JOSEPH LAPOSTA v. BOROUGH OF ROSELAND, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3345-04T13345-04T1

JOSEPH LAPOSTA,

Plaintiff-Appellant,

v.

BOROUGH OF ROSELAND and BOROUGH OF

ROSELAND POLICE DEPARTMENT,

Defendants-Respondents.

___________________________________________________

 

Submitted January 30, 2006 - Decided February 8, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-7727-04.

Alterman & Associates, attorneys for appellant (Stuart J. Alterman, of counsel; Kristofer B. Chiesa, on the brief).

Fox and Fox, attorneys for respondents (Benjamin Benson, of counsel and on the brief).

PER CURIAM

Plaintiff Joseph LaPosta is a member of the Roseland Police Department. He filed a complaint seeking to set aside the disciplinary action taken against him by defendants. Plaintiff alleged that although he pleaded guilty to the charge of insubordination, he in fact was not guilty. He claimed that he entered the guilty plea because of misleading representations he received as to the penalty he could expect. The trial judge granted defendants' motion to dismiss, stating in her order that (1) the court lacked subject matter jurisdiction, (2) the complaint failed to state a claim upon which relief may be granted, and (3) plaintiff failed to exhaust his administrative remedies. We affirm the dismissal of the complaint.

In discussing the merits of the parties' contentions, we initially observe that the trial judge unfortunately failed to explain her ruling. Following oral argument on the motion, the judge indicated that she would view the matter "a little closer and then I'll render my decision hopefully by the end of today." We have not been provided with a transcript of any oral decision nor have we been provided with a copy of a written decision. Since the judge's order did not recite that the reasons for the entry of the order were contained in either a written or oral decision, as is the custom, but is entirely silent on the matter, we assume that the judge never issued either an oral or written decision.

R. 1:7-4(a) requires that a court "find the facts and state its conclusions of law . . . on every motion decided by a written order that is appealable as of right." As the Supreme Court has said, a judge's failure to comply with this obligation "constitutes a disservice to the litigants, the attorneys and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980). "Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion. In the absence of reasons, we are left to conjecture as to what the judge may have had in mind." In re Farnkopf, 363 N.J. Super. 382, 390 (App. Div. 2003) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). This is particularly exacerbated where, as here, the judge's order states three somewhat inconsistent reasons for dismissal of the complaint. Notwithstanding the judge's failure to explain her ruling, we will not remand to obtain her findings. Instead, in order to spare the litigants further expense, we will review the sufficiency of the order of dismissal on its merits.

Defendants' motion was based upon R. 4:6-2(e). Defendants claimed that the court lacked subject matter jurisdiction, that plaintiff had failed to exhaust his administrative remedies, and that the complaint failed to state a claim upon which relief may be granted. In response to the motion, plaintiff provided his own certification, explaining the factual basis for his claim. Defendants filed sworn statements rebutting plaintiff's contention. As a result, the motion should have been examined by the judge as if it were a summary judgment motion. R. 4:6-2; Wang v. Allstate Ins. Co., 125 N.J. 2, 9 (1991).

Under our court rules, summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). "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." Ibid. A genuine issue of material fact does not exist if there is "a single, unavoidable resolution of the alleged disputed issue of fact. . . ." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986)). When reviewing an order granting summary judgment, we apply these principles. Prudential Property Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Plaintiff alleged in his complaint that, on August 20, 2004, he was provided with a notice from the police department charging him with insubordination because, on August 11, 2004, he had allegedly failed to follow a standard operating procedure when requesting an adjournment of a court date. Detective Sergeant Vincent Thomas served the notice upon him. Plaintiff asserted that, upon receiving the notice, he inquired of Thomas about the consequences if he pleaded guilty to the charge. Plaintiff asserted that Thomas, who he claims was the head of internal affairs, told him that he "would only receive a written reprimand" and "said nothing about a possible suspension." Plaintiff also stated in his opposing certification that he spoke with his union representative and was told that "the written reprimand in my file was the normal punishment for officers charged with similar allegations of insubordination," and that "two other officers in my department, who were charged with similar acts of insubordination, were given written reprimands in their files without suspension." Plaintiff stated that as a result of receiving these communications, he "decide[d] to plead guilty to the insubordination charge [even though he] honestly believed that the only punishment [he] would receive for this charge was a written reprimand letter in my file without a suspension." In summary, plaintiff stated in his certification that he only pleaded guilty "because I was misinformed by Detective Sergeant Thomas about the punishment I would receive."

In response, defendants submitted the certification of Police Chief Richard J. McDonough, who disputed plaintiff's version of what occurred. McDonough also asserted that Thomas had

absolutely no authority or power to promise, inform or advise officers as to what their disciplinary penalties would be if they pled guilty to any charge. All decisions regard-ing penalties for disciplinary violations for the officers under my supervision are made by me and me alone. Detective Sgt. Thomas knows these facts to be true and would never inform an officer that he would receive any specific penalty if he pled guilty to an offense.

Thomas filed a certification recounting his lack of authority to make such promises. He also denied making the statements which plaintiff attributed to him.

We recognize there is a genuine factual dispute about what may have been said by Thomas to plaintiff on the occasion in question. That dispute, however, does not bar the entry of summary judgment in favor of defendants because plaintiff did not dispute Police Chief McDonough's statement that Thomas was not authorized to make a promise about penalties and that only he (McDonough) had the authority to determine the penalty to be imposed upon a finding or plea of guilty. Indeed, there is nothing that may be inferred from plaintiff's opposing certification to suggest that plaintiff believed Thomas was authorized to make such a promise. Because of the absence of a genuine dispute about Thomas's authority to bind the police chief, the trial judge was permitted to grant, and should have granted, summary judgment dismissing the complaint.

Again, while we have no ability to ascertain the trial judge's view of these facts and contentions because of her failure to comply with R. 1:7-4(a), the absence of a factual dispute about Thomas's inability to bind the police chief to a particular penalty warranted the entry of summary judgment in favor of defendants. We, thus, affirm the trial judge's dismissal of the complaint, but only for these reasons. Isko v. Planning Bd. of Livingston Tp., 51 N.J. 162, 175 (1968); Khalil v. Motwani, 376 N.J. Super. 496, 499 (App. Div. 2005).

 
Affirmed.

Thomas denied this.

(continued)

(continued)

7

A-3345-04T1

February 8, 2006