SAMUEL P. ALLOWAY, III, AND NEW HAMPSHIRE INSURANCE CO., PLAINTIFFS-RESPONDENTS, v. GENERAL MARINE INDUSTRIES, L.P., DEFENDANT-APPELLANT, AND MULLICA RIVER BOAT BASIN, DEFENDANT.
Supreme Court of New Jersey
Argued November 18, 1996-Decided June 30, 1997
695 A.2d 264
The Appellate Division‘s judgment is affirmed.
For affirmance-Chief Justice PORITZ, and Justices HANDLER, POLLOCK, O‘HERN, GARIBALDI, STEIN and COLEMAN-7.
Opposed-None.
Sanford F. Schmidt and Edward A. Penberthy argued the cause for respondents (Brandt Haughey Penberthy Lewis & Hyland, attorneys for Samuel P. Alloway, III, and Mr. Schmidt, attorney for New Hampshire Insurance Co.; Suzanne E. Bragg, on the brief).
The opinion of the Court was delivered by
POLLOCK, J.
The primary issue is whether New Hampshire Insurance Co. (“New Hampshire“) and its insured, Samuel P. Alloway III (“Alloway“) (jointly described as “plaintiffs“) may recover from General
Allegedly because of a defective seam in the swimming platform, water seeped into the boat, which sank while docked. New Hampshire paid Alloway under the policy. Alloway then subrogated New Hampshire to his rights, subject to Alloway‘s claim for the deductible portion of his loss.
Plaintiffs instituted this action to recover for their respective economic losses. The Law Division granted GMI‘s motion to dismiss, holding that plaintiffs could not recover for economic loss resulting from damage to the boat itself. It held that plaintiffs’ only claim was for breach-of-warranty under the
I.
From the limited record, the following facts emerge. In October 1989, Glasstream filed a voluntary petition in bankruptcy. Five months later, the Bankruptcy Court directed Glasstream to sell substantially all of its assets to GMI “free and clear of any interest in such property.” At some unspecified time, Glasstream made the boat and sold it to Mullica.
Three months later, while docked at the Bayview Marina in Manahawkin, New Jersey, the Grande sank. No other property was damaged, and no one sustained personal injuries.
Alloway filed a claim with New Hampshire, which spent $40,106.63 to repair the boat. Alloway, who had a $2,500 deductible under the policy, paid $2,490 towards the repairs. After completion of the repairs, he received a trade-in credit of $38,770 for the Grande on the purchase of a new boat.
Thereafter, Alloway filed a three-count complaint against Mullica and GMI, seeking recovery for his economic loss. In count one, Alloway sought to recover for Mullica‘s breach of “the manufacturer‘s warranty” for “repair or replacement of any part found to be defective.” Count two alleged a strict-liability claim asserting that Century had manufactured a defective boat for which GMI was liable as Century‘s successor. Count three alleged that Glasstream, “negligently manufactured and inspected the boat,” that GMI was liable to Century‘s successor, and that Mullica had failed to discover the defect.
Alloway then assigned his claims to New Hampshire, but retained a claim for the loss in value of the boat. He sought the $2,490 he had paid towards the repair of the boat, “[t]he difference in value between the price paid for the boat and the market value of the boat in its defective condition,” attorneys’ fees, and costs. Thereafter, plaintiffs filed an amended complaint asserting, in addition to Alloway‘s original claims, New Hampshire‘s claim for the cost of repairs.
The Law Division granted GMI‘s motion to dismiss for failure to state a cause of action. It relied on Spring Motors Distribs. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660 (1985), which held that a purchaser could not maintain an action in strict liability for economic loss. It also relied on D‘Angelo v. Miller Yacht Sales, 261 N.J.Super. 683, 619 A.2d 689 (1993), in which the Appellate Division held that a consumer who had purchased a yacht that was not as represented could sue the manufacturer under the
Because Mullica‘s insurer was insolvent, New Hampshire dismissed its subrogation claim against Mullica. See
The Appellate Division reversed, relying on Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965), which recognized that a consumer could maintain a strict-liability claim against a manufacturer for loss of value of a defective carpet. According to the Appellate Division, Spring Motors precluded a
The Appellate Division also concluded that plaintiffs could recover against GMI as the successor to Glasstream. The court relied on Ramirez v. Amsted Industries, Inc., 86 N.J. 332, 431 A.2d 811 (1981), which permitted a worker who was injured by a defective power press to maintain a strict-liability action against a defendant that had purchased the assets of the manufacturer of the press. According to the Appellate Division, the right to recover in strict liability against a successor owner should not depend on whether the recovery was for personal injuries or economic loss. 288 N.J.Super. at 490-91, 672 A.2d 1177. In addition, the court reasoned that the Bankruptcy Court‘s sale of the boat “free and clear of any interest in [the boat]” did not extend to lawsuits and, therefore, did not bar the instant action. Id. at 493, 672 A.2d 1177. Finally, the court held that a suit against GMI as the purchaser of Century‘s assets in the bankruptcy sale did not constitute a claim against Century. Consequently, plaintiffs’ suit against GMI did not offend the Bankruptcy Code‘s scheme for the priority of claimants. Ibid. Essentially, the Appellate Division held that GMI, as the successor to Glasstream, was liable to plaintiffs in negligence and strict liability for economic loss caused by the sinking of the boat.
II.
The threshold issue is whether plaintiffs may rely on theories of strict liability and negligence to recover damages for economic loss resulting from a defect that caused injury only to the boat itself. Plaintiffs seek damages for the cost of repair and for the boat‘s lost value on trade-in. They do not allege that other property was
Preliminarily, economic loss encompasses actions for the recovery of damages for costs of repair, replacement of defective goods, inadequate value, and consequential loss of profits. See James J. White & Robert S. Summers, Uniform Commercial Code 534-44 (3d ed.1988); Note, Economic Loss in Products Liability Jurisprudence, 66 Colum. L.Rev. 917, 918 (1966). Economic loss further includes “the diminution in value of the product because it is inferior in quality and does not work for the general purposes for which it was manufactured and sold.” Comment, Manufacturers’ Liability to Remote Purchasers For ‘Economic Loss’ Damages-Tort or Contract?, 114 U.Pa.L.Rev. 539, 541 (1966).
Allocation of economic loss between a manufacturer and a consumer involves assessment of tort and contract principles in the determination of claims arising out of the manufacture, distribution, and sale of defective products. Generally speaking, tort principles are better suited to resolve claims for personal injuries or damage to other property. See Spring Motors Distribs., supra, 98 N.J. at 579-80, 489 A.2d 660; East River S.S. v. Transamerica Delaval, 476 U.S. 858, 871-72, 106 S.Ct. 2295, 2302-03, 90 L.Ed.2d 865 (1986); Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal. Rptr. 17, 403 P.2d 145, 149-51 (1965); Bocre Leasing Corp. v. General Motors Corp., 84 N.Y.2d 685, 621 N.Y.S.2d 497, 499, 645 N.E.2d 1195, 1197 (1995). Contract principles more readily respond to claims for economic loss caused by damage to the product itself. See Spring Motors, supra, 98 N.J. at 580, 489 A.2d 660; East River, supra, 476 U.S. at 871-72, 106 S.Ct. at 2302, 90 L.Ed.2d 865; Seely, supra, 45 Cal.Rptr. 17, 403 P.2d at 149-51; Lewinter v. Genmar Indus., 26 Cal.App.4th 1214, 32 Cal.Rptr.2d 305, 309 (1994); Florida Power & Light Co. v. Westinghouse Elec. Corp., 510 So.2d 899, 901-02 (Fla.1987); Oceanside At Pine Point v. Peachtree Doors, Inc., 659 A.2d 267, 270 (Me.1995); Bocre Leasing, supra, 621 N.Y.S.2d at 501, 645 N.E.2d at 1199.
