JAMES JOHNSON VS. FRANK PROVENZANO (L-2764-17, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-3628-17T3

JAMES JOHNSON,

Plaintiff-Appellant,

v.

FRANK PROVENZANO,
NICHOLAS MUSCENTE,
JOHN STEMLER, and
ROBERT COULTON,

Defendants-Respondents.
__________________________

Submitted April 2, 2019 – Decided April 30, 2019

Before Judges Rothstadt and Natali.

On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-2764-17.

The Igwe Firm, attorneys for appellant (Emeka Igwe,
of counsel and on the brief).

Dvorak & Associates, LLC, attorneys for respondents
(Lori A. Dvorak, of counsel and on the brief).

PER CURIAM
 Plaintiff James Johnson appeals from an April 9, 2018 Law Division

order granting defendants Frank Provenzano, Nicholas Muscente, John Stemler

and Robert Coulton summary judgment under Rule 4:46-2(c). We affirm.

I.

All four defendants are Ewing Township police officers. On August 14,

2010, a white Ford Explorer with Pennsylvania license plates backed into a

vehicle in a parking lot in Ewing Township and left the scene. A witness

provided the license plate number to Provenzano, but was unable to describe

the driver.

After determining plaintiff was the vehicle's registered owner,

Provenzano issued three summonses charging plaintiff with leaving the scene

of an accident, failing to report an accident, and careless driving. According to

defendants, the summonses were mailed to plaintiff's residence and required

him to appear in Ewing Township municipal court on September 13, 2010.

Plaintiff, who is a Philadelphia police officer, claims he did not receive

notice of the summonses until September 17, 2010, when he learned a warrant

for his arrest was issued for his failure to appear. The notice was prepared by

the Administrator of the Ewing Township municipal court, and stated that a

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warrant was issued the day after the scheduled court date by Municipal Judge

Roger T. Haley. The warrant contained Judge Haley's electronic signature.

Plaintiff voluntarily appeared and was arrested on September 20, 2010.

Officer Nicholas Muscente handcuffed plaintiff to a bench in the police

station. He was detained for one hour and twelve minutes before being

released on his own recognizance.

Plaintiff appeared before Judge Haley later that day. After plaintiff

explained why he failed to previously appear, the court vacated the warrant

and declined to impose any sanctions. At the rescheduled hearing, plaintiff

established he was not the driver, and the court dismissed all three summonses.

Plaintiff then filed a six-count complaint in the United States District

Court for the District of New Jersey against Provenzano, the Ewing Township

Police Department, and Ewing Township. Plaintiff alleged that his civil rights

were violated when Provenzano issued the summonses "without any legal

justification or probable cause" to believe plaintiff was the driver of the

vehicle. He also claimed that the "warrant for failure to appear was not

properly executed because he did not have notice of the summonses."

As a result of Provenzano's actions, plaintiff asserted he was subjected to

a false arrest and false imprisonment, malicious prosecution or abuse of

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process, negligent or intentional infliction of emotional distress, and violations

of 42 U.S.C. § 1983. Plaintiff also asserted claims against Ewing Township

and its police department under 42 U.S.C. § 1983 for failing to properly train,

supervise, or discipline its officers, including Provenzano, and state law claims

for negligent hiring, training, and supervision.

After discovery, defendants moved for summary judgment. The court

granted the motion and concluded that Provenzano had probable cause to issue

the summonses, and that any error in the execution of the arrest warrant was

not attributable to him. As the court explained in its written opinion, plaintiff's

claims against Provenzano, "stem[med] from the allegation[s] that . . . [he]

lacked probable cause to issue the summonses in the first place" and that, had

"Provenzano not issued the summonses, the resulting warrant would not have

been executed." The court noted that "[p]laintiff further argues that the

warrant for failure to appear was not properly executed because he did not

have notice of the summonses." The court specifically found, however, that

"[t]he arrest warrant was issued by a municipal judge," and cited Rule 7:2-

2(b).

The court also determined that "the [municipal court] judge's decision --

regardless [of] whether it [was] sound -- to issue such a warrant clearly cannot

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be the basis for asserting liability against Officer Provenzano." The court

stated that "the error, if any, in issuing the warrant relates to the decision of the

municipal judge, not Officer Provenzano," and, therefore, "[p]laintiff's factual

allegation that the arrest warrant was defective cannot be the basis for his

claims of false arrest and imprisonment against Officer Provenzano."

