SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5028-17T2

MICHAEL FROMOSKY,

Plaintiff-Respondent,

v.

TOWNSHIP OF LITTLE EGG 

HARBOR, EUGENE KOBRYN, 

and DAVE SCHLICK,

Defendants,

and

RICHARD BUZBY and 

GARRETT LOESCH,

Defendants/Third-Party 

Plaintiffs-Appellants,

v.

LITTLE EGG HARBOR TOWNSHIP,

MICHAEL FROMOSKY, JOHN KEHM,

and RAYMOND GORMLEY,

Third-Party Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE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.
2

A-5028-17T2

Argued September 17, 2019 – Decided 

Before Judges Fisher and Gilson.

On appeal from the Superior Court of New Jersey, Law 

Division, Ocean County, Docket No. L-0723-17.

John J. Novak argued the cause for appellants (John J. 

Novak, attorney; John J. Novak and Deborah A. Plaia, 

on the briefs).

Jennifer M. Carlson argued the cause for respondent 

Michael Fromosky (Richard M. Pescatore, PC, 

attorneys; Jennifer M. Carlson, on the brief).

Erin Thompson argued the cause for respondents Little 

Egg Harbor Township, John Kehm, and Raymond 

Gormley (Birchmeier & Powell LLC, attorneys; James 

Robert Birchmeier, on the brief).

PER CURIAM

This appeal arises out of a series of complaints made by employees of the 

Township of Little Egg Harbor (Township). The named plaintiff, Michael 

Fromosky, is the Township's Code Enforcement Officer. Ultimately, he settled 

his claims. As a consequence, the claims at issue on this appeal are 

counterclaims and third-party claims filed by Richard Buzby and Garrett 

Loesch.

Buzby is the Township Chief of Police and Loesch was the Township 

Business Administrator and Chief Financial Officer. They asserted claims 

November 14, 2019
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A-5028-17T2

against Fromosky, the Township, John Kehm, and Raymond Gormley. The 

latter two individuals are members of the Township committee. Buzby and 

Loesch appeal from five orders entered on February 2, 2018, and March 29, 

2018. Those orders (1) granted summary judgment to Fromosky; (2) denied 

reconsideration of that summary judgment order; (3) dismissed the third-party 

complaint as to all third-party defendants for failure to state a claim; (4) denied 

Buzby and Loesch's motion for leave to file an amended third-party complaint 

against Fromosky; and (5) denied Buzby and Loesch's motion for leave to amend 

the third-party complaint against all third-party defendants. Having reviewed 

the arguments of the parties in light of the record and law, we affirm.

I.

We take the facts from the record developed on the motions and view them 

in a light most favorable to Buzby and Loesch, the non-moving parties. Loesch 

and Buzby alleged that they were retaliated against by Fromosky, Gormley, and 

Kehm as a result of reporting alleged wrongful conduct engaged in by Kehm. 

The initial report of the wrongful conduct occurred in 2014, when Loesch 

reported that conduct to Buzby. Buzby, in turn, sent a letter to the Ocean County 

Prosecutor's Office. Buzby and Loesch then alleged that they were subjected to 

retaliatory acts, which occurred between September 2015 and September 2016. 
4

A-5028-17T2

They also contend that during that same period of time they were slandered. 

Accordingly, we will summarize the relevant letters sent by, and 

communications made by, Buzby and Loesch between March 2015 and 

September 2016, as well as the alleged resulting retaliation and slander. 

The initial report of alleged misconduct was made by Buzby in a letter he 

sent to the Ocean County Prosecutor, dated March 10, 2015. Buzby asserted that 

Kehm was retaliating against him and causing "an adverse effect on [the 

Township's] police operations." Buzby reported that in May 2014, Loesch had 

advised him that "he believed Kehm may have been improperly collecting 

FEMA rental assistance while remaining in the same home he claimed to be 

displaced from." Buzby explained he was unable to investigate Loesch's claim 

against Kehm because Kehm was Buzby's "appropriate authority." Accordingly, 

to address Loesch's concern, Buzby contacted his "other appropriate authority,"

Committeeman Gormley, who confronted Kehm. Buzby went on to report that 

Kehm had denied any wrongdoing when confronted by Gormley. 

Buzby informed the prosecutor that Loesch had also reported that "Kehm 

had applied for, and received, a property tax abatement on his damaged home." 

Buzby explained that, according to Loesch, "Kehm . . . received a 90% tax 

reduction on the value of his damaged home[,]" which he was not entitled to 
5

A-5028-17T2

under the law. Buzby noted that he believed Kehm was aware that Loesch had 

reported the improper property tax abatement. 

Buzby then wrote that "[s]ince these facts have become known to Kehm, 

every request for anything I have made ha[s] been greeted by scorn and ridicule 

by Kehm and, to a lesser extent, Gormley." Buzby concluded his letter by 

stating that he was seeking protection under the whistleblower act and he 

requested that Kehm be removed "as an appropriate authority for the police 

department . . . ." A copy of Buzby's letter was sent to the Township's Mayor 

and Counsel. 

About one week later, Loesch sent an email to the Mayor requesting 

protection from retaliation and insisting that "you as the Mayor must . . . act to 

protect your staff and prevent possible litigation against the [T]ownship." A few 

hours later, the Mayor sent a response and explained he had contacted legal

counsel for assistance. 

On March 23, 2015, Township Counsel sent a letter to Loesch addressing 

his earlier email. Counsel requested that Loesch "advise as to any adverse 

employment actions . . . suffered since the disclosure so that the Township may 

address any issue immediately." Counsel also requested that Loesch describe 

the "form of protection [he was] requesting and the nature of the 
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A-5028-17T2

threats/harassment [he had] experienced." Counsel then advised Loesch to call 

the police if he felt threatened. Counsel also advised that Loesch's complaints 

had been forwarded to the Ocean County Prosecutor's Office. 

A few weeks later, Loesch sent another email to Township Counsel, 

requesting advice concerning his ability as Township Business Administrator 

"to set the duties and expectations for the code enforcement 

[officer] . . . position." In that email, Loesch stated, "everything has calmed 

down with respect to the other [Kehm]/[Gormley] issues." Nonetheless, he 

stated that he suspected Fromosky, as a Code Enforcement Officer, would likely 

attempt to "defend[] himself from retaliation by me" and, thus, Loesch feared 

his actions would be examined "through a magnifying glass." He explained he 

was concerned about future conflicts between himself, Fromosky, Gormley, and 

Kehm, but stated that he was "not looking [to] do anything at all, no actions or 

anything." Instead, he explained he was only seeking advice regarding how to

proceed if something should happen in the future. 

Township Counsel responded that day, advising Loesch that, as the 

Township Business Administrator, he was tasked with supervising Fromosky 

and had "the authority to discipline" him if he refused to perform his assigned 

duties. 
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Several months later, in early-August 2015, Buzby again contacted the 

Ocean County Prosecutor and copied the Mayor and Loesch on that 

communication. He explained he was writing to provide additional information 

concerning "possible retaliation" against himself and a third Township employee 

for reporting Kehm's "possible misconduct." Buzby stated he had been informed 

that "'they' had somehow gotten the letter of referral and now were 'quote, 

looking to get even.'" In making that claim, Buzby did not state who "they"

were. 

Buzby also reported an incident that had occurred that past weekend 

between Fromosky and William Allen, another Township employee (the AllenFromosky incident). According to Buzby, Allen and Fromosky were attending 

a wedding reception when Fromosky approached Allen and claimed that Buzby 

"had, 'thrown him (Bill Allen) under the bus' by including information from him 

in [the] letter to [the prosecutor] about John Kehm." Fromosky then informed 

Allen that he was a former state trooper who "had many contacts in [the Ocean 

County Prosecutor's Office], one of whom allegedly provided the letter" in 

which Buzby had reported Kehm's misconduct. 

Buzby informed the prosecutor that he found the Allen-Fromosky incident

troubling for two reasons. First, he believed it was inappropriate for Fromosky
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A-5028-17T2

to know that Buzby had reported Kehm for potential misconduct since Kehm 

had "fought so hard" to safeguard Fromosky's employment with the Township. 

Second, he maintained the incident showed that Fromosky had threatened a 

Township employee whom he incorrectly believed was involved in reporting 

Kehm's misconduct. Accordingly, Buzby feared Fromosky's "threats" would 

"get[] even worse."

After Buzby reported the Allen-Fromosky incident, Allen, himself, 

submitted a complaint and letter to the Township, which detailed the incident. 

In response, the Township had outside counsel, Robert Greitz, investigate the 

incident. As part of his investigation, Greitz interviewed several Township 

employees, including Allen, Fromosky, and Buzby. Greitz prepared a final 

report, dated September 20, 2015, in which he concluded, "the facts in this 

situation do not demonstrate Fromosky took any retaliatory action against Allen. 

Further, there is no evidence to support the assertion [that] Fromosky violated 

the Township's Harassment policy." 

During the Allen-Fromosky investigation, Buzby made a complaint 

directly to Greitz, alleging that Fromosky had lied about Buzby during his 

interview with Greitz. Thereafter, on December 28, 2015, Buzby sent an email

to the Mayor and Loesch, stating the Township had never addressed his charge 
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A-5028-17T2

against Fromosky for lying. He also wrote that Kehm and Fromosky were 

engaged in a conspiracy "that involve[d] Fromosky reporting [Buzby] falsely to 

the attorney general[,]" and that Kehm was "solicit[ing] and receiv[ing] advice 

from Fromosky on how to fire . . . Loesch, apparently for nothing more than 

having reported Kehm to [the Mayor], the [T]ownship attorney and, ultimately, 

the county prosecutor through [Buzby]." Buzby further alleged that Fromosky

had committed these retaliatory acts "at work, on his [T]ownship email and on 

a [T]ownship computer." 

