On appeal from Superior Court of New Jersey, Law Division, Union County.
Before Judges Dreier, Villanueva and Wefing.
The opinion of the court was delivered by VILLANUEVA, J.A.D.
Defendant appeals, after a special master's review, from a judgment of $178,571.63 plus interest entered against him and in favor of plaintiff for work performed in paving a parking lot. We reverse and remand for a full trial in the Law Division.
The primary issue is whether recycled asphalt pavement (RAP) mixed with certain soil aggregate constituted a proper base material. A secondary issue is whether defendant agreed to pay for additional base to be installed if poor soil conditions were found which required it. However, the most significant issue is the procedure employed by the court, which consisted of the appointment of a special master for discovery who thereafter was reappointed as a special master to advise the court concerning the decision in the case. Under this procedure, the parties were severely limited regarding production of witnesses; only the parties and the independent expert were permitted to testify, although the parties' experts' reports were admitted and considered.
Plaintiff is a paving contractor whose president is Carmine Dellapietro (Dellapietro). Plaintiff also operates a recycling facility, a gravel mine, an asphalt plant and other subsidiary businesses. Defendant, Andrew Piscatelli, is the owner and manager/developer of Commerce Plaza, which consists of two commercial buildings. In 1989, defendant began developing Commerce Plaza in Aberdeen.
In the fall of 1989, defendant contacted Dellapietro to discuss the construction of a parking lot at Commerce Plaza. Defendant gave Dellapietro engineering prints for which site plan approval had been granted by Aberdeen Township. The prints set forth the nature of the work to be done and the specific materials to be used, and defendant informed Dellapietro that the work had to conform to the prints. Dellapietro testified that he understood that the work had to conform to the Town's specifications and also had to be approved by the town.
On November 10, 1989, Dellapietro told defendant that he would not do the job with quarry process for the first six-inch base layer because there was not enough of that material available at that time of year. Instead, Dellapietro stated he would do the job with equivalent material made by plaintiff called Cardell's RAP. Later that day, the parties reached an agreement regarding the paving work, but subsequent events indicated that many items were disputed, including whether RAP was an approved material, whether it was satisfactory to governmental authorities and what, if any, work constituted extras.
Defendant alleges that Cardell's RAP is not pure recycled or reclaimed asphalt as is traditional RAP, but rather is a mixture of traditional RAP and soil aggregates. Defendant, nevertheless, agreed to the use of Cardell's RAP if the town engineer approved it. Dellapietro testified that the township engineer upon receiving a sample approved it.
On December 18, 1989, Frank W. Hahne, the Township Engineer, sent defendant a letter requesting that overdue density tests be completed immediately. Defendant claims he gave this letter to plaintiff but Dellapietro denies receiving it. One of the issues is the effect, if any, of the failure to test for density, and another is the effect of using RAP.
After completing the work, plaintiff filed a complaint against defendant seeking payment for materials and services to pave defendant's parking lot. Defendant filed an answer and counterclaim, demanding relief based upon plaintiff's failure to complete the paving according to specifications, to obtain municipal approvals and to provide adequate materials.
In early 1991, the township reduced defendant's performance bond for the construction of Commerce Plaza from $270,000 to less than $50,000. Hahne stated that "Our office has made an on-site inspection and found all items to be satisfactorily complied with . . . ."
On January 3, 1992, the trial court, with the consent of the parties and their attorneys, appointed Robert P. McDonough, Esq., to be a discovery master, suspended discovery pending direction from the master and provided:
The parties, with the assistance of the Master, if necessary, will select an independent expert to examine the site, the records of the parties and of Aberdeen Township and of such persons as he desires in connection with engineering matters, and issue his report and Conclusions. The Conclusions shall be binding upon the parties. . . .
On May 22, 1992, the court entered an order ending discovery and appointing McDonough, a Special Master.*fn1 Although defendant did not consent to this order, he did not specifically object to it or seek leave to appeal. The Special Master was ordered to take testimony of Carmine Dellapietro and defendant as ...