# Tretina Printing, Inc. v. Fitzpatrick & Associates, Inc. > Supreme Court of New Jersey · May 4, 1994 · 135 N.J. 349 URL: https://www.frixlaw.com/law-library/cases/9650109 ## Case - **Full name:** In the Matter of the Arbitration Between: Tretina Printing, Inc., and Hi-Tech Properties, a General Partnership, and Jan Tretina and Olga Tretina Individually, Plaintiffs-Appellants, v. Fitzpatrick & Associates, Inc., Defendant-Respondent. Fitzpatrick & Associates, Inc., Plaintiff-Respondent, v. Tretina Printing Co., Inc., Hi-Tech Properties, a General Partnership, and Jan Tretina and Olga Tretina Individually, Defendants-Appellants - **Court:** Supreme Court of New Jersey - **Decided:** May 4, 1994 - **Citations:** 135 N.J. 349; 640 A.2d 788; 1994 N.J. LEXIS 404 - **Precedential status:** Published - **Opinion:** Concurrence by Clifford - **Judges:** Clifford, Stein - **Cited by:** 116 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9650109 ## How later opinions describe it (automated extraction) - stating that "public policy demands that public-sector arbitrator, who must consider effect of decision on the public interest and welfare, issue a decision in accordance with (he law” - noting in context of arbitration statute’s limited review that parties are free to expand the scope of judicial review by providing for such expansion in their contract ## Opinion text CLIFFORD, J., concurring. In Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479 , 610 A.2d 364 (1992), I voted with the plurality opinion and agreed with a majority of the members on the standard of judicial review that courts should apply to private-contract arbitration awards. Today I provide the fourth vote for the quite different test set forth in the Chief Justice’s opinion concurring in the judgment in that case, id. at 518-49 , 610 A.2d 364 , having succumbed to the persuasive force of that opinion. Unlike me, the others in today’s majority have no explaining to do, being either already on record as favoring the Perini concurrence (the Chief Justice) or not hitherto committed to any position on the subject (Justices Pollock and Garibaldi) because they did not participate in the Perini deliberations or decision. Although this new alignment *366 of the Court on the Perini issue does not affect the result of this appeal—nor would it have produced a different result in Perini—I have emerged from the closet only so that those who count heads can keep an accurate score and be guided henceforth accordingly. Given the tenuous nature of Perini as precedent, I prefer to view my defection more as a demi-pirouette—not particularly graceful or elegant, I admit, but something less than a full-fledged about-face. As the majority opinion today points out, this Court was sharply divided in Perini, three members of the Court as then constituted adopting one rule of judicial review; two members agreeing with the judgment confirming the arbitration award but applying a much stricter standard of review, see 129 N.J. at 518-49 , 610 A.2d 364 (Wilentz, C.J., concurring in judgment); and two members apparently agreeing with the plurality’s standard but disagreeing with the result that application of that standard should have produced, see id. at 549-56 , 610 A.2d 364 (Stein, J., concurring in part and dissenting in part). The general rule is that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of [a majority of the members], ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds * * *.’ ” Marks v. United States, 430 U.S. 188, 193 , 97 S.Ct. 990, 993 , 51 L.Ed.2d 260, 266 (1977) (quoting Gregg v. Georgia, 428 U.S. 153 , 169 n. 15, 96 S.Ct. 2909 , 2923 n. 15, 49 L.Ed.2d 859 , 872 n. 15 (1976)); cf. Mark A Thurman, Note, When The Court Divides: Reconsidering Precedential Value of Supreme Court Plurality Decisions, 42 Duke L.J. 419 (1992) (analyzing and criticizing the Marks doctrine). On that basis the holding of Perini may be taken to be that on the facts of that case the arbitration award had not been procured by undue means—not, one would think, a powerful statement of law on which to rely as conclusive precedent. Much as I would prefer to announce that my change of position is attributable to some epiphany, to some deeply moving event that produced a sudden startling cerebral awakening, to some *367 lightning bolt of cognitive awareness and intellectual enrichment, the plain truth of the matter is that I have thought more about it and have changed my mind. My awakening, however belated, puts me squarely in the Chief Justice’s camp. For whatever ambivalence that progression demonstrates I refuse to commit myself to the psychiatrist’s couch, content instead to resurrect—as apparently I must every couple of decades—that reassuring old turkey, “The matter does not appear to me now as it appears to have appeared to me then.” Bramwell, B., in Andrews v. Styrap, 26 L.T.R. (n.s.) 704, 706 (Ex.1872), quoted in Moraca v. Ford Motor Co., 66 N.J. 454, 466 , 332 A.2d 599 (1975) (Clifford, J., dissenting). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9650109. Public record. Not legal advice.