On appeal from the Superior Court, Appellate Division, whose opinion is reported at 172 N.J. Super.. 165 (1980).
For affirmance -- Chief Justice Wilentz, and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Clifford, J.
[86 NJ Page 621] Plaintiff, a religious congregation, seeks rescission of its contract of employment of defendant as its rabbi. The trial court granted plaintiff's motion for summary judgment, ruling that as a matter of law defendant's failure to disclose to plaintiff his prior criminal record and disbarment from the practice of law amounted to fraudulent concealment. Jewish Center of Sussex County v. Whale, 165 N.J. Super. 84, 92 (Ch.Div.1978). A divided Appellate Division panel affirmed. 172 N.J. Super. 165, 166 (1980). Because we are persuaded that the result reached below
finds support in the record on the narrower ground of fraudulent misrepresentation, we affirm the judgment.
The record before us includes the pleadings, the contract of employment, and affidavits in connection with the summary judgment proceedings. The relevant facts are undisputed. In late 1977 plaintiff placed advertisements in the Anglo-Jewish Press, seeking a rabbi to serve the congregation. In response thereto defendant submitted his resume. That document, of singular brevity, set forth defendant's name, address, telephone number, date and place of birth and marital status. Regarding education it listed his ordination in 1956 and a Bachelor of Arts degree received in 1955. Under the heading "experience" the entry for the years 1970-77 was:
Administrator, Ministry of Education Foreign Student Department, Jerusalem, Israel (1970-1977).
Finally, the resume offered to supply references upon request. No such request was ever made.
Defendant was subsequently invited to lead Friday night and Saturday morning services and meet the members of the plaintiff congregation. Thereafter, terms of employment were negotiated and the parties entered into a contract of employment dated January 1, 1978. There is no allegation that defendant performed his duties under the contract in other than a satisfactory manner.
In April 1978 plaintiff became aware that the defendant is known also as Louis P. Wolfish, had been convicted in 1975 on federal mail fraud charges, see United States v. Wolfish, 525 F.2d 457 (2d Cir.1975), and had been disbarred from the practice of law in the State of New York, see Matter of Wolfish, 33 A.D. 2d 113, 305 N.Y.S. 2d 879 (App.Div.1969). Review of the evidence gathered pursuant to the prosecution of the mail fraud case reveals that defendant left Israel in 1972 and was a fugitive until February 14, 1974, when he surrendered to authorities. See United States v. Wolfish, supra, 525 F.2d at 459. He was
confined in a federal penitentiary as a result of his conviction. The disbarment proceedings in New York were based upon professional misconduct that included attempted bribery of a police officer, willful deception of a judge, alteration of affidavits, solicitation of negligence cases, malicious institution of malpractice actions and wrongful procurement of excessive legal fees. Matter of Wolfish, supra, 33 A.D. 2d at 114, 305 N.Y.S. 2d at 880.
After discovering these additional facts about defendant, plaintiff's Board of Trustees resolved on April 17, 1978 to rescind the employment contract and so notified defendant in a letter of the same date. Promptly thereafter plaintiff filed suit to rescind the contract and enjoin defendant from entering upon plaintiff's property or performing any functions as rabbi of the Jewish Center. The verified complaint alleged both fraudulent misrepresentation and fraudulent concealment. A ...