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Healey v. Township of Dover

Decided: March 20, 1986.

PATRICIA HEALEY, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF DOVER; ROBERT TOSCAN; RODEN LIGHTBODY; JOSEPH VICARI; THOMAS RENKIN; ALBERT DECARLO, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Ocean County.

Brody, Gaynor and Baime. The opinion of the court was delivered by Brody, J.A.D.

Brody

This appeal comes to us as a result of a misstatement in the case information sheet that the order appealed from disposed of "all issues as to all parties." In fact the order left undisturbed plaintiff's claims against five of the six defendants in six of the seven counts of her complaint. In the interest of clarifying the parties' evident confusion over what has been adjudicated, however, we now grant plaintiff leave to appeal nunc pro tunc. Stigliano v. St. Rose High School, 198 N.J. Super. 520, 523, n. 1 (App.Div.1984).

Plaintiff brought this action for damages based on claims that her former employer, defendant Township of Dover, and the other five defendants, Township officers and employees, underpaid her and otherwise harassed and discriminated against her at work because of her sex and unmarried status. She rests her claims upon the protection afforded under the state constitution and state statute. N.J.Const. (1947), Art. I, par. 1; N.J.S.A. 10:5-12(a).

The order appealed from summarily dismissed all claims against the Township contained in the first six of the seven

counts of plaintiff's verified complaint. The basis for the dismissal is plaintiff's failure to present the timely notice of claim required by the Tort Claims Act as a condition to recovering against a public entity. N.J.S.A. 59:8-8 requires that the notice be presented "not later than the ninetieth day after accrual of the cause of action." Another trial judge had previously refused to allow late filing of the notice under N.J.S.A. 59:8-9. The order also dismissed the seventh count. That count alleged that all defendants had committed a specific act of discrimination against plaintiff. The trial judge dismissed the seventh count because though the notice of that claim was timely, the claim did not state a separate cause of action.

In the appeal from the dismissal of the claims against the Township, plaintiff's sole argument is that her claims are not governed by the Tort Claims Act because "her complaint alleges [a] cause of action sounding in contract and is governed by N.J.S.A. 2A:14-1," the general six-year statute of limitations for claims not based on "an injury to the person." See N.J.S.A. 2A:14-2. The Tort Claims Act applies to claims against public entities for an "injury." N.J.S.A. 59:1-3 broadly defines "injury" to mean:

death, injury to a person, damage to or loss of property or any other injury that a person may suffer that would be actionable if inflicted by a private person.

Essentially plaintiff claims that the Township inflicted personal and monetary injuries on her through sexual harassment and invidious discrimination. Those claims fall within the expansive Tort Claims Act definition of "injury" that includes "injury to a person" and "damage to or loss of property." Lloyd v. Stone Harbor, 179 N.J. Super. 496, 511-512 (Ch.Div.1981). Plaintiff's reliance on Leese v. Doe, 182 N.J. Super. 318 (Law Div.1981), is misplaced. Aside from whether that case was correctly decided, it merely held that claims against a private employer based on sexual harassment and lost wages are not claims of "an injury to the person" and therefore may be brought within six years under the general statute of limitations. Applicability of

the 90-day notice provision in the Tort Claims Act was not an issue.

The other provision in the order appealed from dismissed plaintiff's seventh count "as against all the defendants" because it "has not set forth a claim upon which relief can be granted. . . ." Elsewhere in her verified complaint plaintiff stated that she had been "constructively discharged from her position" on November 11, 1983, in that the alleged acts of harassment and discrimination forced her to quit. In the seventh count plaintiff alleged a separate claim based on an alleged act of discrimination against her occurring April 3, 1984, when ...


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