On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, DC-8636-02.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Axelrad and Payne.
In this appeal, we consider the nature of damages that can be recovered as the result of the failure by a funeral home that caters to members of the Jewish faith to ensure that orthodoX ritual requirements are met when the rituals have been requested by a member of the deceased's family.
On the Friday that his father-in-law died, defendant Emanuel Needle arranged with plaintiff Menorah Chapels of Millburn, promoted as a "Jewish Funeral Chapel," to provide funeral and related services. Because of the Sabbath, commencing at sundown on Friday, the funeral could not be conducted until Sunday, February 21, 1999.
Decedent was an orthodox Jew. Menorah Chapels does not contest that it is customary in the orthodox Jewish faith that watchers or shomerim conduct a continuous vigil or shmeerah*fn1 over the body of the deceased until the time of the funeral. A General Price List for Menorah Chapels, effective June 1, 1998, provided:
The special Orthodox ritual requirements of Tahara [ritual washing] and Watcher [shomer] will be carried out whether decedent is a man or woman by qualified persons in a religiously satisfactory manner upon request, and can be verified if desired. The Tahara will be provided along with a muslin shroud at no additional cost.
A "Shomer Shabbos" [Sabbath] watcher is also available for a small additional charge if requested.
A "Removal, Embalming and Preparation Release Form" pertaining to the deceased and dated February 19, 1999 specified "shrouds & shmeerah." Additionally, the "Statement of Goods and Services Selected" that was executed by Needle on Sunday February 21, 1999 discloses that he requested, and Menorah Chapel agreed to provide, shomerim to conduct the shmeerah. The Statement discloses that six shifts would be necessary to properly conduct the shmeerah, at a cost of $900.
Menorah Chapel subcontracted the provision of shomerim to a burial society. However, allegedly because of the Sabbath, the society did not provide the requested services, and in fact only three of the six shifts of shomerim appeared, commencing on Saturday evening after the Sabbath had ended. Neither Needle nor any of his family members was informed of the failure to provide the full contracted-for services until shortly before the funeral service was to commence and after the body had been left alone in a fashion contrary to orthodox Jewish custom and belief.
In October 1999, the Chapel brought a collection action against Needle in the Special Civil Part, demanding the full cost of its funeral services, subject to a $390 discount as the result of the absence of three shifts of shomerim. Needle entered a general denial of the allegations of the complaint and filed a counterclaim in which he alleged that the failure to provide the required shomerim constituted negligence and breach of warranty resulting in emotional distress to the family. Although breach of contract was not specifically alleged, it can be fairly inferred from Needle's breach of warranty claim and from the general denials contained in defendant's answer. The action was dismissed without prejudice. However, a new complaint was filed more than two years after the funeral on April 9, 2002. A counterclaim identical to the first was again filed by Needle.
The matter came to trial on October 16, 2002. Needle, who was not prepared to proceed, sought an adjournment, which was granted on the condition that he pay the attorney's fees and costs incurred by Menorah Chapel in preparing for trial. The amount of $4,877.02 was assessed as a result.
Thereafter, in cross-motions, Needle sought dismissal of the complaint and referral of the dispute to a religious court, and Menorah Chapel sought summary judgment on the counterclaim. Following argument, Needle's motion was denied, and the motion by Menorah Chapel to dismiss Needle's counterclaim was granted.
In denying Needle's motion, the judge found that Menorah Chapel's complaint did not involve a matter of religious doctrine or practice, but instead, "a contractual undertaking for professional services between two parties, neither of whom are members of the clergy nor religious institutions." He framed the issue as whether Menorah Chapel had breached what he characterized as a "divisible contract" by not providing the requested services, and he determined that damages could easily be calculated by determining "the difference between what was promised, and what was received." The judge continued:
The parties are seeking monetary damages, and the determination of the issue and the impact of any damages do[es] not involve the Court in an "excessive entanglement" between Church and State, such as "protected government," surveillance of church activities, nor does it even involve potential church fiscal disbursements. The Church is not a party to this litigation nor members of its clergy. The Court is not prohibited, but has a duty and obligation to enforce secular contract rights, despite the fact that the parties may base their claims on religious affiliations, or that their defenses may have religious overtones, or may arise out of conduct that offends religious tenets.
The motion judge premised his dismissal of the counterclaim in part upon Needle's alleged failure to provide responses to interrogatories by a court-ordered date. The court further explained ...