In addition to emailing the Mayor, Buzby sent another letter to the Ocean 

County Prosecutor. He wrote that "[s]ince the Allen matter and the issuance of 

the [Greitz] report, an uninterrupted string of harassment and interference has 

continued." He informed the prosecutor that Kehm had shared confidential 

information in the workplace and Fromosky had filed a meritless complaint 

"against Loesch and [Buzby] claiming that [Buzby] had used Allen as a proxy 

and Loesch had helped." Buzby went on to explain that he had recently learned

Fromosky had filed a complaint with the Attorney General's Office, which 

contained false statements about Buzby. He then alleged that Fromosky 

submitted those false statements "to help . . . Kehm." 
10 A-5028-17T2

Buzby explained he had learned the information he was reporting from 

Loesch, who had located three emails between Kehm and Fromosky. According 

to Buzby, the first email was from Fromosky to Kehm, with a subject line 

reading "done," that contained a draft of Fromosky's complaint to the Attorney 

General's Office. Buzby alleged that in the second email, Fromosky was "using 

a former relationship with a governor's aide to attempt to influence the [Attorney 

General] to investigate" his September 2015 complaint. Lastly, Buzby 

contended the third email contained information from Fromosky to Kehm 

regarding "how to fire" Loesch. Buzby ended his letter to the prosecutor 

similarly to his email to the mayor, by asserting that Fromosky had sent the three

emails while "at work, during work hours and . . . on a [T]ownship computer." 

To support those claims, Buzby attached a copy of the email allegedly sent by 

Fromosky to Kehm that addressed how to remove Loesch from his Township 

position. 

In September 2015, Buzby submitted a voucher to the Township 

Committee seeking reimbursement for cell phone expenses. The committee 

approved that request and a check was issued the following day. Shortly 

thereafter, Gormley contacted Township Counsel and arranged for an off-agenda 

resolution, at which he requested the appointment of a special investigator to 
11 A-5028-17T2

investigate Buzby's cell phone reimbursement. Township Counsel was 

conflicted from conducting the investigation, thus, in December 2015, the 

Township Committee appointed conflict counsel to conduct the investigation. 

In June 2016, conflict counsel issued a report on the investigation into 

Buzby's request for cell phone expense reimbursement. According to the 

certifications submitted by Buzby and Loesch, that report concluded that Buzby 

had not violated any rule or law or otherwise acted wrongfully. One month later, 

in letters dated August 2, 2016, the Township notified Buzby and Loesch that 

their employment would be discussed in an executive session on August 11, 

2016. Specifically, the letters advised that "the governing body will discuss the 

report and recommendations" of conflict counsel and advised that Buzby's and 

Loesch's "employment rights may be adversely affected." 

According to Township Committee meeting notes, conflict counsel

presented the findings of his report on September 8, 2016. Thereafter, the

committee members voted to dismiss the cases against Loesch and Buzby. Three 

committee members abstained from voting on the motion to dismiss, including 

Gormley and Kehm. 

On March 11, 2016, Tracey Habich, a Township employee, submitted a 

complaint to the Township alleging that on March 10, 2016, she was speaking 
12 A-5028-17T2

with a coworker when Fromosky joined their conversation and stated that 

another Township employee "was hired under the dispatch budget but is not in 

dispatch because she is 'under the Chief's desk.'" In her complaint, Habich 

explained she was reporting Fromosky's statement as "slanderous talk" about 

Buzby and the other employee. 

A few days later, Buzby sent an email to the Ocean County Prosecutor, 

attaching a copy of the complaint made by Habich, denying Fromosky's 

allegations, and requesting that the prosecutor's office conduct an internal 

investigation into the matter. Buzby also reported that both Kehm and Fromosky 

had been observed slowly driving by his property, presumably looking for 

potential zoning violations. Buzby went on to claim that Fromosky had 

repeatedly abused him by (1) filing "a completely false complaint" with the 

Attorney General's Office, (2) accusing him of mishandling an incident in 2012,

(3) falsely informing Allen that Buzby had cited him for information in the letter 

reporting Kehm's potential misconduct, and (4) informing "several members of 

[the police] department that [Buzby] was, in effect, incompetent and would be 

fired." 

The Township conducted an investigation and held a hearing on 

Fromosky's comment to Habich. In a report dated December 28, 2016, the 
13 A-5028-17T2

hearing officer found there was no evidence establishing "Fromosky's alleged 

statement was intended to be sexual in nature or meant to be sexual harassment 

or general harassment . . . as defined in the [Township] Employee Handbook." 

As such, the hearing officer found Fromosky "not guilty" on a number of 

disciplinary charges filed against him. Nonetheless, the hearing officer 

determined Fromosky had violated the Township's Employee Handbook Code 

of Conduct by engaging in conduct unbecoming a public employee based on his 

admission that he had referred to Buzby as a "Pumpkinhead" and had previously 

"engag[ed] in conversation or jokes of a sexual nature to others" while working 

for the Township. 