Plaintiff appealed, and the United States Court of Appeals for the Third

Circuit affirmed. The Court of Appeals noted that under Rule 7:2-2(c), "[i]f a

defendant who has been served with a summons fails to appear on the return

date, an arrest warrant may issue pursuant to law." Thus, the court concluded:

[i]t is irrelevant whether Johnson could be arrested
simply because a vehicle he owned was involved in an
accident – "[t]he simple fact of nonappearance [for his
summons] provided … probable cause . . . for a bench
warrant. Accordingly, probable cause existed for
[plaintiff's] arrest, and there was no Fourth
Amendment violation.

Plaintiff next filed a malpractice action in Pennsylvania state court

against the attorneys who represented him in the federal action. During

discovery, plaintiff subpoenaed the Ewing Township municipal court, attached

a copy of his arrest warrant, and sought documents related to the warrant's

creation and execution by Ewing Township officials and Judge Haley. In

response, Dawn Gollinge, the Ewing Township Deputy Court Administrator,

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produced three electronic reports pertaining to the three summonses. All three

documents confirmed that a warrant was issued on September 14, 2010, and

recalled by the court on September 20, 2010.

Despite receipt of these documents, and the dismissal of the federal

action, on March 6, 2017, plaintiff filed a two-count complaint in the Law

Division against Provenzano, Muscente, Stemler, and the Ewing Township

Police Department alleging fraud and seeking punitive damages. Plaintiff

asserted that "[o]n September 17, 2010, [he] received notice of a warrant as a

result of the unanswered traffic summon[ses] which he never previously

received or was given notice of." Plaintiff also stated that defendants provided

a document that "purported to be a valid warrant during the discovery process"

in the federal action, but there "was never a validly executed warrant" and the

warrant produced "lacked authority because it did not contain the signature or

seal of a judge or issuing authority," as plaintiff argued was required by Rule

3:2-3. Thus, according to plaintiff, "[b]ut for the fraudulent actions of

[d]efendants" in providing him with a "fraudulent notice of warrant for his

arrest" in September 2010, and a "purported warrant [that] lacked" a signature

or seal during discovery in the federal action, "[p]laintiff would have

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succeeded at trial" "and received a substantial award of damages in his federal

action."

Defendants moved to dismiss the March 2017 complaint under Rule 4:6-

2(e). After hearing oral arguments, the court dismissed the March 2017

complaint without prejudice. As to the warrant's authenticity, the court noted

that defendants claim to have "relied on a valid municipal warrant when they

arrested the plaintiff when he surrendered himself for failure to appear for

traffic summonses," and that "plaintiff has not opposed this argument."

The court also explained that "plaintiff has not provided sufficient

evidence showing that the warrant had been fabricated by the defendants," and

concluded that "[a]ny argument that Judge Haley's signature is not on the

bench warrant is a red herring." In addition, the court noted that the

"automation of the court system in New Jersey has necessitated that many

archaic paper-related practices fall by the wayside to allow computer-

generated documents" and that "[t]he notification of a warrant and a new court

date for the defendant who failed to appear for a court date is within the court

rules and is a common occurrence."

Accordingly, the court rejected plaintiff's claim "that the bench warrant

is an invalid warrant because the judge did not personally sign or seal the

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warrant pursuant to Rule 3:2-3(a) and (b)." The court noted that Part Three of

the Court Rules "addresses criminal matters," not a "municipal bench warrant

for failure to appear for traffic violations," which the court explained was

governed by "Part [Seven] of the Court Rules." Further, the court stated that

"Judge Haley opted to issue a bench warrant when the plaintiff . . . failed to

appear for the traffic violations, and he issued a warrant with an electronic

signature as permitted by the applicable court rules." The court also explained

that "[t]he bench warrant the plaintiff attaches to his complaint clearly states

that the warrant was issued for his failure to appear, and it bears electronic

signature of the issuing judge."

In addition, the court concluded that both the entire controversy and

collateral estoppel doctrines supported dismissal of the complaint. The court

found "the issue as to whether or not the bench warrant was defective and its

impact on the conduct of the individual officers or the policy of department

has been addressed by this [c]ourt and the federal courts," and concluded that

"[w]hether or not it was pled" in the federal action, "it would have been

dismissed." With respect to collateral estoppel, the court "acknowledge[d] that

the municipal bench warrant was valid and that the [c]ourt is bound by the

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decisions of the District Court and the Court of Appeals," and "reiterate[d] the

defendants are not liable for the action or inaction of the municipal court." 1

The dismissal was without prejudice. Neither the court's oral decision,

nor its attendant July 10, 2017 order, however, contained any further directions

as to when any amended pleading should be filed.

