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Nardello v. Township of Voorhees

July 8, 2009


On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-5639-01.

Per curiam.


Submitted May 12, 2009

Before Judges Winkelstein, Fuentes and Gilroy.

Plaintiff is a former police officer for defendant Township of Voorhees. Defendant Keith Hummel was the police chief; defendant John Prettyman was the deputy chief; and defendant Louis Bordi was a lieutenant on the force. Plaintiff filed a complaint against defendants alleging various acts of retaliation in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -18. On October 10, 2003, the trial court granted defendants' summary judgment motions and dismissed plaintiff's complaint. We reversed. Nardello v. Twp. of Voorhees, 377 N.J. Super. 428 (App. Div. 2005) (Nardello I).

Trial began on March 8, 2006, and continued over thirty-two trial days. At the close of the evidence, the court dismissed the complaint as to the individual defendants and reserved on the Township's Rule 4:40-2 motion to dismiss. The jury returned a verdict in favor of plaintiff, awarding him $500,000 in compensatory damages, but rejecting his claim for punitive damages.

Following the verdict, the Township moved for dismissal of plaintiff's complaint, a judgment notwithstanding the verdict, remittitur, and a new trial. Plaintiff filed a cross-motion for, among other things, a new trial with regard to economic and punitive damages, additur, and reconsideration of the dismissal of the claims against the individual defendants. By order of August 18, 2006, the court granted the Township's Rule 4:40-2 motion and vacated the jury verdict. The court denied plaintiff's cross-motion as to the individual defendants and did not substantively address plaintiff's remaining motions or the Township's motion for a remittitur.

On appeal, plaintiff challenges the court's dismissal of his claim against all defendants; he asserts that the trial court abused its discretion by barring evidence of retaliation in support of his claim for punitive damages; and he claims the court erred in barring evidence of economic loss for past lost income and reduced pension benefits.

In light of the record and prevailing law, we reverse the trial court's August 18, 2006 order granting the Township's Rule 4:40-2 motion. Consequently, we reinstate the jury verdict. We affirm the court's decision, apparently not reduced to an order, dismissing plaintiff's complaint as to Bordi and Prettyman, but reverse the dismissal as to Hummel and remand for a new trial as to him. We reverse the order denying plaintiff's motions for post-trial relief and remand for consideration of those motions on their merits. On remand, the court shall also substantively address defendant's remittitur motion.


Because the jury returned a verdict in plaintiff's favor, we will accept as true all evidence supporting plaintiff's claims and give that evidence the benefit of all reasonable inferences. R. 4:40-2; Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969); Pressler, Current N.J. Court Rules, comment 1 on R. 4:40-2 (2009).

Plaintiff joined the Voorhees police department in September 1980. Hummel promoted him to lieutenant in 1998, and assigned him as the commanding officer of the detective bureau. Hummel also assigned plaintiff to lead the SWAT team.

In early 1999, Officer Tina Hamburg-Smeltzer (Hamburg) complained to plaintiff that her supervisor, Lieutenant Mark Wilson, demeaned her by calling her "Missy" and by giving her menial jobs. Hamburg testified that she was accused by Wilson of being a troublemaker, and he told her that if she "open[ed] [her] mouth again that [she] would be looking for another job." She was intimidated by Wilson. She claimed that when she discussed the matter with Prettyman, who was a captain at the time, he told her she would have to "deal with it." She also discussed it with Hummel, who took no action.

At the time, Hamburg was a DARE officer. She worked regular hours Monday through Friday in a job she "loved." After she complained about Wilson to Hummel, she was "pulled out of DARE" and placed on the midnight shift. She believed that her transfer from DARE to the midnight shift was in retaliation for her complaints. Hamburg testified that she never filed a lawsuit with regard to the harassment because she feared retaliation if she did so.

Plaintiff repeatedly talked to Hummel and Prettyman about Hamburg's situation, but to no avail. Plaintiff argued that Hamburg was being subjected to discrimination. In this lawsuit, plaintiff asserts that Hummel and Prettyman retaliated against him for supporting Hamburg.