On September 13, 2016, Buzby contacted the police to report that Kehm 

was harassing him. Specifically, he informed the investigating detective that a 

friend had received a text message from an unknown number with a link to a 

webpage hosting a petition titled "Resignation of Chief Richard Buzby." He

then reported that the telephone number that had sent the text message belonged 

to Kehm. Buzby also reported that he believed Kehm had sent the text message 

to harass and intimidate him for his role in investigating the claim that Kehm 

had unlawfully received a ninety-percent property tax reduction. 
14 A-5028-17T2

While Buzby and Loesch were making complaints against Fromosky, 

Fromosky was making his own complaints against Buzby and Loesch. For 

example, in September 2015, Fromosky sent a tip to the New Jersey Attorney 

General's Office alleging that Buzby had committed "[o]fficial [m]isconduct" 

and requesting he be investigated. That same month, Fromosky submitted a 

grievance to the Township, detailing several alleged violations of Township 

policies committed by Loesch. A year later, on September 1, 2016, Fromosky 

submitted a complaint to the Township, alleging Buzby and Loesch had 

repeatedly conspired and released false information about him to intimidate and 

threaten him. 

The claims being made by Buzby, Loesch, and Fromosky eventually lead 

to formal litigation in 2017. On March 8, 2017, Fromosky filed suit against the 

Township, Buzby, Loesch, the former Township Mayor, and one other 

Township official. In his complaint Fromosky alleged violations of the 

Conscientious Employee Protection Act (CEPA) and the New Jersey Civil 

Rights Act (NJCRA). 

On May 31, 2017, Buzby filed an answer, counterclaims, and a third-party 

complaint. Two days later, Loesch also filed an answer, counterclaims, and a 

third-party complaint. Buzby's and Loesch's counterclaims and third-party 
15 A-5028-17T2

complaints were nearly identical. In their counterclaims, they both alleged two 

counts against Fromosky: (1) slander, defamation, and libel per se; and (2) 

malicious abuse of process. In their third-party complaints, they both named the 

Township, Fromosky, Kehm, and Gormley as third-party defendants and alleged 

negligence against the Township; gross negligence against Gormley; civil 

conspiracy and unlawful retaliation under CEPA against Kehm and Fromosky; 

and violations of the NJCRA against Kehm, Fromosky, Gormley, and the 

Township. Buzby also alleged malicious abuse of process against Kehm and 

Gormley. 

On October 12, 2017, before discovery was complete, Fromosky filed a 

motion for summary judgment to dismiss Buzby's and Loesch's counterclaims 

and third-party complaints. Approximately two weeks later, the Township, 

Gormley, and Kehm filed a motion to dismiss the third-party complaints for 

failure to state a claim pursuant to Rule 4:6-2(e).

On February 2, 2018, after hearing argument from counsel, the trial court 

orally granted summary judgment to Fromosky, placing its reasons for that 

decision on the record. Later that day, the court entered a written order 

memorializing its decision and dismissing with prejudice the counterclaims and 

third-party claims filed against Fromosky. The court reasoned that further 
16 A-5028-17T2

discovery would not serve to substantiate any of Buzby's or Loesch's 

counterclaims or third-party claims, that the tort claims were barred because no 

tort claim notice had been timely filed, that there was no proof of publication to 

a third party to sustain the slander and libel claims, that the abuse of process 

claims could not be substantiated because there was a lack of illegitimacy and 

coercion, that the statute of limitations barred all but one of the CEPA claims, 

and that there was insufficient evidence to rule in favor of Loesch and Buzby on 

the CEPA claims.

Buzby and Loesch moved for reconsideration of that summary judgment 

decision and filed two motions seeking leave to amend their third-party 

complaint and to file an amended third-party complaint as to Fromosky. On 

March 29, 2018, the court heard oral argument and decided four motions. First, 

the court granted Gormley, Kehm, and the Township's motion to dismiss the 

third-party complaints for failure to state a cause of action. Second, the court 

denied Buzby and Loesch's motion to amend their third-party complaints as to 

all third-party defendants. Third, the court denied Buzby and Loesch's motion 

to amend their third-party complaints as to Fromosky. Fourth, the court denied 

the motion for reconsideration of the order granting Fromosky summary 
17 A-5028-17T2

judgment. The court then entered four corresponding orders memorializing 

those decisions. 

Thereafter, on June 26, 2018, a stipulation of dismissal was entered by

Fromosky, the Township, Loesch, Buzby, Kobryn, and Dave Schlick, dismissing

with prejudice Fromosky's claims and noting those claims had been "amicably 

adjusted by and between the parties . . . ." 

Buzby and Loesch then filed a notice of appeal challenging the February 

2, 2018 summary judgment order, and the four orders entered on March 29, 

2018. 

II.

