February 29, 2008
PERRY SNITKEN, PLAINTIFF-APPELLANT,
FRANKLIN SUSSEX AUTO MALL, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-317-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 5, 2007
Before Judges Payne and Sapp-Peterson.
Plaintiff, Perry Snitken, appeals from the November 3, 2006 Law Division order granting summary judgment dismissing, with prejudice, plaintiff's complaint alleging tortious interference against defendant, Franklin Sussex Auto Mall. We affirm.
The basic facts viewed most favorably towards plaintiff are largely undisputed. In April 1998, plaintiff commenced employment with Nassau Broadcasting (Nassau) as an account executive responsible for selling air time for Nassau's six radio stations, providing clients with day-to-day customer service, securing commercial copy, getting the commercials done by the Creative Department, and obtaining clients' approval. Plaintiff was hired by Camille Rose (Rose),*fn1 Nassau's sales director, who served as his supervisor throughout his employment with the company. Defendant is a auto dealership and one of Nassau's advertising clients.
In November 1999, plaintiff went to defendant, which he knew to be one of Nassau's advertisers, to purchase a new vehicle, allegedly choosing it because he had bad credit, and both his wife and a friend had been able to obtain favorable deals from defendant despite credit problems. After making it known that he was a Nassau employee, plaintiff was introduced to defendant's general manager. Thereafter, a loan was secured by the dealership on plaintiff's behalf, despite plaintiff's credit history, which included personal bankruptcy in November 1999. Plaintiff agreed to lease a new 2000 Jeep Cherokee, specifying that the car be equipped with a CD player and security system. However, when the car was delivered, it did not contain the requested security system. Thereafter, installation was substantially delayed, and eventually, the installation was performed, over plaintiff's objection, by an outside vendor.
A short time after the installation of the security system, Daimler-Chrysler sent to plaintiff a voluntary, non-confidential customer service survey. In completing the survey, plaintiff expressed his dissatisfaction concerning the way defendant handled the installation of the security system. Although nothing on the survey said it was confidential and even though he was not required to do so, plaintiff signed his name on the survey, returning it to Daimler-Chrysler, which forwarded it to defendant. Upon receiving the survey, defendant informed Rose of the content of the survey and also sent a copy of the survey to Nassau. Thereafter, Rose admonished plaintiff, both in person and in writing, expressing Nassau's dissatisfaction with plaintiff's conduct concerning the vehicle purchase. In a written warning dated March 7, 2000, Rose stated:
This Written Warning has been initiated due to the unacceptable way in which you used your position with Nassau Broadcasting in an effort to obtain financing for a new vehicle through Franklin-Sussex Auto Mall. You initiated your vehicle purchase/lease by announcing that you worked for Nassau Broadcasting, knowing that Franklin-Sussex Auto Mall has had a long-term business relationship with Nassau Broadcasting. The client himself personally vouched for you based on his long-standing relationship with Nassau Broadcasting. It is in this way that you involved Nassau Broadcasting in the transaction.
You apparently were dissatisfied with some aspect of your dealings with Franklin-Sussex Auto Mall, and berated the General Man[a]ger, both on the telephone and in his showroom. You then used the Customer Satisfaction Survey to further discredit Mr. Snauffer,*fn2 the GM at Franklin-Sussex Auto Mall. A copy was sent to the office of Nassau Broadcasting.
Your behavior was detrimental to Nassau Broadcasting Partner's efforts to operate profitably. Since you represented yourself as an employee upon initiating your transaction, you were a representative of Nassau Broadcasting. Leveraging your position with Nassau Broadcasting to gain personally is a breach of confidence.
In her deposition, Rose testified that after plaintiff received the written warning, he "would loudly complain about how he was being treated unfairly by Nassau Broadcasting and how unpleasant it was to work there." She fired plaintiff on March 15, 2005, offering as explanations for her action that plaintiff (1) "was not good at dealing with rejection, which is a large part of any sales job"; (2) "could not meet sales goals"; (3) "did not get along with the rest of the sales group or other departments in the company, (he was not a 'team player' which was necessary in his line of work)"; and (4) "sexually harassed another female employee[.]"
On June 13, 2005, plaintiff filed a one-count complaint against defendant, alleging tortious interference with his employment relationship with Nassau. Following the completion of discovery, defendant moved for summary judgment, which the court granted. In its oral opinion of November 3, 2006, the court concluded:
If all the Defendant did was to call Rose and convey the information as to what took place and forward a copy of the survey filled out by Plaintiff, then truth is not an improper act for which there is liability under this tort that is alleged in this complaint.
