On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1111-00.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Axelrad and Miniman.
This case is before us for the second time. The issue presented is whether the doctrine of equitable tolling allows plaintiff to pursue wrongful death and survivorship claims against the person she alleges murdered her husband, even though her complaint was not filed until more than forty years after the crime.
We briefly recount the facts. On the evening of November 28, 1958, Officer Charles Bernoskie of the Rahway Police Department attempted to apprehend two persons who were committing a burglary of a car dealership. A gun battle ensued in which Officer Bernoskie was shot three times, resulting in his death a short while later. 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, based on information provided by defendant's sister, the police identified defendant and his cousin, Theodore Schiffer, as the apparent perpetrators.
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.*fn1
In the first appeal, we affirmed a trial court order that denied defendant's motion to dismiss plaintiff's complaint on the ground that it was barred by the two-year statutes of limitations applicable to wrongful death and survivorship actions. Bernoskie v. Zarinsky, 344 N.J. Super. 160 (App. Div. 2001). We agreed with the trial court's conclusion that defendant "may be precluded by the doctrine of equitable tolling from invoking the applicable statute of limitations." Id. at 162. We also agreed with the court's further conclusion that "there [are] countervailing considerations of possible unfairness to defendant in being required to defend an action based on events that occurred more than forty years ago," id. at 163, and therefore, a final determination concerning the tolling of the statutes of limitations should be made at an evidentiary hearing after the conclusion of the criminal proceedings against defendant, id. at 163-64. During the pendency of the first appeal, the criminal proceedings against defendant resulted in an acquittal. Accordingly, we remanded the case to the trial court to conduct the hearing contemplated by the order denying defendant's motion to dismiss.
The evidence presented at the remand hearing included statements given to the police by Schiffer, who admitted he was one of the perpetrators of the murder, and defendant's sister, Judith Sapsa. Schiffer alleged that defendant was the one who shot Officer Bernoskie. According to Schiffer, after he and defendant were shot in an exchange of gunfire with Bernoskie, they went to the house of defendant's grandmother. Defendant's aunt, Irene Shagus, then drove them to defendant's house, where defendant's mother cared for both Schiffer's and defendant's gunshot wounds. Defendant's sister stated that she saw her aunt bring Schiffer and defendant to her parents' house on the night of the murder and later witnessed her mother remove bullets from both Schiffer and defendant.
Defendant, who was the sole witness at the remand hearing, categorically denied committing the crime. He also testified that all the persons he could have called as defense witnesses if the case had been tried sooner had died and that much of the real evidence he could have introduced had been lost or destroyed. For example, according to defendant, he and his girlfriend, Caroline Ralonis, went to the movies the night of the murder and returned to his parents' house afterwards.
However, by the time this action was filed, Ralonis and defendant's parents were dead. Therefore, the passage of time prevented defendant from presenting the testimony of these potential alibi witnesses.
Defendant also testified that when he and Ralonis arrived home from the movies, his parents told him that Schiffer's sister, Peggy Gaylish, and her husband, Walter, had come to their home during the evening and had brought his sister, Judith, to their own house. Defendant hypothesized that Schiffer and whoever else committed the murder with him went to the house of Peggy Gaylish, who lived only a short distance from the site of the murder, rather than to his house, which was further away, and that Peggy Gaylish was the one who cared for their wounds, not his mother. Defendant also testified that because Peggy Gaylish and her husband had picked up his sister earlier that evening, his sister would have been present while Peggy was tending to Schiffer's gunshot wound. Defendant contended that because Peggy and Walter Gaylish died before this action was filed, he was deprived of the opportunity of calling them to testify that he was not with Schiffer the night of the murder.
Defendant also claimed that Irene Shagus would have testified, contrary to Schiffer's and Judith's statements, that she did not see defendant the night of the murder. However, he was deprived of the opportunity to present such ...