LEO H. WAGNER VS. WALL TOWNSHIP (L-3220-19, MONMOUTH COUNTY AND STATEWIDE)

L
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1473-19

LEO H. WAGNER,

          Plaintiff-Appellant,

v.

WALL TOWNSHIP, a New
Jersey Municipal Corporation,
DAVID SMITHMAN, ANDREW
BALDINO, SEAN O'HALLORAN,
KENNETH BROWN, JR., and
STEVEN ZABARSKY,

     Defendants-Respondents.
_____________________________

                   Submitted March 3, 2021 – Decided May 14, 2021

                   Before Judges Accurso and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Docket No. L-3220-19.

                   Leo H. Wagner, appellant pro se.

                   Cleary Giacobbe Alfieri Jacobs, LLC, attorneys for
                   respondents (Catherine Kim, on the brief).

PER CURIAM
      Plaintiff Leo H. Wagner appeals from the November 22, 2019 order

dismissing his complaint with prejudice. We affirm.

      This case stems from a two-car accident at an intersection in Wall

Township in March 2019.         Officers David Smithman and Shane Roland

responded to the scene. Each driver told the officers the other driver was

responsible for the accident.       Following their investigation, the officers

determined plaintiff was at fault and issued him a summons for careless driving,

N.J.S.A. 39:4-97. The other driver, James Delaney, received no summons.

      Dissatisfied with the results of the officers' investigation, plaintiff filed a

civilian complaint against Delaney.          When he and Delaney appeared in

municipal court to address the pending summons and civil complaint, the

municipal prosecutor, Steven Zabarsky, agreed to downgrade plaintiff's offense

to a charge of obstructing traffic, N.J.S.A. 39:4-67. Although plaintiff was

advised he had the right to proceed to trial and contest the charge against him,

he opted to plead guilty to the downgraded offense. Further, the complaint

against Delaney was dismissed.

      In June 2019, plaintiff filed a complaint against Officer Smithman and his

supervising officer, Sergeant Andrew Baldino, alleging they were guilty of

official misconduct, N.J.S.A. 2C:30-2, due to their handling of the investigation

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of the accident.    Additionally, plaintiff filed a civilian complaint against

Margery Delaney, a passenger in Delaney's vehicle on the date of the accident.

Plaintiff accused her of "theft by deception," N.J.S.A. 2C:20-4, because she filed

an insurance claim with plaintiff's insurance carrier after the accident. Due to a

conflict of interest, the complaints filed by plaintiff were transferred to the

municipal court in the Borough of Sea Girt. The municipal judge found there

was no "probable cause for the issuance of the complaints."

      Plaintiff subsequently filed a report with the Monmouth County

Prosecutor's Office, alleging the officers involved in investigating his accident

were guilty of misconduct. The Professional Responsibility and Bias Crime

Bureau investigated plaintiff's allegations, found the officers were not

criminally liable, and closed the matter.        Additionally, Lieutenant Sean

O'Halloran of the Wall Township Internal Affairs Police Department reviewed

plaintiff's allegations against the officers. Subsequently, the Chief of Police in

Wall Township, Kenneth Brown, Jr., advised plaintiff the officers named in his

complaint "followed the appropriate departmental policies and procedures and

acted within performance guidelines," and their actions "were determined to be

justified, legal and proper."




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      In September 2019, plaintiff filed a Law Division complaint against Wall

Township, Smithman, Baldino, O'Halloran, Brown, and Zabarsky. He alleged,

in part, that the police officers who investigated his accident made false

statements in their accident report, and their supervisors condoned such ethical

violations, instead of sanctioning the officers.        Additionally, plaintiff

complained the municipal prosecutor "steer[ed] clear of the actual facts of the

accident" and the internal affairs investigation did not follow the Attorney

General's Internal Affairs Policy and Procedures. He also alleged that based on

defendants' actions, he was denied "due process at every stage and by every

agency." Defendants moved to dismiss the complaint pursuant to Rule 4:6-2;

alternatively, they sought summary judgment against the plaintiff.

      On November 22, 2019, following oral argument, the trial court granted

defendants' dismissal motion. The judge informed plaintiff that an error "in a

police report doesn't give rise to a private cause of action against the police

officers." Moreover, the judge found the officers who conducted the accident

investigation acted properly, as confirmed by the Wall Township Chief of Police

and an Internal Affairs investigation. Thus, the judge determined plaintiff was




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                                       4
not entitled to relief "based on the immunity set forth under the Tort Claims Act

[(TCA)]."1 N.J.S.A. 59:1-1 to 13-10.