Various considerations support the distinction. Tort principles more adequately address the creation of an unreasonable risk of harm when a person or other property sustains accidental or unexpected injury. See Spring Motors, supra, 98 N.J. at 570-71, 579-80, 489 A.2d 660. When, however, a product fails to fulfill a purchaser‘s economic expectations, contract principles, particularly as implemented by the
Relevant to the distinction are “the relative bargaining power of the parties and the allocation of the loss to the better risk-bearer in a modern marketing system.” Spring Motors, supra, 98 N.J. at 575, 489 A.2d 660; see East River, supra, 476 U.S. at 871-73, 106 S.Ct. at 2302-03, 90 L.Ed.2d 865. Perfect parity is not required for a finding of substantially equal bargaining power. Spring Motors, supra, 98 N.J. at 576, 489 A.2d 660. Although a manufacturer may be in a better position to absorb the risk of loss from physical injury or property damage, a purchaser may be better situated to absorb the “risk of economic loss caused by the purchase of a defective product.” Ibid.; see East River, supra, 476 U.S. at 871, 106 S.Ct. at 2302, 90 L.Ed.2d 865 (noting purchaser can insure against risk of economic loss); Lucker Mfg. v. Milwaukee Steel Foundry, 777 F.Supp. 413, 416-17 (E.D.Pa. 1991) (same); Bocre Leasing, supra, 621 N.Y.S.2d at 498, 645 N.E.2d at 1196 (same).
In the present case, nothing indicates that Alloway was at a disadvantage when bargaining for the purchase of the boat. Moreover, a thirty-three foot luxury boat with a swimming platform is not a necessity. Additionally, Alloway prudently protected himself against the risk of loss by obtaining an insurance policy that distributed that risk to his insurer, New Hampshire. To this extent, the question becomes whether GMI, which acquired the assets of the bankrupt manufacturer, or New Hampshire, which is in the business of insuring against the risk of harm caused by defective products, can better bear the risk of loss from damage to the boat. See generally East River, supra, 476 U.S. at 871-72, 106 S.Ct. at 2302, 90 L.Ed. 2d 865; Bocre Leasing, supra, 621 N.Y.S.2d at 498, 500-01, 645 N.E.2d at 1196, 1198-99.
Also involved is an appreciation of the relative roles of the legislative and judicial branches in defining rights and duties in commercial transactions. Absent legislation, courts possess greater latitude in determining those rights and duties. Once the Legislature acts, respect for it as a co-equal branch of government requires courts to consider the legislation in determining the limits of judicial action. See Spring Motors, supra, 98 N.J. at 577, 489 A.2d 660; see also Danforth v. Acorn Structures, Inc., 608 A.2d 1194, 1200-01 (Del.1992) (declining to displace provisions of
Consequently, the
As a counterbalance, the
Over thirty years ago, before the
Twenty years later, we addressed “the rights of a commercial buyer to recover for economic loss caused by the purchase of defective goods.” Spring Motors, supra, 98 N.J. at 560, 489 A.2d 660. In that case, Spring Motors Distributors (“Spring Motors“), a commercial lessor of vehicles, bought a fleet of trucks from Ford Motor Co. (“Ford“). Id. at 562, 489 A.2d 660. Pursuant to the sales, Ford issued an express warranty on transmissions manufactured by Clark Equipment Co. (“Clark“), which had issued express warranties to Ford. Spring Motors’ lessee experienced difficulties with the transmissions. Id. at 563, 489 A.2d 660. Consequently, Spring Motors suffered economic losses, which included costs of repair, lost profits, and a decrease in the market value of the trucks. Id. at 564, 489 A.2d 660. Thereafter, Spring Motors sued Ford under theories of negligence, strict liability and breach of warranty. Ibid. The basic issue was whether the applicable statute of limitations was the four-year statute in the
One year after we decided Spring Motors, the United States Supreme Court reviewed the roles of tort and contract law in a case involving economic loss caused by the defective design and manufacture of turbines in supertankers. See East River, supra, 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865. In a unanimous opinion, the Court began, “[i]n this admiralty case, we must decide whether a cause of action in tort is stated when a defective product purchased in a commercial transaction malfunctions, injuring only the product itself and causing purely economic loss.” Id. at 859, 106 S.Ct. at 2296, 90 L.Ed.2d 865. The Court continued, “charting a course between products liability and contract law, we must determine whether injury to a product itself is the kind of harm that should be protected by products liability or left entirely to the law of contracts.” Ibid.
