Bergen County Sewer Authority v. Borough of Bergenfield

• Decision Date: 17 May 1976
• Citation: 361 A.2d 621,142 N.J.Super. 438
• Parties: BERGEN COUNTY SEWER AUTHORITY, Plaintiff, v. BOROUGH OF BERGENFIELD, et al., Defendants.
• Court: New Jersey Superior Court

Page 438

142 N.J.Super. 438

361 A.2d 621

BERGEN COUNTY SEWER AUTHORITY, Plaintiff, v. BOROUGH OF BERGENFIELD, et al., Defendants.

Superior Court of New Jersey Law Division.

May 17, 1976.

Stephen J. Moses, Hackensack, for plaintiff

Morton R. Covitz, Englewood, for defendant Borough of Bergenfield (Greenberg & Covitz, Englewood, attorneys).

Frederick L. Bernstein, Hackensack, for defendant Borough of Hillsdale (Wittman, Anzalone, Bernstein & Dunn, Hackensack, attorneys).

Jacob Schneider, Teaneck, for defendants Tp. of Teaneck, Boroughs of Cresskill and Westwood (Schneider, Schneider & Behr, Teaneck, attorneys).

Martin T. Durkin, Ridgefield Park, for defendants Borough of Ridgefield Park and Tp. of South Hackensack (Durkin & Foerst, Ridgefield Park, attorneys).

Dennis J. Oury, Wallington, for defendant Borough of Ridgefield (Joseph R. Mariniello, Fort Lee, attorney).

Robert B. Lichtenstein, Hackensack, for defendant Borough of River Vale (Gladstone, Hart, Mandis, Rathe & Shedd, Hackensack, attorneys).

Armand Pohan, Newark, for defendant Borough of Fort Lee (McCarter & English, Newark, attorneys).

[361 A.2d 623] Francis J. De Vito, Hackensack, for defendants Borough of Norwood and Northern Valley Communities.

Donald W. de Cordova, Hackensack, for defendant Borough of Tenafly (Morrison & Griggs, Hackensack, attorneys).

Melvin R. Solomon, Hackensack, for defendant Borough of River Edge (Ned J. Parsekian, Hackensack, attorney).

Ralph W. Chandless, Hackensack, for defendant Borough of Hasbrouck Heights (Chandless, Weller & Kramer, Hackensack, attorneys).

Jerrold R. McDowell, Hackensack, for defendant Borough of Harrington Park (Winne & Banta, Hackensack, attorneys).

Thomas J. Viggiano, Hackensack, for defendant Borough of Dumont (Michael J. Breslin, Jr., Hackensack, attorney).

Arthur J. Lesemann, Hackensack, for defendants City of Englewood, Borough of Maywood, Borough of Paramus and Borough of Leonia (Mazer & Lesemann, Hackensack, attorneys).

TRAUTWEIN, A.J.S.C.

This proceeding is the final phase of a long and oftentimes bitterly contested controversy between the Bergen County Sewer Authority (Authority) and its constituent municipal corporations. The court has before it today eight separate applications for the allowance of counsel fees brought on behalf of individual attorneys and on behalf of various municipalities. The underlying rationale for these applications is that the various applicants contributed to bringing 2 1/2 years of litigation to a favorable settlement for all parties. In order to intelligently decide the issues presented by these applications reference must be made to prior litigation between many of the parties and to the main case which has generated the instant applications.

The genesis of the instant action may be traced to the case of Ceva v. River Vale Tp., 119 N.J.Super. 593, 293 A.2d 203 (App.Div.1972), aff'd 62 N.J. 245, 300 A.2d 151 (1973). Ceva was an action by four taxpayers of the Township of River Vale which challenged the legality of cost-of-construction and service-to-the-municipality base charge imposed by the Bergen Although sharply opposed and still debated bated today, the Per curiam decision of the Supreme Court, decided on February 7, 1973, required the Authority to abandon its attempt to impose the base charge upon the so-called Northern Valley towns (River Vale, Norwood, Northvale, Haworth, Harrington Park, Demarest and Closter). This decision precipitated the present action. The instant suit was instituted by the Authority against the various municipalities constituting membership in the Authority. The complaint sought a declaratory judgment (1) approving the Authority's 1973 rate schedule, (2) determining the liability, if any, of the Authority to certain of its members for payments of now-illegal base charges made in prior years, and (3) reformation of a service agreement between the Authority and several member municipalities known as the Northern Valley agreement.

