On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication March 2, 1995
Before Judges Shebell, Skillman and Kleiner. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
We granted defendants' motion for leave to appeal an order entered by the Law Division on August 9, 1994. However, we denied plaintiffs' cross-motion for leave to appeal and for further relief. We now reverse the order on review.
On or about March 28, 1994, plaintiffs, Gaspar Danese and the New Jersey State Policemen's Benevolent Association, Local 116, Inc., filed a verified complaint against defendants Frank Ginesi and the New Jersey State Policemen's Benevolent Association. The complaint avers that acts undertaken by defendant Association were ultra vires and beyond the scope of the Certificate of Incorporation, Constitution and By-laws of the Policemen's Benevolent Association (PBA). The complaint also maintains that Ginesi was not qualified under the By-laws, Certificate of Incorporation, or Constitution to serve as President of the defendant corporation, that actions taken by him while serving in that office were ultra vires, that political contributions made by the Association violated State laws and the Internal Revenue Code and that the Association failed to follow its own Certificate of Incorporation, By-laws and Constitution with regard to certain disciplinary proceedings which were conducted against Danese.
The complaint was accompanied by an order to show cause seeking to restrain Ginesi from acting as president, to restrain defendants from implementing an internal organizational ruling disciplining Danese, to restrain defendants from interfering in PBA Local 116's activities and to restrain the defendants' disbursement of monies to political campaigns and candidates. An order was entered denying plaintiffs' application for interim restraints. The court, however, ordered that a plenary hearing be conducted to establish a record on the following two issues:
1. The status of State PBA President Frank Ginesi to act in that capacity because of his job title as confidential assistant; [and]
2. The composition of the Judiciary Committee and the manner of selection of its members in order to determine whether or not its actions were appropriate.
Discovery was limited to those issues.
Plaintiffs took the depositions of Ginesi on May 25 and June 9, 1994. As a result of a discovery dispute during the first deposition, and over the plaintiff's objection, Ginesi left before the deposition was completed. Plaintiffs then proceeded by order to show cause seeking to hold Ginesi in contempt and for an order compelling defendants to produce their Certificate of Incorporation and tax returns. On May 31, 1994, a hearing was held on this issue. On June 14, 1994, an order was entered denying plaintiffs all relief except to obtain a copy of defendant PBA's Certificate of Incorporation and a certification from its accountant that the proper tax filing from 1993 was submitted. Defendants conducted the deposition of Danese on June 13, 1994.
On July 12, 1994, at the plenary hearing, plaintiffs relied on the deposition of Ginesi, the exhibits marked during the deposition, and incorporated their brief into the record. Defendants provided certifications from the witnesses they were going to call, which included Commissioner of Corrections William Fauver, Commissioner of Labor Peter Calderone, PBA Local 105 Executive Vice President Edward Murphy and former Director of the Office of Employee Relations Melvin Gelade. Plaintiffs objected to the certifications as defendants did not provide them prior to the hearing. The court permitted defendants to make these and further submissions with regard to these two issues by July 26, 1994 and allowed plaintiffs to reply no later than August 2, 1994.
Thereafter, plaintiffs served all the witnesses with a Notice to Take Depositions. Defendant moved to quash the subpoenas returnable on July 29, 1994. Plaintiff opposed defendants' motion to quash and moved to extend discovery. On July 29, 1994, before the parties could be heard on the motions, the Law Division Judge ...