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Pierce v. Cherry Hill Township

April 12, 2010

BOBBIE LYNN PIERCE, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF JOSEPH PIERCE, PLAINTIFF-APPELLANT,
v.
CHERRY HILL TOWNSHIP AND CHERRY HILL TOWNSHIP POLICE DEPARTMENT, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5868-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 17, 2010

Before Judges Payne and Waugh.

Plaintiff Bobbie Lynn Pierce, individually and as administratrix of the Estate of Joseph Pierce (decedent), her husband, appeals the denial of her application for leave to file a late notice of claim pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:8-1 to -11. We reverse and remand for an evidentiary hearing.

I.

We discern the following facts from the record. This litigation arises out of an altercation in the parking lot of the Cherry Hill Diner during the early morning hours on November 22, 2007. The altercation started after two vehicles narrowly avoided a collision, and it ended with the stabbing of one participant and the severe beating of another, the decedent.*fn1

The Cherry Hill police arrived at the scene and separated the combatants. The decedent was handcuffed and detained by the police as part of their investigation. However, he was subsequently taken to the emergency room of a nearby hospital, where he died. He had apparently suffered a heart attack at some point during or following the altercation. Pierce, who had remained at the scene, was informed of his death by the police.

Pierce asserts that she was devastated by her husband's death and the fact that she was not with him at the time. She provided a medical opinion that she was "rendered [] powerless, overwhelmed and unable to cope with the loss," that she suffered from "deep depression," and was "mentally and physically unable to perform tasks such as investigating legal rights and claims, understanding complex theories, and understanding the ramifications of her failure to do so." Nevertheless, she certified that she attempted, without success, to obtain information and copies of reports about the incident shortly after it took place.

On December 12, 2007, the Cherry Hill police charged Pierce and others who were present at the altercation with "fighting" in violation of N.J.S.A. 2C:33-2(a)(1). Pierce retained an attorney in connection with the disorderly conduct charge.*fn2 She and the attorney discussed a claim against the police, but the attorney apparently advised her that she needed to wait until she received the discovery in the municipal matter before she could file a claim. She asserts that she nevertheless continued her attempts to obtain information and records.

The municipal charges were dismissed in May 2008. On June 6, 2008, Pierce wrote to the Cherry Hill Police Department to give notice that she "intend[ed] to file suit . . . regarding the death of [her] husband, Joseph Pierce." By letter dated June 9, 2008, Cherry Hill Township's solicitor acknowledged receipt of the notice and requested Pierce to complete a tort claim notice included with the letter. However, by letter dated June 13, 2008, the Township's claims administrator denied the claim on the basis of late notice, citing N.J.S.A. 59:8-8. Nevertheless, by letter dated July 2, 2008, Pierce's new attorney forwarded the tort claim form to the Township's solicitor, noting that he was still seeking additional information requested in the form.

Pierce filed a motion for leave to file a late notice of claim on November 21, 2008. The Township opposed the motion. Following oral argument on January 23, 2009, the Law Division denied the motion, finding that Pierce had failed to satisfy the "extraordinary circumstances" requirement of N.J.S.A. 59:8-9. This appeal followed.

II.

On appeal, Pierce argues that the motion judge erred in denying her motion for leave to ...


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