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Bernisky v. U.S. Logistics

June 19, 2008

JOSEPH BERNISKY, PLAINTIFF-APPELLANT,
v.
U.S. LOGISTICS, INC., AND JOHN D. COLFER, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-2622-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 2, 2008

Before Judges Parrillo, S.L. Reisner and Baxter.

Plaintiff Joseph Bernisky appeals from an August 4, 2006 order of the trial court dismissing his complaint without prejudice. We affirm.

I.

This lawsuit arises from a contract of employment between Bernisky and defendant U.S. Logistics, Inc., which hired plaintiff as its sales director in 2005. The parties entered into an employment agreement dated July 6, 2005, signed by Bernisky and defendant John D. Colfer, President and CEO of U.S. Logistics. The pertinent section of the contract is paragraph 15, entitled "Settlement by Arbitration."

This section provides:

Any claim or controversy that arises out of or relates to this agreement, or the breach of it, shall be settled by arbitration in accordance with the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in any court with jurisdiction. By agreeing to arbitration, the Employee does not waive his right to a trial by judge or jury. [emphasis added]

The highlighted section was added at Bernisky's request. In a faxed message from Colfer to plaintiff, Colfer stated that he had "modified the Employment Agreement to accommodate several of the changes you requested." These changes included plaintiff's right to a written warning prior to termination, as well as severance pay. Colfer's fax also stated that he "amended line 15 to state that you do not waive your right to have any dispute adjudicated in a court of law."

Nonetheless, Colfer left in the Agreement the language requiring the parties to submit any contractual dispute to arbitration. According to Bernisky's certification, he "relied" on Colfer's fax and "did not notice" when he signed the contract "that Mr. Colfer was still requiring me to proceed to Arbitration before I was able to seek my remedy in Court." In other words, plaintiff allegedly did not read the contract before he signed it.

In March 2006, Bernisky filed a lawsuit against defendants in the Law Division claiming that he had been wrongfully terminated from his position as sales director in violation of the Agreement, and seeking to be relieved of post-employment restrictions contained in the Agreement. He asserted a promissory estoppel claim based in part on the contract. He also asserted claims for defamation and that his termination was in violation of "the New Jersey Conscientious Employee Protection Act [,] N.J.S.A. 34:19-3" (CEPA). Defendants filed a motion to dismiss the complaint, contending that paragraph 15 of the agreement required plaintiff to submit his claims to non-binding arbitration before filing suit in court.

In an oral opinion placed on the record on August 4, 2006, the trial judge construed the contract as an "agreement that there would be arbitration, but that thereafter either party can pursue their remedies in a court of law in the event they didn't agree with the results of the arbitration." He specifically concluded that the "matter must be arbitrated prior to any judicial intervention in the case." Accordingly, ...


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