Capehart Scatchard Bowls for the Kids

Capehart Scatchard Bowls for the KidsMt. Laurel, NJ – –  Employees of Capehart Scatchard recently participated in the First Annual Kids’ Chance of New Jersey Bowling Event.  The event was held to raise money for Kids’ Chance, a non-profit organization, created to provide educational opportunities and scholarships for the children of workers who were fatally or catastrophically injured on the job.  The event was held at Colonial Bowling on March 20, 2014 in Lawrenceville, New Jersey.

Capehart Attorneys Named “Super Lawyers” and “New Jersey Rising Stars” for 2014

Mt. Laurel, NJ – – Capehart Scatchard is pleased to announce that the following shareholders have recently been named “Super Lawyers” as voted by their peers and facilitated by Law & Politics and New Jersey Monthly: John Geaney (Workers’ Compensation), Amy Goldstein (Family Law), Nikitas Moustakas (Business/Corporate), Lora Northen (Workers’ Compensation), and Betsy Ramos (Business Litigation). Fewer than 5% of lawyers are named as Super Lawyers.

Additionally, Michael Bileci (Workers’ Compensation), Anne Hammill-Pasqua (Workers’ Compensation), Melissa Mignogna (Family Law), Laurel Peltzman (Employment Litigation: Defense), Daniel Robinson (Workers’ Compensation), Joseph Zakhary (General Litigation) and Ian Zolty (Workers’ Compensation) were selected as “New Jersey Rising Stars” for 2014.

OPRA Applies to Requests for Bid Specifications

By: Kelly E. Adler, Esq.

In Bozzi v. City of Atlantic City, 2014 N.J. Super. LEXIS 6, decided on January 7, 2014, the Appellate Division addressed three important issues:  (1) whether an actual written OPRA request is necessary for the Open Public Records Act (“OPRA”) to apply;  (2) whether bid specifications are government records under OPRA; and (3) regardless of whether a written OPRA request is made, is a public entity required to follow the fee provisions of OPRA with regard to copying fees when providing a government record to a member of the public.  In determining that a failure to make a written request was fatal to an award pursuant to the Open Public Records Act (“OPRA”), the Appellate Division also determined that bid specifications are government records and the fee provisions apply with regard to all government records, regardless of whether an OPRA request was made for access to the record.

On February 3, 2012, Plaintiff, Ernest Bozzi, requested, from the City of Atlantic City, a copy of bid specifications for award of a thirty-three month contract to provide heating, ventilation, and air conditioning maintenance and service for the Clayton G. Graham Public Safety Building.  No OPRA form was filled out by the Plaintiff and the request was made verbally.  Plaintiff was given a copy of the bid specifications and charged $25.00, which Plaintiff paid. 

Thereafter, Plaintiff sued Atlantic City, alleging that Atlantic City, their records custodian and civil engineer (“Defendants”) violated OPRA, the common law right to access, and the Civil Rights Act (the Act), N.J.S.A. 10:6-1 to -2. The complaint alleged that OPRA limited copying costs of public documents to five cents per page, making the fee charged for the material excessive. Plaintiff sought a refund of $21.55, along with counsel fees and costs.  Defendants argued that Plaintiff never filed an OPRA request and that the bid specifications, when prepared, “require[d] specialized and skilled services usually by professional and experienced staff in consultation with other City departments’ staff [that] are equally skilled and experienced in their respective fields,” and therefore, the $25.00 charge was reasonable. 

The trial judge found in favor of Plaintiff, holding that the requested document was a public record and that the $25.00 blanket fee for the bid specifications was a violation of the OPRA statute.  The trial judge also awarded attorneys fees. 

As a result, Defendants appealed the trial judge’s decision and argued that plaintiff’s failure to submit a written OPRA request was fatal to relief under the statute. Further, Defendants maintained that the provision of bid specifications falls outside OPRA’s scope and is governed by the Local Public Contracts Law (“LPCL”). 

