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Ballinger v. Delaware River Port Authority

May 08, 1998

RALPH S. BALLINGER, PLAINTIFF-APPELLANT,
v.
DELAWARE RIVER PORT AUTHORITY, PAUL DRAYTON, VINCENT BORELLI, RICHARD SULLIVAN, ALVIN WOODHOUSE, DAVID MCCLINTOCK, AND ALAN DANIELS, DEFENDANTS-RESPONDENTS. GREGORY RUGGIERO, PLAINTIFF-APPELLANT,
v.
DELAWARE RIVER PORT AUTHORITY AND PAUL DRAYTON, INDIVIDUALLY AND AS AGENT FOR THE DELAWARE RIVER PORT AUTHORITY, DEFENDANTS-RESPONDENTS.



Before Judges Long, Kleiner & Kimmelman.

The opinion of the court was delivered by: Long, P.j.a.d.

[9]    Argued March 3, l998 and by telephone on March 9, l998

On appeal from Superior Court of New Jersey, Law Division, Camden County.

The primary issue addressed in these appeals, which we have consolidated for the purpose of this opinion, is whether the Delaware River Port Authority (DRPA), a bi-state agency created by compact between New Jersey and Pennsylvania is subject to the provisions of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:l9-l to -8. Our review of this record, in light of relevant legal principles, has led us to conclude that the answer is "no." We have also concluded that the waiver provisions of CEPA cannot be invoked where, as here, plaintiffs lacked the right to make a CEPA claim. Therefore, the dismissal of Gregory Ruggiero's common law claims against DRPA was erroneous as was the refusal to allow Ralph Ballinger to amend his complaint to assert such claims.

A-5584-95T2

Ralph Ballinger began his employment as a police officer with DRPA in April of l984 and worked there until his termination on February 8, l995. On December 29, l995, he filed a single count complaint alleging that he had been discharged from his employment by DRPA in violation of CEPA. More particularly, he claimed that he had been terminated in retaliation for disclosing information to the New Jersey State Police concerning a criminal activity (theft) by DRPA employees. He later filed an amended complaint alleging that various individual employees of DRPA also violated CEPA. In lieu of an answer, DRPA and the individual employees filed a notice of motion to dismiss the complaint for failure to state a claim for relief, pursuant to R. 4:6-2(e). The trial Judge granted the motion and dismissed the amended complaint because he concluded that DRPA is not subject to CEPA.

In the interim, Ballinger filed a notice of cross-motion to file a second amended complaint to include a common law retaliatory discharge claim against the individual employees. *fn1 On May 28, 1996, the judge denied Ballinger's cross-motion and entered a final judgment in favor of all defendants.

A-5622-95T2

Gregory Ruggiero began his employment at DRPA as a toll collector on the Benjamin Franklin Bridge around 1987 and worked there until his termination on December 30, 1994. During this time, Ruggiero was a member and officer of the International Union of Operating Engineers, Local 7l6 (Union). On December l3, l994, along with other toll takers, he shut down his toll booth in order to address his concerns about asbestos in the tunnel which the toll takers had to use to gain access to the toll booths. Approximately 9 minutes after the shut down, the toll takers returned to their respective booths. All of the other toll takers involved in this incident were suspended for no more than three days without pay. Ruggiero, however, was terminated from employment.

Ruggiero filed a five count complaint on December 26, l995 against DRPA asserting he was wrongfully discharged in violation of CEPA; that various DRPA employees violated CEPA by retaliating against him for the work stoppage to protest health and safety violations; that he was wrongfully discharged for his union activities; that he was wrongfully discharged in violation of public policy; and that defendants breached the collective bargaining agreement. Defendants filed a notice of motion to dismiss the complaint for failure to state a claim for relief, pursuant to R. 4:6-2(e). At the same time, an arbitration proceeding was instituted against DRPA pursuant to the labor agreement between Ruggiero's Union representative and DRPA. The issue presented at the arbitration proceeding, which was based on the same facts as this appeal, was whether Ruggiero was discharged in violation of the collective bargaining agreement. The arbitrator found Ruggiero was not discharged for good cause; that he should be awarded back pay and returned to his former position less a three day suspension without pay.

On April 26, 1996, the trial Judge (a different Judge from the one in Ballinger's case) heard oral argument on defendants' motion to dismiss. At the Conclusion of argument, he granted defendants' motion in its entirety and dismissed Ruggiero's complaint with prejudice. In so doing, he ruled that Ruggiero's claims regarding the collective bargaining agreement between DRPA and the Union were governed by the agreement and through the grievance procedure initiated by the Union. The Judge also concluded that DRPA was not subject to a CEPA claim and dismissed the remaining elements of the complaint because they arose out of the same facts as the CEPA claim. Ballinger and Ruggiero appeal.

I

In reviewing a motion to dismiss made pursuant to R. 4:6-2(e), for failure to state a claim for relief, it is essential to canvass the complaint to determine whether "a cause of action can be found within its four corners." Van Natta Mechanical Corp. v. Di Staulo, 277 N.J. Super. 175, 180 (App. Div. 1994). In so doing, we must accept the facts asserted in the complaint as true. Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 625-26 (1995). A reviewing court must "`search[] the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned from an obscure statement of claim, opportunity being given to amend if necessary.'" Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). Accordingly, all reasonable inferences are given to plaintiff. Ibid.; Van Natta Mech. Corp., supra, 277 N.J. Super. at 181. Courts should grant these motions with caution and in "the rarest instances." Printing Mart-Morristown, supra, 116 N.J. at 772; Van Natta Mech. Corp., supra, 277 N.J. Super. at 181.

A review of Ballinger's complaint reveals that both counts are based on CEPA as are the first two counts of Ruggiero's complaint. Defendants moved to dismiss these counts because CEPA is a unilaterally enacted state law which does not apply to DRPA, as a bi-state agency, nor to its agents or employees.

DRPA was created by an interstate compact between the Commonwealth of Pennsylvania and the State of New Jersey for the purpose of developing and maintaining bridges and port facilities between the two states. See N.J.S.A. 32:3-1 to - 3-18; 36 Pa. Cons. Stat. §§ 3503-3505 (1998). Among the powers granted to DRPA is the power "[t]o sue and be sued." N.J.S.A. 32:3-5(b). This grant is considered a waiver of sovereign immunity. See Bell v. Bell, 83 N.J. 417, 423 (1980). This agency, however, derives its powers, including its waiver of sovereign ...


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