On certification to the Superior Court, Appellate Division, whose opinion is reported at 248 N.J. Super. 349 (1991).
Pollock, Wilentz, Clifford, Handler, Garibaldi, Stein, O'Hern
The opinion of the court was delivered by
This appeal poses the question whether the tolling provisions of N.J.S.A. 2A:14-22 before the amendment effective January 16, 1992, L. 1991, c. 387, violated the Commerce Clause as applied to individual nonresident defendants. Before the 1992 amendment, the statute tolled the limitations period against a nonresident defendant during the time the defendant was not residing in this state. The Law Division held that the statute imposed an unconstitutional burden on interstate commerce and granted summary judgment dismissing the complaint of plaintiff, Nelson Crespo, against defendant Josef Stapf. 242 N.J. Super. 254 (1990). The Appellate Division affirmed. 248 N.J. Super. 349 (1991). In effect, the judgment barring Crespo's claim against Stapf permitted Crespo to maintain a claim against his attorney, Jack Piermont, and Piermont's law firm, Lerner and Piermont, for malpractice arising from the failure to bring a timely action. We granted certification, N.J. (1991), and now affirm.
The following facts are undisputed. On March 30, 1983, while operating a feather-washing machine in the course of his employment for Puro Down International of New Jersey, Crespo injured his right hand. The machine had been built by Josef Stapf Maschinenbau, the unincorporated manufacturing firm owned by Josef Stapf, a resident of Stuttgart, Germany. Crespo consulted with Piermont, who advised him of his rights under the New Jersey workers' compensation statute, N.J.S.A. 34:15-1 to -128, but allegedly failed to inform Crespo of the possibility of a product liability claim against Stapf. The two-year statute of limitations on that claim expired, N.J.S.A. 2A:14-2, thereby barring Crespo's claim against Stapf. Crespo then consulted another attorney, who, on March 27, 1987, instituted a malpractice action against Piermont.
Piermont sought dismissal of the complaint, claiming that N.J.S.A. 2A:14-22 tolled the statute of limitations on Crespo's underlying claim against Stapf. Piermont's defense was that Crespo's tort action against Stapf would be timely. Consequently, Crespo had suffered no harm, and could not maintain his malpractice action against Piermont. On May 26, 1988, the Law Division granted Piermont's motion to dismiss without prejudice Crespo's malpractice action. On the same day, Crespo sued Stapf, whom he served under the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965,  20 U.S.T. 361, T.I.A.S. No. 6638 (hereinafter Hague Convention).
Relying on the two-year statute of limitations, Stapf moved for summary judgment. Crespo answered by asserting that N.J.S.A. 2A:14-22 tolled the running of the period of limitations. Stapf replied that the tolling provision violated the Coerce Clause and that the period of limitations had run on Crespo's claim. The Law Division held that the tolling provision as applied to an individual defendant, such as Stapf, violated the Commerce Clause. Consequently, the court granted Stapf's motion to dismiss Crespo's claim. 242 N.J. Super. at 261.
Crespo did not pursue the matter in the Appellate Division, but Piermont intervened as an appellant. Neither Crespo nor the Attorney General, who had intervened in the Law Division, participated in the appeal either before the Appellate Division or this Court. The Appellate Division affirmed the judgment for Stapf.
For nearly three decades, this Court and the United States Supreme Court have reviewed challenges to N.J.S.A. 2A:14-22 under the Due Process and Equal Protection Clauses, U.S. Const. amend. XIV, § 1, and under the Commerce Clause, U.S. Const. art. 1, § 8, cl. 3. This appeal arises from a challenge based on the Commerce Clause, which vests Congress with the "power * * * to regulate commerce among the states." The effect of that clause is to prohibit states from burdening interstate commerce by discriminating against nonresident businesses.
Before the 1992 amendment, N.J.S.A. 2A:14-22 read:
If any person against whom there is any of the causes of action specified in sections 2A:14-1 to 2A:14-5 and 2A:14-8, or if any surety against whom there is a cause of action specified in any of the sections of article 2 of this chapter, is not a resident of this State when such cause of action accrues, or removes from this State after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation or corporate surety not organized under the laws of this State, against whom there is such a cause of action, is not represented in this State by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person or surety is not residing within this State or such corporation or corporate surety is not so represented 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. The person entitled to any such action may commence the same after the accrual of the cause therefor, within the period of time limited therefor by said section, exclusive of such time or times of nonresidence or nonrepresentation.
A corporation shall be deemed represented for purposes of this section if the corporation has filed with the Secretary of State a notice designating a representative to accept service of process.
To place the present matter in perspective, we summarize the relevant state and federal decisions construing N.J.S.A. 2A:14-22. In Lemke v. Bailey, 41 N.J. 295 (1963), we upheld the statute in the face of an equal protection challenge. We found a rational basis for tolling the statute of limitations against nonresident motorists, and held that the statute did not violate the equal protection rights of those motorists. The opinion did not address the validity of the statute under the Commerce Clause. The statute in Lemke was identical to the statute in its pre-1992 form, except for the second paragraph, which was added in 1984.
In the next round of challenges, corporate defendants attacked the statute on due process and equal protection grounds. In Velmohos v. Maren Engineering Corp., 83 N.J. 282 (1980), vacated and remanded, 455 U.S. 985, 102 S. Ct. 1605, 71 L. Ed. 2d 844 (1982), we found that as applied to corporations the statute withstood both attacks. Id. at 296-97. We reached that result despite our refusal to read a corporation's amenability to long-arm service as providing an exemption from the tolling provisions. Id. at 292-93. In G.D. Searle & Co. v. Cohn, 455 U.S. 404, 102 S. Ct. 1137, 71 L. Ed. 2d 250 ...