In April 1976, the DRPA hired Moore as a union electrician. In
1986, the DRPA promoted Moore to the non-union supervisory
position of Assistant Foreman. Upon his promotion. Moore ceased
to be covered by the collective bargaining agreement between the
Electrician's Union and the DRPA. In 1993, the DRPA made Moore a
Foreman when it eliminated the position of Assistant Foreman.
Moore's duties as a Foreman in the Electrical Department
consisted of supervising electricians and assigning work. Except
for a relatively brief period from sometime in 1993 or 1994
through November or December of 1995, when Moore was assigned to
work at the Walt Whitman Bridge, Moore worked at the Ben Franklin
By letter dated March 12, 1997, the DRPA notified Moore that he
had been suspended with pay pending an internal investigation for
allegedly violating certain DRPA Work Rules. By letter dated
April 17, 1997, the DRPA detailed the allegations against Moore
and the factual findings of its investigation and notified Moore
that a pre-disciplinary hearing would be held on April 22, 1997.
Donald A. Piccoli, Manager of the Betsy Ross Bridge, presided
over the hearing on April 22, 1997, at which time Moore was
provided with a Notification and Explanation of Charges that
formally set forth the allegations against him and advised him of
his right to appeal any adverse employment determination in
accordance with the DRPA's Open Door Policy.
By letter dated May 7, 1997, the DRPA advised Moore that he had
been terminated from employment for violating certain DRPA Work
Rules, which were identified with particularity in the letter.
On August 7, 1997, Moore commenced this action by filing a
Complaint against the DRPA in the Superior Court of New Jersey,
Law Division, Burlington County. In Count One of the Complaint,
Moore alleges a wrongful discharge claim against the DRPA. In
Count Two of the Complaint, Moore alleges a breach of contract
claim against the DRPA. In Count Three of the Complaint, Moore
alleges that he is entitled to an award of punitive damages.
Moore seeks compensatory and punitive damages, interest,
attorney's fees and costs of suit, reinstatement with back wages
and benefits, and such other relief as the court deems
On September 25, 1997, the DRPA removed Moore's case to this
court under 28 U.S.C. § 1441 and 1446. The DRPA asserts the
existence of federal question jurisdiction under 28 U.S.C. § 1331
because the case involves the interpretation of a
Congressionally-approved interstate compact between the State of
New Jersey and the Commonwealth of Pennsylvania under the Compact
Clause of Article I of the Constitution.
On November 6, 1997, Moore stipulated to dismissal of his claim
for punitive damages (Count Three). The DRPA now moves for
summary judgment on the remaining claims asserted in the
Complaint — Moore's common law wrongful discharge (Count One) and
breach of contract (Count Two) claims.
A. Summary Judgment Standard
A court may grant summary judgment only when the materials of
record "show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An
issue is "genuine" if it is supported by evidence upon which a
reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). A fact is "material" only if a
dispute about it might affect the outcome of the suit under the
governing substantive law. Id. In deciding whether a genuine
issue of material
fact exists, the court must view the facts in the light most
favorable to the non-moving party and extend all reasonable
inferences to that party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
The moving party always bears the initial burden of
demonstrating the absence of a genuine issue of material fact,
regardless of which party ultimately would have the burden of
persuasion at trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
Once the moving party has met its opening burden, the non-moving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Id. at 324,
106 S.Ct. 2548. The non-moving party may not rest upon the mere
allegations or denials of its pleadings. Id. "[T]he plain
language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial." Id.
at 322, 106 S.Ct. 2548. "When the record is such that it would
not support a rational finding that an essential element of the
non-moving party's claim or defense exists, summary judgment
must be entered for the moving party." Turner v.
Schering-Plough Corp., 901 F.2d 335, 341 (3d Cir. 1990).
It is well settled that the DRPA, as a bi-state agency created
by interstate Compact between the State of New Jersey and the
Commonwealth of Pennsylvania, is not subject to the unilateral
enforcement of either state's laws. See Eastern Paralyzed
Veterans Ass'n v. City of Camden, 111 N.J. 389, 398,
545 A.2d 127 (1988) ("neither creator state can unilaterally impose
additional duties, powers or responsibilities upon the Authority
[or its employees]") (quoting Nardi v. Delaware River Port
Auth., 88 Pa.Cmwlth. 558, 490 A.2d 949, 950 (1985)). The Supreme
Court of New Jersey has recognized, however, that "a bi-state
agency, such as the DRBA [or DRPA], is subject to the law of New
Jersey when the agency's compact expressly provides for
unilateral action, both states have adopted complementary or
parallel legislation, or the agency has impliedly consented to
the exercise of single-state jurisdiction." International Union
of Operating Engineers, Local 68, AFL-CIO v. Delaware River and
Bay Auth., 147 N.J. 433, 446, 688 A.2d 569 (1997) ("Local
In Ballinger v. Delaware River Port Auth.,
311 N.J. Super. 317, 326-29, 709 A.2d 1336 (App. Div. 1998), the Superior
Court of New Jersey, Appellate Division, applied the three-pronged
standard set forth in Local 68 to determine whether New
Jersey's Conscientious Employee Protection Act ("CEPA"), N.J.S.A.
