Defendant Josef Stapf is a resident of Stuttgart, Germany, and owns an unincorporated business known as Josef Stapf Maschinenbeau which is also located in Germany. He sought to dismiss the plaintiff's complaint in this product liability action on the ground that our statute which tolls the statute of limitations for nonresident individuals, N.J.S.A. 2A:14-22, is
unconstitutional under the commerce clause of the United States Constitution. U.S. Const. Art. I, § 8, cl. 3. Since the defendant's argument was addressed to the constitutionality of this statute, notice was given pursuant to R. 4:28-4 to the Attorney General, who was thereafter permitted to intervene, file a brief and argue in support of the statute.
The issue is presented in the following factual context. The plaintiff was employed by Puro International, Inc. as an operator of a feather-washing machine and on March 30, 1983, while operating the machine, severely injured his right hand. He consulted with an attorney who conducted an investigation and learned that the machine in question had been manufactured and installed by Josef Stapf. This attorney advised Mr. Crespo of his rights under our workers compensation statute, N.J.S.A. 34:15-1 et seq. but not of the possibility of instituting a third-party product liability claim. Sometime thereafter, Mr. Crespo contacted his present attorney who began a malpractice action against plaintiff's first attorney on the theory that the first attorney had permitted the two year statute of limitations under N.J.S.A. 2A:14-2 to run on Mr. Crespo's third party action. The first attorney defended that claim on the ground that there was no malpractice as a matter of law since plaintiff was entitled to the benefit of the tolling provisions of N.J.S.A. 2A:14-22. The malpractice complaint was dismissed without prejudice and plaintiff filed this complaint on May 26, 1988, more than five years after his original injury. Defendant Stapf was served on November 26, 1988 in accordance with the Hague Convention. Stapf filed an answer and included among his defenses that this action was barred by the statute of limitations.
N.J.S.A. 2A:14-22 provides in pertinent part:
If any person . . . is not a resident of this State when such cause of action accrues . . . the time or times during which such person . . . is not residing within this State . . . shall not be computed as part of the periods of time within which such an action is required to be commenced by the section.
Plaintiff urges that since Stapf was not a resident of the State of New Jersey at any time after his accident, the statute of limitations has not started to run. Defendant urges, in response, that since the only way a nonresident individual may receive the benefit of the statute of limitations is if that individual becomes a resident of New Jersey, the statute imposes an undue burden on interstate commerce.
It should be noted at the outset that in the face of a constitutional challenge to legislation, every possible presumption favors the validity of the Legislature's act. New Jersey Sports & Exposition Authority v. McCrane, 61 N.J. 1, 292 A.2d 545 (1972), app. dism. 409 U.S. 943, 93 S. Ct. 270, 34 L. Ed. 2d 215 (1972). ". . . where . . . the constitutional issue must be dealt with, every reasonable intendment runs in favor of constitutionality . . . because of seemly respect for the act of a co-equal branch of government, . . ." New Jersey Association on Correction v. Lan, 80 N.J. 199, 218, 403 A.2d 437 (1979).
To determine whether state legislation which affects interstate commerce may be upheld under the commerce clause, the first issue which must be dealt with is which test should be applied to measure the statute, the per se test or the balancing test. Under the former, statutes whose sole purpose is economic protectionism have been held to be per se violations of the commerce clause. Philadelphia v. New Jersey, 437 U.S. 617, 98 S. Ct. 2531, 57 L. Ed. 2d 475 (1978). See the discussion of the per se rule in First Family Mortg. Corp. v. Durham, 108 N.J. 277, 285-6, 528 A.2d 1288 (1987), cert. dismissed as moot, 487 U.S. 1213, 108 S. Ct. 2863, 101 L. Ed. 2d 899 (1988) which upheld the Corporation Business Activities Reporting Act, N.J.S.A. 14A:13-14 to 23 as valid under the commerce clause. The purpose of this statute, however, is to ...