Before Judges Keefe, A.A. Rodr¡guez and Collester.
The opinion of the court was delivered by: Keefe, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court, Law Division, Passaic County.
We granted defendant PNC Bank Corporation's motion for leave to appeal from an interlocutory order denying its motion for summary judgment on the ground that plaintiff's LAD claim is barred by the statute of limitations. On July 27, 1993, the Supreme Court held that the two year statute of limitations, rather than the six year statute, applied to LAD claims. Montells v. Haynes, 133 N.J. 282 (1993). The issue on appeal is whether the Supreme Court's decision in Montells applies to causes of action that accrued prior to the decision and requires plaintiffs who held such accrued causes of action to file suit within two years of the date of that decision.
The relevant facts are uncontroverted. Plaintiff's claim for sex discrimination against defendant's predecessor, Midlantic Bank, N.A., accrued on June 24, 1992, when she was terminated, according to plaintiff, in retaliation for complaining about discriminatory treatment. She did not file suit in Superior Court until June 18, 1998, one week shy of the six year statute of limitations if it is deemed applicable, and well beyond two years from the date of the Montells decision. In the interim period from the date of her termination to the filing of this suit, plaintiff's claim languished in the Division of Civil Rights. Ultimately, plaintiff was permitted by the Division to withdraw her complaint and closed its file in February 1998.
Relying on: (1) Standard v. Vas, 279 N.J. Super. 251 (App. Div. 1995); (2) a statement made in Justice Garibaldi's dissenting opinion in Wilson v. Wal-Mart Stores, 158 N.J. 263, 287-88 (1999); (3) a federal District Court opinion relying on Standard, supra; *fn1 and (4) an unreported opinion by another part of this court; defendant contends that plaintiff was required to file her suit in Superior Court two years from the date of the Montells decision. Plaintiff, on the other hand, argues that the plain language of the Montells Court compels the conclusion that her claim is not barred. We agree with plaintiff and affirm.
Because the Montells Court was announcing a new rule of law, it held that "fairness and justice" required that its decision "should apply purely prospectively" and "only to cases in which the operative facts arise after the date of the decision." Id. at 297-98 (citations omitted). The creation of a new rule of law by the Supreme Court requires the Court to address the perplexing doctrine of retroactivity. Essentially, the Court has four choices. It may:
"(1) make the new rule of law purely prospective, applying it only to cases whose operative facts arise after the new rule is announced; (2) apply the new rule to future cases and to the parties in the case announcing the new rule, while applying the old rule to all other pending and past litigation; (3) grant the new rule limited retroactivity, applying it to cases in (1) and (2) as well as to pending cases where the parties have not yet exhausted all avenues of direct review; and, finally, (4) give the new rule complete retroactive effect, applying it to all cases, even those where final judgments have been entered and all avenues of direct review exhausted." [Coons v. Am. Honda Motor Co., Inc., 96 N.J. 419, 425 (1984) (quoting State v. Burstein, 85 N.J. 394, 402-03 (1974)), cert. denied, 469 U.S. 1123, 105 S. Ct. 808, 83 L. Ed. 2d 800 (1985).]
Deciding which option to apply in a given case requires a consideration of several factors and a painstaking weighing of those factors. See, e.g., Kibble v. Weeks Dredging & Constr. Co., 161 N.J. 178 (1999); Fischer v. Canario, 143 N.J. 235 (1996); Montells, supra, 133 N.J. at 295-98; Crespo v. Stapf, 128 N.J. 351 (1992); Rutherford Educ. Ass'n v. Bd. of Educ. of Rutherford, 99 N.J. 8 (1985); Coons, supra, 96 N.J. at 426. Once the choice is made, however, there is little disagreement as to what the Court's choice means. As generally understood, when the new rule of law is to be applied on a "purely prospective" basis the court refuses to apply the new rule "not only to the parties before the court but also to any case where the relevant facts predate the decision." Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 114, 113 S. Ct. 2510, 2527, 125 L. Ed. 2d 74, 98 (1993) (O'Connor J., joined by Rehnquist, C.J., dissenting) (citing James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 536, 111 S. Ct. 2439, 2443, 115 L. Ed. 2d 481, 488 (1991)); see also, Annotation, Prospective or Retroactive Operation of Overruling Decision, 10 A L R 3d §1 1371, 1377 (1966) (the "purely prospective" option is understood to apply "only when the new rule is confined in its effect to future cases arising from fact situations occurring after the announcement of the new rule"). On the other hand, where the court applies the new "rule to some but not all cases where the operative events occurred before the court's decision, depending on the equities" the option is called "selective prospectivity." Harper, supra, 509 U.S. at 114, 113 S. Ct. at 2527, 125 L. Ed. 2d at 98. In New Jersey, where the Court believes that a "purely prospective" application of a new rule of law is unfair to the successful litigant, and applies the new rule to the parties, or perhaps the parties and other limited litigants, the choice is called "limited prospectivity," an identical concept to "selective prospectivity." Kibble, supra, 161 N.J. at 195-96; Fischer, supra, 143 N.J. at 246-48; Rutherford Educ. Ass'n, supra, 99 N.J. at 26-27.
The point is that our Supreme Court appreciates the distinction between choosing the "purely prospective" option over other retroactivity options available to it. The Montells Court could not have made its choice clearer. It chose the "purely prospective" option, and to make its intent crystal clear, it added that the new rule would apply "only to cases in which the operative facts arise after the date of decision." Montells, supra, 133 N.J. at 298. This wording used by the Court is nearly the same formulation of the "purely prospective" option described by Justice O'Connor in Harper, supra, which makes the new rule inapplicable to "any case where the relevant facts predate the decision." 509 U.S. at 114, 113 S. Ct. at 2527, 125 L. Ed. 2d at 98. Irrespective of whether the retroactivity choice made by the Supreme Court is open to criticism, when the choice is made the meaning is clear. It is not an intermediate appellate court's function to make a more equitable rule by converting the Court's choice of the "purely prospective" option into a "limited prospectivity option." That is what defendant asks this court to do, and we respectfully decline the invitation.
We are mindful of the fact that the Standard court opined that the "prospective" rule of Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 600 (1992) should apply to causes of action that accrued before the decision. Standard, supra, 279 N.J. Super. at 256. Nonetheless, it is noteworthy that the Standard court made it clear that even its decision had prospective effect. It said in that regard:
[I]n the future, we see no equitable or sound policy reason why youthful litigants who were injured prior to June 3, 1992, must invariably be given until two years from their twenty-first birthday to commence suit if, in fact, they have two years notice of Green. The proper limit, we suggest, is two years from the date of Green, two years from the date of accident, or two years from attaining the age of eighteen, whichever is the later. Such a formulation should greatly accelerate implementation of Green, while accommodating the competing considerations noted in Montells. [Ibid. (footnote in citation omitted).]
Furthermore, the court's statement was dicta, and was recognized as such by Justice Garibaldi in her dissenting opinion in Wilson, supra, 158 N.J. at 287. As a member of the Court that decided Montells, Justice Garibaldi had every right to question, in retrospect, the breadth of the Court's prospectivity ruling in that case. That Justice Garibaldi would have elected to follow Standard's dicta in applying the Montells decision is interesting but irrelevant. The important point is that ...