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Johnson v. DeBiaso

April 22, 2009


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-12045-06.

Per curiam.


Argued March 30, 2009

Before Judges Lisa and Sapp-Peterson.

Plaintiff, Mary Louise Johnson, appeals from a summary judgment dismissing her complaint for malicious prosecution and deprivation of her constitutional and civil rights under 42 U.S.C.A. § 1983. Judge Nugent dismissed the malicious prosecution claim based on his finding that no reasonable factfinder could find that defendants instituted the prosecution against plaintiff. In light of that determination, plaintiff conceded that the civil rights claim could not remain viable, and the judge dismissed that as well. Plaintiff argues that the judge erred and that whether defendants instituted the criminal proceedings against her is a jury question. Plaintiff also argues that defendants' summary judgment motion was procedurally deficient and should have been denied on that basis. We reject these arguments and affirm.


Plaintiff began working for the predecessor of defendant Atlantic County Special Services School District (District) as a cafeteria worker in 1978. She had begun a relationship with David Adams in 1973. The two began residing together in 1975 or 1976, and they had a son together in 1982. They never married. Plaintiff was provided health benefits by the District. When she completed a New Jersey State Health Benefits Application form on November 8, 1989, she specified her marital status as single and applied for "Employee & Child(ren)" coverage, identifying her son as the child to be covered along with her. During a subsequent open enrollment period, plaintiff completed a similar form on March 18, 1991. This time, she specified her marital status as married, inserting the date of marriage as October 25, 1975, noting that she kept her maiden name, and requesting "Family" coverage, listing her son and Adams as her spouse and dependent to be covered along with her.

In 1998, the District's benefits coordinator, defendant Helen Daher, heard a rumor that plaintiff and Adams were not married. Daher inquired of plaintiff. She claimed she and Adams were married and offered to provide Daher with a copy of her marriage license. Daher declined the offer but communicated this information to defendant Thomas R. DeBiaso, the District's Assistant Superintendent for Business & Operations. DeBiaso, in turn, passed this information on to the Southern New Jersey Public Education Employee's Benefits Fund (Fund), which handled the District's health benefits. The Fund determined that a random survey of employees should be performed, requesting documentation to substantiate spouse/dependent relationship and marital status.

From the summer of 1998 through December 1998, the Fund administrator sent five letters to plaintiff seeking verification of her marital status. Plaintiff did not respond. The last letter advised her that Adams would be removed from the health insurance coverage if she did not respond by January 1, 1999. The Fund's attorney, Louis Grecco, sent plaintiff a letter on February 8, 1999. On February 16, 1999, plaintiff contacted Grecco and admitted she was not married to Adams. According to Grecco's sworn testimony, plaintiff "said that they had lived together for a lengthy period of time and the words still stick in my mind, she said they had never gotten around to getting married is the way she described it." She further told Grecco "she knew that what she had done was wrong," and she never said "she had simply made a mistake and believed herself to be in a common law marriage."

At a meeting on February 18, 1999 with DeBiaso, plaintiff, accompanied by her New Jersey Education Association representative, stated that she had no legal marriage documents, and that she was unaware that New Jersey did not recognize common law marriage. After that meeting, DeBiaso contacted the District's solicitor, John Armstrong, who contacted the Atlantic County Prosecutor's Office and passed on the information. DeBiaso wrote a letter to the prosecutor's office on February 19, 1999. The two-page letter outlined the information regarding plaintiff substantially as we have described it. DeBiaso's letter did not request that a criminal prosecution be initiated or that any other action be taken by the prosecutor.

The prosecutor's office began an investigation. An investigator contacted DeBiaso and Grecco, requesting that he be supplied with financial records outlining benefits paid on behalf of Adams and other pertinent information. According to the investigator's reports, Grecco told him it would take five or six days to compile the records.

On March 5, 1999, Sergeant George Rochelle of the Atlantic County Prosecutor's Office signed a complaint against plaintiff, charging her with the crime of third-degree theft by deception, in violation of N.J.S.A. 2C:20-4a. Plaintiff was arrested on that day. On March 31, 1999, the prosecutor's office presented the matter to a grand jury, which returned an indictment against plaintiff for the charge in the complaint. The matter went to trial, and the jury acquitted plaintiff on September 14, 2000.

Plaintiff filed this complaint on September 13, 2006. Defendants moved for summary judgment. Judge Nugent heard oral argument on August 15, 2008, after which he rendered an oral decision.

He found that no material facts were in dispute as to whether defendants instituted the criminal prosecution against plaintiff. In addition to the facts that we have described, he also accepted as undisputed that plaintiff never made any effort to hide the fact that she and Adams were not married "in the sense that they had obtained a marriage license and gone through some formal ceremony and became married in accordance with the statutory laws of the State of New Jersey." He found that they were in what is "generically" referred to as a common law marriage. The judge also noted that in its ...

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