After analyzing relevant state court decisions, including Santor, Seely, and Spring Motors, the Court concluded “that a manufacturer in a commercial transaction has no duty under negligence or strict products-liability theory to prevent a product from injuring itself.” Id. at 871, 106 S.Ct. at 2302, 90 L.Ed.2d 865. In an action for economic loss, the reasons for imposing a tort duty are weak while “those for leaving the party to its contractual remedies are strong.” Ibid. For example, injury to a product itself neither implicates the safety concerns of tort law, ibid., nor justifies “[t]he increased cost to the public that would result from holding the manufacturer liable in tort.” Id. at 872, 106 S.Ct. at 2302, 90 L.Ed.2d 865. Allowing recovery for all foreseeable damages in claims seeking purely economic loss, could subject a manufacturer to liability for vast sums arising from the expectations of parties
Subsequently, state and federal courts, when exercising admiralty jurisdiction, have recognized that East River‘s bar of strict-liability claims extends to actions brought by consumers. See, e.g., Karshan v. Mattituck Inlet Marina & Shipyard, 785 F.Supp. 363, 365-66 (E.D.N.Y.1992) (finding purchaser of pleasure boat barred from recovering economic loss in tort because East River was not limited to commercial buyers); Stanton v. Bayliner Marine Corp., 123 Wash.2d 64, 866 P.2d 15, 23-24 (1993) (holding that matter involving consumer purchaser of allegedly defective pleasure boat was governed by maritime-product-liability rule, which denies recovery for economic loss, because weight of authority interpreting maritime rule has not made distinction between commercial and consumer transactions), cert. denied, 513 U.S. 819, 115 S.Ct. 78, 130 L.Ed.2d 32 (1994); see also Lewinter, supra, 32 Cal.Rptr.2d at 308-10 (affirming grant of summary judgment because admiralty jurisdiction applied to consumer purchaser of yacht who brought tort action seeking compensation for economic loss resulting from catastrophic hull failure); but see Sherman v. Johnson & Towers Baltimore, Inc., 760 F.Supp. 499, 501-02 (D.Md.1990) (holding that East River did not apply to relationship between commercial party and consumer).
The vast majority of courts across the country likewise have concluded that purchasers of personal property, whether commercial entities or consumers, should be limited to recovery under contract principles. See, e.g., Arkwright-Boston Mfgs. Mutual Ins. Co. v. Westinghouse Elec. Corp., 844 F.2d 1174, 1178 (5th Cir.1988) (holding that Texas law did not permit recovery of economic loss resulting from damage to product itself); Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 118 (3d Cir.1987) (holding that, under Pennsylvania law, fire damage to product itself was
Only a handful of jurisdictions have followed Santor. See White & Summers, supra, § 10-5 at 580 (criticizing Santor and stating “courts seem to have grown more willing in the last decade to label loss as economic, thus not recoverable in tort than before“); see, e.g., Sharon Steel Corp. v. Lakeshore, Inc., 753 F.2d 851, 855-56 (10th Cir.1985) (allowing plaintiff to recover damages for economic loss under New Mexico law when plaintiff was subjected to unreasonable risk of injury); Cova v. Harley Davidson Motor Co., 26 Mich.App. 602, 182 N.W.2d 800, 804 (1970) (allowing owners of golf course to recover against manufacturer in strict liability for economic losses resulting from defect in golf carts); City of La Crosse v. Schubert, Schroeder & Assoc., 72 Wis.2d 38, 240 N.W.2d 124, 127 (1976) (holding that manufacturer of defective roofing materials may be liable for loss of value of roof under strict liability in tort); see also Lloyd F. Smith Co. v. Den-Tal-Ez, Inc., 491 N.W.2d 11, 17 (Minn.1992) (holding that although
Scholars likewise have criticized the extension of strict liability to include claims for purely economic loss. See, e.g., White & Summers, supra, § 10-5; O‘Donnell, Weiss & Kaplan, On Differ-
Following the majority rule, the American Law Institute‘s proposed Restatement (Third) of Torts: Products Liability § 21 (Proposed Final Draft April 1, 1997), defines “economic loss” to exclude recovery under tort theories for damage to a product itself. Section 21, comment d, states that “[w]hen a product defect results in harm to the product itself, the law governing commercial transactions sets forth a comprehensive scheme governing the rights of the buyer and seller.” Id. at comment d. According to the Restatement, ”Santor ... appears today to stand alone in allowing a products liability action when a product did not create an unreasonable risk of harm but merely caused economic loss when it failed to meet performance expectations.” Id. at Reporters’ Note to Comment d.
