January 30, 2008
ROBERT BRADY, PLAINTIFF-APPELLANT,
TOWNSHIP OF MANTUA, A BODY POLITIC AND CORPORATE, AND ROBERT DILKS, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1121-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 28, 2007
Before Judges Cuff, Lisa and Lihotz.
Plaintiff Robert Brady appeals from two summary judgment orders dismissing his causes of action against defendants. Brady, a member of Teamsters Local 676, is employed by defendant Township of Mantua (Township) in the Department of Public Works.
Brady was identified as the individual who tampered with and broke the employee's break room heater. As a result, Brady was charged with criminal mischief and suspended for thirty days following the Township Committee's determination that he destroyed Township property.
Brady's complaint against the Township and defendant Robert Dilks, Brady's supervisor, alleged malicious prosecution, employment discrimination, and civil rights violations. Brady argues the motion judge erred in granting summary judgment because Brady presented evidence raising sufficient factual disputes to be resolved at trial. We disagree and affirm.
Dilks contacted the Township police after vandalism incidents caused damage to the public works building break room heater. After it was repaired and working properly, police detectives installed a hidden camera to monitor the heater. Thereafter, when the police examined the heater, they noticed it was damaged. The police reviewed the surveillance tape and noticed an individual who "approached the heater by the front and reached up and actually used his hands and pushed the flap in, which appeared on the videotape that it was pushed in by this individual." The officers identified Brady as the individual on the tape who caused the damage to the heater flap.
After being advised of his Miranda*fn1 rights, Brady was questioned by police. He denied involvement in damaging the heater, and then was informed of the existence of the surveillance tape. Brady requested to view the tape and allegedly stated, "that's me, is that me?" On February 16, 2001, Brady was arrested and charged with criminal mischief, N.J.S.A. 2C:17-3a(1), for purposely damaging tangible property belonging to the Township, causing pecuniary loss in the amount of $107.25.
Brady professes his innocence and asserts that the charges were contrived by Dilks, in retaliation for various grievances filed by him under the terms of the union's collective bargaining agreement. The record contains a copy of one grievance, dated January 2, 2001, stating that Dilks failed to call Brady into work during a snowstorm. This, as well as two other grievances, were resolved in Brady's favor.
After trial in Mantua Township Municipal Court, Brady was adjudicated not guilty on the criminal mischief charges. The municipal court judge concluded that, although the heater was damaged and Brady was the person identified on the tape, the State failed to prove beyond a reasonable doubt that Brady purposely damaged the heater. Also, the Township Committee reviewed the matter in a disciplinary hearing. The Committee determined Brady had violated Section 33-15D of the Township Code by damaging Township property and suspended Brady for thirty days without pay.
At the conclusion of discovery in this action, defendants filed their first motion for summary judgment. Judge Michael Brooke Fisher granted partial summary judgment and dismissed the complaint's counts alleging employment discrimination and malicious prosecution based on the civil proceeding. Defendants' second motion for summary judgment also was granted, dismissing the remaining counts alleging malicious prosecution, based on the criminal proceeding and civil rights violations pursuant to 42 U.S.C.A. § 1983.
In reviewing summary judgment orders, we apply the same standards that govern the trial courts. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In determining whether a genuine issue of material fact exists, the matter must be viewed in the factual light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Our inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 536.
Brady asserts the motion judge failed to consider his allegations that Dilks and the Township initiated the criminal and disciplinary proceedings because Brady filed work grievances. We can find nothing in the record to support Brady's contention that he suffered employment discrimination for engaging in protected union activities. Brady's grievances were personal in nature and were unrelated to his union position. The three objections Brady submitted regarding overtime or work conditions were resolved substantially in his favor and were not followed by negative repercussions. We find no connection between the filed grievances and plaintiff's thirty-day suspension. Thus, Brady's claim that his employer falsely accused him of damaging the heater because he submitted work grievances is baseless.
Moreover, adjudications of alleged unfair labor practices by public employers must be presented to the Public Employment Relations Commission (PERC), which is charged with enforcing and implementing the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -30. Brady must seek administrative review of such claims prior to initiation of Superior Court review.
Brady's contention that the motion judge erred in dismissing his malicious prosecution claims also fails. To establish a claim for malicious prosecution, "plaintiff must prove (1) that the criminal action was instituted by the defendant against the plaintiff; (2) that it was actuated by malice; (3) that there was an absence of probable cause for the proceeding; and (4) that it was terminated favorably to the plaintiff." Helmy v. City of Jersey City, 178 N.J. 183, 190 (2003) (citing Lind v. Schmid, 67 N.J. 255, 262 (1975)).
A "plaintiff must establish each element. Upon failure to prove any one, the cause must fail. Each element is separable from the others, although evidence of one may be relevant with respect to another." Lind, supra, 67 N.J. at 262.
The existence of probable cause is an absolute defense in a malicious prosecution claim. Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (2000); Taurus v. Borough of Pine Hill, 189 N.J. 497, 521 (2007). Plaintiff bears the burden of establishing that probable cause did not exist. Lind, supra, 67 N.J. at 262-63. These principles apply to both plaintiff's allegations of malicious prosecution resulting in the civil disciplinary proceeding, as well as the allegations of malicious prosecution stemming from the criminal action. Penwag Property Co. v. Landau, 148 N.J. Super. 493, 500 (App. Div. 1977), aff'd, 76 N.J. 595, 598 (1978).
Probable cause is defined as "reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the accused is guilty of the offense with which he is charged." Lind, supra, 67 N.J. at 263.
Probable cause exists if at the time of the arrest, "the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." [Wildoner, supra, 162 N.J. at 389 (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed. 2d 142, 145 (1964).]
In rendering summary judgment, Judge Fisher determined the facts supported sufficient probable cause to arrest Brady. He stated:
But the fact of the matter is there is this continuing problem with the heater . . . . They attempted to repair it . . . . The township elected to set up a surveillance. A tape was made. The tape was brought to the police. This was not a situation where somebody came to the police . . . . Basically[,] there was a surveillance set up. Tape was taken. The tape was reviewed by various people. Whether or not . . . Mr. Dilks also thought that was Mr. Brady is of no consequence to this court in a situation where there was a tape, where the police independently reviewed it and they believed that it was Mr. Brady . . . . The police set up a surveillance tape. The tape was taken. People you know identified Mr. Brady as the person. There was a trial and he was exonerated at that trial. But this is not a classic situation of where Mr. Brady was maliciously prosecuted. This was a situation where he was charged and he . . . successfully defeated those charges.
We find no flaw in Judge Fisher's analysis. In total, five people identified Brady on the tape prior to his arrest: three police officers, his supervisor and an assistant foreman. Brady's presentation of defense witnesses at the municipal court trial who disclaimed that Brady was the perpetrator on the tape does not alter the existence of probable cause at the time of Brady's arrest. Brady's malicious prosecution actions were legally deficient and ripe for summary judgment.
After considering Brady's remaining contentions in light of the record, the briefs, and the applicable law, we conclude that they are unavailing and without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). The record clearly supports the trial judge's findings and conclusions.