STEVEN D'AGOSTINO v. SERPICO'S RISTORANTE

NOT FOR PUBLICATION WITHOUT THE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 only binding 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-0

STEVEN D'AGOSTINO,

Plaintiff-Appellant,

v.

SERPICO'S RISTORANTE,

Defendant-Respondent.

______________________________________

October 24, 2016

Submitted September 28, 2016 Decided

Before Judges Alvarez and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. SC-2529-14.

Steven D'Agostino, appellant, argued the cause pro se.

Jon Serpico argued the cause for pro se respondent.

PER CURIAM

This appeal arises out of a dismissal with prejudice of a civil action filed by plaintiff Steven D'Agostino against defendant Serpico's Ristorante (Serpico's). The complaint sought damages for filing a false police report and for non-payment of wages.1 After our review of the trial record and in application of controlling legal principles, we affirm.

D'Agostino answered an advertisement placed by Serpico's for employment as a pizza delivery driver. When D'Agostino arrived at Serpico's to apply, he was hired that day and immediately commenced employment. After working for three-and-one-half-hours delivering and collecting monies associated with the deliveries, D'Agostino returned to Serpico's where he was advised he was no longer needed that day due to the number of other drivers working. He was told to return the next morning at 11:00 a.m. to resume work. It was at this time that the owner, Jon Serpico (Jon) gathered information from D'Agostino including his name, address and phone number. D'Agostino inquired of Jon about the money collected but was advised it would be worked out "tomorrow." When D'Agostino raised the same issue with Jon's daughter, who was also employed at Serpico's, she repeated that it would be worked out the next day. D'Agostino then went home.

While D'Agostino was at his home, Jon's daughter called him seeking the money he collected for the deliveries and insisted he return to Serpico's. D'Agostino, believing the change of position by Serpico's to be inconsiderate, advised that if Jon needed to get his money that night he would have to come to his house to work it out. A short time thereafter, a delivery driver for Serpico's arrived at D'Agostino's house and demanded payment of $119.55; an amount D'Agostino deemed incorrect. The dispute escalated when threats of arrest were made by the driver and later by Jon. Preemptively, D'Agostino notified the police to advise of the situation. Ultimately, a police officer arrived at D'Agostino's house whereupon, after an accounting of the monies by D'Agostino, the matter of the money collected and its payment to Serpico's was resolved.

Thereafter, D'Agostino obtained a copy of the police incident report. The report detailed the incident, including the position of both parties, and that the dispute between D'Agostino and Jon was "resolved."2 The report noted that D'Agostino initiated the contact with police and that Jon later contacted police to advise that he never told D'Agostino to "go home with the money." D'Agostino filed a complaint in the Law Division, Special Civil Part, Small Claims Section, seeking damages for a "false statement to local police," harassing behavior directed at him and refusal to pay him wages.3

A bench trial was conducted. At the conclusion of D'Agostino's testimony (direct and cross), Serpico's moved for dismissal.4 The judge held that while D'Agostino's testimony was credible, it "does not support a finding that there was anything done inappropriately by the defense in this matter . . . ." The motion for dismissal was granted. This appeal followed.

Defendant raises the following points on appeal

POINT I

THE TRIAL COURT HARMFULLY ERRED BY PRECLUDING MY TESTIMONY TO STATEMENTS MADE BY MR. SERPICO AND HIS AGENTS, WHICH WERE ADMISSIBLE UNDER THE PARTY-OPPONENT DOCTRINE.

POINT II

THE TRIAL COURT HARMFULLY ERRED BY GRANTING THE DEFENDANT'S MOTION FOR A DIRECTED VERDICT ON THE DEFAMATION CLAIM.

A motion for involuntary dismissal at trial is governed by R. 4:37-2(b)

At Trial Generally. After having completed the presentation of the evidence on all matters other than the matter of damages (if that is an issue), the plaintiff shall so announce to the court, and thereupon the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. Whether the action is tried with or without a jury, such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.

The standard for deciding a motion for involuntary dismissal under Rule 4:37-2(b) applies to a motion for judgment at trial. R. 4:40-1. We apply the same standard of review as the trial court in considering a motion for judgment pursuant to Rule 4:40-1. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). A motion for judgment shall be granted if, after presenting its proofs, plaintiff "has shown no right to relief," R. 4:37-2(b); see R. 4:40-1, and "no rational jury could conclude from the evidence that an essential element of the plaintiff's case is present." Perez v. Professionally Green, LLC, 215 N.J. 388, 404 (2013) (quoting Pron v. Carlton Pools, Inc., 373 N.J. Super. 103, 111 (App. Div. 2004)). The motion must be denied "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b); see R. 4:40-1.

We first address the second argument raised by D'Agostino. The correctness of the order granting a directed judgment turns on whether there was sufficient proof to impose liability on defendant for filing a "false police report." We conclude that, even considering the facts in a light most favorable to D'Agostino, his defamation claim fails as a matter of law.

While Serpico's reported D'Agostino's conduct to the police, it did not file a criminal complaint against him for theft; an act more consequential to D'Agostino's reputation. However, even had Serpico's done so, the filing of a criminal complaint enjoys an absolute immunity. See Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 336-37 (App. Div. 2001) (citing Piper v. Scher, 221 N.J. Super. 54, 60 (App. Div. 1987) (observing that defendant was entitled to dismissal of a defamation claim because the plaintiff based it "solely upon the criminal complaints" filed against her which were "absolutely privileged") (additional citations omitted)). Such complaints are privileged "to protect the public interest in freedom of access to the courts." Id. at 337 (citations omitted). This absolute privilege alone provides the basis on which to dismiss D'Agostino's claim. See Piper, supra, 221 N.J. Super. at 60.

To the contrary, D'Agostino's first argument that the judge's exclusion of testimony relating to statements made to him by Jon and his employees (party-opponents) as hearsay is meritorious. N.J.R.E. 803(b)(1). See One Step Up v. Sam Logistic, 419 N.J. Super. 500, 507-08 (App. Div. 2011). A trial court's evidentiary rulings are reviewed employing the abuse of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We disregard any error we deem harmless. Higgins v. Owens-Corning Fiberglass Corp., 282 N.J. Super. 600, 609 (App. Div. 1995). Only those errors "clearly capable of producing an unjust result" will result in reversal of a verdict. R. 2:10-2.

Here, we conclude the error was harmless insofar as the statements D'Agostino sought to introduce were contained within the police report admitted in evidence upon D'Agostino's offer.5 Presumably, the judge considered the statements in reaching his decision.6

To the extent that we have not specifically addressed any of plaintiff's remaining arguments, we find them to be without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Plaintiff does not appeal regarding the non-payment claim as it appears to have been resolved between the parties.

2 The report was marked as a plaintiff's exhibit in evidence at trial. Notwithstanding its hearsay content, there was no objection to its admission. See N.J.R.E. 802.

3 Although not plead as defamation, we consider the claim of a false statement to local police as one sounding in that tort.

4 D'Agostino sought to testify regarding statements made by Jon which, upon objection, was ruled inadmissible as hearsay.

5 On appeal, neither party has argued that the police report's admission was erroneous.

6 While we agree with the decision to dismiss reached by the judge, a more detailed statement of reasons would have been preferable in effectuating appellate review.