GENOVA BURNS LLC Peter F. Berk, Esq. (018592000) 494 Broad Street Newark, New Jersey 07102 (973) 533-0777 Attorneys for Defendants, New Jersey Firemen's Home, Hugh E. Flood, Oscar Dutch, Jr., Kenneth Silvestri, Harry T. Strube, Harry DeDreu, Anthony Grenci, Philip Valese, Cassmiro DeLaurentis, Jr., Thomas J. Murray, Jr., Anthony Frato, Sr., Robert W. Sanders, Thomas Miserendino, James A. Matthews, Gregory D. Leonberg, Sr., Gilbert W. Lugossy, Thomas G. Sutphen and Lester V. Denny
GEORGE H. HEFLICH, SR., Plaintiff,
SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MORRIS COUNTY DOCKET NO. MRS-L-57-15
v. Civil Action NEW JERSEY FIREMEN'S HOME, HUGH E. FLOOD, OSCAR DUTCH, JR., KENNETH SILVESTRI, HARRY T. STRUBE, HARRY DeDREU, ANTHONY GRENCI, PHILIP VALESE, CASSMIRO DeLAURENTIS, JR., THOMAS J. MURRAY, JR., ANTHONY FRATO, SR., ROBERT W. SANDERS, THOMAS MISERENDINO, JAMES A. MATTHEWS, GREGORY D. LEONBERG, SR., GILBERT W. LUGOSSY, THOMAS G. SUTPHEN and LESTER V. DENNY.
NOTICE OF MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO R. 4:6-2(e)
Defendants.
TO:
Mark W. Catanzaro, Esq. Law Office of Mark W. Catanzaro 21 Grant Street Mount Holly, New Jersey 08060
COUNSEL: PLEASE TAKE NOTICE that on June 12, 2015, at 9 o'clock in the forenoon, or as soon thereafter as counsel may be heard, the undersigned, attorneys for Defendants, New Jersey Firemen's
Home, Hugh E. Flood, Oscar Dutch, Jr., Kenneth Silvestri, Harry T. Strube, Harry DeDreu, Anthony Grenci, Philip Valese, Cassmiro DeLaurentis, Jr., Thomas J. Murray, Jr., Anthony Frato, Sr., Robert W. Sanders, Thomas Miserendino, James A. Matthews, Gregory D. Leonberg, Sr., Gilbert W. Lugossy, Thomas G. Sutphen and Lester V. Denny (collectively referenced as "Defendants"), shall move before the above-named Court, for an Order pursuant to
Rule 4:6-2(e),
dismissing Plaintiff's Complaint with Prejudice. PLEASE TAKE FURTHER NOTICE that in support of this motion, Defendants shall rely on the Certification of Peter F. Berk, Esq., with Exhibits annexed thereto, and Brief submitted herewith. PLEASE TAKE FURTHER NOTICE that pursuant to R. 1:6-2 a proposed form of Order is submitted herewith. PLEASE TAKE FURTHER NOTICE that Defendants request oral argument pursuant to R. 1:6-2. PLEASE TAKE FURTHER NOTICE that the discovery end date in this matter is not set, and no trial date is currently scheduled. GENOVA BURNS LLC Attorneys for Defendants
By:
" PETER F. BERK
Dated: May 18, 2015 13096998/21747/003
2
GEORGE H. HEFLICH, SR., Plaintiff,
SUPERIOR COURT OF NEW JERSEY CIVIL DIVISION: MORRIS COUNTY DOCKET NO.: MRS-L-57-15
v. CIVIL ACTION NEW JERSEY FIREMAN'S HOME, HUGH E. FLOOD, OSCAR DUTCH, JR., KENNETH SILVESTRI, HARRY T. STRUBE, HARRY DeDREU, ANTHONY GRENCI, PHILIP VALESE, CASSMIRO DeLAURENTIS, JR., THOMAS J. MURRAY, JR., ANTHONY FRATO, SR., ROBERT W. SANDERS, THOMAS MISERENDINO, JAMES A. MATTHEWS, GREGORY D. LEONBERG, SR., GILBERT W. LUGOSSY, THOMAS G. SUTPHEN, and LESTER V. DENNY, Defendants.
BRIEF IN SUPPORT OF DEFENDANTS, NEW JERSEY FIREMEN'S HOME, HUGH E. FLOOD, OSCAR DUTCH, JR., KENNETH SILVESTRI, HARRY T. STRUBE, HARRY DEDREU, ANTHONY GRENCI, PHILIP VALESE, CASSMIRO DELAURENTIS, JR., THOMAS J. MURRAY, JR., ANTHONY FRATO, SR., ROBERT W. SANDERS, THOMAS MISERENDINO, JAMES A. MATTHEWS, GREGORY D. LEONBERG, SR., GILBERT W. LUGOSSY, THOMAS G. SUTPHEN, AND LESTER V. DENNY, MOTION TO DISMISS
GENOVA BURNS LLC 494 Broad Street Newark, New Jersey 07102 (973) 533-0777 Attorneys for Defendants Of Counsel and on the Brief: Peter F. Berk, Esq. On the Brief: Gillian A. Cooper, Esq.
TABLE OF CONTENTS iv
TABLE OF AUTHORITIES PRELIMINARY STATEMENT
1
PROCEDURAL HISTORY AND STATEMENT OF FACTS
3
Background of the Home
3
Investigation and Resolution Censuring Plaintiff
4
LEGAL ARGUMENT
6
POINT I THE STANDARD FOR A MOTION TO DISMISS.
6
POINT II PLAINTIFF CANNOT CHALLENGE A FINAL AGENCY ACTION BEFORE THE TRIAL COURT AND IS TIME BARRED FROM DOING SO IN THE APPELLATE DIVISION
8
A.
The Trial Court Does Not Have Jurisdiction To Hear Plaintiff's Challenge
B.
The Merits Of Plaintiff's Challenge Fail Because He Cannot Show That The Board's Actions Were Arbitrary and Capricious.
8
COUNTS ONE, THREE AND FOUR ARE BARRED BY THE TORT CLAIMS ACT.
