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Main Street At Woolwich, LLC v. Ammons Supermarket, Inc.

Superior Court of New Jersey, Appellate Division

July 25, 2017


          Argued November 29, 2016

         On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1477-14.

          Marc 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 briefs).

          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).

          Before Judges Messano, Espinosa, and Guadagno.


          GUADAGNO, J.A.D. (retired and assigned on recall).

         Plaintiffs, 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 supermarket.

         The motion judge found defendants' litigation challenging the GDP was protected by the Noerr-Pennington doctrine[1] 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.

         While 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 actual grievances.

         We note 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)).

         Applying 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 competition.


         Plaintiffs 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.

         In 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.

         In 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.

         On 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.

         Frank 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 consolidated.

         On April 24, 2014, the Chancery Judge[2] 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.

         While the Ammons appeal was pending, Richard Matwes, a Senior Real Estate Director of the Wakefern Food Corporation (Wakefern), [3] telephoned Steven Wolfson, a representative of plaintiffs, and inquired whether plaintiffs would be willing to lease space at the Complex to the Ammons defendants.

         On 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).

         On 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.

         On 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.

         On 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 ...

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