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Gary L. Stolinski v. Sgt. Jay Pennypacker

February 16, 2011

GARY L. STOLINSKI, HON. JEROME B. SIMANDLE PLAINTIFF,
v.
SGT. JAY PENNYPACKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

I. INTRODUCTION

Plaintiff Gary L. Stolinski is a Sergeant with the New Jersey State Police. On July 15, 2005, a New Jersey state grand jury indicted him on three criminal counts relating to his entering false information on credit card applications. One count of the indictment was based on Stolinski having obtained the social security number of an Arizona resident to commit identity theft. The charges against Stolinski were ultimately dismissed by the prosecutor when she discovered that, with respect to the identity theft charge, Stolinski had not obtained personal information from the Arizona resident; instead he had entered his business's tax ID in the application's space for a social security number, which tax ID is coincidentally identical to the Arizona resident's social security number.

Plaintiff filed this action for malicious prosecution, among other claims, against the State of New Jersey, the New Jersey State Police Office of Professional Standards, and four individual state police officers, alleging that Defendants violated his rights under the United States Constitution and New Jersey law. Having previously dismissed some of the claims and the institutional defendants [Docket Item 34],*fn1 the matter is now before the Court on motions for summary judgment filed by the remaining individual Defendants: the lead police investigator, Defendant Pennypacker [Docket Item 97], and his supervisors, Defendants Hurley and Koshland [Docket Item 95]. Defendants have also jointly filed a motion to strike Plaintiff's expert report [Docket Item 93].

The principal issue to be decided is whether New Jersey law permits recovery for malicious prosecution for an individual charged in a multi-count indictment for which probable cause was lacking for a charge that carried a lower maximum penalty than at least one of the charges for which probable cause was present.

For the reasons explained below, the Court will grant Defendants' motions for summary judgment as to all claims, which moots the motion to strike the expert report.

II. BACKGROUND

A. Mount Laurel Police Department Investigation

On August 11, 2004, an individual living in Arizona, known herein as LG, filed a police report with the Flagstaff Police Department stating that American Express had informed him that someone in Mt. Laurel, New Jersey was using his personal William Rudderow, and the individual Defendants in their official capacities. [Docket Item 34.] The Court also dismissed all claims except for the § 1983 false arrest claim, § 1983 conspiracy claim, state law malicious prosecution and abuse of process claims, and invasion of privacy claims. information in an attempt to obtain a credit card. (Pl.'s Ex. B-4, Flagstaff Police Report, JP2801-2802.)*fn2 On the same day, LG also contacted the Mount Laurel police department. (Pl.'s Ex. B-3, Statement of Det. Pincus, March 15, 2005, JP2580-2588, at JP2582.)

After a brief investigation, on September 20, 2004, Detective Edward Pincus went to the address listed on the credit applications and interviewed the man living there, who turned out to be Plaintiff, Mr. Stolinski. (Id. at JP2583.) When Det. Pincus advised Stolinski that he was investigating identity theft, Stolinski identified himself and informed Det. Pincus that he was a State Trooper. (Id. at JP2584.) Mr. Stolinski told Det. Pincus that he had put the tax ID number of his business, GS Tickets, in the space for the social security number by mistake. At that time, the other errors on the application, including an incorrect date of birth and misspelled name, were not discussed. (Id.; Ex. B-4, Reportable Incident Form 2004-0805, JP2797-2798.)

As it turns out, Plaintiff's tax ID number is numerically identical to the social security number of the Arizona resident. In the investigation that followed, the principal investigator failed to verify this exculpatory fact. As explained below, this failure, along with false grand jury testimony about the tax ID, resulted in Stolinski being charged with identity theft in addition to other charges related to credit card fraud.

B. Pennypacker's Investigation for the State Police

On September 21, 2004, Detective Sergeant William Rudderow of the Mt. Laurel Police Department contacted Defendant Daniel Hurley at the New Jersey State Police, Office of Professional Standards, and advised Hurley of the status of the case involving Stolinski. (Mt. Laurel Police Report at JP01419.) Though initially assigned to Acting Detective Sergeant John McNally, at some point between December 2004 and January 6, 2005, the investigation was transferred on the order of Defendant Bradford Koshland to Koshland's Unit, and Koshland assigned Defendant Pennypacker to investigate. (Koshland Dep. 65:7-13, 68:24-69:1; Pennypacker Dep. 30:13-31:2.)

Some of the details of Pennypacker's investigation are disputed or unclear. But key facts are undisputed. First, Pennypacker learned that Stolinski submitted at least ten credit card applications between May 16, 2004 and September 1, 2004 which contained incorrect and conflicting information. Stolinski admits that he filled out more than ten credit applications (Stolinski Dep. 60:21-22), and that he made a substantial number of errors with respect to his name and his date of birth. (Id. 65:2-10, 69:10-15, 70:23-71:15.)*fn3 Although Stolinski disputes the intentionality of any of the errors, it is undisputed that Stolinski submitted applications with transposed numbers in his tax ID and social security number, transposed digits in his own birthday, and incorrect variations on his name. According to the evidence relied upon by the police, he also identified GS Tickets as being structured variously as a corporation, a partnership, or a sole proprietorship, stated different amounts of business revenue, and entered his business's tax ID number where a social security number was to be entered.

It is also undisputed that GS Tickets, the business whose tax ID is at the center of this case, exists on paper. But GS Tickets never did any business. It is a sole proprietorship that never generated any revenue. (Stolinski Dep. 11:5-7, 12:24-13:6.) Despite being named GS Tickets, according to Stolinski, it was "supposed to sell individual items, nothing specific, you know, household items, whatever it was. . . . [J]ust basically anything, you know, buy and sell, eBay stuff, that kind of stuff, nothing specific. . . . to sell things through the internet or to, you know, friends, other persons, nothing specific." (Id. 9:13-25.) GS Tickets never bought or sold any item, and had no website. (Id. 10:11-11:2.)

