SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2043-19

THE ESTATE OF FRANK

JOSEPH COVELLO, JR., 

deceased, by administratrix

and administratrix ad

prosequendum GINA MARIE

BRUZZICHESI, and GINA 

MARIE BRUZZICHESI,

individually,

Plaintiffs-Appellants/

Cross-Respondents,

v.

THE COUNTY OF MORRIS,

Defendant-Respondent/

Cross-Appellant,

and

TOWNSHIP OF MORRIS

PLAINS,1and THE TOWN 

OF MORRISTOWN,

1

 Morris Plains is improperly referred to as a Township in the caption and record 

instead of a Borough. We will refer to Morris Plains as a Borough in this 

opinion.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 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.
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A-2043-19

Defendants-Respondents.

____________________________

Argued May 12, 2021 – Decided June 22, 2021

Before Judges Fuentes, Rose, and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Morris County, Docket No. L-1831-17.

Albert C. Lisbona argued the cause for 

appellants/cross-respondents (Dwyer, Connell & 

Lisbona, attorneys; Albert C. Lisbona and Beth Connell 

O'Connor, on the briefs).

John M. Bowens argued the cause for respondent/crossappellant (Schenck, Price, Smith & King, LLP, 

attorneys; John M. Bowens and Rebecca J. Rosen, on 

the briefs).

Eric L. Harrison argued the cause for respondent 

Borough of Morris Plains (Methfessel & Werbel, 

attorneys; Eric L. Harrison, Sarah K. Delahant, and 

Steven A. Unterburger, on the brief).

PER CURIAM

Plaintiff Gina Marie Bruzzichesi, Administratrix and Administratrix ad 

Prosequendum of the Estate of Frank Joseph Covello, Jr., and individually

(collectively plaintiffs), appeal from the grant of summary judgment to 

defendant, Borough of Morris Plains (the Borough), and finding the Borough

was entitled to discretionary immunity under the New Jersey Tort Claims Act 

(TCA), N.J.S.A. 59:1-1 to 12-3. In addition, plaintiff appeals the trial court's 
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A-2043-19

order granting defendant County of Morris's (the County) motion for involuntary 

dismissal under Rule 4:37-2(b) at the close of evidence in plaintiffs' case, 

concluding plaintiffs failed to present expert testimony on the issue of liability 

and dismissing the complaint and amended complaint with prejudice.

In its cross-appeal, the County contends the trial court erred as a matter of 

law by denying its cross-motion for summary judgment and by ruling the County 

could be liable for punitive damages under the Survival Act, N.J.S.A. 2A:15-3. 

Because we agree with the County that it was entitled to summary judgment 

based on the same TCA discretionary immunity as the Borough, we reverse the 

trial court's denial of summary judgment to the County on the issue of liability; 

affirm the grant of summary judgment to the Borough; and dismiss the 

remainder of plaintiffs' appeal.

I.

The record reflects the following pertinent facts, which we consider in a 

light most favorable to plaintiffs. W.J.A. v. D.A., 210 N.J. 229, 238 (2012). In 

or around 2007, the County contracted with L. Robert Kimball & Associates 

(Kimball) "to assess the emergency communications of the municipalities in the 

County" and investigate the feasibility of a consolidated dispatch center at the 

County's Communication Center (CCC) to handle dispatch services for all 
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County municipalities. In February 2008, Kimball issued an extensive report 

entitled, "Morris County Consolidation and Facility Assessment," detailing its 

findings and recommendations.

The Kimball report recognized that "New Jersey has encouraged 

municipalities to share services or combine agencies as a way to save taxpayer 

dollars" and cited L. 2007, c. 56, legislation that "clearly identif[ies] the State's 

intent to move away from one- and two-position PSAPs [(public safety 

answering points)] and encourage[s] consolidation of services."

2

In essence, Kimball concluded that the County should "move forward with 

a County consolidated dispatch center and radio system" and offered detailed 

technical recommendations about how it should proceed. Kimball determined 

that, absent consolidation, the County and municipalities "would spend $19.2 

million in Fiscal Year 2014" but if the County "fully consolidated, the [CCC] 

budget for Fiscal Year 2014 would be approximately $15.1 million" with "cost 

savings to Morris County as a whole . . . [at] approximately $4 million annually."

2

 The relevant part of that legislative package amended N.J.S.A. 52:17C-3(b) to 

require, among other things, establishment of "a State plan for the emergency 

enhanced 9-1-1 system" and "consolidation of PSAPs as appropriate, consistent 

with revisions in the plan." It "condition[ed] the allocation of monies dedicated 

for the operation of PSAPs on the merging and sharing of PSAP functions by 

municipalities, counties and the State Police, consistent with the revised plan." 

Ibid.
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Thereafter, the Borough's Mayor, Frank Druetzler, had discussions with 

Borough officials "regarding the cost savings that would be realized by 

implementing" a Shared Services Agreement (SSA) with the County for dispatch 

services. Among the cost savings identified were elimination of the Borough's 

dispatcher position "and the ability to forego state-mandated upgrades to the 

Borough's [9-1-1] systems, which alone would have cost upwards of $500,000."

In October 2009, the Borough and the County executed the "Interlocal 

Services Agreement for Radio Dispatching Services" (the Agreement). Per the 

Agreement, beginning on January 1, 2010, the Borough would pay the County 

to provide dispatch services twenty-four hours per day, which included 

"[a]ccept[ing] and transmit[ting] emergency calls for police, fire and ambulance 

vehicles." The Borough paid the County approximately $160,000 to $170,000 

annually for the services. The Agreement states that it was entered into pursuant 

to the Interlocal Services Act, N.J.S.A. 40:8A-1 to -11, and that the parties 

intended the Agreement's provisions "be construed to give full effect to the 

legislative intent expressed therein."3 

3

 Prior to the Agreement's execution, in April 2007, the Legislature repealed the 

Interlocal Services Act and replaced it with L. 2007, c. 63, known as the Uniform 

Shared Services and Consolidation Act, codified at N.J.S.A. 40A:65-1 to 65-35. 

