MAIN STREET AT WOOLWICH, LLC, WOOLWICH COMMONS, LLC, and WOOLWICH CROSSINGS, LLC, Plaintiffs-Appellants,
AMMONS SUPERMARKET, INC., BENJAMIN AMMONS, R.S. GASIOROWSKI, ESQUIRE, and GASIOROWSKI & HOLOBINKO, Defendants-Respondents.
November 29, 2016
appeal from the Superior Court of New Jersey, Law Division,
Gloucester County, Docket No. L-1477-14.
B. Kaplin (Kaplin Stewart Meloff Reiter & Stein, P.C.) of
the Pennsylvania bar, admitted pro hac vice, argued the cause
for appellants (Kaplin Stewart Meloff Reiter & Stein,
P.C., attorneys; Daniel R. Utain and Mr. Kaplin, on the
Theodora McCormick argued the cause for respondents Ammons
Supermarket, Inc. and Benjamin Ammons (Epstein Becker &
Green, P.C., attorneys; Anthony Argiropoulos and Ms.
McCormick, on the brief).
Christopher J. Carey argued the cause for respondents R.S.
Gasiorowski, Esq. and Gasiorowski & Holobinko (Graham
Curtin, P.A., attorneys; Mr. Carey, of counsel and on the
brief; Jared J. Limbach, on the brief).
Judges Messano, Espinosa, and Guadagno.
GUADAGNO, J.A.D. (retired and assigned on recall).
Main Street at Woolwich, LLC (Main Street), Woolwich Commons,
LLC (Commons), and Woolwich Crossings, LLC (Crossings),
successfully defended against litigation brought by
defendants Ammons Supermarket, Inc. and Benjamin Ammons
(Ammons defendants) challenging the approval of a general
development plan (GDP) submitted by plaintiffs to build a
shopping complex in Woolwich Township (Woolwich Shopping
Complex or Complex). Plaintiffs then filed a three-count
complaint against the Ammons defendants, their attorney, R.S.
Gasiorowski, and his firm, Gasiorowski & Holobinko
(collectively Gasiorowski), alleging malicious abuse of
process (count one), tortious interference with a prospective
contract (count two), and civil conspiracy (count three).
Plaintiffs claimed defendants filed "sham litigation,
" intended solely to prevent competition with their
motion judge found defendants' litigation challenging the
GDP was protected by the Noerr-Pennington
doctrine and was not objectively baseless. The
judge dismissed plaintiffs' complaint pursuant to
Rule 4:6-2(e) for failure to state a claim upon
which relief can be granted.
we agree with the motion judge that the
Noerr-Pennington doctrine applies here, the judge
provided no support for her conclusion that the Ammons
challenge to the GDP was not objectively baseless, and she
failed to consider the findings of a prior judge who
dismissed the complaint. In addition, and as a matter of
first impression, we adopt the holding in Hanover 3201
Realty, LLC v. Village Supermarkets, Inc., 806 F.3d 162,
180 (3d Cir. 2015), cert, denied, __U.S.__, 136
S.Ct. 2451, 195 L.Ed.2d 264 (2016), and conclude that the
motion judge was required to consider the allegations in
plaintiffs' complaint that the Ammons action was part of
a pattern of sham litigation brought by defendants for the
purpose of injuring market rivals rather than to redress
that Rule 4:6-2(e) motions to dismiss "should
be granted in only the rarest of instances."
Printing Mart-Morristown v. Sharp Elecs. Corp., 116
N.J. 739, 772 (1989); see also Lieberman v. Port Auth. of
N.Y. & N.J., 132 N.J. 76, 79 (1993). The Rule
requires that plaintiffs must receive "every reasonable
inference of fact" and a reviewing court must search the
complaint "in depth and with liberality to ascertain
whether the fundament of a cause of action may be gleaned
even from an obscure statement of claim, opportunity being
given to amend if necessary." Printing Mart,
supra, 116 N.J. at 746 (quoting DiCristofaro v.