14
Counts One, Three and Four Are Barred by Plaintiff's Failure to Provide the Requisite Tort Claims Notice
14
The Individual Defendants' Actions Were Discretionary In Nature, And Do Not Meet The "Actual Malice Standard," Therefore They Are Entitled To Immunity Under The TCA
15
Plaintiff Fails To Plead A Claim For Compensatory Damages Under The TCA
17
D.
Plaintiff Cannot Bring A Tort Claim For Punitive Damages.
19
E.
TCA Summary
19
POINT II
A. B.
C.
ii
POINT III PLAINTIFF'S CEPA CLAIM IN COUNT TWO IS BARRED BECAUSE PLAINTIFF ADMITS HE IS NOT AN EMPLOYEE OF THE HOME AND CANNOT ESTABLISH A PRIMA FACIE CASE.
20
Because Plaintiff Is Not An Employee Of The Home, He Cannot Bring A CEPA Claim
21
B.
Plaintiff Did Not Blow The Whistle
21
C.
Plaintiff Did Not Experience A Retaliatory Action Under CEPA.
22
A.
23
CONCLUSION
iii
TABLE OF AUTHORITIES
CASES Allen v. V & A Bros., Inc., 208 N.J. 114 (2011)
9
Ayers v. Twp. of Jackson, 106 N.J. 557 (1987)
18
Banco Popular N. Am. v. Gandi, 184 N.J. 161 (2005)
6
Battaglia v. Union Cnty. Welfare Bd., 88 N.J. 48 (1981)
12
Beasley v. Passaic County, 377 N.J. Super. 585 (App. Div. 2005)
22
Benjamin v. Corcoran, 268 N.J. Super. 517 (App. Div. 1993)
3, 14
Bennett v. Spear, 520 U.S. 154 S. Ct. 1154 L. Ed. 2d 281 (1997)
8
Bonitsis v. N.J. Inst. of Tech., 363 N.J. Super. 505 (App. Div. 2003)
15
Burke v. Deiner, 97 N.J. 465 (1984)
16
Burnett v. Cnty. of Bergen, 198 N.J. 408 (2009)
9
Camden Cnty. Energy Recovery Assocs. v. N.J. Dep't of Env. Prot., 320 N.J. Super. 59 (App. Div. 1999)
6
Civil Serv. Ass'n v. State, 88 N.J. 605 (1982)
8
Collins v. Union Cty. Jail, 150 N.J. 407 (1997)
18
Cosgrove v. Cranford Bd. of Educ., 356 N.J. Super. 518 (App. Div. 2003)
22 iv
De Nike v. Bd. of Trs., Emps. Ret. Sys., 34 N.J. 430 (1961)
8
DiProspero v. Penn, 183 N.J. 477 (2005)
9
Dzwonar v. McDevitt, 177 N.J. 451 (2003)
22
El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145 (App. Div. 2005)
22
Falco v. Cmty. Med. Ctr., 296 N.J. Super. 298 (App. Div. 1997), certif. denied, 153 N.J. 405 (1998)
21
Filgueiras v. Newark Pub. Sch., 426 N.J. Super. 449 (App. Div. 2012)
12
Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006)
12
In re Application of Holy Name Hosp. for a Certificate of Need, 301 N.J. Super. 282 (App. Div. 1997)
9
In re Cafra Permit No. 87-0959-5, 152 N.J. 287 (1997)
8
In re Donohue, 329 N.J. Super. 488 (App. Div. 2000)
8
In re Failure by the Dept of Bank. & Ins., 336 N.J. Super. 253 (App. Div.), certif. denied, 168 N.J. 292 (2001)
9
In re Young, 202 N.J. 50 (2010)
9
J.H. v. Mercer Cty. Youth Det. Ctr., 396 N.J. Super. 1 (App. Div. 2007)
18
Keelan v. Bell Communications Research, 289 N.J. Super. 531 (App. Div. 1996)
22
Kolb v. Burns, 320 N.J. Super. 467 (App. Div. 1999)
21
v
Kolitch v. Lindedahl, 100 N.J. 485 (1985)
16
Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993)
10
Longo v. Santoro, 195 N.J. Super. 507 (App. Div. 1984)
16
Maw v. Advanced Clinical Communs., Inc., 179 N.J. 439 (2004)
20, 22
McDade v. Siazon, 208 N.J. 463 (2011)
15
Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1998)
20, 22
Morgan v. Union County Board of Chosen Freeholders, 268 N.J. Super. 337 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994) N.J. Citizen Action, Inc. v. Cnty. of Bergen, 391 N.J. Super. 596 (App. Div.), certif. denied, 192 N.J. 597 (2007)
12
7
Paul v. Davis, 424 U.S. 693 (1976)
12
Ptaszynski v. Uwaneme, 371 N.J. Super. 333 (App. Div. 2004)
15
Pub. Serv. Elec. & Gas Co. v. N.J. Dept of Envtl. Prot., 101 N.J. 95 (1985)
9
Reider v. State Dep't of Trans., 221 N.J. Super. 547 (App. Div. 1987)
6
Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320 (App. Div. 2000)
18
S.P. v. Newark Police Dept., 428 N.J. Super. 210 (App. Div. 2012)
16
Scott-Neal ex rel. Scott v. N.J. State Dept. of Corrs., 366 N.J. Super. 570 (App. Div. 2004)
19
vi
Selobyt v. Keough-Dwyer Corr. Facility, 375 N.J. Super. 91 (App. Div. 2005)
8
Sod Farm Assocs. v. Twp. of Springfield, 366 N.J. Super. 116 (App. Div. 2004)
9
Velantzas v. Colgate-Palmolive Co., 109 N.J. 189 (1988)
6
Velez v. City of Jersey City, 358 N.J. Super. 224 (App. Div. 2003), aff'd, 180 N.J. 284 (2004) Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252 (App. Div. 1996)
10, 14 10
STATUTES 14
N.J.S.A. 59:8-3 through 8 N.J.S.A. 30:7-1
3
N.J.S.A. 30:7-2
4, 10, 13
