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Atkinson v. Pittsgrove Township

Decided: November 9, 1983.


Edward S. Miller, J.s.c.


[193 NJSuper Page 25] This is the fourth lawsuit brought by Atkinson against the Township of Pittsgrove on exactly the same facts, alleging the same cause of action and demanding essentially the same relief. It is clearly frivolous. Since it is the court's policy to give pro se

litigants their full say in open court, the court permitted Atkinson to speak at length on his own behalf on the return day of defendant's motion for summary judgment. He did so in detail and while doing so convinced the court of his bad faith in bringing the suit.

Plaintiff brought his first suit in the Law Division, Salem County, in 1977 upon his return to New Jersey following approximately 50 years of residency in Maryland and Washington, D.C. He alleged essentially that an in rem tax foreclosure 11 years before of land he owned in Salem County was fraudulent and invalid because Pittsgrove Township did not personally serve him with or mail to him the summons and complaint and either failed to search for or failed to disclose his whereabouts so that such notice of the foreclosure could be given. Defendant moved to dismiss the action because the six-year statute of limitations for injury to real property had run. Judge Narrow ruled that because the law at the time of the foreclosure (1) made publication of the complaint notice to the world; (2) did not require inquiry by the taxing authorities into the whereabouts of property owners whose lands were being foreclosed; and (3) placed the burden of discovering tax liability on the property owner, plaintiff's contention that he did not learn of the Township's alleged fraud until 1973 would not save his case. He therefore dismissed the case as barred by the statute of limitations.

Plaintiff appealed and the Appellate Division reviewed the case in 1975. It affirmed the ruling below, having considered and rejected plaintiff's assertion that because of the fraud alleged, the statute of limitations should be extended.

In 1977, plaintiff began litigation in the United States District Court for the District of New Jersey on the same facts, but seeking a declaratory judgment declaring the notice provisions of the In Rem Tax Foreclosure Act, N.J.S.A. 54:5-104.29 et seq. unconstitutional and seeking damages against Pittsgrove Township officials under 42 U.S.C. ยง 1983 for deprivation of property rights without due process of law.

Subsequent to the commencement of this federal action, the New Jersey Supreme Court held the notice provisions of the Tax Foreclosure Act unconstitutional -- but specifically directed that [i]n order to avoid upsetting settled titles based on foreclosure proceedings, the requested relief was granted to the landowner in this case, but the decision should be applied prospectively only. Township of Montville v. Block 69, Lot 10, 74 N.J. 1, 20 (1977).

The Federal District court took note of the decision and of the court's specific direction that only tax foreclosure proceedings pending at the time of the decision and those commenced after the decision were to benefit from it. It noted, moreover, that [t]he validity of the notice provisions at the time the officers acted upon them was not uncertain. The New Jersey Supreme Court held in Newark v. Yeskel, 5 N.J. 313 (1950) that the notice provisions of the New Jersey in Rem Tax Foreclosure Act were constitutional. [Emphasis supplied].

Defendant in the federal case stipulated that the notice provisions were now viewed as unconstitutional, but moved for summary judgment on the basis of the prospective application of the Montville ruling. The District Court granted summary judgment in favor of Pittsgrove Township.

Though it was unfortunate for Atkinson that his case fell on the wrong side of a line drawn of absolute necessity by the New Jersey Supreme Court, the District Court properly applied state law and properly rejected his argument that the Township's actions under the notice provisions -- subsequently declared unconstitutional -- render the tax foreclosure against his land null and void.

Having refused to render a de novo judgment on the state law claims on the basis of the decision in Montville, the District Court proceeded to discuss the effect that the existing and still valid judgment of the state courts would have on a federal court. It explained that in this kind of case it was bound to apply the state statute of limitations and since that was true "a

state court judgment against the same plaintiff on the same cause of action regarding the running of statute of limitations is res judicata with respect to the federal court." ...

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