The court is presented with three motions brought by plaintiff and defendant PSC Resources, Inc. Codefendant Diamond Head Oil Refining Company is in default and not involved in these motions, so that all references to defendant pertain only to PSC.
The motions are (1) by plaintiff to strike defendant's counterclaim; (2) by plaintiff to strike defendant's eleventh affirmative defense, and (3) by defendant to dismiss the sixth count of the complaint. Other motions were considered by the court herein but are not the subject matter of this opinion.
Defendant has been engaged in the operation of a waste oil reprocessing and canning facility located adjacent to property owned by plaintiff in Kearny, New Jersey. Plaintiff contends that in the operation of this facility defendant discharged petroleum products and other material onto plaintiff's property. Plaintiff seeks judgment for damages
and judgment to enforce certain statutory provisions regarding the discharge of petroleum products and other polluting materials.
By way of counterclaim, defendant alleges that plaintiff has entered into various leases or has granted various licenses permitting third parties to deposit their waste oil and other substances onto the "Dump Area," a section of plaintiff's property, thereby causing accumulated material to be discharged upon defendant's adjacent property, to its damage.
Plaintiff urges the counterclaim be dismissed by reason of defendant's failure to comply with the notice of claim provisions in the New Jersey Tort Claims Act. N.J.S.A. 59:1-1 et seq. A claim arising under the act must be filed within 90 days after the accrual of the cause of action, either with the Attorney General or the department or agency involved in the wrongful act. N.J.S.A. 59:8-7; 59:8-8. The claimant must then wait six months after the notice of claim is received before filing suit. N.J.S.A. 59:8-8.
The resolution of this motion depends on the interpretation of N.J.S.A. 59:8-3 which provides:
No action shall be brought against a public entity under this act unless the claim upon which it is based has been presented in accordance with the procedure set forth in this chapter. [Emphasis supplied]
This section makes it clear that a notice of claim is "a precondition and an inherent part of maintaining 'an action under the act.'" Vedutis v. Tesi , 135 N.J. Super. 337, 341 (Law Div. 1975), aff'd 142 N.J. Super. 492 (App. Div. 1976). Absent compliance with the notice requirements, no suit may be maintained. See Lutz v. Gloucester Tp. , 153 N.J. Super. 461, 463 (App. Div. 1977); Fuller v. Rutgers State University , 154 N.J. Super. 420 (App. Div. 1977).
Defendant stipulates, for the purposes of this motion, that it has not filed a notice of claim. Defendant contends, however, that a counterclaim is not an "action * * * under this act" within the meaning or intent of N.J.S.A. 59:8-3, and further that the purposes served by such section, in making compliance with the notice requirements a prerequisite to the institution of an action, do not apply when the claim is asserted only after the state has initiated suit.
N.J.S.A. 59:2-1(a) provides:
Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.
The act thus provides for governmental immunity except in those very specific areas in which the statute permits suit. Fuller, supra at 426. Defendant's cause of action, whether asserted as an original suit or as a counterclaim, is therefore created by the statute. It would be anomalous indeed to hold that a counterclaim is not an "action * * * under this act," within the ambit of N.J.S.A. 59:8-3, inasmuch as the Tort Claims Act expressly creates the cause of action on which the counterclaim is based.
A counterclaim is not a defensive pleading. Together with original claims and crossclaims, a counterclaim is considered to be a "statement of a cause of action." Kelleher v. Lozzi , 7 N.J. 17, 22 (1951). Indeed, it has been characterized as a "counteraction." Broad & Branford Place Corp. v. J.J. Hockenjos Co. , 132 N.J.L. 229, 234 (Sup. Ct. 1944). A counterclaim has been defined as "an affirmative effort to enforce or collect upon an affirmative claim." Gibbins v. Kosuga , 121 N.J. Super. 252, 256 (Law Div. 1972).
That counterclaims are included within the meaning of the phrase, "action * * * under this act," in N.J.S.A. 59:8-3 cannot be gainsaid. A careful review of the purposes of this section leads to the same ...