Associate Andrea L. Schlafer Joins Capehart Scatchard

Mt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Andrea L. Schlafer, Esq. recently joined the Firm’s Workers’ Compensation Department in its Mt. Laurel office.

Ms. Schlafer, a Cherry Hill resident, represents insurance carriers and employers in the defense of workers’ compensation claims at all stages of litigation.

Ms. Schlafer received her law degree from Rutgers School of Law in Camden and her B.S. degree in Business Administration and Finance from the College of Charleston, cum laude.  Upon law school graduation, Ms. Schlafer worked as a law clerk to the Honorable Kevin T. Smith, in the New Jersey Superior Court, Gloucester County Vicinage.


Kramer, Scuteri, and Mignogna Voted in as Partners

Mt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Kurt E. Kramer, Sergio I. Scuteri and Melissa L. Mignogna were recognized as excellent attorneys and voted in as partners of the 137 year old law firm.

Mr. Kramer, a Cherry Hill resident, is a trial lawyer with over 25 years of experience in commercial, tort, professional liability, premises liability, employment, and insurance coverage litigation, with particular emphasis on the representation of commercial and business clients in complex litigation.

A resident of Marlton, Mr. Scuteri focuses his practice on commercial bankruptcy, banking and commercial litigation.   He represents national and regional lending institutions and other credit issuing entities.   He also represents contractors with general construction litigation and counsels them on New Jersey Construction Lien Law filings.

Ms. Mignogna, a resident of Haddon Heights, concentrates her practice in all aspects of family law. She received her J.D. from Widener University in Wilmington, Delaware and her B.S. from Rutgers University in Camden. After completing law school, she secured a judicial clerkship with the Honorable John L. Call, Jr., presently the presiding family law judge in Burlington County.

Shareholder Anne Hammill-Pasqua Shares Career Information with Local Girl Scouts

Mt. Laurel, NJ – – Capehart Scatchard Shareholder, Anne Hammill-Pasqua, Esq. was recently invited by Girl Scout Troop 186 to talk about her professional life as an attorney at the troop’s “Find Your Muse” career exploration night. Ms. Hammill-Pasqua spoke about the qualifications and steps it takes to become a practicing lawyer and also what the job of being a lawyer entails.

The Agenda May No Longer Be Simply a List of Items to be Considered at a Public Meeting

By Robert A. Muccilli, Esq.

A recent unpublished Superior Court Law Division decision may cause surprise and discomfort to persons responsible for developing an agenda for a public meeting.  In Opderbeck v. Midland Park Board of Education, BER-L-8571-13 (Law Div. Dec. 24, 2013), the Honorable Peter E. Doyne found that the term “agenda” in the Open Public Meetings Act (“OPMA”) includes attachments which are distributed to Board members in advance of a board meeting, and ordered that Midland Park produce electronically with the agenda the attachments and supplementary documents which are not privileged or exempt pursuant to the Act.

Judge Doyne based his decision largely on a public policy rationale.  He cited the strong legislative policy in favor of public participation and transparency as manifested in the OPMA and the Open Public Records Act (“OPRA”).

Some might argue that the decision crossed the boundary from judicial interpretation of the law into legislating.  Certainly, there is a strong legislative policy in favor of public participation and transparency. However, it is also true that the Legislature has decided how these policy considerations will be implemented.

For example, the Legislature amended the OPMA a few years ago to require that a school board, like a municipality, to set aside a portion of each meeting for public comment.

Of consequence, the Legislature has not defined “agenda” to include attachments and supplementary materials.  Further, the common dictionary and legal dictionary definitions of the term “agenda” refer to a list of things to be done or items to be considered at a meeting.  These definitions do not reference attachments and supplementary documents.  In fact, the New Jersey Attorney General, in a formal opinion, concluded that the term “agenda” refers solely to the list of items to be discussed or acted upon at the meeting, and that the notice requirement under the OPMA, as it relates to the agenda, need only contain a listing of the items which will be before the board at the meeting and need not include the supportive or explanatory materials and reports relative to such items.  Also of significance, the publishing of an agenda is not required for a regular meeting for which an annual meeting notice has been published.