See Horsnall v. Washington Twp. (Mercer Cnty.) Div. of Fire, 405 N.J. Super. 

304, 322 n.4 (App. Div. 2009). 
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Druetzler signed the Agreement on behalf of the Borough. He certified 

that the Borough's decision to enter into the Agreement "was ultimately made as 

a result of the[] projected costs savings" involved with the elimination of its 

dispatcher and the ability to avoid upgrading its 9-1-1 system. Less than a month 

after executing the Agreement, the Acting Chief of Police for the Borough, Scott 

Thompson, terminated its dispatcher's employment effective at midnight on 

December 31, 2009. The termination letter explained that the Borough was 

abolishing the dispatcher position due to the "Borough Council's decision to 

contract with the County" for dispatch services "which will result in greater 

efficiency, economy and savings to the taxpayers of the Borough."

After the dispatcher position was eliminated, the Borough Police 

Department no longer had a staff member present twenty-four hours per day to 

greet the public. Following implementation of the Agreement, Druetzler stated, 

"the Borough installed a phone in the vestibule of the municipal building as a 

direct result of the elimination of the Borough's dispatcher positions." The red, 

wall-mounted telephone was accompanied by a sign that read "For Police 

Assistance Pick Up Phone." The red telephone was activated "by picking up the 

handset which connect[ed] it to the [C]ounty dispatcher" automatically.
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Calls placed from the red telephone utilized a ten-digit Borough 

administrative phone line, not a 9-1-1 phone line, and were automatically 

forwarded to the CCC where its dispatch staff answered the incoming calls. The 

County assigned a call forwarding number to the Borough so that calls from the 

red telephone were routed appropriately. 

According to Lieutenant Michael Koroski, Patrol Division Commander at 

the Police Department, the red telephone in the vestibule was "utilized by the 

public to request police assistance when the [D]epartment is unstaffed." In 

October 2016, he learned from the County that calls from the red telephone were 

"not being received by the appropriate parties up at the [CCC]." However, 

Koroski testified he thought the CCC was aware of the red telephone's location 

since the County provided "a specific number" for call forwarding.

According to the CCC Director, Michael Peoples, the County "had to give 

. . . revised phone numbers to all the police departments" because the County's 

phone numbers changed when its phone lines were transitioned from Verizon to 

a third-party provider. The County gave Koroski a new ten-digit telephone 

number to which calls from the red telephone could be forwarded. A third-party 

telephone vendor, Quality Communications, was responsible for reprogramming 

the red telephone to incorporate the new ten-digit telephone number. 
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On Saturday, December 17, 2016, at approximately 8:15 a.m., Covello 

drove into the Police Department parking lot. Surveillance video showed that 

Covello exited his vehicle and entered the Police Department vestibule area 

through unlocked doors while attempting to make a call on his cellular 

telephone. He then attempted to enter the Police Department lobby, but the 

doors were locked because the Police Department was unstaffed on Saturdays 

and Sundays. The video showed Covello squatted down and then stood back up.

Next, Covello picked up the red telephone in the vestibule, which 

connected him to Matthew Glogolich, Senior Public Safety Telecommunicator 

at the CCC. Surveillance video revealed that after initiating the call, Covello 

bent over, stood back up, and then collapsed onto the ground at 8:17 a.m. An 

audio recording of the eleven-second telephone call revealed the following:

:01 [Glogolich speaking] Morris Plains Police 160.

:05 [Glogolich speaking] Hello?

:07 [a noise is heard]

:08 [Glogolich speaking] Hello?

:11 [call is disconnected]

More than five hours later, at 1:36 p.m., Lieutenant Michael Rolph of the 

Police Department, who was in charge of the patrol shift that day, was headed 
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to the basement to send a telefax when he discovered Covello's body on the floor 

in the vestibule area. Rolph noticed a cellular telephone next to Covello and the 

receiver of the red telephone in his left hand. He evaluated Covello for signs of 

life and found that he "was cold to the touch, had no pulse, and was not 

breathing." Rolph called for an ambulance, which arrived about four minutes 

later. Medical personnel confirmed that Covello was deceased. An autopsy 

concluded that Covello died of natural causes related to occlusive coronary 

artery disease. 

At the time of Covello's death, staff were present at the Police Department 

only between the hours of 8:30 a.m. and 9:00 p.m. Monday through Friday, and 

the Department was left unstaffed on Saturdays and Sundays. According to 

Police Chief Jason Kohn, the hours during which the Police Department is 

staffed or unstaffed "were decided in connection with conversations and 

discussions which occurred following the implementation of" the Agreement. 

Rolph testified at a deposition that even when the Police Department is unstaffed 

on the weekends with no staff present to greet the public, the vestibule door is 

always unlocked.

As to why Covello was not found sooner, Rolph explained that the police 

officers working on the day of Covello's death were on patrol duty and did not 
10 A-2043-19

have to pass through the front vestibule to enter or exit the locker room area. 

He said that while a surveillance camera "captures a portion of the vestibule" 

and records twenty-four hours per day, the video feed is displayed on a screen 

located in the lobby area that is not monitored on the weekends.

Glogolich testified at his deposition that a police dispatcher's duties 

include answering any 9-1-1 or administrative phone calls, providing emergency 

medical instructions, and dispatching field units. As a Senior Public Safety 

Telecommunicator, Glogolich performed these duties while also serving as a 

first-line supervisor to other dispatchers.

Glogolich testified that he determines whether an incoming call on an 

administrative line is emergent "[b]ased on the caller statements" and that there 

is "no way of knowing if it's an emergency or not if there's no response." 

According to Glogolich, the majority of the administrative calls received by the 

CCC are "non-emergent" and typically pertain to requests for records, noise 

complaints, or parking issues. As noted, Glogolich did not receive a verbal 

response from Covello during the call placed from the red telephone. And, 

Glogolich could not trace the exact location of the call because neither the 

incoming call's telephone number nor the address from where the call originated 
11 A-2043-19

were available to him, unlike a 9-1-1 call, which has "enhanced locating 

capabilities."

While Glogolich knew the call was coming from a "Morris Plains phone 

line," he testified that he had no way of knowing whether it originated from the 

Police Department vestibule, the Mayor's office, or any other Borough office 

location. Had the call originated from a 9-1-1 phone line, it would have been 

traceable. Under the circumstances, he was unable to determine whether the call 

constituted an emergency, "had no information on the location to send 

someone," and did not know what "service was needed." In addition, Glogolich

could not recall hearing any background noise during the call. Ultimately, he 

disconnected the call and did not receive a call back. 

Glogolich testified that the written policy and procedure manual followed 

by the dispatchers, entitled "the Morris County Communications Division Policy 

and Procedures Concerning [9-1-1] and Administrative Call Processing"

(Policy), does not indicate how long a dispatcher should wait before 

disconnecting an administrative call when no verbal response is received. When 

interviewed by the Morris County Prosecutor's office, Glogolich reiterated that 

he was unable to identify where Covello's call was coming from or how to call 

the number back due to the lack of "caller ID," and stated that the County did 
12 A-2043-19

not have "any call back procedures for administrative phone lines. Only for 

[9-1-1]'s."

Glogolich's supervisor, Michael Peoples, the Communications Director at 

the CCC as of February 2010 (a month after the Agreement took effect), testified 

at his deposition that he promulgated and approved the Morris County 

Communications Division Policy and Procedures Concerning [9-1-1] and 

Administrative Call Processing. Peoples acknowledged administrative calls 

could constitute emergency calls, and that the Policy states administrative lines 

"also carry emergency calls reporting emergency situations." He explained that, 

per the Policy, 9-1-1 calls are answered first, followed by [ten]-digit 

administrative phone lines, but that the dispatchers go "above and beyond the 

standard to attempt to make sure that [they] try to answer those [ten]-digit 

numbers because they may be carrying emergency phone calls." Peoples 

testified that the Borough—not the County—was responsible for installation, 

maintenance, and configuration of the red telephone. He never explained the 

differences between an administrative line and a 9-1-1 line to the Borough or 

advised it had the option of adding a 9-1-1 line.

Peoples also testified that the dispatchers treat every call as a possible 

emergency call and process emergency calls from administrative lines "in the 
13 A-2043-19

same manner that we do the [9-1-1] call." However, the dispatchers "need some 

type of voice interaction with the caller to determine if there's an emergency 

occurring" on an administrative call. Peoples testified that the Policy does not 

specify what a dispatcher should do with "a silent administrative call." After 

reviewing Glogolich's handling of Covello's call by listening to the audio 

recording and reviewing the relevant policies and procedures, Peoples

concluded that Glogolich "acted within [the] policies and procedures consistent 

with his training and skills."

Both Koroski and Kohn testified at depositions that they did not know 

prior to Covello's death that the CCC was unaware of the location of calls made 

from the red telephone. Rolph and Kohn conceded that the phone system in 

place at the time of the incident was of no use in an emergency situation when 

the caller could not speak. Kohn admitted that it was "logical" to assume that 

the red telephone was an "emergency phone."

On the afternoon of Covello's death, Koroski and Kohn tested the red 

telephone and discovered "an approximate [twenty]-second delay" before the 

call was picked up by the CCC. Kohn had never previously tested the red 

telephone, although Koroski testified that he had done so in October 2016. Kohn 

believed that the red telephone had been installed in January 2010, years before 
14 A-2043-19

he became Chief of Police in 2014, and testified that he had neither initiated any 

changes to it, nor regularly checked it to make sure that it was working, nor 

confirmed where it was connecting to.

Five days after Covello's death, Kohn, Koroski, a County representative, 

a Quality Communications representative, and others, attended a meeting to 

discuss concerns about the red telephone. The Quality Communications 

representative explained that because the red telephone utilizes an "extension 

feature" and "must search for a line to use from a trunk of lines in order to 

complete the call," this causes "potential delays in the line being answered." 

The County representative explained that "because the phone was using an 

extension type format," it "would not be able to be specifically identified" at the 

CCC.

To remedy the situation, the parties decided to use "a dedicated line" for 

the red telephone going forward as opposed to the extension feature. The color 

of the phone was changed from red to black, and it now functions as "an 

emergency phone which is part of the [9-1-1]" system. A sign posted by the 

black telephone advises users to "press the red button" for an "emergency 

[9-1-1] police response" and to "press the yellow button" for "non-emergency 

police assistance."
15 A-2043-19

Glogolich confirmed that after Covello's death, changes were made to the 

phone system that allow a County dispatcher answering a call at the CCC to see 

an icon on his or her computer screen, which indicates whether a call is coming 

from the Police Department or any other police department for which the County 

handles dispatch services. Peoples testified that he "made sure all the phone 

lines were provisioned to report caller ID" and that the caller ID was associated 

with each specific phone and not simply "a random line in the Borough."

