MARTIN E. O'BOYLE VS. ANTHONY DILORENZO, JR. MARTIN E. BOYLE VS. THE BOROUGH OF LONGPORT (L-1985-09 AND L-3692-10, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-2966-15T3
MARTIN E. O'BOYLE,
Plaintiff-Appellant,
v.
ANTHONY DILORENZO, JR., and
DEBORAH PROCACCI DILORENZO,
Defendants-Respondents,
and
PREMIER REALTY, INC., and THE CHAMBER
OF COMMERCE OF SOUTH JERSEY, individually,
jointly, and collectively,
Defendants.
__________________________________________
MARTIN E. BOYLE,
Plaintiff-Appellant,
v.
THE BOROUGH OF LONGPORT, PETER ISEN, BRUCE
FUNK, MAYOR NICHOLAS RUSSO, COMMISSIONER JAMES
P. LEEDS, and COMMISSIONER DANIEL LAWLER,
JOSEPH DILORENZO, FRANK DILORENZO, SR.,
ANTHONY DILORENZO, JR., DEBORAH PROCACCI
DILORENZO, and PREMIER REALTY, INC., jointly,
severally and individually,
Defendants-Respondents,
and
ANGEL DIPENTINO, ANTHONY DILORENZO, SR.,
FRANK DILORENZO, SR., JEROME DIPENTINO,
and PREMIER REALTY INC., jointly,
severally and individually,
Defendants.
__________________________________________
Argued March 12, 2018 – Decided July 25, 2018
Before Judges Accurso, O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket Nos.
L-1985-09 and L-3692-10.
Edwin J. Jacobs, Jr., argued the cause for
appellant (Jacobs & Barbone, PA, and Law
Offices of Richard M. King, Jr., attorneys;
Edwin Jacobs, Jr., Richard M. King, YooNieh
Ahn, and Ronald A. Rosa, on the briefs).
Louis R. Moffa, Jr., argued the cause for
respondents Joseph DiLorenzo, Anthony L.
DiLorenzo, Anthony V. DiLorenzo, and Deborah
Procacci DiLorenzo (Montgomery, McCracken,
Walker & Rhoads, LLP, attorneys; Louis R.
Moffa, Jr., on the brief).
William M. Tambussi argued the cause for
respondent Joseph DiLorenzo (Brown &
Connery, LLP, attorneys; William M.
Tambussi and Eric D. Milavsky, on the
brief).
Steven M. Horn argued the cause for
respondents Borough of Longport, Peter Isen
and Bruce Funk (Reynolds & Horn, PC
attorneys; John J. Bannan, on the brief).
Robert P. Merenich argued the cause for
respondents Nicholas Russo, James P. Leeds,
and Daniel Lawler (Gemmel, Todd & Merenich,
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PA, attorneys; Robert P. Merenich, on the
brief).
PER CURIAM
Plaintiff Martin E. O'Boyle appeals from a summary judgment
dismissing his complaint against defendants Joseph DiLorenzo,
Frank DiLorenzo, Anthony V. DiLorenzo, Anthony L. DiLorenzo,
Deborah Procacci, Borough of Longport (Borough), Peter Isen,
Bruce Funk, Nicholas Russo, James P. Leeds, and Daniel Lawler.
Plaintiff voluntarily dismissed the remaining defendants from
this matter. In addition, during the course of the litigation
the court dismissed certain claims, which plaintiff does not
challenge on appeal.
Plaintiff also appeals from a protective order entered
pursuant to Rule 4:10-3 prohibiting plaintiff – but not his
attorney – from contacting any defense witnesses, as well as an
order denying his request to compel defendant Isen to submit to
a second deposition.
We affirm all orders under review.
I
We summarize the principal evidence and claims salient to
the issues on appeal. Plaintiff and his wife have a home in the
Borough, where they live during the summer. In 2007, they were
cited for a zoning violation pertaining to their property.
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Plaintiff challenged the alleged violation and the matter
settled.
