ROBERT RUSSELL et al. v. MARK HOWELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5220-03T55220-03T5

ROBERT RUSSELL and

MARK HOWELL,

Plaintiffs-Appellants,

v.

JOHN SWING, MIKE BITTNER,

STEVE HARDICK, FRANK SCANGARELLA,

JOEL KLEIN, ED WOOLF, JOE SUTTON,

DAVID SILLIMAN, NEW JERSEY WATER

SUPPLY AUTHORITY,

Defendants-Respondents.

___________________________________

 

Argued October 24, 2005 - Decided

Before Judges Lintner, Holston, Jr., and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-483-02.

Michael W. Sozansky, Jr., argued the cause for appellants (Conley & Sozansky, attorneys; Mr. Sozansky, of counsel and on the brief).

Francis V. Cook argued the cause for respondents, Steven Swing and Mike Bittner (Grotta, Glassman & Hoffman, attorneys; Mr. Cook of counsel; Michael S. Hanan, on the brief).

Steven D. Farsiou argued the cause for respondents, Steve Hardick, Frank Scangarella, Joel Klein, Ed Woolf, Joseph Sutton, David Silliman and New Jersey Water Authority (Gebhardt & Kiefer, attorneys; Mr. Farsiou on the brief).

PER CURIAM

Plaintiffs, Robert Russell and Mark Howell, appeal from two orders of January 23, 2004, granting summary judgment to defendants, dismissing all claims, except those asserted by plaintiffs against defendants John Swing and Mike Bittner under the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34, and from an order of March 5, 2004, denying reconsideration of the two orders granting summary judgment. For reasons hereinafter expressed, we affirm.

On May 22, 2002, plaintiffs, employees of the New Jersey Water Supply Authority (Authority), filed a five-count complaint naming John Swing and Mike Bittner, security guards of the Authority; Steven Hardick, Chief of Security for the Authority; and Frank Scangarella, the business manager for the Authority, alleging violations of the New Jersey Wiretapping and Electronic Surveillance Control Act, (First Count); the Electronic Communications Privacy Act of 1986, 18 U.S.C.A 2510-2522 (Second Count); New Jersey constitutional and common law right to privacy (Third and Fourth Counts, respectively); and conspiracy to deprive plaintiffs of their right to privacy (Fifth Count).

On February 6, 2002, plaintiffs filed an amended complaint adding as additional defendants the Authority and its employees, Joel Klein, Ed Woolf, Joseph Sutton, and David Silliman, and including two additional causes of action, alleging violations of their civil rights pursuant to 42 U.S.C.A. 1983, 1985 (Sixth and Seventh Counts, respectively).

On May 23, 2003, the State tort claims (Fourth and Fifth Counts) were dismissed because plaintiffs failed to file notices of tort claim. On April 11, 2003, the parties voluntarily dismissed the 1985 civil rights claim (Seventh Count). On January 23, 2004, Judge John Coyle, for reasons expressed on the record that date, entered an order granting summary judgment dismissing plaintiffs' complaint as to the Authority defendants. A second order was entered the same day, granting partial summary judgment to defendants Swing and Bittner, thereby dismissing plaintiffs' complaint, except for claims asserted under the New Jersey Wiretapping and Electronic Surveillance Control Act. On March 5, 2004, the motion judge denied plaintiffs' motion for reconsideration of the two orders granting summary judgment. Plaintiffs subsequently settled the New Jersey wiretapping claims with defendants Swing and Bittner, and those claims were dismissed rendering the two summary judgment orders final. This appeal followed.

On appeal, plaintiffs argue:

POINT I.

THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT, AS MATERIAL ISSUES OF FACT EXIST IN THIS MATTER.

POINT II.

THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT, AS DEFENDANTS SWING, BITTNER, HARDICK, SCANGARELLA, KLEIN, WOOLF, SUTTON, AND SILLIMAN'S ACTIONS VIOLATED THE FEDERAL AND STATE WIRETAP ACTS.

POINT III.

THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT, BECAUSE DEFENDANTS' ACTIONS AND VIOLATIONS WERE NOT PURELY DE MINIMUS AND STATUTORY DAMAGES SHOULD HAVE BEEN AWARDED TO THE PLAINTIIFFS (SIC).

A. STATUTORY DAMAGES SHOULD HAVE BEEN IMPOSED UNDER THE FEDERAL WIRETAP ACT.

B. STATU[T]ORY DAMAGES SHOULD HAVE BEEN IMPOSED UNDER THE NEW JERSEY WIRETAP ACT.

POINT IV.

THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT, AS THE DEFENDANTS' VIOLATIONS OF THE FEDERAL AND STATE WIRETAP ACTS VIOLATED PLAINTIFFS' RIGHT TO PRIVACY.

POINT V.

THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT, AS PLAINTIFFS' EXPECTATION THAT THEIR PRIVATE CONVERSATIONS WERE FREE FROM INTERCEPTION PRECLUDED SUMMARY JUDGMENT.

POINT VI.

THE COURT BELOW ERRED IN GRANTING SUMMARY JUDGMENT, AS THE NJWSA [NEW JERSEY WATER SUPPLY AUTHORITY] SHOULD BE HELD ACCOUNTABLE UNDER 1983.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

We have considered the arguments advanced by the appellants, in light of the record below, and find their arguments without sufficient merit to warrant a more detailed discussion in a full written opinion. We affirm substantially for the reasons stated by Judge Coyle in his well-reasoned, comprehensive decision of January 23, 2004. R. 2:11-3(e)(1)(A) & (E).

 
Affirmed.

For the purpose of this opinion, all defendants, except John Swing and Mike Bittner, when referred to collectively shall be designated as the "Authority defendants."

We note a second confirming order granting partial summary judgment in favor of defendants Swing and Bittner was entered on April 16, 2004.

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A-5220-03T5

November 7, 2005