In November 1999, plaintiff conducted an internal affairs investigation of Officer Dale Lynch. Prettyman told plaintiff that Hummel was not satisfied with plaintiff's investigation, and that Hummel was "gunning" for Lynch. Plaintiff replied that he intended to perform an honest, complete and comprehensive investigation.

Also in the fall of 1999, plaintiff, Bordi (then a sergeant), and other police personnel, were present at a school that had received a bomb threat. As a lieutenant, plaintiff was in charge of the scene. When plaintiff emerged from the school after speaking to the superintendent, he heard a radio transmission stating that Bordi had been placed in charge. When plaintiff later expressed his displeasure to Hummel about Bordi being placed in command, Hummel became agitated and threatened to send him home.

Hummel testified that he was unable to contact plaintiff at the scene, so he instructed dispatch to have Bordi, the next ranking officer, call headquarters. Later, Hummel revised the police bomb threat policy to ensure clear lines of communication. He claimed that the change had "nothing to do with . . . [plaintiff] specifically," and was not instituted because plaintiff had relayed Hamburg's complaint to him.

Lieutenant Francis Bialecki testified that Hummel failed to comply with the chain of command during the bomb threat incident. According to Bialecki, placing Bordi, a sergeant, in charge, rather than resting authority in plaintiff, a lieutenant, diminished plaintiff's authority. Bialecki considered Hummel's actions "demeaning."

Plaintiff claimed retaliation when Hummel, in early 2000, denied his and Bialecki's requests for firearms instructor training in connection with their SWAT team memberships. In a January 24, 2000 memorandum from Hummel to Bialecki and plaintiff, Hummel stated:

Captain Prettyman and the Camden County Police Academy have advised me that you have signed up for Firearms Training and Prism Training. I am officially informing you of the following:

1. You are not authorized by this Department to attend either training session.

2. If you decide to attend on your own time, I will not recognize your credentials.

3. You will not be appointed to the Firearms Committee.

4. You will not be permitted to represent the Voorhees Township Police Department during Academy Training Sessions.

Another of plaintiff's claims of retaliation arose out of his transfer from the department's investigation division. Hummel testified that he had given thought to the concept of the rotation of command-level personnel when Bialecki sought to invoke his seniority in 1998 and asked to be commander of investigations. At that time, Hummel told Bialecki that he intended to place plaintiff in charge of investigations, and Bialecki would get his turn in the future.

In June 2000, within a month after Hummel returned from taking courses at the FBI Academy, which included courses on rotating command personnel, he told plaintiff that he was going to be rotated out of the investigations bureau. He told plaintiff that he would be reassigned, and Bialecki would be given the opportunity to head that unit. Plaintiff's transfer, initially discussed in June 2000, took place approximately one year later. Bialecki testified that while he was not sure if he had perceived plaintiff's transfer as retaliatory at the time, "[t]aking some things [he] know[s] today . . . it could have been perceived as retaliatory."

Plaintiff further claimed that "[a]s a result of the ongoing retaliation, and in order not to adversely impact on plaintiff's friends and colleagues in the SWAT team, plaintiff was forced to resign on September 1, 2000, both as a leader and a member of the SWAT team[.]" In a letter to Prettyman dated September 1, 2000, he set forth his reasons for resigning. He asserted that the actions of other officers both superior to me, equal to me and those of lesser rank than me have been playing a "casual conversation" game in an effort to go around my decisions and basically get what certain members of the team and certain people outside of the team feel is needed. . . .

On numerous occasions I have had my orders countermanded by other Lieutenants, and at times Sergeants.

I have noticed that a few of the team members have learned that they do not have to go through the proper chain of command because they have found that by being a member of the Firearms Committee they can have "casual conversations" with another Lieutenant and or the Chief and ultimately get what they want without my approval. This includes schools, equipment, training, even direct orders to myself all with the approval of the Chief of Police.

I have been informed on more than one occasion that I should speak with certain subordinates if I want something for the SWAT Team instead of going through the Chain of Command as "they can get whatever I want by talking to the Chief."

Orders have been issued by my peers without my input regarding the SWAT Team but apparently with ...

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