WILSON X. BEZERRA v. TOWNSHIP OF BELLEVILLE et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1751-05T51751-05T5

WILSON X. BEZERRA,

Plaintiff-Appellant,

v.

TOWNSHIP OF BELLEVILLE and

FRANK DeLORENZO,

Defendants-Respondents.

_____________________________________

 

Argued June 1, 2006 - Decided July 17, 2006

Before Judges Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County,

L-2454-05.

Wilson X. Bezerra, appellant, argued the cause pro se.

Robert V. Fodera argued the cause for respondents (Gebhardt & Kiefer, attorneys; Richard P. Cushing, of counsel; Mr. Fodera, on the brief).

PER CURIAM

Plaintiff Wilson X. Bezerra appeals the entry of an order dated October 21, 2005, granting summary judgment in favor of defendants Township of Belleville (Township) and Frank DeLorenzo, dismissing his complaint for failure to state a claim upon which relief may be granted. R. 4:6-2(e). We affirm the dismissal in favor of the Township but reverse the order dismissing the complaint against DeLorenzo.

Plaintiff's complaint arose out of his effort to secure building permits to construct an addition to a structure and to construct a modular house on another property. Both properties were located in Belleville, New Jersey. Plaintiff claims that defendant DeLorenzo deliberately and maliciously delayed conducting the necessary inspections for the room addition, which resulted in a header beam falling, causing considerable damage to the property. With respect to the modular house, plaintiff contends DeLorenzo deliberately and maliciously caused further delays by raising various objections to paperwork and alleging the project was not being constructed in accordance with the plans. DeLorenzo issued a stop-work order for the modular project. Plaintiff appealed that decision to the Essex County Construction Board (Construction Board). Following a hearing, the Construction Board found the proposed structure was a three-story building, while the permit issued "was for a two (2) to two and one-half (2 1/2) story building." It upheld the stop-work order but lifted the order for the sole purpose of enabling plaintiff to install a roof truss system. Plaintiff then applied to the Zoning Board of Adjustment (Board) for permission to build a two-family structure on the premises. Plaintiff also sought an interpretation of the definition of "story" or, alternatively, a bulk variance to allow a three-story structure. Following a hearing, the Board denied plaintiff's application and memorialized its decision in an August 5, 2003, resolution. The Board found that the proposed structure was a three-story building and that plaintiff had failed to prove the need for such a structure on the property. The Board also found:

[T]he structure would not blend in with the type of residential structures in the area and would be somewhat of an aberration in its appearance and as a result the Applicant failed to meet the negative criteria in that this Application cannot be granted without substantial detriment to the public good and without impairing the intent and purpose of the zoning ordinance.

Plaintiff ultimately complied with the Township requirements, and a certificate of occupancy was issued on January 28, 2005. Plaintiff filed a complaint on March 29, 2005, and an amended complaint on August 16, 2005. In the initial complaint, plaintiff alleged the Township negligently supervised its employees, acted arbitrarily and unreasonably with respect to the approval of plaintiff's construction plans, and selectively prosecuted him. In the amended complaint, it is alleged that DeLorenzo selectively prosecuted and persecuted plaintiff, abused the power of his position, and acted maliciously, intentionally, and willfully.

In lieu of filing an answer, defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief may be granted. R. 4:6-2(e). Defendants raised defenses under the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3. They urged plaintiff's claims were barred pursuant to N.J.S.A. 59:2-5, which immunizes a public entity for any injury caused by the "failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or public employee is authorized by the law to determine whether or not such authorization should be issued, denied, suspended or revoked[;]" N.J.S.A. 59:3-3, which immunizes public employees in the good faith execution and enforcement of any law; N.J.S.A. 59:3-8, which grants immunity to public employees arising out of the institution or prosecution of any judicial or municipal proceeding within the scope of the employee's employment; N.J.S.A. 59:3-9, which immunizes a public employee against a claim of trespass where entry is expressly or impliedly authorized by law; and N.J.S.A. 59:9-2(d), which bars recovery for pain and suffering unless the claimant vaults the statutory threshold.

In granting summary judgment, the motion judge found:

The problem with the papers in this particular case is that all of the acts committed by Mr. DeLorenzo were supported by all the boards and appeared to be within the scope of his employment. Regardless of what his intent, whether there was any actual malice, the fact of the matter it appears that all of the acts were within the scope of his employment and approved and confirmed by the board, which has never been overturned.

The standard under which motions to dismiss are decided is well established in New Jersey. F.G. v. MacDonell, 291 N.J. Super. 262, 266 (App. Div. 1996), aff'd in part and rev'd in part on other grounds, 150 N.J. 550 (1997). "Trial courts should 'approach with great caution applications for dismissal under R. 4:6-2(e) based on the failure of a complaint to state a claim on which relief may be granted.'" Ibid. (quoting Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 771-72 (1989)). "The test for determining the adequacy of a pleading is whether a cause of action is 'suggested' by the facts." Ibid. "[T]he inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Ibid. For purposes of the analysis, a plaintiff is entitled to have the complaint searched "'in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Printing Mart-Morristown, supra, 116 N.J. at 746 (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). Therefore, every reasonable inference will be given to a plaintiff and the motion will be granted only in rare instances and generally, without prejudice. Smith v. SBC Communs. Inc., 178 N.J. 265, 282 (2004). Thus, for such motions, all well-pled allegations of the complaint are accepted as true and the matter is to be resolved based on the pleadings themselves.

