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Shontz v. Cumberland County

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 9, 2008

DANIEL SHONTZ, PLAINTIFF-APPELLANT,
v.
CUMBERLAND COUNTY, ARTHUR MARCHAND, CAPTAIN JOHN M. MAZZEO, GEORGE CHOPEK, KEITH DUNN, AND JAMES ROCCO, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1055-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued December 20, 2007

Before Judges Payne, Sapp-Peterson, and Messano.

Plaintiff Daniel Shontz appeals from the December 5, 2006 order granting summary judgment dismissing his complaint against defendants Cumberland County; Arthur Marchand, the Cumberland County Prosecutor (Prosecutor); Captain John M. Mazzeo; George Chopek; Keith Dunn and James Rocco, Chief of Detectives (hereinafter collectively referred to as "defendants"). We reverse.

The facts, as viewed most favorably to plaintiff, reveal that Shontz was an eleven-year veteran with the Cumberland County Prosecutor's Office (Prosecutor's Office). Throughout his employment, plaintiff claims Mazzeo and Rocco harbored resentment towards him because he questioned the way detectives were hired, he was a nonconformist, and his involvement with an FBI operation received favorable publicity but embarrassed Rocco. This created a tense relationship between himself and Mazzeo and caused Mazzeo to make derogatory statements about him.

In July 1999, a warrant was issued for the arrest of Deborah Huff in connection with an alleged child abuse and obstruction of justice matter. Plaintiff, with the assistance of another detective, Dunn, arrested Huff. She was jailed for two hours for processing before being released. Dunn subsequently voiced concerns that Huff's detention was improper. As a result, the Prosecutor's Office initiated an internal affairs investigation. Mazzeo was appointed to conduct the investigation.

On July 26, 1999, the Prosecutor's Office formally notified plaintiff of its investigation. That same day, plaintiff wrote a letter to Marchand indicating that he was represented by counsel and that for medical reasons, he would be taking sick leave until further notice. On August 2, 1999, plaintiff submitted a certificate from Heeyul Lee Cho, M.D., advising that plaintiff was "totally incapacitated." The Prosecutor's Office put plaintiff on paid leave pending the results of its investigation.

On August 4, 1999, Marchand referred the investigation to the Attorney General's Office for review and submitted a report, along with the referral. The report recommended that the matter be referred to a grand jury and that plaintiff be terminated, demoted to detective, and suspended without pay. The Prosecutor's Office formally suspended plaintiff, with pay, on August 11, 1999. In a letter dated September 30, 1999, Marchand advised plaintiff's attorney that plaintiff's suspension with pay would terminate as of September 30, 1999, but pending the outcome of the investigation, plaintiff could "report to work in the capacity of a [d]etective at the salary of $38,351 on October 4, 1999 and work in our Juvenile Unit[.]" Plaintiff rejected the offer and requested permission to use accrued sick and vacation time. He claimed that the new position would subject him to further harassment and abuse from his co-workers. Beginning October 1, 1999, the Prosecutor's Office carried plaintiff on a paid leave of absence status.

On January 27, 2000, plaintiff was charged with false imprisonment and, on February 18, 2000, he was suspended without pay. Also in February 2000, the Prosecutor's Office launched another investigation concerning an allegation that while on paid sick leave, plaintiff had been working as a substitute teacher and assistant basketball coach for the Delran Township Board of Education between November 1999 and February 2, 2000. Negotiations between plaintiff's attorney and Marchand to have plaintiff resign without facing charges related to abuse of sick leave discontinued once Marchand advised plaintiff's counsel that Marchand was not in any position to enter into such an agreement and that if plaintiff did not resign, he would be terminated effective March 20, 2000. Plaintiff did not resign and his termination went into effect on that date. Plaintiff was acquitted of the false imprisonment charge on September 8, 2000. On September 20, 2000, plaintiff requested reinstatement to his former position as a detective. Marchand denied plaintiff's request in a letter dated September 27, 2000.

