Wall v. Demberger
| Decision Date | 14 June 1963 |
| Docket Number | No. 42565,42565 |
| Citation | 79 N.J.Super. 538,192 A.2d 194 |
| Parties | James L. WALL, Plaintiff, v. Harry L. DEMBERGER, Defendant, Third-party Plaintiff, v. Charles FARENKOPF and Thomas J. Tomasco, Third-party Defendants. |
| Court | New Jersey County Court |
William M. Rosenblatt, Camden, for third-party plaintiff (Kisselman, Devine, Deighan & Montano, Camden, attorneys).
Alex. P. Schueneman, 3rd, Camden, for third-party defendants.
BROWN, R.C., J.C.C.
This matter comes before the court on a motion on behalf of the third-party defendant Thomas J. Tomasco to set aside service of process which had been effected through service on the Director of the Division of Motor Vehicles pursuant to the provisions set forth in R.S. 39:7--1 et seq., N.J.S.A., relating to service of process upon nonresidents.
The essential facts necessary to decide this motion are not disputed. On May 8, 1962, at approximately 5 P.M., a four-car collision occurred at or near the Passyunk Avenue entrance to an approach to the Walt Whitman Bridge, in Philadelphia, Pa. This bridge connects Philadelphia with Gloucester City, N.J.
As a result of the accident James L. Wall of Bellmawr, N.J., brought suit in Camden County Court against Harry L. Demberger of Stratford, also Camden County, New Jersey. Subsequently, defendant Demberger filed a third-party complaint against the defendants Charles Farenkopf and Thomas J. Tomasco seeking contribution under the New Jersey Joint Tortfeasors Act. Third-party defendant Tomasco resides at 2337 South Rosewood Street, Philadelphia.
The Passyunk Avenue approach, the situs of the accident, is on the Pennsylvania side of the Delaware River at a point approximately 1 1/2 miles west of the toll gate for the bridge. The toll gate is located at the base of the bridge on the Pennsylvania side, approximately four blocks west of the westerly shore of the river.
Since service on out-of-state residents is a statutory remedy, the provisions of the statute must be satisfied before the service of process is valid and binding. N.J.S.A. 39:7--2 provides, Inter alia, that the Director of Motor Vehicles is deemed to be the agent for service of process on any person who operates a motor vehicle 'upon any public highway Of this State' in actions 'arising out of or by reason of any accident or collision occurring Within this State.' (Emphasis added.)
The fact that the third-party defendant is domiciled in Pennsylvania and the accident occurred over 1 1/2 miles west of the western shoreline of the Delaware River would ordinarily dispose in the negative the issue of service of process through the nonresident statute, since N.J.S.A. 39:7--2 requires that the accident occur 'within this state.' Counsel for the third-party plaintiff ably argues, however, that the State of New Jersey and the Commonwealth of Pennsylvania have merged a portion of their sovereignty by the creation of the Delaware River Port Authority, which operates and maintains the bridge and its approaches pursuant to R.S. 32:3--1 et seq., N.J.S.A.
N.J.S.A. 32:3--2 provides that the bridge and its approaches are Owned jointly by the two states. It is contended by the third-party plaintiff, therefore, that the jurisdiction of New Jersey extends into the territory of Pennsylvania, coextensive with the bridge and its approaches, and thereby these roadways become by implication and incorporation 'public highways of his state' so that the requirements of N.J.S.A. 39:7--2 are satisfied. Thus, counsel argues that an overlapping of sovereignty has occurred.
There is no dispute over the validity of the compact between New Jersey and Pennsylvania, which, with the approval of the United States Congress, established the Delaware River Joint Commission, subsequently changed to the Delaware River Port Authority.
The narrow question before this court, therefore, is whether or not an accident which occurs at the Passyunk Avenue approach to the Walt Whitman Bridge in Philadelphia is one which occurs 'within this state,' so that service of process through the 'service of process upon nonresidents' statute, R.S. 39:7--1 et seq., N.J.S.A., is valid and binding.
It is fundamental that service through such a statute is in derogation of the common law and must be closely scrutinized in order to fulfill the federal due process of law requirements.
The issue at bar is not specifically covered either under R.S. 39:7--1 et seq., N.J.S.A., relating to nonresident service of process, or under R.S. 32:3--1 et seq., N.J.S.A., relating to the creation and power of the Delaware River Port Authority. Nor do any of the cases interpreting either of these statutes solve the problem explicitly.
Historically, the original 13 American colonies, and subsequently the states of the United States of America, have been reluctant to surrender any more sovereignty than the exigencies of a particular situation require. This reluctance to surrender sovereignty is exemplified in the Tenth Amendment to the United States Constitution: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'
It would seem most reasonable, therefore, that if New Jersey had desired to construe the bridge approach on the Pennsylvania side of the Walt Whitman Bridge as 'public highways of this state' for the purpose of the nonresident statute for service of process, it would have explicitly stated so, either under R.S. 39:7--1 et seq., N.J.S.A., or R.S. 32:3--1 et seq., N.J.S.A. The fact that such express legislation pertaining to service of process was not established demonstrates the withholding of such sovereignty from the Port Authority and the retention of the inherent sovereignty to the State.
Assuming, Arguendo, that the bridge approach on the Pennsylvania side could be construed as a highway 'of the State of New Jersey,' N.J.S.A. 39:7--2 requires that the accident or collision 'occur Within this State.' (Emphasis added) No cogent argument could possibly be made that an accident which occurs over 1 1/2 miles west of the western shore of the Delaware River is 'within' the State of New Jersey.
It is argued that in criminal causes, both states exercise concurrent jurisdiction over the bridge and its approaches, and therefore the exercise of concurrent civil jurisdiction would not offend either state. The fact is, however, that the concurrent exercise of criminal jurisdiction is explicitly granted by N.J.S.A. 32:4--6 and is part and parcel of the interstate compact. In light of this specific grant of power it would seem most probable that if both states intended to extend this jurisdictional power to civil causes, it would have been expressly...
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West v. Walker
...bridge or its approaches which lie physically within the geographic boundaries of the State of Pennsylvania. Cf. Wall v. Demberger, 79 N.J.Super. 538, 192 A.2d 194 (Cty.Ct.1963). We are not unmindful of the admonishment that the legislation establishing and regulating the Unsatisfied Claim ......