Opinion
DOCKET NO. A-4608-13T1
06-18-2015
CRAIG PIERSON, Plaintiff-Respondent, v. CHIEF OF POLICE JOHN SCRIVANIC, BOROUGH OF TINTON FALLS POLICE DEPARTMENT, BOROUGH OF TINTON FALLS, Defendants-Appellants.
Bruce W. Padula argued the cause for appellants, (Cleary Giacobbe Alfieri Jacobs, L.L.C., attorneys; Mr. Padula, of counsel; Dustin F. Glass, on the briefs). Michael R. Hobbie argued the cause for respondent (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Hobbie, of counsel and on the brief; Elyse S. Schindel, on the brief)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Whipple. On appeal from Superior Court of New Jersey, Civil Division, Monmouth County, Docket No. L-542-13. Bruce W. Padula argued the cause for appellants, (Cleary Giacobbe Alfieri Jacobs, L.L.C., attorneys; Mr. Padula, of counsel; Dustin F. Glass, on the briefs). Michael R. Hobbie argued the cause for respondent (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Hobbie, of counsel and on the brief; Elyse S. Schindel, on the brief) PER CURIAM
Defendants appeal from a judgment after a trial de novo, reversing disciplinary findings against plaintiff and vacating a one day suspension imposed by defendants. We affirm.
We discern the following facts from the record. On August 7, 2011, a resident of the Borough of Tinton Falls contacted the Tinton Falls Police Department ("TFPD") about a vehicle alarm that had been sounding for forty-five minutes. Plaintiff, a "TFPD" officer, arrived on the scene within fifteen minutes and found an unattended Volkswagen which was the source of the disturbance. A resident from the home where the vehicle was located said she was not familiar with the vehicle and did not know why it was parked in front of her home. Plaintiff contacted police dispatch and a unit was sent to the vehicle's registered owner's home since no phone number was on record. The vehicle's owner, G.R., was not located. Plaintiff received authorization from his commanding officer to impound the vehicle, and he called for a tow truck.
Initials are used to protect the identity of the vehicle owner and her children, as there were allegations of domestic violence between her and the man who was in possession of the vehicle.
Several minutes later, G.R. and her two children arrived in another vehicle. G.R. identified herself as the owner of the Volkswagen and said that there was a no-contact order between her and the man in possession of the Volkswagen keys. Plaintiff noticed that G.R. appeared agitated and upset, with shaking hands. Plaintiff cancelled the tow truck. G.R. reported that she suspected the car was parked there because the man was involved with someone who lived nearby.
Plaintiff opened the hood of the car but was unable to disengage the alarm. He also drove to a nearby residence to attempt to locate the man who had the key, but he was informed that the man was not there. He drove back to the scene and informed G.R. that the disturbance needed to be alleviated and he would need to have the Volkswagen towed. Again, with authorization from his commanding officer, plaintiff called for a tow truck.
Plaintiff asked G.R. for her assistance in moving the vehicle away from the residential area to alleviate the disturbance of the car alarm while the tow truck was in route. He noted that the vehicle had a manual transmission and offered to use his patrol car's push bumper to move the Volkswagen while G.R. steered it. She agreed, put the vehicle into neutral gear, and released the parking brake while plaintiff pushed the vehicle with his patrol car at approximately 15-20 miles per hour. As they approached a turn in the roadway curving left, plaintiff disengaged his patrol car, saw G.R. wave her right hand by her head, and did not see any brake lights. Rather than executing the turn, the Volkswagen drove straight into the curb, left the roadway, and crashed into a pole. G.R. exited the vehicle and said that the steering wheel locked. There was no indication she attempted to use the brakes.
Plaintiff called his commanding officer and asked that he come to the scene, which he did. Both officers remained until the tow truck arrived. The Volkswagen suffered significant damage and was inoperable. G.R. complained of neck and chest pain and was taken to a nearby hospital, but suffered no serious injuries.
Chief of Police John Scrivanic (the "Chief") directed Lieutenant David Scrivanic (Lt. Scrivanic) to empanel an Accident Review Board ("the Board") comprised of Sergeant Van Lew and Corporals Mayo and Yurcisin. The Board was instructed to determine the cause of the crash and identify preventive measures officers could take to avoid such crashes in the future.
The Board consulted with mechanics concerning brake and steering issues with regard to cars that were the same year, make, and model as the vehicle in question. Mechanics informed the Board that although the steering would lock in a car without its key in the ignition, the brakes and brake lights should still be functional. The Board's initial report, signed by Sgt. Van Lew, noted that plaintiff went to great lengths to resolve the residential disturbance and avoid incurring tow fees for G.R. While the Board initially found that the decision to push the vehicle without a key was a mistake, it concluded that it was not the result of a negligent decision or behavior and recommended a memo be prepared forbidding officers from using patrol cars in such a manner except when faced with "exceptional circumstances[.]"
