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Nunez v. Pachman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 14, 2009

FRANCISCO NUNEZ, PLAINTIFF-APPELLANT,
v.
MARTIN R. PACHMAN, DEFENDANT, AND THE CITY OF UNION CITY AND MAYOR BRIAN P. STACK, INDIVIDUALLY AND AS MAYOR OF THE CITY OF UNION CITY,
DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3901-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 23, 2009

Before Judges Fisher and Sapp-Peterson.

We are asked to determine whether plaintiff stated an actionable claim when he alleged a violation of his state constitutional right of privacy based on defendants' use of plaintiff's expunged criminal records at an employment grievance hearing. Because the judge mistakenly held defendants were privileged to reveal expunged information and because other questions surrounding the state constitutional right of privacy have not been sufficiently developed, we reverse.

I.

In examining the issues raised on appeal, we start with an understanding of related federal trial and appellate proceedings, followed by this subsequent overlapping state court action and its disposition in the trial court.

On November 17, 2006, plaintiff filed a complaint in the United States District Court for the District of New Jersey. The record in that action, as explained in the district judge's written opinion, revealed that while employed by defendant City of Union City in 2005, plaintiff filed a grievance arising from the denial of a vacation request; the employment contract permitted arbitration. In preparation for the arbitration, defendant Martin Pachman, the city's attorney in the matter, interviewed various city employees and heard that plaintiff had pled guilty to a third-degree criminal offense several years earlier. This apparently prompted Pachman to obtain records of plaintiff's criminal history from the city's police department.

Precisely how the expunged conviction was used at the arbitration is not entirely clear.*fn1 We have not been provided with a transcript of the arbitration proceedings; indeed, for all we know, those proceedings may not have been recorded. As a result, obtaining an understanding of what occurred during the arbitration has been confounded by the fact that we have only the parties' deposition testimony and other sworn statements as to what occurred; these statements are not entirely consistent. For example, Pachman stated in a certification filed in support of the motion to dismiss that plaintiff testified on direct examination that he was "an honest man," which prompted Pachman during cross-examination to ask plaintiff "whether or not it was true that he had been convicted of a weapons offense in this state in order to debunk his claim of near sainthood." Defendants also appear to deny knowledge of the expungement order up to and at that time. On the other hand, plaintiff asserted that the arbitrator asked and Pachman acknowledged he was aware the conviction had been expunged. Because we are reviewing a dismissal based on Rule 4:6-2(e), we assume as true plaintiff's version and, therefore, assume the expunged conviction was used with knowledge of the expungement order.*fn2

In his federal complaint, plaintiff asserted that the disclosure of his expunged 1991 conviction violated both federal and state constitutional privacy principles. The district judge entered summary judgment in favor of defendants on July 30, 2008, holding that an individual "has no privacy interest in an expunged criminal record." The judge relied on Puricelli v. Borough of Morrisville, 820 F. Supp. 908, 917-18 (E.D. Pa. 1993), aff'd o.b., 26 F.3d 123 (3d Cir.), cert. denied, 513 U.S. 930, 115 S.Ct. 321, 130 L.Ed. 2d 282 (1994), where the district court held that an order requiring expungement does not create a constitutionally protected right of privacy in the expunged records of criminal convictions. The judge also relied upon Fraternal Order of Police, Lodge No. 5 v. City of Phila., 812 F.2d 105, 117 (3d Cir. 1987), which found the absence of a federal constitutional right of privacy in arrest records. Based on these authorities, the district judge granted summary judgment in favor of defendants.

The district judge, however, ruled only on the merits of plaintiff's federal constitutional claim, and, upon disposing of that claim, "decline[d] to exercise supplemental jurisdiction over [p]laintiff's remaining claims, all of which arise under New Jersey state law"; the state law claims were dismissed without prejudice to allow their further pursuit in state court.

Plaintiff filed a notice of appeal with the Court of Appeals for the Third Circuit on July 31, 2008, the day after summary judgment was entered. In his civil information statement, plaintiff identified the issues he intended to present to the court of appeals, including his claim that the district court should not have dismissed the state claims because "the interest of justice demanded . . . they be heard by the [f]ederal [c]court."

