SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2486-19T1

JERARD J. MURPHY,

Plaintiff-Appellant,

v.

SPARTA TOWNSHIP POLICE 

DEPARTMENT, SERGEANT 

JOSEPH PENSADO, OFFICER 

DANIEL ELIG, SERGEANT 

ADAM CARBERY, and

OFFICER RICHARD SMITH,

Defendants-Respondents.

____________________________

Argued November 30, 2020 – Decided

Before Judges Fasciale and Mayer. 

On appeal from the Superior Court of New Jersey, Law 

Division, Sussex County, Docket No. L-0068-18.

George T. Daggett argued the cause for appellant.

Brent R. Pohlman argued the cause for respondent 

(Methfessel & Werbel, attorneys; Brent R. Pohlman, of 

counsel and on the brief; Ashley E. Malandre, on the 

brief).

NOT FOR PUBLICATION WITHOUT THE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.

December 22, 2020
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PER CURIAM

Plaintiff Jerard J. Murphy appeals from a December 9, 2019 order granting 

summary judgment to defendants Sparta Township Police Department (Sparta

P.D.), Sergeant Joseph Pensado, Officer Daniel Elig, Sergeant Adam Carbery, 

and Officer Richard Smith (collectively, defendants), and a February 21, 2020 

order denying his motion for reconsideration. We affirm.

Plaintiff, a member of the Sparta Township governing body, sued 

defendants for violation of his civil rights, false arrest, malicious use of process, 

and conspiracy1arising from a motor vehicle stop of plaintiff's car by Officer 

Elig of the Sparta P.D. The facts are based on the testimony presented during a 

municipal court proceeding related to the motor vehicle stop and deposition 

testimony from plaintiff's civil suit against defendants.

On the evening of February 12, 2016, plaintiff went to a local restaurant 

in Sparta. According to the restaurant bill, plaintiff opened a tab at 7:43 p.m., 

ordered three beers and a salad, and closed the tab at 10:13 p.m. Plaintiff left 

the restaurant around midnight. Before driving home, plaintiff spent ten to 

1

 Plaintiff asserted other claims against defendants which were either withdrawn 

or dismissed and were not the subject of this appeal.
3

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fifteen minutes outside the restaurant, "walking back and forth talking to a 

friend." Although he "hadn't had a drink for a while[,]" plaintiff "wanted to 

make sure [he] was thinking clearly" before driving. It had begun to snow 

lightly when plaintiff left the restaurant.

Officer Elig was on duty during the early morning hours of February 13, 

2016, monitoring traffic on Mohawk Avenue. He noticed a vehicle "traveling 

at a high rate of speed," activated his radar gun, and obtained a reading of thirtyfour miles per hour despite the posted speed limit of twenty-five miles per hour. 

Officer Elig continued to follow the car and observed the vehicle swerve over 

the fog line twice.2 The second time the car crossed the fog line, Officer Elig 

noted it took the driver about twelve seconds to return to the proper lane of 

traffic. The officer pulled the car over after locating a safe spot to proceed with 

a motor vehicle stop. 

Approaching the vehicle, Officer Elig "detected the strong odor of an 

alcoholic beverage emanating from the interior of the vehicle." While the driver 

searched for his documentation, the officer noted his motions were "slow and 

deliberate." The documentation identified plaintiff as the driver of the vehicle. 

2

 When Officer Elig saw the car cross the fog line, he activated the motor vehicle 

recorder in his patrol car. 
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Officer Elig advised plaintiff he was stopped for speeding and failing to 

maintain his lane. The officer asked if plaintiff "had consumed any alcoholic 

beverages . . . ." Plaintiff replied he had three beers. Officer Elig noticed 

plaintiff's eyes were "bloodshot" and "watery," "his eyelids were droopy[,]" his 

"face was flushed[,] and his speech was slow, badly slurred, and incoherent at 

times." 

Officer Elig asked plaintiff to step out of the car, and plaintiff "fell 

backward into the driver[']s door and grabbed the door for stability." The officer 

noted "the strong odor of an alcoholic beverage emanating from [plaintiff's]

mouth as he spoke." Prior to conducting any field sobriety tests, Officer Elig 

asked if plaintiff had any ailments which would impede his ability to perform 

the tests. Plaintiff explained he suffered from peripheral neuropathy, which 

affected his balance, but "would try" the tests. 

