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Simon v. Oldmans Township

Decided: January 22, 1985.

RICHARD SIMON, TRUSTEE, PLAINTIFF,
v.
OLDMANS TOWNSHIP, JOHN D. JORDAN AND DOUGLAS M. VASS, SR., DEFENDANTS



Edward S. Miller, J.s.c.

Miller

Plaintiff in this action seeks rescission of the purchase of certain tax sale certificates and restitution of the purchase price. This matter is before the court on cross-motions by plaintiff and defendants. On the return date of the motions, the court rendered an oral decision which is embodied in this written opinion.

The facts are as follows. On September 15, 1984, defendant Oldmans Township conducted a public tax sale of premises known as Block 37, Lot 2 and Block 39, Lots 17 and 21 which were owned by National Smelting of New Jersey, Inc. Although National Smelting is in bankruptcy, the automatic stay of the bankruptcy court had been lifted, making the tax sale possible. Plaintiff, through his representatives, was the only bidder for the three tax sale certificates. Plaintiff paid a total of $61,751.56 for the three certificates.

Subsequently, plaintiff learned of environmental problems associated with the property in question. As a result of these problems, plaintiff was informed that the State of New Jersey was asserting a "super lien" for the clean-up of toxic wastes on the property, pursuant to N.J.S.A. 58:10-23.11f(f).

In addition, plaintiff learned that an appeal of the decision to vacate the automatic stay of the bankruptcy court is pending, which would prevent plaintiff from foreclosing on the tax sale certificates.

Plaintiff alleges that the township solicitor for Oldmans Township, who is named as a defendant, withheld information

and misrepresented the facts surrounding the subject property during the public tax sale. Accordingly, plaintiff seeks rescission of the tax sale certificates and restitution of the monies paid by plaintiff. Plaintiff also seeks compensatory and punitive damages against defendants, Oldmans Township, the township solicitor and the township tax collector, individually, jointly, severally, and in the alternative.

On November 14, 1984, plaintiff sought an order to show cause with temporary restraints to have the funds paid by plaintiff removed from Oldmans Township's general account. The court denied any restraints and entered an order to show cause why the relief sought by plaintiff should not be granted, returnable November 30, 1984.

On December 20, 1984, the adjourned return date of the order to show cause, defendants moved to dismiss the complaint pursuant to N.J.S.A. 59:1-1 et seq., the New Jersey Tort Claims Act. The court conferenced the matter and entered a management order. Defendants were ordered to file an answer within two weeks. Both parties were ordered to file a motion for summary judgment with a brief addressed specifically to the question of applicability of the Tort Claims Act. The return date of these motions was set for January 22, 1985.

On January 22, 1985, plaintiff moved for summary judgment against defendants for the relief sought in its complaint and for counsel fees and costs. In the alternative, plaintiff moved for an order permitting the late filing of a New Jersey tort claims notice pursuant to N.J.S.A. 59:8-9. Defendants moved for summary judgment and for an order denying plaintiff's motions.

The court will first address the issue of the applicability of the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., to this action. Defendants argue that the Tort Claims Act is applicable to this action because a public entity and public employees are being sued. Defendants attempt to characterize the conduct complained of as "sounding in negligence."

While the court would agree that it is often difficult to define what constitutes a "tort," the court does not agree that this cause of action falls within the purview of the Tort Claims Act. This action is for rescission and restitution. Rescission is defined as "an action of an equitable nature in which a party seeks to be relieved of his obligation under a contract." Black's Law Dictionary (5 ed. ...


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