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Elmora Hebrew Center Inc. v. Fishman

Decided: March 14, 1990.

ELMORA HEBREW CENTER, INC., A RELIGIOUS CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
YALE M. FISHMAN, CHARLES APTOWITZER, HOWARD POLLICK, MARK MASON AND BRUCE BUECHLER, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Chancery Division, Morris County.

Petrella, O'Brien and Havey.

Per Curiam

[239 NJSuper Page 230] This appeal is related to the subject matter of our prior opinion in Elmora Hebrew Center, Inc. v. Fishman, 215 N.J. Super. 589,

522 A.2d 497 (App.Div.1987). The dispute between the parties was submitted to the Beth Din in accordance with an order of the Chancery Division as affirmed by this court in that decision. The Beth Din concluded that it would not consider the matter unless all aspects of the dispute between the parties were submitted to it. After such undertakings were entered into by the parties the Beth Din considered the matter and essentially found in favor of Rabbi Fishman and awarded him $100,000. Although it found no basis to remove him from his position as spiritual leader of Elmora Hebrew Center, for the sake of peace it concluded that he should willingly leave his position as its spiritual leader within two months after he was paid the award. The Beth Din also directed that the parties release each other from any civil claims.

The matter was presented to the Chancery Division for confirmation of the award. Judge MacKenzie found that the parties had freely and voluntarily consented to full and complete adjudication of all disputes and enforced the Beth Din's determination. He also ordered compliance with the requirements for dismissal of certain law suits pending in Essex County.*fn1 Judge MacKenzie set forth fully his reasons for upholding the award in a May 26, 1988 opinion letter. He supplemented that opinion by a September 25, 1989 letter opinion pursuant to a limited remand from this court. In the September 25 letter he explained the dismissal of the civil suits as being part of the enforcement of the Beth Din determination.

Elmora Hebrew Center, Inc. (EHC) appeals the determination of the Chancery Division and argues that it could not constitutionally be forced to submit to the jurisdiction of a religious

court which applied principles contrary to its own religious tenets.*fn2 It also challenges the judge's conclusion that it had consented to arbitration and waived its rights. It takes the position that it only signed the agreement to submit the matter to the Beth Din because of the court order. After the referral, EHC applied to Judge Stein to have the tribunal disqualified. It argues that he should have disqualified the tribunal because it had been designated by the court and was biased. Finally, it contends that a previous judge who ruled on a motion had no authority to transfer the pending Essex County Law Division actions to the Beth Din.

In many respects appellant attempts to reargue various matters which were previously decided by this court. We note that there was no application to the New Jersey Supreme Court for certification and no request for certiorari to the United States Supreme Court from our decision reported at 215 N.J. Super. 589, 522 A.2d 497. Hence, we view our prior decision as binding on the parties and find no basis to reopen that decision between the same parties. Established principles of repose apply. State v. Reldan, 100 N.J. 187, 203, 495 A.2d 76 (1985); State v. Hale, 127 N.J. Super. 407, 410, 317 A.2d 731 (App.Div.1974); see Koppel v. Olaf Realty Corp., 62 N.J. Super. 103, 162 A.2d 306 (App.Div.1960). Even if the prior decision were erroneous, and we do not consider it to have been, it was still entitled to be respected and enforced by the lower court. State v. Reldan, supra, 100 N.J. at 203, 495 A.2d 76; Ehnes v. King, 50 N.J. Super. 109, 141 A.2d 62 (App.Div.1958); e 5 Epstein v. Bendersky, 130 N.J. Eq. 180, 186, 21 A.2d 815 (Ch.1941).

In his May 26, 1988 opinion enforcing the Beth Din award Judge MacKenzie fully addressed and analyzed the issues as follows:

As the court expressed in its letter to counsel of March 21, 1988, I had sincerely and fervently hoped that the parties would be able to put an end to their monumental, adversarial struggles which have been ongoing since December 1985.*fn3 Regretfully, that hope has not been realized; the parties have been unable or unwilling to accept the decision ('Psak') of the Beth Din of the Agudas Harobonim ('Beth Din'). Accordingly, as I advised counsel, the court must decide the pending motion.

For the most part, the court agrees with Rabbi Fishman's analysis of the law and the facts. The Beth Din adjudicated the dispute between Rabbi Fishman and the Elmora Hebrew Center ('E.H.C.') only after both parties signed what is tantamount to an arbitration agreement. This agreement was entered into freely and voluntarily, with an awareness on the part of both sides as to the meaning and the significance of that form of religious dispute resolution. The Beth Din would not have accepted the responsibility to arbitrate without an effective and binding consent by the parties. The E.H.C. cannot now be allowed to challenge what their President signed on their behalf.*fn4 The claim of lack of consent which has been asserted by the E.H.C. is disingenuous, and is rejected. It may be that the E.H.C. was initially resistive to the idea of submitting the various disputes to the jurisdiction of the Beth Din. Nevertheless, that original reluctance abated, perhaps after consultation with counsel. The court notes that the E.H.C. was represented at the Beth Din by two attorneys, one their attorney in this action and the other an acknowledged specialist in the field of Rabbinic and Jewish Law. To assert now that the E.H.C. was pressured by the Court, or otherwise, into permitting a special tribunal of the Union of Orthodox Rabbis to resolve all the disputes defies acceptance by this Court. To do so would be [to] conclude that Emmanuel Feinberg deliberately made a false ...


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