Daily Decision Service Alert: Vol. 22, No. 19 ? January 29, 2013

 

01-2-8844 In the Matter of Chaparro, App. Div. (per curiam) (6 pp.) Petitioner, found guilty of insubordination for failing to timely comply with an order to undergo tuberculosis testing, appeals from a final agency decision of the Civil Service Commission imposing a 10 working-day suspension on her employment as a senior corrections officer. Concluding that the final CSC decision is not arbitrary, capricious or unreasonable in light of the importance of maintaining order and discipline in a corrections facility, the panel affirms.

03-2-8845 In the Matter of the City of Camden and the International Association of Firefighters, Local 788, App. Div. (Espinosa, J.A.D.) (38 pp.) When the collective-bargaining agreement between Camden and its firefighters expired in December 2008, the parties engaged in compulsory interest arbitration under N.J.S.A. 34:13A-14 to -21. The arbitration was subject to both the New Jersey Arbitration Act, N.J.S.A. 2A:24-1 to -11, and the Compulsory Interest Arbitration Act procedure, which requires the arbitrator to give due weight to factors enumerated in N.J.S.A. 34:13A-16(g). Further, an amendment to N.J.S.A. 34:13A-16, effective Jan. 1, 2011, mandated that “a written report explaining how each of the statutory criteria played into the arbitrator’s determination of the final award” accompany each arbitrator’s decision. N.J.S.A. 34:13A-16(f)(5). It was undisputed that the city’s financial distress had resulted in substantial layoffs of its employees, including one-third of its firefighters and that state-controlled aid was declining. Although the arbitrator acknowledged that the city was unable to fund the award from its own tax base, he awarded the firefighters an 8.5 percent increase in base wages over four years. Calling the state a “fourth party” to the arbitration, the arbitrator concluded the state must provide funding for the city’s Fire Department budget, including salary increases. In addition, the arbitrator delayed and attempted to limit the firefighters’ contributions to health insurance costs, contrary to N.J.S.A. 40A:10-21.1 and N.J.S.A. 40A:10-21(b). We reverse PERC’s decision to affirm the award; vacate the award; and remand for proceedings before a different arbitrator for the following reasons: The arbitrator exceeded his authority by denominating the state a “fourth party” that he essentially required to fund the award. The award was the product of “undue means,” N.J.S.A. 2A:24-8(a), because it was contrary to statutory mandates governing employees’ contributions toward their health benefits, N.J.S.A. 40A:10-21.1 and N.J.S.A. 40A:10-21(b). The arbitrator failed to give due consideration to the factors set forth in N.J.S.A. 34:13A-16(g) or adequately explain how each of the statutory criteria played into the determination of the final award, as required by N.J.S.A. 34:13A-16(f)(g). The nature of these errors suggests a commitment to the arbitrator’s stated intention to award an increase to the firefighters, requiring that this matter proceed before a different arbitrator. [Approved for publication.]

 

20-2-8846 Wolfson v. Wolfson, App. Div. (per curiam) (8 pp.) Defendant appeals from an order directing him to pay counsel fees from the parties’ divorce action, and from the amended dual final judgment of divorce entered after a bench trial. The appellate panel affirms for the reasons stated by the judge in his written opinion. Defendant contends that the trial court lost or ignored nine in limine motions. However, the panel discerns no prejudice to defendant that those rulings were made at trial. The trial judge determined that defendant drew down $200,000 of the parties’ joint home equity line of credit, without plaintiff’s knowledge or consent, invested it, and lost the entire amount. The panel finds no abuse of discretion by the judge in granting plaintiff one-half of the dissipated amount. Defendant also contends that by denying his motion for a jury trial his due process rights were violated. Given the issues of child welfare, child support and child parenting, the trial judge correctly denied a jury trial, concluding that the marital tort should be resolved in conjunction with the divorce action as part of the overall dispute between the parties. Finally, rejecting defendant’s argument that awarding attorney fees to plaintiff violated his due process rights, the panel finds the judge appropriately considered the factors under Rule 5:3-5, and held a hearing, before ordering defendant to pay the legal fees.

 

25-3-8847 Samiel v. Paramount Hotel Group, Law Div. – Essex Co. (Vena, J.S.C.) (8 pp.) Defendant moves for summary judgment in this action asserting violations of the Law Against Discrimination. Plaintiff's claim that her hours were reduced because of age discrimination fails because she was not reduced to part time until the third round of layoffs and transfers from full to part time, after younger employees were let go or reduced in hours, and the only other similarly situated employee had her hours reduced at the same time. Her claim that she was discharged because of age fails because it cannot be reasonably disputed that plaintiff resigned, rather than was fired. Plaintiff's claim of retaliatory discharge fails because there is nothing in the record to show that she engaged in protected activity prior to being transferred to part-time status and she voluntarily resigned. Her claim of discharge due to perceived disability fails because she cannot show that she was terminated and because, although she is a two-time cancer survivor, at the time of her separation, one year after her cancer treatments, she was working full time and was healthy and had no disability. Plaintiff's complaint is dismissed. [Decided Jan. 25, 2013.]