Despite arguing in the court of appeals that the state law claims belonged in federal court, plaintiff filed a complaint in the Law Division on August 4, 2008, a few days after the filing of the federal appeal. He alleged the same facts contained in his federal complaint and claimed damages based upon defendants' alleged failure to abide by N.J.S.A. 2C:52-30,*fn3 and upon defendants' alleged breach of plaintiff's state constitutional and common law rights of privacy. Plaintiff thereafter moved for a stay pending disposition of the federal appeal. Defendants responded by moving for dismissal for failure to state a claim upon which relief may be granted, pursuant to Rule 4:6-2(e). The trial judge denied the motion for a stay and granted the motion to dismiss; separate orders memorializing those determinations were entered on October 24, 2008.

II.

Plaintiff appealed, seeking our review of the dismissal of his complaint. He argues that the use of the expunged information during the arbitration constituted a violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,*fn4 as well as his state constitutional and common law rights of privacy in those records. On August 26, 2009, after briefs were filed and shortly before this appeal's disposition date, the court of appeals affirmed the district court's grant of summary judgment, finding that plaintiff failed to demonstrate the existence of a federal constitutional right of privacy in the expunged criminal records. Nunez v. Pachman, __ F.3d __, __ (3d Cir. 2009) (slip op. at 3). The court of appeals did not disturb the district court's dismissal without prejudice of the state law claims.

In reviewing this matter, we consider: (a) the judge's disposition of the motion for a stay; (b) his application of the litigation privilege in dismissing plaintiff's complaint; and (c) whether the state constitution provides a broader right of privacy than does the federal constitution.

A.

Although not raised as an issue on appeal, we think it appropriate to briefly examine the judge's disposition of the motion for a stay. Principles of comity require a careful approach when the same claims are advanced in multiple jurisdictions, see Sensient Colors Inc. v. Allstate Ins. Co., 193 N.J. 373, 387 (2008); Continental Ins. Co. v. Honeywell Int'l, Inc., 406 N.J. Super. 156, 174-75 (App. Div. 2009), particularly when proceedings in two jurisdictions generate the possibility of conflicting decisions, see Trustees of Princeton Univ. v. Trust Co. of N.J., 22 N.J. 587, 598 (1956); Continental Ins. Co., supra, 406 N.J. Super. at 174.

Here, plaintiff first sought an adjudication of his claims in federal court. Once his federal claims were dismissed on the merits and his state law claims dismissed without prejudice, plaintiff was certainly entitled to initiate proceedings in state court. The encroaching spectre of the statute of limitations counseled against any delay in filing a complaint in state court once the district court refused to exercise jurisdiction over the state law claims. See Galligan v. Westfield Centre Service, Inc., 82 N.J. 188 (1980). However, as we have observed, plaintiff also sought review in the court of appeals of the district court's dismissal of the state law claims, arguing that the federal court should have maintained jurisdiction over those claims. As a result, the filing of the complaint in the Law Division, coupled with the continued pursuit of the adjudication of the state law claims in federal court, created the potential for conflicting decisions.

We find no fault in plaintiff's filing of his complaint in the superior court. Plaintiff also conscientiously moved for a stay of the action pending completion of the proceedings in the court of appeals. In light of the comity principles to which we have briefly alluded, the judge should have granted the motion for a stay and awaited the decision of the court of appeals before entertaining the merits of this action.

Nevertheless, because the court of appeals has now ruled on plaintiff's appeal and has implicitly determined, by affirming the judgment, that the district judge did not err in dismissing the state law claims without prejudice, we need no longer consider the judge's denial of a stay. Instead, we now turn to the merits of the order dismissing the complaint for failure to state a claim upon which relief may be granted.

B.

In reviewing a dismissal based on Rule 4:6-2(e), we are bound by the same standard that governed the trial judge; that is, we are obligated to accept the allegations of the complaint as true and afford plaintiff all reasonable factual inferences. Independent Dairy Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956). This standard requires that the complaint "be searched in depth and with liberality to determine whether a cause of action can be gleaned even from an obscure statement."

Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002) (citing Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989)). And, "when the legal basis for the claim emanates from a new or evolving legal doctrine," as here, "even greater hesitancy is warranted." Ibid.

In applying this standard, the trial judge was required --as are we -- to assume that plaintiff's criminal conviction was expunged and that defendants both learned and made use of expunged materials in violation of N.J.S.A. 2C:52-30.*fn5 Given an assumption of the truth of these allegations,*fn6 plaintiff argues he possesses a viable claim of an invasion of privacy based upon state constitutional and common law principles.

Although the trial judge correctly identified the standard that applies to Rule 4:6-2(e) motions, he made no attempt to determine whether the state constitutional right of privacy has greater borders than the federal constitutional right of privacy. Instead, as revealed by his oral decision, the judge assumed the court of appeals would rule upon the constitutional issues and that such a ruling, if favorable to plaintiff, would ultimately lead to a resumption of the action in federal district court:

Obviously the [c]court's ruling on those issues [is] not before me. And as counsel[] [has] indicated, they are now on appeal with the Third Circuit. For that reason and --and in regards to plaintiff's application, the application for a stay is not being considered by me because the ruling that I intend to make today is . . . not in conjunction with what the Third Circuit may or may not do. They will rule on the constitutional issues. And if they reverse the trial [c]court it's really of no moment to what happens here in the [s]tate [c]court.

The matter will then be remanded presumably to the U.S. District Court and the matter can proceed there without prejudice to the plaintiff.

As a result, the judge did not examine the scope of the state constitutional right to privacy and the knowing dissemination of expunged criminal information, in violation of N.J.S.A. 2C:52-30. Instead, the judge dismissed the action because he found defendants' use of expunged information at the arbitration to be "absolutely privileged." In this regard, the judge relied on Zagami, L.L.C. v. Cottrell, 403 N.J. Super. 98 (App. Div. 2008), certif. denied, 198 N.J. 309 (2009). The judge misapprehended the scope of that holding and misapplied the litigation privilege.

The facts of that case reveal that Zagami sought renewal of its liquor license at a local administrative hearing. Neighboring property owners (Cottrell and Perez) asserted, among other things, that plaintiff served minors and intoxicated persons, aided and abetted its bouncers' violent conduct, and bribed public officials with free meals and drinks. Claiming these statements had a defamatory connotation, Zagami filed a suit for damages. Defendants Cottrell and Perez promptly moved for dismissal, arguing their statements at the administrative hearing were insulated by the litigation privilege. The trial judge determined that certain factual disputes had to be developed at a plenary hearing and denied the motion without prejudice. We denied leave to appeal, but the Supreme Court granted leave to appeal and remanded to us for a consideration of the merits. Id. at 103.

In reversing, we recognized that the application of the litigation privilege turns on a balance between "the need for unfettered expression" in a judicial, administrative or legislative proceeding and an individual's reputational interests. Id. at 104 (quoting Erickson v. Marsh & McLennan Co., 117 N.J. 539, 563 (1990)). The result warranted from such a balancing of interests has been expressed with varying emphasis on the implicated factors. For example, in LoBiondo v. Schwartz, 323 N.J. Super. 391, 407 (App. Div.), certif. denied, 162 N.J. 488 (1999) (emphasis added), we held that "accommodation must be heavily weighted in favor of the right of free speech when its subject is a matter of public concern reasonably invoking public debate." On the other hand, in Fenning v. S.G. Holding Corp., 47 N.J. Super. 110, 117 (App. Div. 1957), we found the application of absolute immunity to shield against defamation suits to be well-established when defamatory statements are made during the course of legal proceedings but stressed the importance that there be "some relation" between the defamatory statement and the subject matter of the proceeding in which it was uttered.

