On appeal from Superior Court of New Jersey, Law Division, Camden County.
Fritz, Ard and Trautwein. The opinion of the court was delivered by Fritz, P.J.A.D.
The facts in this matter are essentially undisputed. The sole substantive question presented, i.e., the right of a certified social worker to advertise himself as a marriage counselor, is purely a legal one. The trial judge held plaintiff had such a right. The State Board of Marriage Counselor Examiners (Board) has appealed. We affirm, but not wholly for the reasons set forth by the trial judge in her articulate opinion.
Simply put, plaintiff has a graduate degree in social work and is a member of the Academy of Certified Social Workers. However, he is not and has never been a licensed marriage counselor pursuant to statute in New Jersey. He contends that his qualifications and the discipline entitle him to advertise himself as a marriage counselor. The Board insists that such an advertisement under the classification "marriage and family
counselors" implicitly suggests licensure and is in fact misleading and deceptive.
Prior to November 1976 plaintiff had listed his name in the yellow pages classified telephone directory under the category "Marriage and Family Counselors." During August 1976 the Board wrote plaintiff requesting that he remove his name from that classification in the yellow pages. He refused. Thereafter the New Jersey Bell Telephone Company (company), a defendant in this action, refused to accept plaintiff's listing in this classification without proof of his licensure as a marriage counselor.
Plaintiff brought an action for declaratory judgment and damages. Answers by the Board and the company were filed in due course. All parties moved for summary judgment, plaintiff moving "as to liability only." In a substantial written opinion, containing detailed fact finding, the trial judge came to the conclusion that "plaintiff as a social worker falls within a class of professions deemed qualified by the Legislature to practice marriage and family counseling and that his licensing by the Academy of Certified Social Workers satisfies the provisions of N.J.S.A. 45:8B-16." To this she added an acknowledgment of plaintiff's challenge of "this statute on constitutional grounds." She found it unnecessary to reach "these issues" "[b]ecause of the . . . finding that plaintiff may not be prohibited from practicing in the field of marriage counseling and, therefore from advertising his services in the Yellow Pages of the New Jersey Bell Telephone directories and otherwise." She concluded this portion of her opinion with the statement, "Summary judgment as to liability is granted to plaintiff against the State Board of Marriage Counselors." She denied the cross-motion of the company, predicated on the assertion that as a corporation, it is not a "person" and therefore is not amenable to suit under "this section." She also opined that since the company denied the allegations of plaintiff that the Board "unlawfully prevailed upon or conspired with" the company, a determination of the "State action issue," concerning which a resolution of these facts
is critical, was not yet ripe for summary judgment. She denied the motions for summary judgment "between plaintiff and New Jersey Bell Telephone Company."
At the outset we turn to two procedural problems, convinced that neither should get in the way of our disposition at this time of the important substantive question presented. The first of these has to do with the undoubted fact that this appeal is from an interlocutory determination, brought without leave and subject to summary dismissal on that account. Frantzen v. Howard, 132 N.J. Super. 226 (App.Div.1975). Quite obviously not all issues as among all parties have been determined and no amount of calling the judgment below as one "final" on liability will save that judgment from being interlocutory in nature. The Board did not move for leave to appeal. Rather it commented, somewhat cavalierly in our judgment, by means of a footnote appended to its procedural history. It noted that "[i]t might be suggested that the judgment as to 'liability' can not technically be certified as a final judgment," adding that since the issues are substantial immediate appellate review is warranted and that "should a motion for leave to appeal be deemed necessary" that the notice of appeal and brief be treated as such a motion. Such a procedure is not to be condoned and our willingness to grant leave to appeal nunc pro tunc at this time and consider the merits of the appeal should not be deemed to be anything but disapproval of this conduct.
The second procedural matter actually constitutes the first ground for appeal raised in the Board's brief. There the problem is stated thusly:
This matter should have proceeded as an appeal from the Board's directive not to advertise as a marriage counselor or as an application for a license under the provision of N.J.S.A. 45:8B-16, therefore, the trial court lacked jurisdiction over the complaint and the trial court further erred to the ...