PETER DIPIETRO v. JOANNA VASSALLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5207-09T1

PETER DIPIETRO,

Plaintiff-Appellant,

v.

JOANNA VASSALLO, (f/k/a

JOANNA DIPIETRO), DIANE VASSALLO,

ANGELA MERLO, Court Psychologist,

and DR. PHILIP BOBROVE, PH.D.,

Defendants-Respondents.

November 17, 2011

Argued September 12, 2011 - Decided

Before Judges Parrillo, Grall and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1583-09.

Peter DiPietro, appellant, argued the cause pro se.

Leah A. Vassallo argued the cause for respondents Joanna Vassallo and Diane Vassallo (Vassallo Law Firm, L.L.C., attorneys; Ms. Vassallo, on the brief).

Peter D. Wint, Assistant Attorney General, argued the cause for respondent Angela Merlo (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wint, on the brief).

Mark A. Petraske argued the cause for respondent Philip Bobrove, Ph.D. (Buckley & Theroux, LLC, attorneys; Mr. Petraske, of counsel; George H. Cortelyou, on the brief).

PER CURIAM

Plaintiff Peter DiPietro, who was self-represented in the Law Division proceedings from which this appeal is taken, seeks to set aside two orders dated April 12, 2010, and May 14, 2010. The orders dismissed DiPietro's claims against his former wife, his former mother-in-law, court staff, and a psychologist arising from litigation related to his parenting time. We affirm.

So that the issues raised by this appeal may be better understood, we detail the extensive litigation history which preceded the two orders. DiPietro and Joanna Vassallo (Vassallo), formerly known as Joanna DiPietro, were divorced on April 25, 2001. At that time, the parties' only child was an infant.

When the parties divorced, they agreed that a final restraining order (FRO) entered pursuant to the Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, which Vassallo had previously obtained against DiPietro, would continue in effect. The FRO provided that DiPietro's visitation with the child would be supervised, and designated defendant Diane Vassallo, Vassallo's mother, as the contact person regarding scheduling. The court staff person who completed the visitation risk assessment in 2000 ancillary to the issuance of the FRO was Angela Merlo. See N.J.S.A. 2C:25-29(b)(3)(a).

When they divorced, the parties also agreed to submit to Philip Bobrove, Ph.D., for evaluation and for his recommendation as to whether DiPietro's visitation should continue to be supervised. Merlo's risk assessment was provided to Dr. Bobrove before he completed his report. Dr. Bobrove recommended that supervised visitation continue.

Prior to the final divorce hearing, Merlo forwarded a copy of the risk assessment to DiPietro's attorney. She then informed him, in response to his inquiry, that she did not record the interview. The March 29, 2001 letter listed the following after her name: "MCAT, MA." DiPietro knew that Merlo completed a risk assessment in 2000, and knew that Dr. Bobrove completed his evaluations and visitation recommendations in 2002. In 2003, when the child was approximately three years old, DiPietro ceased having any contact with her.

In September 2008, DiPietro filed a complaint in the United States District Court for the District of New Jersey alleging that Vassallo and various state agencies had conspired to deprive him of his constitutional rights. The suit was filed after the Gloucester County Probation Department refused to accept his personal or business checks for child support since an earlier check was returned for insufficient funds. In that lawsuit DiPietro also asserted claims against Vassallo for intentional and negligent infliction of emotional distress.

The federal complaint was dismissed on June 10, 2009, on several grounds, including failure to state a claim for relief against Vassallo. The United States Court of Appeals for the Third Circuit affirmed the dismissal on the same grounds on March 18, 2010. DiPietro v. N.J. Family Support Payment Ctr., No. 09-3022, 2 010 U.S. App. LEXIS 5736 (3d Cir. Mar. 18, 2010).

On September 1, 2009, after the trial court's dismissal of his federal claims but before the decision issued on the appeal, DiPietro filed a complaint in the Law Division against Vassallo and her mother seeking damages for intentional infliction of emotional distress, negligent infliction of emotional distress against Vassallo alone, and common law fraud against both.

Additionally, in October 2009, DiPietro filed motions in the Family Part, which were also denied, seeking to vacate the divorce judgment and to waive the requirement that he file a case information statement. See R. 5:7-2. Vassallo's Rule 1:10-3 cross-motion to enforce litigant's rights was granted, however, and judgment entered against DiPietro for $21,870 in child support arrears. He does not appeal that order.

DiPietro's Law Division complaint was dismissed on January 8, 2010, on the Vassallos' motion. The court granted the application because, among other reasons, DiPietro failed to state a cause of action for intentional infliction of emotional distress, negligent infliction of emotional distress, or fraud.