In defining the scope of the privilege in administrative matters, the Court in Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552, 562 (1955), emphasized that "the potential harm which may result from the absolute privilege" -- when applied to bar statements made in judicial proceedings -- "is somewhat mitigated by the formal requirements such as notice and hearing, the comprehensive control exercised by the trial judge whose action is reviewable on appeal, and the availability of retarding influences such as false swearing and perjury prosecutions . . . ." As a result, in holding that the litigation privilege may also apply to bar defamation suits based on statements uttered at an administrative hearing, the Court emphasized that application of the privilege in that instance requires consideration of whether the proceeding "was actually conducted in manner and with safeguards similar to a judicial proceeding and dealt with issues of significant public concern." Ibid.

In adhering to this approach, we held in Zagami that whether the privilege may attach outside a judicial setting "will depend on the nature of the administrative proceeding, the function performed, and the pertinency of the allegedly defamatory statement to the issues and contentions to be resolved." 403 N.J. Super. at 108. After examining those factors, we concluded in Zagami that the license renewal hearing was sufficiently similar to a judicial proceeding, and the defamatory statements were sufficiently pertinent to the issues presented to warrant application of the litigation privilege.

Here, the judge did not undertake the factual analysis required by Zagami. Instead, the judge rendered a conclusory decision, holding without explanation that because Zagami allowed for the application of the litigation privilege in an administrative setting, it required dismissal of this action based on statements made at an arbitration. In his brief oral decision, the judge did not explain whether or how the arbitration was sufficiently similar to a judicial proceeding --or even an administrative hearing -- to warrant the privilege's application, and he expressed no view as to the relative pertinence of plaintiff's prior criminal conviction to the arbitral issue, i.e., the city's denial of plaintiff's vacation request. In the absence of a clear and thorough elucidation of how all these factors weighed in favor of the litigation privilege -- particularly when assuming plaintiff's allegations to be true and when providing plaintiff with all reasonable inferences -- a dismissal based on that theory was precluded.

In any event, regardless of the relative similarities or dissimilarities between this arbitration and a judicial proceeding, we find the litigation privilege to have no application to these circumstances. This privilege has been applied only as a buckler against defamation actions. Here, plaintiff has not asserted he was defamed by the use of his prior conviction during the arbitration. Instead, he argues that defendants made use of information at the arbitration that, although true, had been expunged, thus barring its dissemination. In short, plaintiff does not claim defamation, which requires proof of a false statement, see Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 164 (1999); Hart v. City of Jersey City, 308 N.J. Super. 487, 492 (App. Div. 1998), but instead claims a violation of his right to have these governmental officials maintain the confidentiality of true facts. Because it has not been shown that the litigation privilege has been --or should be -- so expansively applied as to warrant dismissal of anything other than defamation actions, we conclude that the trial judge erred in dismissing the action based on the litigation privilege.

C.

Even though the trial judge relied only on the litigation privilege in dismissing the action -- a holding we have found erroneous -- we may still affirm for other reasons because, ultimately, we review orders, not opinions. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); Home Props. of N.Y., L.P. v. Ocino, Inc., 341 N.J. Super. 604, 616 (App. Div. 2001). That is, at times we have found it appropriate to consider whether there may be some reason other than that relied upon by the trial judge to sustain an order under review. In this case, however, after examining the issues and the record on appeal, we conclude it would be precipitous at this early stage to determine whether plaintiff's claim of a breach of his state constitutional privacy right represents a viable cause of action. The question is novel and requires consideration of factors not firmly established by the existing record.*fn7 We do, however, offer the following brief comments as guidance for the trial court's future consideration of these issues.

In examining plaintiff's claim to a right of privacy, we are bound to recognize that the federal constitution does not extend to or render actionable the divulging of expunged criminal records. The Court of Appeals for the Third Circuit has so held with regard to this very claim. Nunez, supra, __ F.3d at __ (slip op. at 3). Whether our state constitution provides more expansive rights to its citizens, however, has not been definitively established; indeed, it is a matter of first impression in this State.

