Decided: July 10, 1979.
IN THE MATTER OF THE APPLICATION OF MARIO E. JASCALEVICH, M.D., FOR EXPUNGEMENT OF ALL RECORDS PURSUANT TO N.J.S.A. 2A:85-15 ET SEQ. F. RONALD BIGGS, SUBSTITUTED ADMINISTRATOR C.T.A. OF THE LAST WILL AND TESTAMENT OF FRANK S. BIGGS, DECEASED, PLAINTIFF-RESPONDENT,
MARIO E. JASCALEVICH, DEFENDANT-APPELLANT, AND RIVERDELL HOSPITAL, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT. MICHAEL SAVINO, AS ADMINISTRATOR AD PROSEQUENDUM AND AS GENERAL ADMINISTRATOR FOR THE ESTATE OF NANCY ANN SAVINO AND MICHAEL SAVINO, INDIVIDUALLY, PLAINTIFF-RESPONDENT, V. DR. MARIO JASCALEVICH, DEFENDANT-APPELLANT, AND RIVERDELL HOSPITAL, A CORPORATION OF THE STATE OF NEW JERSEY; EDWIN FRIEMAN, D.O.; ALLAN LANS, D.O.; JAY SKLAR, D.O.; IRWIN LEE RHINE, D.O. AND MARVIN WISCH, D.O.; INDIVIDUALLY AND AS OFFICERS AND DIRECTORS OF RIVERDELL HOSPITAL; JOHN DOE, JOHN ROE AND JOHN HOE, SAID NAMES BEING FICTITIOUS, INDIVIDUALLY AND AS MEMBERS OR FORMER MEMBERS OF THE MORTALITY REVIEW AND/OR TISSUE REVIEW COMMITTEE OF RIVERDELL HOSPITAL; AND ELLIOT WEINER, INDIVIDUALLY AND AS ADMINISTRATOR OF RIVERDELL HOSPITAL, DEFENDANTS. ERNESTINE A. MICUCCI, EXECUTRIX OF THE ESTATE OF EMMA M. ARZT, DECEASED, ERNESTINE A. MICUCCI, INDIVIDUALLY AND VERA A. ARGENZIA, PLAINTIFFS-RESPONDENTS, V. MARIO JASCALEVICH, M.D., DEFENDANT-APPELLANT, AND RIVERDELL HOSPITAL, A CORPORATION OF THE STATE OF NEW JERSEY, EDWIN FRIEMAN, D.O., ALLAN LANS, D.O., JAY SKLAR, D.O., IRWIN LEE RHINE, D.O. AND MARVIN WISCH, D.O., INDIVIDUALLY AND AS OFFICERS AND DIRECTORS OF RIVERDELL HOSPITAL, JOHN DOES I THROUGH XL, INCLUSIVE AND EACH OF THEM, AND ELLIOT WEINER, INDIVIDUALLY AND AS ADMINISTRATOR OF RIVERDELL HOSPITAL, JOINTLY, SEVERALLY, OR INDIVIDUALLY OR IN THE ALTERNATIVE, DEFENDANTS. RENE J. SHAW, EXECUTRIX OF THE ESTATE OF EILEEN SHAW, DECEASED, PLAINTIFF-RESPONDENT, V. RIVERDELL HOSPITAL, A CORPORATION OF THE STATE OF NEW JERSEY, EDWIN FRIEMAN, D.O., ALLAN LANS, D.O., JAY SKLAR, D.O., IRWIN LEE RHINE, D.O., AND MARVIN WISCH, D.O., INDIVIDUALLY AND AS OFFICERS AND DIRECTORS OF RIVERDELL HOSPITAL; JOHN DOE, JOHN ROE, JOHN HOE, SAID NAMES BEING FICTITIOUS, INDIVIDUALLY AND AS MEMBERS OR FORMER MEMBERS OF THE MORTALITY REVIEW AND/OR TISSUE REVIEW COMMITTEE OF RIVERDELL HOSPITAL; AND ELLIOT WEINER, INDIVIDUALLY AND AS ADMINISTRATOR OF RIVERDELL HOSPITAL, DEFENDANTS
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Matthews, Kole and Milmed. The opinion of the court was delivered by Milmed, J.A.D.
[169 NJSuper Page 395] The Supreme Court granted the motion of defendant Mario E. Jascalevich for leave to appeal from two orders of the Law Division (one dated March 5, 1979 and the other dated March 22, 1979) and remanded the matter to this court for a full hearing on the merits as to all issues. A portion of the March 5 order complained of
grants respondent Biggs' motion for access to the files of the Bergen County Prosecutor in the criminal proceeding entitled State v. Mario Jascalevich (Indictment #S-495-76),*fn1 and directs the Bergen County Prosecutor to make the records held by him in the matter available for inspection and copying. The March 22 order denied, without prejudice, Dr. Jascalevich's petition for an expungement order pursuant to N.J.S.A. 2A:85-15 et seq.
The essential facts may be briefly summarized. Dr. Jascalevich was charged by indictment (#S-495-76) with five counts of murder. He was tried to a jury, the trial extending over a period of eight months, i.e. , from February 27 to October 24, 1978. During trial two of the counts were dismissed by the trial judge and, as to the remaining three counts, the jury found Jascalevich not guilty.
The four captioned civil actions, three of which name Jascalevich as a defendant, were all commenced after the Bergen County grand jury returned the five-count indictment. These civil suits were stayed pending resolution of the criminal proceeding and, by the March 5 order, were "consolidated for all proceedings up to trial, including discovery and settlement conferences." There has obviously been, as counsel for Jascalevich note in their brief, "no effective discovery in the civil suits." Also pending are administrative proceedings which were instituted by the State Board of Medical Examiners and pertain to Dr. Jascalevich's license to practice medicine in this State.
In January of this year respondent Biggs moved for an order requiring the Bergen County Prosecutor "to produce for examination, inspection and copying all materials, testimony, statements, physical evidence, transcripts, and such other documentation or tangible things held by the Prosecutor in connection with" the abovementioned criminal proceeding.*fn2
In his affidavit in support of the motion counsel for Biggs pointed out that
Discovery of the Prosecutor's files was initially denied by the Court based on the pendency of the criminal prosecution, but later allowed on a most limited basis on the eve of the criminal trial. Plaintiff's [Biggs'] counsel was allowed to read some Grand Jury testimony at the Prosecutor's office in Hackensack and given limited information concerning the death of the plaintiff's decedent.*fn3
With regard to the motion to allow access to the prosecutor's files, we are informed by counsel for Dr. Jascalevich that the assignment judge for Bergen County orally announced, in essence, that he would allow such access provided no application for expungement was made by Jascalevich by January 12. By petition sworn to on January 11, 1979, Jascalevich applied for expungement, pursuant to N.J.S.A. 2A:85-15 et seq. , "of any and all records pertaining to" indictment #S-495-76. In it he points out, among other things, that in its investigation into the allegations of murder against him, the Bergen County Prosecutor's Office accumulated a substantial amount of material; that some of the items have been lost or destroyed, and that the Prosecutor's Office had allowed Myron Farber, a reporter for The New York Times , access to the investigative file "despite the fact that he was not a paid member of the Prosecutor's staff or from another law enforcement agency." Jascalevich accordingly asked for an order expunging "all records and evidence of his arrest and indictment." The Attorney General, the Bergen County Prosecutor and plaintiffs in the civil actions objected. Towards the close of argument on the several motions and petition for
expungement the assignment judge, addressing Jascalevich's ...
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