Opinion
DOCKET NO. A-0655-12T2
03-27-2013
C. ANNE DOYLE, Plaintiff-Appellant, v. LAKEWOOD TOWNSHIP, Defendant-Respondent.
Frank M. Crivelli argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; Mr. Crivelli, on the brief). Steven Secare argued the cause for respondent (Secare, Ryan & Hensel, attorneys; Mr. Secare, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Ocean County, Docket No. L-1781-12.
Frank M. Crivelli argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; Mr. Crivelli, on the brief).
Steven Secare argued the cause for respondent (Secare, Ryan & Hensel, attorneys; Mr. Secare, on the brief). PER CURIAM
Plaintiff C. Anne Doyle appeals the July 13, 2012 order of the Law Division dismissing her complaint challenging her termination by defendant Lakewood Township. She also appeals the denial of her subsequent motion for reconsideration. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Doyle was appointed tax collector for the Township on November 8, 2010. The Township served Doyle with a preliminary notice of disciplinary action on November 18, 2011. She was suspended at the time the notice was served. Doyle demanded a hearing, which was held on March 29, 2012. The Township's municipal manager, who had appointed Doyle, acted as hearing officer. He sustained the charges and confirmed Doyle's removal from the position of tax collector.
Doyle appealed the decision to the Civil Service Commission. The Commission declined jurisdiction because Doyle was a non-tenured employee and was not entitled to civil service protection. She then filed the present action, seeking judicial review of the decision terminating her employment.
We note that the Township utilized disciplinary forms applicable to employees covered by civil service, even though it was not required to do so.
The Township moved for dismissal, arguing that the Law Division lacked jurisdiction because Doyle was an at-will employee without civil service or other statutory job protection. Doyle opposed the motion. The motion judge granted the motion on July 13, 2012. Doyle's motion for reconsideration was denied on August 24, 2012. This appeal followed.
II.
On appeal, Doyle argues that the motion judge erred as a matter of law because she was entitled to challenge her dismissal in the Superior Court pursuant to the provisions of N.J.S.A. 40A:9-140.9.
In reviewing the dismissal of a complaint for failure to state a claim upon which relief can be granted, Rule 4:6-2(e), we are bound by the same standard that governed the motion judge. Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005); see also Indep. Dairy Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956). We are obligated to accept the allegations of the complaint as true and afford plaintiff all reasonable factual inferences. Indep. Dairy Workers, supra, 23 N.J. at 89. The complaint must be "searched in depth and with liberality to determine whether a cause of action can be gleaned even from an obscure statement." Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002) (citing Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). "If a generous reading of the allegations merely suggests a cause of action, the complaint will withstand the motion." F.G. v. MacDonell, 150 N.J. 550, 556 (1997). A motion to dismiss should be granted "in only the rarest of instances." NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 365 (2006) (quoting Printing Mart, supra, 116 N.J. at 772) (internal quotation marks omitted); Cnty. of Warren v. State, 409 N.J. Super. 495, 503 (App. Div. 2009), certif. denied, 201 N.J. 153, cert. denied, ____ U.S. ____, 130 S. Ct. 3508, 177 L. Ed. 2d 1092 (2010).
Where, however, it is clear that the complaint states no basis for relief and that discovery would not provide one, dismissal of the complaint is appropriate. As we held in Sickles, supra, 379 N.J. Super. at 106, "a court must dismiss the plaintiff's complaint if it has failed to articulate a legal basis entitling plaintiff to relief." See also Holmin v. TRW, Inc., 330 N.J. Super. 30, 32 (App. Div. 2000), aff'd o.b., 167 N.J. 205 (2001); Camden Cnty. Energy Recovery Assocs. v. Dep't of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd o.b., 170 N.J. 246 (2001); Pressler & Verniero, Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2 (2013). "[A] dismissal is mandated where the factual allegations are palpably insufficient to support a claim upon which relief can be granted." Rieder v. State, 221 N.J. Super. 547, 552 (App. Div. 1987).
Doyle concedes that she was not a tenured tax collector and, therefore, not entitled to the termination procedures set forth in N.J.S.A. 40A:9-145.8, which concerns the tenure rights of municipal tax collectors. Instead, she argues that she is entitled to judicial review of her termination pursuant to the procedures established by N.J.S.A. 40A:9-140.9, which she contends applies to any municipal employee. Because that statute applies only to municipal chief financial officers, we disagree.
In 1971, the Legislature created the position of municipal finance officer and set forth requirements concerning qualifications and appointment to that position. L. 1971, c. 413 (codified as N.J.S.A. 40A:9-140.1 to -140.6). The statute was subsequently amended to add provisions providing for tenure rights for municipal chief financial officers, N.J.S.A. 40A:9-140.8, and a process for their removal that included the right to judicial review, N.J.S.A. 40A:9-140.9. L. 1977, c. 39, §§ 2-3; L. 1988, c. 110, §§ 13-14.
Municipal tax collectors are governed by a different statutory scheme, which is found at N.J.S.A. 40A:9-141 to -145.12. The removal provision for tax collectors, found at N.J.S.A. 40A:9-145.8(c), does not apply to Doyle, as she concedes. Therefore, we need not determine whether that statute provides for judicial review beyond the extension of the date set for the administrative hearing.
Consequently, we conclude that the motion judge correctly dismissed the complaint as a matter of law.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION