On appeal from Superior Court, Law Division, Ocean County.
Antell, J. H. Coleman and Simpson. The opinion of the court was delivered by, Antell, P.J.A.D.
In our earlier opinion we held that signatures on a recall petition under N.J.S.A. 40:69A-169 must be attested to on the basis of personal knowledge. We remanded for reconsideration and directed the trial judge to make specific factual findings as to whether the signatures challenged for lack of proper attestation were or were not "personally observed by the attesting witness to have been placed on the petition." It will be remembered that 1589 signatures were required. The number found to be valid on the original and amended petitions was 1628. By letter dated November 8, 1984 the trial judge submitted his findings in compliance with our directions and it appears therefrom that he invalidated an additional 16, leaving 1612 intact, 23 more than required.
In this proceeding we consider the renewed appeal by intervenor Wesley K. Bell from the trial judge's findings to the extent that they leave undisturbed certain other signatures on the petition which intervenor contends should have been invalidated. In this proceeding we may alter the trial judge's factual findings only if we are "'convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice,'" Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974), quoting Fagliarone v. Tp. of No. Bergen, 78 N.J. Super. 154, 155 (App.Div.1963). We will deal with the individual signatures in the same order as did the trial judge.
Arthur Yerman and Margaret Yerman. The petition which the Yermans signed was circulated by Rick Sinopoli, who was not a resident of Stafford Township, and the petition accordingly bears the attesting signature of Ennio Pasquariello.
The trial judge found the signatures valid for the reason that intervenor had failed to prove that "the person for whom they signed was alone." The testimony, however, that Sinopoli "was alone in our house" was uncontradicted. We therefore reverse the finding of the trial judge and find these signatures to be invalid.
George Spiegel and Margaret Spiegel. The trial judge did not address the signature of Margaret Spiegel. He found that the signature of George Spiegel was valid for the same reason as the Yerman signatures. However George Spiegel testified without contradiction that Rick Sinopoli was accompanied at the time of presenting the petition only by his child. We therefore reverse the finding of the trial judge as to the signature of George Spiegel and invalidate as well that of his wife, who signed for Rick Sinopoli at the same time.
Jeffrey Whittaker. The trial judge found that the signature of Jeffrey Whittaker was placed on the petition by Whittaker's wife, but the judge refused to invalidate this signature because Mr. Whittaker had chosen not to withdraw his name from the petition after it had been filed. The ruling contravenes N.J.S.A. 40:69A-170, requiring that each signature to the paper be "the genuine signature of the person whose name it purports to be," and disregards the clear intent of our earlier ruling. Accordingly, the finding of the trial judge is reversed and this signature is found to be invalid.
Rita Zellman. The trial judge refused to invalidate this signature even though Zellman's husband signed on her behalf. This finding of the trial judge is similarly reversed and the signature held to be invalid.
Susan Ruoff. This signature was placed on a petition attested to by Fred Vasallo, but circulated by Jerry Savarese. The trial judge concluded that the proofs failed to demonstrate Vasallo did not actually see Ruoff sign the petition. Testimony was given by Ruoff regarding those present when she signed the petition. She said, "[j]ust me and Jerry I guess," and "[a]s far as if he was with anybody, I really don't know." Taking
into account the circumstances under which she signed the petition, we cannot say that the trial judge's finding was ...