On December 6, 2000, defendants were served with a notice of claim pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. On September 6, 2002, plaintiff filed a four-count complaint against defendants alleging violations of his civil rights, malicious prosecution, and tortious interference with economic advantage. Defendants answered the complaint, denying the allegations and, following the completion of discovery, moved for summary judgment. The motion judge found: (1) plaintiff's claims were barred by the TCA's notice provisions, N.J.S.A. 59:8-8; (2) plaintiff's at-will status permitted Marchand to terminate plaintiff without cause; and (3) his federal claims were barred by the applicable two-year statute of limitations. Plaintiff's timely appeal followed.*fn1

Plaintiff raises the following points on appeal:

POINT I

THE MALICIOUS PROSECUTION CLAIM ONLY ACCRUED UPON ACQUITTAL AND THEREFORE PLAINTIFF TIMELY [NOTIFIED] THE DEFENDANTS UNDER STATE LAW AND FILED SUIT WITHIN THE TWO-YEAR STATUTE OF LIMITATIONS.

POINT II

THAT THE ATTORNEY GENERAL PROSECUTED THE MATTER DOES NOT INSULATE FROM LIABILITY THE ERRANT COUNTY INVESTIGATORS AND INSTIGATORS OF THE MALICIOUS PROSECUTION.

POINT III

PLAINTIFF'S CLAIM FOR TORTIOUS INTERFERENCE BECAME VIABLE AND "ACCRUED" ONLY UPON ACQUITTAL.

POINT IV

PLAINTIFF HAD A REASONABLE EXPECTATION OF REINSTATEMENT AND CONTINUING EMPLOYMENT AT THE PROSECUTOR'S OFFICE, AND PLAINTIFF'S AT-WILL STATUS DOES NOT PROTECT DEFENDANTS FROM A CLAIM FOR MALICIOUS PROSECUTION OR TORTIOUS INTERFERENCE.

In reviewing an appeal from a summary judgment order, we employ the same standard of review as the trial court. Prudential Prop. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998), certif. denied, 154 N.J. 608 (1998); Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004); Singer v. Beach Trading Co., 379 N.J. Super. 63, 80 (App. Div. 2005) (citing Manalapan Realty v. Twp. Committee, 140 N.J. 366, 378 (1995)). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts; we then decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-231 (App. Div.), certif. denied, 189 N.J. 104 (2006). In this case, the issues presented were primarily legal. Consequently, we owe no deference to the conclusions reached by the judge. Id. at 231 (citing Manalapan Realty, supra, 140 N.J. at 378).

I.

In dismissing plaintiff's common law claims of tortious interference and malicious prosecution, the motion judge found,

[t]he investigation for which [plaintiff] claimed that co-workers sought to have him prosecuted, occurred in 1999.

He submitted a Tort Claims Act notice in December of 2000. This claim must be dismissed because the Tort Claims Act requires that a plaintiff give notice within 90 days of accrual of a cause of action to a public entity. [N.J.S.A.] 59:8-8. Plaintiff [] did not file a motion to file a late notice within one year as required by Section 59:8-9 of the same statute. As a result, his tort claims, which included loss of reputation, must be dismissed, including any charge of malicious prosecution[.]

N.J.S.A. 59:8-8 requires a person asserting a claim against a public employee or public entity to file a notice of claim "within 90 days after the accrual of a cause of action, or that claim will be forever barred." Escalante v. Twp. of Cinnaminson, 283 N.J. Super. 244, 248 (App. Div. 1995). The TCA does not define the date a cause of action accrues. Rather the comment to N.J.S.A. 59:8-1 states "[i]t is intended that the term accrual of a cause of action shall be defined in accordance with existing law in the private sector." Harry A. Margolis & Robert Novack, Claims Against Public Entities, 1972 Task Force Comment to N.J.S.A. 59:8-1, p.179 (Gann 2008). Consequently, the resolution of when a cause of action accrues is entirely left to judicial interpretation and administration. Rosenau v. City of New Brunswick, 51 N.J. 130, 137 (1968) (citing Fernandi v. Strully, 35 N.J. 434, 449 (1961)). To that end, we have held that a cause of action accrues when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs. Beauchamp v. Amedio, 164 N.J. 111, 116-17 (2002) (citing Tortorello v. Reinfeld, 6 N.J. 50, 65 (1950); Rankin v. Sowinski, 119 N.J. Super. 393, 400 (App. Div. 1972); Lutz v. Semcer, 126 N.J. Super. 288, 297 (Law Div. 1974), superseded by statute on other grounds noted by Serrano v. Gibson, 304 N.J. Super. 314, 315-16 (App. Div. 1997)).