On appeal, Buzby and Loesch make six arguments contending that the 

trial court erred by (1) not giving them favorable inferences when it granted 

summary judgment to Fromosky; (2) granting summary judgment to Fromosky; 

(3) granting the third-party defendants' motion to dismiss for failure to state a 

cause of action; (4) denying their motion for reconsideration; (5) denying their 

motion for leave to amend the third-party complaints; and (6) denying their 

request to equitably estop the third-party defendants from asserting the notice of 

tort claim as a defense. Having considered these arguments, we discern no error 

warranting a reversal of any of the five orders being appealed.
18 A-5028-17T2

We will analyze Buzby and Loesch's arguments by looking at the three 

specific types of claims they asserted; those are tort claims, claims under the 

NJCRA, and claims under CEPA. Accordingly, we will examine each of those 

three types of claims and also analyze whether the trial court erred in denying 

the motions to amend those claims.

A. The Tort Claims

Loesch and Buzby made various tort claims against the Township, 

Fromosky, Kehm, and Gormley. Specifically, they asserted claims of slander, 

defamation, libel per se, negligence, gross negligence, civil conspiracy, and 

malicious abuse of process. The trial court dimissed those claims finding that 

no tort claim notice had been timely filed. 

A trial court's interpretation and application of the Tort Claims Act (TCA)

is a legal determination that we review de novo. See Jones v. Morey's Pier, Inc., 

230 N.J. 142, 153 (2017); Parsons v. Mullica Twp. Bd. of Educ., 440 N.J. Super. 

79, 83 (App. Div. 2015) ("'Our review of the meaning of a statute is de novo,

and we owe no deference to the interpretative conclusions reached by the trial 

court . . . .'" (quoting Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 

558, 564 (2012))).
19 A-5028-17T2

The TCA "is the statutory mechanism through which our Legislature 

effected a waiver of sovereign immunity." D.D. v. Univ. of Med. & Dentistry 

of N.J., 213 N.J. 130, 133 (2013). As such, the TCA enumerates limited 

circumstances when a plaintiff may bring tort claims against public entities and 

public employees. Id. at 133-34. The "'guiding principle'" of the TCA is that 

"'immunity from tort liability is the general rule and liability is the exception.'" 

Jones, 230 N.J. at 154 (quoting D.D., 213 N.J. at 134).

The TCA "establishes the procedures by which claims may be brought 

. . . ." Beauchamp v. Amedio, 164 N.J. 111, 116 (2000). One of the procedures 

the TCA imposes is a requirement to timely file a notice of claim. Jones, 230 

N.J. at 154, 157-58 (explaining the TCA's notice requirements apply to a 

plaintiff's claim, a defendant's cross-claim, and a third-party claim against a 

public entity); see also N.J.S.A. 59:8-1 to -11. The notice of claim must comply 

with a number of requirements, including (1) when it has to be filed, N.J.S.A. 

59:8-8; (2) what information it must contain, N.J.S.A. 59:8-4; and (3) where it 

has to be filed, N.J.S.A. 59:8-7. The TCA's notice requirements are to be strictly 

construed. See McDade v. Siazon, 208 N.J. 463, 474, 476 (2011).

The Township is a municipal corporation located in Ocean County that 

qualifies as a "public entity" under the TCA's definition. See N.J.S.A. 59:1-3 
20 A-5028-17T2

(defining "public entity" to include "any county, municipality, district . . . and 

any other political subdivision or public body in the State"). Moreover, the TCA 

and its notice requirements apply to public employees and officials in both nonintentional and intentional tort actions. Velez v. City of Jersey City, 180 N.J. 

284, 292-93 (2004) (citing Bonitsis v. N.J. Inst. of Tech., 363 N.J. Super. 505, 

519-21 (App. Div. 2003)); Ptaszynski v. Uwaneme, 371 N.J. Super. 333, 344 

(App. Div. 2004). Nonetheless, "there must be some nexus between the wrong 

that is complained of and the defendant's public employment in order to mandate 

that a notice of claim be filed before suit may be instituted." Gazzillo v. Grieb,

398 N.J. Super. 259, 264 (App. Div. 2008). 

A review of Buzby's and Loech's counterclaims and third-party 

complaints reveals that the alleged tortious conduct in this case is inseparable 

from the individual defendants' public employment or actions. As such, the 

TCA applies and Buzby and Loesch were required to file a notice of claim before 

pursuing tort claims against the Township or its employees. See N.J.S.A. 59:8-

3. Neither Buzby nor Loesch ever filed a notice of claim. Accordingly, the 

motion court correctly dismissed the tort claims.

Similarly, the court did not abuse its discretion in denying Buzby and 

Loesch's motions to amend their third-party complaints to include additional tort 
21 A-5028-17T2

claims because adding those claims would be futile. "'Rule 4:9-1 requires that 

motions for leave to amend be granted liberally . . . .'" Notte v. Merchs. Mut. 