On August 21, 2017, Bruzzichesi filed a wrongful death and survivorship 

complaint, pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and the 

Survival Act on behalf of the Estate and herself individually, alleging that 

defendants' negligent and palpably unreasonable acts were the proximate cause 

of Covello's death. The Borough and the County filed answers to the complaint 

and asserted immunities and affirmative defenses, including those available 

under the TCA, and also pled cross-claims for contribution and indemnification.

On November 17, 2017, the trial court dismissed the complaint, without 

prejudice, against defendant Town of Morristown, for failure to state a claim 

upon which relief could be granted. On December 4, 2017, plaintiff filed an 

amended complaint to include claims for pain and suffering and loss of 

enjoyment of life on behalf of Covello.
16 A-2043-19

Following a period of discovery, the Borough moved for partial summary 

judgment. On December 3, 2018, the trial court granted the Borough's motion 

for partial summary judgment and dismissed Bruzzichesi's individual claims 

(the sixth count of the amended complaint). The November 17, 2017, and 

December 3, 2018, orders are not challenged on appeal.

On March 22, 2019, the Borough filed a motion for summary judgment as 

to the outstanding claims against it. Plaintiffs and the County cross-moved for 

summary judgment. In support of their cross-motion for summary judgment 

against the Borough, plaintiffs retained Wayne S. Fisher, Ph.D., a senior policy 

advisor at the Center on Policing at Rutgers University, to review the policies 

and procedures of the Morris Plains Police Department, at the time of Covello's 

death. After reviewing various documents and information obtained through 

discovery, Dr. Fisher rendered an opinion in a September 20, 2018 report, stating 

that the fundamental duty of local law enforcement is to protect and safeguard 

"lives and safety of the public," and this duty "is an ever-present component in 

virtually everything police officers are asked to do." He also opined that local 

police departments are responsible for implementing policies toward that end, 

including those "directly related to the provision of emergency medical 

services."
17 A-2043-19

With respect to the Agreement with the County, Dr. Fisher concluded that 

the Borough's "decision to enter into an agreement with Morris County for 

communications services, and thus eliminating staffing at police headquarters 

during certain periods of the week was a policy decision." However, he opined 

that "all operational procedures established to ensure that essential services were 

provided to the public during those periods of time were 'day-to-day' 

responsibilities . . . within the purview of the chief of police."

Dr. Fisher explained that although "there are valid reasons" for small 

police departments to be unstaffed during certain hours, "it is imperative that 

accommodations be made to serve persons seeking assistance who may or may 

not be aware of a municipality's policy regarding the [staffing] of its police 

station" as "it is universally understood and accepted that when a person is in 

need of help a place well suited to provide same is a police station." He added 

that it is reasonable for the public to expect that police personnel will either be 

present at the police headquarters or available to assist "at any hour."

In this case, Dr. Fisher found "no evidence of any visible notification that 

headquarters was not [staffed] during certain hours, and nothing that advised 

calling [9-1-1] for emergency assistance at such a time." He emphasized that 

the Police Department kept the vestibule doors unlocked and had a red telephone 
18 A-2043-19

mounted on the wall that "erroneously communicated" that it could summon 

emergency help which "was of no use to someone who could not speak." He 

found that no one from the Police Department tested the red telephone after the 

changes were made to the call forwarding number in October 2016, and that they 

"fail[ed] to ensure that the red telephone" provided address information to the 

CCC. 

In addition, Dr. Fisher opined that "[t]he absence of direction to inform 

those seeking help in an emergency, and the absence of the means to provide for 

the delivery of that help, represents a significant breach of duty and 

responsibility on the part of police department leadership" and "[t]he existence 

and persistence of conditions such as those at Morris Plains Police Headquarters 

on the day the decedent died were irresponsible and breached the duty of police 

care to provide aid needed to protect the life of someone in emergent need." He 

also opined that the Police Department's failure to ensure that calls from the red 

telephone transmitted location information to the CCC, as a call from a 9-1-1 

line would, "constituted . . . an inexplicable breach of their most fundamental 

duty."

On May 24, 2019, after hearing oral argument, the trial court reserved 

decision. In a written decision dated May 31, 2019, the trial court granted the 
19 A-2043-19

Borough's motion for summary judgment; granted the County's cross-motion for 

summary judgment, in part, as to Bruzzichesi's individual claims; and denied 

plaintiffs' cross-motion for summary judgment. In its written opinion granting 

summary judgment to the Borough, the trial court found as a matter of law that 

the activities at issue "constitute[d] discretionary, rather than ministerial, 

activities that fall within the immunity enumerated in the TCA at N.J.S.A. 59:3-

2."

Citing Costa v. Josey, 83 N.J. 49, 55 (1980), the trial court determined 

that the Borough entered into the Agreement with the County "for cost-saving 

purposes," as evidenced by the Kimball Report and the "fact it was entered into

pursuant to the Uniform Shared Services and Consolidation Act, N.J.S.A. 

40A:65-1 . . . ." The Borough's decision to have someone stationed at the Police 

Department "[thirteen] hours per day from Monday [to] Friday only" was 

deemed by the trial court to be "inherently discretionary as well, as it certainly 

is a policy-level decision that involved balancing competing considerations of 

allocating scarce resources," as delineated in Costa. The court dismissed the 

complaint and amended complaint as to the Borough with prejudice.

The trial court denied the balance of the County's cross-motion for 

summary judgment as to liability and concluded, as a matter of law, that its 
20 A-2043-19

activities, including those of its employees, did not constitute "ministerial 

activities" falling within the ambit of the TCA, N.J.S.A. 59:2-3.

