                        NOT FOR PUBLICATION WITHOUT THE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.




                                              SUPERIOR COURT OF NEW JERSEY
                                              APPELLATE DIVISION
                                              DOCKET NO. A-2472-15T3

MICHAEL DANIELE,

        Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, THE
DIVISION OF STATE POLICE
OF THE STATE OF NEW JERSEY,
DIVISION OF LAW AND PUBLIC
SAFETY,

     Defendants-Respondents.
____________________________________

              Submitted May 16, 2017 – Decided October 17, 2017

              Before Judges Espinosa, Suter, and Grall.

              On appeal from the Superior Court of New
              Jersey, Law Division, Mercer County, Docket
              No. L-0807-12.

              George T. Daggett, attorney for appellant.

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Lisa A. Puglisi,
              Assistant Attorney General, of counsel; Robert
              P. Preuss, Deputy Attorney General, on the
              brief).

        The opinion of the court was delivered by

SUTER, J.A.D.
       Plaintiff Michael Daniele appeals the March 28, 2016 order,

denying reconsideration of the dismissal, with prejudice, of his

complaint filed under the Conscientious Employee Protection Act

(CEPA), N.J.S.A. 34:19-1 to -14.             We reverse and remand.         The

complaint expressly referenced plaintiff's previously successful

CEPA   action   against   the   same       defendant   and   alleged   adverse

employment action causally related to the prior complaint. Through

reference to the earlier complaint, the new complaint stated a

claim under CEPA and should not have been dismissed under Rule

4:6-2(e).

       In 2007, plaintiff filed a CEPA complaint (the 2007 complaint)

against the State Police and the State of New Jersey (defendants).

Plaintiff alleged in that complaint that he alerted his superior

officers about dog handlers in the K-9 unit, to which he was

assigned, who were being trained by unqualified personnel in

violation of certain required guidelines.               He was transferred

thereafter to the recruiting unit for which he had no experience.

The 2007 complaint alleged the transfer and his subsequent lack

of promotion violated CEPA.       A jury returned a favorable verdict

on the 2007 complaint, awarding compensatory damages.

       In April 2012, plaintiff filed another CEPA complaint (the

2012 complaint) against the same defendants, seeking damages.

Plaintiff alleged he was a member of the State Police and that on

                                       2                               A-2472-15T3
October 12, 2010, he obtained a jury verdict in his favor against

the State Police based on a violation of CEPA.             The 2012 complaint

alleged that because the 2007 complaint was successful, he was not

being "appropriately promoted" and was being punished for bringing

the 2007 complaint.      He alleged defendants' current action in not

promoting him was "in itself a CEPA violation."

       The case had multiple trial listings and defendants' motion

for summary judgment was denied.             On September 14, 2015, the case

was assigned out for trial.         The trial court raised whether the

2012 complaint adequately pled a cause of action under CEPA.                     The

court questioned whether the 2012 complaint's reference to the

2007    complaint,     without    detailing         specific   whistle-blowing

activity, sufficed to state a claim under CEPA.                After discussing

the issues, the court adjourned the case until the next day to

permit the parties to research whether legal authority supported

plaintiff's contention that reference to the 2007 complaint and

judgment alone qualified as whistleblowing for which retaliation

was    impermissible    under    CEPA.        The   parties    sent   the     court

additional submissions.

        The next day, following oral argument, the trial court

dismissed plaintiff's 2012 complaint with prejudice under Rule

4:6-2(e) for failure to state a claim upon which relief can be

granted.    The court found no supporting authority for plaintiff's

                                         3                                  A-2472-15T3
claim.    It summarized CEPA as "prohibiting an employer from doing

a retaliatory act . . . if the employee discloses or threatens to

disclose to a supervisor . . . policies or practices . . . ,"

"provides information to or testifies before a public body," or

"objects or refuses to participate in activities . . . which the

employee reasonably believes are in violation of the law."                 The

court observed that CEPA "talks about whistleblowing."             "The Act

does not talk about the filing of a complaint . . . ."            That would

be "protected speech under the Constitution."         However, the court

stated "we're simply talking about a judgment and the aftermath

as perceived by the plaintiff."         The court found no way to amend

the complaint, holding there was no "construct that the complaint

is sufficient to meet the standard as necessary to give rise and

to give a basis for a CEPA action in this court."

     Plaintiff's motion for reconsideration was denied in March

2016.     The court concluded the 2012 complaint "simply [did not]

pass muster in terms of stating a claim upon which relief could

be granted."

     On    appeal,   plaintiff   contends   the   trial   court    erred    by

dismissing the 2012 complaint with prejudice because it stated a

valid claim under CEPA and under the Petition Clause of the First

Amendment, U.S. Const. amend. I (Petition Clause).            He contends

that dismissing the 2012 complaint on the trial date constituted

                                    4                                A-2472-15T3
a   due    process    violation.          We       agree   that   the   2012   complaint

adequately stated a claim for relief under CEPA and should not

have been dismissed under Rule 4:6-2(e).                     We reverse and remand.

