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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2496-06T22496-06T2
JOHN A. ALBRIGHT and
DANIELA M. ALBRIGHT,
Plaintiffs-Appellants,
v.
SCOTT M. DUNCAN, JR. and
DONNA P. DUNCAN,
Defendants-Respondents.
Submitted: July 5, 2007 - Decided July 24, 2007
Before Judges Skillman and King.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Small
Claims Division, Hunterdon County, Docket No. SC-406-06.
John A. Albright, appellant pro se.
George J. Benson, attorney for respondents.
PER CURIAM
This is an appeal from the dismissal of an action in the Small Claims Division by house buyers against the sellers. The
buyers claimed the sellers failed to remove asbestos pipe covering in the basement, as allegedly promised. This
eventually cost the buyers $2200 to remediate. Plaintiffs make a single claim of error on this appeal.
THE COURT BELOW COMMITTED REVERSIBLE ERROR WHEN IT IMPROPERLY EXCLUDED
EVIDENCE IN A SMALL CLAIMS ACTION ON HEARSAY GROUNDS.
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a2496-06.opn.html
Plaintiffs claim that the trial judge improperly ruled against the admissibility of hearsay evidence _ especially
the invoice of the asbestos abatement contractor and the asbestos waste shipment record _ under the principles
set forth in Penbara v. Straczynski, 347 N.J. Super. 155, 162-63 (App. Div. 2002). In relevant part, Penbara states:
The rules of evidence may be relaxed "to admit relevant and trustworthy evidence in
the interest of justice" in actions within the cognizance of the Small Claims Section of
the Special Civil Part. N.J.R.E. 101(a)(2)(A). Hence, the fact that hearsay evidence is
proffered does not automatically require its exclusion. The test is relevance and
trustworthiness.
Because this was basically a Small Claims type claim, the judge was required to consider
the evidence and make a determination of its admissibility based on its trustworthiness
and probative value. The failure to do so constitutes reversible error.
[347 N.J. Super. at 162-63.]
Plaintiffs here argue that the invoice from the asbestos abatement contractor, the waste shipment record, and
several other estimates, should have been admitted to show that the basement pipes were covered with seventy
feet of asbestos, that the seller did not remove the asbestos as promised, and the reasonable costs of removal.
Notwithstanding the relatively small amount involved here for the asbestos removal, the issues were reasonably
complex. Certain documents offered by defendant were admitted without formal proof. The judge dismissed the
case because plaintiffs failed to carry their burden of proof.
We conclude that the judge erred in flatly rejecting plaintiffs' offer of proof on hearsay grounds. The judge should
have considered the evidence and made a determination of its admissibility based on "trustworthiness and
probative value." Id. at 163. See Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 101(a)(2)(A). We
remand to the trial judge for reconsideration of his evidentiary ruling, a blanket exclusion on hearsay grounds, in the
context of the other proofs in the case.
We remand for reconsideration on the merits in light of our opinion. We retain jurisdiction. We suggest that the
judge consider reargument on the point and provide us with a concise written opinion upon his reconsideration of
the hearsay point and of his final decision after reconsideration. This remand shall be completed by September 7,
2007.
Remanded.
(continued)
(continued)
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a2496-06.opn.html
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A-2496-06T2
July 24, 2007
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