4

 Moreover, the 

trial court determined that since Glogolich "interacted" with Covello "directly," 

and did not remain on the call, attempt to call the number back, or ascertain the 

location of the call, the County was not entitled to discretionary immunity.

The trial court concluded that Covello's telephone call was also not 

immune under the Emergency Telecommunications Services Act (ETS), 

N.J.S.A. 52:17C-10(d) and (2). Since the CCC did not have a procedure in place 

on handling a person incapable of speaking, the trial court noted the decision is 

"ministerial in nature." Because the trial court reasoned that the Agreement 

"passed on" telephone responsibilities to the County to "accept and transmit 

emergency calls for police" twenty-four hours per day, the court concluded the 

decision to "have the red vestibule phone use an administrative line rather than 

[9-1-1] is the responsibility of the County."

As to punitive damages, the trial court held that the County could be liable 

under the Survival Act premised upon Glogolich's conduct in handling Covello's 

call. The trial court denied the TCA aspects of the County's cross-motion for 

summary judgment and denied plaintiffs' cross-motion for summary judgment. 

4

 The trial court mistakenly cited N.J.S.A. 59:3-2 instead of N.J.S.A. 59:2-3.
21 A-2043-19

A memorializing order was entered. Plaintiffs and the County moved for 

reconsideration, and both motions were denied.

Following the trial court's decision on the above-referenced motions, the 

matter proceeded to a jury trial before a different judge in October 2019. On 

October 30, 2019, at the conclusion of plaintiffs' case, the County made an oral 

motion to dismiss the complaint and amended complaint under Rule 4:37-2(b) 

for failure to present expert testimony on the issue of liability. After conducting 

oral argument, the trial court granted the motion the following day. Plaintiffs 

moved for reconsideration, which was denied. On December 12, 2019, the court 

entered judgment dismissing the complaint and amended complaint against the 

County with prejudice. This appeal and cross-appeal ensued.

On appeal, plaintiffs argue two points: (1) the trial court erred in granting 

the Borough's motion for summary judgment and finding it is entitled to 

discretionary immunity; and (2) the court erred in granting the County's motion 

for involuntary dismissal at the close of plaintiffs' case.

In its cross-appeal, the County argues three points: (1) the trial court 

correctly concluded that plaintiffs' claims against the County required expert 

testimony; (2) the court erred in finding that the Borough was entitled to 

discretionary immunity and that the County was not; and (3) the court erred in 
22 A-2043-19

its ruling on punitive damages. Because we conclude that the trial court erred 

in denying the County's motion for summary judgment as to liability and that 

the County was also entitled to discretionary immunity, we address point two of 

the County's cross-appeal first.

II.

We review entry of summary judgment de novo, applying the same legal 

standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017). 

Summary judgment shall be granted "if the pleadings, depositions, answers to 

interrogatories and admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact challenged and that the 

moving party is entitled to a judgment or order as a matter of law." Templo 

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) 

(quoting R. 4:46-2(c)).

"When no issue of fact exists, and only a question of law remains, [we] 

afford[] no special deference to the legal determinations of the trial court." Ibid.

(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 

(1995)). Indisputably, the Borough and the County are public entities that are 

liable for their negligence only to the extent permitted by the TCA. N.J.S.A. 

59:1-2; N.J.S.A. 59:1-3; N.J.S.A. 59:2-1(a); see Posey v. Bordentown Sewerage 
23 A-2043-19

Auth., 171 N.J. 172, 181-82 (2002) (counties and municipalities are public 

entities that fall within the coverage of the TCA).

As a starting point to our TCA analysis, N.J.S.A. 59:2-1(b) provides that 

"[a]ny liability of a public entity established by this act is subject to any 

immunity of the public entity . . . ." The TCA "delineates both procedural and 

substantive requirements for bringing a tort claim against the State, public 

entities, and public employees." Nieves v. Off. of the Pub. Def., 241 N.J. 567, 

575 (2020). When enacting the TCA, the Legislature declared that it is "the 

public policy of this State that public entities shall only be liable for their 

negligence within the limitations of this act and in accordance with the fair and 

uniform principles established herein." N.J.S.A. 59:1-2. 

"It is well recognized that, through the TCA, the Legislature established 

that '[g]enerally, immunity for public entities is the rule and liability is the 

exception.'" Nieves, 241 N.J. at 575 (quoting Fleuhr v. City of Cape May, 159 

N.J. 532, 539 (1999)). "The statute strikes a balance between allowing 

municipal governments to perform their necessary functions without an 

avalanche of tort liability while holding public entities accountable for injuries 

that are a direct result of their wrongful conduct." Lee v. Brown, 232 N.J. 114, 

127 (2018). 
24 A-2043-19

Toward that end, N.J.S.A. 59:2-1(a) states that "[e]xcept as otherwise 

provided by this act, a public entity is not liable for an injury, whether such 

injury arises out of an act or omission of the public entity or a public employee 

or any other person." But N.J.S.A. 59:2-2(a) provides that "[a] public entity is 

liable for injury proximately caused by an act or omission of a public employee 

within the scope of his employment in the same manner and to the same extent 

as a private individual under like circumstances." That said, "[a] public entity 

is not liable for an injury resulting from an act or omission of a public employee 

where the public employee is not liable." N.J.S.A. 59:2-2(b).

Applying these well-settled principles, we affirm the trial court's grant of 

summary judgment to the Borough. Plaintiffs principally argue that the court 

erred in finding that the Borough was entitled to immunity under N.J.S.A. 59:2-

3 (discretionary immunity) for "all decisions" emanating from the discretionary 

decisions to enter into the Agreement and eliminate the dispatcher position. We 

disagree.