N.J.S.A. 30:7-4
4, 17
N.J.S.A. 34:19-1
3, 20 3
N.J.S.A. 34:19-1 to -8 N.J.S.A. 34:19-2(e)
22
N.J.S.A. 34:19-3(a) or (c)
20
N.J.S.A. 34:19-3(a)(1)
20
N.J.S.A. 34:19-5
21
N.J.S.A. 59:1-1
14
N.J.S.A. 59:2-1
17
N.J.S.A. 59:3-2
16
N.J.S.A. 59:3-2(a)
15
N.J.S.A. 59:8-7
14
N.J.S.A. 59:8-8
14, 15 vii
N.J.S.A. 59:9-2(c)
19
N J S.A. 59:9-2(d)
18
RULES N.J.R.E. 201(a)
7
R. 2:2-3
8
R. 2:2-3(a)(2)
8 6, 7
R. 4:6-2(e)
viii
PRELIMINARY STATEMENT
Defendants, New Jersey Firemen's Home ("Home"), Hugh E. Flood, Oscar Dutch, Jr., Kenneth Silvestri, Harry T. Strube, Harry DeDreu, Anthony Grenci, Philip Valese, Cassmiro DeLaurentis, Jr., Thomas J. Murray, Jr., Anthony Frato, Sr., Robert W. Sanders, Thomas Miserendino, James A. Matthews, Gregory D. Leonberg, Sr., Gilbert W. Lugossy, Thomas G. Sutphen, and Lester V. Denny (collectively referred to as "Defendants")1 , by and through their attorneys, Genova Burns LLC, submit this Brief in support of Defendants' Motion to Dismiss Plaintiff George Heflich's ("Plaintiff") Complaint. Plaintiff is the President of the New Jersey State Fireman's Association ("NJSFA") and by virtue of that position serves as an ex officio member of the Home's Board of Managers ("Board of Managers" or "Board"). More than a year after the Home adopted a Resolution censuring and reprimanding Plaintiff for conduct unbecoming an official of the Home, Plaintiff seeks to challenge the Resolution, and has filed a lawsuit against the Home, fifteen (15) members of the Home's Board of Managers who voted in favor of the Resolution, and the Home's Superintendent. Plaintiff's Complaint fails to state a claim, and is both procedurally and substantively flawed. Plaintiff's claims should be dismissed because: (1) the claims are time-barred, Plaintiff filed this action in the wrong Court as he was required to file an action in the Appellate Division within forty-five (45) days of the Resolution; (2) Plaintiff cannot demonstrate that the Resolution is arbitrary and capricious; (3) he did not file notice pursuant to the Tort Claims Act, which is fatal, the individual Defendants are immune, and Plaintiff
As of May 18, 2015, Defendants Gregory Leonberg, Sr., James A. Matthews, Thomas J. Murray, Jr., and Thomas Sutphen have not been served with Plaintiff's Complaint.
1
1
failed to plead a claim for compensatory damages and cannot bring a claim for punitive damages; and (4) he cannot make a prima facie CEPA claim because Plaintiff is not a Home employee, he did not blow the whistle, and he did not experience a retaliatory action. For the reasons detailed below, the Court should dismiss Plaintiff's Complaint in its entirety.
2
PROCEDURAL HISTORY AND STATEMENT OF FACTS On January 7, 2015, Plaintiff filed a Four Count Complaint in the Superior Court of New Jersey, Law Division, Morris Vicinage. (Berk Cert., Exhibit A, Complaint).2 Count One of Plaintiff's Complaint alleges that the Home's Board of Managers committed a tort against Plaintiff by publishing false statements about Plaintiff knowing them to be false, and that Plaintiff was damaged in the eyes of the public, and in the eyes of the NJSFA membership. Count Two of Plaintiff's Complaint alleges that the Home acted against Plaintiff in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 ("CEPA"). Count Three of Plaintiff's Complaint alleges that the Board of Managers' actions taken to investigate and issue Resolution 2-2014 ("Resolution") was done to degrade and humiliate Plaintiff. Count Four of Plaintiff's Complaint alleges that there were no policies or procedures authorizing discipline and/or punishment, and that the failure to give Plaintiff an opportunity to confront his accusers and present alternative evidence denied him due process of law. Background of the Home Defendant Home is a legislatively created entity that provides housing and care for the aged, indigent, and disabled firemen of this State, and is located at 565 Lathrop Avenue, Boonton, New Jersey, 07005. (Berk Cert., Exhibit A, Complaint ¶ 2); see also N.J.S.A. 30:7-1 et. seq. The Home is governed by a twenty-three (23) member Board of Managers. N.J.S.A. 30:7-1; (Berk Cert., Exhibit A, Complaint ¶ 21). "The board of managers, by law, totally controls every aspect of the ownership and operation of the" Home. Benjamin v.