 

25-2-8848 Cantone v. Borough of Harrington Park, App. Div. (per curiam) (35 pp.) Plaintiff appeals from the judgment affirming defendants' termination of his employment as a police officer. Defendants cross-appeal the trial court's earlier decision denying their motion to dismiss his complaint on the grounds that it was untimely. The panel holds that the trial court's finding that plaintiff knew he had been found unfit for duty and had been ordered to begin counseling by a specified date and that he failed to do so and instead scheduled an appointment to obtain a second opinion and intended to submit to treatment only if that second opinion found him unfit is supported by plaintiff's testimony, that there is nothing in the record to support plaintiff's contention that without a medical diagnosis he could not engage in treatment, that the opinion of the psychologist who examined plaintiff and found him unfit for duty was not a net opinion and the trial court did not abuse its discretion in giving credence to his report, and that progressive discipline was not required because plaintiff's actions impacted public safety and the orderly conduct of the police department. The panel affirms plaintiff's removal. It also affirms on defendants' cross-appeal, finding that plaintiff's notice of intent to appeal was timely when measured by the second resolution to terminate his employment, which was the appropriate date since the first resolution terminating his employment was adopted in violation of the Open Public Meetings Act.

 

38-2-8849 In the Matter of the Estate of Stockdale, App. Div. (per curiam) (21 pp.) On remand from the Supreme Court, the trial court, after reviewing the trial record of this will contest, and after a nonevidentiary hearing, entered a no-cause judgment on the compensatory and punitive damages claims of the Spring Lake First-Aid Squad against Ronald Sollitto and attorney Michael Casale. The squad appeals. The squad successfully challenged as a product of undue influence and sharp dealings a will that Casale prepared and Madeleine Stockdale executed in January 2000, which made Sollitto the residuary beneficiary of her estate. The squad also established that an inter vivos transaction, in which Stockdale sold her multimillion-dollar home to Sollitto on exceptionally favorable terms, was a product of undue influence. Assuming without deciding that Sollitto and Casale's tortious behavior proximately caused the delay in the squad acquiring title and selling the property, and the squad is entitled to recover any damages caused by that delay, the appellate panel nonetheless finds the squad's claim fails because the squad did not demonstrate it suffered a loss as a result of the delay. Given the egregious nature of their tortious behavior, the panel finds the court erred in declining to tax Sollitto and Casale for the squad's deposition costs, and taxes those costs against them.

 

14-2-8850 State v. D.L.C., App. Div. (per curiam) (13 pp.) Defendant appeals from the trial court's order denying his petition to expunge records of his January 1994 conviction for third-degree burglary and third-degree theft. Interpreting N.J.S.A. 2C:52-4.1(a), the court held expungement was not permitted because defendant was previously adjudicated delinquent for acts that would have been classified as crimes if committed by an adult. As the court's statutory interpretation mirrors one recently rejected by the Appellate Division in In re Expungement Petition of J.B., the appellate panel reverses and remands for entry of an order of expungement. The panel rejects the state’s renewed argument that defendant is statutorily barred from seeking expungement regarding his adult conviction because of his prior juvenile adjudications and further rejects the state’s contention that J.B. was wrongly decided.

 

42-7-8851 In re Purington, U.S. Dist. Ct. (Hillman, U.S.D.J.) (17 pp.) After debtor Purington filed a voluntary Chapter 7 bankruptcy petition, Filomena Boccella filed a complaint in the bankruptcy court seeking to block entry of discharge on grounds that Purington had misrepresented that her construction company was registered, licensed and insured in New Jersey and that Boccella had relied on this misrepresentation when she paid Purington for construction work on her home. The bankruptcy court denied Boccella's request to declare the debt due to her from Purington as nondischargeable and dismissed her complaint with prejudice and later entered an order discharging Purington. Bocella's appeal was dismissed for failure to comply with the procedural requirements of Federal Rule of Bankruptcy Procedure 8006. Boccella, pro se, moves for reconsideration of the dismissal. The court finds that a balancing of the six factors set forth in Poulis indicates that dismissal of the appeal is not warranted in this case. Appellant's motion for reconsideration is granted and her appeal is reinstated. [Filed Jan. 28, 2013.]

07-7-8852 Leenstra v. Then, U.S.Dist. Ct. (Linares, U.S.D.J.) (6 pp.) Plaintiff filed a complaint alleging in part that defendants violated her federal and state constitutional rights, committed false imprisonment/false arrest, and engaged in civil conspiracy. Before the court is plaintiff’s motion for relief from judgment pursuant to Rule 59(e) and Rule 60(b). Plaintiff seeks to vacate the court’s opinion and order granting summary judgment in defendants’ favor and dismissing plaintiff’s claim with prejudice. First, the court finds that any prejudice to defendant that would result from the court granting plaintiff’s motion would be minimal. Second, plaintiff has demonstrated the existence of a potentially meritorious defense. Finally, the court finds that plaintiff’s failure to timely file an opposition to defendant’s motion for summary judgment was not caused by plaintiff’s own culpable conduct. Plaintiff was represented by counsel in this matter and her counsel failed to comply with the rules of the court. The court vacates the previous order and opinion entering summary judgment against plaintiff. Plaintiff’s motion for relief from judgment is granted. [Filed Jan. 22, 2013.]

