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Kommendant v. Diocese of Trenton


April 13, 2010


On appeal from the Superior Court of New Jersey, Monmouth County, Law Division, Docket No. L-3226-06.

Per curiam.


Submitted October 27, 2009

Before Judges Skillman and Gilroy.

Plaintiff Aado Edward Kommendant appeals from that part of the Law Division's September 12, 2008 order granting summary judgment to defendants St. John Vianney High School, Joseph Deroba and Kenneth Szyarto.*fn1 We affirm.


St. John Vianney High School (SJVH) is located in Holmdel Township. Plaintiff is a former teacher and varsity girls' softball coach of SJVH. Defendant Joseph Deroba is the school's principal; defendant Kenneth Szyarto is the school's athletic director; and defendant David Tuschmann, a corporal on the Holmdel Township Police Department, is the school's resource officer.

On July 10, 2006, plaintiff filed a four count complaint against the Diocese of Trenton, Bishop John M. Smith, SJVH, Deroba and Szyarto, alleging wrongful discharge in violation of public policy (count one); retaliation in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, (count two); breach of the covenant of good faith and fair dealing (count three); and intentional interference with his prospective economic advantage (count four). On August 30, 2007, plaintiff filed a motion seeking leave to file an amended complaint to not only name Tuschmann as a defendant, but also to include additional causes of action alleging a violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, (count five); malicious prosecution (count six); abuse of process (count seven); and a violation of his civil rights, contrary to 42 U.S.C.A. § 1983 (count eight). On September 20, 2007, the court entered an order granting the motion; however, plaintiff consented to the court dismissing the CEPA claim in count five. Plaintiff filed the amended complaint on October 23, 2007.

On February 15, 2008, the trial court granted Tuschmann summary judgment. On September 12, 2008, the court entered an order supported by an oral decision granting summary judgment to the remaining defendants.

Plaintiff began employment with SJVH as a freshman softball coach in 1993, and became the varsity girls' softball coach in 1998. SJVH also employed plaintiff as a substitute teacher until the end of the 2003 spring semester.

During the summers, plaintiff also coached a girls' softball team comprised mainly of SJVH's softball team players. The summer team raised money to pay for uniforms, equipment and a portable field fence. Plaintiff intended to use the fence for both the summer team and the SJVH team.

SJVH permitted sports teams to raise funds for items not included in the school's annual athletic budget; however, all raised funds were to be turned over to the school and reported in the school's accounting system. Coaches could purchase items for their teams via a purchase order initialed by the athletic director and signed by the principal.

On May 20, 2003, plaintiff complained to Szyarto concerning disparity in treatment between boys and girls' athletics programs, specifically, as it affected the girls' softball teams. In early 2004, Deroba asked plaintiff to turn in all funds raised by the softball teams to the school's bookkeeper. After plaintiff turned in only $65, Deroba requested that plaintiff provide an accounting of the funds collected. Plaintiff's accounting showed that he had purchased the portable field fence in February 2004 without a pre-approved school purchase order.

Following the 2004 softball season and after several occurrences of vandalism to SJVH's athletic facilities and equipment, plaintiff removed the fence and stored it at the home of one of his players for safekeeping, without notifying Deroba. Deroba demanded that plaintiff return the fence; however, plaintiff refused.

On June 9, 2004, Deroba instructed the school secretary to prepare a letter for his personal delivery to plaintiff demanding that plaintiff return the fence, and advising that if he failed to comply, "the incident will become a police matter." Deroba delivered the letter to plaintiff in the presence of Tuschmann. On June 24, 2004, Deroba advised Tuschmann that plaintiff had not returned the fence. Tuschmann filed a police report of the incident, indicating that he would file a formal complaint for theft against plaintiff with the Holmdel Township Municipal Court.

