On certification to Superior Court, Appellate Division, whose opinion is reported at 159 N.J. Super. 115 (1978).
For reversal -- Chief Justice Hughes and Justices Mountain, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Mountain, J.
This action was initiated by Dwight Van Horn, a Trenton police officer, to compel reimbursement following a refusal by the City of Trenton to indemnify him for expenses incurred in obtaining legal services which he deemed necessary while he was the subject of a grand jury investigation. Van Horn bases his claim on N.J.S.A. 40A:14-155, which requires a municipality to provide the means of defense whenever certain legal proceedings are instituted against a member of its police force. In addition, plaintiff seeks the award of attorney's fees incurred in conjunction with his prosecution of this suit to enforce his claimed right to reimbursement.
The parties have stipulated to the following background facts:
The plaintiff, Dwight Van Horn, at all times relevant to this action, was employed as a police officer by the City of Trenton. On March 21, 1976 while returning from duty to his home in Mercerville, New Jersey, he was "cut off and pursued" by a motor vehicle in Hamilton Township. As a result of a sequence of events plaintiff fired his police revolver in self defense hitting the driver of the other car. At that time plaintiff was dressed in full uniform except for tie and cap. Subsequent to that incident, the Mercer County Prosecutor's Office instituted an investigation which culminated in Grand Jury proceedings, which Grand Jury concluded its investigation and found no basis for any criminal charges against the plaintiff. However, the plaintiff was required to retain counsel for the purpose of representing him during the investigation and incurred counsel fees and disbursements in the amount of $887.50. Plaintiff made demand upon the City of Trenton for payment of these counsel fees and disbursements and the City of Trenton refused to pay or reimburse the plaintiff.
It was further stipulated that, as a condition of employment, Officer Van Horn was required to abide by certain regulations of the Trenton Police Department. In essence, the purpose of these regulations is to impose upon Trenton police officers an obligation to remain prepared to function as such at all times, even when technically in an "off-duty" status.*fn1
On cross-motions for summary judgment, the trial judge found that although Officer Van Horn was not obliged to effectuate arrest while off duty outside the city limits, Trenton Police Department regulations were such that, read together, they created a duty on the part of police officers to protect themselves if attacked. The court concluded that the city was obligated to provide the "means" necessary "for the defense" of any legal actions or proceedings precipitated by an officer's attempt to discharge this duty. Decision was rendered in favor of the plaintiff, and a judgment was entered against the City of Trenton in the amount of $887.50. This sum represented his counsel fees and other legal expenses incurred in connection with the grand jury investigation of the March 21, 1976 incident. The trial court, however, rejected the plaintiff's request for an award of counsel fees incurred in prosecuting the instant action, as plaintiff was found to be within the general rule that all litigants must bear the cost of enforcing their rights through litigation. The city appealed, and the plaintiff cross-appealed from that portion of the judgment denying counsel fees.
At oral argument before the Appellate Division, that court raised, sua sponte, the issue of whether, in light of the grand jury's failure to return an indictment, Van Horn ever occupied the status of "defendant in any action or legal proceeding" within the meaning of N.J.S.A. 40A:14-155.
Following the submission of supplemental briefs on this issue, the Appellate Division concluded that Van Horn never actually did attain the required status and, therefore, was not entitled to reimbursement. The judgment of the trial court was reversed and the case was remanded for the entry of judgment in favor of the city. 159 N.J. ...