On January 18, 2010, DiPietro filed a motion to "Amend and Reinstate Complaint," seeking to add Merlo and Dr. Bobrove as additional defendants. The motion was denied on April 12, 2010, and is one of the two orders being appealed. With regard to the claims against the Vassallos, as the judge noted, no new law or facts were presented; therefore, there was no basis upon which to reinstate the complaint. See R. 4:49-2.

The court denied the request to amend the complaint to assert a cause of action against Merlo because the relevant statutes of limitations had long since expired. Claims regarding Merlo's alleged fraud should have been filed within six years of DiPietro's discovery of the conduct and hence were time-barred. See N.J.S.A. 2A:14-1. DiPietro's tort claims against Merlo should have been filed within two years. See N.J.S.A. 2A:14-2. The claims against Dr. Bobrove were dismissed for the same reasons, that any allegation of fraud should have been pursued within six years, and the tort claim within two years. See N.J.S.A. 2A:14-1 and N.J.S.A. 2A:14-2.

The court's written decision discussed additional bars to DiPietro's new purported causes of action. As to the claims against Merlo, DiPietro failed to serve a notice of tort claim, N.J.S.A. 59:8-8. Merlo is immune from liability for a report prepared within the scope of her judicial employment, N.J.S.A. 59:3-2. As to the claims against Dr. Bobrove, he was protected by the litigation privilege. See P.T. v. Richard Hull Cmty. Mental Health Care Ctr., 364 N.J. Super. 561, 584 (Law Div. 2002), aff d, 364 N.J. Super. 460 (App. Div. 2003).

On April 15, 2010, plaintiff filed a notice of motion for reconsideration, which was denied on the papers on May 14, 2010. In its decision, the court referenced the analysis set forth in the April 12, 2010 written opinion, and added that, pursuant to Segal v. Lynch, 413 N.J. Super. 171 (App. Div.), certif. denied, 203 N.J. 96 (2010), claims by parents for intentional infliction of emotional distress arising from disputes over children had to be pursued ancillary to an action seeking parenting time or custody in the Family Part. See Segal, supra, 413 N.J. Super. at 192. This appeal followed.

A reviewing court will interfere with the decision whether to grant or deny a motion to reinstate a complaint only if an injustice has been done. Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 93 (App. Div. 2008). No such injustice has occurred here.

It is undisputed that a motion for leave to amend is to be liberally granted, and without consideration of the ultimate merits of the amendment. Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 500-01 (2006). In determining whether to allow a party to amend a pleading, the court asks (1) whether the non-moving party will be prejudiced, and (2) whether granting the amendment would nonetheless be futile. Notte, supra, 185 N.J. at 501.

Any objection to the filing of an amended complaint on the ground that it fails to state a cause of action is measured by the motion to dismiss standard under Rule 4:6-2(e). And Rule 4:6-2(e) dismissals are sustained if, after giving a plaintiff every reasonable inference of fact, and reviewing the complaint with a "generous and hospitable approach," the allegations are nonetheless legally insufficient. Printing Mart-Morristown v. Sharp. Elec. Corp., 116 N.J. 739, 746 (1989). Maxim Sewerage v. Monmouth Ridings, 273 N.J. Super. 84, 90 (Law Div. 1993). In reviewing the denial of a motion to amend a pleading, we recognize the decision rests in the court's sound discretion. Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998).

Furthermore, Rule 4:49-2 provides that:

a motion for . . . reconsideration . . . shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.

[R. 4:49-2.]

Reconsideration is a matter within the sound discretion of the court, to be exercised in the interest of justice. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). In order to succeed, a litigant on a motion for reconsideration is required to establish that the court expressed its decision on a "palpably incorrect or irrational basis," or did not properly consider "probative, competent evidence." D'Atria, supra, 242 N.J. Super. at 401.

The initial decision dismissing DiPietro's complaint was correct because the complaint entirely failed to state a cause of action against the Vassallos. To establish a claim for intentional infliction of emotional distress, a plaintiff must show that the defendant (1) intentionally or recklessly engaged in (2) extreme and outrageous conduct (3) that was the proximate cause of (4) plaintiff suffering emotional distress so severe that no reasonable person could be expected to endure it. Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988). Extreme and outrageous conduct is defined as "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Ibid. (quoting Restatement (Second) of Torts 46 comment d (1965)). The Vassallos' conduct as DiPietro describes it does not fall in that category. Merely accusing them of making false statements about him does not bring their conduct within the ambit of intentional infliction of emotional distress.

Neither did the trial court err in dismissing DiPietro's claim of negligent infliction of emotional distress. Such claims are supportable when:

A plaintiff can demonstrate that the defendant's negligent conduct placed the plaintiff in reasonable fear of immediate personal injury, which gave rise to emotional distress that resulted in a substantial bodily injury or sickness. Alternatively, a plaintiff can state a prima facie claim for negligent infliction of emotional distress by satisfying the four elements set forth in Portee.

