On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3443-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and King.
Plaintiffs Giovanni Astorino, Sandra Astorino, Mark Shtraus, and Lilia Shtraus, appeal from the order of July 20, 2007, granting summary judgment to defendants dismissing their complaint with prejudice pursuant to the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3. We affirm.
The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). On July 14, 2003, plaintiffs Giovanni Astorino and Mark Shtraus, both Pennsylvania residents, were passengers in a commuter train car owned and operated by defendants, New Jersey Transit and New Jersey Transit Rail Operations (collectively New Jersey Transit). Plaintiffs claim they were injured as a result of a train derailment in Secaucus. On October 10, 2003, plaintiffs filed a Notice of Claim in compliance with N.J.S.A. 59:8-8.
On April 13, 2005, plaintiffs filed a complaint in the Court of Common Pleas, Philadelphia County, Philadelphia, Pennsylvania (the Pennsylvania Complaint).*fn1 On July 15, 2005, New Jersey Transit filed an answer and separate defenses, including a statute of limitations defense. On September 26, 2005, New Jersey Transit filed a motion for judgment on the pleadings grounded on lack of jurisdiction. On November 16, 2005, the Pennsylvania trial court granted the motion and dismissed the complaint. On November 23, 2005, plaintiffs filed a motion for reconsideration, which was granted. However, on January 17, 2006, the court once again dismissed the complaint for lack of jurisdiction.
On February 9, 2006, plaintiffs filed an appeal in the Superior Court of Pennsylvania, and on March 17, 2006, they filed a second motion for reconsideration. On March 28, 2006, the trial court dismissed the second motion for reconsideration. On July 10, 2006, plaintiffs filed a complaint in Superior Court of New Jersey (the New Jersey Complaint).
On October 24, 2006, the Pennsylvania Superior Court affirmed the dismissal. Astorino v. N.J. Transit Corp., 912 A.2d 308 (Pa. Super. 2006). Plaintiffs then filed a request for re-argument en banc, which was denied on December 28, 2006. On February 22, 2007, plaintiffs filed an appeal in the Supreme Court of the Commonwealth of Pennsylvania, which was denied on September 29, 2007.
On June 22, 2007, New Jersey Transit filed a motion for summary judgment to dismiss the New Jersey Complaint with prejudice based upon the two-year limitations period prescribed in N.J.S.A. 59:8-8. Plaintiffs countered that the equitable tolling doctrine should apply because they filed a timely notice of claim with New Jersey Transit; they filed a timely complaint in Pennsylvania; the Pennsylvania and New Jersey Complaints are identical; they had a good faith belief that Pennsylvania had jurisdiction; the Pennsylvania court did not have the power to transfer the case to New Jersey pursuant to Pennsylvania R.C.P. 1032; and plaintiffs' counsel had a good faith belief that Pennsylvania had jurisdiction.*fn2
On July 20, 2007, Judge Sarkisian granted the motion, finding that equitable tolling does not apply to the TCA, and that plaintiffs did not diligently prosecute the New Jersey Complaint, having delayed almost six months after the dismissal of the Pennsylvania Complaint to file it. The judge also found inapplicable plaintiffs' reliance on Galligan v. Westfield Centre Serv., Inc., 82 N.J. 188 (1980) and Jaworowski v. Ciasulli, 490 F.3d 331 (3d Cir. 2007).
Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). "Genuine" issue of fact means "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid. Even if the allegations in the pleadings raise an issue of fact, if ...