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Ruberton v. Gabage

March 10, 1995

JAMES A. RUBERTON AND LORETTA RUBERTON, PLAINTIFFS-APPELLANTS,
v.
CHARLES W. GABAGE, ESQUIRE, EISENSTAT, GABAGE & BERMAN, P.A., A NEW JERSEY PROFESSIONAL CORPORATION, AGWAY PETROLEUM CORPORATION, CHRISTOPHER FOX, AGWAY, INC., ROBERT J. KUTIL, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court, Law Division, Camden County.

Approved for Publication March 10, 1995.

Before Judges Havey, Brochin and Cuff. The opinion of the court was delivered by Havey, J.A.D.

The opinion of the court was delivered by: Havey

HAVEY, J.A.D.

Plaintiffs appeal from summary judgment orders dismissing their complaint against defendants sounding in fraud, negligence, malicious abuse of process and malicious interference. They also appeal from pretrial determinations that their emotional distress claims were time-barred under N.J.S.A. 2A:14-2, and denying their motion to amend their complaint to name William V. Webster, Jr., Esq. and his law firm as party-defendants.

The central issues in this case are: (1) whether a defense attorney's threat that his client intends to file criminal charges against the plaintiff, made purportedly to gain an advantage in the civil litigation, constitutes a malicious abuse of process and, if so; (2) is the threat protected by the absolute immunity privilege afforded to statements made during judicial proceedings. In granting summary judgment to defendants, Judge Supnick concluded that the statements did not constitute an abuse of process. Alternatively, he determined that even if plaintiffs had made out a prima facie case of abuse of process, the statements were protected by the absolute immunity privilege. We agree on both points, and affirm.

In 1983, plaintiff James A. Ruberton was terminated from his managerial position at defendant Agway Petroleum's Hammonton plant. He and his wife thereupon instituted a wrongful discharge action against Agway Petroleum and its parent, Agway, Inc. Defendant Charles W. Gabage, Esq. represented Agway Petroleum and William V. Webster, Jr. Esq. represented Agway, Inc. in the wrongful discharge case.

On July 7, 1986, a settlement conference was conducted, attended by Richard L. Press, Esq., attorney for plaintiff, Gabage, Webster and the trial Judge. According to Ruberton, during the conference Gabage extended, on behalf of Agway Petroleum, a $10,000 settlement offer to Press. Press told him that Gabage, in making the settlement offer, suggested that Ruberton use the money to hire a criminal defense lawyer to defend him in a criminal action Agway Petroleum was contemplating filing against him. The criminal charge was predicated upon certain alleged improprieties by Ruberton while he was an Agway Petroleum plant manager.

On September 12, 1986, Gabage forwarded a letter to Press setting forth the names of witnesses and individuals Agway Petroleum wished to depose. The letter advised Press that Agway Petroleum's investigation, presumably in support of the potential criminal complaint of plaintiff, had determined that inventory records had been falsified, payroll expense records had been manipulated and Ruberton's telephone credit card benefits had been abused.

On or about February 4, 1987, plaintiffs settled the wrongful discharge action with Agway Petroleum and Agway, Inc. for $90,000. According to Ruberton, at the time of the settlement Press told Ruberton that Agway Petroleum intended to prosecute if Ruberton refused to settle.

Plaintiffs filed the present complaint against Gabage, his law firm and the Agway defendants. The gravamen of the complaint is that Agway Petroleum and Gabage fraudulently induced plaintiffs to settle the wrongful discharge action by making unethical and unlawful threats of criminal prosecution if Ruberton did not settle the case. Plaintiffs' complaint sounds in malicious abuse of process, negligent misrepresentation, fraud, intentional infliction of emotional distress and malicious interference with prospective economic advantage.

In granting summary judgments to defendants, Judge Supnick found that Gabage's conduct during and subsequent to the settlement conference did not constitute a malicious abuse of process. Alternatively, the Judge held that "the doctrine of absolute immunity in matters involving . . . settlements such as took place in this instance" controls, and thus bars plaintiffs' claims.

I

Plaintiffs first argue that Gabage's "threat" during the July 7, 1986 settlement conference regarding prosecution of Ruberton constituted a malicious abuse of process. They reason that the "process" abused "was that of the civil court in calling the plaintiff to the court house for purposes of a settlement conference, coupled with the expressed threat of utilizing the criminal process." In support of the argument plaintiffs point to RPC 3.4(g) which provides that a lawyer shall not "present, participate in presenting, or threaten to present criminal charges to obtain an improper advantage in a civil matter." (Emphasis added). Plaintiffs assert that "given the undeniable fact that the conduct complained of on the part of attorney Gabage is ...


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