There's also been no showing that there was anything improper  about sending this survey. The Plaintiff had filled it out and although he wasn't even required to, had put his name on it, which is how everybody knew who it was. But there was nothing that I've been provided that indicates that the survey was supposed to be kept confidential or not be released.
For the issue of the question of truth, the Court refers to the [Restatement of Torts] . . . . Section 772, one who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation by giving the third person truthful information or honest advice within the scope of a request for the advice. I don't think that there's been made out a cause of action. I'm granting summary judgment.
The present appeal followed. Plaintiff urges that the motion judge erred as a matter of law in granting summary judgment because there were genuinely disputed issues of fact surrounding the true reason for his termination that warranted resolution by a jury.
In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We decide first whether there was a genuine issue of material fact; if not, we then decide whether the motion judge's application of the law was correct. Id. at 230-31. We apply the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder [sic] to resolve the alleged disputed issue in favor of the non-moving party.
Plaintiff contends that the trial court erred in finding that, because the information conveyed by defendant was truthful, no cause of action for interference with his employment relationship existed. Plaintiff argues that the court should not have focused upon the truth or falsity of the information conveyed, but rather, upon defendant's intent in sending it, which plaintiff claims, was to interfere with his employment relationship with Nassau.
Additionally, plaintiff argues that, regardless of Nassau's stated reason for firing him, his termination was caused by defendant's conduct. He points to the fact that throughout his two-year employment at Nassau, he was only given the one written warning, which dealt with the customer survey. He also points to the fact that defendant is unable to produce any form of written warning or job performance evaluations to support the sexual harassment allegation against him. Thus, he contends a jury should have determined the true reason for his termination.
In evaluating this appeal from an order of summary judgment, we accept as true plaintiff's claim that he was terminated as the result of defendant's conduct. We nonetheless conclude that the conduct was not actionable and, therefore, summary judgment was properly granted.
There are two separate torts of interference: (1) interference with performance of a contract and (2) interference with a prospective economic relationship. Singer v. Beach Trading Co., 379 N.J. Super. 63, 81 (App. Div. 2005):
The separate cause of action for the intentional interference with a prospective contractual or economic relationship has long been recognized as distinct from the tort of interference with the performance of a contract. Not only does New Jersey law protect a party's interest in a contract already made, "[t]he law protects also a [person's] interest in reasonable expectations of economic advantage." [Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 750 (1989) (citations omitted).]
In his complaint and briefing, plaintiff has variously referred to his cause of action as interference by defendant with his existing business relationship with Nassau and interference with a prospective economic advantage.
Where a plaintiff has alleged interference with an employment relationship, this court has evaluated the claim as one involving interference with a prospective economic relationship. Jenkins v. Region Nine Hous. Corp., 306 N.J. Super. 258, 265 (App. Div. 1997). However, "whether the tort is denominated as an intentional interference with contractual advantage, or future economic advantage, the import is the same". Ibid. Under either tort, the elements of the cause of action are: "(1) a protected interest, not necessarily amounting to an enforceable contract; (2) defendant's intentional interference without justification; (3) a reasonable likelihood that the benefit plaintiff anticipated from the protected interest would have continued but for the interference; and (4) resulting damage." Ibid. Additionally, the Restatement (Second) of Torts § 772 comment b provides,
There is of course no liability for interference with a contract or with a prospective contractual relation on the part of one who merely gives truthful information to another. The interference in this instance is clearly not improper. This is true even though the facts are marshaled in such a way that they speak for themselves and the person to whom the information is given immediately recognizes them as a reason for breaking his contract or refusing to deal with another. It is also true whether or not the information is requested.
Here, viewing the facts in the light most favorable to plaintiff, there is no dispute that plaintiff completed the survey and, at least from plaintiff's perspective, the survey contained truthful information. Nor is there any dispute that the survey was non-confidential and required no signature from plaintiff as a condition for completing it. Since plaintiff does not allege that the information defendant furnished to Rose concerning the customer survey he completed was false, plaintiff may not maintain an action against defendant for tortious interference, even if he were fired, as he claimed, because defendant sent his survey responses to Nassau and discussed the matter with his supervisor. East Penn Sanitation, Inc. v. Grinnell Haulers, Inc., 294 N.J. Super. 158, 180 (App. Div. 1996).