Rather than filing an amended complaint, moving for reconsideration or

for interlocutory review, plaintiff filed a nearly identical two-count complaint

against Provenzano, Muscente, Stemler, and Coulton, which again alleged

fraud and sought punitive damages, in December 2017. This is the matter

now before us.

The complaint alleged that "the purported bench warrant was a forgery

and was never authorized to be issued by a [m]unicipal [j]udge or any other

judicial official." Plaintiff claimed that he had "further evidence that clearly

1
The court also rejected plaintiff's common-law fraud claim as improperly
pleaded. Further, the court concluded that because "the conduct of the officers
versus the municipal court has been heard and adjudicated" in the federal
action, there was "no wrongdoing on the part of the individual officer
defendants that merit piercing the immunities afforded to them by the Tort
Claims Act." Finally, with respect to his punitive damages claim, the court
found "that the plaintiff has failed to sufficiently allege any of the defendants'
purported misconduct was committed intentionally, knowingly, willingly,
wantonly and in disregard for the rights of others and in reckless indifference
to the plaintiff's rights, or that it shocked the conscious of the community."

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shows that there is no document or other proof within the Ewing Township

Court Administration records showing that a [m]unicipal judge or any other

judicial official authorized or directed the issuance of a bench warrant against

[p]laintiff." According to plaintiff, defendants "had full knowledge" of the

forgery and they, "not the Ewing Township municipal court, were directly

responsible for creating and/or issuing the fraudulent bench warrant against

[him]."

Defendants moved for summary judgment under Rule 4:46-2(c), and

submitted the certification of Maryann Convenio, the Administrator of the

Ewing Township municipal court, in support. Convenio certified that she was

presented with the three underlying traffic summonses "and [was] asked to

research the [c]ourt history of these summonses." She attested that she

"attempted to review the hard copies of records for these summonses," but they

"were disposed of on or about December 12, 2015[,] in accordance with

Directive #3-01 of the Judiciary State of New Jersey Records Retention

Schedule for Municipal Court dated March 16, 2001." The certification

further provided that the warrant in question was in fact issued on September

14, 2010. She attached the warrant, scanned copies of the underlying traffic

tickets and several court records to her certification, which defendants filed in

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support of their motion. In opposing the motion, plaintiff relied on two expert

reports authored by Jack Meyerson, Esquire, prepared in connection with

plaintiff's Pennsylvania malpractice action and an undated expert report

authored by Arthur Stone, a former "recruit in the Philadelphia Police

Academy." Plaintiff also relied on the documents produced by Deputy Court

Administrator Dawn Gollinge. Finally, plaintiff maintained summary

judgment was premature as he had not had the opportunity to conduct

discovery.

At oral argument, plaintiff requested the opportunity to depose Convenio

"for limited discovery purposes," specifically, "only to really inquire, so that

the [c]ourt has all the correct information before [it] before the [c]ourt makes a

decision." The court granted defendants' motion and dismissed plaintiff's

complaint with prejudice. In its oral opinion, the court stated:

In this case the sole legal issue advanced by the
plaintiff is this issue concerning the validity of the
warrant. Initially, I must say I thought this case was
more about considerations of the law of the case
doctrine, but as I heard you all today it has become
more clear that it is really about whether or not there
is a genuine issue of material fact, and I find that there
isn't. I find that the defendants are entitled to
judgment as a matter of law.

What the [c]ourt is confronted with is the arguments
that a warrant, that the [c]ourt has been provided with,

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 whether that warrant is, in fact, valid, and the [c]ourt
has a certification from . . . the municipal court
administrator of the Township of Ewing that certifies
that that document is, in fact, what it purports to be. I
will take judicial notice of the warrant and dismiss the
case, finding that there is no issue, no material issue of
fact here and that the movant, the officers are entitled
to judgment as a matter of law.

Plaintiff appeals, arguing that summary judgment was improvidently

granted because whether defendants are "responsible for issuing a fraudulent

warrant" is "a proper for question of fact for a jury". He also argues that he

never had the opportunity to depose the Court Administrator or to seek other

discovery in order to properly defend against the motion.