We review the grant of such a motion by the same standard applied by the trial court. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005). Thus, considering and accepting as true the facts alleged in the complaint, we determine whether they set forth a claim upon which relief can be granted. Ibid. Here, when plaintiff's pleadings are viewed under this standard, he alleges facts which demonstrate that the actions of defendant DeLorenzo, though authorized, were undertaken deliberately and maliciously. These alleged acts included the deliberate and intentional delay in approving plaintiff's application, purposely and illegally altering construction permits, and, when plaintiff appealed the stop-work order, issuing forty-seven building code violations, which plaintiff claims were ultimately dismissed.

The motion judge reasoned that all defendant DeLorenzo's actions "were supported by all the boards and appeared to be within the scope of his employment." The judge therefore concluded that "[r]egardless of [defendant's] intent, whether there was any actual malice, the fact of the matter it appears that all of the acts were within the scope of his employment and approved and confirmed by the board, which has never been overturned."

We agree that the immunity provisions of the Act related to the issuance or denial of a certificate and the enforcement of laws provide absolute immunity to the Township. N.J.S.A. 59:2-4; 59:2-5. We do not agree, however, that the allegations as pled against DeLorenzo are entitled to similar protections at this stage in the litigation simply because "it appears that all of the acts were within the scope of his employment and approved and confirmed by the board, which has never been overturned."

N.J.S.A. 59:3-14 provides:

a. Nothing in this act shall exonerate a public employee from liability if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.

b. Nothing in this act shall exonerate a public employee from the full measure of recovery applicable to a person in the private sector if it is established that his conduct was outside the scope of his employment or constituted a crime, actual fraud, actual malice or willful misconduct.

[(emphasis added).]

The plain language of N.J.S.A. 59:3-14 is beyond dispute. The use, in this section, of the term, "or," between the scope of employment provision and the conduct provision evidences the legislative intent to create an exception based upon conduct independent of the employee's authority to engage in the conduct.

"Statutory interpretation requires attention to the Legislature's intent, which is to be sought initially in the plain language of the statute." Taglieri v. Moss, 367 N.J. Super. 184, 195-96 (App. Div. 2004) (citing Frugis v. Bracigliano, 177 N.J. 250, 280 (2003)). See also Velez v. City of Jersey City, 180 N.J. 284, 294 (2004). "'Where statutory language is clear, courts should give it effect unless it is evident that the Legislature did not intend such meaning.'" Bubis v. Kassin, 184 N.J. 612, 626 (2005) (quoting Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 354 (2003)).

This section establishes what the Court in Tice v. Cramer, 133 N.J. 347 (1993), characterized as the "outer limit" for immunity imposed for conduct performed within the scope of employment. Id. at 375. Therefore, conduct that may be within the scope of an employee's employment, but is actuated by actual malice or willful misconduct, will not necessarily enjoy the protections of the Act. See Fielder v. Stonack, 141 N.J. 101, 127-28 (1995); Hopkins v. City of Gloucester, 358 N.J. Super. 271, 281-82 (App. Div. 2003). Consequently, the exceptions act as a limitation on the immunity provisions of N.J.S.A. 59:3-2 and 59:3-3. See Fielder, supra, 141 N.J. at 123; B.F. by B.F. v. Div. of Youth & Family Servs., 296 N.J. Super. 372, 386 (App. Div. 1997). N.J.S.A. 59:3-14 does not, however, establish an independent basis upon which to impose liability upon a public employee. See Timber Properties, Inc. v. Twp. of Chester, 205 N.J. Super. 273, 286 (Law Div. 1984).

Thus, in evaluating the interaction between the immunity provisions of the Act and the exceptions under N.J.S.A. 59:3-14, courts must first determine whether the employee is immune and then consider whether an exception applies. See Clarke v. Twp. of Mt. Laurel, 357 N.J. Super. 362, 368 (App. Div. 2003). Although, a board's approval of an employee's conduct may be evidence that the employee was properly exercising his or her discretion under N.J.S.A. 59:3-2 or acting in "good faith" under N.J.S.A. 59:3-3, that approval does not establish immunity for actions that are illegal, malicious or intentional. Velez, supra, 180 N.J. at 291.

We are persuaded that at this early stage of the litigation, plaintiff has set forth allegations against DeLorenzo sufficient to survive a motion to dismiss. In addition, dismissal of plaintiff's complaint, based upon the additional claim that plaintiff's injuries fail to vault the threshold provisions under N.J.S.A. 59:9-2(d), is premature in light of our decision in Taglieri, supra, 367 N.J. Super. at 196. There, we held the threshold provisions under this section do not apply where a public employee engages in willful misconduct under N.J.S.A. 59:3-14. Ibid. Finally, plaintiff's claim for punitive damages remains viable at this stage of the proceedings. See Kelly v. County of Monmouth, 380 N.J. Super. 552, 565 (App. Div. 2005).

 
Affirmed in part and reversed in part.

(continued)

(continued)

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A-1751-05T5

July 17, 2006