During the course of that litigation, plaintiff formed the
belief defendant Funk, the Borough's housing inspector, was
running a private home inspection business in the municipality,
which plaintiff contended constituted a conflict of interest.
As part of his investigation, in late 2007 and early 2008,
plaintiff, his family, or his businesses submitted almost 900
demands for records to the Borough pursuant to the Open Public
Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law
right of access.
The Borough, a small community having approximately 1200
year-round residents, had a limited number of staff available to
respond to plaintiff's numerous demands; nevertheless, the
Borough provided thousands of documents to plaintiff. However,
the time expended to respond to the document requests was
substantial, and some employees became overwhelmed as a result
and quit.
Aware of the terms of N.J.S.A. 47:1A-5, which provide in
part that "[i]f a request for access to a government record
would substantially disrupt agency operations, the custodian may
deny access to the record after attempting to reach a reasonable
solution with the requestor that accommodates the interests of
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the requestor and the agency," the Borough's solicitor attempted
to reach such accommodation with plaintiff. That effort was
unsuccessful.
In February 2008, the Borough's solicitor sent plaintiff a
letter noting the Borough had attempted to reach a solution with
plaintiff that would accommodate both his and the Borough's
needs, but to no avail, and advised plaintiff the Borough would
not honor any new requests for documents. Plaintiff responded by
filing a complaint alleging the Borough was wrongfully denying
him access to municipal documents.
In May 2008, defendants Russo, Leeds, and Lawler were
elected commissioners of the Borough, and they in turn chose
Russo to be the mayor.1 Within days of Russo becoming mayor, the
Borough's attorney convinced Russo the Borough should hire a
private investigator to determine the state in which plaintiff
was a resident. Relying upon language in the declarations
section of OPRA, see N.J.S.A. 47:1A-12, the attorney was of the
1
The Borough is a commission government under the Walsh Act.
N.J.S.A. 40:70-1 to 76-27.
2
The specific language states: "The Legislature finds and
declares it to be the public policy of this State that:
government records shall be readily accessible for inspection,
copying, or examination by the citizens of this State, with
certain exceptions. . . . " (Emphasis supplied). N.J.S.A.
47:1A-1.
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opinion only citizens of New Jersey were entitled to government
records under this statute. If plaintiff were not a New Jersey
resident, it was the attorney's intention to seek an order in
the litigation plaintiff had filed to bar him from requesting
any further documents. Russo authorized the attorney to proceed
with the investigation. The cost of the report was $400.
Approximately two weeks later, the investigator provided a
report to the attorney, which revealed plaintiff was a resident
of Florida. The report indicates a wide range of databases were
searched, including the FBI's "most-wanted" list. None of the
data in the report uncovered any unfavorable information about
plaintiff, with the exception of a reference to a court in
Tennessee having once sanctioned him. We note the latter
information can be obtained through public records.
There is no evidence defendants, the investigator, or the
attorney disseminated the report to anyone other than plaintiff,
who obtained a copy of the report after seeing a reference to it
in one of the documents he acquired through one of his OPRA
requests. Plaintiff alleges the Borough, Russo, Leeds, and
Lawler wrongfully authorized the investigator to invade his
privacy and, further, to "gather ammunition to silence him" in
an effort to "cast him in a false light in the public eye."
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On July 15, 2008 and July 17, 2008, plaintiff appeared in
Borough Hall and videotaped employees while they worked. The
second time plaintiff appeared, Russo called the police. Though
Russo did not request plaintiff be removed, the police did
escort plaintiff as he went through Borough Hall, which took
approximately two hours.
On July 21, 2008, the Borough filed an order to show cause
seeking, among other things, to bar plaintiff from submitting
additional requests for documents and ban him from the non-
public areas in Borough Hall. On August 15, 2008, the court
ordered that plaintiff could continue to submit requests for
documents under OPRA or the common law right of access to the
Borough, but the Borough was not required to respond to any
pending or future requests within the time mandated by the OPRA
statute until further order. The order also stated plaintiff
was permitted to be in any part of Borough Hall, as long as it
was accessible to the public.
