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Riley v. New Jersey Bell Telephone Co.

Decided: October 20, 1986.


On appeal from the Superior Court, Law Division, Camden County.

Morton I. Greenberg and Gruccio.

Per Curiam

[213 NJSuper Page 344] This matter comes on before this court on appeal from an order for summary judgment in favor of defendants New

Jersey Bell Telephone Company and the Borough of Bellmawr in this motor vehicle accident case.

The circumstances giving rise to the appeal are not complicated. On or about September 2, 1982 there was a collision at or near an intersection in Bellmawr between a motorcycle owned and operated by Robert Riley on which Thomas J. Tobin, Jr. was a passenger and an automobile operated by Lisa Hicks. As a consequence separate actions, later consolidated, were filed by Riley and Tobin and their wives per quod. After amendments to the pleadings New Jersey Bell, Bellmawr and Hicks were defendants in both cases and Riley was a defendant in the Tobin action. As is usual in cases of this nature, there were crossclaims among defendants. New Jersey Bell and Bellmawr were made defendants on a theory that equipment installed by the telephone company on land owned by Bellmawr blocked Hicks' vision at the intersection and thus was a proximate cause of the accident.

Eventually New Jersey Bell and Bellmawr each moved for summary judgment. On October 11, 1985 the motion judge granted Bellmawr's application. It appears, however, that no order was then entered reflecting this determination. Following the judge's decision in favor of Bellmawr, New Jersey Bell moved for summary judgment as well. Its motion was argued on November 8, 1985. At that time Riley asked the court to certify the summary judgment to be entered as final if it followed the decision on New Jersey Bell's motion. He wanted this order as Hicks' insurance carrier had paid its policy into court and thus he saw no point in proceeding against Hicks. The judge recognized that if the judgment was not certified as final Riley would have an "interlocutory problem." Following some discussion of the circumstances of the accident, there was further colloquy regarding the necessity of certifying any order granting the motion as final so this court would hear the appeal. Finally, the judge granted the motion for summary judgment and an order to that end was entered on November 12, 1985. On November 25, 1985 the judge signed an order

entering final judgments under R. 4:42-2 in favor of both New Jersey Bell and Bellmawr. In his order the judge recited that there was no just reason for delay in entry of the final judgment. Riley and Tobin have appealed from the order of November 25, 1985.

Under R. 4:42-2 certain orders may be certified as final and thus appealable. But as noted in the commentary to the rule:

The rule was again amended effective January, 1986 to make clear that it is not any interlocutory order which is certifiable and that the certification technique is not available for the sole purpose of achieving interlocutory review. This was accomplished by limiting the 'no just reason for delay' standard of the rule to situations in which there is no reason to delay enforcement of the interlocutory order. Thus it is only an order susceptible to enforcement as a final order which is eligible for certification. This limited eligibility excludes orders dismissing as to particular parties, denying summary judgment, and indeed the whole panoply of orders which, if final, would confer no enforcement rights under R. 4:59. The original intention of this rule was to permit execution on a partial judgment fully adjudicating a separable claim for affirmative relief or all claims by and against a single party. That the partial judgment so certified is final for appeal purposes is a collateral and not a primary consequence of the certification. Hence it was a misuse of the rule for a trial court to 'certify' as final a partial adjudication other than one granting affirmative relief in order that the adjudication be immediately appealable, a technique of increased currency. Such interlocutory adjudications are appealable only on leave granted by the appellate court pursuant to R. 2:5-6. The appellate court's calendar is not subject to control by a trial court certification pursuant to this rule. See Leonardis v. Bunnell, 164 N.J. Super. 338 (App.Div.1978), certif. denied 81 N.J. 265 (1979); Delbridge v. Jann Holding Company, 164 N.J. Super. 506 (App.Div.1978); Porter & Ripa v. 200 Madison Ave. Real Estate, 167 N.J. Super. 48 (App.Div.1979); DiMarino v. Wishkin, 195 N.J. Super. 390 (App.Div.1984).

In this case the very purpose of the certification was to subject our calendar to control by the trial court, a goal not contemplated by R. 4:42-2. While we recognize that the rule was amended January 1, 1986, even before that amendment it was clear that a certification so that a matter would be appealable immediately was improper. See Delbridge v. Jann Holding Company, 164 N.J. Super. 506, 510 (App.Div.1978). Accordingly we disregard the certification and thus we treat the appeal as having been improperly taken from an interlocutory order.

We are aware that in other cases in which interlocutory orders have been appealed as of right the court has granted leave to appeal nunc pro tunc. Nevertheless we think that the time has come in the light of the numerous decisions ...

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