      We    review     de    novo   the    challenged         order     that   dismissed

plaintiff's complaint for failure to state a claim for which relief

can be granted, applying the same legal standard as the trial

court.      NL Industries, Inc. v. State, 442 N.J. Super. 403, 405

(App. Div. 2015); see also Rezem Family Assocs., LP v. Borough of

Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied,

208 N.J. 368 (2011).           A motion for failure to state a claim must

be denied if, giving plaintiff the benefit of all his allegations

and all favorable inferences, a cause of action has been alleged

in the complaint.           Printing Mart-Morristown v. Sharp Elec. Corp.,

116 N.J. 739, 746 (1989).           "Ordinarily a dismissal for failure to

state a claim is without prejudice."                   Pressler & Verniero, Current

N.J. Court Rules, comment 4.1.1 on R. 4:6-2 (2017).

      CEPA    is     remedial    legislation          that   is   to    be   interpreted

liberally.      Dzwonar v. McDevitt, 177 N.J. 451, 463 (2003).                          To

establish a prima facie case under CEPA, a plaintiff must prove

each of the following:

             (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;


                                               5                                 A-2472-15T3
         (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

         (4) a causal connection exists between the
         whistle-blowing activity and the adverse
         employment action.

         [Lippman v. Ethicon, Inc., 222 N.J. 362, 380
         (2015) (citing Dzwonar, supra, 177 N.J. at
         462).]

"[W]histleblowing    activity      is   protected   from    employer

retaliation."   Id. at 378.     CEPA prohibits employers from taking

"any retaliatory action" against an employee who:

         a. Discloses, or threatens to disclose to a
         supervisor or to a public body an activity,
         policy or practice of the employer, or another
         employer, with whom there is a business
         relationship, that the employee reasonably
         believes:

         (1) is in violation of a law, or a rule or
         regulation promulgated pursuant to law . . . ;
         or

         (2) is fraudulent or criminal . . . ;

         b. Provides information to, or testifies
         before,   any  public  body  conducting  an
         investigation, hearing or inquiry into any
         violation of law, or a rule or regulation
         promulgated pursuant to law by the employer
         . . . ; or

         c. Objects to, or refuses to participate in
         any activity, policy or practice which the
         employee reasonably believes:



                                   6                         A-2472-15T3
           (1) is in violation of a law, or a rule or
           regulation promulgated pursuant to law . . . ;

           (2) is fraudulent or criminal . . . ; or

           (3) is incompatible with a clear mandate of
           public policy concerning the public health,
           safety or welfare or protection of the
           environment.

           [N.J.S.A. 34:19-3.]


     Our     decision    here   is     narrowly   focused.          Plaintiff

successfully litigated the 2007 CEPA complaint against the same

defendants.       With respect to the required prima facie case, he

proved that his employer's conduct violated "a law, rule or

regulation" and that he performed a whistleblowing activity.                 We

see no prohibition under CEPA why that earlier established claim

could not satisfy a portion of the prima facie requirements under

CEPA for the 2012 complaint.           Plaintiff contended in the 2012

complaint that further retaliation against him was due to the

earlier 2007 complaint.      Reliance on the 2007 complaint was simply

a shorthand reference, in our view, to the allegations in the 2007

complaint.    If the 2012 complaint did not have adequate detail,

the court could have allowed plaintiff to amend the pleadings

rather than dismiss it with prejudice.

     We    find    support   for     this   conclusion   in   the     liberal

construction that we are to give to CEPA.         See Lippman, supra, 222


                                       7                              A-2472-15T3
N.J. at 378 (finding that because CEPA "is considered remedial

legislation [it is] entitled to liberal construction").   The 2012

complaint involves the same parties.   The CEPA claim is based on

the same established whistleblowing activity.    Because plaintiff

established through a jury verdict that he was a whistleblower

under CEPA and now alleged further retaliation based on the same

whistleblowing activity, we see no reason to dismiss the 2012

complaint under N.J.S.A. 4:6-2(e) for failure to state a claim.

     That said, we make no prediction about the overall success

of plaintiff's claim.   We simply hold on these facts, where the

prior CEPA claim was established by a jury verdict, that reference

in the 2012 complaint to causally related retaliation based on the

2007 complaint, was adequate to survive dismissal under Rule 4:6-

2(e).

     In light of our decision to remand the complaint, we have no

need to address whether the case presented a viable Petition Clause

claim.   In addition, although we have serious reservations about

the procedure utilized by the trial court in dismissing the action

with prejudice on the eve of trial, see Klier v. Sordoni Skanska

Const. Co., 337 N.J. Super. 76, 83 (App. Div. 2001), we have no

need to address the constitutional infirmity in light of our

decision to reverse and remand on other grounds.      See Randolph

Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006)

                                8                           A-2472-15T3
(stating that "[c]ourts should not reach a constitutional question

unless its resolution is imperative to the disposition of the

litigation.").

     Reversed and remanded for proceedings consistent with this

opinion.   We do not retain jurisdiction.




                                9                          A-2472-15T3
