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Ferraro v. City of Long Branch

July 23, 1998

JOHN A. FERRARO AND DOROTHY FERRARO, PLAINTIFFS-APPELLANTS/CROSS-RESPONDENTS,
v.
CITY OF LONG BRANCH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, ADAM SCHNEIDER, MAYOR OF THE CITY OF LONG BRANCH, ANTHONY CRITELLI, DIRECTOR OF PUBLIC WORKS OF THE CITY OF LONG BRANCH, MICHAEL PELUGHI, MICHAEL DE STEFANO, JOHN PALLONE, STEVEN SCHWARTZ, AND ROBERT LEHMANN, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS. JOHN A. FERRARO, PLAINTIFF-APPELLANT,
v.
ADAM SCHNEIDER, INDIVIDUALLY, AND AS MAYOR OF THE CITY OF LONG BRANCH, AND THE CITY OF LONG BRANCH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS.



Before Judges Stern, Kleiner and Kimmelman.

The opinion of the court was delivered by: Stern, J.A.D.

[9]    Argued March 24, 1998

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

Following defendants' removal of plaintiffs' complaint to the United States District Court, dismissal of the federal action and affirmance of the dismissal by the Third Circuit, the Law Division, on remand of the State claims from the federal court, entered a series of orders granting defendants' motions for summary judgment and dismissing defendants' counterclaim. Plaintiffs appeal the dismissal of their 42 U.S.C.A. § 1983 federal claim and some of their state law claims. Defendants cross appeal from the denial of their application for counsel fees.

I.

A.

On December 23, 1992, John A. Ferraro ("plaintiff") and his wife filed a five-count complaint in the Law Division against the City of Long Branch, its mayor, Adam Schneider, and various other town officials. Count one was subtitled "Civil Rights Claim - 42 U.S.C., Section 1983," count two "Tortious Interference with pursuit of lawful employment," count three "Violation of N.J.A.C. 4A:3-3.4," and count four "Violation of N.J.A.C. 4A:2-5.1." These allegations resulted from plaintiff's municipal work assignments outside the scope of his civil service job description in alleged retaliation for his political conduct. Plaintiff's wife asserted a per quod claim in the fifth count. Because of the federal claim, defendants removed the case to the United States District Court.

On August 23, 1993, the District Court dismissed the federal claim and the Third Circuit affirmed on May 10, 1994. Ferraro v. City of Long Branch, 23 F.3d 803 (3d Cir. 1994).

An amended complaint was filed on August 15, 1994 after the remand to the Law Division. However, plaintiffs were granted leave to file a second amended complaint in order to incorporate references to federal law into count four which had alleged unlawful retaliation for plaintiff's protected political activities. On July 21, 1995, plaintiffs were granted leave to further amend count four to reflect a § 1983 claim grounded in violations of the First Amendment. However, all counts of the complaint were ultimately dismissed against all defendants. Also dismissed was a consolidated action *fn1 by plaintiff against Schneider asserting various state and federal claims, including a defamation count based on the release "[o]n or about August 24, 1993," of a report prepared in defense of plaintiff's workers' compensation petition, as well as defendants' counterclaim for unearned benefits paid to plaintiff. Defendants' motion for counsel fees was also denied.

Plaintiffs appeal, and defendants cross appeal from the denial of counsel fees. *fn2

B.

For purposes of our review of the dismissals, we must accept the facts as alleged by plaintiff.

In 1979, plaintiff became the Long Branch Superintendent of Parks and Public Property, a classified position. In 1982, Long Branch's then-Mayor appointed plaintiff Director of the Department of Public Works, a non-classified position he held for eight years. Plaintiff apparently took a leave of absence from his civil service position during his tenure as Director of Public Works until July 1, 1990.

In 1989, defendant Schneider was elected to the City Council. During his tenure as a Council member, Schneider publicly criticized Ferraro's performance as Director of Public Works. In 1990, Schneider became Mayor. Plaintiff had actively supported Schneider's opponent and actively campaigned on the opponent's behalf. During the campaign, plaintiff was told that Schneider would "get rid of" him.