On June 21, 2004, plaintiff filed a complaint with the Office of Civil Rights, United States Department of Education, New York, asserting the existence of inequities at SJVH between the male and female athletic programs in violation of Title IX of the Education Amendments of 1972. 20 U.S.C.A. § 1681 to § 1688. Specifically, plaintiff complained of "a great disparity" in the amounts that "coaches of female sports are paid as opposed to their counterparts that coach male sports"; the condition and location of the boys' and girls' athletic fields; and the distribution of school donations to the boys' baseball program and the girls' softball program. On July 20, 2004, the Office for Civil Rights sent plaintiff a letter advising that the agency was closing his complaint against SJVH because "the School does not receive financial assistance from the Department, nor is the School a public school." In the interim, on June 30, 2004, Tuschmann filed a complaint-summons against plaintiff in the Holmdel Township Municipal Court for theft of the fence.

On July 8, 2004, Deroba informed plaintiff that the school did not intend to renew his employment contract for the upcoming school year. As a condition for receiving his last paycheck, Deroba again demanded plaintiff return the fence. Plaintiff complied, and also handed Deroba a check payable to SJVH in the amount of $359.50, representing funds raised by the softball team. At the time Deroba tendered plaintiff his last paycheck, he requested plaintiff return the girls' softball team trophies that were in his possession. However, upon plaintiff's request, Deroba allowed him to retain possession of the trophies until after the softball team banquet, which was scheduled to occur in the near future.

In January 2005, Deroba reported to Tuschmann that he had received an anonymous voicemail message stating that plaintiff maintained an account at Commerce Bank under the name of "Vianney Softball." The caller further alleged that this account contained funds raised by the SJVH softball team while plaintiff was coach, and that plaintiff had misused these funds. Tuschmann prepared a police report based on this information and turned the matter over to Holmdel Township Detective Sergeant James Smyth.

On April 12, 2005, plaintiff turned over one of the softball team trophies to the Holmdel Township Police Department. According to plaintiff, that was the only trophy then in his possession, with team members' parents having possession of five other trophies. On April 19, 2005, Tuschmann filed a second complaint-summons against plaintiff, alleging theft of five trophies. Plaintiff attempted to have the parents return the trophies to Assistant School Principal Steven DiMezza, but DiMezza refused to accept them, directing that the parents return the trophies to the police department. The parents returned the trophies as directed.

On June 13, 2005, the municipal court convicted plaintiff on the two counts of theft, determining that the fence belonged to the school, regardless of who had raised the money and purchased the fence. It concluded that, although plaintiff had legally possessed the fence and trophies initially, he committed theft when he failed to return the items upon the school's request. Plaintiff appealed. On November 10, 2005, the Law Division again found plaintiff guilty on the two theft charges.

In the summer and fall of 2005, Detective Teresa Wilbert of the Monmouth County Prosecutor's Office conducted an investigation into the allegations that plaintiff had misappropriated school funds from the "Vianney Softball" team bank account. On November 14, 2005, Detective Wilbert testified before a Monmouth County Grand Jury concerning her investigation, and on December 12, 2005, the Grand Jury charged plaintiff with third-degree theft by deception, N.J.S.A. 2C:20-4. The trial resulted in a mistrial after the jury failed to reach a verdict.

Following the mistrial, plaintiff filed a motion seeking a judgment of acquittal pursuant to Rule 3:18-2, contending that the State was unable to prove the charge of theft by deception. The court granted the motion, entered a judgment of acquittal, and dismissed the indictment.

On October 26, 2006, we reversed plaintiff's two disorderly persons convictions for the theft of the fence and trophies. State v. Kommendant, No. A-2101-05 (App. Div. October 26, 2006) (slip op. at 8). We concluded that the State had failed to prove that SJVH owned the fence or that plaintiff's "purpose in removing the fence was to deprive [SJVH] of the movable property." Id. at 7. As to the trophies, we determined that the State failed to prove beyond a reasonable doubt that plaintiff "had the trophies, and that he intended to deprive [SJVH] of them and covert them for his own use." Id. at 8.

On September 12, 2008, the trial court entered an order supported by an oral decision granting summary judgment to all remaining defendants, Tuschmann having been granted summary judgment on February 15, 2008. The court reasoned:

. . . St. John Vianney High School is a nonprofit corporation of the State of New Jersey. It cannot and does not receive any direct assistance from the Federal government.