Plaintiffs' cause of action against the Borough is barred by the 

discretionary immunity provision of N.J.S.A. 59:2-3, which states:

a. A public entity is not liable for an injury resulting 

from the exercise of judgment or discretion vested in 

the entity;
25 A-2043-19

b. A public entity is not liable for legislative or judicial 

action or inaction, or administrative action or inaction 

of a legislative or judicial nature;

c. A public entity is not liable for the exercise of 

discretion in determining whether to seek or whether to 

provide the resources necessary for the purchase of 

equipment, the construction or maintenance of 

facilities, the hiring of personnel and, in general, the 

provision of adequate governmental services;

d. A public entity is not liable for the exercise of 

discretion when, in the face of competing demands, it 

determines whether and how to utilize or apply existing 

resources, including those allocated for equipment, 

facilities and personnel unless a court concludes that 

the determination of the public entity was palpably 

unreasonable.

N.J.S.A. 59:2-3 further states that "[n]othing in this section shall exonerate a 

public entity for negligence arising out of acts or omissions of its employees in 

carrying out their ministerial functions." 

Utilizing a similar analytical framework, N.J.S.A. 59:3-2 establishes 

discretionary immunity for public employees. As is true for public entities, the 

statute provides that "[n]othing in this section shall exonerate a public employee 

for negligence arising out of his acts or omissions in carrying out his ministerial 

functions." N.J.S.A. 59:3-2. 

Our jurisprudence explains the distinction "between a planning-level or 

discretionary decision, which is generally entitled to immunity, and an 
26 A-2043-19

operational or ministerial action, which is not." Kolitch v. Lindedahl, 100 N.J. 

485, 495 (1985). "A 'discretionary act . . . calls for the exercise of personal 

deliberations and judgment, which in turn entails examining the facts, reaching 

reasoned conclusions, and acting on them in a way not specifically directed.'" 

S.P. v. Newark Police Dep't, 428 N.J. Super. 210, 230 (App. Div. 2012) (quoting 

Kolitch, 100 N.J. at 495). In contrast, a ministerial act not entitled to immunity 

under the TCA "is 'one which a person performs in a given state of facts in a 

prescribed manner in obedience to the mandate of legal authority, without regard 

to or the exercise of his own judgment upon the propriety of the act being done.'" 

Parsons v. Mullica Twp. Bd. of Educ., 440 N.J. Super. 79, 91-92 (App. Div. 

2015) (quoting S.P., 428 N.J. Super. at 231), aff'd, 226 N.J. 297 (2016). 

"[T]he burden is on the public entity both to plead and prove its immunity" 

under the TCA with "proof of a nature and character [that] would exclude any 

genuine dispute of fact." Kolitch, 100 N.J. at 497; see S.P., 428 N.J. Super. at 

231 ("The burden is placed on the public entity to establish whether discretion 

was exercised."). "[O]nce a moving party has met that burden, summary 

judgment is warranted and, indeed, desirable, as a matter of judicial economy." 

Kolitch, 100 N.J. at 497 (quoting Ellison v. Hous. Auth. of South Amboy, 162 

N.J. Super. 347, 351 (App. Div. 1978)).
27 A-2043-19

N.J.S.A. 52:17C-10, the 9-1-1 immunity statute upon which the County 

relies in addition to the TCA, "shield[s] public and private entities, and their 

personnel, from civil liability for certain acts of ordinary negligence arising 

from the operation of the 9-1-1 system" so long as the negligent acts or 

omissions do not constitute "a wanton and willful disregard for the safety of 

persons and property." Wilson v. City of Jersey City, 209 N.J. 558, 563 (2012). 

The statute states, in relevant part:

No telephone company, person providing 

commercial mobile radio service as defined in 47 

U.S.C. 332(d), public safety answering point, or 

manufacturer supplying equipment to a telephone 

company, wireless telephone company, or PSAP, or any 

employee, director, officer, or agent of any such entity, 

shall be liable to any person for civil damages, or 

subject to criminal prosecution resulting from or caused 

by any act, failure or omission in the development, 

design, installation, operation, maintenance, 

performance or provisioning of any hardware, software, 

or any other aspect of delivering enhanced 9-1-1 

service, wireless 9-1-1 service or wireless enhanced 

9-1-1 service. This limitation of liability is inapplicable 

if such failure resulted from a malicious purpose or a 

wanton and willful disregard for the safety of persons 

or property.

[N.J.S.A. 52:17C-10(d).]

The technical terminology used within N.J.S.A. 52:17C-10(d) is defined 

at N.J.S.A. 52:17C-1. A "PSAP" is "a facility, operated on a 24-hour basis, 
28 A-2043-19

assigned the responsibility of receiving 9-1-1 calls and, as appropriate, directly 

dispatching emergency response services or transferring or relaying emergency 

9-1-1 calls to other public safety agencies." N.J.S.A. 52:17C-1(l). "A [PSAP]

is the first point of reception by a public safety agency of 9-1-1 calls and serves 

the jurisdictions in which it is located or other participating jurisdictions." Ibid.

"Enhanced 9-1-1 service" is "a service consisting of telephone network 

features and public safety answering points provided for users of the public 

telephone system enabling the users to reach a public service answering point 

by dialing the digits '9-1-1.'" N.J.S.A. 52:17C-1(g). "The service directs 9-1-1 

calls to appropriate [PSAP] by selective routing based on the location from 

which the call originated and provides for automatic number identification and 

automatic location identification features."5 Ibid. 