References to exhibits, unless otherwise indicated, are to the documents attached to the Certification of Peter Berk, Esq. ("Berk Cert.") in Support of Defendants' Motion to Dismiss, dated May 18, 2015. 2
3
Corcoran, 268 N.J. Super. 517, 524 (App. Div. 1993); N.J.S.A. 30:7-2 ("[T]he board of managers shall govern, manage and conduct the New Jersey Firemen's Home, and, subject to the approval of the Governor, direct and control its property and concerns, make by-laws, rules and regulations and determine the compensation, duties and term of service of its officers and employees."). Each Manager is elected by the New Jersey State Firemen's Association ("NJSFA") to represent each County, and they serve without compensation. N.J.S.A. 30:7-1. The Board also includes the following ex officio members: the President of the NJSFA, and the Governor of the State of New Jersey N.J.S.A. 30:7-1. Plaintiff, as President of NJSFA, serves as an ex officio member of the Board. (Berk Cert., Exhibit A, Complaint ¶ 20). Reporting directly to the Board, the Home's Superintendent is in charge of the daily operations pursuant to N.J.S.A. 30:7-4. (Berk Cert., Exhibit A, Complaint ¶ 22). Defendant Hugh E. Flood is the Superintendent of the Home, and was hired by the Board. (Berk Cert., Exhibit A, Complaint ¶ 22). The remaining individually named Defendants are fifteen (15) of the twenty-one (21) Managers serving on the Board. (Berk Cert., Exhibit A, Complaint ¶¶ 419). Investigation and Resolution Censuring Plaintiff "Complaints were made concerning Helfrich's alleged conduct [at the Home] on August 3, 2013, August 17, 2013 and August 31, 2013." (Berk Cert., Exhibit A, Complaint ¶ 32). While the complaints against Plaintiff were pending, Plaintiff's access to the Home was limited, (Berk Cert., Exhibit A, Complaint III 33, 34), and the Board retained an independent investigator and commenced an investigation into Plaintiff's alleged conduct. (Berk Cert., Exhibit A, Complaint ¶ 36). The investigator interviewed the individuals who made
4
complaints against Plaintiff. (Berk Cert., Exhibit A, Complaint ¶ 38). Plaintiff was given the opportunity to be interviewed, but refused. (Berk Cert., Exhibit A, Complaint ¶ 39). On January 2, 2014, Defendant Frato submitted to the full Board of Managers his summary of the Confidential Report prepared by the independent investigator, and indicated that the matter would be taken up at the next Board of Managers' meeting on January 11, 2014. (Berk Cert., Exhibit A, Complaint ¶ 42). Plaintiff was advised by the Home "that they would be considering action based upon his alleged conduct in August at the meeting on January 11, 2014." (Berk Cert., Exhibit A, Complaint ¶ 43). On January 11, 2014, the Board of Managers voted in support of a Resolution to censure and reprimand Plaintiff for conduct unbecoming an official of the Home. (Berk Cert., Exhibit B, Resolution 2-2014). The Resolution found that the Home's policies preventing harassment and discrimination apply to all Managers and ex officio members of the Board. (Berk Cert., Exhibit B, Resolution 2-2014). The Resolution further found that the Home conducted an independent investigation, at which time employees were interviewed, and that Plaintiff declined to be interviewed. (Ibid.). The investigator recommended that the Board censure and reprimand Plaintiff. (Ibid.). Plaintiff was required "to attend training in dealing with officials and staff of the Home," (Berk Cert., Exhibit B, Resolution 2-2014), "suggesting that [Plaintiff] had conducted himself in an inappropriate and unprofessional manner toward the staff and officials of the Home, directing that [Plaintiff] provide advance notice to the Superintendent before visiting a guest of the Home and requiring [Plaintiff] to undergo training in 'Anti-Harassment/Discrimination' as well as sensitivity awareness." (Berk Cert., Exhibit A, Complaint ¶ 45). Plaintiff does not allege that he fulfilled any of the requirements outlined in the Resolution because he has, in fact, not done so. 5
LEGAL ARGUMENT POINT I THE STANDARD FOR A MOTION TO DISMISS. Under the New Jersey Rules of Court, a defendant may move for dismissal of a complaint if the complaint fails to state a claim upon which relief can be granted. R. 4:62(e). The standard applicable to such a motion, which tests the adequacy of the pleading, is whether a cause of action recognized under New Jersey law is suggested by the facts. See Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988). Given this standard, when faced with a motion to dismiss for failure to state a claim, the complaint must be searched in depth and with liberality to determine if a cause of action can be gleaned, particularly if further discovery is taken. However, if the complaint states no basis for relief and discovery would not provide one, dismissal of the complaint is clearly appropriate. See Camden Cnty. Energy Recovery Assocs. v. N.J. Dep't of Env. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999) ("Discovery is intended to lead to facts supporting or opposing an asserted legal theory; it is not designed to lead to formulation of a legal theory."). In fact, notwithstanding the liberal construction generally afforded such motions, "dismissal is mandated where the factual allegations are palpably insufficient to support a claim upon which relief can be granted." Reider v. State Dep't of Trans., 221 N.J. Super. 547, 552 (App. Div. 1987). In its discretion, a court may consider documents referenced in the pleadings or materials that are integral to a motion to dismiss without converting the application into a motion for summary judgment. See Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005) (stating that in evaluating a motion to dismiss, a court may consider documents upon which the claim is based); N.J. Citizen Action, Inc. v. Cnty. of Bergen, 391 N.J. Super. 596, 6
605 (App. Div.) (stating that "consideration of the documents referred to in the complaint . . . does not convert defendants' R. 4:6-2(e) motions into motions for summary judgment"), certif. denied, 192 N.J. 597 (2007)). Here, Plaintiff's Complaint explicitly references Resolution 2-2014. Accordingly, the Court may, in its discretion, consider the Resolution without converting Defendants' Motion to Dismiss into one for Summary Judgment. Furthermore, pursuant to N.J.R.E. 201(a), the Court may take judicial notice of the Resolution. "Law which may be judicially noticed includes the decisional, constitutional and public statutory law, rules of court, and private legislative acts and resolutions of the United States, this state, and every other state, territory and jurisdiction of the United States as well as ordinances, regulations and determinations of all governmental subdivisions and agencies thereof." In this matter, the Home, a statutorily created institution, adopted the Resolution on January 11, 2014. Therefore, the Court may take judicial notice of the Resolution, and consider it in its decision on this Motion to Dismiss.
7
POINT II PLAINTIFF CANNOT CHALLENGE A FINAL AGENCY ACTION BEFORE THE TRIAL COURT AND IS TIME BARRED FROM DOING SO IN THE APPELLATE DIVISION.
A.
The Trial Court Does Not Have Jurisdiction To Hear Plaintiff's Challenge.
The trial court cannot hear Plaintiffs challenge to the Home's decision. Plaintiffs Complaint challenges Resolution 2-2014, which is a final agency action of the Home. Any appeal from such action must be filed within forty-five (45) days from the date of service of the decision taken, and be filed in the Appellate Division.' R. 2:2-3. An appeal to review the action or inaction of a state agency goes to the Appellate Division. R. 2:2-3(a)(2); see also Selobyt v. Keough-Dwyer Corr. Facility, 375 N.J. Super. 91, 95 (App. Div. 2005) (internal citations omitted). Thus, this matter is not justiciable in the Law Division, and should have been appealed to the Appellate Division within the forty-five (45) day time period. B.
The Merits Of Plaintiffs Challenge Fail Because He Cannot Show That The Board's Actions Were Arbitrary and Capricious.
Although Defendants contend that Plaintiff is barred from bringing this matter in the trial division, the merits of Plaintiff's claims also fail as a matter of law because he cannot
Administrative agency decisions become final when the decision-making process is complete, and "its effects [are] felt in a concrete way by the challenging parties." Civil Serv. Ass'n v. State, 88 N.J. 605, 612 (1982); see also In re Donohue, 329 N.J. Super. 488, 494 (App. Div. 2000) (stating that "administrative determination must be final as to all parties and all issues" to be appealable). Stated in another way, the agency action is fmal when it marks the "consummation of the agency's decision-making process," and is one from which "legal consequences [] flow." Bennett v. Spear, 520 U.S. 154, 178, 117 S. Ct. 1154, 1168, 137 L. Ed. 2d 281, 305 (1997) (citations and internal quotation marks omitted). "[A]n agency decision should contain adequate factual and legal conclusions. The decision also should give unmistakable notice of its finality." In re Cafra Permit No. 87-0959-5, 152 N.J. 287, 299 (1997) (citing De Nike v. Bd. of Trs., Emps. Ret. Sys., 34 N.J. 430, 435 (1961)). 8
show that the Board's actions were arbitrary and capricious. Courts are ill-equipped to micromanage an agency's activities. Sod Farm Assocs. v. Twp. of Springfield, 366 N.J. Super. 116, 130 n.10 (App. Div. 2004). Courts accord wide discretion to administrative agencies which are to decide "how best to approach legislatively assigned administrative tasks." In re Failure by the Dept of Bank. & Ins., 336 N.J. Super. 253, 262 (App. Div.), certif. denied, 168 N.J. 292 (2001). "[A] strong presumption of reasonableness" attends an agency's exercise of its statutorily delegated duties, which "is even stronger when the agency has delegated discretion to determine the technical and special procedures to accomplish its task." In re Application of Holy Name Hosp. for a Certificate of Need, 301 N.J. Super. 282, 295 (App. Div. 1997) (citation and internal quotation marks omitted). When an agency violates the express policy of its enabling act, the agency action may be deemed arbitrary and capricious. Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985) (noting that when determining whether action is arbitrary and capricious, a court may consider "whether the agency action violates the enabling act's express or implied legislative policies"). When interpreting an enabling statute or any other law, a court's obligation is to determine and give effect to the Legislature's intent. Allen v. V & A Bros., Inc., 208 N.J. 114, 127 (2011). To perform that task, courts look first to the plain language of the statute. DiProspero v. Penn, 183 N.J. 477, 493 (2005). If it is clear, the court's task is complete. In re Young, 202 N.J. 50, 63 (2010). If the statutory language is ambiguous, courts may look to extrinsic evidence, including legislative history, for guidance. Burnett v. Cnty. of Bergen, 198 N.J. 408, 421 (2009).
9
The Home's enabling act is N.J.S.A. 30:7-2. Pursuant to N.J.S.A. 30:7-2, "the board of managers shall govern, manage and conduct the New Jersey Firemen's Home, and, subject to the approval of the Governor, direct and control its property and concerns, make by-laws, rules and regulations and determine the compensation, duties and term of service of its officers and employees." Therefore, to overturn the Board's Resolution regarding Plaintiff, Plaintiff must show that the Board's decision to censure him was arbitrary and capricious. Plaintiff admits there "complaints made concerning" his conduct on three separate occasions (Berk Cert., Exhibit A, Complaint ¶ 32) that potentially violated the Home's antiharassment/discrimination policy. (Berk Cert., Exhibit A, Complaint ¶ 45). Thus, the Home had a duty to respond to the allegations because New Jersey Law Against Discrimination ("LAD") prohibits hostile work environment sexual harassment in cases where employees are harassed because of their sex to the point where the working environment becomes hostile.4 Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 600-01 (1993). "An employer may be held liable for the sexual harassment of its employees by supervisors, co-employees or even third parties." Velez v. City of Jersey City, 358 N.J. Super. 224, 234 (App. Div. 2003) (internal citations omitted), aff'd, 180 N.J. 284 (2004). "An employer that knows or should know its employee is being harassed in the workplace, regardless of by whom, should take appropriate action." Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 269 (App. Div. 1996) (emphasis added). "If a plaintiff can show that an employer had actual knowledge of the harassment and did not promptly and effectively act to stop it, liability . . . may be appropriate" under a theory that the employer intended the harassment, or was negligent or
In addition to employees, the Board of Managers also has a duty to protect the residents of the Home. 4
10
reckless in permitting it to occur. Lehmann, supra, 132 N.J. at 622. Effective remedial measures are those that are "reasonably calculated to end the [alleged] harassment." Id. at 623. Pursuant to Lehman and its progeny, the Home had to take remedial measures to end the alleged harassment by Plaintiff. As acknowledged by Plaintiff, the Home investigated the measures and took remedial measures to end the harassment. Plaintiff was given the opportunity to participate but declined. (Berk Cert., Exhibit A, Complaint ¶ 39). In his Complaint, Plaintiff objects to Defendant Flood limiting his access to the facility while the allegations Plaintiff were investigated. (Berk Cert., Exhibit A, Complaint ¶ 33). Again, Plaintiff fails to recognize that separating the alleged harasser from the alleged victim is routine part of sexual harassment investigations. See, e.g., Lehman, supra, 132 N.J. at 623 ("When an employer knows or should know of the harassment and fails to take effective measures to stop it, the employer has joined with the harasser in making the working environment hostile. The employer, by failing to take action, sends the harassed employee the message that the harassment is acceptable and that the management supports the harasser."). The U.S. Equal Employment Opportunity Commission ("EEOC"), the federal agency specifically tasked with enforcing federal anti-discrimination law, specifically recommends that in order to ensure that the harassment does not continue, the parties may need to be separated, and the separation should not burden the individual who complained of harassment. See EEOC, Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisors, http://www.eeoc.gov/policy/docs/harassment-facts.html (last modified April 1, 2010). In this matter, there were complaints being made on a near-weekly basis against Plaintiff in August 2013. (Berk Cert., Exhibit A, Complaint ¶ 32). Because the Home was on
11
notice of the allegations against Plaintiff, it had to take action to ensure there no more allegations made against him while it investigate the claims already made. Plaintiff also contends that he was entitled to a hearing. (Berk Cert., Exhibit A, Complaint ¶ 46). Plaintiff cites to no authority to support his assertion, and ignores the fact that he declined to be interviewed during the investigation. (Berk Cert., Exhibit A, Complaint ¶ 39). No case decided under Lehman has ever held that a hearing was necessary before remedial measures could be implemented. In Filgueiras v. Newark Pub. Sch., 426 N.J. Super. 449 (App. Div. 2012), the Appellate Division rejected a similar claim to recognize such an interest under the New Jersey Constitution, even where the plaintiff's employment had been terminated. Id. at 453, 474-75. In Morgan v. Union County Board of Chosen Freeholders, 268 N.J. Super. 337 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994), the Appellate Division held that a plaintiff who had resigned his position in the wake of purported harassment was not entitled to a due process hearing because he "[did] not face disqualification from future public employment." Id. at 355 (citing Battaglia v. Union Cnty. Welfare Bd., 88 N.J. 48, 56-57 (1981)); see also Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) ("Rather, to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest." (citing Paul v. Davis, 424 U.S. 693, 701 (1976))). In this matter, the Plaintiff was effectively insulated from any sort of discipline because he served as an ex officio member of the Board. As a result, the Home could not suspend him, remove him, or do anything else that would affect his status. Furthermore, Plaintiff has not yet completed the training for "anti-discrimination/harassment" or "sensitivity" that was mandated by the Board in its Resolution. (Berk Cert., Exhibit A, Complaint ¶ 45). 12
Despite the overwhelming authority requiring the Board to investigate and remedy a possible hostile work environment, Plaintiff claims the Board could not do such an investigation because the Board's by-laws did not provide for the investigation or disciplining of a Manager such as Plaintiff. (Berk Cert., Exhibit A, Complaint ¶ 26). According to Plaintiff, in the absence of any such by-law, he was above the law, and could not be investigated for inappropriate behavior. Presumably, Plaintiff gives no regard to the potential exposure to the Home for his actions. In any event, Plaintiff's belief that the Home can only operate through by-laws is an untenable reading of the Home's enabling legislation. N.J.S.A. 30:7-2 does not limit the Board's authority to passing by-laws. Instead, the statute expansively defines the Board's authority "to govern, manage and conduct the New Jersey Firemen's Home," and this authority includes "make by-laws, rules and regulations . . . ." Therefore, Plaintiff's challenge to the Board's Resolution must fail as he cannot demonstrate that it was arbitrary and capricious.
13
POINT II
COUNTS ONE, THREE AND FOUR ARE BARRED BY THE TORT CLAIMS ACT. A.
Counts One, Three and Four Are Barred by Plaintiff's Failure to Provide the Requisite Tort Claims Notice.
Even if the trial court permitted Plaintiff to challenge the Home's decision, Plaintiff's tort claims (Counts One, Three, and Four) must be dismissed because Plaintiff never filed the requisite notice under the Tort Claim Act ("TCA"), N. J . S . A. 59:1-1 et. seq., and the failure to do so is fatal to his tort claims. Tort claims, including intentional torts, against the Defendants are subject to the TCA. Benjamin v. Corcoran, 268 N.J. Super. 517 (App. Div. 1993); Velez v. City of Jersey City 180 N.J. 284 (2004). A plaintiff must submit a notice of claim to the public entity within ninety (90) days of the claim's accrual and notice must be given "in order for a complaint to be lodged against the public entity." Velez, supra, 180 N.J. at 289-90 (internal citations omitted); N.J.S.A. 59:8-8.5 The purposes of the notice are as follows: (1) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (2) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense; (3) to afford the public entity a chance to correct the conditions or practices which gave rise to the claim; 5
N.J.S.A. 59:8-7 provides as follows: A claim for damage or injury arising under this act against the State shall be filed either with (1) the Attorney General or (2) the department or agency involved in the alleged wrongful act or omission. A claim for injury or damages arising under this act against a local public entity shall be filed with that entity. 14
and (4) to inform the [public entity] in advance as to the indebtedness or liability that it may be expected to meet. [Ibid. (internal citations omitted).] The "notice requirements . . . are a jurisdictional precondition to filing suit." Ptaszynski v. Uwaneme, 371 N.J. Super. 333, 343 (App. Div. 2004) (quoting Bonitsis v. N.J. Inst. of Tech., 363 N.J. Super. 505, 516 (App. Div. 2003)). A person is forever barred from bringing an action against a public entity or public employee unless he or she complies with the TCA notice requirements. N.J.S.A. 59:8-8(a). Here, Plaintiff failed to file a notice of claim within the ninety (90) day time limit set forth in N.J.S.A. 59:8-8. Plaintiff alleges that the Board of Managers voted in support of a Resolution to censure and reprimand Plaintiff on January 11, 2014. (Berk Cert., Exhibit A, Complaint ¶ 45). Therefore, January 11, 2014, is the date of the claim. Plaintiff does not allege that he filed the requisite TCA notice. Because Plaintiff did not follow the procedure outlined in Title 59;, he is now barred from bringing any tort claims related to the January 11, 2014 Resolution. Plaintiff's failure to file a timely notice of claim is fatal to his tort claims against the Home. See McDade v. Siazon, 208 N.J. 463, 469 (2011). B.
The Individual Defendants' Actions Were Discretionary In Nature, And Do Not Meet The "Actual Malice Standard," Therefore They Are Entitled To Immunity Under The TCA.