Stated differently, a cause of action accrues when the combination of facts and events exist which authorizes one party to maintain an action against another. Marini v. Wanaque, 37 N.J. Super. 32, 38 (App. Div. 1955); Band's Refuse Removal, Inc. v. Fair Lawn, 62 N.J. Super. 522, 540 (App. Div. 1960), certif. denied, 34 N.J. 67 (1961). The triggering event may be a single event or a continuing course of discrete events all interrelated. Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 18 (2002).

The only exception to this well-established notion of accrual is the case where the victim either is unaware of the existence of an injury or, although aware of an injury, does not know that a third party is responsible. Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 144-45 (1988) (recognizing applicability of discovery rule); Ayers v. Jackson Twp., 106 N.J. 557, 582 (1987) (noting that discovery rule "tolls the statute until the victim discovers both the injury and the facts suggesting that a third party may be responsible."); Lopez v. Swyer, 62 N.J. 267, 274 (1973) ("[I]t seems inequitable that an injured person, unaware that he has a cause of action, should be denied his day in court solely because of his ignorance, if he is otherwise blameless."). Thus, a determination of when a cause of action accrues requires an identification of the triggering event, namely, that set of facts that leads the injured party to reasonably believe an actionable claim exists. Guichardo v. Rubinfeld, 177 N.J. 45, 51 (2003).

A cause of action based upon a malicious prosecution requires proof (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. (emphasis added) Lind v. Schmid, 67 N.J. 255, 262 (1975); Epperson v. Wal-Mart Stores, Inc., 373 N.J. Super. 522, 530 (App. Div. 2004).

Here, the facts giving rise to plaintiff's malicious prosecution claim commenced with the filing of the false imprisonment charge against him. His cause of action, however, could not be filed until there had been a favorable termination of the criminal proceeding. Without such an outcome, a requisite element of the cause of action would not have been present. Muller Fuel Oil Co. v. Ins. Co. of N. Am., 95 N.J. Super. 564, 577 (App. Div. 1967). Thus, the triggering event was plaintiff's acquittal on September 8, 2000. Therefore, plaintiff's December 5, 2000 notice of claim was timely.

To establish a claim for tortious interference with economic advantage, a plaintiff must show: (1) the existence of a reasonable expectation of economic advantage; (2) the defendant intentionally interfered with that interest; (3) the harm was inflicted without justification or excuse; and (4) the interference caused the loss of the interest. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 751-52 (1989). It is not necessary to prove that defendant acted with ill will. The tort requires "meddling into the affairs of another." Cappiello v. Ragen Precision Indus., Inc., 192 N.J. Super. 523, 529 (App. Div. 1984). Although tortious interference arises out of a contractual and/or business relationship, it is nonetheless a tort. Therefore, a tortious interference claim is still subject to the ninety-day notice requirement under the TCA, N.J.S.A. 59:8-8.

Here, plaintiff's tortious interference claims can be separated into two distinct events: (1) those surrounding the initial investigation into the allegation of false imprisonment resulting in his formal charge, his subsequent acquittal and denial of his reinstatement request; and (2) his termination from employment as of March 20, 2000.

In our view, plaintiff's claim of tortious interference was inextricably linked to the operative facts surrounding plaintiff's suspension with and without pay, the resulting charge of false imprisonment, plaintiff's acquittal a year later on September 8, 2000, and Marchand's refusal to reinstate plaintiff a few weeks later. While each event represented a discrete event, each was interrelated with the refusal to reinstate plaintiff, representing the last act of tortious interference stemming from the alleged false imprisonment of Deborah Huff. See Ali v. Rutgers, 166 N.J. 280, 293 (2000) (holding that in the context of plaintiff's discrimination complaint, the statute of limitations did not begin to run until the date of the final act of harassment).

On the other hand, any claim for tortious interference based upon plaintiff's termination effective March 20, 2000 is barred. That termination represented both a discrete and unrelated event. Bollinger v. Bell Atl., 330 N.J. Super. 307-09. (Once a discrete event occurs to signify the tolling of the statute of limitations, the statute of limitations begins to accrue on that event, regardless of the existence of subsequent events which also constitute an actionable discrete event).