Within the state constitution's declaration that individuals have the right to life, liberty and the pursuit of happiness, N.J. Const. art. I, § 1, is the right to privacy. Doe v. Poritz, 142 N.J. 1, 89 (1995); Right to Choose v. Byrne, 91 N.J. 287, 303 (1982). Here, plaintiff argues that the so-called confidentiality strand of the right of privacy*fn8 was violated by defendants' turnover and utilization of expunged criminal records.

The viability of this contention first requires consideration of whether an individual in plaintiff's position has a reasonable expectation of privacy in the information in question. Doe v. Poritz, supra, 142 N.J. at 78. If so, then it must next be considered whether competing interests override the enforcement of that reasonable expectation. Ibid.

1. Reasonable Expectation of Privacy

It is readily apparent that the extent to which individuals may justifiably maintain a reasonable expectation of privacy in information provided to or gathered by the government or others is broader under our state constitution than the federal constitution. For example, in State v. McAllister, 184 N.J. 17, 32-33 (2005), the Court held that an individual has a reasonable expectation of privacy in bank records arising from the state constitution, even though the Supreme Court of the United States held, in United States v. Miller, 425 U.S. 435, 440, 96 S.Ct. 1619, 1622, 48 L.Ed. 2d 71, 77 (1976), that no such right can be found in the federal constitution. Our Supreme Court has also found privacy rights in the state constitution that have not been found in the federal constitution, such as an individual's telephone toll billing records, compare State v. Hunt, 91 N.J. 338, 347 (1982), with Smith v. Maryland, 442 U.S. 735, 743-45, 99 S.Ct. 2577, 2582-83, 61 L.Ed. 2d 220, 228-30 (1979), and curbside garbage, compare State v. Hempele, 120 N.J. 182, 202-03 (1990), with California v. Greenwood, 486 U.S. 35, 40-41, 108 S.Ct. 1625, 1628-29, 100 L.Ed. 2d 30, 36-37 (1988), and other rights that have yet to be and may never be found in the federal constitution, see Burnett v. County of Bergen, 198 N.J. 408, 437 (2009) (recognizing a reasonable expectation of privacy in personal information, such as social security numbers, contained in land title records); State v. Reid, 194 N.J. 386, 389 (2008) (recognizing a reasonable expectation of privacy in information given by subscribers to Internet service providers). The Court at times has not only found greater privacy rights in the state constitution but has also emphasized that "we have not merely the authority to give full effect to the State protection, we have the duty to do so." State v. Hempele, supra, 120 N.J. at 196.

Because we discern from that part of the trial judge's oral opinion quoted earlier that he may have viewed the state constitutional right of privacy on this point to be coterminous with the federal constitutional right of privacy, it is appropriate to consider how the court of appeals concluded that no such federal right exists.

Prior to Nunez, the court of appeals found the lack of a reasonable expectation of privacy emanating from the federal constitution by assuming that information relating to prior convictions remains "on police blotters and court dockets" after expungement. Fraternal Order of Police, supra, 812 F.2d at 117 n.8. It is readily apparent, however, that this assumption resulted from the limitations inherent in expungement orders issued pursuant to Pennsylvania law. See 18 Pa. Cons. Stat. Ann. § 9122(e). In other words, the court of appeals' interpretation of the federal constitution must be understood as being largely influenced by Pennsylvania law because it was Pennsylvania law that governed the scope of the expungement orders in question in those earlier cases. See Fraternal Order of Police, supra, 812 F.2d at 117; Puricelli, supra, 820 F. Supp. at 917.

Later, when the court of appeals considered plaintiff's appeal of the summary judgment entered in the district court, the court recognized that New Jersey expungement laws are markedly broader than Pennsylvania's. Nunez, supra, __ F.3d at __ (slip op. at 6). Nevertheless, the court of appeals continued to adhere to the same narrow understanding of what it means to expunge a criminal record as expressed in Fraternal Order of Police and Puricelli. That is, the court held that criminal records remain available for many years before expungement is permissible and "[n]ews accounts of a defendant's criminal acts . . . may persist after obliteration of formal records." __ F.3d at __ (slip op. at 8-9). The court reasoned that such information is "never truly removed from the public record and thus is not entitled to privacy protection." Id. at __ n.6 (slip op. at 9 n.6) (quoting Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995)).

