NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4683-14T1

GREG and RENEE MATEJEK,

Plaintiffs-Respondents,

v.

MARTHA and GUY WATSON, JOAN

HOWARD, ALAN and ANNE MARIE

SHAPIRO,

Defendants,

and

CARLOS1 and JEAN GILMORE,

Defendants-Appellants,

and

NEW JERSEY DEPARTMENT OF 

ENVIRONMENTAL PROTECTION and 

CLAREMONT HILLS PARCEL TWO

CONDOMINIUM ASSOCIATION,

Defendants.

_______________________________________________________

Argued December 6, 2016 – Decided

Before Judges Fisher, Ostrer and Vernoia.

On appeal from the Superior Court of New 

Jersey, Chancery Division, Morris County, 

Docket No. C-126-13.

 

1 Carlos Gilmore was improperly pleaded as Carl Gilmore.

March 3, 2017

APPROVED FOR PUBLICATION

March 3, 2017

APPELLATE DIVISION
2 A-4683-14T1

William H. Mergner, Jr., argued the cause 

for appellants (Leary, Bride, Tinker & 

Moran, attorneys; Mr. Mergner and Adrian K. 

Cousens, of counsel and on the brief).

John M. Bowens argued the cause for 

respondents (Schenck, Price, Smith & King, 

LLP, attorneys; Mr. Bowens and Sandra 

Calvert Nathans, on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

The New Jersey Spill Compensation and Control Act (the 

Spill Act), N.J.S.A. 58:10-23.11 to -23.24, renders "all 

dischargers [of contamination] jointly and severally liable for 

the entire cost of a cleanup." Magic Petroleum Corp. v. Exxon 

Mobil Corp., 218 N.J. 390, 394 (2014); N.J.S.A. 58:10-23.11g. 

The Spill Act also authorizes a private cause of action by a 

responsible party for contribution from other responsible 

parties. N.J.S.A. 58:10-23.11f(a)(2)(a). We consider in this 

appeal the viability of a suit by an alleged contaminator 

seeking the cooperation and involvement of other alleged 

contaminators in an investigation into the cause of and 

responsibility for an alleged contamination. Because we find 

nothing in the letter or spirit of the Spill Act that would 

preclude the issuance of such a remedy, we affirm.

The facts as found by the trial judge at the conclusion of 

a bench trial are relatively simple. Briefly, oil was discovered 
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on the surface of a tributary to Royce Brook in Hillsborough in 

2006. In response, the New Jersey Department of Environmental 

Protection (NJDEP) removed five underground storage tanks, one 

from each of five adjoining condominium units. Other than visit 

the site a few months later to confirm the absence of oil in the 

tributary, the NJDEP took no further action and its file 

remained open, thereby constituting, as the judge found, a cloud 

on title to all five condominium units.

Approximately seven years after the removal of the tanks, 

and with the NJDEP still maintaining an open file, plaintiffs 

Greg and Renee Matejek – owners of one of the impacted units –

filed a complaint against the owners of the other four units; 

they sought a judgment that would obligate all owners to 

participate in and equally share in an investigation and, if 

necessary, remediation of the property. The judge found that 

even though there was no evidence yet as to the precise source 

of the contamination, the fact that the NJDEP had removed all 

five tanks was sufficient to impose on the impacted parties the 

obligation "to participate in the investigation process." 

Consequently, the judge: ordered plaintiffs to retain the 

services of a licensed site remediation professional (LSRP) to 

investigate; directed the LSRP to render a report to the parties 

as to whether remediation was required; and, if remediation was 
4 A-4683-14T1

required, compelled the division of the costs equally among the 

five owners.

Only defendants Carlos and Jean Gilmore – owners of one of 

the five units – appeal. They argue: (1) plaintiffs lacked 

standing to bring an action to compel investigation and cleanup 

under the Spill Act; (2) the trial court lacked jurisdiction to 

enter the judgment in question; and (3) the Spill Act does not 

permit and the facts did not warrant the relief granted.

The Gilmores' challenge to the judgment chiefly relies on 

the lack of evidence that they caused, in whole or in part, the 

contamination that warranted the NJDEP's involvement. The judge 

recognized this but found the circumstances did not preclude 

imposition of an equitable remedy by which that evidence might 

be revealed. We agree. To be sure, plaintiffs' suit varies from 

what the Legislature likely anticipated when authorizing a 

private cause of action for contribution. But, as the judge 

recognized, the Spill Act's general approach has since been 

altered. Under the Site Remediation Reform Act, N.J.S.A. 58:10C1 to -29, which became effective in 2009, the burden of 

completing a cleanup fell to private parties through retention 

of an LSRP. The former resolution of a spill cleanup – the 

NJDEP's issuance of a "no further action" letter – has been 

replaced by the rendering of findings by an LSRP who, upon 
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finding a site to be clean so advises the NJDEP, which may 

thereafter conduct its own confirmatory examination. According 

to the Gilmores, a responsible party would have standing to seek 

contribution or any other relief from other responsible parties 

only following the NJDEP's acceptance of the LSRP's findings.