County Sewer Authority upon municipalities entering and participating in the sewerage system. The Appellate Division held--and was affirmed by the Supreme Court--that the only kind of general charge for service to a municipality by the Authority expressly provided by statute is calculated on the basis of 'rate times flow', I.e., the gross gallonage of sewage placed into the system by the municipality multiplied by a uniform system-wide rate per gallonage unit (generally per million gallons). 119 N.J.Super. at 599, 293 A.2d 203.

After the action was commenced numerous defendant-municipalities filed answers, cross-claims, counterclaims and separate defenses. The case mushroomed into what appeared to be an unmanageable and ultra-complex piece of litigation. In response to the approaching chaos, this court conducted a special pretrial conference on January 29, 1974. At the conference the court personally observed over 40 attorneys attempting to sort out the issues in the case and attempting to present arguments on behalf of their clients. The court felt that it was unprofessional, inappropriate and uneconomical to conduct this case in such a circus-like atmosphere.

Therefore, the court ordered that the number of briefs and attorneys be limited to five. This number was logically sound because it contemplated that a single attorney would represent the Authority, the Northern Valley towns, the Southern towns, the Pascack Valley towns, and the Miscellaneous towns. The constituency of these various classes is the following:

                NORTHERN
                VALLEY           PASCACK VALLEY       SOUTHERN           MISC
                ---------------  -------------------  -----------------  ---------
                Closter          Hillsdale            Bergenfield        Teaneck
                Norwood          Montvale             Bogota             Westwood
                Demarest         Park Ridge           Carlstadt          Cresskill
                River Vale       Washington Township  Cliffside Park
                Haworth          Woodcliff Lake       Cresskill
                Harrington Park  River Vale           Demarest
                Northvale                             Dumont
                                                      East Rutherford
                                                      Englewood
                                                      Englewood Cliffs
                                                      Fairview
                                                      Fort Lee
                                                      Hackensack
                                                      Hasbrouck Heights
                                                      Leonia
                                                      Little Ferry
                                                      Maywood
                                                      Moonachie
                                                      New Milford
                                                      Oradell
                                                      Palisades Park
                                                      Paramus
                                                      Ridgefield
                                                      Ridgefield Park
                                                      River Edge
                                                      Rochelle Park
                                                      South Hackensack
                                                      Teaneck
                                                      Tenafly
                                                      Teterboro
                                                      Westwood
                

Also decided at the pretrial conference was a procedure for the disposition of various aspects of the case. The court amended the first and second counts of the complaint to permit a review of the Authority's 1974 (rather than 1973) rate schedule. The court condensed and redesignated the third count of the complaint to reflect a prayer that the Authority sought to reform existing contracts between itself and its members which contained any charges other than 'rate times flow.' The court further decided to stay all discovery and severed all claims unrelated to the Ceva decision. It ordered that various motions--all basically addressed to the sufficiency of the complaint and to the propriety of a summary judgment on the question whether refunds were due any municipalities as a result of Ceva--would be expeditiously briefed and argued.

The case was assigned to Judge O'Brien--then sitting in Bergen County--and he controlled the procedure of the case until the Summer of 1975.

It is clear from a letter sent to all attorneys by Judge O'Brien on June 6, 1974 that as early as April 19, 1974 he had recognized the following spokesmen-attorneys for the various classes of communities:

(1) Francis De Vito, Esq., representing the Northern Valley Towns.

(2) Frederick Bernstein, Esq. representing the Pascack Valley Towns.

(3) Martin Durkin, Esq. representing the Southern Towns.

(4) Jacob Schneider, Esq. representing Teaneck, Westwood and Cresskill.

At some point in time Martin Durkin made arrangements with Morton Covitz, Esq., to assist him in presenting the position of the Southern towns. Covitz' representation apparently met no resistance and it became accepted as a matter of course by the court and by his client-municipalities.

Throughout the latter half of 1974, the spokesmen-attorneys endeavored to present and to argue the Ceva-related As a result of this decision it became necessary to decide the following issues: (1) the amount of the refund to which the Pascack Valley towns were entitled; (2) the method of payment of the refunds; (3) whether the Northern Valley towns--which were not members of the Authority at the time the Pascack Valley towns paid the base charge under a mistake of law--should be obligated to participate in the restitution.

issues before Judge O'Brien. On or about January 24, 1975 Judge O'Brien ruled on these issues. He upheld the validity of all existing contracts between the Authority and its members; he held that the base charge provisions in the contracts were void; he denied the claim of unjust enrichment presented by the Southern towns and he allowed the Pascack Valley towns to recover refunds for payments made in excess of the 'rate times flow' formula. Furthe...