We reject plaintiff's arguments. "[T]he essence of the inquiry," on such

applications, to which we apply de novo review, is whether the competent

evidence "presents a sufficient disagreement to require submission to a jur y or

whether it is so one-sided that one party must prevail as a matter of law." Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536, 540 (1995) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)); see also R.

4:46-2(c). No rational factfinder could conclude that the warrant issued by

Judge Haley was a forgery, or that defendants had any role in its issuance.

First, we note that the trial judge was aware of the federal court finding

that "[t]he arrest warrant was issued by a municipal judge" and the factual and

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legal conclusions made by the court when dismissing the March 2017

complaint. Second, the court had before it the documents produced to plaintiff

during the course of his federal and multi-state litigations, establishing, beyond

peradventure, that a warrant bearing Judge Haley's electronic signature was

issued on September 14, 2010 and recalled on September 20, 2010, as a result

of plaintiff's failure to appear. In fact, defendant actually appeared in court the

day of his arrest resulting in Judge Haley himself dismissing the very warrant

that plaintiff maintains was fraudulently created. Plaintiff failed to offer any

competent evidence when opposing defendants' motion to dispute these facts.

Thus, we reject as meritless plaintiff's contention that whether defendants are

"responsible for issuing a fraudulent warrant" is "a proper for question of fact

for a jury."

We also find without merit plaintiff's claim that his expert reports

created a factual question sufficient to defeat summary judgment. As noted,

plaintiff presented three expert reports in attempting to create a factual

question sufficient to defeat summary judgment. Those reports, however,

presented only "net opinions" and were speculative because they were " based

on unfounded facts." Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55,

72 (App. Div. 2004). The first report authored by Jack Meyerson was

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anchored to an unsupported "assum[ption] that there was never a valid arrest

warrant" and that the copy turned over in discovery "was a forgery." In his

second report, Meyerson also claimed a familiarity with our Court Rules and

asserted that the rules requires that a judge must direct the warrant's issuance.

But this report provided no factual basis to question whether the municipal

judge actually issued the warrant that led to plaintiff's arrest, nor did it support

the speculative theory that the municipal judge's electronic signature was a

forgery.

The third report prepared by Arthur Stone suffers from similar

infirmities. That report opines in conclusory fashion that after Ewing

Township police officers learned plaintiff was not driving the vehicle at the

time of the accident, "an employee of the Ewing Township Police Department

fabricated a warrant for [plaintiff's] arrest." To support that conclusion, the

expert relied solely on an undated, uncertified document, purportedly from the

National Crime Information Center database, that does not identify plaintiff's

arrest or the issuance of the bench warrant. Thus, Convenio's recitation of the

actual facts was left unrebutted.

We also reject plaintiff's claim that the court abused its discretion in

dismissing the action without permitting a deposition of Convenio or other

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discovery. Although, "[g]enerally, summary judgment is inappropriate prior to

the completion of discovery," see Wellington v. Estate of Wellington, 359 N.J.

Super. 484, 496 (App. Div. 2003) (citing Velantzas v. Colgate-Palmolive Co.,

Inc., 109 N.J. 189, 193 (1988)), "a plaintiff 'has an obligation to demonstrate

with some degree of particularity the likelihood that further discovery will

supply the missing elements of the cause of action.'" Ibid. (quoting Auster v.

Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977)).

As noted, plaintiff's counsel argued in the trial court that he wanted to

depose Convenio "for limited discovery purposes only to really inquire, so that

the [c]ourt has all the correct information before [it] before the [c]ourt makes a

decision." That was an insufficient reason to delay the motion's disposition.

See Auster, 153 N.J. Super. at 56.

Lastly, we observe that although not mentioned by the trial court, we are

convinced that dismissal was also warranted under the entire controversy

doctrine because this suit represented plaintiff's impermissible third bite at the

apple. The entire controversy doctrine "embodies the principle that the

adjudication of a legal controversy should occur in one litigation in only one

court; accordingly, all parties involved in a litigation should at the very least

present in that proceeding all of their claims and defenses that are related to

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the underlying controversy." Wadeer v. N.J. Mfrs. Ins. Co., 220 N.J. 591, 605

(2015). Plaintiff's allegations about the warrant – even if phrased differently

in both the federal and the first Law Division actions – clearly arise from the

same operative facts on which those earlier actions were based. His claims

here should have been brought in the federal action.

To the extent we have not addressed any of plaintiff's remaining

arguments, we deem them without sufficient merit to warrant discussion in a

written opinion. R. 2:11–3(e)(1)(E).

Affirmed.

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