After the initial report was submitted, Lt. Scrivanic advised Sgt. Van Lew that the report needed to be submitted in memo form and signed by all members of the Board. He also advised Sgt. Van Lew to "find anything in our [Standard Operating Procedures ("S.O.P.")] or the [B]orough Ordinances regarding the situation" and plaintiff's decision.
The Board thereafter issued a second report, which identified another mistake made by plaintiff in the incident:
Although [plaintiff] attempted to resolve this problem in a compassionate manner, he committed two mistakes which directly [led] to the accident. The first mistake was in initially making the decision that the vehicle had to be moved because the alarm had been sounding for some time and was creating an annoyance. S.O.P. 1.19, which is the ordinance governing the impoundment of vehicles, does not provide for the impoundment of vehicles for minor infractions such as a noise disturbance. Although the level of noise created by the vehicle's alarm had become an annoyance due
to the volume and duration of the alarm[,] it did not warrant the immediate removal of the vehicle from its parked location.
On November 1, 2011, plaintiff was served a notice of discipline alleging he violated sections 1, 12 and 21 of the "TFPD" Standards of Conduct ("S.O.C.") and S.O.P. 1.19, which governs the impounding of vehicles. A disciplinary hearing was held on October 16, 2012, and February 22, 2012. The hearing officer issued a written decision sustaining findings against plaintiff for violations of S.O.P. 1.19 and the S.O.C. , and imposed a one-day suspension. Plaintiff filed a complaint in lieu of prerogative writ in the Superior Court.
A plain reading of the hearing officer's decision suggests that the officer only found a violation of S.O.C. section 1, in determining plaintiff "failed to exercise common sense when he chose to push this vehicle from the incident location while being fully aware that a tow truck was on route and that [G.R.] was in no condition to be behind the wheel of a vehicle."
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On March 31, 2014, the trial court heard argument, and on April 11, 2014, the trial court issued a written decision reversing the disciplinary findings against plaintiff and vacating the penalty previously imposed. The trial court further ordered that any such findings be removed from plaintiff's personnel file.
On appeal, defendants contend that the court's findings are not supported by substantial credible evidence in the record. Specifically, defendants maintain that the court did not properly consider 1) that both Board reports concluded that plaintiff made a mistake; 2) Sgt. Van Lew's testimony or the S.O.C.; and 3) the fact that the Board's findings are not dispositive, because the Chief can impose discipline unilaterally. We disagree.
"In a de novo proceeding, a reviewing court does not use an abuse of discretion standard, but makes its own findings of fact." Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 357 (2013) (citation and internal quotation marks omitted). An appellate court exercises a limited review, and will disturb the trial court's findings of fact only if they are arbitrary, capricious, unreasonable, or not supported by substantial, credible evidence in the record. In re Disciplinary Procedures of Phillips, 117 N.J. 567, 579 (1990). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
In reviewing the record, the trial court undertook a thorough examination of the two Board reports, and the trial court found no substantive factual inconsistencies, only differing conclusions. The trial court stated that
[t]he aspects of both reports that remained, essentially identical, certainly do not support . . . the conclusion that [plaintiff] violated the ["TFPD"] Standards of Conduct as a result of his egregious behavior. The violations of S.O.P. 1.19, being one (1) of the two (2) mistakes constituting egregious conduct asserted was, on the record at the behest of his supervisor. Finally, the second of those mistakes pointed out in its final . . . report qualifies the mistake with the conclusion that both [plaintiff] and [G.R.], the owner of the vehicle, lacked the requisite knowledge of pushing the vehicle without having the key in the ignition.
The trial court concluded that plaintiff did not violate S.O.P. 1.19, which governs the impounding of vehicles. The S.O.P. permits a motor vehicle to be impounded under specific circumstances and details certain procedures which must be followed upon impounding, storing and releasing vehicles from the impound lot. This S.O.P. did not, however, address the use of the push bumper on a police vehicle, and no violation was found because plaintiff was authorized to tow the car by his supervisor. The court also found after "a searching review of the record, the arguments of counsel and the authorities cited in support thereof" that "neither of the reports of the 'Accident Review Board' provide a sufficient basis to uphold the charges or discipline imposed." There is sufficient credible evidence in the record to support the court's findings.
Defendants additionally argue that the court erred by failing to consider that plaintiff's actions in pushing the vehicle when the driver did not have a key in the ignition violates the "common sense" standard of S.O.C. section 1. We do not consider the argument to be persuasive, as defendants presented no substantial credible evidence that plaintiff should have anticipated how that vehicle would have operated under those circumstances. Indeed, defendants' investigation revealed the brakes should have been functional in the absence of an ignition key. We discern no error in the court's conclusions and do not consider the decision to be arbitrary, capricious or unreasonable.
Affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION