On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1055-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
THE MALICIOUS PROSECUTION CLAIM ONLY ACCRUED UPON ACQUITTAL AND THEREFORE PLAINTIFF TIMELY [NOTIFIED] THE DEFENDANTS UNDER STATE LAW AND FILED SUIT ...