On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L- 1111-00.
Before Judges Skillman, Wecker, and Lesemann.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The issue presented by this appeal is whether an alleged murderer who avoided detection and apprehension for more than forty years may be precluded by the doctrine of equitable tolling from invoking the applicable statutes of limitations to bar a wrongful death and survivorship action brought by the victim's estate.
On the evening of November 28, 1958, Officer Charles Bernoskie of the Rahway Police Department attempted to apprehend two persons who were in the process of committing a burglary in a car dealership. A gun battle ensued in which Officer Bernoskie was shot three times, resulting in his death a short time later. Officer Bernoskie was survived by his wife and six children.
For the next forty years, the law enforcement officials who investigated the murder were unable to identify any suspects. However, in the summer of 1999, as a result of information provided by defendant's sister, the police identified defendant, who was already serving a life sentence for another murder, and his cousin, Theodore Schiffer, as suspects in the crime.
After indictments were returned against both men, Officer Bernoskie's widow, plaintiff Elizabeth Bernoskie, Administratrix ad Prosequendum and General Administratrix of his estate, brought this wrongful death and survivorship action against defendant and Schiffer. Before filing an answer, defendant filed a motion to dismiss the complaint on the ground that it is barred by the applicable statutes of limitations.*fn1
In her affidavit filed in opposition to the motion, plaintiff stated that after the murder, law enforcement officials told her that their investigation had "yielded no definite suspects," and thereafter, she periodically made inquiries to the Rahway Police Department concerning the status of their investigation, but was told "there was no news to report regarding the solution of this crime." It was not until late July 1999, upon a visit to the Rahway Police Department, that plaintiff "was advised that, after four decades, new evidence was finally discovered which might lead to the apprehension of the responsible parties."
The trial court denied defendant's motion to dismiss. In a comprehensive oral opinion, Judge Beglin concluded that equitable considerations precluded defendant from invoking statutes of limitations to bar plaintiff from pursuing a wrongful death and survivorship action for the murder, at least pending the disposition of the pending criminal charges:
[Statutes of limitations] represent the legislative policy of this state, that after the expiration of whatever set period of time the statute provides, a plaintiff is unable to pursue a cause of action and a defendant is entitled to the repose that such a statute provides to the defendant.
Courts must be respectful of such legislative policy. But courts, also, over the years . . . have been able to address unique problems in an equitable fashion . . . .
As I look at these circumstances, one, . . . it involves the crime of homicide. In other words, in the strata of the criminal code, the highest crime there is, the taking of another's life. It is, by its definition, an act of purpose, of deliberateness and intent and that separates it from most of the other cases which involve acts of negligence but not deliberateness.
The victim was a police officer. Law enforcement from practically the moment of the event had been involved in its investigation, and law enforcement for 40 or more years was unable to identify anyone against whom a criminal complaint could be lodged. . . . That period of intervening years was something over which Mrs. Bernoskie had no control. It would be fundamentally ...