Laurel Grove Mem'l Park, 43 N.J.Super. 244, 252
(App. Div. 1957)).
the Printing Mart standard, we are satisfied that
sufficient facts were alleged to suggest defendants engaged
in sham litigation for the sole purpose of impeding the
development of plaintiffs' shopping center and to stifle
Main Street, Commons, and Crossings are the collective owners
of 244 acres of land in Woolwich Township. In 2007,
plaintiffs began efforts to develop the property as a
shopping complex. In 2008, the New Jersey State Planning
Committee approved the Township's petition for initial
plan endorsement which designated areas of the town as the
regional center. The Township then amended its zoning
ordinance to create zoning, subdivision, and land development
regulations for the regional center and re-zoned the property
to accommodate the Complex.
2009, plaintiffs submitted a GDP to Woolwich Township seeking
to develop approximately 1, 500, 000 square feet of
commercial and retail space on the property. The GDP proposed
the construction of Main Street, Commons, and Crossings, as
three separate retail and commercial developments. In 2010,
the Woolwich Township Joint Land Use Board (Board) approved
the GDP permitting Main Street, Commons, and Crossings to be
developed in three phases. At the time of the approval, there
was no mention of which stores would occupy the Complex.
April 2012, Commons submitted an application for site plan
approval for the development of the first phase of the
Complex. From the proposed site plan, it was learned for the
first time that a Wal-Mart Supercenter would be located
within the Commons. Because the proposed square footage of
the Wal-Mart exceeded that which was contained in the
original GDP, plaintiffs sought to amend the GDP. In December
2012, the Board approved an amended GDP which increased the
building area and added forty-one acres to the Crossings
development parcel. On October 3, 2013, the Board approved
the plaintiffs' unopposed final site plan.
January 17, 2013, Gasiorowski filed a complaint in lieu of
prerogative writs on behalf of the Ammons defendants against
plaintiffs and the Board. The complaint asserted improper
change of the phasing dates of the Complex; inadequate water
and sewer resources; improper addition of acreage to the
Crossings parcel; violations of the Municipal Land Use Law
(MLUL), N.J.S.A. 40:55D-1 to -163; inadequate proof to
support the variances and waivers; failure to comply with
notice requirements; and failure to set forth findings of
fact and conclusions of law.
Pagano, a Woolwich Township resident and a member of the
United Food and Commercial Workers Union, filed a similar
lawsuit. The Ammons and Pagano complaints were subsequently
April 24, 2014, the Chancery Judge granted summary judgment to
defendants and dismissed both complaints with prejudice. On
May 28, 2014, Gasiorowski filed a notice of appeal on behalf
of the Ammons defendants arguing that the GDP was void,
therefore rendering the amended GDP invalid, and that the
Board committed errors during the approval process. Pagano
did not appeal from the dismissal.
the Ammons appeal was pending, Richard Matwes, a Senior Real
Estate Director of the Wakefern Food Corporation (Wakefern),
telephoned Steven Wolfson, a representative of plaintiffs,
and inquired whether plaintiffs would be willing to lease
space at the Complex to the Ammons defendants.
August 7, 2015, we affirmed the Chancery Judge's decision
to grant summary judgment. We rejected Ammons' claim that
the Board did not have authority to consider the original GDP
or its amendments, and found several of Ammons' arguments
to be without sufficient merit to warrant discussion.
Pagano v. Woolwich Twp. Joint Land Use Bd., No.
A-4432-13 (App. Div. Aug. 7, 2015) (slip op. at 13, 17).
October 21, 2014, plaintiffs filed a complaint against Ammons
and Gasiorowski alleging malicious abuse of process in filing
the Ammons lawsuit; tortious interference with prospective
business contracts, specifically the prospective tenants in
the Woolwich Shopping Complex; and civil conspiracy to employ
sham litigation to impede, hinder, and delay competing
developments such as Wal-Mart.
September 18, 2015, a different judge (motion judge) heard
arguments on defendants' motions to dismiss and
determined that defendants enjoyed immunity conferred by the
Noerr-Pennington doctrine, and plaintiffs failed to
prove the sham exception to that doctrine as the complaint
was not objectively baseless. The motion judge dismissed the
complaint as to all defendants.
appeal, plaintiffs argue that their complaint is not barred
by Noerr-Pennington as it falls under the sham
exception; the Ammons litigation was objectively baseless;
the Noerr-Pennington doctrine is not applicable to
plaintiffs' claim for abuse of process; and the complaint
stated valid claims for malicious abuse of ...