Decided: September 28, 1976.
NEW JERSEY OPTOMETRIC ASSOCIATION, PLAINTIFF,
HILLMAN-KOHAN EYEGLASSES, INC., VORNADO, D/B/A NOBLE OPTICS, INC. & D/B/A NOBLE EYEGLASSES, COMMUNITY OPTICIANS, $7.00 EYEGLASSES, NEW JERSEY CORP., D/B/A COMMUNITY OPTICIANS, AARON ABRAMS, LOUIS R. ALONGE, FRANK S. ANGELINI, RICHARD S. APPEL, RUSSELL H. ARONDS, MARKUS I. BARTH, BURTON C. BLAUROCK, GERALD BLUMBERG, EDWARD J. COGAN, JR., JONAS DIETZ, ROBERT M. EPSTEIN, CHARLES ALLEN FALKOWITZ, JEROME FEINSTEIN, MICHAEL CARL FEINSTEIN, IRWIN GLADSTONE, DOUGLAS N. GLAZER, RICHARD M. KAPLAN, THEODORE KATZ, JEFFERY I. KAUFMAN, RONALD S. KOWALIK, SEYMOUR KURTZ, JOSEPH LEHRMAN, HARRY A. LEVINE, RICHARD A. LEVINE, ROBERT C. MORENSTEIN, MARTIN OXENHORN, ISRAEL R. PLASNER, JEFFERY J. RUFFO, TERRY RAYMOND SCHEID, STUART SCHIFFMAN, BRUCE ALLEN SCHUSTER, ARNOLD SHAPIRO, LAWRENCE G. SHAPIRO, WAYNE TUDOR, RALPH P. VEND, RALPH WEISS, CHARLES L. ZOLOT, WILLIAM F. HYLAND, THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, AND THE NEW JERSEY STATE BOARD OF OPTOMETRISTS, DEFENDANTS
Plaintiff New Jersey Optometric Association (Association) has brought suit against a multitude of defendants alleging, among other things, violations of N.J.S.A. 45:12-1 et seq. (Optometry Act), N.J.S.A. 52:17B-41.1 et seq. (Optician Act), N.J.S.A. 56:9-1 et seq. (Antitrust Act), unfair competition, fraud and governmental inaction. The Association is a nonprofit corporation whose membership consists of more than 500 optometrists licensed to practice optometry in the State of New Jersey. The Association seeks both injunctive relief and monetary damages on behalf of itself and its members.
The list of defendants can be categorized into three main groups. The first is composed of three corporations, Hillman-Kohan Eyeglasses, Inc.; Vornado, d/b/a Noble Optics, Inc. and d/b/a Noble Eyeglasses; and Community Opticians, $7.00 Eyeglasses, Inc. (hereinafter collectively referred to as corporate defendants). The second group consists of 37
individual optometrists (hereinafter collectively referred to as individual defendants). The third group consists of the Attorney General of the State of New Jersey and the New Jersey State Board of Optometrists (Board) (sometimes jointly referenced as public defendants).
The immediate focus of this court is on the several motions of all the defendants to dismiss the complaint. The proffered grounds for dismissal of the complaint are several. For the sake of clarity and legal analysis I will address myself to the various motions separately as they relate to the three groups of defendants delineated above.
Initially, we must look to see of what the Association complains. The complaint is drafted in 13 counts. The basic thrust of the complaint as it relates to the individual defendants and corporate defendants is that they have entered into a commercial relationship which is in violation of N.J.S.A. 45:12-1 et seq. and N.J.A.C. 13:38-1 et seq. and the Association and its membership is injured thereby. More specifically, the Association charges that this relationship and the activities pursuant thereto violate N.J.S.A. 45:12-11, 19, 19.1.*fn1 It is contended that these alleged illegal acts constitute a fraud on the public, denigrate the professional standards of the practice of optometry in New Jersey, are tortious as against the Association and its membership, cause unjust enrichment and also violate the New Jersey Antitrust Act, N.J.S.A. 56:9-1 et seq.
Count five of the complaint alleges that the Board has arbitrarily rejected numerous requests of the Association for the Board to take the necessary and proper steps provided by statute to halt the illegal and improper activities of the individual and corporate defendants.*fn2 The Association wants
the court to direct the Board to institute proceedings on the Association's complaints pursuant to N.J.S.A. 45:12-12.
