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Delaney v. Penza

Decided: July 14, 1977.

JAMES AND HELEN DELANEY, PLAINTIFFS-RESPONDENTS,
v.
ANDREW PENZA ET AL., DEFENDANTS-APPELLANTS. HELEN DELANEY AND JAMES DELANEY, PLAINTIFFS-RESPONDENTS, V. ANDREW PENZA ET AL., DEFENDANTS-APPELLANTS. HELEN DELANEY AND JAMES DELANEY, PLAINTIFFS-RESPONDENTS, V. 466 HIGHLAND AVENUE TENANTS ASSOCIATION ET AL., DEFENDANTS-APPELLANTS



Lynch, Milmed and Antell.

Per Curiam

In these actions charging defamation and malicious interference with business relations, we granted defendants 466 Highland Avenue Association and tenants leave to appeal from orders of the Law Division precluding their representation in the litigation by the Department of the Public Advocate, Division of Public Interest Advocacy. We also stayed all proceedings pending disposition of the appeal.

Plaintiffs James and Helen Delaney, landlords of the apartment building at 466 Highland Avenue, Orange, seek damages against defendant 466 Highland Avenue Tenants Association (Association), its president Andrew Penza, 61 tenant members and others, including a local newspaper, for alleged slander, libel and malicious interference with business relations. The tenants claim that the statements complained of are constitutionally privileged. The litigation springs from a long struggle between the Delaneys and the tenants grounded on alleged deficiencies in the operation and maintenance of the apartment building.

Shortly after the last suit was started, the Department of the Public Advocate (Department), Division of Public Interest Advocacy (Division), appeared in the litigation on behalf of the Association and tenants.*fn1 Plaintiffs then moved for an order directing the Department and Division to withdraw

The trial judge, in his opinion reported at 148 N.J. Super. 64 (at 67) (Law Div. 1977), found "that under the statutory definition of 'public interest' there is no public interest involved in the facts of this case." He concluded that

Since the Public Advocate may not, under the statute creating the office, litigate a private matter which has no public interest, the court hereby directs the Department of Public Advocate, Division of Public Interest Advocacy, to withdraw from this representation. The court further directs those defendants represented by this Division to obtain private counsel or proceed pro se , forthwith. [at 67-68]

At the outset we note that plaintiffs, in moving to have the Department and Division withdraw their representation of the Association and tenants, pursued the wrong remedy. Their (plaintiffs') claim, that in determining to represent these defendants the Department exceeded its statutory authority, was reviewable exclusively by direct appeal to this court. R. 2:2-3(a)(2). See Johnson v. New Jersey State Parole Board , 131 N.J. Super. 513 (App. Div. 1974), certif. den. 67 N.J. 94 (1975), and cases cited therein. See also, Edmond v. Dept. of the Public Advocate , 137 N.J. Super. 82 (App. Div. 1975), certif. den. 69 N.J. 445 (1976); Princeton First Aid and Rescue Squad, Inc. v. Division on Civil Rights , 124 N.J. Super. 150 (App. Div. 1973), certif. den. 63 N.J. 555 (1973).

Pfleger v. N.J. State Highway Dept. , 104 N.J. Super. 289 (App. Div. 1968), and Colon v. Tedesco , 125 N.J. Super. 446

(Law Div. 1973), relied upon by plaintiffs, are inapposite. Neither involved, as here, the exercise of broad discretionary authority. As this court observed in Princeton First Aid and Rescue Squad, Inc. v. Division on Civil Rights, supra, Pfleger

[124 N.J. Super. at 152; emphasis supplied]

And, in regard to the complaint in Colon v. Tedesco, supra , the Law Division noted:

The essence of the instant complaint is the failure of the agency or its officers to perform the allegedly mandatory, statutory function. [125 ...


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