Sergeant Pensado arrived while Officer Elig administered the sobriety 

tests. Plaintiff failed each test. Based on the failed field sobriety tests, his 

observation of plaintiff's car crossing the fog line, the odor of alcohol, plaintiff's 

admission to consuming alcohol, plaintiff's physical appearance, and his police

training and experience, Officer Elig determined plaintiff operated his vehicle 

while under the influence of alcohol and arrested plaintiff.
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At the police station, Officer Elig administered a breathalyzer test, 

"yield[ing] a [blood alcohol content] reading of .13 [percent]." Plaintiff was 

charged with driving while intoxicated, speeding, careless driving, failing to 

maintain a proper lane, failing to produce a valid insurance card, and having an 

obstructed license plate. 

While he as at the police station, plaintiff asked if Officer Elig "was a rehire." According to the officer, plaintiff "was referring to 2011 when the town 

laid off five [p]olice [o]fficers, including [himself], for budgetary reasons." 

Officer Elig responded affirmatively.3 According to the officer, plaintiff "shook 

his head slowly in an up and down motion" and stated, "Your first name is Dan 

right?" 

On February 13, 2017 and May 22, 2017, plaintiff appeared before the 

Hopatcong Municipal Court for a probable cause hearing on the charges. The 

municipal court judge concluded Officer Elig had probable cause to stop 

plaintiff's car, finding the officer "had a reasonable and articulable suspicion 

that [plaintiff] had violated a motor vehicle law" based on speeding, crossing 

the fog line, and obstructing his license plate. The judge concluded, "Any one 

3

 As part of a reduction in force, Officer Elig was laid off from the Sparta P.D. 

effective May 9, 2011 but rehired on April 1, 2013.
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of these offenses alone satisfied the reasonable and articulable suspicion 

standard . . . ." Ultimately, all charges were dismissed except for the obstructed 

license plate, and plaintiff received a $135 fine for that violation. 

Despite the municipal court judge's findings, plaintiff believed Officer 

Elig stopped him as part of a conspiracy within the Sparta P.D. This belief was 

based on information plaintiff subsequently learned from two different 

individuals. One individual, Mike, dined at the restaurant the same time as 

plaintiff on February 12, 2016. Mike told plaintiff a retired Sparta police officer 

and his wife were at the restaurant and spoke about plaintiff. The other 

individual, Chris, also heard a conversation between the retired Sparta police 

officer and his wife that evening. Initially, plaintiff claimed Chris told him 

"[plaintiff] was being set up over a period of time." When asked for specific 

details regarding the conversation overheard by Chris, plaintiff clarified, "Well, 

just that he had heard my name." 

Plaintiff believed the retired Sparta police officer notified defendants

when plaintiff was leaving the restaurant so he would be arrested in retribution 

for the prior reduction in force. However, plaintiff did not personally hear any 
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conversations between the retired Sparta police officer and his wife. Nor did 

plaintiff see either using a cell phone that evening.4 

Plaintiff theorized the Sparta P.D. acted in concert to retaliate against him 

for the 2011 layoffs. According to plaintiff, the Sparta Township manager made 

the decision "to conduct a reduction in force." Plaintiff testified his role in 

approving the Sparta Township manager's decision was limited to authorizing 

the manager to take action to reduce the municipality's budget, and plaintiff

lacked any input regarding specific layoffs. 

Given his non-participation in layoff of police officers, plaintiff was asked 

why defendants would set him up. Plaintiff responded, "I don't know that they 

were all in on a conspiracy, I think it was initiated by [the retired Sparta police 

officer]." When probed why the retired Sparta police officer would participate 

in such a conspiracy, plaintiff said he did not know, but "people overheard [the 

retired officer] talking. [Plaintiff] didn't draw that conclusion, other people did." 

The testimony of the officers deposed in plaintiff's civil suit was

consistent with plaintiff's testimony regarding the events leading to the arrest. 

4

 The two individuals who reported overhearing conversations between the 

retired Sparta police officer and his wife were not deposed. Nor did plaintiff 

submit an affidavit or certification from either individual regarding the 

statements they overheard in the restaurant. 
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The only additional information involved a text message from the retired Sparta 

police officer to Officer Smith while plaintiff was at the restaurant. 