The sixth count is directed against the Attorney General. It basically iterates the relief requested in the fifth count because of the fact that the office of the Attorney General is the counsel to the Board and brings all necessary judicial proceedings on behalf of the Board.
The public defendants move to dismiss the complaint on the ground that this court lacks jurisdiction of the subject matter and that the action is not timely filed. This argument is premised on the public defendants' view that the action of plaintiff is in reality an appeal from a final decision of a state administrative agency which, as such, must be filed in the Appellate Division and within 45 days of that final action. R. 2:2-3(a)2; R. 2:4-1(b). In order to clearly understand the basis on which the public defendants premise their argument some background is necessary. This background material is revealed in two affidavits submitted by the Attorney General in addition to the facts set forth in its brief sworn to be true. Although the instant motion is for a dismissal of the complaint and as such all facts pleaded are construed in favor of plaintiff, the court makes reference to the facts stated in these affidavits only for the limited purpose of constructing some sort of framework in which to analyze the public defendants' motion.*fn3
It appears that the Association has been presenting complaints to the Attorney General and the Board for some time now concerning the alleged illegal relationship between the individual defendants and the corporate defendants. By letter of April 9, 1975 the Attorney General's office notified the Association (through its counsel) that the investigation of the Association's complaints had led to complaints being filed with the Board "in the eye care facet of the investigation" but "that there is neither a proper basis in law or in the facts which we have reviewed upon which to bottom a complaint charging a violation of the optometry statute or to justify a 'rule-making' investigation by the Board of Optometrists." After the Association voiced its displeasure of the Attorney General's opinion the Board acceded to the Association's request that the Board consider the charges anew. By letter of October 31, 1975 the Board affirmed the content of the Attorney General's letter of April 9, 1975. The Association now complains that this action by the Attorney General and the Board is arbitrary.
The public defendants take the position that the determination by the Board not to take any further action regarding the alleged violations of the Optometry Act presented to it by the Association is a final decision of a state administrative agency and hence reviewable only in the Appellate Division. R. 2:2-3(a)2. Johnson v. N.J. State Parole Bd. , 131 N.J. Super. 513 (App. Div. 1974); Princeton First Aid Squad v. Division on Civil Rights , 124 N.J. Super. 150 (App. Div.), certif. den. 63 N.J. 555 (1973). The Association maintains that the decision of the Board not to issue complaints in the subject area is not a final decision or action from which an appeal may be had in the Appellate Division. The Association contends that its action is one of mandamus seeking this court to order the Board to undertake proceedings which will result in a decision or action which is final. Garrou v. Teaneck Tryon , 11 N.J. 294 (1953); Pfleger v. N.J. State Highway Dept. , 104 N.J. Super. 289 (App. Div. 1968). The Association
also asserts that review in the Appellate Division is intended only to cover quasi -judicial decisions or actions. Cozy Pine Hunting Preserve, Inc. v. Fish & Game Division , 87 N.J. Super. 84 (App. Div. 1965). In the alternative, the Association urges that if this court declines jurisdiction of the matter it should transfer the case to the Appellate Division rather than dismiss it. R. 1:13-4; De Nike v. Bd. of Trustees , 34 N.J. 430 (1961).
Subsequent to the hearing in this matter the Appellate Division rendered its decision in the case of State v. Council of N.J. State College Locals , 141 N.J. Super. 470 (App. Div. 1976). The views expressed in that opinion appear to be dispositive of the present jurisdictional question. In that case a teachers' union appealed from a decision of the Public Employment Relations Commission (PERC) which affirmed the decision of its executive director in deciding not to issue an unfair practice complaint against the State. The teachers' union had filed an unfair practice charge with PERC in the hope that PERC would issue a complaint thereon. No hearing was held although there were "exploratory conferences" with the parties. In contrast to the argument at bar, PERC argued that its decision not to issue the unfair practice complaint was unreviewable by the court. The per curiam opinion states:
We hold that the refusal by PERC to issue a charge of unfair labor practice is reviewable pursuant to ...
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