Lynch, Milmed and Antell. The opinion of the court was delivered by Lynch, P.J.A.D.
Plaintiff appeals from denial of his motion for an order determining the maintainability of this litigation as a class action pursuant to R. 4:32-1 et seq.
Plaintiff filed a complaint on behalf of himself and all others similarly situated against defendant Hudson County
Employees Pension Commission alleging that defendant illegally made deductions from pension payments to plaintiff and other pensioners similarly situated, too numerous to be joined in the litigation. Defendant's answer alleged, among other things, that the action was not maintainable as a class action.
Shortly thereafter plaintiff filed a motion for an order determining the maintainability of the suit as a class action and defendant countered with a motion for summary judgment in its favor. The trial judge denied plaintiff's motion, granted that of defendant, and dismissed the complaint. In a letter opinion the judge based his decision on the fact that of the 413 persons from whose pensions the deductions had been made, plaintiff was the only one who filed a claim with the Commission with respect to those deductions. The court cited Kronisch v. Howard Savings Institution , 133 N.J. Super. 124 (Ch. Div. 1975), rev'd in part and remanded 143 N.J. Super. 423 (App. Div. 1976), and R. 4:32-1(a)(3) in support of its proposition that there must be "claimants" other than a single plaintiff in order to maintain a class action.
In the first place, in Kronisch there was no showing that there were "claimants" other than those instituting the action. Myron and Sheila Kronisch, jointly liable on a single mortgage, were the only representatives of that subclass of mortgagors whose mortgage was guaranteed by the United States of America under the Servicemen's Readjustment Act. Similarly, the only other named plaintiffs in that suit, Harold and Veraian Chambers, jointly liable on a single mortgage, were the only representatives of a subclass of mortgagors whose mortgage was federally guaranteed under the National Housing Act. In the Kronisch case, as herein, only a single claim was to represent an entire subclass (here a class).
In the second place, the question of maintainability of a class action is governed by R. 4:32-1 et seq. and nowhere in the rule is there a requirement that such other claimants
must be shown to have filed a claim. Specifically, what is involved here is the "typicalness" of a projected class action. R. 4:32-1(a)(3). In 3B Moore's Federal Practice (2 ed. 1976), para. 23.06-2 at 23-327, it is said:
"Typicalness" is not a subjective test, authorizing a judge to dismiss a class action based on a substantial legal claim where he thinks some members of the class may prefer to leave the violation of their rights unremedied.
In Norwalk CORE v. Norwalk Redevelopment Agency , 395 F.2d 920 (2 Cir. 1968), the named plaintiff was attempting to litigate as a representative of all blacks and Puerto Ricans who had suffered discrimination as a result of the conduct of defendant which forced their displacement from their communities and failed to take adequate measures to relocate them in accordance with the agency's guidelines. In ruling that plaintiff was entitled to proceed as the representative of the named class, the court noted (at 937): "The fact that some members of the class were personally satisfied with the defendants' relocation efforts is irrelevant." The only thing of significance to the court was that pursuant to the relocation guidelines, on which plaintiff's case rested, all potential plaintiffs did have a right to make a claim, whether they so chose or not. Plaintiff's claim was typical of those potential claims. If, as Norwalk holds, maintenance of a class action is not hindered by the fact that some members of the class did not choose to sue because they did not think any of their rights had been violated, why should it matter in this litigation that other recipients of pensions have not sued to enforce their rights when the reason for their inaction is unknown?
Similarly, in Snyder v. Board of Trustees, Univ. of Illinois , 286 F. Supp. 927 (N.D. Ill., E.D. 1968), a named plaintiff brought suit on behalf of all students and faculty of the University to protest the University's allegedly unconstitutional action in compliance with a state act ...