With regard to the requirements for a proper request for access to a government record pursuant to OPRA, the statute states:

A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian. A custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record. If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor on the request form and promptly return it to the requestor. The custodian shall sign and date the form and provide the requestor with a copy thereof.

N.J.S.A. 47:1A-5(g).

The Appellate Division, in analyzing this matter, held that the courts are not free to ignore the language of a statute.  Specifically, the Appellate Division stated:

“. . . we conclude the express requirement for a written record request, unequivocally set forth in N.J.S.A. 47:1A-5(g), cannot be ignored merely because a government record was sought. We are not free to disregard the writing requirement, which would render the statutory provision meaningless, and create a circumstance running counter to the express language in OPRA.”

As a result, the Appellate Division vacated the attorneys fee award because the fee award can only be sustained if the statute applies.  Since OPRA does not apply due to the Plaintiff’s failure to submit a written OPRA request, he was not entitled to a fee award.

The Appellate Division, however, also addressed the Defendants’ argument that the bidding documents are not public records and are governed by the LPCL and not OPRA.  This argument was rejected by the Appellate Division.  The Appellate Division explained that the LPCL requires certain contracts entered into by local public entities be procured through a public bidding process detailed in that statute.  Further, the Court noted that the LPCL provides that all contracts for the performance of municipal work or services must be advertised for and awarded to the lowest responsible bidder.  The Court further noted that the bid specifications sought by plaintiff for maintenance services over a thirty-three month period were for an award of a public contract governed by the LPCL. The Court further noted that no provision of the LPCL would exempt the bid specifications from OPRA.  The Appellate Division explained that OPRA defines a government record as:

any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.

N.J.S.A. 47:1A-1.1.  The Court determined that no exception applies that would carve out the bid specifications from the definition of a government record.  As a result, the Court explained that even though a proper OPRA request was not made, the fee provisions found in OPRA apply since the record provided is a government record as defined by OPRA.   The Court noted that the Legislature may not have had bid specifications in mind when lawmakers crafted the OPRA statute.  Nevertheless, the Court indicated that it was not the Court’s job to craft exceptions.

Therefore, it is important for public entities to understand the implications of this decision.  Although it is an unpublished decision and, hence, not binding on the trial courts, it is recommended that public entities evaluate their policies and make a determination whether their copying policies should be changed.

Many public entities have charged a flat fee to anyone requesting copies of bid specifications.  Assuming this decision is followed by the trial courts, charging a flat fee will no longer acceptable and, instead, OPRA’s fee provisions would apply with regard to all documents that are public records under OPRA.  No longer would it be appropriate for public entities to charge more than the current per page rate established by OPRA when providing a public record to a member of the public, even if the request for the bid specifications was not made pursuant to OPRA.

Township’s Contract with County to Clear Snow from County Roadway Does Not Create Liability

By: Betsy G. Ramos, Esq.

Owning or controlling the public property upon which a plaintiff claims caused injury is an essential element to establish liability of a public entity under the Tort Claims Act for a personal injury claim. In a District Court of New Jersey case, Marenbach v. City of Margate, 942 F. Supp. 2d 488 (D.N.J. 2013), the court held that although Atlantic County paid Margate to remove snow from a county roadway, that did not equate to “control” of the roadway under the circumstances.

In Marenbach, the plaintiff tripped and fell in the street on Ventnor Avenue in Atlantic City. He claimed severe and permanent injury to his left ankle. The plaintiff claimed that the street was in a dangerous condition. He sued the City of Margate, claiming that Margate controlled Ventnor Avenue and was liable for failing to protect him from a dangerous condition.

Ventnor Avenue was a roadway owned by Atlantic County. The plaintiff claimed that Margate had possessory control over the roadway because (1) Atlantic County paid Margate to remove snow and clean Ventnor Avenue; (2) Margate police officers patrolled the street and enforced parking and moving violations on Ventnor Avenue and Margate split the fees from those activities with the County. The court rejected both of these arguments and granted summary judgment to Margate.

