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Schillaci v. First Fidelity Bank

May 20, 1998


Before Judges Brochin, Wefing and Braithwaite

The opinion of the court was delivered by: Brochin, J.A.D.

[9]    Argued February 25, 1998

On appeal from the Superior Court of New Jersey, Law Division, Salem County

Plaintiff Sandra Schillaci was the manager of Cumberland Farms' Woodstown, New Jersey dairy store. Her duties included depositing the store's daily receipts of cash and food stamps in the bank. On November 7, 1992, she put the day's receipts, amounting to $1,325.52, in a night deposit bag and placed the bag in the night deposit box at the Woodstown branch of defendant First Fidelity Bank. On November 12, when she asked the bank for the deposit receipt, she was told that the deposit had not been received, and the bank subsequently confirmed that information to Cumberland Farms in writing. As a result, on November 16, 1992, Ms. Schillaci was fired and she became the subject of a police investigation. In fact, the missing receipts were in the deposit bag. The bag was wedged into the bank's night deposit box and was discovered when the bank attempted to dismantle the box in April 1993. The bank immediately notified Cumberland Farms, but neither of the defendants notified Ms. Schillaci or the police. During the summer of 1994, she happened to meet someone who worked as a teller at the Woodstown branch of the First Fidelity Bank and learned from her that the deposit bag and its contents had been recovered.

Ms. Schillaci sued First Fidelity Bank and Cumberland Farms. She alleged that the bank was liable to her because of its negligence; because it defamed her by its false statements which implied that she had stolen her employer's money; and because it caused her emotional distress by failing to notify her promptly when the deposit bag was found. She alleged that Cumberland Farms defamed her by, in effect, accusing her of theft in the store in the presence of customers and caused her severe emotional distress by failing to notify her when it learned that the deposit bag had been recovered. She claimed both compensatory and punitive damages.

Plaintiff's negligence claim against First Fidelity Bank was permitted to go to trial and resulted in a judgment in her favor on a jury verdict of $23,000 damages to compensate her for lost earnings. But her other claims were dismissed before trial. Her defamation claims were dismissed on the ground that they were barred by the applicable statute of limitations. She has not appealed that ruling. Her claims for intentional or reckless infliction of emotional distress and her claims for punitive damages were dismissed on motions for summary judgment.

On appeal, plaintiff challenges these adverse pretrial rulings and defendant First Fidelity Bank cross-appeals from the judgment entered on the jury verdict. Plaintiff contends that the trial court erred in dismissing her emotional distress claims against First Fidelity Bank because her severe emotional distress was a natural and foreseeable result of the bank's "outrageous conduct/negligence"; the trial court erred in dismissing her punitive damages claims against First Fidelity Bank because the bank's conduct was "willful and wanton"; and the trial court erred in dismissing her emotional distress and reputation damage claims against First Fidelity Bank because she has a valid damage claim based on N.J.S.A. 12A:4-101 to -504. Plaintiff also challenges a ruling sustaining the bank's claim of attorney-client privilege for a document disclosed during pretrial discovery. Plaintiff argues that the trial court erred in granting summary judgment in favor of Cumberland Farms because that company breached its duty to notify her when the missing deposit bag was found.

In evaluating plaintiff's challenges to the orders of summary judgment and First Fidelity Bank's cross-appeal from the judgment entered on a jury verdict in her favor, we are required to "'look at the evidence and inferences which may reasonably be deduced therefrom in a light most favorable to the plaintiff'" and we "must grant all the favorable inferences to the non-movant." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995) (quoting Bell v. Eastern Beef Co., 42 N.J. 126, 129 (1964)). The following statement of the disputed facts relevant to the issues on appeal is guided by that standard.

On November 12, 1992, when First Fidelity Bank told Ms. Schillaci that it had not received the night deposit which she had made on November 7, 1992, she immediately informed her supervisor, Luana Van Vianen. Ms. Schillaci and Ms. Van Vianen went to the bank and spoke to the branch manager, Susan Redfield. Ms. Van Vianen asked Ms. Redfield to have the night deposit box dismantled in the presence of a representative of Cumberland Farms. Ms. Redfield agreed. Having a locksmith dismantle the box was not an unusual procedure and would cost $40.

However, the bank did not have a locksmith dismantle the box. Instead, a Woodstown policeman, Patrolman John Hollinger, looked into the deposit box with a flashlight on November 14, 1992. He did not find the missing deposit bag. Cumberland Farms was not notified in advance of this inspection and did not have any representative present at the bank when it was conducted. Afterwards, when Ms. Schillaci and Ms. Van Vianen were scheduled to go to the bank to witness the box being dismantled, Ms. Redfield told them, falsely, that it had already been dismantled. Later that month, a maintenance man who worked for the bank also looked into the box with a flashlight. Again, no one representing Cumberland Farms was present, the box was not dismantled, and the bag was not found.

In November 1992, Ms. Schillaci was questioned in the Cumberland Farms store by the company's security personnel. She claims that the questioning was conducted within earshot of customers and other employees. Cumberland Farms also reported its loss to the police who interrogated Ms. Schillaci as a suspect in their theft investigation. The following April, a bank customer at another branch reported a missing night deposit. A locksmith dismantled the box at that branch and found the deposit bag. A bank employee thought of the missing Cumberland Farms bag, remembered that the two boxes were similar, and had the locksmith go to the Woodstown branch to dismantle the box. When the locksmith examined the box, he found the bag. The bank promptly notified Cumberland Farms and paid it the amount of the deposit. The bank did not notify Ms. Schillaci or the police that the bag had been found.

Ms. Schillaci contends that the tensions which arose from her having been fired from her job because she was suspected of theft adversely affected her relations with her father and probably contributed to strains between herself and her husband which led to their separation and, ultimately, to their divorce. She also alleges that Woodstown, in which she both lived and worked, is a small town where everyone knows everyone else and, although she was unable to offer any proof, she felt that everyone in town thought she was a thief. She testified that she was badly upset by the accusation, but she did not seek psychiatric or psychological counseling because she could not afford it.

When Ms. Schillaci was fired, she had been making approximately $480 a week, including bonuses. She was unemployed for six months after her termination and collected $240 a week in unemployment compensation. Thereafter, she was employed at a series of jobs, all of them at lower wages than she had been earning at Cumberland Farms. She quit one of the jobs because of sexual harassment and another because of the working conditions. She lost one job because she had to be absent from work for an appendicitis operation, and she lost another job because there was a theft loss and she was under suspicion as the result of what had happened at Cumberland Farms. At the time of trial, she was employed, earning between $6 and $7.73 an hour.

The jury's award of $23,000 to Ms. Schillaci for lost earnings was based on its finding that First Fidelity Bank "was negligent in its handling of the night deposit bag," presumably because of its failure to promptly dismantle the box to search for the missing deposit bag. Punitive damages cannot be awarded for negligence or even for gross negligence. Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49-50 (1984); Tonelli v. Khanna, 238 N.J. Super. 121, 129 (App. Div.), certif. denied, 121 N.J. 657 (1990). The bank committed two intentional acts, however, which Ms. Schillaci contends breached its duty to her. Those breaches were, first, its representing to her that it had dismantled the box and, secondly, purposely refraining from notifying her when the missing deposit was found. Whether the trial court's dismissal of her claim for punitive damages ...

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