Board of Trustees of Bergen Community College v. J.P. Fyfe, Inc.

• Decision Date: 07 October 1982
• Parties: , 9 Ed. Law Rep. 957, 36 UCC Rep.Serv. 180 BOARD OF TRUSTEES OF BERGEN COMMUNITY COLLEGE, Plaintiff, v. J.P. FYFE, INC., John Delage, the Celotex Corporation, GAF Corporation and Commercial Union Insurance Company, Defendants. GAF CORPORATION and Commercial Union Insurance Company, Defendants and Third- Party Plaintiffs, v. GLENWAL CONSTRUCTION COMPANY, Frank Grad & Son, the Upjohn Company and John Doe, a fictitious name, Third-Party Defendants.
• Court: New Jersey Superior Court

Page 288

188 N.J.Super. 288

457 A.2d 83, 9 Ed. Law Rep. 957, 36

UCC Rep.Serv. 180

BOARD OF TRUSTEES OF BERGEN COMMUNITY COLLEGE, Plaintiff, v. J.P. FYFE, INC., John Delage, the Celotex Corporation, GAF

Corporation and Commercial Union Insurance

Company, Defendants.

GAF CORPORATION and Commercial Union Insurance Company, Defendants and Third- Party Plaintiffs, v. GLENWAL CONSTRUCTION COMPANY, Frank Grad & Son, the Upjohn

Company and John Doe, a fictitious name,

Third-Party Defendants.

Superior Court of New Jersey, Law Division,

Bergen County.

Argued July 16, 1982.

Decided Oct. 7, 1982.

Rosen, Gelman & Weiss, Newark, for plaintiff, Bd. of Trustees of Bergen Community College (William C. Slattery and Jill E. Haley, Newark, of counsel).

Bright & Zirulnik, Short Hills, for defendants J.P. Fyfe, Inc. and John Delage (Edward J. Nesselquist, Fort Lee, of counsel).

Milton, Keane & Brady, Jersey City, for defendant The Celotex Corp. (Thomas J. Brady, Jersey City, of counsel).

Hannoch, Weisman, Stern, Besser, Berkowitz & Kinney, Newark, for defendants and third-party plaintiffs GAF Corp. and Commercial Union Ins. Co. (Bart J. Klein, Newark, of counsel).

Shannon Zachary Taylor, Paramus, for third-party defendant Glenwal Const. Co.

Morton Stavis, Hoboken, for third-party defendant Frank Grad & Son (Neil Mullin, Hoboken, of counsel).

Lum, Biunno & Tompkins, Newark, for third-party defendant The Upjohn Co. (Dennis J. Drasco, Newark, of counsel).

YANOFF, J.S.C. (retired, on recall).

By cross-motions for summary judgment the parties raise issues which may completely determine this litigation. The precise issues are whether the doctrine of nullum tempus occurrit regi ("time [the Statute of Limitations] does not run against the king") is applicable to a county college, and which statute of limitations controls.

Plaintiff is a county college organized under N.J.S.A. 18A:64A-1 et seq. The statute provides that it may sue and be sued. N.J.S.A. 18A:64A-12 c. Such colleges are entities independent of county government. Mercer Cty. Commun. College Trustees v. Sypek, 160 N.J.Super. 452, 390 A.2d 629 (App.Div.1978), certif. den. 78 N.J. 327, 395 A.2d 196 (1978).

Under date of July 9, 1969 plaintiff entered into a contract with Glenwal Construction Company under which Glenwal agreed as general contractor to build the Bergen Community College buildings. Glenwal engaged J.P. Fyfe, Inc. to construct the built-up roofs on the college buildings. Problems arose with the roofs and plaintiff instituted suit against Glenwal and others which ended in settlement, payment of a substantial sum of money to plaintiff, and entry of an order of dismissal on June 21, 1977.

Not made parties in that case were the defendants in this case. Fyfe is now sued because it actually constructed the roof. John Delage is joined as a successor to the assets of Fyfe. The Celotex Corporation--and by amendment, The Upjohn Company--were joined as suppliers of materials. Summary judgment on other grounds has been granted as to The Celotex Corporation. Sued as a supplier of materials and as the issuer of a bond on the roof was defendant GAF Corporation (GAF). Commercial Union Insurance Company was joined as surety for GAF.

Defendants, by third-party action, made third-party defendants entities, which had been joined in the first action: Glenwal, Frank Grad & Sons, the architect, and John Doe, a fictitious name.

It is clear from the papers that plaintiff complained about the roof before the end of 1975, and that the 1977 settlement disposed of at least some of the issues arising from these complaints. Beyond this conclusion I need not go because it is not necessary to decide now whether plaintiff is barred by reason of that settlement as to the entities who were then direct defendants and now have been joined as third-party defendants, or whether the present allegations as to defects in the roof are concluded by reason of collateral estoppel or some aspect of the doctrine of res judicata. This is so because counsel have agreed that if I determine that a statute of limitations is applicable to this proceeding, plaintiff's cause of action fails.

