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Jersey Central Power & Light Co. v. Kingsley Arms Inc.

Decided: December 15, 1993.

JERSEY CENTRAL POWER & LIGHT COMPANY, PLAINTIFF,
v.
KINGSLEY ARMS, INC. AND ASBURY PARK HOUSING AUTHORITY, DEFENDANTS. KINGSLEY ARMS, INC., PLAINTIFF, V. HOUSING AUTHORITY AND URBAN REDEVELOPMENT AGENCY OF THE CITY OF ASBURY PARK, DEFENDANT.



Fisher, Jr.

Fisher

SUPPLEMENTAL OPINION

CLARKSON S. FISHER, JR., J.S.C.

The purpose of this supplemental opinion is to clarify the reasons for the entry of the particular form of order that memorialized the rulings contained in the Court's written opinion of August 31, 1993.

In the earlier opinion, the motion of the Asbury Park Housing Authority ("APHA") to quash the levies placed on its bank accounts was granted, and the motion of plaintiff Kingsley Arms, Inc. ("Kingsley") for an order mandating the payment of the amounts previously adjudicated due, by way earlier motions for summary judgment, was also granted. On September 3, 1993 argument was heard concerning the form of an order memorializing those rulings; an order was entered that same day.*fn1

APHA argued that the order should not contain any time frame within which compliance was required. On the other hand, Kingsley contended that the quashing of the levies should be made

contingent upon APHA's compliance with the order directing payment. Neither approach of the parties was appropriate. Contrary to APHA's position, the order entered directed APHA to "immediately pay" to Kingsley the amount due; and contrary to Kingsley's argument, the vacation of the levies was not made contingent upon APHA's compliance with the direction to pay.

Kingsley's approach was clearly unwarranted by law. As explained in the Court's opinion of August 31, 1993, N.J.S.A. 40A:12A-34 bars execution against APHA's assets under the present circumstances. To delay vacating the levies on APHA's bank accounts, no matter how understandable Kingsley's impatience in obtaining the funds due it, would require this Court to act inconsistently with the clear direction of the Legislature.

On the other hand, APHA sought the entry of an order that would leave unbounded the time for its compliance. To enter an order consistent with APHA's approach would require the Court to ignore APHA's already unwarranted delay in honoring its obligations to Kingsley. Indeed, it is noteworthy that, on September 3, 1993, APHA argued that it anticipated being in a position to pay Kingsley by the end of September (when HUD, according to APHA, was expected to reimburse APHA). It is now early December and Kingsley still has not been paid the amounts adjudicated due in March and April, 1993.*fn2 Meanwhile, APHA's monetary obligations to Kingsley continue to accumulate.*fn3

Given that APHA's prognostications as to its ability to pay Kingsley were grossly inaccurate, this Court's unwillingness

to leave open-ended the time for APHA's compliance was undoubtedly correct. Moreover, APHA's approach to the form of the order was inconsistent with the nature of the relief sought. The order that was entered previously, as described in the Court's earlier opinion, was in the form of a writ of mandamus.*fn4 A writ of mandamus is, in essence, a command*fn5 to do a specific act, that arises from the official station of the party to whom the order is directed. Borough of Eatontown v. Danskin, 121 N.J. Super. 68, 73, 296 A.2d 81 (Law Div. 1972). Its purpose is to compel an act the performance of which has been clearly established. It is, in short, a drastic writ of an extraordinary character. Kerr v. United States District Court, 426 U.S. 394, 402-403, 96 S. Ct. 2119, 2123-2124, 48 L. Ed. 2d 725 (1976). While the view that it is "stern, harsh, inflexible, unreasoning and cast-iron in nature," State ex rel. Sho-Me Power Corp. v. Hawkins, 337 S.W.2d 441, 444 (Mo. ...


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