34:19-1 through 19-8, is applicable to the DRPA. The case
involved the consolidated appeals of two plaintiffs whose
complaints alleging CEPA claims against the DRPA had been
dismissed by different trial courts for failure to state a claim
upon which relief could be granted.
The Appellate Division first examined the text of the Compact
and quickly decided that it contained no express authorization
for unilateral action under the CEPA statute. Id. at 326,
709 A.2d 1336.
The Appellate Division then engaged in a detailed comparison of
the CEPA statute to its Pennsylvania counterpart, 43 Pa.
Stat.Ann. §§ 1421-1428 ("the Whistleblower Law") "to determine
whether they are complementary or parallel such that both
legislatures intended for the laws to apply to DRPA." The court
noted that "in order to be complementary and parallel the court
must find the legislative acts of both states to be
`substantially similar' in nature" as well as "some agreement
between the states that CEPA and the Whistleblower Law are
intended to apply to DRPA." Id. at 326-27, 709 A.2d 1336
(citing Eastern Paralyzed Veterans Ass'n, 111 N.J. at 401-02,
545 A.2d 127). The court found
four differences between the statutes. First, CEPA covers both
private and public employees while the Whistleblower Law applies
only to public employees. Id. at 327, 709 A.2d 1336. Second,
CEPA permits the filing of a civil action up to one year from the
date of the alleged violation while the Whistleblower Law permits
the filing of a civil action only within six months from the date
of the alleged violation. Id. Third, CEPA permits the recovery
of punitive damages while the Whistleblower Law does not. Id.
at 328, 709 A.2d 1336. Fourth, CEPA provides for a jury trial
while the Whistleblower Law does not. Id. The court found that
these differences were "not insignificant" and that they "fully
support the conclusion that CEPA and the Whistleblower Law are
neither complementary nor parallel." Id. The court also found
no evidence that the respective state legislatures intended for
the statutes to apply to the DRPA. Id.
Finally, the Appellate Division considered whether the DRPA had
impliedly consented to the exercise of single-state jurisdiction,
which could be found if the DRPA "voluntarily cooperates with New
Jersey in the exercise of jurisdiction or agrees to meet the
requirement of CEPA." Id. The court found no evidence of
implied consent. Id. at 329, 709 A.2d 1336.
Having found no express authority for unilateral action in the
compact, no support for the contention that CEPA and the
Whistleblower Law are "complementary and parallel," and no
evidence of implied consent to the exercise of single-state
jurisdiction, the Appellate Division held that CEPA is not
applicable to the DRPA,Id. The court also held, however, that
the trial courts erred in not permitting the plaintiffs to pursue
common law claims for retaliatory discharge due to their
assertion of CEPA claims in their respective complaints. Id. at
330-32, 709 A.2d 1336. Accordingly, the Appellate Division
reversed the dismissal of one plaintiff's common law retaliatory
discharge claims and the denial of the other plaintiff's motion
to amend his complaint to add common law retaliatory discharge
claims. In closing, the court noted that "a painstaking
comparison of the common law of New Jersey and Pennsylvania, like
the one we engaged in as to CEPA and [the] Whistleblower Law,
will have to be undertaken [by the trial judge on remand] if DRPA
contends that it is immune from such claims." Id. at 332,
709 A.2d 1336.
Under Ballinger, therefore, a plaintiff may pursue a common
law claim against a bi-state agency like the DRPA if he or she
establishes that the applicable common law of New Jersey is
"substantially similar in nature" to that of Pennsylvania. In the
present case. Moore has asserted New Jersey common law claims for
wrongful discharge and breach of contract against the DRPA. Both
claims are based on Moore's contention that the DRPA Work Rules
constitute an implied contract of employment. Thus, the principal
issue to be decided on this motion is whether the common law of
New Jersey regarding implied contract of employment is
"substantially similar in nature" to that of Pennsylvania. The
court finds that it is not.
Under New Jersey law, "absent a clear and prominent disclaimer,
an implied promise contained in an employment manual that an
employee will be fired only for cause may be enforceable against
an employer even when the employment is for an indefinite term
and would otherwise be terminable at will." Woolley v.
