Wanco v. Twp. of Rochelle Park
| Decision Date | 24 July 2017 |
| Docket Number | Civ. No. 14-7413 (KM) (JBC) |
| Parties | PAUL WANCO, Plaintiff, v. THE TOWNSHIP OF ROCHELLE PARK, THE TOWNSHIP MANAGER OF THE TOWNSHIP OF ROCHELLE PARK, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF ROCHELLE PARK, ROCHELLE PARK VOLUNTEER FIRE DEPARTMENT, DAVID BROWN, Fire Chief, MICHAEL STEARNS, Assistant Chief, PETER DONATELLO JR., PETER DONATELLO III, AND JOHN AND JANE DOES 1-15, Defendants. |
| Court | U.S. District Court — District of New Jersey |
I. INTRODUCTION
This case arises from the removal of the plaintiff, Paul Wanco,1 from his position as a volunteer firefighter in Rochelle Park, New Jersey. The removal followed Wanco's plea of guilty to a criminal charge, bias intimidation in violation of N.J. Stat. Ann. § 2C:16-1A. Wanco brought this action against the Township of Rochelle Park; Rochelle Park's manager, township committee, and volunteer fire department; and fire chief David Brown, assistant chief Michael Stearns, Peter Donatello Jr., and Peter Donatello III. Wanco asserts claims for wrongful discharge in violation of public policy (Count 1); breach of contract and the implied covenant of good faith and fair dealing (Count 2); defamation (Count 3); violation of 42 U.S.C. § 1983 and N.J. Stat Ann. § 10:6-1 et seq. through the deprivation of his due process and equal protection rights (Counts 4, 5, and 6); and abuse of process (Count 7). (Compl. ¶¶ 23-55)2 Now before the Court is Defendants' motion for summary judgment as to all counts, pursuant to Fed. R. Civ. P. 56.
II. BACKGROUND
Paul Wanco is employed as the Fire Marshal in the Borough of Lodi, a position he has held for approximately 13 years. (Def. Facts ¶ 3) (To be clear, that Lodi position is not at issue here.) In or around May 2012, Wanco also joined the Rochelle Park Volunteer Fire Department (the "Fire Department") as a volunteer firefighter. (Id. ¶ 1) Wanco "received no compensation for his participation with the [Rochelle Park] Volunteer Fire Department." (Id. ¶ 2) One of the requirements of the Volunteer Fire Department is that a member "shall be of good moral character and shall not have been convicted of a crime involving moral turpitude which would, in the judgment of the Township Committee, be prejudicial to the morals of the Fire Department." (Id.) (citing Rochelle Park Code § 14-6(A)(5))
During the relevant period, Wanco lived with his wife and two children on the first floor of a two-family home in Lodi. The home was owned by his 89-year-old mother, Florence Wanco ("Florence"), (Def. Facts. ¶ 4) Florence, together with Wanco's 18-year-old niece, Jennifer Wanco ("Jennifer"), lived on the second floor. (Id.)
On the afternoon of March 4, 2013, Jennifer telephoned Wanco to inform him that Florence had fallen and that Jennifer required assistance in picking her up off the floor. (Id. ¶¶ 7-8) Wanco responded that he was busy and unavailable to help. (Id. ¶ 7) After work in Lodi, Wanco went to the firehouse and did not return home until midnight. He did not check on his mother that night or the following day. (Id. ¶¶ 9-10) At his deposition, Wanco testified that "I just totally forgot about it and I never got another call from Jennifer." (Id. ¶ 9)
The next day, on the afternoon of March 5, 2013, Jennifer called for medical assistance. (Id. ¶ 11) A Lodi ambulance responded. A police officer who arrived at the scene at the same time reported:
[W]e were met by a strong odor of feces and urine. We also observed, what it appeared to be, stains of fecal matter in the area of where the victim was laying with flies circling around in the living room area. The stench was so overwhelming that I was forced to make periodic trips outside to get some fresh air.
(Def. Mot. Ex. E) At some point, Hackensack paramedics arrived and began to aid Florence. Wanco arrived on the scene around the same time as the paramedics. Overhearing a conversation between Wanco and Jennifer, a police officer deduced that Florence had fallen in the early afternoon on March 4 and had been left lying "on the filthy hardwood floor all night until [Jennifer] finally contact[ed] the police" on the afternoon of March 5. (Id.)
