• Gina Rullo

Court Reverses Decision

Malinsky comments on court’s overturning of award


Town solicitor Michael J. Malinsky comments on court’s overturning of award. (Courtesy Photo)

HAMMONTON—On April 19, the Superior Court of New Jersey Appellate Division’s decision was issued in the case of Hammonton Independent Volunteer Fire Company No. 2 and Joseph J. Caruso III, plaintiffs, and Joseph Caruso, Jr., William Tomasello, John H. Warren Jr., and John Michael Warren, plaintiffs-respondents, v. town of Hammonton, Defendant-Appellant.


The decision from Judges Messano, Hoffman and Suter overturned the 2018 decision that awarded the men $80,000 and $85,963.06 in attorney’s fees and costs, according to the appellate division decision.


Read full copy of the appellate division’s decision:



REGULAR OPINION (OPN-AFFIRMED IN PT REVE
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• 186KB

Town solicitor Michael J. Malinsky represented the town and Louis M. Barbone from Jacobs & Barbone, PA represented the firemen.


The decision states, “We vacate the judgment entered, including the award of counsel fees and costs, and dismiss plaintiffs’ complaint. As a result of our judgment, we need not address the other issues raised by the Town.”


Malinsky said he was happy with the decision.


“It feels good.  It took a while to get the right decision but I think in the end the appellate division got it right in dismissing the plaintiffs’ case, vacating the judgment including the award of attorney’s fees and costs, and reversing the lower court’s decision,” Malinsky said.


Malinsky said he felt confident when he presented the town’s case before the appellate division.


“Because I felt the law was entirely in the town’s favor. Plaintiffs did not and could not establish the elements needed for a class-of-one equal protection claim,” Malinsky said.


The town solicitor said he believes the case is finished.


“I believe it is done at this point. This concluded this case in favor of the town,” Malinsky said.


Since the first decision was handed down in 2018, the town of Hammonton has made changes to ordinances related to the fire department.


“Those changes were specifically made due to some of the ambiguities in the former code that resulted in this case going forward,” Malinsky said.


In their decision, the appellate division referred to ordinances cited by the plaintiffs.


“Neither O25-5 nor O25-6 mandate that written charges must be filed and a hearing take place before a member of the Company could be disciplined. If the judge concluded that the Company had the initial responsibility to discipline its members, we fail to see why he did not refer the Ruberton and Sepe complaints for an administrative hearing before the Company. We therefore disagree with the judge’s apparent conclusion that O25-5 compelled referral of the matter to an outside hearing officer.


“To reconcile the ambiguity created by the two ordinances, we consider extrinsic evidence, unavailable to the motion judge when he rendered his decisions…


“As already noted, the Town repeatedly asserted that O25-2 did not confer the same procedural rights enjoyed by members of paid or part-paid fire departments pursuant to N.J.S.A. 40A:14-19 on members of the Company. The trial judge never decided that legal issue. Instead, she concluded there was a factual issue for the jury to resolve whether in its implementation of O25-2, the Town intended to accord the same statutory rights to its volunteer firefighters…


“Construing the ordinance was a purely legal issue that should have been decided by the judge. Bubis, 184 N.J. at 627. We agree with the Town that it was clear error for the court to pose question one to the jurors … The jury should have been instructed that this was the legal framework in which to consider plaintiffs’ class-of-one equal protection claims,” the decision read.


At the end of the decision, it was written that the justices sided with the town.


“Having carefully reviewed the trial record, we agree with the Town that it was entitled to judgment in its favor on plaintiffs’ class-of-one equal protection claims. Once their due process claims were properly dismissed, plaintiffs’ shapeshifting equal protection claim was dubious at best, initially asserting comparisons between themselves and firefighters in paid and part-paid departments, then inviting comparison to a vindictive Domenico. In reality, plaintiffs’ true claim was that their discipline was a vendetta carried out by the Town’s mayor, Domenico, and others. That assertion is insufficient to support a class-of-one equal protection claim in the sphere of public employment. See Engquist, 553 U.S. 595 (rejecting public employee’s claim she was fired for “arbitrary, vindictive, and malicious reasons” as cognizable under class-of-one equal protection jurisprudence).


“Affirmed in part and reversed in part. We vacate the judgment entered, including the award of counsel fees and costs, and dismiss plaintiffs’ complaint. As a result of our judgment, we need not address the other issues raised by the Town,” the decision read.


The town is waiting to see if its insurance carrier will cover costs and fees associated with the appeal, according to Malinsky.


On October 23, 2018, a group of four members of the Hammonton Independent Volunteer Fire Company No. 2 were awarded a total of $80,000 as the result of a lawsuit against the town of Hammonton, according to a press release from Hammonton Independent Volunteer Fire Co. No. 2 from 2018.


According to the 2018 press release, the “jury found that the town of Hammonton did not properly follow its own procedures for handling accusations of this magnitude. The town has continuously argued very adamantly that volunteers are not entitled to equal protection and/or constitutional rights guaranteed in the United States Constitution.”


According to comments from Barbone in 2018, the four men filed under the New Jersey Civil Rights Act (10:6- 2).


“Anybody who violates the rights of an individual under the color of state law is liable of damages if they deprive someone of their civil rights,” Barbone said in 2018.


Barbone did not return an email and phone call seeking comment.