On appeal from Superior Court, Law Division, Middlesex County.
Lynch, Crane and Horn. The opinion of the court was delivered by Horn, J.A.D.
This case raises for the first time in our state courts the question of the constitutionality of the tolling provision of our statute of limitations, N.J.S.A. 2A:14-22, as applied to a cause of action against an unrepresented foreign corporation constitutionally amenable to long-arm service of process under R. 4:4-4(c)(1). The trial judge held that the tolling statute was unconstitutional as so applied. Plaintiff appealed.*fn1
On June 4, 1976 plaintiff filed a complaint claiming damages for personal injuries sustained by him on August 3, 1973 as the result of a defective machine or equipment supplied by defendant Maren Engineering Corporation (Maren), an Illinois corporation. Subsequently plaintiff filed an amended complaint adding as a defendant Air Conveying, Inc., also an Illinois corporation, which along with Maren was claimed to have supplied the defective machine or equipment which allegedly caused injury to plaintiff.*fn2
Claims for personal injuries are usually barred if an action is not brought within two years of the date of the accrual of the cause of action. N.J.S.A. 2A:14-2. N.J.S.A.
2A:14-22 provides that said two-year time limitation as well as time limitations fixed by several other statutes shall be tolled as follows:
There appears to be no dispute as to the facts that both defendants on this appeal were incorporated in Illinois, that neither was registered to do business in New Jersey and that each was constitutionally amenable to long-arm service in an action in the State by reason of their contacts herein.
Each defendant successfully moved for dismissal of the complaint on the ground that the statute of limitations, N.J.S.A. 2A:14-2, barred the action. These motions probably were provoked by the publication of Cohn v. G. D. Searle & Co. , 447 F. Supp. 903 (D.N.J. 1978), in which the judge held that our tolling statute, N.J.S.A. 2A:14-22, violated the Equal Protection Clause of the United States Constitution*fn3 as applied to foreign corporations which, although "not represented in this state by any person or officer upon whom summons or other original process may be served,"*fn4 could still be served under the long-arm rule.
The trial judge adopted the reasoning and rule thus declared in Cohn , apparently on the thesis that "since [ Cohn ] involved a federal constitutional question decided by a federal court, I feel I am enjoined to follow [the] decision." The judge additionally expressed his view that the position of the court in that case was reasonable.
Quite properly, neither defendant claims that the decision in Cohn is controlling. It is well established that state courts and lower federal courts occupy parallel positions, even on federal constitutional questions. State v. Norflett , 67 N.J. 268, 286 (1975); State v. Coleman , 46 N.J. 16, ...