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PERNAS v. PARKVIEW TOWERS MGMT. CORP.

November 10, 1980

Dora PERNAS, on behalf of herself and all others similarly situated, Plaintiff,
v.
PARKVIEW TOWERS MANAGEMENT CORP., a corporation of the State of New Jersey, Defendant



The opinion of the court was delivered by: MEANOR

This case comes before the court for the disposition of several motions. Plaintiff moves for a preliminary injunction, the certification of a class pursuant to F.R.Civ.P. 23 and for the summary adjudication of the matter pursuant to F.R.Civ.P. 65(a)(2). Defendant moves for an order granting summary judgment dismissing the complaint on the grounds that there exists no material issue of fact and that the defendant is entitled to judgment as a matter of law. The plaintiff requests that the court consider her motion as a cross-motion for summary judgment. The defendant has no objection to this request.

As taken from the pleadings and the affidavits, the facts in this case are the following. Plaintiff, Ms. Dora Pernas, was, prior to May 5, 1980, a resident in one of defendant's apartment complexes. More particularly, she occupied an apartment at 5105 Park Avenue, West New York, New Jersey, under a written yearly lease with defendant. She had resided there for a period of four years.

 On May 5, 1980, after receiving repeated warnings from management, Ms. Pernas was served with a notice to vacate the premises by defendant's agent, Mr. Charles Canino. The ground for the notice was the alleged disorderly conduct of Ms. Pernas. Defendant asserts that this disorderly conduct continued after Ms. Pernas was served with the notice and, furthermore, that she refused to vacate the apartment even though she was informed that a summary dispossess action would be instituted against her.

 The summary dispossess action was commenced by defendant in the Hudson County District Court on June 4, 1980. Defendant sought possession of the apartment in the Parkview Towers complex that was rented to Ms. Pernas. The ground of the summary dispossess action was the alleged disorderly conduct of Ms. Pernas. However, prior to the defendant's filing of the action in the Hudson County District Court, plaintiff's attorneys, Hudson County Legal Services, filed the present action in this court.

 In her complaint, Ms. Pernas states that "(t)his is a suit brought under 42 U.S.C. § 1983 by a class of tenants challenging, on equal protection grounds, the provisions of N.J.S.A. 2A:18-59." She alleges that she "faces eviction from her home because that statute limits her right to appeal any judgment of possession entered against her by the Hudson County District Court." The pertinent allegation with respect to the proposed class is "plaintiff brings this action on behalf of herself and all others who are or may be defendants in a summary action for recovery of premises brought pursuant to N.J.S.A. 2A:18-52, et seq. and whose right of appeal from an adverse decision is proscribed by virtue of the provisions of N.J.S.A. 2A:18-59." Plaintiff further alleges that since N.J.S.A. 2A:18-59 *fn1" limits her right to appeal from any judgment of possession entered against her, she is unable to fully defend the action and, consequently, is in danger of losing her home. This is in direct contrast to all other New Jersey actions where a right of appeal from a final judgment of the state's trial courts is afforded all unsuccessful litigants.

 Plaintiff further asserts that "because of the involvement of the state in the eviction proceedings and the fact that the lease agreement between the parties is entered into pursuant to regulation by the New Jersey Housing Finance Agency, defendant's actions also constitute state action." Plaintiff contends that her interest in her home is a fundamental property interest. Next, she argues that New Jersey has no compelling interest in limiting said right of appeal nor is there a rational relationship between this statute and any legitimate state interest. Accordingly, plaintiff alleges that, insofar as N.J.S.A. 2A:18-59 limits a right of appeal to plaintiff, it deprives her and members of her class of their rights secured by the Equal Protection Clause of the fourteenth amendment to the United States Constitution. In her prayer for relief, plaintiff seeks the certification of a class, a declaration that the provisions of N.J.S.A. 2A:18-59 are violative of the Equal Protection Clause, a preliminary and permanent injunction preventing the defendant from prosecuting any action for possession against the plaintiff and an award of compensatory damages. In her amended complaint, plaintiff seeks an award of counsel fees pursuant to 42 U.S.C. § 1988.

 On July 7, 1980, the court denied plaintiff's request for a temporary restraining order, but conditioned such denial on the representation of defendant's counsel that if defendant were to obtain a judgment for possession, it would not execute thereon. The court also notified the New Jersey Attorney General's office of the pending action, since a state statute was being called into question. The State Attorney General filed a motion to intervene, but has not pursued his motion. The court, upon its own inquiry, has been informed that the Attorney General believes that the statute is being adequately protected. Accordingly, that office has not filed any brief or affidavit in opposition to plaintiff's motion. The Attorney General has, of course, reserved his right to intervene at a later date if, in his opinion, it becomes necessary.

