On appeal from Superior Court, Law Division, Camden County, whose opinion is reported at 165 N.J. Super.. 482 (1979).
Fritz, Polow and Joelson.
[179 NJSuper Page 54] These are consolidated appeals challenging a trial court determination that the violation by a hospital of certain requirements imposed by the Hill-Burton Act, first enacted as Title VI of the Public Health Service Act of 1944, 42 U.S.C.A. § 291 et seq. , and
later substantially amended,*fn1 does not constitute a defense to an action by the hospital on its bill for services. The opinion of the trial judge in Joyner is reported at 165 N.J. Super. 482 (Law Div.1979).
During the pendency of this appeal the proposition was considered by another Part of this court. In an exhaustive and scholarly opinion which overruled Joyner , Judge Pressler dealt with the subject at length. The Hospital Center at Orange v. Cook , 177 N.J. Super. 289 (App.Div.1981). Suffice it to say that we concur with that which there appears. We, too, are persuaded for the reasons there stated that
Certain procedural problems, not present in Cook , appear. These are not raised by counsel but require comment in order that there be no misunderstanding respecting the limited nature of our remand.
In the Joyner case a default judgment had been entered. Some ten months later defendant moved to vacate this judgment. The trial judge denied the motion on the ground that no meritorious defense had been demonstrated. He expressly observed that this determination permitted denial of the motion to vacate "without getting into whether or not there is excusable neglect, which I'm not convinced has been totally established." Further, the judge assumed, for the purposes of the motion, that
In Boyd defendant acted as her own attorney, filed no responsive pleadings and ultimately signed a consent order for judgment. Although the issue was not raised, as we noted above, and we might therefore ignore it with impunity, State v. Plainfield-Union Water Co. , 75 N.J. Super. 571, 583 (App.Div.1962),
aff'd 40 N.J. 280 (1963), we are not insensitive to the fact that consent orders ordinarily are not appealable. Winberry v. Salisbury , 5 N.J. 240, 255 (1950), cert. den. 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950). On the other hand, the appeal before us is not from that consent order, but from the refusal of the trial judge to set it aside on her motion. The determination in Boyd was on the same ground as that in Joyner: absence of a meritorious defense.
We are satisfied that the novelty of the issue, the importance of the public policy considerations and the failure of counsel to raise the procedural issues before us (very likely on account of the enormity of the first two considerations), conduce toward permitting defendants to defend the action on the substantive grounds. Accordingly, we vacate each judgment and remand for a plenary hearing respecting whether defendants came within the Hill-Burton umbrella and whether the hospital in fact transgressed respecting the requirements of the act. Defendants, who assert the bar of the statute and Cook, supra , must bear the burden of proof once a prima facie case establishing the debt has been made.
Reversed and remanded. We do not retain ...