Reviewing attachments and supplementary materials prior to making them public in advance of a meeting to ensure that no privileged, confidential or deliberative process documents are included will often be a challenging, time-consuming and sometimes costly task.  As an unpublished Law Division decision, the determination in Opderbeck only directly affects MidlandPark.  However, one can expect public advocacy groups to raise the attachment and supplementary materials issue in litigation against other public bodies in which it will likely be argued that Judge Doyne’s analysis should be applied.

Sooner or later, the issue of whether attachments must be made public with an agenda in advance of a public meeting will have to be resolved at the appellate court level.  In the interim, public entities may find it prudent to review their policies concerning what constitutes an agenda and to consult with legal counsel concerning the ramifications of Opderbeck.

Township Entitled to Assert Traffic Sign Immunity for Plaintiff Injured on Bike Trail

By: Betsy G. Ramos, Esq.

Plaintiff, Albert Wood, sustained serious injuries while riding a scooter on the Manasquan Bike Trail in the Township of Wall. In Wood v. Township of Wall, A-0751-12T3 (December 17, 2013), the plaintiff claimed that Wall was negligent in its maintenance, supervision, and control of the trail, thereby creating a dangerous condition. Among other defenses, Wall claimed that the suit was barred by the ordinary traffic sign immunity under the Tort Claims Act.

The plaintiff contended that the trail was constructed in such a manner that it was unsafe. He asserted that the Township and the other defendants considered only the effect of the trail’s construction on the surrounding environmentally-sensitive areas.

The plaintiff’s expert inspected the trail and found that at the point where the plaintiff fell, the trail had a maximum downward slope of about 20 percent, which was quite steep. He noted that there were no signs present or any type of warning to alert persons of this steeply graded section of bikeway. In his opinion, the bicycle gradient exceeded the recommended grade found in a national park planning guide. Thus, he concluded that the slope of the bike trail was in an unsafe condition and contrary to industry standards.

Wall, however, contended that decreasing the slope where the plaintiff fell was not feasible. Based upon the hill, reducing the slope would have destroyed a significant amount of trees and result in a major excavation project.

The Appellate Division found that the trail could constitute a dangerous condition under the Tort Claims Act. While the natural topography of the land may have been safe for hiking, it was the construction of the trail that created the alleged dangerous condition.

Wall claimed that it had immunity as to the failure to warn claim based upon the application of N.J.S.A. 59:4-5, which provided immunity for injuries “caused by the failure to provide ordinary traffic signals, signs, markings, or other similar devices.” The plaintiff contended that this immunity could not apply because it applied only to a public street and not to pedestrian, bicycle, or scooter traffic on a recreational path.

In analyzing this issue, the Appellate Division found that the motor vehicle code (Title 39) defined traffic to include pedestrians in vehicles on highway for the purpose of travel. Highway is defined as the entire width between the boundary lines of public ways maintained for vehicular traffic. Vehicle excepts devices moved by human power. Further, Title 39 generally applies to the operation of bicycles.

Thus, after viewing all of the pertinent Title 39 provisions, the Appellate Division concluded that the Tort Claims Act immunizes a public entity’s decision-making regarding “ordinary traffic signals, signs, markings, or other similar devices” on a bike trail. Therefore, to the extent that the plaintiff’s claim rested upon a failure to provide signs or warnings regarding the trail’s slope, it found that summary judgment was properly granted.

However, the Appellate Division found a jury question as to Wall’s other claimed immunity – plan and design immunity. Accordingly, it remanded the matter back to the trial court to permit Wall to present sufficient proofs for this immunity, as well as whether Wall’s actions in failing to protect against this alleged dangerous condition was not palpably unreasonable.

Capehart Names Shareholder Christopher J. Hoare to Executive Committee

Mt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Litigation Department Chairman Christopher J. Hoare, Esq. has been named to the firm’s Executive Committee. Mr. Hoare joins shareholder and managing partner Peter S. Bejsiuk, and shareholders Besty G. Ramos, John H. Geaney, and Glenn Paulsen on the five-person committee.

Mr. Hoare, a Robbinsville resident, is a senior trial attorney specializing in the defense of personal injury and professional liability lawsuits. He graduated from Seton Hall Law School in 1992 and is admitted to practice in New Jersey, Pennsylvania, and New York.