The court found that neither of these activities were sufficient to establish that Margate had “control” over the roadway. Prior case law squarely rejected plaintiff’s argument that protective police patrol over the roadway demonstrated control by the city of the county road.

Additionally, the court found that the payment by the County to Margate to remove snow and perform weekly cleaning services on Ventnor Avenue was also insufficient to establish control. The court pointed out that, although the process of snow removal and street cleaning may contribute to a deteriorated street, there was no evidence that Margate regularly inspected the condition of the street or that it was responsible for repairing the condition of the road that may have been affected by its snow removal and cleaning activities.

Further, the court stated that under N.J.S.A. 27:16-6, the County had the exclusive responsibility to keep its county roadways in repair. Last, the court noted that, just as a privately owned company that was under contract with Atlantic County to maintain Ventnor Avenue would not obtain a possessory control in the roadway to make it a concurrent owner, the same would most likely be true for another public entity.

Although this case is a federal case, it could be useful as persuasive case law in a state court Tort Claims Act matter. In many situations, a township does provide services to its county in maintaining roadways. Depending on the circumstances, this case can be used to argue that providing such services does not create liability for the township in a personal injury action filed as a result of the condition of the roadway.

Capehart Rallies to Support Church in Need

The winter of 2013-14 has been brutal and relentless, replete with driving winds, frozen streets, and massive, soot-laden snowbanks. Those who have just endured it know one thing all too well: the elements can be unforgiving. Most, however, take for granted the reassuring warmth of their homes, their workplaces, and their houses of worship.

One group of people have learned that the heat of summer and especially the cold of winter are not necessarily God-given.  This assembly of hard working residents of Camden have often witnessed misery among their neighbors and fellow churchgoers.  They gather each Sunday for a lengthy service that gives them the strength to carry on their jobs and to raise their families in what seems like a tough environment to outsiders.  What a casual observer may not glean is that this flock uses their time in church to thank the Lord, their pastor and each other for the opportunities they have, even though the opportunities might come in the form of two full-time jobs, worked back-to-back.

One day last year, the unthinkable happened.  It was something that did not cross their minds, even as they spent long hours in the service of the Lord.  One evening, some individuals that were not so charitably minded broke through the fence that offered some protection to the building and the worshippers.  They selected that building because it has what they wanted – the outdoor units of the heat pump for the winter and the compressor for the summer.  It was devastating because these individuals worked hard and provided for their families, but there was no nest egg or rainy day fund, and it turned out that there was also no insurance.  The same thoughtless individuals had also taken the same equipment from several other businesses, but these were almost immediately replaced by their business insurance.  There was little hope that that these units would be replaced within a few years, but the solace offered by their pastor and each other would be missed, like the baby teeth that left a big gap once they grew out.

One of the affected worshipers happened to be Luis Fuente, who, along with his wife Isabella, both worked a second job, employed by the company that was retained to clean the law offices of Capehart Scatchard in Mt. Laurel.

A dedicated and tireless worker, Luis arrives at the offices on weekday evenings, after completing a long shift operating a forklift at a manufacturing facility in Camden. He is widely known among attorneys and staff for his jovial attitude, bright smile, and considerable passion for Philadelphia sports; the Sixers, the Flyers, the Phillies, and especially his Eagles. He’s quick to strike up a conversation about the most recent game or news, and his eternal optimism bolsters the spirits of even the most beleaguered and jaded Philly sports fan.

One night before the punishing snow and cold weather arrived, Luis was at work doing his usual good job cleaning, when some of the attorneys that worked late noticed that Luis had lost just a little of the bounce in his step.  They told the managing partner of Capehart, who asked him if everything was all right.  Well Luis did not want to say, but eventually he relayed the troubling news of the theft. Mind you that Luis had never asked for anything before.