 After the court denied plaintiff's application for a temporary restraining order, defendant answered. Defendant denies the material allegations in the complaint and asserts as a defense that the court lacks jurisdiction over the matter because no case or controversy exists. Defendant also argues that plaintiff is not an appropriate representative of the class. Finally, defendant contends that the court should abstain from rendering a decision in this case on principles of federalism.

 On July 9, 1980, defendant's attorney informed the court, by letter, that "the tenancy matter has been settled by dismissal of our action for dispossess and by agreement of the tenant to move into our other building. Parkview Towers consists of two high rise buildings. Mrs. Pernas will still reside at Parkview, but will be relocated to the other building. This was agreeable to her and apparently satisfactory to management and her neighbors." After receiving this letter, the court was informed in a letter by plaintiff's counsel that

 
Ms. Pernas desires to continue her action in spite of these developments. Since the dismissal was without prejudice, and since at any rate, there is no res-judicata (sic) effect to a tenancy judgment, plaintiff may be subject to subsequent actions under the same statute. We believe this gives her standing to contest the validity of the statute, perhaps as representative of a class.... Furthermore, she may be entitled to monetary damages, albeit nominal, under 42 U.S.C. § 1983 should the Court determine that defendant proceeded under a state statute which was unconstitutional.
 
For these reasons, plaintiff will pursue her claim in spite of the dismissal of the underlying tenancy matter.

 In her brief, plaintiff argues that the statute is unconstitutional because its limit on appeal review of dispossess actions is a violation of the Equal Protection Clause. As a second argument, plaintiff contends that this court has jurisdiction over this matter by virtue of the jurisdictional counterpart to 42 U.S.C. § 1983, that is 28 U.S.C. § 1343. As a third point for the court to consider, the plaintiff asserts that the court should not abstain from deciding this matter because however the statute is construed it still limits the right of appeal in a manner which is unconstitutional. The fourth point of plaintiff's argument deals with the question of the class certification. Plaintiff indicates that the joinder of all plaintiffs would be impracticable, that the claims are the same and that the plaintiff's attorney is competent to represent the class. Finally, the plaintiff requests that the court grant her a preliminary injunction because her eviction would cause irreparable harm. *fn2"

 In contrast to these assertions, defendant contends that there exists at this point no case or controversy justiciable in this court. The defendant notes that plaintiff no longer faces dispossession under the Act. In fact, defendant asserts that plaintiff's rights were never violated because her case never became a candidate for appellate review.

 Furthermore, defendant contends that plaintiff's allegation of a class action does not save this case from being moot. Defendant argues that plaintiff is neither an adequate nor typical representative for the class. One against whom the trial action was discontinued prior to trial or judgment or who may have been successful at trial cannot typically represent a class of persons who should be composed of persons who lost at trial and then were denied appellate review.

 Defendant also asserts that this court, sitting as a federal court, should abstain from deciding the constitutional issue involved in the construction of this state statute. It argues that there are underlying issues of statutory construction involved and resolution by the state courts would obviate the necessity to reach the constitutional issue in this case. A recent New Jersey Supreme Court case has broadly construed the term "jurisdiction" in N.J.S.A. 2A:18-59 so as to provide a much more flexible appellate review process. See Marini v. Ireland, 56 N.J. 130, 265 A.2d 526 (1970). Furthermore, N.J.S.A. 2A:18-60 *fn3" permits the transfer to the state Superior Court of those actions of "sufficient importance." In the state Superior Court the tenancy action would be appealable like any other civil action.

 Finally, defendant defends the substantive merits of the statute by arguing that it does not violate the Equal Protection Clause. It contends that the distinction made by the state legislature is rationally related to the purpose of the Act. Also, defendant notes that the state legislature has provided the wrongfully dispossessed tenant with the right to sue the landlord for damages arising from the wrongful dispossess.

 Before this court addresses the issue of the constitutionality of a state statute, it must first determine whether there exists a viable case or controversy, which case or controversy is a jurisdictional prerequisite under Article III. For the reasons to be explained shortly, the court holds that the present claims of the individual plaintiff are moot and must be dismissed. Furthermore, the court holds that this action is not proper for class certification, which certification might have preserved the action despite the mootness of the named plaintiff's claim.

 With respect to the named plaintiff's claim for injunctive relief, it is evident that this claim is mooted by the dismissal of the underlying summary dispossess action and the tenant's relocation ...


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