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Gambocz v. Apel

Decided: July 12, 1968.


Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.


Plaintiff brought this action against various police personnel and the municipal court clerk of the Township of Edison for malicious abuse of process and for conspiracy to abuse the processes of the municipal court. The Township was also joined as defendant on the theory of respondeat superior. The Law Division dismissed the action at the conclusion of plaintiff's proofs. Hence this appeal.

Plaintiff's case was partly based upon depositions taken from defendant LaPlaga, an Edison police patrolman, and defendant Ellmyer, Chief of Police. The plaintiff's material proofs may be substantially summarized as follows, giving plaintiff the benefit of all reasonable inferences.

In August 1965 plaintiff was a candidate for Mayor of Edison, running against the incumbent Mayor Yalencsics. In the middle of that month plaintiff made a complaint to the Middlesex County Prosecutor of allegedly improper use of township workers and facilities by Yalencsics in the manufacture of campaign material, and thereafter he gave deposition testimony in the prosecutor's office presumably supporting that complaint.

The gravamen of plaintiff's case is that LaPlaga and Ellmyer unduly, wrongfully and excessively participated in and promoted the prosecution of a bad check charge against plaintiff in the municipal court by one Marie Keller, not here a defendant, for the ulterior purpose of harassing and oppressing plaintiff in retaliation for his political activities against the incumbent mayor, their superior. The other individual defendants are charged with participating in this improper activity. The testimony of LaPlaga and Ellmyer varied somewhat as to the details of the transactions underlying this controversy.

LaPlaga's testimony on depositions was as follows. On August 30, 1965 he had been detailed to Marie Keller's home

to investigate a hit-run accident in which she was a victim. When he had finished this business and was about to leave, Mrs. Keller asked him what she could do about a check given her which had been returned for insufficient funds. He replied she could bring it to an attorney or file a criminal complaint against the maker "if she wanted to have any restitution on the thing." This was what he had been "taught." Mrs. Keller then handed the check to LaPlaga for appropriate disposition, saying she was willing to file the criminal complaint. Upon receiving the check, LaPlaga was told by Mrs. Keller for the first time that it was made by plaintiff, who he knew was running for mayor.

The next day, August 31, LaPlaga turned the check over to Chief Ellmyer at headquarters with an explanation of how he got it. The chief told him to tell Mrs. Keller that if she wished to file a criminal complaint she would have to come in to do so. LaPlaga so advised her, and Mrs. Keller asked to be driven to headquarters because her car was damaged. LaPlaga phoned Ellmyer and received permission to do this, and he then brought her in. On the way, Mrs. Keller asked how to apply for a position as a school crossing guide, and LaPlaga furnished the information. At headquarters, Ellmyer directed LaPlaga to turn Mrs. Keller over to the detective bureau for processing the complaint.

Ellmyer's version of the matter to that point was this. LaPlaga saw him on August 30, not 31, and told him about the hit-run accident and the check, including plaintiff's identity as the maker. Ellmyer knew plaintiff was running for mayor. He told LaPlaga he wanted to see the check so that he could determine if it was a "bad check." The next day, August 31, LaPlaga brought Mrs. Keller to his office, Ellmyer having meanwhile acceded to a request by Mrs. Keller, relayed through the desk lieutenant, for transportation to headquarters. Ellmyer called in Captain Pinter of the detective bureau and turned Mrs. Keller and her check over to Pinter, saying, "I think she got [ sic ] a complaint." Pinter took her to the detective bureau.

While at the detective bureau Mrs. Keller gave and signed a statement concerning the matter of the check. Defendant Lt. Miller of the police department thereafter brought Mrs. Keller to the violations bureau of the municipal court. Defendant Apel, court clerk, testified she questioned Mrs. Keller and was told the latter wanted to sign a complaint for a "worthless check" but that she couldn't wait for it to be typed up. Apel, relying on the availability of the statement given by Mrs. Keller, had her sign a blank form of complaint, so that she could leave, and later filled in the details from the statement and signed it as clerk.

LaPlaga testified he was "called in" to take Mrs. Keller home, and on the way, at her request, stopped in at the records bureau to get her a school-guard job application. He also testified that when he and she were in Ellmyer's office she had inquired about an attorney for her accident case, and the latter had recommended Joe Ferenczi, who happened to be Mayor Yalencsics' campaign manager. Ellmyer had instructed LaPlaga to take her to Ferenczi's office if she wished to go there. He did so, and Ferenczi and Mrs. Keller discussed the accident. Mrs. Keller also asked Ferenczi whether she should accept any money from plaintiff if he ...

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