We need not further question the logic or persuasiveness of the Nunez decision. Our task is not to determine the scope of the federal constitution, but rather the boundaries of a state constitutional right of privacy that has already been found to be much broader. In examining whether the state constitutional right reaches far enough to protect the impermissible dissemination of expunged criminal records, we must look to our own expungement laws, which are indeed broad, and not the narrower principles adopted by a sister state as interpreted by a federal court.

Our Legislature has defined expungement as requiring "the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system." N.J.S.A. 2C:52-1(a) (emphasis added). Similarly, the phrase "expunged records" has been defined as including "complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, 'rap sheets' and judicial docket records." N.J.S.A. 2C:52-1(b). Clearly, the notion that expunged records remain available because they are on police blotters, court dockets or contained in other records is simply foreign to our expungement laws. Accordingly, we cannot accept as sufficiently persuasive or logical the view of the court of appeals regarding expunged records and the right of privacy in analyzing the parameters of our state constitution's reach. Nunez is best understood in light of Pennsylvania laws that have no application here and in light of a federal body of law that views the federal constitution as protecting against "public disclosure only [of] 'highly personal matters' representing 'the most intimate aspects of human affairs.'" __ F.3d at __ (slip op. at 9-10) (quoting Wade v. Goodwin, 843 F.2d 1150, 1153 (8th Cir. 1988)). Our state constitution has more expansive borders.

For these reasons, we are not inclined to assume that our state constitution takes as limited a view of what an individual may reasonably expect to remain private when that individual lawfully obtains an expungement order as does the federal constitution. Indeed, considering the validity of plaintiff's complaint was questioned by way of a Rule 4:6-2(e) motion, and considering also the novelty of the questions posed by this suit, plaintiff was entitled to the inference that he did possess a reasonable expectation of privacy in the expunged criminal records.

2. Competing Interests

Finding a reasonable expectation of privacy, however, does not necessarily preclude disclosure. Instead, once such an expectation is found, courts are required to balance the individual's right of privacy with the government's interest in disclosure; this requires consideration of seven factors:

(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access. [Doe v. Poritz, supra, 142 N.J. at 88 (quoting Faison v. Parker, 823 F. Supp. 1198, 1201 (E.D. Pa. 1993)).]

It perhaps suffices to observe that these factors require closer analysis than has yet occurred in the trial court, and that the skeletal record on appeal raises considerable doubt about whether such an analysis would permit the overriding of plaintiff's privacy interest in the expunged criminal records.

By way of example, the Court in Doe v. Poritz applied these factors regarding a convicted sex offender's privacy interests in governmental records that encompassed the offender's past criminal conduct and home address. The Court held that the offender's privacy interests in his past criminal conduct were outweighed by the overriding interest in protecting the public from the risk posed upon the offender's release, particularly in light of the Legislature's determination of the high rate of recidivism among sex offenders. Doe v. Poritz, supra, 142 N.J. at 89. A far less compelling case for disclosure is suggested here. Defendants apparently were of the belief that there was a public interest to be vindicated in revealing plaintiff's prior criminal record that was sufficient to counteract plaintiff's grievance regarding vacation time. With our intervening holding that plaintiff's prior criminal conviction did not warrant termination from public employment, Nunez, supra, 384 N.J. Super. at 350, what defendants may now assert as a public interest warranting the revelation of expunged criminal records is not at all clear or compelling. In addition, unlike the circumstances in Doe v. Poritz, the privacy interest here is not in competition with countervailing legislation; to the contrary, plaintiff's position appears to be entirely consistent with, and supported by, expungement laws that render confidential the information that defendants divulged during the arbitration.*fn9

We need not further canvass the other Doe v. Poritz factors or consider their application to the bare factual record before us. The matter being far from clear or certain, and the question posed being one of first impression, we need only conclude that such issues are not susceptible to resolution by way of Rule 4:6-2(e).*fn10

The order of dismissal is reversed and the matter remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.


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