In Casa Clara, supra, 620 So.2d 1244, the Florida Supreme Court rejected the contention of homeowners that they should be allowed to recover in tort for economic loss. Consequently, the Court held that the homeowners could not maintain a tort action to recover the costs of repair and lost value in their homes. Id. at 1247. The Court found that statutory remedies sufficed and that contract principles more appropriately addressed their claims for disappointed expectations. Ibid.; see Florida Power & Light Co., supra, 510 So.2d at 902 (holding that commercial purchaser suffering economic loss was limited to contract remedies). Unlike with personal injuries, the “consuming public as a whole” should not “bear the cost of economic losses sustained by those who failed to bargain for adequate contract remedies.” Casa Clara, supra, 620 So.2d at 1247.
Likewise, in Danforth, supra, 608 A.2d 1194, the Delaware Supreme Court rejected the contention of homeowners that an individual consumer‘s unequal bargaining power warranted an exception to the economic loss rule. Accordingly, the Court upheld the dismissal of the homeowners’ negligence claim.
Other jurisdictions also have rejected homeowners’ reliance on tort law to recover economic loss arising out of construction defects. See, e.g., Oceanside, supra, 659 A.2d at 270 (rejecting association‘s and individual homeowners’ tort claims that sought recovery of economic loss caused by water damage around windows); Morris v. Osmose Wood Preserving, 99 Md.App. 646, 639 A.2d 147, 152 (1994) (rejecting homeowners’ tort claims against plywood manufacturer for gradual deterioration of plywood in roofs because such damage constituted economic loss), modified, 340 Md. 519, 667 A.2d 624 (1995); Lempke v. Dagenais, 130 N.H. 782, 547 A.2d 290, 291 (1988) (rejecting property owners’ tort claims for economic loss resulting from defective construction of garage); Waggoner, supra, 808 P.2d at 650, 653 (rejecting mobile home purchasers’ tort actions against manufacturer for costs of repair and lost value resulting from defective roof design when damage was to only the mobile home itself, and holding that claim would be more properly made in warranty action). Cf. Aronsohn v. Mandara, 98 N.J. 92, 107, 484 A.2d 675 (1984) (declining “to decide the validity of plaintiff‘s negligence claim, since ... the contractor‘s negligence would constitute a breach of the contractor‘s implied promise to construct the patio in a workmanlike manner“).
An unresolved issue is whether the
In East River, the United States Supreme Court rejected cases that adopted intermediate positions, which attempted “to differen-
[T]he intermediate positions, which essentially turn on the degree of risk, are too indeterminate to enable manufacturers easily to structure their business behavior. Nor do we find persuasive a distinction that rests on the manner in which the product is injured. We realize that the damage may be qualitative, occurring through gradual deterioration or internal breakage. Or it may be calamitous. But either way, since by definition no person or other property is damaged, the resulting loss is purely economic. Even when the harm to the product itself occurs through an abrupt, accident-like event, the resulting loss due to repair costs, decreased value, and lost profits is essentially the failure of the purchaser to receive the benefit of its bargain-traditionally the core concern of contract law.
[Id. at 871, 106 S.Ct. at 2301-02, 90 L. Ed.2d 865 (citations omitted).]
The Restatement implicitly adopts East River, but states “[a] plausible argument can be made that products that are dangerous in these respects [i.e. discovery of the defect prevented harm from occurring or the only harm was to the product itself, but not to persons or other property] rather than merely ineffectual, should be governed by the rules governing products liability law.” Restatement, supra, at § 21, comment d.
As previously indicated, in this case we do not resolve the issue whether tort or contract law applies to a product that poses a risk of causing personal injuries or property damage but has caused only economic loss to the product itself. See Spring Motors, supra, 98 N.J. at 578, 489 A.2d 660 (distinguishing “cases involving claims for actual or potential personal injuries“). Similarly, we do not reach the issue of the preclusion of a strict-liability claim when the parties are of unequal bargaining power, the product is a necessity, no alternative source for the product is readily available, and the purchaser cannot reasonably insure against consequential damages.
