matclone

RYou: That's the crux of the issue, there is no law that controls the direction. Typical of New Jersey, the judges here set the law.

You're wrong. They tell you the basis for their decision as follows:

This court's decision in Bruns v. Mattocks, 6 N.J. Super.
174, 176-77 (App. Div.), certif. denied, 4 N.J. 456 (1950),
required the trial court to grant restitution to the extent...

That is the law in the state of New Jersey, whether you think it's fair or not. They also cite the Reinstatment of Law, which means the basis for their decision is a well established principle in law, notwithstanding what happened in Calif.

pm01

matclone, I believe RYou posted their reasoning thereafter as:

Whether I like the ultimate outcome or not I understand it and can accept it.

Since this is New Jersey, any California case is irrelevant and has no standing.

pm01

What I don't really understand and probably need to reread the decision and think more about is this:

There are usually time limits that control when suits can be brought about for certain actions. If the time limit (something like a statute of limitation) was not expired and the court accepted the civil suit, then it must be a presumption under those guidelines that a fair trial could be accomplished. This recent decision must be somewhat of a landmark case because it seems to me it might require a change in court procedure insofar as filing guidelines.

What are your thoughts?

matclone

My objection was to RYou's claim that the judges made up something outside the law. That objection remains.

But, it appears I didn't read it as carefully as you, PM. There are a couple of things going on.

As we know, 40 years after the murder, Zarinsky was tried and acquitted in the murder of Bernoskie in criminal court. Mrs. Beronskie then filed a civil suit (wrongful death claim) against Zarinsky and won in the trial court.

1. The actual NJ case that overturned the trial court was in 2006 (Bernoskie, 383 N.J. Super. 127)--you may be able to pull it up from NJ's website.

Here's what happened (and this is not very clear from the decision from the recent case linked above), and this gets to your question: there's a two-year statute of limitations in NJ for a wrongful death claim. There is an exception, however, "if the wrongdoer has concealed his identity, thereby preventing the injured party from bringing suit within the limitations period". The trial court accepted Mrs. Bernoskie's argument that this exception applied (reasoning: the alleged murder and Zarinsky's subsequent efforts to avoid detection and apprehension). The Appeals Court disagreed. Basically, they said, after 40 years, he can't fairly defend himself in the civil trial--witnesses are dead, evidence is destroyed etc. They were persuaded by the fact he was acquitted in criminal court. Therefore, the judgement was set aside based on their finding that there was not an exception to the two year statute of limitations in this case.

Interestingly, NJ added an additional exception to the statute of limits in 2000, where the death results from murder (perhaps because of this case--the evidence implicating Zarinsky surfaced in 1999). But this case was filed before the change in statute.

2. After the trial court's ruling, T Rowe price gave over to Mrs. Bernoskie, a $150,000 bond owned by Zarinsky. But after the judgment was set aside, the issue was whether Mrs. Bernoskie (and her lawyer) had to give the money back. That's what the recent case is about. The court said, yes, she has to give it back, otherwise she would be unjustly enriched.

pm01

Hey thanks matclone! I can be "Thick as a Brick" sometimes! I do better understand it all and that was my original goal. Thanks again.

matclone

Nothing thick at all, PM. You obviously are very well versed in the principles and operation of law.

RYou

"My objection was to RYou's claim that the judges made up something outside the law. That objection remains."

The judges out here are as lame as the come; hence the assumption this was just another case where they opted to create rather than interpret.

When I posted the blub from the written decison, I kinda recognized they was some factual basis for this decision.

Still it's a stinky decision. I doubt Mrs. Bernoskie will have any success getting up to the hardasses in the state supreme court.

However, I can tell you she will not lose her home. Too much money in these parts and plenty of people willing to part with it for situations like this.

As you read through, the attorneys shared over 33% of the $150,000. I sense this was on a contingency basis and therefore with the loss, I would presume the attorneys have to ante up their take. If so, Mrs. Bernoskie will only need to find $100,000.