 

07-7-8853 Conjured Up Entertainment v. Hillman, U.S. Dist. Ct. (Shipp, U.S.M.J.) (7 pp.) After Judge Hillman issued an order barring additional complaints from Anthony Bussie or Conjured Up Entertainment pertaining to an alleged intelligence and war contract with the United States, plaintiff filed 44 complaints in state court that defendants removed to the district court and now move to dismiss. Plaintiff has filed a "motion to dismiss," which the court construes as a motion to remand, and a "motion for summary judgment, trial and new trial." After reviewing the 44 complaints, most of which concern plaintiff's dissatisfaction with Judge Hillman's decisions, the court grants defendants' motion to dismiss for failure to state a claim and denies his motion for summary judgment, concluding that the complaints fail to plead facts sufficient to satisfy Rule 8(a)'s liberal pleading standards and largely contain factually unsupported allegations that are not persuasive and have no legal merit. [Filed Jan. 28, 2013.]

 

07-7-8854 Bouder v. Prudential Financial Inc., U.S.Dist. Ct. (Cavanaugh, U.S.D.J.) (10 pp.) Plaintiffs filed this lawsuit as a collective action under the Federal Fair Labor Standards Act (FLSA), and as a class action on behalf of themselves and all other persons similarly situated who suffered damages as a result of violations of the FLSA, and of the labor laws of several states, and as a result of wrongful conduct and improper labor practices allegedly committed by defendants Prudential Financial Inc. and The Prudential Insurance Company of America. Lead plaintiffs filed a motion for class certification. Plaintiffs seek to certify 11 state law classes, seven of which contain subclasses, for a total of 18 subclasses. Based on the number of individual state subclasses, along with the potential for individualized inquiry, and the individual inquiry that will be necessary regarding the independent-contractor status of at least some of the members of each subclass, the court foresees significant difficulty in how this case will be managed and in how it will play out at trial. The need for individualized inquiries to address Prudential’s defense has the potential to cause confusion. The manageability issues presented by plaintiffs’ proposed class prevent the proposed class from satisfying the requirements of Rule 23(b)(3). The court denies plaintiff’s motion. [Filed Jan. 18, 2013.]

 

25-7-8855 Dal Cielo v. Mars Direct, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (8 pp.) Plaintiff, an insured under the health insurance policy between defendant, his former employer, and Aetna Insurance Company, filed this action challenging the denial of his health benefits pursuant to the Employee Retirement Income Security Act of 1974. Mars moves to dismiss for failure to exhaust administrative remedies. Finding that plaintiff is required to exhaust the administrative remedies as set forth in the employer-based benefits plan before seeking relief in court, the court concludes that it lacks subject-matter jurisdiction because plaintiff failed to do so and failed to present evidence that administrative appeal would be futile, and it grants defendant's motion to dismiss.[Filed Jan. 28, 2013.]

25-7-8856 Tennessee Gas Pipeline, L.L.C. v. 1.693 Acres of Land in the Township of Mahwah, U.S.Dist. Ct. (Martini, U.S.D.J.) (5 pp.) The Federal Energy Regulatory Commission (FERC) issued a certificate of public convenience and necessity authorizing plaintiff Tennessee Gas Pipeline to perform its Northeast Upgrade Project, and providing Tennessee Gas with certain eminent-domain powers. Tennessee Gas requests that the court recognize its eminent domain authority and enter an order granting it a property interest in a road located in Mahwah. It also moves for a preliminary injunction granting it immediate possession of that property interest. The court finds Tennessee Gas has satisfied the requirements of § 717f(h) of the Natural Gas Act in that Tennessee Gas has a FERC certificate, it has been unable to acquire the property interest by contract or agreement with the landowners, and the property value exceeds $3,000. Thus, the court recognizes Tennessee Gas’s eminent-domain power, and enters an order granting the property interest. Because the preliminary injunction factors favor Tennessee Gas, the court grants the injunction allowing for immediate possession. [Filed Jan. 22, 2013.]

 

32-7-8857 Carr-Davis v. Bristol-Myers Squibb Co., U.S. Dist. Ct. (Wolfson, U.S.D.J.) (26 pp.) Plaintiff, as surviving spouse and administratrix of the estate of Ralph Carr, filed this action alleging that the decedent suffered injuries as a result of defendants' design, development, manufacture, promoting and distributing of Plavix. She asserts various Missouri state and common-law claims, including failure-to-warn, defective design, manufacturing defect and negligence. Defendants move for summary judgment. The court holds that plaintiff's failure-to-warn claim fails because the learned-intermediary doctrine excuses defendants from liability; her design defect and Missouri manufacturing defect claims fail because plaintiff has submitted no evidence that Plavix is unreasonably dangerous and therefore defective; her negligence claim fails because it is merely a restatement of her defective design, defective manufacturing and failure-to-warn claims. Defendants' motion for summary judgment is granted. [Filed Jan. 28, 2013.]