On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-4785-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically April 19, 2007
Before Judges S.L. Reisner, Seltzer and C.L. Miniman.
Plaintiff, Peri Software Solutions, Inc., appeals from an August 4, 2006, summary judgment dismissing its complaint seeking damages for the breach of contracts relating to the placement of defendant, Saurabh Aggarwal, with plaintiff's client, Morgan Stanley. We affirm.
The facts presented to the motion judge were uncontested. The judge described plaintiff as engaged in the business of "supplying [information technology] professionals on a temporary, but permanent basis to various other business clients." Defendant was employed by plaintiff which had facilitated his immigration to the United States on August 17, 2004. Their relationship was governed by two documents. The first, executed on June 30, 2004, was designated "TRAINEE-EMPLOYEE AGREEMENT."
The Trainee-Employment Agreement began on June 30, 2004, and expired "after one year of accumulated project time with company from Trainees completion of training." The document recited defendant's agreement "to perform services designated in the field of software design, develop[ment], QA, maintenance and documentation by the Company . . . at Compan[y's] premises and/or the client of company." In the event defendant failed to fulfill those obligations within the contract term, paragraph five of the agreement required defendant to "pay financial damages caused to company which includes inter alia but is not limited to legal and immigration fees, recruitment fees, airfare, cost of training and all expenses incurred with regards to his/her deployment in the U.S. Consequently, your visa will be cancelled immediately under applicable law."
The second agreement, titled "PERI SOFTWARE SOLUTIONS INC. EMPLOYMENT AGREEMENT," was executed October 25, 2004. That document recognized the validity of the June 30, 2004, agreement. It also contained a "Non-Compete and Non-Disclosure" provision prohibiting defendant from working "directly as an employee or as a consultant or as a contractor or indirectly through another agency or company with . . . Morgan Stanley . . . for a period of three (3) years after termination of the contract with Company."
On September 20, 2005, plaintiff filed a Law Division action alleging that defendant worked for plaintiff from October 25, 2004, until approximately the end of July, 2005, and that during this period he was assigned to work at Morgan Stanley. The complaint further alleged that when defendant left plaintiff's employ, less than one year later at the end of July 2005, he worked directly for Morgan Stanley. Plaintiff sought recovery of the damages specified in the Trainee-Employee Agreement and damages for breach of the restrictive covenant contained in the Employment Agreement. The complaint also sought damages for "Unjust Enrichment," "Promissory Estoppel," "Misappropriation of Confidential Information/Breach of Duty of Loyalty," and "Tortious interference with economic advantage." Defendant answered and filed a four-count counterclaim.
On defendant's motion for summary judgment, the motion judge found that plaintiff's complaint was barred because plaintiff had failed to register as required by the Private Employment Agency Act, N.J.S.A. 34:8-43 to -66 (the Act).*fn1 The Act prohibits any action "for the collection of a fee, charge or commission for the performance of any of the activities regulated by this act without alleging and proving licensure or registration, as appropriate, at the time the alleged cause of action arose." N.J.S.A. 34:8-45b. The judge concluded:
It is clear that this is an action to recover fees and charges under activities regulated by the act. The statute clearly contemplates barring any financial claims by employment agencies or temporary [help] services unless they have complied with the statutory requirements at the time that their cause of action arose.
An order dated August 4, 2006, memorialized the dismissal.*fn2
On appeal, plaintiff does not dispute that its activities are regulated by the Act or that it was required to, but did not, register in accordance with the Act's provisions. Rather, plaintiff asserts that barring its action "does not serve the purpose of the Act" and that in any event its suit is not barred because it does not seek to recover a "fee, charge or commission." We disagree.
Because this decision was reached on defendant's motion for summary judgment, we apply the same standard to resolve the issue as did the motion judge, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), without affording any special deference to the judge's interpretation of the law. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). That is, we review the record in the light most favorable to plaintiff ...