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Linda Marcus, Mariann Gelenius, Frank Mazzini, Michela Viscardi v. Wayne Rogers

June 28, 2012

LINDA MARCUS, MARIANN GELENIUS, FRANK MAZZINI, MICHELA VISCARDI, CATHERINE SUTERA, TERI QUIRK, PLAINTIFFS-APPELLANTS,
v.
WAYNE ROGERS, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-4477-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 31, 2011

Before Judges Parrillo, Grall and Alvarez.

Plaintiffs, Linda Marcus, Mariann Gelenius, Frank Mazzini, Michela Viscardi, Catherine Sutera and Teri Quirk, and defendant, Wayne Rogers, are all teachers in the Saddle Brook School District and members of the Saddle Brook Education Association (the association). Plaintiffs hold positions in the association: Marcus is the president, Sutera and Quirk are chairpersons, Gelenius is a former chairperson, and Mazzini and Viscardi are members of the association's executive board.

The dispute that sparked this litigation arose when Wayne distributed e-mail communications between the plaintiffs at an association meeting. He was not a party to those e-mails. Thereafter, plaintiffs filed a civil action for damages pursuant to N.J.S.A. 2A:38A-3, a provision of the Computer-Related Offense Act (CROA), N.J.S.A. 2A:38A-1 to -6, and alleging violations of N.J.S.A. 2A:156A-3 and N.J.S.A. 2A:156A-27, for which civil actions are respectively available pursuant to N.J.S.A. 2A:156A-24 and N.J.S.A. 2A:156A-32, provisions of the New Jersey Wiretapping and Electronic Surveillance Control Act (WESCA), N.J.S.A. 2A:156A-1 to -34.

On cross-motions, the judge granted Wayne summary judgment on the alleged violation of N.J.S.A. 2A:156A-3, granted plaintiffs partial summary judgment on liability on the claim under N.J.S.A. 2A:38A-3, and denied their competing motions for summary judgment on the alleged violation of N.J.S.A. 2A:156A- 27. The remaining claims were tried to a jury, which returned a verdict of no cause on both claims.

This is plaintiffs' appeal. They contend that the judge erred in denying them full summary judgment on their claims under N.J.S.A. 2A:38A-3 and N.J.S.A. 2A:156A-27. In the alternative, they argue that the judge erred in denying their motion for judgment at the close of plaintiffs' case, at the close of trial and notwithstanding the verdict. Plaintiffs also assert that the judge erred in not redacting the e-mails, allocating the burden of proof, rejecting the verdict sheet they submitted and crafting one that was too complex, providing an inadequate jury instruction and expanding the scope of the jury issues after plaintiffs rested. For the reasons set forth below, we affirm.

The dispute arose while Wayne was using one of several computers that the district makes available to teachers in a central location in the school. Although the school's policy limits use to matters related to work, the teachers customarily use them to check their personal e-mail accounts as well as messages sent through the district's system.

One morning before school started, Wayne went to the computer room to check his work e-mails and took a beverage with him. As he placed that drink between the computer he was using and the one next to it, he bumped the mouse of the adjacent computer. The resulting movement of the mouse revealed the open inbox of a Yahoo e-mail account that Wayne later learned belonged to Linda Marcus. Someone other than Wayne, presumably Marcus in the absence of any evidence to the contrary, had accessed and neglected to log out of that e-mail account.

At the time, Wayne was dissatisfied with the step of the salary scale on which he had been placed under the association's new contract with the district, and he had been dealing with Marcus and other officials of the association in order to pursue that matter by grievance. He noticed that one of the subject lines for the e-mails in Marcus's inbox read "Wayne Update" and another read "We Did it." Assuming that the e-mail with his name related to his grievance, Wayne clicked on it and then on the e-mail entitled "We Did it." Each included a chain of correspondence between Marcus and various plaintiffs in this action. Wayne read them and then printed them.

The e-mail captioned "Wayne Update" included the following chain of messages:

[from Marcus]

I had an e-mail from Wayne this morning, congratulating me on my win. Then he went on to ask what was being done about his salary. I am ...


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