        Acknowledging plaintiff was not satisfied with the Wall Township Police

Department, the judge reminded him he "pled guilty to a nonmoving violation,"

which not only appeared to be a "reasonable resolution" to the dispute regarding

the accident, "but kind of proves the case for the defendants." The judge added

the municipal prosecutor "exercised the kinds of discretionary determinations

and decisions for which he is entitled to immunity." Further, the judge found

that after reviewing the complaint "with liberality," "[r]easonable minds cannot

differ . . . that the complaint in this case . . . should be dismissed. Even under

the Brill2 standard for summary judgment, . . . there are no substantial facts in

dispute." Accordingly, the judge dismissed his complaint.



1
    The TCA extends immunity to public employees for various activities
including: the exercise of judgment or discretion vested in him or her, N.J.S.A.
59:3-2; the good faith execution or enforcement of law, N.J.S.A. 59:3-3; and the
failure to adopt or enforce any law, N.J.S.A. 59:3-5. These specific grants
of immunity are subject to a general exception that withholds immunity when
the public employee's conduct "was outside the scope of his [or her] employment
or constituted a crime, actual fraud, actual malice or willful
misconduct." N.J.S.A. 59:3-14(a). Also, the TCA does not "exonerate a public
employee for negligence arising out of his [or her] acts or omissions in carrying
out his [or her] ministerial functions." N.J.S.A. 59:3-2(d).
2
    Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520

(1995).
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                                         5
      On appeal, plaintiff argues the trial court erred by mischaracterizing his

case as a "car collision case," rather than one alleging official misconduct.

Additionally, he contends the trial court erred in dismissing his case with

prejudice and by making various improper statements about his case. We are

not persuaded.

      Our review of a trial court's ruling on a motion to dismiss is de novo,

without deference to the judge's legal conclusions. Dimitrakopoulos v. Borrus,

Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 

237 N.J. 91

, 108 (2019).

Although the review of the factual allegations of a complaint on a motion to

dismiss is to be "undertaken with a generous and hospitable approach," Printing

Mart-Morristown v. Sharp Elecs. Corp., 

116 N.J. 739

, 746 (1989), "[a] pleading

should be dismissed if it states no basis for relief and discovery would not

provide one," Rezem Fam. Assocs., LP v. Borough of Millstone, 

423 N.J. Super.

103

, 113 (App. Div. 2011).       When the complaint fails to set forth "[t]he

traditional articulation" of the elements of a cause of action, no additional facts

could be pled, or further proceedings will amount only to "a mere fishing

expedition," dismissal with prejudice is entirely appropriate.       Nostrame v.

Santiago, 

213 N.J. 109

, 128 (2013).




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       Guided by these principles, we perceive no basis to disturb the trial

court's dismissal of plaintiff's complaint with prejudice. "[I]n balancing the

liability and immunity provisions of the TCA, 'immunity is the rule and liability

is the exception.'" Smith v. Fireworks by Girone, Inc., 

180 N.J. 199

, 207 (2004)

(quoting Posey ex rel. Posey v. Bordentown Sewerage Auth., 

171 N.J. 172

, 181-

82 (2002)). The immunity provisions of the TCA extend to public employees.

Lowe v. Zarghami, 

158 N.J. 606

, 615 (1999). Here, bearing in mind, as the trial

court did, that plaintiff pled guilty to a downgraded charge due to his

involvement in the 2019 accident, we are satisfied his complaint does not allege

sufficient facts to pierce the immunities afforded to defendants by the TCA.

Thus, defendants' motion under Rule 4:6-2(e) was properly granted.              See

Hoffman v. Hampshire Labs, Inc., 

405 N.J. Super. 105

, 112 (App. Div. 2009)

(quoting Sickles v. Cabot Corp., 

379 N.J. Super. 100

, 106 (App. Div. 2005) ("A

complaint may be dismissed for failure to state a claim if it fails 'to articulate a

legal basis entitling plaintiff to relief.'")).

       To the extent that we have not specifically addressed plaintiff's remaining

arguments, we conclude they are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.


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