Hoffmann-La Roche, 99 N.J. 284, 285-86, 491 A.2d 1257,
modified, 101 N.J. 10, 499 A.2d 515 (1985). "The key
consideration in determining whether an employment manual gives
rise to contractual obligations is the reasonable expectations of
the employees." Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385,
392, 643 A.2d 546 (1994).
Under Pennsylvania law, an employment manual "is enforceable
against an employer if a reasonable person in the employee's
position would interpret its provisions as evidencing the
to supplant the at-will rule and be bound legally by its
representations in the [manual]." Small v. Juniata College,
452 Pa. Super. 410, 682 A.2d 350, 353 (1996), allocatur denied,
689 A.2d 235 (Pa. 1997) (citing Ruzicki v. Catholic Cemeteries
Assoc., 416 Pa. Super. 37, 610 A.2d 495 (1992)). However, the
manual "must contain a clear indication that the employer
intended to overcome the at-will presumption" to be enforceable
against the employer as an implied contract of employment. Id.
"[I]t is for the court to interpret the handbook to discern
whether it contained evidence of the employer's intention to be
bound legally." Id.
The contrast in these standards for determining whether an
employment manual like the DRPA Work Rules creates an implied
contract of employment lies in the perspective from which courts
are directed to examine the document. Under New Jersey law,
courts are required to give binding contractual effect to
employment manual provisions that a reasonable employee would
consider binding unless the employer clearly and prominently
expresses an intention not to be bound; under Pennsylvania law,
courts will not give binding contractual effect to employment
manual provisions unless the employer affirmatively expresses an
intention to be bound that would be so understood by a reasonable
employee. Thus, New Jersey courts will find an implied contract
of employment unless the employer expressly denies an intention
to be bound in language sufficiently clear and prominent to
negate any contrary impression the employment manual might create
in the mind of a reasonable employee, while Pennsylvania courts
will not find an implied contract of employment unless the
employer reveals an affirmative intention to be bound that would
be so understood by a reasonable employee.
This contrast is best illustrated by the manner in which New
Jersey courts examine an employer's attempt to disclaim any
perceived intent to be contractually bound by the provisions of
an employment manual and the absence of a corresponding analysis
by Pennsylvania courts.
Under New Jersey law, "[t]he provisions of the manual
concerning job security shall be considered binding unless the
manual elsewhere prominently and unmistakably indicates that
those provisions shall not be binding or unless there is some
other similar proof of the employer's intent not to be bound."
Woolley, 99 N.J. at 307, 491 A.2d 1257. An employer can
overcome the implication that its employment manual constitutes
an enforceable contract of employment by the inclusion in a very
prominent position of an appropriate statement that there is no
promise of any kind by the employer contained in the manual; that
regardless of what the manual says or provides, the employer
promises nothing and remains free to change wages and all other
working conditions without having to consult anyone and without
anyone's agreement; and that the employer continues to have the
absolute power to fire anyone with or without good cause.
Id. at 309, 491 A.2d 1257. New Jersey courts demand strict
compliance with the "clear and prominent disclaimer" standard set
forth in Woolley. Thus, for example, in Nicosia v. Wakefern
Food Corp., 136 N.J. 401, 415-16, 643 A.2d 554 (1994), the
Supreme Court of New Jersey concurred in the Appellate Division's
finding that the disclaimer under review failed the Woolley
prominence test in part because it was "not highlighted,
underscored, capitalized, or presented in any other way to make
it likely that it would come to the attention of an employee
reviewing it." The court also found that the disclaimer, which
provided that "[t]he terms and procedures contained herein are
not contractual and are subject to change and interpretation at
the sole discretion of the Company, and without prior notice or
consideration to any employee," failed the Woolley clarity
standard because it contained "confusing legalese" instead of
"straightforward terms" and did not adequately convey that "the
the discipline and termination provisions of its manual, reserved
the absolute power to fire anyone with or without cause without
actually changing those provisions." Id. at 414, 643 A.2d 554
(citations and internal quotes omitted).
Under Pennsylvania law, on the other hand, an employer need not
include a "clear and prominent disclaimer" of an intention to be
bound to overcome the implication that its employment manual
constitutes an enforceable employment contract. Indeed, no such
implication will arise under Pennsylvania law unless the employer
reveals an affirmative intention to be bound. See Reilly v.
Stroehmann Bros. Co., 367 Pa. Super. 411, 532 A.2d 1212, 1214
(1987), allocatur granted, 520 Pa. 577, 549 A.2d 137 (1988) ("A
handbook, to be construed as a contract, must contain unequivocal
provisions that the employer intended to be bound by it and, in
fact, renounced the principle of at-will employment"); Martin v.
