On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-28-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2012
Before Judges Grall and Hayden.
Plaintiff Betty J. Ford-White, a former employee of defendant Middle Township Board of Education (Board), filed a complaint charging the Board and its business administrator, Walter F. Landgraf, with malicious abuse and use of process, libelous defamation and negligently accusing her of theft. The trial judge dismissed her claims based on defamation and negligence for failure to file a timely notice of claim as required by the Tort Claims Act, N.J.S.A. 59:8-3 to 8-11. Subsequently, the judge granted summary judgment in favor of defendants on the malicious prosecution claims.
While employed by the Board as a "bus aide," plaintiff was also working as a "school aide" for the Cape May County Special Services School District. Landgraf, in the course of performing his duties related to the Board's budget, discovered that plaintiff was presenting time sheets to both districts reflecting the same hours of work. Bus aides were required to fill out time sheets each week reflecting the start and end times for their respective bus routes. Bus aides, however, were paid for five and three-quarters hours each day they worked, regardless of their actual hours, because the travel time varied, and they were paid the same amount each pay period. Nevertheless, the transportation supervisor made it clear that the employees were to report their actual time, and that he would adjust an employee's base hours if actual hours were consistently fewer than the five and three-quarters base hours. Plaintiff acknowledged that she consistently signed in as working for both the Special Services School District and the Board during the same hours. Upon detecting the overlapping hours, Landgraf advised the Superintendent, who directed him to advise the Board's solicitor.
After Landgraf met with the attorney, the Superintendent asked the Cape May County Prosecutor to investigate. A detective from that office interviewed Landgraf and the business administrator for the Special Services School District on June 23, 2008. On July 31, 2008, the detective asked plaintiff to give a statement, but plaintiff declined.
Plaintiff was arrested for theft on August 20, 2008. When she returned to work in September 2008, she was suspended without pay. On September 16, 2008, at the request of plaintiff's attorney, the detective interviewed the transportation supervisor and learned about the "base hour" pay. Prior to that, the prosecutor's investigation had focused only on the time sheets. As a consequence of the information obtained during the September 16 interview, on November 25, the prosecutor advised plaintiff that the charge had been dismissed.
Plaintiff's claims of malicious prosecution were based on the fact that Landgraf reported her for theft because of time sheets that she had completed as directed. According to the detective, Landgraf was interviewed and inquired about the status of the investigation from time-to-time, but he never pressured or encouraged prosecution.
For reasons stated in a memorandum of decision filed on June 26, 2008, Judge Todd determined that N.J.S.A. 59:8-9 required dismissal of plaintiff's claims of libel and negligence because she failed to file notice of those claims within ninety days of their accrual, N.J.S.A. 59:8-8. He found that those claims accrued on September 3, 2008, because plaintiff knew of the injuries caused by the report on that date. Thus, the judge concluded that plaintiff had until December 2, 2008 to file her notice of claim, however, she did not file her complaint until January 8, 2009, and did not send a notice of claim until February 19, 2009. Cf. N.J.S.A. 59:8-8 (requiring the notice of claim to be filed before the complaint).
Judge Todd also considered whether plaintiff had shown extraordinary circumstances warranting an extension of the ninety-day period. He determined that she had not.
The judge did not dismiss plaintiff's claims based on malicious prosecution, however, because he concluded that those claims did not accrue until November 25, 2008, when plaintiff was notified that the charge had been dropped. The judge dismissed those claims on defendants' motion for summary judgment on the ground that plaintiff could not establish malice. On August 25, 2011, the judge issued a memorandum of decision setting forth his findings and reasons for concluding that defendants were entitled to judgment on these claims as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On appeal plaintiff argues:
I. THE SUMMARY JUDGMENT OF AUGUST 25, 2011 SHOULD BE OVERTURNED REINSTATING COUNTS ONE AND TWO OF THE CIVIL COMPLAINT SINCE THERE IS A GENUINE ISSUE OF FACT AS TO WHETHER OR NOT THE ...