Paraphrasing the text message,5 Officer Smith testified the message said 

"[plaintiff] was in the St. Moritz and he was under the influence of alcohol." 

Officer Smith relayed the information to Sergeant Pensado, drove through the

restaurant's parking lot "to investigate the allegation," and "saw [plaintiff's] 

vehicle parked out front . . . ." Officer Smith then "continued on [his] day." 

According to Sergeant Pensado, Officer Smith received the text message 

sometime between 8:30 p.m. and 9:30 p.m. Sergeant Pensado then "instructed 

the squad to make sure that before [they] took any action that it was validated 

with sight or [an] independent motor vehicle violation" so that they were not 

simply reacting to a tip. 

Plaintiff filed a civil suit in February 2018 and amended his complaint on 

May 18, 2018. He alleged defendants violated his civil rights and the New 

Jersey Constitution, "attack[ed] . . . the governmental process in the Township 

of Sparta and singled out the [p]laintiff for having taken legislative action for 

the betterment of the people of Sparta[,]" engaged in "malicious prosecution," 

5

 The original text message was unavailable because Officer Smith bought a 

new cell phone prior to his deposition.
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and committed false arrest. Plaintiff claimed defendants, acting in retribution 

for the reduction in force several years earlier, "set out to arrest [p]laintiff on 

the night of February 12, 2016 and did so notwithstanding the absence of 

reasonable suspicion or probable cause."

After completing discovery, defendants moved for summary judgment. 

The motion judge heard oral argument on November 22, 2019 and granted 

defendants' motion in a December 9, 2019 order and accompanying thirty-threepage written decision. Plaintiff filed a motion for reconsideration, which was 

denied by the judge in a February 21, 2020 order and attached fourteen-page 

written decision.

In his written decisions, the motion judge explained why he rejected 

plaintiff's allegations in their entirety. The judge concluded "the majority of 

evidence concerning the intentions of [d]efendants is mere speculation." He 

further explained plaintiff put forth no evidence to support his claim defendants 

acted in furtherance of a conspiracy. The judge held:

In light of the evidence before the [c]ourt, the [c]ourt

concludes that no reasonable jury could conclude there 

was not probable cause for the motor vehicle stop of 

[p]laintiff. Therefore, the [c]ourt finds the existence of 

probable cause to pull over [p]laintiff and the failure of 

[p]laintiff to put forth any disputed material facts to that 

point, deems summary judgment appropriate . . . .
10 A-2486-19T1

The judge concluded Officer Elig stopped plaintiff's car based upon a 

reasonable and articulable suspicion that plaintiff committed motor vehicle 

violations. He also determined the issue of probable cause could be resolved 

without submitting the question to a jury because the underlying probable cause 

determination was not in dispute.

After reviewing the motor vehicle recording footage from Officer Elig's 

patrol car the night of plaintiff's arrest, the judge determined there was 

"irrefutable proof that [p]laintiff crossed over the right white fog line on two 

separate occasions." Despite the light snow fall, the judge found the fog lines 

were clearly visible on the recording. In addition, the judge noted Officer Elig

relied on his personal observation, as well as a radar gun, to determine plaintiff's 

car exceeded the posted speed limit. Based on these undisputed facts, the judge 

"conclude[d] there was probable cause sufficient to defeat the instant claims." 

The motion judge also rejected plaintiff's argument the time stamps on the 

motor vehicle recording and dispatch call logs were perfectly synchronized and 

thus the timing did not support a finding of probable cause. The judge found 

the timing was not perfectly synchronized because, as Officer Elig explained,

there was a time difference between an officer's radio transmission to dispatch 

and dispatch's manual entry of a time stamp on the call log.
11 A-2486-19T1

In reviewing the evidence in the light most favorable to plaintiff, the 

motion judge concluded "the majority of [the] evidence concerning the 

intentions of the [d]efendants is mere speculation. However, . . . even if Officer 

Elig's subjective intentions were clouded by ill-will, there was other objectively 

reasonable evidence to pull over [p]laintiff as established by both the 

[m]unicipal [c]ourt record and the [motor vehicle recording] submitted with the 

instant motion." He explained, "[p]laintiff has not put forth evidence indicating 

the Sparta Police Department 'officially sanctioned' or had a 'de facto' policy to 

seek retribution for the reduction in force."

