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Abbamont v. Piscataway Township Board of Education

July 27, 1998

JOSEPH P. ABBAMONT, JR., PLAINTIFF-APPELLANT,
v.
PISCATAWAY TOWNSHIP BOARD OF EDUCATION, DEFENDANT-RESPONDENT.



Before Judges Petrella, Skillman and Eichen.

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

[9]    Argued April 27, 1998

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

This Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, action brought by an industrial arts teacher formerly employed by defendant Piscataway Township Board of Education (the Board) is before us for the third time. In the first appeal, we reversed a pretrial order denying the Board's motion to strike plaintiff's jury trial demand and concluded that there was no right to trial by jury in a CEPA action. Abbamont v. Piscataway Township Bd. of Educ., 238 N.J. Super. 603 (App. Div. 1990). Subsequently, the Legislature enacted an amendment to N.J.S.A. 34:19-5 to allow jury trials in CEPA actions, which was made applicable to pending cases, L. 1990, c. 12, §§ 4, 5, following which the trial court entered an order reinstating plaintiff's jury trial demand.

Before trial, the trial court entered a procedural order which provided, among other things, that "the issue of punitive damages shall be severed for purposes of trial, to be determined by the Court in a subsequent proceeding, without a jury, should plaintiff Abbamont prevail on the issue of liability" and that "the factual issues underlying plaintiff's claim for reinstatement be submitted to the jury by suitably framed interrogatories, with the ultimate determination on this equitable remedy being made by the Court."

The case was tried over seven days before a jury, which returned a verdict finding that the Board violated CEPA in failing to renew plaintiff's employment contract for the 1988-89 school year and awarding him $60,000 in compensatory damages. The trial court subsequently granted the Board's motion to set aside the verdict and dismiss the complaint on the ground that the evidence did not establish that the Board had violated CEPA.

On appeal, this court concluded unanimously that the trial court erred in determining that plaintiff failed to prove a violation of CEPA. Abbamont v. Piscataway Township Bd. of Educ., 269 N.J. Super. 11, 20-28 (App. Div. 1993). In addition, by a two-to-one vote, this court rejected the Board's argument that a claim for punitive damages under CEPA is not maintainable against a public entity. Id. at 28-31. We also concluded that plaintiff's claim for punitive damages was triable before a jury, rather than the trial court. Ibid. *fn1 Accordingly, we reinstated the verdict for $60,000 in compensatory damages and "remanded to the trial court for a jury trial on the issue of punitive damages." Id. at 33. For the guidance of the trial court on the remand, we noted that

A greater threshold than mere negligence should be applied to measure employer liability for punitive damages; they are to be awarded when the wrongdoer's conduct is especially egregious but "only in the event of actual participation by upper management or willful indifference." Lehmann, supra, 132 N.J. at 624-25, 626 A.2d 445.

On remand, we leave it to the court to determine what facts are necessary for the plaintiff to hold the defendant liable for punitive damages, following the standard for liability for punitive damages set forth in Lehmann, Id. at 624-25, 626 A.2d 445.

[Id. at 31.] Judge Petrella Dissented from the part of the majority's decision which concluded that a punitive damage claim under CEPA may be maintained against a public entity.

Except for the part of the majority decision of this court dealing with the maintainability of a punitive damage claim under CEPA against a public entity, the Supreme Court affirmed unanimously. Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405, 413-25 (1994). The Court divided three-to-three with respect to the maintainability of plaintiff's claim for punitive damages, thereby affirming this court's majority decision remanding the punitive damages claim for trial. Id. at 426-32, 435-36. Speaking for the prevailing three Justices, Justice Handler also agreed with this court's majority that just as the Court in Lehmann v. Toys `R' Us, Inc., 132 N.J. 587, 624-26 (1993) had "imposed a higher standard for punitive damages" in actions under the Law Against Discrimination (LAD), in CEPA actions, "`the employer should be liable for punitive damages only in the event of actual participation by upper management or willful indifference.'" Abbamont, supra, 138 N.J. at 419 (quoting Lehmann, supra, at 625).

Notwithstanding our mandate that "remanded [the case] to the trial court for a jury trial on the issue of punitive damages," which the Supreme Court had affirmed by an evenly divided vote, the trial court upon remand granted the Board's motion to dismiss plaintiff's punitive damages claim. The court concluded that any award of punitive damages against a board of education must be predicated upon the conduct of its members, rather than upper level management, and that the record did not contain "the slightest shred of evidence or any inference that could arise from the evidence which would indicate that any member of the Board had any actual knowledge or any constructive knowledge of the hidden, illegal and improper motive now attributed" to the Superintendent of Schools, Burt Edelchick, and the principal of the school in which plaintiff taught, Edward McGarigle. The court also refused to consider evidence that subsequent to the initial decision not to renew his employment contract, plaintiff brought information to the Board's attention concerning Edelchick's and McGarigle's unlawful motive for not recommending his reemployment.

Subsequently, plaintiff moved for reinstatement to his former position as an industrial arts teacher in the Piscataway School District along with retroactive seniority, tenure and fringe benefits. The court denied this motion in a written decision, which relied in substantial part upon the fact that plaintiff is now a tenured industrial arts teacher in another school district where he earns a higher salary than he would be receiving if he were still employed in Piscataway.

After the passage of a substantial additional period of time, plaintiff moved for an award of $633,356.95 in attorneys' fees and costs. In a written opinion issued on March 21, 1997, the trial court awarded plaintiff $169,450.85 in attorneys' fees and costs. This award included $24,000 for attorneys' fees incurred in connection with the Board's appeal to the Supreme Court.

On his appeal from the various orders entered subsequent to the remand from the Supreme Court, plaintiff argues that the trial court erred in dismissing his claim for punitive damages and in denying his motion for an order requiring the Board to reinstate him. *fn2 Plaintiff also argues that the attorneys' fees awarded by the court were inadequate. The Board has filed a cross appeal from the award of $24,000 for the attorneys' fees charged in connection with the Board's appeal to the Supreme Court.

We conclude that the trial court erred in dismissing plaintiff's claim for punitive damages and again remand for a trial on this claim. We also conclude that the court did not abuse its discretion in denying plaintiff's motion for immediate reinstatement but that it should have ordered the Board to appoint plaintiff to the next available position in the industrial arts department. Because the case must be remanded for further trial proceedings which may result in an award of additional attorneys' fees, we conclude that review of the attorneys' fee award would be premature.

I.

The threshold issue presented by this appeal is whether the controlling law following the remand is this court's majority opinion or justice Handler's prevailing opinion in the evenly divided Supreme Court. This point is significant because although we may disagree with a decision of another panel of this court under some circumstances, *fn3 see Outland v. Monmouth-Ocean Educ. Serv. Comm'n, 295 N.J. Super. 390, 397 (App. Div. 1996), rev'd on other grounds, ___ N.J. ___ (1998), we are obviously bound by a ...


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