Ins. Co., 185 N.J. 490, 501 (2006) (quoting Kernan v. One Washington Park 

Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998)). A court's decision on a 

motion to file an amended complaint "'always rests in the court's sound 

discretion.'" Ibid. "That exercise of discretion requires a two-step process: 

whether the non-moving party will be prejudiced, and whether granting the 

amendment would nonetheless be futile." Ibid. "An abuse of discretion occurs 

when a decision was 'made without a rational explanation, inexplicably departed 

from established policies, or rested on an impermissible basis.'" Wear v. 

Selective Ins. Co., 455 N.J. Super. 440, 459 (App. Div. 2018) (quoting Flagg v. 

Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

Here, allowing Buzby and Loesch to include additional tort claims would 

be futile as those claims would be dismissed based on the failure to file a notice 

of tort claim. Furthermore, the court did not abuse its discretion in denying

Buzby and Loesch's motions to amend their third-party complaints to include 

claims of unprofessional conduct in violation of N.J.S.A. 2A:47A-1. That 

statutory cause of action is also subject to the TCA's requirements, including the 
22 A-5028-17T2

notice provisions. See Thigpen v. City of E. Orange, 408 N.J. Super. 331, 343-

44 (App. Div. 2009).

Buzby and Loesch argue that the Township and its employees should be 

"equitably estopped" from asserting the lack of a notice as a defense, contending

"the Township was clearly placed on notice." The doctrine of equitable estoppel 

"is designed to prevent injustice by not permitting a party to repudiate a course 

of action on which another party has relied to his detriment." Knorr v. Smeal, 

178 N.J. 169, 178 (2003) (citing Mattia v. N. Ins. Co. of N.Y., 35 N.J. Super. 

503, 510 (App. Div. 1955)). "To establish equitable estoppel, parties must prove 

that an opposing party 'engaged in conduct, either intentionally or under 

circumstances that induced reliance, and that [they] acted or changed their 

position to their detriment.'" Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 

189 (2013) (alteration in original) (quoting Knorr, 178 N.J. at 178). "The 

doctrine is 'rarely invoked against a governmental entity . . . . Nonetheless 

equitable considerations are relevant to assessing governmental conduct, and 

may be invoked to prevent manifest injustice.'" McDade, 208 N.J. at 480 

(quoting Cty. of Morris v. Fauver, 153 N.J. 80, 104 (1998)).

Buzby and Loesch have not demonstrated detrimental reliance based on 

the Township's or its employees' acts or omissions. There is no evidence that 
23 A-5028-17T2

the Township or its employees made any representations or engaged in any 

conduct suggesting they were waiving the defense of failure to file a notice of 

tort claim. See, e.g., McDade, 208 N.J. at 480-81. Instead, in Fromosky's July 

24, 2017 answers to the counterclaims and third-party complaints, he asserted 

as a defense that "[t]he third party complaint and counterclaim is barred by 

virtue of the notice provisions and damage provisions of the New Jersey Tort

Claims Act." 

B. The NJCRA Claims

In 2004, the Legislature adopted the NJCRA "'for the broad purpose of 

assuring a state law cause of action for violations of state and federal 

constitutional rights[,] and to fill any gaps in state statutory anti-discrimination 

protection.'" Ramos v. Flowers, 429 N.J. Super. 13, 21 (App. Div. 2012) 

(quoting Owens v. Feigin, 194 N.J. 607, 611 (2008)). The NJCRA is modeled 

after the federal Civil Rights Act (CRA), 42 U.S.C. § 1983, and provides in 

relevant part:

Any person who has been deprived of any substantive 

due process or equal protection rights, privileges or 

immunities secured by the Constitution or laws of the 

United States, or any substantive rights, privileges or 

immunities secured by the Constitution or laws of this 

State, or whose exercise or enjoyment of those 

substantive rights, privileges or immunities has been 

interfered with or attempted to be interfered with, by 
24 A-5028-17T2

threats, intimidation or coercion by a person acting 

under color of law, may bring a civil action for damages 

and for injunctive or other appropriate relief.

[N.J.S.A. 10:6-2(c).] 

See also Filgueiras v. Newark Pub. Sch., 426 N.J. Super. 449, 468 (App. Div. 

2012). Accordingly, the NJCRA "is a means of vindicating substantive rights 

and is not a source of rights itself." Gormley v. Wood-El, 218 N.J. 72, 98 (2014).

"The elements of a substantive due process claim under the [NJCRA] are 

the same as those [for a federal CRA claim] under § 1983." Filgueiras, 426 N.J. 

Super. at 468 (citing Rezem Family Assocs., LP v. Borough of Millstone, 423 

N.J. Super. 103, 115 (App. Div. 2011)). Namely, a party must first "'identify 

the state actor, the person acting under color of law, that has caused the alleged 

deprivation.'" Ibid. (internal quotations omitted) (quoting Rivkin v. Dover Twp. 