"Wireless 9-1-1 service" is "the service which enables wireless telephone 

company customers to dial the digits 9-1-1 and be connected to a public safety 

agency." N.J.S.A. 52:17C-1(r). "Wireless enhanced 9-1-1 service" is "the 

5

 "Automatic number identification (ANI) . . . enables the automatic display of 

the callback number used to place a 9-1-1 call" and "automatic location 

identification . . . enables the automatic display of information defining the 

geographical location of the telephone used to place a 9-1-1 call." N.J.S.A. 

52:17C-1(a) to (b). 
29 A-2043-19

service required to be provided by a wireless telephone company pursuant to 

Federal Communications Commission wireless 9-1-1 requirements." N.J.S.A. 

52:17C-1(s).

Here, plaintiffs do not dispute the trial court's determination that the 

Borough's decisions to enter into the Agreement with the County for dispatching 

services, to have the Police Department unstaffed on weekends, to decline to 

inspect the vestibule area on weekends, and declining to monitor the surveillance 

video, were discretionary. Instead, plaintiffs dispute the court's determination 

that the Borough's decision to install the red telephone in the vestibule was 

discretionary, contending that the Borough failed to prove that: (1) "any actual 

high-level policy making decisions were made concerning the red vestibule 

telephone, which involved the balancing of competing considerations"; or (2) "it 

exercised judgment and/or discretion in the use of its resources and [staff] to 

serve the needs of the public concerning the decisions made about the red 

vestibule telephone." We discern no error.

The record supports the trial court's conclusion that the Borough's 

installation and configuration of the red telephone was inherently intertwined 

with its Agreement with the County. The Borough's action involved a "high 

level discretionary policy decision[] whether to burden the taxpayers to furnish 
30 A-2043-19

equipment, material, facilities, personnel or services," and such decisions are 

"absolutely immune" from liability under N.J.S.A. 59:2-3(c). Lopez v. City of 

Elizabeth, 245 N.J. Super. 153, 164 (App. Div. 1991).

Druetzler's certification states that the Borough installed the red telephone 

"as a direct result of the eliminations of the Borough's dispatcher positions" 

following entry into the Agreement with the County for dispatcher services.6 It 

is undisputed that calls placed from the red telephone were to be fielded by the 

CCC, not the Borough. Moreover, the Borough's decision to configure the red 

telephone to place calls from an administrative line as opposed to a 9-1-1 phone 

line was a "high level discretionary policy decision" under N.J.S.A. 59:2-3(c), 

"[that] called for the exercise of personal deliberations and judgment, which in 

turn entail[ed] examining the facts, reaching reasoned conclusions, and acting 

6

 Plaintiffs claim that they "objected" to Druetzler's certification, submitted as 

part of the Borough's opposition to their cross-motion for summary judgment, 

because Druetzler "was not identified in either written discovery responses or 

during depositions as having relevant knowledge during the discovery period." 

However, it does not appear from the record that they moved to exclude the 

certification from evidence. Because none of plaintiffs' interrogatories required 

the Borough to identify Druetzler, their reliance on Rule 4:17-7 and Rule 4:24-

1(c) is misplaced. Moreover, Druetzler signed the Agreement on behalf of the 

Borough, which plaintiffs received during discovery. Thus, it was apparent that 

Druetzler had relevant knowledge, and at trial, the court found that the Borough 

was entitled to summary judgment "even without considering the newlysubmitted certification" from Druetzler.
31 A-2043-19

in a way not specifically directed," S.P., 428 N.J. Super. at 320, warranting the 

grant of summary judgment. Lopez, 245 N.J. Super. at 164. Plaintiffs' reliance 

on Costa, 83 N.J. at 59, Thompson v. Newark Hous. Auth., 108 N.J. 525, 537 

(1987), and unpublished opinions to support their contentions on appeal are

unavailing.

In Costa, our Court held that the Department of Transportation was not 

entitled to TCA immunity under N.J.S.A. 59:2-3(a) with respect to its decision 

to approve a road resurfacing project because there was no evidence "to indicate 

that any competing policy choices were actually considered when the 

resurfacing plan was made and approval given." Costa, 83 N.J. at 60. Because 

Costa does not address the immunity available to public entities under N.J.S.A. 

59:2-3(c), it has no relevance to the matter under review.

In Thompson, "[t]he single question presented in [the] plaintiffs' petition 

for certification" was "whether the 'plan or design' immunity afforded by 

N.J.S.A. 59:4-6 relieves [the] defendant of liability 'for failure to provide smoke 

detectors in public housing projects despite a city ordinance requiring' such 

devices," and the instant matter does not involve plan or design immunity. 108 

N.J. at 532.
32 A-2043-19

As to the unpublished opinions cited in plaintiffs' brief, "[n]o unpublished 

opinion shall constitute precedent or be binding upon any court." R. 1:36-3. 

Additionally, with few exceptions that are not applicable here, "no unpublished 

opinion shall be cited by any court." Ibid. Unpublished opinions are not 

precedential.

Finally, plaintiffs take issue with the trial court's usage of the words 

"suggest," "strongly suggests," and "suggesting" in its decision, claiming that it 

shows that the evidence was insufficient to support a grant of summary judgment 

to the Borough. We reject plaintiffs' argument. "[A]ppeals are taken from 

judgments or orders and not from the court's reasoning." Kandrac v. Marrazzo's 

Mkt., 429 N.J. Super. 79, 84 (App. Div. 2012). "[I]f the order of the lower 

tribunal is valid, the fact that it was predicated upon an incorrect basis will not 

stand in the way of its affirmance." Isko v. Plan. Bd. of Livingston, 51 N.J. 162, 

175 (1968), abrogated on other grounds by Com. Realty and Res. Corp. v. First 

Atl. Props. Co., 122 N.J. 546, 558-59 (1991). Thus, the trial court's usage of 

certain words in an effort to explain its reasoning does not detract from the 

evidence contained in the summary judgment record to support the conclusion 

that the Borough's actions with regard to installation and configuration of the 
33 A-2043-19

red telephone fell squarely within the absolute immunity granted by N.J.S.A. 