In July 1990, after Schneider took office, plaintiff, who returned to serve in his classified position, was informed that he was no longer permitted to take his city car home. Shortly thereafter, the new Acting City Administrator directed that everyone in the Department of Public Works "except John Ferraro" could receive "overtime." The Administrator also directed the Acting Director of Public Works to see to it that plaintiff "works."

Sometime after July 9, 1990, when defendant Anthony Critelli became Director of Public Works, plaintiff's work "crew" was reduced, and he was "left ... with one or two men to maintain the parks." According to plaintiff, the duties of the Superintendent "are almost entirely administrative and supervisory in nature." However, because he no longer had a sufficient amount of workers to assist him, plaintiff, who was responsible for the maintenance of 400 to 500 acres, was forced to engage in such "manual labor" as cutting grass and picking up litter. Because of the stress he was experiencing, plaintiff became physically ill and took extensive sick leave and vacation time in the last half of 1990.When Ferraro returned to work, he was again directed to perform physical labor which included shoveling sand and picking up debris. He was also forced, at Critelli's direction, to take orders from individuals with "lesser positions" who would have otherwise been his subordinates.

Early in the morning of December 28, 1990, plaintiff was directed to perform snow removal around City Hall following a heavy snow storm. Although the city owned a snow blower, plaintiff and his co-worker were instructed to shovel the snow by hand. While working on the steps of City Hall, plaintiff collapsed and fell to the ground. Rescue workers resuscitated plaintiff and transported him to Monmouth Medical Center. In their subsequent report, the emergency workers noted that, upon their arrival, plaintiff was "unresponsive" and had no pulse.

The incident was the subject of an article which appeared the next day in the Asbury Park Press. Plaintiff was described as having "suffered a massive heart attack" in which "[h]is heart had stopped, and he ceased breathing," but that after "cardiopulmonary resuscitation" was performed and "an artificial airway [was inserted] into his throat," "Ferraro's heart and lungs began working again."

Plaintiff never returned to work, although we are told that he did not officially retire until July 1995. A medical report, prepared for the City on or about March 5, 1991, concluded that it was "clear" that plaintiff's "cardiac arrest was precipitated and as such is related to the episode of shoveling snow." Plaintiff was advised by the City Health Care Administrator that his case was "compensable" and that he was entitled to all medical and temporary disability benefits "until ... medically proven to return to work."

Following plaintiff's collapse, plaintiff and his wife had several conversations with Benedict John Forest, a reporter with the Atlanticville, a weekly publication based in Long Branch, regarding plaintiff's medical problems and the treatment he allegedly had been receiving from defendants. Plaintiff told Forest he was "suffering from a severe health problem" and that "his heart attack was brought on by harrassment [sic] during his employment for the City of Long Branch." According to Forest, plaintiff "indicated that Mayor Adam Schneider and Congressman Frank Pallone had a vendetta against him and [] were out to get him." Independently, the following article, authored by Wayne Parry, appeared in the Asbury Park Press on April 3, 1991:

The city's former public works director, who suffered a massive heart attack while shoveling snow from City Hall steps in December, is seeking $5 million from the city, alleging he repeatedly was ordered to perform manual labor that was not part of his job.

John A. Ferraro, 50, of Poole Avenue, states that Mayor Adam Schneider, Public Works Director Anthony Critelli Jr. and other city employees caused his injury, alleging he was ordered to shovel the snow and perform other tasks to "humiliate" him.

Ferraro's lawyer, Ronald S. Gasiorowski of Middletown Township, filed a notice of claim last Thursday with the city clerk's office. The notice informs the city a lawsuit is to be filed.

Schneider said no one in city government did anything to harm Ferraro, and he dis-missed the planned lawsuit as "completely ridiculous."

Ferraro and Schneider have sparred publicly and privately since Schneider was a city councilman in 1989 over the maintenance of Hoey Avenue Park, Ferraro's work schedule, overtime pay and other issues.

Ferraro, who served as public works director during former Mayor Philip D. Huhn's eight-year tenure, resigned the post shortly before Schneider won the mayoral election last May, and returned to his previous civil service post as superintendent of parks and public property.

Ferraro said the Schneider admini-stration had engaged in a series of actions "to put me down in front of the men and let them know I'm no ...


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