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Isetts v. Borough of Roseland

November 10, 2003

ROBERT G. ISETTS, PLAINTIFF-APPELLANT,
v.
BOROUGH OF ROSELAND; BOROUGH OF ROSELAND DEPARTMENT OF POLICE, AND IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, RICHARD MCDONOUGH, STEVEN SARGESE AND MICHAEL A. PACIO, JR., JOINTLY AND SEVERALLY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX L-2480-02.

Before Judges Skillman, Coburn and Fisher.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 8, 2003

Plaintiff Robert Isetts filed a complaint against defendants, claiming violations of the New Jersey Conscientious Employee Protection Act (CEPA)*fn1. That action was settled with plaintiff receiving $650,000 in exchange for a general release of"any and all claims, rights, actions and causes of action of any kind, both at law and equity" preceding the date of the release. Claiming that defendant continued to retaliate and harass him in violation of CEPA after the settlement, plaintiff filed this second action. Shortly after issue was joined, defendants successfully moved for an order prohibiting discovery regarding events preceding the settlement of the first action.

We granted leave to appeal and reverse.

I.

Plaintiff is now a retired police officer, having formerly been employed by the Borough of Roseland Police Department. On January 24, 2000, plaintiff filed his first suit against defendants, alleging that because he objected to unlawful acts committed by various Roseland officials, he was subjected to retaliation and harassment in violation of CEPA. Among other things, it was claimed that defendants schemed to cause an involuntary transfer of plaintiff to a midnight shift in Newark even though it was known that plaintiff had received death threats because he had killed a Newark gang member during a crime spree in Roseland.

The parties eventually resolved their differences and executed a settlement agreement on March 5, 2001. Plaintiff received $650,000, accepted a paid leave of absence, and agreed to retire on September 1, 2001. Defendants agreed that they (1) would not interfere with plaintiff's pension rights in the Police and Fire Retirement System (PRFS), (2) answer any inquiry about plaintiff's employment only with the date of his employment, highest rank held and his retirement in good standing effective September 1, 2001, (3) would only have"inadvertent contact" with plaintiff thereafter, and (4) would not interfere with plaintiff's right to retain his service revolver after retirement.

Plaintiff also provided defendants with a general release which states, in relevant part:

Plaintiff... releases and gives up any and all claims, rights, actions and causes of action of any kind, both at law and equity, which he has, had or may have against the [non-settling defendants]. This General Release by plaintiff of all claims includes those of which he is not aware and those which are not specifically mentioned in this General Release. This Release applies to all claims resulting from anything that has happened up to the date of its execution by plaintiff. Plaintiff specifically releases these defendants from any and all claims, rights, actions and causes of action that were asserted or could have been asserted...

At the time of the settlement, very little discovery had occurred; plaintiff was deposed for a few days and written discovery requests and answers were exchanged, but the great bulk of discovery remained uncovered.

On March 7, 2002, almost exactly one year after the execution of the settlement agreement and release, plaintiff commenced the current action, claiming that"[a]lmost immediately after the entry of the settlement agreement," defendants Richard McDonough (McDonough) and Steven Sargese (Sargese) engaged in a course of conduct"violative of nearly every material term of the settlement agreement" and in retaliation for plaintiff's first lawsuit and his receipt of substantial monetary benefits in settlement of it. According to the complaint in the second lawsuit, (1) McDonough and Sargese met with a state investigator to report plaintiff's alleged misconduct eight years earlier, knowing it could result in a forfeiture of plaintiff's PFRS pension; (2) Roseland made a unilateral deduction from plaintiff's paycheck; (3) McDonough, and others at McDonough's direction, tortiously interfered with plaintiff's employment with Enforsys during the term of his paid leave of absence, which ultimately forced plaintiff's resignation from Enforsys; (4) McDonough and others stalked and harassed plaintiff in July and September 2001 by following him within the boundaries of Roseland and, at times, beyond; (5) McDonough made statements to the New Jersey State Police expressing reservations about plaintiff's gun permit application and engaged in other efforts to hamper, delay or defeat the application; and (6) defendants unnecessarily delayed issuance of plaintiff's retired police identification card. Based on these and other contentions, plaintiff alleged causes of action based upon CEPA and 42 U.S.C. §§ 1983 and 1985, as well as tort and fraud claims.

II.

Defendants moved for an order narrowing the issues, specifically seeking to bar plaintiff from discovery of any matters which occurred prior to the settlement. Defendants acknowledge, and the motion judge correctly agreed, that the settlement agreement and release did not prohibit plaintiff from asserting his present claims.

The motion judge, however, also agreed with defendants that the inclusion of the word"rights" in plaintiff's release of"any and all claims, rights, actions and causes of action of any kind, both at law and equity" included the waiver of the right ...


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