Rent Leveling Bd., 143 N.J. 352, 363 (1996)). Next, the party needs to "'identify 

a right, privilege or immunity secured to the'" party by the constitutions of the 

state and federal governments or by state and federal laws. Ibid. (internal 

quotations omitted) (quoting 42 U.S.C. § 1983). Thus, to establish a cause of 

action under either act, the second element requires a party to "allege a specific 

constitutional violation." Matthews v. N.J. Inst. of Tech, 717 F. Supp. 2d 447, 

452 (D.N.J. 2010) (citing N.J.S.A. 10:6-2(c)).
25 A-5028-17T2

Buzby's and Loesch's original third-party complaints failed to identify any 

federal or state constitutional "rights, privileges, or immunities" that had been 

impacted. Instead, they presented their NJCRA claims in general terms, by 

claiming they were denied due process and equal protection under New Jersey 

law. Moreover, in their appellate brief, they address the NJCRA claims only as 

they apply to Fromosky and they continue to omit an allegation of a specific 

violation. Without alleging a specific right that has been infringed, Buzby and 

Loesch cannot bring a civil action under the NJCRA. Accordingly, the motion 

court did not err in dismissing the NJCRA claims. See Ibid.

Moreover, the trial court did not abuse its discretion in denying the 

motions to amend the third-party complaints to include claims under the federal 

CRA and to "more precisely articulate" the NJCRA claims. In the proposed 

amended third-party complaint, neither the federal CRA claims nor the amended 

NJCRA claims alleged a specific constitutional violation. As such, the amended 

third-party complaint did not properly articulate a cause of action under the 

NJCRA or the federal CRA. See Ibid. Thus, the amendment would be futile.

C. The CEPA Claims

CEPA is remedial legislation designed "'to protect and encourage 

employees to report illegal or unethical workplace activities and to discourage 
26 A-5028-17T2

public and private sector employers from engaging in such conduct.'" Sauter v. 

Colts Neck Volunteer Fire Co. No. 2, 451 N.J. Super. 581, 588 (App. Div. 2017) 

(quoting Mehlman v. Mobil Oil Corp., 153 N.J. 163, 179 (1998)). Accordingly, 

the statute "shields an employee who objects to, or reports, employer conduct 

that the employee reasonably believes to contravene the legal and ethical 

standards that govern the employer's activities." Hitesman v. Bridgeway, Inc., 

218 N.J. 8, 27 (2014); see also N.J.S.A. 34:19-3(a), (c).

The statute prohibits an employer from retaliating "against an employee 

who discloses, threatens to disclose, or refuses to participate in an activity of the 

employer 'that the employee reasonably believes is in violation of a law, or a 

rule or regulation promulgated pursuant to law.'" Sauter, 451 N.J. Super. at 587 

(quoting N.J.S.A. 34:19-2 to -3). A plaintiff alleging unlawful retaliation under 

CEPA must establish that

(1) he or she reasonably believed that his or her 

employer's conduct was violating either a law, rule, or 

regulation promulgated pursuant to law, or a clear 

mandate of public policy; 

(2) he or she performed a "whistle-blowing" activity 

described in N.J.S.A. 34:19-3(c); 

(3) an adverse employment action was taken against 

him or her; and 
27 A-5028-17T2

(4) a causal connection exists between the whistleblowing activity and the adverse employment action.

[Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015) 

(quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 

(2003)); accord Puglia v. Elk Pipeline, Inc., 226 N.J. 

258, 280 (2016).]

The statute of limitations for filing a CEPA claim is one year. N.J.S.A. 

34:19-5. The accrual dates for discrete acts are the dates upon which the 

retaliatory or discriminatory events occurred. Roa v. Roa, 200 N.J. 555, 567 

(2010) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 

(2002)). "A plaintiff need not know with certainty that there is a factual basis 

for a claim under CEPA for the one year limitation period to be triggered; it is 

sufficient that he [or she] should have discovered that he [or she] may have a 

basis for a claim." Villalobos v. Fava, 342 N.J. Super. 38, 49 (App. Div. 2001).

When a claimant alleges "a pattern or series of acts, any one of which may 

not be actionable as a discrete act, but when viewed cumulatively constitute a 

hostile work environment[,]" the cause of action accrues "on the date on which 

the last act occurred . . . ." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 

1, 21 (2002). Critically, however, this "continuing violation theory cannot be 

applied to sweep in an otherwise time-barred discrete act." Roa, 200 N.J. at 569. 

Indeed, our Supreme Court has explained that
28 A-5028-17T2

[t]he continuing violation theory was developed to 

allow for the aggregation of acts, each of which, in 

itself, might not have alerted the employee of the 

existence of a claim, but which together show a pattern 

of [retaliation]. In those circumstances, the last act is 

said to sweep in otherwise untimely prior non-discrete 

acts.

What the doctrine does not permit is the aggregation of 

discrete [retaliatory] acts for the purpose of reviving an 

untimely act of [retaliation] that the victim knew or 

should have known was actionable. Each such 

"discrete [retaliatory] act starts a new clock for filing 

charges alleging that act."

[Ibid. (quoting Morgan, 536 U.S. at 113).]

