On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Michels, Petrella and Baime. The opinion of the court was delivered by Baime, J.A.D.
[200 NJSuper Page 31] Defendants Anthony Scioscia and Home and Industrial Disposal Service, along with 55 other individuals and entities, were charged in a single count indictment with violating the New Jersey Antitrust Act, N.J.S.A. 56:9-1 et seq., by knowingly engaging in a combination and conspiracy in restraint of trade.
N.J.S.A. 56:9-3. More specifically, the indictment alleged that the defendants and others agreed not to compete among themselves with respect to public and private solid waste disposal contracts in nine northern New Jersey counties. Following a protracted jury trial, defendants were convicted. Also found guilty were co-defendants Louis Spiegel and Inter County Refuse Service, Inc.*fn1 The jury was unable to reach a verdict with respect to the remaining co-defendants, Browning-Ferris Industries, ISA in New Jersey, Inc., John M. Gentempo and Louis Mongelli. The court sentenced defendant Scioscia to an 18 month custodial term. The sentence was suspended and defendant was placed on probation for two years.*fn2 As a special condition of probation, Scioscia was ordered to serve 100 hours of community service. Additionally, the trial judge imposed a fine of $5,000 and directed that defendant pay a penalty of $25 to the Violent Crimes Compensation Board. Similarly, defendant Home and Industrial was fined $5,000 and was ordered to pay a $25 penalty pursuant to N.J.S.A. 2C:43-3.1.
The charges and resulting convictions emanated out of defendants' participation in an unlawful customer allocation agreement. As part of the alleged conspiracy, members acquired exclusive "property rights" which permitted them to provide garbage collection service to different locations without competition. The agreement was designed to stifle "predatory"
bidding practices which had been long dominant in the industry. The conspiracy was implemented through the formation of the New Jersey Trade Waste Association (TWA). In order to prevent competition between collectors, the TWA provided an "amnesty period" after which the "property rights" to service specific areas were assigned. Such rights were conferred upon the first Association member to serve a given location. Although competition in the industry was largely illusory, the appearance of legality was maintained through the utilization of collusive and complementary bids. Stated somewhat differently, the collectors and haulers would submit bids in accordance with a prearranged plan to insure that the Association member having the property rights to a particular area would ultimately be awarded the contract. Disputes concerning the allocation of customers were resolved by "grievance hearings" which were conducted by the officers of the TWA. Under this practice, the disputing parties would present their arguments to the committee which would then render a binding decision. Compliance with the committee's decisions was mandatory. Often, the losing party was compelled to invent an excuse in order to be relieved of its contractual obligations.
At trial, the State's principal witness against defendants was Jack Bubenick. He testified that he was the owner of Bubenick Brothers Carting and that he had been involved in the garbage collection business for approximately 20 years. Bubenick was a member of the TWA from November 1976 until February 1977, and was aware that the ownership of property rights provided the exclusive authority to service a particular area. In November 1976, Bubenick attended a grievance hearing concerning solid waste disposal contracts which were about to be offered for public bidding by the Township of Westfield. In 1975 and 1976, Bubenick's company had been awarded the contract by submitting the lowest bid. Prior to that time, the contract had been shared by Custom Disposal Service and defendant Home and Industrial. Defendant Scioscia was the principal of the latter firm.
The grievance hearing was conducted at the office of Central Jersey Disposal, which was owned by Michael and Anthony DiNardi. Both DiNardis were members of the TWA. When Bubenick arrived, Michael DiNardi, "Red" Grillo and Anthony Scaffidi were present. Scioscia, accompanied by Jack Argento, appeared shortly thereafter and was immediately ushered into another room. Bubenick was advised that the purpose of the meeting was to resolve a grievance that had been lodged by defendants Scioscia and Home and Industrial. Apparently, Scioscia, who was not a member of the TWA, wished to regain his share of the Westfield contract. At the time of the grievance hearing, Bubenick was preparing to submit a bid on the Westfield contract for the following year. His position was that Bubenick Brothers Carting possessed property rights to the location. The hearing lasted several hours and became somewhat acrimonious. Throughout the meeting, Bubenick and Scioscia remained in separate rooms. Grillo and Scaffidi shuttled between the two in an attempt to mediate the dispute.
At the conclusion of the meeting, Bubenick was informed that his company had lost the grievance. As a result, the witness was directed to submit a complementary bid to insure that Home and Industrial would be awarded the contract. Although the record is somewhat unclear, it appears that defendant, Bubenick, Grillo, Argento, DiNardi and Scaffidi subsequently discussed the arrangements for the proposed bidding. It was agreed that Home and Industrial would submit a bid of two dollars a yard and that Bubenick would offer a higher amount. According to Bubenick, the parties agreed upon these figures following many hours of negotiations during which he, Scioscia, Argento, Scaffidi, Grillo and DiNardi were present.
Bubenick was unhappy with the committee's decision and decided to subvert the plan. Bubenick Brothers Carting and Home and Industrial were the only parties to submit bids for the Westfield contract. According to the witness, he deliberately submitted his bid after the 10 o'clock deadline knowing that it would be rejected and that Westfield would not award the
contract based solely upon Home and Industrial's offer. Subsequently, the township rejected all bids. Ultimately, Bubenick submitted a lower bid than that agreed upon and was awarded the contract.
Defendants advance numerous arguments on appeal. They first contend that a solid waste collector constitutes a public utility and is thus exempt from the monopoly and restraint of trade prohibitions contained in the New Jersey Antitrust Act. They further claim that the evidence presented to the grand jury was insufficient to support the return of an indictment. It is also argued that the trial judge abused his discretion in denying defendants' motion for a severance. Defendants assert that their voluntary absence from portions of the trial requires reversal of their convictions. Lastly, they claim that the jury's verdict was against the weight of the evidence. Our thorough review of the record convinces us that all of defendants' contentions are devoid of merit. We affirm.
We first address questions pertaining to the statutory exemption set forth in N.J.S.A. 56:9-5b(3). That section provides in pertinent part as follows:
No provisions of this act shall be construed to make illegal . . . [t]he activities of any public utility, as defined in [ N.J.S.A. ] 48:2-13 to the extent that such activities are subject to the jurisdiction of the Board of Public Utility Commissioners, the Department of Transportation, the Federal Power Commission, the Federal Communications Commission, the Federal Department of Transportation or the Interstate Commerce Commission. . . .
This provision is supplemented by N.J.S.A. 48:2-13 which includes solid waste collectors in the definition of "public utility." It is thus argued that Home and Industrial constitutes a public utility ...