59:2-3(c).

As stated previously, we part company with the trial court's denial of 

summary judgment to the County finding the County's "activities at issue" that 

proximately caused Covello's death were "ministerial activities." 7 With respect 

to the red telephone, the court found the ministerial actions that plaintiffs ascribe

to the Borough were "attributable instead to the County, largely because the 

Agreement itself passed on such responsibilities . . . to 'accept and transmit 

emergency calls for police' on a 'continuous [twenty-four] hour per day basis.'" 

The trial court also concluded the County was not entitled to immunity pursuant 

to N.J.S.A. 52:17C-10(d) because Covello's call was not a 9-1-1 call, an 

administrative line rather than a 9-1-1 line is the responsibility of the County. 

Viewing, as we must, the record in a light most favorable to plaintiffs, we 

conclude the trial court erred in denying the County's cross-motion for summary 

judgment as to the issue of liability.

As a threshold matter, the County does not dispute the court's finding that 

Glogolich's actions with respect to handling Covello's call were ministerial and 

7

 Once again, in analyzing whether the County was entitled to discretionary 

immunity, the court erroneously cited N.J.S.A. 59:3-2, which pertains to public 

employees, instead of N.J.S.A. 59:2-3, which pertains to public entities.
34 A-2043-19

in accordance with the CCC policy. The testimony of multiple deponents 

supports the conclusion that there was no way for Glogolich or any dispatcher 

to redial or recall a phone number placed on the red telephone because the 

Borough, not the County, did not configure the red telephone as a 9-1-1 line. 

However, the record before us clearly shows that the only act the County 

did here was provide a ten-digit administrative, call forwarding number for the 

red telephone so that calls from the red telephone could be routed appropriately. 

The competent, credible evidence in the record shows the Borough was 

responsible for the installation, maintenance, and configuration of the red 

telephone, and plaintiffs provided no proof to the contrary. Saliently, the red 

telephone did not permit the user to dial any number. Moreover, the proofs 

confirm that Covello's call was not a 9-1-1 call. Therefore, the trial court erred 

in finding that the County failed to have procedures in place to handle emergent 

calls where the caller was unable to speak or got disconnected. Thus, 

Glogolich's handling of Covello's call was discretionary, and the County is 

entitled to immunity. We note that plaintiffs did not present any evidence that 

the County had an obligation to establish 9-1-1 services for the Borough's red 

telephone to defeat the County's cross-motion for summary judgment. "To 

defeat a motion for summary judgment, the opponent must 'come forward with 
35 A-2043-19

evidence that creates a genuine issue of material fact.'" Cortez v. Gindhart, 435 

N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield 

of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)).

The immunity granted to 9-1-1 operators by N.J.S.A. 52:17C-10(d), per 

the statute's plain language, pertains only to "delivering enhanced 9-1-1 service, 

wireless 9-1-1 service or wireless enhanced 9-1-1 service." It is uncontested 

that Covello did not dial 9-1-1 to reach the CCC from the red telephone. The 

red telephone did not permit the user to dial any number. It was activated "by 

picking up the handset which connect[ed] it to the county dispatcher." Calls 

placed from the red telephone utilized a ten-digit Borough administrative phone 

line, not a 9-1-1 phone line, and were automatically forwarded to the CCC once 

the handset was lifted.

The "paramount goal in interpreting a statute is to give effect to the 

Legislature's intent." Wilson, 209 N.J. at 572. "When that intent is revealed by 

a statute's plain language – ascribing to the words used 'their ordinary meaning 

and significance' – we need look no further." Ibid. (quoting DiProspero v. Penn, 

183 N.J. 477, 492 (2005)). Courts will not "rewrite a plainly-written enactment 

of the Legislature []or presume that the Legislature intended something other 
36 A-2043-19

than that expressed by way of the plain language." DiProspero, 183 N.J. at 492 

(quoting O'Connell v. State, 171 N.J. 484, 488 (2002)) (alteration in original).

The trial court's comments reveal that it improvidently placed 

responsibility for the red telephone on the County. It was the Borough that 

exclusively determined not to configure the red telephone as a 9-1-1 line, not 

the County. Moreover, the competent evidence in the record shows 

unequivocally that the purpose of the red telephone was to allow the Borough to 

respond to routine requests for police information. Significantly, the record is 

clear that the County had procedures in place to handle emergency services for 

calls coming in on a 9-1-1 line.

In the present case, the County had no obligation to install or configure 

the Borough's red telephone as a 9-1-1 line. Our conclusion in this regard is 

consistent with N.J.S.A. 59:2-3. The fact that the Borough installed a 9-1-1 line 

after Covello's death is not germane to our analysis because this subsequent 

remedial measure has no relevance to any fact in issue here. N.J.R.E. 407. 

Based upon our de novo review, we conclude that the trial court erred in denying 

the County's cross-motion for summary judgment and conclude that the County 

was entitled to summary judgment based on the same TCA discretionary 

immunity as the Borough under N.J.S.A. 59:2-3. For this reason, we reverse the 
37 A-2043-19

May 31, 2019 order insofar as it did not grant the County's cross-motion for 

summary judgment in its entirety.

In light of our decision, we need not address the issues raised in plaintiffs' 

appeal and the County's cross-appeal relative to the trial court granting the 

County's motion for involuntary dismissal or the point raised in the County's 

cross-appeal regarding punitive damages.

Affirmed in part and reversed in part. We do not retain jurisdiction.