In their original third-party complaints, Buzby and Loesch alleged 

discrete retaliatory acts committed by Fromosky and Kehm. Specifically, they 

alleged that Fromosky had submitted several complaints to the Township, the 

Attorney General's Office, and the Governor's Office, in which he falsely alleged 

that Buzby and Loesch had committed misconduct. The third-party complaints 

articulated the dates of each alleged false complaint of misconduct filed by 

Fromosky. Concerning Kehm, Buzby and Loesch alleged that he had sent an 

email in early-May 2016, in which he falsely alleged that Buzby had been 

harassing him and committing retaliatory acts against him. 
29 A-5028-17T2

The allegations before May 30, 2016, are time barred. Moreover, neither 

Buzby nor Loesch have shown any adverse employment action caused by the 

actions of Fromosky or Kehm. Buzby filed his third-party complaint on May 31, 

2017, and Loesch filed his third-party complaint on June 2, 2017. Thus, the only alleged 

retaliatory act committed by Fromosky within the limitations period was his filing of a

complaint with the Township on September 1, 2016, in which he alleged Buzby and 

Loesch had conspired and released false information about him to intimidate and threaten 

him. The trial court dismissed the CEPA claim against Fromosky after finding the 

September 1, 2016 complaint did not constitute actionable retaliatory conduct under 

CEPA. We agree.

CEPA defines retaliation as "the discharge, suspension[,] or demotion of 

an employee, or other adverse employment action taken against an employee in 

the terms and conditions of employment." N.J.S.A. 34:19-2(e). Nonetheless, 

"the universe of possible retaliatory actions under CEPA is greater than 

discharge, suspension, and demotion[,]" as evidenced by the statute's express 

inclusion of "'other adverse employment action taken against an employee in the 

terms and conditions of employment.'" Donelson v. DuPont Chambers Works, 

206 N.J. 243, 257 (2011) (quoting N.J.S.A. 34:19-2(e)). Nevertheless, for an 

action to be adverse, it must be completed, and it must have had a significantly 
30 A-5028-17T2

negative effect on the employee's terms and conditions of employment. Beasley 

v. Passaic Cty., 377 N.J. Super. 585, 606-08 (App. Div. 2005) (citations 

omitted). That is, "not every employment action that makes an employee 

unhappy constitutes 'an actionable adverse action.'" Nardello v. Twp. of 

Voorhees, 377 N.J. Super. 428, 434 (App. Div. 2005) (quoting Cokus v. Bristol 

Myers Squibb Co., 362 N.J. Super. 366, 378 (Law Div. 2002), aff'd, 362 N.J. 

Super. 245 (App. Div. 2003)). 

Here, there is no evidence demonstrating that the September 1, 2016 

complaint had any effect on the terms and conditions of Buzby's or Loesch's 

employment, let alone a significant, negative effect. Buzby and Loesch contend 

the grant of summary judgment was inappropriate because discovery was just 

beginning when Fromosky filed his motion. "Although Rule 4:46-1 permits a 

party to move for summary judgment before the close of discovery, '[g]enerally, 

summary judgment is inappropriate prior to the completion of discovery.'" 

Branch v. Cream-O-Land Dairy, 459 N.J. Super. 529, 541 (App. Div. 2019) 

(alteration in original) (quoting Wellington v. Estate of Wellington, 359 N.J. 

Super. 484, 496 (App. Div. 2003)). Nonetheless, "[a] party opposing a motion 

for summary judgment on the grounds that discovery is incomplete . . . must

'demonstrate with some degree of particularity the likelihood that further 
31 A-5028-17T2

discovery will supply the missing elements of the cause of action.'" Ibid.

(quoting Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015)). 

Buzby and Loesch have provided no explanation regarding how further 

discovery would supply evidence showing the September 1, 2016 complaint had 

a significant, negative effect on the terms and conditions of their employment, 

nor have they identified any discovery essential to show the alleged false 

complaint rose to the level of an adverse employment action. See DepoLink 

Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 341-

42 (App. Div. 2013). Accordingly, that discovery was just beginning, on its 

own, does not show summary judgment was inappropriate.

Finally, the trial court correctly concluded that the proposed amended 

CEPA claims were also legally deficient. Buzby and Loesch sought to add 

allegations that text messages sent by Kehm in September 2016 and Kehm and 

Gormley's communications with conflict counsel concerning the investigation 

into Buzby's cell phone reimbursement, which concluded in June 2016, were 

retaliatory actions under CEPA. In the proposed CEPA amendments, however, 

Buzby and Loesch do not identify any adverse employment action against them 

resulting from these additional allegations. Indeed, the record establishes that 

there was no change in their employment status or the conditions of their 
32 A-5028-17T2

employment. Accordingly, the proposed amendments would have been futile 

and the trial court correctly denied the motion to amend the CEPA claims.

To the extent that we have not addressed other arguments raised by Buzby 

and Loesch, it is because we deem those arguments to lack sufficient merit to 

warrant a discussion in this written opinion. See R. 2:11-3(e)(1)(E).

Affirmed.