The allegations against those defendants who were not
elected officials or employees of the Borough are as follows.
Joseph DiLorenzo was Russo's, Leeds', and Lawler's campaign
manager. Plaintiff alleges that on August 5, 2008, Joseph
Dilorenzo's wife, Deborah Procacci, drove by plaintiff when
DiLorenzo and Procacci's son, Anthony L. DiLorenzo, a passenger
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in the car, extended his middle finger and yelled "fuck you" to
plaintiff. Plaintiff contends Anthony L. DiLorenzo's conduct
was an act of assault and harrassment.
Plaintiff also claims that, on August 6, 2008, Joseph
DiLorenzo's uncles, Frank DiLorenzo and Anthony V. DiLorenzo,
drove toward plaintiff in separate vehicles at a high rate of
speed and came to a screeching halt very close to where
plaintiff was standing. Plaintiff contends these acts
constituted assault.
Although at one time defendant Isen had been on the
Borough's Planning Board, he left that position in 2008.
Plaintiff alleges that in August 2010, Isen grabbed his crotch
while on the beach in close proximity to plaintiff's wife.
Plaintiff claims Isen did so to harass his wife and,
derivatively, him. In addition, plaintiff claims that, at some
point, Isen was heard to say plaintiff was "an enemy" of the
Borough.
In addition to the claims for invasion of privacy, assault
and harassment, plaintiff contends the actions of defendants
outlined above show they engaged in a conspiracy to retaliate
against him for exercising his constitutional right to free
speech and for challenging government action. Plaintiff also
alleges all defendants denied him equal protection under the
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law, because plaintiff was the only citizen of the Borough to
have been "scrutinized and reported upon" by a private
investigator and "den[ied] rights under the Open Public Records
Act."
In a comprehensive ninety-five page opinion, Judge J.
Christopher Gibson thoroughly analyzed and addressed each issue
raised on summary judgment and determined defendants were
entitled to judgment dismissing plaintiff's complaint. Plaintiff
appeals, asserting various challenges to that order.
When reviewing an order granting or denying summary
judgment, we apply the same standard as the trial court. State
v. Perini Corp., 221 N.J. 412, 425 (2015) (citing Town of Kearny
v. Brandt, 214 N.J. 76, 91 (2013); Liberty Surplus Ins. Corp. v.
Nowell Amoroso, PA, 189 N.J. 436, 445-46 (2007)). In
considering a motion for summary judgment, "both trial and
appellate courts must view the facts in the light most favorable
to the non-moving party, which in this case is plaintiff."
Bauer v. Nesbitt, 198 N.J. 601, 605 n.1 (2009) (citing R. 4:46-
2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995)).
Summary judgment is proper if the record demonstrates "no
genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment . . . as a matter of
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law." Burnett v. Gloucester Cty. Bd. of Chosen Freeholders, 409
N.J. Super. 219, 228 (App. Div. 2009). Issues of law are
subject to the de novo standard of review, and thus the trial
court's determination of such issues is accorded no deference.
Kaye v. Rosefielde, 223 N.J. 218, 229 (2015) (citations
omitted).
Having reviewed the record, the parties' briefs, and
applicable legal principles, we reject the arguments plaintiff
advances on appeal and affirm the order granting summary
judgment dismissal for substantially the same reasons expressed
by Judge Gibson in his detailed opinion.
We have considered plaintiff's arguments challenging the
protective order prohibiting him, although not his attorney,
from contacting any defenses witnesses, and are satisfied his
arguments are without merit sufficient to warrant discussion in
a written opinion, R. 2:11-3(e)(1)(E). Because we affirm the
order granting defendants summary judgment dismissal, it is
unnecessary that we address the order denying plaintiff's
request to compel defendant Isen to submit to a second
deposition.
Affirmed.
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