The next morning, the firm’s executive committee assembled and sent a firm-wide email, informing everyone of what had been learned. At the conclusion of the message, the partners of Capehart Scatchard were asked to help Luis, his family, and his Church.  Once the word got around, the younger attorneys and the entire staff went into action.  We met with the Pastor and his wife, and also the Church elders, who had developed a plan without any hope that it would ever be implemented.  The church members were going to supply all the labor, this time to install the replacement units behind a concrete and cinder block wall, with steel bars embedded so that no one else could repeat what had happened.  What they needed were two new replacement units and to hire a crane for a day to lift the equipment over the church and into the safe and sturdy cocoons around the back of the Church.

Contributions began to come in, with participation by every level of firm employee.  Seeing the outpouring, the firm agreed to match the funds and within a few weeks, we called the Pastor and the elders to our offices and surprised them by coming within a few hundred dollars of their needs.  They were so happy, and they had done some fundraising of their own, and the combined funds were sufficient to get the job, just in time before the first snowfall.

Pastor Alexy, along with his family, joined in the lobby of Capehart Scatchard’s Mount Laurel office building for a joyous ceremony to accept the oversized check in the amount of $5,352. Pastor Alexy was overjoyed and overwhelmed by the show of solidarity and support, and thanked the members of the Capehart family for their kindness, compassion, and generosity.

The next month, Reverend Vasquez and Pastor Alexy were able to purchase two HVAC units and have them installed in their church at 2512 Carman Street.  A group from the firm visited the Church and happily reported that the HVAC units are installed, operational, and surrounded by a protective apparatus aimed at barring future theft.  Luis and Isabella were so happy and they were lauded by the rest of the church members. Not much more was said, but we were all happy to see the spring back in Luis’s step, despite the bad luck that his beloved Philadelphia teams were experiencing.

Commercial Litigation Associate Voris M. Tejada, Jr. Joins Capehart

Voris M. Tejada, Jr.Mt. Laurel, NJ – – Capehart Scatchard is pleased to announce that Voris M. Tejada, Jr., Esq. recently joined the Firm’s Commercial Litigation Department in its Mt. Laurel office.

Mr. Tejada, a Marlton resident, represents clients in the areas of commercial, tort, professional liability, premises liability, employment, and insurance coverage litigation.  He received his law degree from Temple University Beasley School of Law and his B.A. degree in History from Duke University, where he was a member of its varsity wrestling team.   He is admitted to practice law in New Jersey and Pennsylvania.

Davidson v. SRI International

Trial Attorney: Thomas J. Walls, Jr., Esq.
Brief: Ana-Eliza T. Bauersachs

This matter involved a full trial on a Motion for Medical and Temporary Total Disability Benefits before Judge Wojtenko.  The petitioner sustained both a right shoulder and low back injury in a compensable accident.  He received treatment for both, but the authorized treating physician, Dr. Faisal, opined within his reports that the low back injury resolved within a few months of the injury.  The petitioner’s treatment for the shoulder continued and led to an authorized surgical procedure.  When treatment concluded for the shoulder injury, the petitioner requested additional treatment for the low back after more than a year of no documented complaints.  He obtained a report from Dr. Becan recommending an MRI and a referral to an orthopedic spine specialist.  The respondent denied the request for treatment based on the authorized treating physician’s opinion that the back injury had resolved and that any further need for treatment would not be related to the work injury.

Judge Wojtenko denied the petitioner’s Motion for Medical and Temporary Total Disability Benefits and dismissed the low back injury claim from the matter.  The petitioner’s claim for the shoulder injury remained.  Although Judge Wojtenko found the petitioner to be credible, he found him also to appear defensive and evasive upon cross-examination.  He discounted Dr. Becan’s opinion, as it was based on a one-time evaluation of the petitioner, finding it to be “speculative and flawed.”  He stated that Dr. Becan’s testimony revealed that there was no present need for treatment, as he opined that the petitioner should undergo a diagnostic test, and that depending on the results, “may” need further treatment.

Judge Wojtenko also found that Dr. Becan’s opinion was not based on facts in evidence.  Dr. Becan assumed that the petitioner had “ongoing low back complaints since his accident of October 18, 2010.”  But Judge Wojtenko noted that the medical evidence and cross-examination showed that the petitioner’s back complaints were absent for over one year.  Significantly, Judge Wojtenko noted Dr. Becan’s concession on cross examination that if a patient had a normal physical examination and a lack of complaints, he would consider the condition resolved.

Nurse Case Manager Joann Sharp’s testimony was crucial.  Judge Wojtenko found her to be a “more credible witness than the petitioner,” stating that she was “honest and forthcoming in answering all questions on direct and cross examination.”  Judge Wojtenko pointed out that Ms. Sharp testified that the petitioner began to complain of his low back after attending work hardening and his functional capacity evaluation in early 2012.  However, he found that since neither the petitioner, Dr. Becan, nor Dr. Faisal mentioned these two incidents as causing or aggravating the petitioner’s low back condition, they were of no consequence and not the cause of the present back complaints.

Judge Wojtenko further found that the petitioner failed to establish a prima facie case that he sustained a compensable low back injury.  He specifically found that the petitioner’s low back sprain, diagnosed and treated by Dr. Faisal immediately after the October 18, 2010, accident, resolved somewhere between December 23, 2010 and March 14, 2011.  He further found that the resolved low back sprain was a “minor injury and not serious enough to merit compensation.”

Are Employees That Are Injured While Working from Home Covered Under Workers’ Compensation?

By: Daniel P. Robinson, Esq.

Working from home is not a new concept.  However, technological advancements and the global economy have certainly increased the ability and demand for employees to stay connected and work remotely.  According to a report by the Bureau of Labor and Statistics published in 2010, 24% of American workers reported doing some or all of their work from home.[1] In the digital age of email, video conferencing and remote access, employees can perform work tasks nearly anywhere including planes, trains, taxis and, of course, Starbucks!  The ability of employees to work remotely offers a mutual benefit to employers and employees.  It is becoming more common for employers in a vast variety of industries to provide employees with laptops, cell phones and other equipment that allows and encourages employees to work from home in order to save money on leasing office space.  The ability of employees to work remotely also offers benefits to the employee, including the time and costs of commuting.  Another mutual benefit arises during inclement weather because employees remain productive even when they cannot get to work.

What happens when an employee is injured while working from home?  Is the injury covered under workers’ compensation?  The answer in New Jersey is, of course, “it depends.”

New Jersey has a premises rule and the leading case is Jumpp v. City of Ventnor, 177 N.J. 470 (2003).  In Jumpp, the petitioner was a pumping station operator who normally inspected sites throughout the City.  It was customary for the petitioner to take a lunch or coffee break as needed. On the date of the injury, the petitioner stopped along his route to get his personal mail from a local post office, which was on the way to the next work site he intended to inspect.  Although the petitioner’s supervisor had knowledge he was going to visit the post office during the work day and permitted this practice to occur, the petitioner’s accident was determined not to be compensable because the accident occurred during a minor deviation from the petitioner’s normal work route while getting his personal mail.  Although the petitioner in Jumpp was not working from home when the accident occurred, in its decision, the Supreme Court set out a standard for the analysis to determine compensability of off-premise injuries.  The Supreme Court held the legal analysis to be applied to an accident to an on-premises employee is the same as that for an off-premises employee.  The Court held, “Because off-premises employees may not report to a single ‘premises,’ the statute provides that they are to be compensated only for accidents occurring in the direct performance of their duties… Employees who are where they are supposed to be, doing what they are supposed to be doing, are within the course of employment whether on- or off-premises, except when they are commuting.”  Id. At 483. 

The primary issue in analyzing whether an injury is covered under workers’ compensation in New Jersey is determining whether the accident arose out of and in the course of the employment.  Under N.J.S.A. 34:15-7, an accident is compensable when it arises out of and in the course of employment.  Therefore, the determination of whether an accident that occurs while an employee is working from home is fact specific and requires a thorough analysis of where, when and how the accident occurred.