The TCA immunizes public entities and public employees for injury that result from "the exercise of judgment or discretion vested in him[.]" N.J.S.A. 59:3-2(a); see also N.J.S.A. 59:2-3(a) (immunizing public entities for discretionary decisions). N.J.S.A. 59:3-2 applies to public employees, whereas N.J.S.A. 59:2-3 applies to public entities. The two
15
sections contain the same language, so interpretations of N.J.S.A. 59:2-3 have been applied equally to N.J.S.A. 59:3-2. Longo v. Santoro, 195 N.J. Super. 507, 515 (App. Div. 1984). A "discretionary act . . . calls for the exercise of personal deliberations and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed." Kolitch v. Lindedahl, 100 N.J. 485, 495 (1985) (citation and internal quotation marks omitted). In circumstances where a ministerial duty exists, a public entity or public employee may not be immune from liability for negligence arising out such acts or omissions. N.J.S.A. 59:3-2(d); N.J.S.A. 59:2-3(d). "[A] ministerial act is one which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done." S.P. v. Newark Police Dept., 428 N.J. Super. 210, 231 (App. Div. 2012) (citations and internal quotation marks omitted). It is the public entities burden to establish whether discretion was exercised. Ibid. (citing Kolitch, supra, 100 N.J. at 497. Where the administrative action results in what is claimed to be a defamatory statement, liability may only be imposed in accordance with the actual malice standard that the statement was made with knowledge that the allegedly defamatory statement was false or was made with reckless disregard for its truth or falsity. Burke v. Deiner, 97 N.J. 465, 479 (1984). The issue in Burke was whether municipal authority members had a qualified or an absolute privilege with respect to an allegedly defamatory resolution discharging the authority's executive director. Id. at 468. The Court noted that public officers should not "fear secondguessing of their decisions." Id. at 476. Furthermore, "[a]s long as the statement is made within the exercise of the public officer's powers, it is privileged unless made with knowledge of or serious doubts about the falsity of the statement." Id. at 478. 16
Here, the individually named Defendants, (except for Hugh E. Flood who was hired by the Board of Managers to be Superintendent and did not vote on the Resolution), voted in favor to support Resolution 2-2014 to censure and reprimand Plaintiff for "conduct unbecoming an official of the New Jersey Firemen's Home[.]" That action of voting to approve the Resolution was discretionary, and based upon the findings of an independent investigation. The Resolution was adopted at an official meeting, of which Plaintiff had notice. The Resolution was adopted after multiple interviews had been conducted, and after Plaintiff refused to be interviewed. Additionally, it is the Superintendent, not the Board of Managers, who performs the ministerial duties. Pursuant to N.J.S.A. 30:7-4, the Superintendent manages the Home subject to the Board of Manager's governance and policy making. Therefore, Defendants are entitled to immunity under the TCA, as they were engaged in a discretionary action. Plaintiff does not allege, and cannot support any sort of claim that Defendants acted negligently in performing ministerial duties. C.
Plaintiff Fails To Plead A Claim For Compensatory Damages Under The TCA.
In his Complaint, Plaintiff seeks unspecified "damages" for his tort claims. However, Plaintiff's claim for compensatory damages is barred by his failure to plead that he satisfied the damages threshold under the TCA. The TCA states that, "[e]xcept as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." N.J.S.A. 59:2-1. An exception is created for certain claims against public entities for pain and suffering resulting from an injury: No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; 17
provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of S 3,600.00. [N.J.S.A. 59:9-2(d).] "Thus, N.J.S.A. 59:9-2(d) contains a threshold expense qualification for the recovery of damages for pain and suffering against a public entity. In order to recover damages for pain and suffering, plaintiff must suffer a permanent injury and his medical expenses must exceed the monetary threshold of $ 3600." J.H. v. Mercer Cty. Youth Det. Ctr., 396 N.J. Super. 1, 20 (App. Div. 2007). The New Jersey Supreme Court has described the legislative purpose of this subsection of the TCA as "an intent that N.J.S.A. 59:9-2(d) should preclude recovery for pain and suffering based on subjective evidence or minor incidents." Collins v. Union Cty. Jail, 150 N.J. 407, 413 (1997) (holding that, although plaintiffs typically cannot recover against public entities for psychological injuries, rape victim may recover from defendant based on posttraumatic stress disorder). Absent aggravating circumstances, such as a physical assault, psychological injuries do not constitute a permanent loss of bodily function. Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 332 (App. Div. 2000) (discussing Ayers v. Twp. of Jackson, 106 N.J. 557 (1987)). In this matter, Plaintiff alleges no medical expenses whatsoever. As a result, his claim for compensatory damages must be stricken.
18
D.
Plaintiff Cannot Bring A Tort Claim For Punitive Damages.
Pursuant to N.J.S.A. 59:9-2(c), Plaintiff cannot bring a claim for punitive damages. See Scott-Neal ex rel. Scott v. N.J. State Dept. of Corrs., 366 N.J. Super. 570 (App. Div. 2004). As a result, his claim for punitive damages in Counts Four must be stricken.
E.
TCA Summary
In order for the Court to allow Plaintiff's claims to proceed, it would have to ignore Plaintiff's failure to provide the requisite Tort Claims Notice, which should be fatal to his tort claim. The Court would then have to determine that the individual Defendants' actions were not discretionary and, therefore, they are not entitled to immunity. Finally, the Court would have to ignore that Plaintiff fails to plead a claim for compensatory damages under the TCA, and that he cannot bring a claim for punitive damages which means he incurred no damages whatsoever. In sum, Counts One, Three, and Four of Plaintiff's Complaint are barred by the TCA for the reasons detailed above.
19
POINT III
PLAINTIFF'S CEPA CLAIM IN COUNT TWO IS BARRED BECAUSE PLAINTIFF ADMITS HE IS NOT AN EMPLOYEE OF THE HOME AND CANNOT ESTABLISH A PRIMA FACIE CASE. New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 et seq., prohibits an employer from retaliating against an employee who opposes "an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law or regulation . . . [or] is incompatible with a clear mandate of public policy." N.J.S.A. 34:19-3(a)(1). CEPA is designed to "prevent retaliation against those employees who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193-94 (1998). "[A] helpful limiting principle for CEPA claims is that the offensive conduct must implicate the public interest." Maw v. Advanced Clinical Communs., Inc., 179 N.J. 439, 445 (2004) (citations omitted). "The offensive activity must pose a threat of public harm, not merely private harm, or harm only to the aggrieved employee." Ibid. The Supreme Court reaffirmed "the limiting principle enunciated in Mehlman that the complained of activity must have public ramifications, and that the dispute between employer and employee must be more than a private disagreement." Ibid. To maintain a cause of action under N.J.S.A. 34:19-3(a) or (c) a plaintiff must show: (1) that he or she reasonably believed that his or her employer's conduct was violating either a law or a rule or regulation promulgated pursuant to law; (2) that he or she performed whistle-blowing activity described in N.J.S.A. 34:19-3(a), (c)(1), or (c)(2);
20
(3) an adverse employment action was taken against him or her; and (4) a causal connection exists be-tween the whistle-blowing activity and the adverse employment action. [Kolb v. Burns, 320 N.J. Super. 467, 476 (App. Div. 1999) (citing Falco v. Cmty. Med. Ctr., 296 N.J. Super. 298, 315, 317 (App. Div. 1997), certif. denied, 153 N.J. 405 (1998)).] A.