The motion judge also rejected plaintiff's argument that "every one of the 

facts stated by [d]efendants are disputed." Plaintiff's conclusory allegations 

regarding Officer Elig's testing of and using the radar gun during a snow event 

were determined by the judge to be "non-material issues" because aside from 

speeding, crossing the white fog line was itself a sufficient reason to stop 

plaintiff's car. He reiterated, "[p]laintiff put[] forth multiple conclusory 

allegations which ha[d] no basis in the record." The judge noted, "[p]laintiff 

testified he ha[d] no personal knowledge that the [d]efendants engaged in a 

conspiracy against him" and "that no one, other than his lawyer, informed him 

of the existence of a conspiracy between the [d]efendants." 
12 A-2486-19T1

As the judge noted, plaintiff could not simply point to any fact in dispute 

to survive a motion for summary judgment. He wrote: 

[N]othing in the record establishes there is a dispute 

concerning any fact material to such a finding of a 

reasonable or articulate suspicion. Plaintiff's 

contention are neither material facts nor are most of 

them supported by the record before this [c]ourt. Thus, 

it is irrelevant whether Officer Elig harbored ill-will 

towards [p]laintiff, which is doubtful based upon the 

record, because there was other objectively reasonable 

evidence to justify the stop. 

In the absence of any relevant and material factual disputes, the judge deemed

summary judgment appropriate.

In denying reconsideration, the motion judge repeated and incorporated 

his summary judgment ruling and held plaintiff failed "to meet the standard for 

reconsideration." The judge concluded:

[P]laintiff merely reargues the issues of reasonable 

suspicion and synchronization, among others. This 

[c]ourt finds that there are no new or additional facts 

before this [c]ourt that were unavailable to the parties 

at the time the prior motion was considered. Nor does

[p]laintiff cite to any previously unavailable legal 

authority. 

On appeal, plaintiff argues the judge failed to correctly apply the 

substantive law regarding probable cause and the law governing motions for 

summary judgment. We disagree.
13 A-2486-19T1

Our review of an order granting a party's motion for summary judgment 

"is premised on the same standard that governs the motion judge's 

determination." RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 

(2018). Summary judgment must be granted "if the pleadings, depositions, 

answers to interrogatories and admissions on file, together with 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." R.

4:46-2(c). "[W]e view the evidence in the light most favorable to the nonmoving party" to determine whether genuine disputes of material fact exist. 

Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236, 256 (2018)

(quoting Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012)); Brill v. 

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). 

Summary judgment is appropriate when the evidence "is so one-sided that 

one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 252 (1986). The evidence offered by the opposing party cannot 

simply "point[] to any fact in dispute." Ibid. An opposing party who offers no 

substantial or material facts in opposition to the motion cannot complain if the 

court takes as true the uncontradicted facts in the movant's papers. Judson v. 

Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954). 
14 A-2486-19T1

We first consider plaintiff's contention there were genuine issues of 

material fact that precluded the entry of summary judgment. We disagree. 

Plaintiff produced no evidence or facts in support of his claims against 

defendants other than speculation proffered by his attorney and unsubstantiated 

hearsay statements by other persons. 

Plaintiff claimed Officer Elig lacked probable cause to stop his car. The 

United States Supreme Court has held "certain seizures are justifiable . . . if there 

is articulable suspicion that a person has committed or is about to commit a 

crime." Florida v. Royer, 460 U.S. 491, 498 (1983). New Jersey courts have 

clarified "[a]n investigatory detention is permissible 'if it is based on specific 

and articulable facts which, taken together with rational inferences from those 

facts, give rise to a reasonable suspicion of criminal activity.'" State v. Chisum, 

236 N.J. 530, 545-46 (2019) (quoting State v. Pineiro, 181 N.J. 13, 20 (2004)). 

Such a stop "may not be based on arbitrary police practices, the officer's 

subjective good faith, or a mere hunch." State v. Coles, 218 N.J. 322, 343 (2014)

(quoting State v. Shaw, 213 N.J. 398, 411 (2012)). To determine whether 

reasonable suspicion existed, a court must consider the totality of the 

circumstances, viewing the "whole picture" rather than taking each fact in 

isolation. State v. Nelson, 237 N.J. 540, 554-55 (2019). 
15 A-2486-19T1

Plaintiff argued a jury must decide whether Officer Elig had a reasonable 

or articulable suspicion to stop his car. In support of this argument, plaintiff 

relied on State v. Bruzzese, 94 N.J. 210 (1983), and State v. Kennedy, 247 N.J. 