Capital Cities Media, Inc., 354 Pa. Super. 199, 511 A.2d 830, 842
(1986), allocatur denied, 514 Pa. 643, 523 A.2d 1132 (1987) ("A
reasonable employee may be presumed to regard [employee]
handbooks as having legally binding contractual significance when
the handbook, or oral representations about the handbook, in some
way clearly state that it is to have such effect"). Thus, for
example, in Luteran v. Loral Fairchild Corp., 455 Pa. Super. 364,
688 A.2d 211, 215 (1997), allocatur denied, 549 Pa. 717,
701 A.2d 578 (1997), the court affirmed the trial court's
dismissal of a wrongful discharge claim based the termination
provision of an employee handbook that provided, "You may only be
discharged for just cause," holding that "[s]ince the handbook
contained no language indicating that it was to be a legally
binding contract, we cannot find that it was the intention of the
employer to form a contract." The court did not discuss the
apparent absence of any disclaimer of an intent to be bound.
In light of this significant difference in the manner in which
New Jersey and Pennsylvania courts examine employment manuals to
determine whether they constitute implied contract of employment,
this court finds that New Jersey common law regarding implied
contract of employment is not "substantially similar in nature"
to that of Pennsylvania. Accordingly, the court holds that Moore
cannot maintain his common law wrongful discharge and breach of
contract claims against the DRPA and grants the DRPA's motion for
Although the common law doctrines of New Jersey and
Pennsylvania regarding implied contract of employment differ
substantially as found above, this court will consider, for the
sake of completeness, whether there is an area of at least
partial intersection of these doctrines whereby DRPA could be
held liable under both New Jersey and Pennsylvania common law. As
discussed above, the common law of New Jersey overlaps with the
common law of Pennsylvania in recognizing an implied contract of
employment, including procedures for termination, if an employee
handbook can reasonably be regarded as containing obligations
undertaken by the employer. Under either state's common law, for
example, a handbook expressing an employer's intent to be bound
will create an implied contract as to the promises made. The
common law diverges on the rule of construction applied to
disclaimers contained in the handbook, as noted, since New
Jersey's requirement of a clear and prominent disclaimer is not
found in Pennsylvania law. Where clear disclaiming language is in
fact present, as in the instant case, the plaintiff can only
succeed against DRPA under the intersection of these doctrines if
both New Jersey and Pennsylvania common law can be satisfied in
all essential elements.
Stated differently, if plaintiff could not maintain his claim
for breach of implied contract and wrongful termination under
Pennsylvania law, then it is clear he cannot succeed in holding
DRPA liable at the "intersection" of New Jersey and Pennsylvania
common law, as required if plaintiff is to succeed in this case.
The DRPA Work Rules contain no statement implying the
employer's intent to be bound, let alone a clear indication that
the employer intended to do so, as required by Pennsylvania law.
See Luteran, 688 A.2d at 215; Ruzicki, 610 A.2d at 497.
Moreover, the DRPA has clearly disclaimed any intent to create a
binding contract of employment in the Work Rules, stating in the
fourth paragraph of the Work Rules as follows:
These Rules are not intended and shall not be
construed to constitute any part of an individual
contract of employment and may not be reasonably
relied on for such purposes. Neither shall they be
deemed to exclude DRPA's lawful rights to discipline
employees for any other cause.
(Korn Aff., Ex. G.) The grievance and dispute provision of the
Work Rules provides that a non-represented employee, such as Mr.
Moore, "may consult with their supervisor and submit an appeal in
accordance with the provisions of the Supervisor's Manual, Series
424, `Open Door Policy.'" (Id.)
A glance at the Supervisor's Manual likewise reveals a clear,
concise and prominent disclaimer, which provides as follows in
EXCEPT WITH RESPECT TO REPRESENTED EMPLOYEES AND
EMPLOYEES WHO HAVE WRITTEN INDIVIDUAL EMPLOYMENT
CONTRACTS, EMPLOYMENT AT THE DRPA IS TERMINABLE AT
ANY TIME, WITH OR WITHOUT CAUSE, BY EITHER THE
EMPLOYEE OR THE EMPLOYER. NO REPRESENTATIVE OR
EMPLOYEE OF THE DRPA HAS ANY AUTHORITY TO ENTER INTO
ANY CONTRACT OR AGREEMENT TO THE CONTRARY. THIS
SUPERVISORS MANUAL IS NOT INTENDED AND SHALL NOT BE
CONSTRUED TO CONSTITUTE ANY PART OF AN INDIVIDUAL
CONTRACT OF EMPLOYMENT AND MAY NOT BE RELIED ON BY
ANY EMPLOYEE FOR SUCH PURPOSE.
THIS MANUAL CONTAINS NO PROMISES.