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Buccinna v. Micheletti

April 29, 1998

MICHAEL J. BUCCINNA, PLAINTIFF-APPELLANT,
v.
DENISE MICHELETTI, DAVIS T. LONDON, THE WOODBINE DEVELOPMENTAL CENTER, AND THE NEW JERSEY DEPARTMENT OF HUMAN SERVICES, DEFENDANTS-RESPONDENTS.



Submitted March 23, 1998

Before Judges Petrella, Skillman and Steinberg.

The opinion of the court was delivered by: Petrella, P.j.a.d.

On appeal from Superior Court of New Jersey, Chancery Division, Cape May County.

Plaintiff Michael J. Buccinna filed a complaint against defendants Denise Micheletti, Davis T. London, Woodbine Developmental Center (Woodbine), and the New Jersey Department of Human Services alleging violation of his rights under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, commonly referred to as the "Whistleblower Act." The complaint alleged, among other things, that defendants had retaliated against Buccinna for reporting abuse of a client at Woodbine where plaintiff was and is employed. After a bench trial, the trial Judge, in a letter opinion dated December 5, 1996, found no violation of CEPA and dismissed the complaint. Thereafter, by notice of motion the public entity defendants sought an order assessing costs in the amount of $12,220.48. After hearing arguments on the application, the Judge entered an order on May 1, 1997, taxing costs aggregating $9,766.73. Plaintiff appeals from that order, contending that an award of costs is inappropriate in a CEPA action, and that deposition and expert witness expenses were not properly awardable as costs.

We need not recite at length the facts and allegations in the underlying case. *fn1 Suffice it to say that Buccinna was employed as a behavior modification program technician at Woodbine and supported allegations made by a young client of improper treatment by Woodbine personnel. The parties conceded prior to trial, and do not dispute on appeal, that in January 1994, plaintiff reported in good faith what he thought was the improper treatment of that client at Woodbine. A nurse had also reported the complaints. Thereafter, Buccinna was temporarily reassigned to what he considered an unfavorable post at Woodbine and required to take "improvement" classes as a result of charges that he committed infractions of Woodbine's rules. With respect to the disciplinary actions taken against Buccinna the trial Judge found that he had not presented a prima facie case of retaliation, and even if such a prima facie case had been presented, the articulated reasons given by Woodbine clearly overcame the presumption of discrimination, and its actions did not constitute "other adverse employment actions." The judge found that Woodbine's decision to take the actions it did were justified.

It is clear that defendants prevailed at the trial and therefore Buccinna would be the proper party against whom any taxed costs would be assessed. R. 4:42-8(a). Authority for assessing costs must be found in either the Court Rules or a statute. United States Pipe & Foundry Co. v. United Steelworkers of America, 37 N.J. 343, 355 (1962). The costs that are contemplated in the Court Rules are in the usual case those authorized in N.J.S.A. 22A:2-8. However, imposition of taxed costs is discretionary. Hirsch v. Tushill Ltd., 110 N.J. 644, 646 (1988); see N.J.S.A. 2A:15-59.

The May 1, 1997 order awarded defendants the following costs, all payable by Buccinna:

1. Cipolloni & Associates - depositions

M. Buccinna - 5/17/95.....................$490.20

M. Buccinna - 5/24/95......................385.80

M. Buccinna - 6/5/95.......................422.20

M. Buccinna - 11/20/95.....................216.80

B. Witkowski - 11/28/95.....................152.00

C. Soulon & C. Farrow - ...


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