In the first brief plaintiff states:

Plaintiff will assume, for the purposes of this motion only, that the applicable Statutes of Limitations had run at the time that it instituted the present action.

At oral argument counsel agreed that if it were determined that plaintiff was not immune from the bar of the statute of limitations, the litigation would be completed. I am not certain that this agreement was providently made in its entirety, because counsel for parties who are sued as providers of materials, rather than as those who performed services, urge that the four-year statute of limitations in N.J.S.A. 12A:2-725(1) of the Uniform Commercial Code, and not the six-year statute in N.J.S.A. 2A:14-1, controls, suggesting that if the six-year statute is applicable, there may be a fact question as to when the cause of action arose.

On this question Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973), especially when considered together with Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965), and Rosenau v. New Brunswick, 51 N.J. 130, 238 A.2d 169 (1968), is dispositive. The proponents of the thesis that the four-year statute, rather than the six-year statute, controls, argue that Heavner is and should be limited to cases involving consumer transactions, and that the case at bar is a mercantile transaction. Heavner did involve what could be characterized as a "consumer transaction." However, I do not view the law laid down in that case with respect to the statute of limitations as limited to seller-consumer situations. A decisive fact in that case is that both the immediate seller and the manufacturer were parties-defendants. The claim against the manufacturer rested, to use Justice Hall's language in discussing Santor, "not on any contractual basis, but on a breach of duty with consequential injury." 63 N.J. at 149, 305 A.2d 412. The court in Heavner was troubled by the possibility of applying different statutes of limitation to the retailer and the manufacturer when made parties defendant. As to this, Justice Hall said:

The upshot of the Code approach, if its provisions are to apply only, as the statutory language and comments dictate, to a limited class of consumer-user consequential damage actions against a retailer and case law is to govern as to other such actions and suits against manufacturers or others preceding the ultimate seller in the distributive chain, is one set of substantive rules for the first category of actions and another more liberal set for the second. This makes no sense and is unjust to the claimant, who in many instances may be able to obtain jurisdiction only over the ultimate seller and not over the manufacturer. And it would, of course, be most awkward and confusing when, as here, the manufacturer and retailer are both sued in the same action. We cannot attribute any such intention to the Legislature when it adopted the Code. [at 155, 305 A.2d 412]

The ruling was, therefore, as stated by Justice Hall:

We consequently further hold that N.J.S.A. 12A:2-725 does not apply to strict liability in tort actions for consequential personal injury and property damage against the ultimate seller or supplier and that such actions are governed, like those against a manufacturer, by our general statutes of limitation. [at 157, 305 A.2d 412]

In a footnote (at 157, n. 16, 305 A.2d 412) the Justice added: "We do not reach the question whether N.J.S.A. 12A:2-725 applies to actions merely for loss-of-the-bargain or economic damage in the commercial sense." I deduce from this that the statute of limitations in N.J.S.A. 2A:14-1 applies in all cases in suits against the manufacturer on the theory of strict liability in tort, and that N.J.S.A. 12A:2-725 may apply in actions by user against seller in "loss-of-the-bargain or economic damage in the commercial sense" situation.

For an analysis similar to this, see "Products Liability," 6 Rutgers-Camden L.J. 203 (1974-1975); "1973 N.J. Supreme Court Term," 27 Rutgers L.Rev. 465, 486 (1974).

In the case at hand the suit is not between user and seller, but between user and the roofer who actually built the roof under subcontract with the general contractor and the suppliers of materials to the roofer. The fact pattern is, therefore, precisely that of the manufacturer-defendant in Heavner and in Santor. Plaintiff complaint sounds in negligence, breach of warranty and strict liability in tort. All are tort causes of action and the statute of limitations, N.J.S.A. 2A:14-1, applies to "any tortious injury." It follows that the six-year statute controls.

I turn now to plaintiff's contention that the rule of nullum tempus bars use of the statute of limitations.

I conclude the argument is unsound; first, because historically nullum tempus did not apply and does not to an entity such as a county college; second, because even if it did, it may not be invoked where plaintiff sues in a proprietary, rather than public capacity.

The doctrine exempting a public body from the bar of the statute of limitations originated "as one of the royal prerogatives, justified on the ground that the king was too busy looking after the welfare of his subjects to sue." "Developments--Statutes of Limitations," 63 Harv.L.Rev. 1177, 1251. As derivative from the concept of sovereignty, it is related to the doctrine of sovereign immunity which exempts an entity from suit. As a matter of logic it would seem that an entity which is not protected from suit by sovereign immunity would also not be entitled to benefit from nullum tempus. Nevertheless, the doctrine seems to have had an identity of its own, so that it has been invoked by public entities, not in all cases immune from suit. Jersey City v. Hall, 79 N.J.L. 559, 76 A. 1058 (E. & A.1910); Schultz v. Wilson, 44...