Because Plaintiff Is Not An Employee Of The Home, He Cannot Bring A CEPA Claim.
Because Plaintiff admitted that he is not an "employee" of the Home, Plaintiff cannot bring a CEPA action. In his Complaint, Plaintiff avers, that "as Presidents of the New Jersey Firemen's Association, and by virtue of his office, was a Member of the Board of Managers. (Complaint ¶ 25). According to Plaintiff, the Home is "overseen by a Board of Managers . . . . The Managers are not employees of the Home." (Berk Cert., Exhibit A, Complaint ¶ 21) (emphasis added). As admitted in the Complaint, Plaintiff is not an employee of the Home. Pursuant to N.J.S.A. 34:19-5, only "an aggrieved employee or former employee may, within one year, institute a civil action in a court of competent jurisdiction" for "a violation of any of the provisions of" CEPA. (Emphasis added). For this reason alone, Plaintiff's CEPA claim should be dismissed B.
Plaintiff Did Not Blow The Whistle.
In Count Three of the Complaint, Plaintiff alleges that Defendants retaliated against him for engaging in protected activity under CEPA. Even though a plaintiff need not actually prove the employer's conduct violated public policy, a claim pursuant to (c)(3) "must identify a statute, regulation, rule or public policy that closely relates to the complained-of conduct."
21
Dzwonar v. McDevitt, 177 N.J. 451, 463 (2003). Similarly, under subsection (a), which does not require a violation of public policy, but instead requires a plaintiff to prove a "violation of a law, or a rule or regulation[.]" N.J.S.A. 34:19-3(a). Complaints of a private harm do not trigger CEPA' s protections. Maw, supra, 179 N.J. at 443-46. The Supreme Court in Mehlman, supra, 153 N.J. at 188, stated "the offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee." The dispositive issue is whether a plaintiff has identified a clear mandate of public policy which focuses on the "underlying employer 'activity or practice' that triggers the employee's objection[.]" Cosgrove v. Cranford Bd. of Educ., 356 N.J. Super. 518, 525 (App. Div. 2003). Plaintiffs allegations focus solely upon private harms that were allegedly inflicted upon him personally. Notably absent from Plaintiff's CEPA is any allegation that Defendants violated the law or engaged in conduct indisputably dangerous to the public.
C.
Plaintiff Did Not Experience A Retaliatory Action Under CEPA.
Plaintiff cannot establish a prima facie case under CEPA because he did not experience a retaliatory action. Under CEPA, "retaliatory action" is defined as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e). An investigation is not an adverse employment action. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 170 (App. Div. 2005); Beasley v. Passaic County, 377 N.J. Super. 585 (App. Div. 2005) ("Mnvestigation of an employee is not normally considered retaliation"). Although he is not an employee, Plaintiff cannot point to a single retaliatory action as defined by CEPA that has been imposed upon him. As discussed above, Plaintiff continues to hold his position on the Board, which he holds pursuant to statute. 22
CONCLUSION For the foregoing reasons, Defendants' Motion to Dismiss should be granted as a matter of law. Respectfully Submitted, GENOVA BURNS LLC Attorneys for Defendants
PETER F. BE
Dated: May 18, 2015
13072590/21747/003
23
GENOVA BURNS LLC Peter F. Berk, Esq. (018592000) 494 Broad Street Newark, New Jersey 07102 (973) 533-0777 Attorneys for Defendants, New Jersey Firemen's Home, Hugh E. Flood, Oscar Dutch, Jr., Kenneth Silvestri, Harry T. Strube, Harry DeDreu, Anthony Grenci, Philip Valese, Cassmiro DeLaurentis, Jr., Thomas J. Murray, Jr., Anthony Frato, Sr., Robert W. Sanders, Thomas Miserendino, James A. Matthews, Gregory D. Leonberg, Sr., Gilbert W. Lugossy, Thomas G. Sutphen and Lester V. Denny
GEORGE H. HEFLICH, SR., Plaintiff,
SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MORRIS COUNTY DOCKET NO. MRS-L-57-15
v. Civil Action NEW JERSEY FIREMEN'S HOME, HUGH E. FLOOD, OSCAR DUTCH, JR., KENNETH SILVESTRI, HARRY T. STRUBE, HARRY DeDREU, ANTHONY GRENCI, PHILIP VALESE, CASSMIRO DeLAURENTIS, JR., THOMAS J. MURRAY, JR., ANTHONY FRATO, SR., ROBERT W. SANDERS, THOMAS MISERENDINO, JAMES A. MATTHEWS, GREGORY D. LEONBERG, SR., GILBERT W. LUGOSSY, THOMAS G. SUTPHEN and LESTER V. DENNY.
CERTIFICATION OF PETER F. BERK, ESQ. IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS
Defendants.
Peter F. Berk, Esq., hereby certifies as follows: 1.
I am an attorney at law of the State of New Jersey and Counsel at the law firm
of Genova Burns LLC, attorneys for Defendants, New Jersey Firemen's Home, Hugh E. Flood, Oscar Dutch, Jr., Kenneth Silvestri, Harry T. Strube, Harry DeDreu, Anthony Grenci,
Philip Valese, Cassmiro DeLaurentis, Jr., Thomas J. Murray, Jr., Anthony Frato, Sr., Robert W. Sanders, Thomas Miserendino, James A. Matthews, Gregory D. Leonberg, Sr., Gilbert W. Lugossy, Thomas G. Sutphen and Lester V. Denny (collectively referenced as "Defendants"). 2.
I make this certification upon my personal knowledge and in support of
Defendants' Motion to Dismiss. 3.
A true and correct copy of the Complaint and Jury Demand dated January 7,
2015, is attached hereto as Exhibit A. 4.
A true and correct copy of Resolution No. 2-2014, is attached hereto as Exhibit
5.
I certify that the foregoing statements made by me are true. I am aware that if
B.
any of the foregoing statements are willfully false, I am subject to punishment.
7 PETER F. BERK, ESQ. Dated: May 18, 2015 13096871/21747/003
2