In addition to the right to recover under the
Additionally, the Legislature has adopted the Consumer Fraud Act, which provides generous protection to defrauded consumers.
In 1971, the New Jersey Legislature amended the Consumer Fraud Act to authorize a private cause of action by an injured party for a violation of the Act. L. 1971, c. 247 § 7, codified at
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise....
[
N.J.S.A. 56:8-2 .]
Congress has provided further protection for consumers. For example, the Magnuson-Moss Warranty Act authorizes a suit for damages for breach of implied warranties, including “an implied warranty arising under state law in connection with the sale by a supplier of a consumer product.”
In sum, judicial decisions and statutory enactments, including the
Here, plaintiffs seek the lost value on trade-in and the costs of repairing the boat under theories of negligence and strict liability. Thus, this action raises the question whether a consumer and his insurer can maintain an action in tort for economic loss only.
Alloway insured against the risk that gave rise to his economic loss. In a sense, the question becomes whether the better risk bearer is his insurer, New Hampshire, or GMI, the purchaser of the assets of the bankrupt boat manufacturer. To impose liability on GMI is to impose on it, in addition to the price it paid for Glasstream‘s assets in the bankruptcy proceeding, the added cost of the loss of a boat that it never owned. The imposition of that cost would dislocate the allocation of responsibility in the
By providing for express and implied warranties, that
Before this Court, GMI argues primarily, as it has in the lower courts, that it is not liable to plaintiffs in tort. Alternatively, GMI argues for the first time that admiralty law, not state law, should determine this case. In view of our finding that GMI is not liable in tort for plaintiffs’ economic loss under New Jersey law, we need not reach GMI‘s belated argument. Cf. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234, 300 A.2d 142 (1973) (finding that “[i]t is a well-settled principle that our Appellate Courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available” unless the matter involves the trial court‘s jurisdiction or is of public importance); see also Maisonet v. Department of Human Services, Div. of Family Dev., 140 N.J. 214, 222-23, 657 A.2d 1209 (1995) (holding that courts not required by Supremacy Clause to exercise original jurisdiction over civil-rights claim when asserted for first time on appeal); R. 2:10-5 (indicating that exercise of original jurisdiction is discretionary). Similarly, we need not reach the additional issues concerning GMI‘s liability as Glasstream‘s successor or the effect on GMI of the purchase in bankruptcy of Glasstream‘s assets free and clear of all claims.
The judgment of the Appellate Division is reversed, and the judgment of the Law Division dismissing the complaint is reinstated.
HANDLER, J., concurring.
In this case, the Court holds that a consumer, who has purchased a product, cannot rely on a common-law cause of action sounding in strict-products liability and negligence to recover damages solely for the economic loss resulting from a defect that
In Spring Motors Distributors v. Ford Motor Co., 98 N.J. 555, 596-97, 489 A.2d 660 (1985) (Handler, J., concurring), I expressed the view that the
result is acceptable only where the parties to the contract have equivalent bargaining power and meaningful alternatives. See Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C.Cir.1965) (“[W]hen a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent ... was ever given to all the terms.“)
Comparative bargaining power cannot be determined merely by labeling a consumer either “commercial” or “non-commercial.” As the facts of this case reveal, some non-commercial purchasers will enjoy equal bargaining power. Similarly, some commercial purchasers in no sense enjoy equal bargaining power or the opportunity to secure adequate protections in the bargaining process. See Spring Motors, supra, 98 N.J. at 592, 489 A.2d 660 (Handler, J., concurring) (“It would not be correct to consider the
In sum, I am confident that the Court‘s decision does not preclude tort remedies for economic loss in such circumstances. I thus concur in its judgment.
Justice STEIN joins in this opinion.
For reversal and reinstatement-Chief Justice PORITZ, and Justices HANDLER, POLLOCK, O‘HERN, GARIBALDI, STEIN and COLEMAN-7.
For affirmance-None.