Finally, it is undisputed that Pennypacker was aware of the fact that Stolinski was substantially indebted (in the amount of approximately $53,000 excluding his home mortgage) and was behind on his payments by thousands of dollars when he was submitting these multiple erroneous credit applications. (Ex. B-6, OPS Memorandum, JP 4667.) Mr. Stolinski filed for bankruptcy on December 3, 2004, though it is unclear when Pennypacker learned this. (Pl.'s Ex. B-6, Chapter 13 Plan, JP3817.)

The key material dispute regarding Pennypacker's investigation is over his purported effort to verify Stolinski's story regarding the tax ID number. In mid-April 2005, Pennypacker filed a financial query (a so-called FinCEN Query) with the State Police Official Corruption Unit, in what he now describes as an effort to determine whether GS Tickets had actually been assigned a tax ID number matching LG's social security number. (Pl.'s Ex. B-2, Investigation Report, JP2525-26.) Pennypacker testified that this request "would let [him] know or vet the fact that the number was issued or valid as a Tax ID number," and that he "felt that through sending in that FinCEN request and the return replies that I got, that that information to me meant that there was no tax ID number." (Pennypacker Dep. 69:7-11, 84:1-12.)

Plaintiff maintains that Pennypacker knew that a FinCEN Query would not verify the validity of the tax ID. No part of the request form indicates that it seeks to verify the tax number, and the report that the request generated makes no mention of the tax ID. The only plausibly relevant statement on the report is that "A check of D&B's public records database indicates that no filings were found for GS Tickets," but the next paragraph states that the database includes "business-related suits, liens, judgments, bankruptcies, UCC financing statements and business registrations from every state and the District of Columbia." (Investigation Report at JP 2595.) Pennypacker's contemporaneous discussion of the FinCEN report in his Investigative Report is somewhat brief, and does not note the presumably important finding he believed he made from the report that the tax ID allegedly used by GS Tickets did not exist. During his investigation, Pennypacker never contacted the IRS to determine whether or not there was a federal tax ID for GS Tickets (Pennypacker Dep. 69:1-11.) Pennypacker also never interviewed Stolinski for his investigation. He e-mailed Captain Daniel Hurley for permission to do so, but permission was denied because "it appear[ed] that the evidence [was] overwhelming and there [was] little the Trooper could add to a statement to assist his cause." (Pennypacker Dep. 88:5-89:8.)

C. Drafting of Indictment

On May 13, 2005, Pennypacker met with Deputy Attorney General Susan Kase.*fn4 Three days later, apparently having reviewed Pennypacker's Investigation Report, DAG Kase proposed an indictment which included charges for credit card fraud and official misconduct as well as a charge for identity theft, which requires the accused to have obtained the personal information of another. See N.J. Stat. Ann. § 2C:21-17a(4). Plaintiff maintains that DAG Kase and Pennypacker collaborated on the drafting of the prosecution memo and indictment, but there is no evidence that Pennypacker did anything more than review the documents. (Defs.' Ex. A-1, Memorandum of May 16, 2005, JP00036; Defs.' Ex. A-1, Memorandum of June 29, 2005, JP00088; Pennypacker Dep. 128:7-21.) The six-page prosecution memo discusses use of a "false social security number," among other false information, but does not state that this number was obtained from LG. (Ex. B-1, Prosecution Memorandum of July 8, 2005, JP00129-JP00134.) The memo reports Stolinski as claiming that there was a "misunderstanding" regarding the tax ID number but does not state whether the number was in fact the tax ID number of GS Tickets, and does not discuss how the prosecution theorizes that Stolinski was able to obtain the social security number from LG. (Id.) Nevertheless, the memo proposed an identity theft charge.

D. Arrest

Pennypacker delivered a target letter to Stolinski, but did not arrest him. (Pennypacker Dep. 87:14-88:4.) Stolinski was subsequently required to be "processed" by the New Jersey State Police, which included a visit to the station during which his finger prints were taken. (Stolinski Dep. 92:10-15.) He cannot recall who told him he must do so, he was free to leave, and he denies ever having been arrested. (Id.)

E. Grand Jury

Before the grand jury, Pennypacker testified about his investigation. He testified about the credit application which American Express had alerted LG about, containing the name "G. Stolins," an incorrect date of birth, and having LG's social security number entered in both the social security number and tax ID slots. (Ex. B-1, Grand Jury Transcript, JP2431-2475, at JP02440.) He also testified at length about other credit applications with incorrect information made by Stolinski. Importantly, he told the grand jury about Stolinski's explanation that he put his business tax ID in the wrong slot by mistake. (Id. at JP02445.) This revelation led to the logical follow-up question from the Grand Jury regarding whether or not GS Tickets existed and whether that was its real tax ID number. (Id. at JP02469-70.) Consequently, DAG Kase recalled Pennypacker and had the following exchange:

Q: This was another question, do you know whether GS Tickets exists and has a tax ID number?

A: Right. We did a financial lookup on Sergeant Stolinski, and in April of '04 he registered himself as the president of GS Tickets. GS Tickets'[s] registered business address is 407 Trescott Place, Mount Laurel, New Jersey. Did that answer the question?

Q: Yes. Does it have a tax ID number?

A: No.

Q: So, in the event a business does not have a tax ID number, what ...


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