven by Trooper Thomas J. Dreher of the New Jersey State Police. Perillo died of injuries sustained in the collision on January 12, 1971.

By letter dated December 11, 1972 the State of New Jersey instructed its insurance carrier, Hartford Insurance Group, to assert the defense of sovereign immunity. Following argument on the motion on March 23, 1973, Judge Grossman ordered summary judgment in favor of defendant State of New Jersey. While no motion for leave to appeal was made, we have elected to entertain the appeal on its merits because of the obvious public policy question raised. The Attorney General has been granted leave to intervene.

In Willis v. Department of Conservation and Economic Development, 55 N.J. 534 (1970), the doctrine of sovereign immunity was abolished. However, the effective date of this rule was postponed until January 1, 1971 to allow "an expression of legislative will." Soon thereafter, the Legislature enacted L. 1970, c. 98, § 1, effective June 15, 1970, which extended the bar until July 1, 1971. The statute was subsequently amended twice, extending the bar on actions against the State in tort to July 1, 1972. The statute in its final form, N.J.S.A. 52:4A-1, provided:

Except for actions founded upon the Constitution of this State or the United States or an express provision of the statutory laws of this State, no action shall be instituted or continued against the State or any department or other agency thereof for the recovery of money damages, based on tort, where the cause of action accrues prior to July 1, 1972.

On July 1, 1972 the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., became effective and specifically provided in section 12-3 for prospective application only:

This act applies only to claims that accrue on or after its effective date. Claims that accrued prior to the effective date of this act are not affected by this act but shall continue to be governed by the law applicable thereto prior to the effective date of this act; provided however that this act shall apply to the suit presently pending between Willis and Department of Conservation and Economic Development, Superior Court, Docket No. L-9817-66.

I

Plaintiff argues that N.J.S.A. 52:4A-1 is interim legislation in the sense that it imposes a moratorium only, rather than a temporary reinstatement of the pre- Willis rule. In P.T. & L. Construction Co. v. Commissioner, Department of Transportation, 57 N.J. 439 (1971), the court adopted the Attorney General's interpretation of N.J.S.A. 52:4A-1 of interim legislation. In view of this concession, the court found that the purpose of the statute was not to repudiate

the State's contractual obligations. Plaintiff seeks to extend this interpretation to an action in tort against the State. It must be recognized that in the context of governmental contract immunity such an interpretation was necessary to avoid the possibility of an unconstitutional impairment of contract rights. No problem of a similar dimension is present in the context of governmental tort immunity to warrant an extension of second P.T. & L. rationale to this case. In fact, the third P.T. & L. Construction Co. v. Commissioner, Department of Transportation, 60 N.J. 308, 315 (1972), specifically recognized the different policy considerations applicable to tort claims. It should also be noted that N.J.S.A. 52:4A-1 was amended to continue the bar to claims in tort after third P.T. & L.

As amended, the language of the statute does not lend itself to an interpretation of moratorium. The California experience is illuminating on this point. Following Muskopf v. Corning Hospital District, 55 Cal. 2d 211, 11 Cal. Rptr. 89, 359 P. 2d 457 (Cal. 1961), in which the doctrine of governmental tort immunity was judicially abrogated, the Legislature enacted L. 1961, c. 1404, § 1, which in language similar to our N.J.S.A. 52:4A-1 reinstated governmental tort immunity. However, section 4 of the ...


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