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Flaherty v. Enclave

Decided: February 28, 1992.

DONALD FLAHERTY, JR. AND PATRICIA FLAHERTY, HIS WIFE, PLAINTIFFS,
v.
THE ENCLAVE, THE ENCLAVE CONDOMINIUM ASSOCIATION, ITS AGENTS, SERVANTS AND EMPLOYEES, AND HOWARD CORWIN, FRANK CHECCHIA, WALTER GUTHEIL, RALPH PASQUA AND MARVIN DESSNER, THE BOARD OF DIRECTORS OF THE ENCLAVE CONDOMINIUM ASSOCIATION, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS



Winkelstein, J.s.c.

Winkelstein

OPINION

WINKELSTEIN, J.S.C.

In this case the court is asked to interpret a provision of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq., hereinafter CEPA.

The matter is before the court on a motion by defendant for summary judgment. Plaintiff Donald Flaherty, Jr., hereinafter plaintiff, was an employee of defendant Enclave Condominium Association, hereinafter defendant, and director of security until September 15, 1990. He had an employment agreement with defendant pursuant to which he could only be discharged for cause. The allegations are that he was improperly discharged.

The complaint consists of eight counts, each seeking alternative relief.

The motion seeks to dismiss all but the fourth count, which seeks relief under CEPA. Defendant relies on N.J.S.A. 34:19-8, which reads as follows:

Nothing in this act shall be deemed to diminish the rights, privileges, or remedies of any employee under any other federal or State law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, State law, rule or regulation or under the common law. (Emphasis supplied).

Defendant argues that once an action is instituted under CEPA, plaintiff is precluded from seeking alternative relief.

A party opposing a motion for summary judgment is not to be denied a trial unless the moving party sustains the burden of showing clearly the absence of a genuine issue of material fact. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75,

110 A.2d 24 (1954). There are no material facts in dispute.

It is well recognized that statutes are to be read sensibly rather than literally and the controlling legislative intent is to be presumed as "consonant to reason and good discretion." Schierstead v. Brigantine, 29 N.J. 220, 230, 148 A.2d 591 (1959). In construing a statute, it is assumed that the Legislature intended a reasonable approach, and a statute should be construed to effect a reasonable approach. Roman v. Sharper, 53 N.J. 338, 341, 250 A.2d 745 (1969). The spirit of the legislative direction prevails over the literal sense of the terms. Bradley v. Rapp, 132 N.J. Super. ...


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