Super. 21 (App. Div. 1991). According to plaintiff, the motion judge failed to 

consider these cases in rendering his decision.

6

 

In Bruzzese, our Supreme Court indicated "the proper inquiry for 

determining the constitutionality of a search-and-seizure is whether the conduct 

of the law enforcement officer who undertook the search was objectively 

reasonable without regard to his or her underlying motives or intent." 94 N.J. 

at 219. The Court held:

In discarding the general use of a subjectivity analysis, 

we do not condone searches that are not undertaken to 

further valid law enforcement aims. For example, we 

afford no legal protection to police officers who invade 

the privacy of citizens as a means of racist or political 

harassment. Such searches would be unconstitutional, 

not because of the police officer's subjective motives, 

but because, viewed objectively, the searches do not 

reasonably advance the legitimate goals of law 

enforcement.

[Id. at 226.]

6

 Contrary to plaintiff's contention, the judge's written decisions contained a 

discussion and analysis of both cited cases and explained why the facts in those 

cases were inapplicable to plaintiff's case. 
16 A-2486-19T1

We reaffirmed this holding in Kennedy. "The fact that the officer does 

not have the state of mind hypothesized by the reasons which provide the legal 

justification for the search and seizure does not invalidate the action taken, so 

long as the circumstances, viewed objectively, support the police conduct." 

Kennedy, 247 N.J. Super. at 28 (citing Bruzzese, 94 N.J. at 220). A seizure will 

be deemed unconstitutional only if "the claim is made that a police agency has 

embarked upon an officially sanctioned or de facto policy of targeting minorities 

for investigation and arrest." Id. at 29-30. 

Here, plaintiff failed to produce any credible evidence demonstrating 

"political harassment," warranting an evaluation of Officer Elig's subjective 

intent for stopping plaintiff's car. The motor vehicle recording footage from the 

officer's patrol car clearly showed plaintiff cross the white fog line twice in 

violation of N.J.S.A. 39:4-88(b), which provided Officer Elig with a reasonable 

or articulable suspicion a motor vehicle violation had been committed to justify 

stopping plaintiff's car. 

We next consider plaintiff's claim for malicious use of process. "[W]hen 

the underlying proceeding is civil rather than criminal, or based on traffic . . .

charges–involving none of the physical constraints ordinarily attendant to the 

criminal process–the cause of action is known as malicious use of process and 
17 A-2486-19T1

requires proof of a deprivation of liberty or 'other special grievance.'" Turner v. 

Wong, 363 N.J. Super. 186, 203-04 (App. Div. 2003) (quoting Vickey v. 

Nessler, 230 N.J. Super. 141, 146 (App. Div. 1989)). A successful claim for 

malicious use of process requires the claimant to prove the civil counterpart to 

the four elements of malicious prosecution: "(1) a criminal action was instituted 

by this defendant against this plaintiff; (2) the action was motivated by malice; 

(3) there was an absence of probable cause to prosecute; and (4) the action was 

terminated favorably to the plaintiff." LoBiondo v. Schwartz, 199 N.J. 62, 90 

(2009) (citing Lind v. Schmid, 67 N.J. 255, 262 (1975)). 

Here, plaintiff was unable to demonstrate the required elements to support 

his claim for malicious use of process. The undisputed evidence from the motor 

vehicle recording demonstrated Officer Elig had probable cause to stop 

plaintiff's car. Nor did plaintiff present any evidence that prosecuting him for 

violation of the motor vehicle laws was actuated by defendants' malice. Rather, 

plaintiff proffered only speculation and hearsay to support his claim. Because 

there was probable cause to prosecute and the absence of malice, plaintiff could 

not sustain a claim for malicious use of process, and the motion judge properly 

granted defendants' motion for summary judgment.
18 A-2486-19T1

Because we are satisfied the motion judge correctly granted summary 

judgment, dismissing plaintiff's claims in their entirety, the judge did not err in 

denying plaintiff's motion for reconsideration.

Affirmed.