Through a similar analysis, the Gilmores argue the NJDEP 

possessed primary jurisdiction over the dispute.

We find no merit in the Gilmores' contentions. As the trial 

judge recognized, plaintiffs' title was encumbered and, if the 

Gilmores' arguments were sustained, plaintiffs would have no way 

to remove that encumbrance other than to solely bear the expense 

of investigation and remediation. We agree with the trial judge 

that such a scenario leaves plaintiffs with no adequate remedy 

at law. And we agree that, in such circumstances, a court may 

provide a remedy that fairly and justly alleviates the 

inequitable burden that a narrow interpretation of the Spill Act 

would impose.

Indeed, a court's equitable jurisdiction provides as much 

flexibility as is warranted by the circumstances:

Equitable remedies are distinguished for 

their flexibility, their unlimited variety, 

their adaptability to circumstances, and the 

natural rules which govern their use. There 

is in fact no limit to their variety in 

application; the court of equity has the 

power of devising its remedy and shaping it 

so as to fit the changing circumstances of 
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every case and the complex relations of all 

the parties.

[Sears Roebuck & Co. v. Camp, 124 N.J. Eq.

403, 411-12 (E. & A. 1938) (internal quotations omitted).]

The authority to issue a judgment that compelled the other 

owners' cooperation in the further investigation of the property 

arose from the maxim that equity "will not suffer a wrong 

without a remedy." See Crane v. Bielski, 15 N.J. 342, 349 

(1954); In re Mossavi, 334 N.J. Super. 112, 121 (Ch. Div. 2000).

In addition, we reject the notion that another equitable 

maxim – "equity follows the law" – might arguably suggest that 

the reach of equity should be restrained by the Spill Act's 

limits for two essential reasons. First, as we have already 

observed, the practice of remediation appears to have been 

altered with the enactment of the Site Remediation Reform Act. 

In this case, the NJDEP maintains an open file – a fact that 

clouds plaintiffs' title – while leaving the dispersion of that 

cloud to the impacted property owners. Absent the crafting of an 

appropriate remedy, plaintiffs would have been left with the 

prospect of either doing nothing or proceeding on their own in 

gathering evidence necessary to seek contribution from other 

dischargers. This circumstance strongly suggests the need for a 

remedy that would fairly burden all the potential dischargers 

with an investigation into the actual cause, the remediation of 
7 A-4683-14T1

the property if necessary, and the fixing of responsibility for 

the discharge on those truly responsible.

Second, we do not interpret the Spill Act as being so 

narrow or ineffectual as to permit a private action only on 

proof that another caused contamination in whole or in part. The 

Legislature expressly welcomed a "liberal constru[ction]" of the 

Spill Act for "the general health, safety, and welfare of the 

people of this State." N.J.S.A. 58:10-23.11x. And the Supreme 

Court has recognized that the Spill Act was "not intend[ed] to 

prevent persons from seeking" adequate relief through other 

means in such matters. Magic Petroleum, supra, 218 N.J. at 407. 

At present, the facts suggest only that the tributary was 

contaminated in 2006. The NJDEP continues to maintain an open 

file but apparently has no intention of further investigating or 

remediating; it merely removed the tanks and charged the five 

property owners with the cost. Is it not in the best interest of 

the health, safety and welfare of the people to compel a further 

investigation? Rather than preclude or render unduly burdensome 

a greater examination into the situation through the adoption of 

a narrow interpretation of the Spill Act, we commend the trial 

judge's exercise of discretion in adopting an inventive solution 

– the necessity of which was compelled by all the relevant 

circumstances – in this particular situation.
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In affirming the judgment under review, we assume the 

likelihood of additional litigation in the future, as did the 

judge when he observed that, "[i]n the event . . . additional 

remediation is required and the parties are not able to agree as 

to the allocation, new litigation may be initiated." The judge 

recognized the possibility that the parties might seek further 

adjustment of their rights depending upon the outcome of the 

investigation required by the judgment under review. By 

affirming that judgment, we also do not foreclose that 

possibility nor limit the scope of any future litigation or the 

potential issuance of a remedy for those property owners who may 

be exonerated by the investigation to follow.

We find insufficient merit in the Gilmores' remaining 

arguments to warrant further discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.