The living conditions in the apartment were such that the medics commented that "it is not healthy or safe for a human to live under those circumstances." Further, "[i]t appeared the victim had been neglected for a long period of time and [the medics] intended to report it to social services upon arriving [at] the hospital." (Def. Facts ¶ 13; Ex. E)
On July 16, 2013, Wanco and Jennifer were indicted for Elder Abuse and Aggravated Assault. (Def. Facts ¶ 18) Wanco advised the Fire Department of his arrest. (Id. ¶ 19) In Wanco's words, the news "also made the papers very quickly, so everyone was aware of it." (Id.; citing Def. Mot. Ex. D 30:19-20)
Nearly one year later, on June 3, 2014, Wanco pled guilty to the lesser charge of bias intimidation, N.J. Stat. Ann. § 2C:16-1A. During his plea allocution, Wanco made the following statement under oath:
I reside on the first floor [of a two family home in] Lodi, New Jersey with my wife and two children. My late mother Florence lived on the second floor apartment with my brother who is now deceased and his daughter Jennifer. On March 4, 2013 I was working as I do everyday. I am an employee of the Borough of Lodi as fire marshal, code enforcement officer. On March 4, 2013, I received a phone call from Jennifer Wanco advising me that my mother Florence had fallen. Jennifer claims she tried to call me two other times. My mother was eighty-eight years of age. I knew that she needed help but I refused to assist her because I was working. I realize that she might suffer additional injuries if I didn't help. I found out later that she suffered injuries from the fall and that she probably suffered additional injuries because she was lying there for so many hours because I did not help her. My mother was a burden due to her disabilities and old age. I did not want her bothering me at work and I wanted to intimidate her so that she would stay out of my business and leave me alone. I knew she was old and infirm but I wanted to send her a message that I was not at her beck and call even if she was old and disabled. I think she got the message because she remained on the floor of the apartment for a long time and told Jennifer that she didn't want her to call me for help. And I'm sorry for what happened but we had a difficult relationship. And when she became old and feeble she needed to be taught that I was not going to run for any reason she asked. After these events we made some peace with each other.
(Id. ¶ 21; citing Def. Mot. Ex. H)
On June 3, 2014, the Cliffview Pilot published an unflattering, three-page article titled, "Lodi fire marshal avoids prison, keeps pension in admitting abuse of elderly mother." (Def. Facts ¶ 24) The article quoted the majority of Wanco's plea allocution. (Id.) Similar articles appeared in other publications, including The Record of Bergen County. (Id. ¶ 26)
On June 9, 2014, Wanco met with Chief David Brown and other Fire Department officials. During the meeting, Chief Brown addressed Wanco's recent conviction and informed him that as a result of his guilty plea, Wanco was disqualified from service as a volunteer member of the Fire Department. During their conversation, Chief Brown stated that he was not comfortable with Wanco dealing with senior citizens. (Id. ¶ 44) Chief Brown afforded Wanco the opportunity to resign, and Wanco stated that he would speak to his attorney. At that point, Chief Brown relieved Wanco of his duties as a volunteer firefighter. (Id. ¶ 27; Def. Mot. Ex. J) Also on June 9, 2014, Chief Brown advised the Fire Commissioner of Wanco's removal in writing. (Def. Facts ¶ 28; Def. Mot. Ex. K)
In a letter to Rochelle Park's attorney, dated June 11, 2014, Wanco's attorney, Frank Cozzarelli, requested that Wanco be reinstated to his volunteer position. Cozzarelli alleged that Wanco's removal was improper and requested that the Fire Department consider the letter both as a challenge to Wanco's removal and as an "appeal from Chief Brown's determination to the Police Department Criminal Background and Check Appeal Panel." (Def. Facts ¶ 29) On July 18, 2014, Rochelle Park's attorney responded, advising that he would not comment on the merits of the removal because of the possibility that it would be reviewed by the Township Committee. (Id. ¶ 30)
Cozzarelli responded that Wanco was not aware of the reason for his removal until he received the July 18, 2014 letter. (Id. ¶ 31) This was seemingly incorrect; at the time of his removal on June 9, 2014, Wanco had been advised of the reason. (Id.) Rochelle Park has an appeals procedure for disciplinary actions, and on July 31, 2014, Rochelle Park's attorney advised Cozzarelli to review it. (Id. ¶ 32) On August 4, 2014, Cozzarelli requested a copy of the disciplinary charges and evidence that Chief Brown had complied with Rochelle Park Code § 14-22(B)(1). (Id. ¶ 33)
On August 8, 2014, Wanco was sentenced for the bias intimidation offense to which he had pled guilty. (Def. Mot. Ex. T) In entering into the plea, Wanco had requested that his plea have no effect on his position as a Fire Marshal in the Borough of Lodi (again, a different position from the Rochelle Park volunteer fire fighter position at issue here). (Def. Facts ¶ 40) Wanco had previously executed a Plea Form stating that: (1) ; and (2) "The Prosecutor will stipulate that the offense to which I am pleading does not involve dishonest[]y and does not touch and/or concern my office, position, or employment." (Def. Facts ¶ 42)4 Cozzarelli explained to ...
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