[Plaintiff] filed a complaint against the Diocese of Trenton, St. John Vianney, the principal, and others . . . [In his] first count of the complaint, the plaintiff asserts a claim for wrongful discharge and improper retaliation for complaining inside and outside the school about a clear violation of public [policy] in the State.

That appears to be a claim for wrongful discharge. And . . . there's a two-year statute of limitations for that. In this case, [plaintiff] was notified that his contract would not be renewed on July 8th, 2004 . . . and to return all the items. His complaint, which was filed on July 10th, 2006, was untimely. And so the first count of the complaint is dismissed on that basis.

As to the sixth count of the complaint, he asserts a claim for malicious prosecution based on school officials allegedly conspiring with the School Resources officer - - that's . . . Corporal Tuschmann[,] to file criminal charges for theft and misappropriation as [applicable].

I'll note that the plaintiff had been warned to return a fence and trophies to the school. He refused to do so. That prompted the theft charges that were pursued by the Holmdel Prosecutor. The Municipal Court Judge found him guilty of those charges. In fact, [the Law Division] also found him guilty - - but he was, again, reversed in the Appellate Division.

The elements of a cause of action for malicious prosecution are a criminal action was initiated by a defendant against the plaintiff. That it was actuated by malice. That there was . . . an absence of probable cause for the proceeding and that proceeding was terminated favorably to the plaintiff. Myrick [v. Resorts Int'l Casino & Hotel, 319 N.J. Super 536 (App. Div. 1999)].

As a matter of law, the plaintiff can't satisfy these essential requirements. He has not shown malice. He has not shown that there was an absence of probable cause. So that - - and as a matter of law, the plaintiff cannot satisfy an essential requirement because - - even if it's reversed on appeal. So, that's Freeman v. State, 347 [N.J. Super.] 11 [(App. Div. 2002)].

And in the seventh count of the complaint, the plaintiff alleges abusive process. And that arises out of a settlement agreement and release that was presented to him during mediation at a Municipal Court [proceeding].

A . . . cause of action for malicious abuse of process requires proof of the improper, unwarranted, and perverted use of the process after it has been issued, and further acts which show a defendant is using the judicial process as a means to coerce or oppress the plaintiff. Tedards v. Auty, 232 [N.J. Super. 541 (App. Div. 1989)].

Here, there was a . . . mediation scheduled by the Municipal Court. [Plaintiff] was represented by [c]counsel, and he declined through [c]counsel to resolve the matter. That certainly doesn't show that they were coercing or oppressing him. He went . . . voluntarily to this mediation process. He didn't like what the offer was. That certainly isn't coercive or oppressive.


On appeal, plaintiff argues that the trial court erred: 1) in dismissing his claim for wrongful termination in violation of public policy, contending that material questions of fact existed precluding summary judgment; 2) in dismissing his claim for malicious prosecution "as the factual issues and state of mind determinations raised by [that claim] should have been determined by a jury"; and 3) in dismissing his claim for abuse of process because he was not required to prove probable cause.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2010). We employ the same standard that governs trial courts when reviewing summary judgment orders. Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).

Defendant first challenges the trial court's dismissal of count one, alleging wrongful termination of employment in violation of public policy. Defendant argues that the court erred in determining that the claim was barred by the two-year statute of limitations. Plaintiff contends that SJVH wrongfully refused to renew his employment contract in retaliation for the complaint he filed with the Office for Civil Rights, United States Department of Education, concerning SJVH's disparate treatment between male and female athletes.

"[A]n employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy." Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980). "The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions." Ibid. Additionally, "[i]n certain instances, a professional code of ethics may contain an expression of public policy." Ibid.

We agree that the trial court mistakenly dismissed plaintiff's claim for wrongful termination in violation of public policy as time barred. Deroba informed plaintiff on July 8, 2004, that SJVH did not intend to renew plaintiff's employment contract for the upcoming school year. As such, plaintiff's complaint should have been filed on or before July 8, 2006. However, the complaint was not filed until Monday, July 10, 2006. Nevertheless, because July 8, 2006, fell on a Saturday, plaintiff's complaint was timely filed. R. 1:3-1 (providing in part "[t]he last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which the event the period runs until the end of the next day which is neither a Saturday, Sunday, nor legal holiday").

Although we disagree with the trial court's reason in granting summary judgment on count one, we are satisfied that the court correctly dismissed the claim. Appeals are taken from judgments, not from oral opinions. Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973), certif. denied, 64 N.J. 513 (1974). An order of judgment will be affirmed on appeal if it is correct, even though the judge gave the wrong reasons for it. Isko v. Planning Bd. of Twp. of Livingston, 51 N.J. 162, 175 (1968).

We conclude that plaintiff failed to prove a prima facie claim for wrongful discharge under Pierce. Although plaintiff alleges that SJVH retaliated against him by not renewing his upcoming employment contract because he had filed a complaint with the Office for Civil Rights, plaintiff failed to present evidence establishing a causal connection between his filing of the complaint and SJVH's failure to renew his employment contract. The record is devoid of evidence showing that Deroba or any other school official knew of plaintiff having filed the complaint prior to Deroba informing plaintiff that SJVH did not intend to renew his employment contract the upcoming year. What is more, plaintiff failed to prove that SJVH's disparate treatment between the boys' and girls' athletic programs, if true, a fact we need not decide, was contrary to Title IX.

To prove a cause of action under CEPA, an employee need not prove that the activity complained of actually violated a law or public policy; the employee only needs to prove that he or she possessed a reasonable belief that the law or policy had been violated. N.J.S.A. 34:19-3a and 3c; Regan v. City of New Brunswick, 305 N.J. Super. 342, 355-56 (App. Div. 1997). See also Mehlman v. Mobil Oil Corp., 291 N.J. Super. 98, 123 (App. Div. 1996) (holding that "[t]he sine qua non of a CEPA claim is not the actual occurrence of a violation of promulgated authority or public policy, but rather the existence of a reasonable belief to the effect that such authority or policy has been breached"), aff'd, 153 N.J. 163 (1998).

By contrast, under the common law, the employer must have retaliated against the employee's actions in reporting an actual violation of a specific public policy. See Chelly v. Knoll Pharmaceuticals, 295 N.J. Super. 478, 488 (App. Div. 1996) where we held:

It is not just a possible breach of some common law duty or policy concern that will satisfy the [Pierce] threshold. A discharged at-will employee who claims wrongful termination under Pierce must identify "a clear mandate," that is a clear "specific expression" of public policy that has been violated by the employer and in response to which the employee had taken the action that has prompted his discharge. The sources of such "specific expressions" or "clear mandates" are statutes, regulations and judicial decisions, and may "in certain instances," include a professional code of ethics. [(quoting Pierce, supra, 84 N.J. at 72) (internal citation omitted) (emphasis added).]

Title IX does not apply to SJVH because it is a parochial school that does not receive federal financial assistance. 20 U.S.C.A. § 1681(a) (providing that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." (emphasis added)); see also L.W. v. Toms River Reg'l Schs. Bd. of Educ., 189 N.J. 381, 405 (2007) (holding that "Title IX prohibits only recipients of federal educational funds from discriminating against students based on sex"). Because SJVH receives no federal funding and thus the manner in which it treated the boys' and girls' athletic programs did not violate Title IX, plaintiff cannot prove a prima facie claim for wrongful discharge under Pierce. Plaintiff's belief to the contrary is insufficient to establish a cause of action. Chelly, supra, 295 N.J. Super. at 487; see also Mehlman, supra, 291 N.J. Super. at 125 n. 12.


We have considered plaintiff's remaining arguments in light of the record and applicable law. We affirm substantially for the reasons expressed by the trial court in its oral decision of September 12, 2008. Nevertheless, we add the following comments.

Plaintiff argues that the trial court erred in dismissing his claim for malicious prosecution, contending that he had presented sufficient evidence to establish a prima facie cause of action. We disagree.

"Malicious prosecution provides a remedy for harm caused by the institution or continuation of a criminal action that is baseless." LoBiondo v. Schwartz, 199 N.J. 62, 89 (2009). To prove a claim for malicious prosecution of a criminal complaint, a plaintiff must establish: "(1) a criminal action was instituted by [the] defendant against [the] plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to the plaintiff." Id. at 90; see also Lind v. Schmid, 67 N.J. 255, 262 (1975). Additionally, if the complaint forming the basis of a cause of action alleged a disorderly persons offense, not a criminal violation, then plaintiff must also prove that he suffered a special grievance. Klesh v. Coddington, 295 N.J. Super. 1, 4 (App. Div. 1996), certif. denied, 147 N.J. 580 (1997). "Special grievance consists of interference with one's liberty or property." The Penwag Prop. Co., Inc. v. Landau, 76 N.J. 595, 598 (1978). If in a disorderly persons prosecution, the defendant was arrested, held for bail, or incarcerated for a period of time, such actions would satisfy the special grievance factor. Klesh, supra, 295 N.J. Super. at 4.

Although a malicious prosecution cause of action consists of several elements, "[t]he essence of the cause of action is lack of probable cause." Lind, supra, 67 N.J. at 262. Thus to recover, a "plaintiff must establish a negative, namely, that probable cause did not exist." Id. at 263. Probable cause has been defined as "'reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the accused is guilty of the offense which he is charged.'" Ibid. (quoting Lane v. Pennsylvania R.R. Co., 78 N.J.L. 672, 674 (E.&A. 1910)). Properly phrased, the question is: "Was the state of facts such as to lead a person of ordinary prudence to believe on reasonable grounds the truth of the charge at the time it was made?" Ibid.

A grand jury's returning of an indictment is prima facie evidence of probable cause. Zalewski v. Gallagher, 150 N.J. Super. 360, 368 (App. Div. 1977); see also Galafaro v. Kuenstler, 53 N.J. Super. 379, 385 (App. Div. 1958). Such evidence of probable cause, however, may be rebutted by other evidence in the case. Zalewski, supra, 150 N.J. at 367. Proof of an indictment "may be enough to exculpate a person defending a malicious prosecution action brought by a person indicted until that person has proved some fact other than his acquittal from which malice or lack of probable cause might be inferred." Ibid.

Similarly, a municipal court conviction raises a presumption of probable cause, even if the conviction is later reversed on appeal. Lind, supra, 67 N.J. at 265; Freeman v. State, 347 N.J. Super. 11, 26 (App. Div.), certif. denied, 172 N.J. 178 (2002). The presumption, however, may be rebutted by the municipal court record. Lind, supra, 67 N.J. at 265-66. The question turns on "whether the [municipal court's] determination was based on evidence from which a reasonable inference of probable cause might be drawn." Id. at 266. If it was, then the municipal court's adjudication should preclude the malicious prosecution action. Id. 265-66. If not, then the action may proceed. Id. at 266. However, if the municipal court erred as a matter of law, for example, made factual findings unsupported by substantial evidence or the municipal court convictions were obtained by "fraud, perjury, or other corrupt means," the conviction would have to be reversed and as such, could not serve as a basis for a finding of probable cause. Ibid.

Here, even assuming that plaintiff could establish other elements for a malicious prosecution cause claim, we conclude that plaintiff failed to establish lack of probable cause. As to the charge of misappropriation of funds, defendant was tried pursuant to an indictment returned by a grand jury after the matter was investigated by the Monmouth County Prosecutor's Office. The indictment raised a presumption of probable cause. Although plaintiff was acquitted via a post-trial motion for judgment of acquittal, we are satisfied that after giving plaintiff all favorable inferences, the trial court correctly determined that plaintiff failed to present sufficient evidence of lack of probable cause to submit the issue to the jury.

As to the disorderly persons offenses, defendant was found guilty in the municipal court and again on appeal de novo. Although we subsequently reversed the two municipal court convictions on appeal, the convictions in the municipal court and on appeal de novo raised a presumption of probable cause.

Lind, supra, 67 N.J. at 265; Freeman, supra, 347 N.J. Super. at 26. The trial court had before it on the motion for summary judgment the record of municipal court proceedings, and made a determination that plaintiff failed to prove "an absence of probable cause." We are satisfied the trial court correctly concluded that plaintiff failed to present evidence to overcome the prima facie presumption of probable cause in prosecuting the disorderly persons complaints.*fn2


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