In New Jersey, there have been a number of instances in which the Court found accidents compensable when the employee was working from home and the accident occurred while the employee was in the course of employment.  In Kossack v. Town of Bloomfield, 63 N.J. Super. 332 (Law Div. 1960), a police officer was injured at home while cleaning his service gun.  The injury was found to be compensable because the police officer had a duty to keep the service revolver clean and nothing in the police regulations limited that duty to time or place.  Using the decision in Kossack, the Court in Chaverri v. Cace Trucking Incorporated, No. A-3619-07T2 (App. Div. March 26, 2010) (Unreported), found the injury that occurred while the employee was cleaning his tractor trailer at home was compensable.  The petitioner in Chaverri owned the tractor trailer and as part of the contract agreed to maintain and insure the tractor trailer. The Judge of Compensation found the petitioner was an employee, but denied the injury arose from the petitioner’s employment with the respondent.  The Appellate Court reversed the Judge of Compensation’s decision and found the injury arose from the petitioner’s employment with the respondent since maintaining the vehicle was an essential function of the job.

Most recently, in Renner v. AT&T, No. A-2393-10T3 (App.Div. June 27, 2011) (Unreported), the Court found an accident compensable that involved the death of a manager who sat at her computer for long hours while working from home to meet various deadlines imposed by AT&T.  The decedent was allowed to work from home three days per week.  AT&T provided the decedent with a laptop and speakerphone to work at home.  On September 24, 2007, the decedent began working on a project at home overnight for approximately 10 hours.  An hour after the decedent stopped working, she called 9-1-1 reporting she could not breathe.  The decedent was pronounced dead when she arrived at the hospital.  She died from a pulmonary embolism.  On appeal, AT&T argued that there was no evidence that the decedent’s work effort or strain was in excess of the wear and tear of her non-work activities or that the decedent’s work activities caused the pulmonary embolism.  On January 24, 2012, the Supreme Court of New Jersey granted AT&T’s petition for certification.  A decision has not yet been published.

In Wilkins v. Prudential Insurance and Financial Services, 338 N.J. Super. 587 (App. Div. 2001), the petitioner was an insurance salesman who essentially worked from home.  He went to the Prudential office two days per week for meetings and met clients at their homes.  The petitioner was injured in the parking lot (not owned by Prudential) while leaving the Prudential office.  The Appellate Division held the petitioner’s conventional place of employment was his home and the accident was compensable because the petitioner was engaged in a special mission while at the Prudential office.  Although, the accident in Wilkins did not occur while he was working at his home office, the decision is significant since the Appellate Division recognized petitioner’s home as the conventional place of employment.

Although the above cases have by no means established a clear-cut rule, it appears that the trend in New Jersey is that accidents that occur while an employee is working from home are subject to the same legal standards that apply when an employee is injured in the office.  For instance, if an employee is working from home and trips over a work file on the floor, the accident will likely be found compensable.  By way of comparison, if an employee working from home is injured while unloading clothes from the washer, that injury is not compensable since the laundry work is purely personal and unrelated to the employment.  However, if a teacher injures their back while carrying a briefcase up the stairs at their home, is the accident covered under workers’ compensation?  What if the teacher testifies that there were textbooks in the briefcase and the teacher planned to prepare for the next day’s lecture?  We await the Court’s decision.

As illustrated by the above-hypothetical, practical issues arise when an employee is injured while working from home.  There will not be any co-employee witnesses nor video surveillance of the accident. The majority of at home accidents will be unwitnessed.  Therefore, the compensability of the accident will come down to the facts and credibility of the injured employee.  Since the number of employees working from home continues to increase, here are some suggestions for employers:

  1. Limit the parameters of the ability of employees to work from home by placing restrictions on the specific locations that they are permitted to work in their home.  For example, an employer can state that employees are only permitted to work from home in their 10×10 home office.
  2. Limit the number of hours an employee is permitted to work at home.  For example, employees are only allowed to work from home between the hours of 9:00 a.m. and 5:00 p.m.

[1]  See American Time Use Survey—2010 Results, USDL-11-0919

(U.S. Bureau of Labor Statistics, June 22, 2011).