[Jablonowska v. Suther, 195 N.J. 91, 104 (2008) (citation omitted).]

The four-prong test set forth in Portee v. Jaffee, 84 N.J. 88, 101 (1980), requires that (1) the defendant's negligence caused the death of, or serious bodily injury to, another; (2) the plaintiff shared a marital or intimate, familial relationship with the injured person; (3) the plaintiff had a sensory and contemporaneous observation of the death or injury at the scene of the accident; and (4) the plaintiff suffered severe emotional distress. DiPietro's prayer for relief on this theory is not sustainable.

To establish common law fraud, a plaintiff must show "(1) a material misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resultant damages." Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997). DiPietro's claim on its face does not satisfy the elements of common law fraud because DiPietro does not allege that he relied on any statement made by defendant.

DiPietro is really contending that the Vassallos perpetrated a fraud upon the court that issued the orders requiring his visitation to be supervised. But this theory does not entitle him to any relief either as a matter of law. A fraud upon the court is not a separate cause of action, but it is instead a basis for an award of sanctions or relief from judgment in an action affected by the wrongful conduct. See, e.g. Nolan by Nolan v. Lee Ho, 120 N.J. 465, 472 (1990); Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237, 250-53 (App. Div. 2007); Pavlicka v. Pavlicka, 84 N.J. Super. 357, 366 (App. Div. 1964).

When DiPietro sought reconsideration of the dismissal of his complaint, he did not and could not establish that the court's decision was palpably incorrect or irrational. Neither did he establish that there were matters which the court overlooked. Thus we are satisfied that the trial court decision denying reconsideration of the initial decision to dismiss was sound.

DiPietro's assertion that the court erred by refusing to allow the amendment to his complaint to name Merlo and Dr. Bobrove has no basis in law. Merely describing Merlo and Dr. Bobrove's conduct as an ongoing injury does not make it so; any contact they had with DiPietro ended, at the latest, in 2003.

Statutes of limitations are enacted "'to protect against the litigation of stale claims.'" McGrogan v. Till, 327 N.J. Super. 595, 605 (App. Div. 2000) (quoting Grunwald v. Bronkesh, 131 N.J. 483, 497 (1993)), modified in part on other grounds, 167 N.J. 414 (2001). The period of the limitation depends on the nature of the injury. Id. at 604 (quoting Montells v. Haynes, 133 N.J. 282, 291 (1993)). In an action for intentional infliction of emotional distress, the period of limitation is two years. N.J.S.A. 2A:14-2; Fraser v. Bovino, 317 N.J. Super. 23, 34 (App. Div. 1998), certif. denied, 160 N.J. 476 (1999). For common law fraud, the applicable period of limitation is six years. N.J.S.A. 2A:14-1; Holmin v. TRW, Inc., 330 N.J. Super. 30, 37 (App. Div. 2000), aff d, 167 N.J. 205 (2001).

DiPietro knew Merlo prepared a court-ordered visitation risk assessment by late 2000. He knew in 2001 that Merlo was not a licensed psychologist because his attorney received correspondence from her, and the letter indicated her credentials, one of the several springboards of his claims against her. DiPietro's contention of a continuing tort has no factual basis. Even if his discovery of the credentials required for the position did not occur until years later, his claim is not saved by the belated discovery. He had the critical factual information in at least 2001, and cannot invoke the discovery rule to preserve the claim. See Lopez v. Swyer, 62 N.J. 267, 272 (1973). Hence his attempt to file suit against Merlo in 2010 must fail.

Dr. Bobrove's report issued December 2002.1 DiPietro's complaint was filed in September 2009. Therefore, DiPietro cannot pursue any claim against Dr. Bobrove because it is barred by either the two- or the six-year statute of limitations.

Granting an amendment to the complaint to name Merlo or Dr. Bobrove as defendants would be futile because of the statutory bars, and therefore the trial court did not err by refusing to grant the request. Without reaching the other grounds upon which the trial court relied, we affirm the trial court's initial dismissal of the complaint, refusal to allow reinstatement of the complaint, or to permit any amendment thereto.

Defendant's final point reads as follows:

THE COURT ERRED BY DISMISSING APPELLANT'S AMENDED COMPLAINT AGAINST JOAN MORISKI, STEPHEN E. FINGERMAN, PAULA MONTANA AND THE STATE OF NEW JERSEY

The record does not support DiPietro's assertion that his request to add defendants Joan Moriski, Stephen E. Fingerman, and Paula Montana, all court employees in 2000 to 2003, and the State of New Jersey, was ever before the court. We have nothing before us indicating that DiPietro sought to add those parties or that the judge was asked to rule upon the issue. If no actual application was made, no decision was rendered, and, as a result, no appeal can be taken.

A

1 The trial court referred to the date of the report as May 20, 2003; however, it actually issued and was supplied to the Family Part judge in December 2002.