There can be no dispute that as of March 16, 2000, the date of Marchand's letter to plaintiff's counsel advising that Marchand could not assure that charges would not be filed against plaintiff or that reimbursement would not be sought from plaintiff for unauthorized use of sick leave and that plaintiff would be terminated March 20, 2000, if plaintiff did not resign, there were sufficient facts from which plaintiff could conclude that there might be a basis for an actionable claim against defendants in connection with his termination at that time. The notice of claim filed more than six months later was well beyond the TCA's ninety-day notice provisions. Therefore, no cause of action for tortious interference can be maintained based upon plaintiff's March 20, 2000 termination.

II.

In addition to finding that plaintiff's common law claims were barred by the TCA's notice provisions, the motion judge found that plaintiff's claim for malicious prosecution was not cognizable because it was the Attorney General, not defendants, who initiated the criminal charge against plaintiff. Further, the court concluded that plaintiff's status as an at-will employee was yet another basis to dismiss the tortious interference claim.

We have previously held that "[a]n investigator or witness who misleads the prosecutor into charging or prosecuting remains liable for his deceptive report" no matter that he did not bring the charge himself. Epperson, supra, 373 N.J. Super. at 531-32 (an employer's act instigating, encouraging, advising or assisting the prosecution of an employee or taking an active part in directing or aiding the conduct of the case, is enough grounds to bring a malicious prosecution claim against the employer, although the employer did not institute the action itself.)

Defendants did not bring the charge of false imprisonment against plaintiff. However, viewing the facts most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), defendants conducted an investigation and served as witnesses in the investigation that led to the matter being turned over to the Attorney General. As such, defendants did more than approve or silently acquiesce in the Attorney General's decision to bring the charge of false imprisonment against plaintiff. Epperson, supra, 373 N.J. Super. at 531-32. The report prepared by the Prosecutor's Office specifically recommended that the Attorney General file a complaint against plaintiff and present the matter to a grand jury. The court therefore erred in finding that plaintiff could not maintain a cause of action for malicious prosecution against the individually-named defendants because he failed to specifically allege that defendants initiated his prosecution for false imprisonment.

Turning to plaintiff's status as an at-will employee, the motion judge, relying upon Crane v. Yurick, 287 F. Supp. 2d 553 (D.N.J. 2003), reasoned that as an at-will employee, Marchand had the ability to terminate plaintiff without cause. In Crane, supra, the plaintiff sued the Gloucester County Prosecutor's office alleging wrongful termination and additional claims including a claim for tortious interference with economic advantage. The plaintiff's at-will employment status was addressed in the context of his contention that, under 42 U.S.C. § 1983, his termination deprived him of his interests "'encompassed by the Fourteenth Amendment's protection of liberty and property'[,]" not in the context of his tortious interference claim. Crane, supra, 287 F. Supp. 2d at 557 (quoting Roth v. Bd. of Regents of State Colleges, 409 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed. 2d 548, 556 (1972)). The court found that as an at-will employee, the plaintiff held no property interest in continued employment. Ibid. In granting summary judgment dismissing the tortious interference claim, the court concluded that the weakness in that claim arose from the plaintiff's failure to establish a causal connection between his inability to find new employment for more than one year and any actions of the defendants. Thus, in this matter, the motion judge's reliance upon Crane as dispositive of plaintiff's ability, as an at-will employee, to maintain a cause of action against defendants for tortious interference was misplaced.

There is no dispute that plaintiff served at the pleasure of Marchand and, as an at-will employee, he was subject to discharge for a good reason, a bad reason, or no reason at all, Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 397 (1994). Nonetheless, when the facts are viewed most favorably towards plaintiff, Brill, supra, 142 N.J. at 523, his long-term employment with the Prosecutor's Office gave him a reasonable expectation that he would continue to maintain his employment with the office until he was ready to retire. See Jenkins v. Region Nine Hous. Corp., 306 N.J. Super. 258, 265 (1997), certif. denied, 153 N.J. 405 (even in absence of an employment contract, plaintiff alleged reasonable likelihood that her job would have continued but for defendants' unjustified interference). Whether that expectation was reasonable is a jury question to be resolved by considering not only plaintiff's lengthy employment but other relevant factors.

In summary, we reverse the order granting summary judgment dismissing plaintiff's malicious prosecution claim, and with the exception of those facts related to plaintiff's March 20, 2000 termination, we also reverse the order granting summary judgment dismissing the claim of tortious interference with economic advantage.

Reversed. We do not retain jurisdiction.


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