On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket Number L-4494-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 14, 2009
Before Judges Lisa and Fall.
Plaintiff William J. Winkel, Sr. appeals from the summary judgment dismissal of his age discrimination complaint against defendants Spencer Gifts, L.L.C.; Steve Silverstein, President and C.E.O. of Spencer Gifts, L.L.C.; Isaac Silvera, Vice President and C.F.O. of Spencer Gifts, L.L.C.; Pallidin Group, Inc.; Pallidin GBLLC Universal Studios, Inc., t/a NBC Universal; and fictitiously-named individuals and entities. We affirm.
The facts in this appeal are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Spencer Gifts, L.L.C., headquartered in Egg Harbor Township, New Jersey, operates hundreds of specialty gift stores in the United States, Canada and the United Kingdom. Plaintiff, who was born in 1947, was employed by Spencer Gifts as an at-will employee from June 6, 1968 until April 8, 2004, when his position as Divisional Vice-President of Information Services was eliminated, and he was discharged at the age of fifty-seven. The reason given for his termination was that the Information Technology Division of Spencer Gifts had been reorganized as a cost-savings measure following its acquisition by Gordon Brothers, LLC and Pallidin Capital Group, Inc. in June 2003. In April 2004, plaintiff had been reporting to Barry Orr, also age fifty-seven, another Divisional Vice-President of Information Services, who also served as the company's Chief Information Officer (C.I.O.). Kylie Helvie then replaced Orr as C.I.O., and identified redundancies and inefficiencies in the Information Technology Division. Helvie decided to restructure the Division, including a recommendation that plaintiff's position be eliminated. That recommendation was supported by Steve Silverstein, the company's C.E.O., and Isaac Silvera, its C.O.O. and C.F.O. However, following his termination, plaintiff continued to provide consulting services to Spencer Gifts as an independent contractor until sometime in late May, 2004, when he stopped working because he and Spencer Gifts were unable to reach a formal consulting agreement.
On July 29, 2005, plaintiff filed a two-count complaint against defendants in the Law Division. In count one, plaintiff alleged defendants violated the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49, by terminating his employment based upon his age. In count two, plaintiff presented a claim for severance pay. Defendants moved for entry of summary judgment seeking dismissal of both counts of the complaint. In an order entered on October 24, 2008, the trial court granted defendants' summary judgment motion, dismissing all age discrimination claims contained in count one. The order also provided, as follows:
The Defendants' Motion for Summary Judgment dismissing Count Two of the Plaintiff's complaint containing allegations of breach of implied contract for failure to pay severance benefits to Plaintiff upon his separation from employment with Defendants is hereby denied as to the 1996 MCA, Inc. Severance Pay Plan and the 1987 Spencer Gifts Severance Policy only. As to any and all other severance policies identified by the Plaintiff during this litigation, the Defendants' Motion for Summary Judgment is granted.
Following entry of the October 24, 2008 order, at the request of counsel, the Law Division issued an order on November 3, 2008,*fn1 which provided that the current severance pay claim pending by Plaintiff in the above matter is dismissed with prejudice subject to reopening without opposition from the Defendants once the age discrimination Appeal has concluded. The severance pay claim will be reopened and will remain at the current status as it presently had prior to the dismissal. This Order is entered without costs and without fees and the Defendants' Offer of Judgment is stayed pending whatever Appeals will follow.
Plaintiff then filed a notice of appeal on November 12, 2008, from that portion of the October 24, 2008, order dismissing the age discrimination claim contained in count one of his complaint. The notice of appeal also incorrectly stated that "[a]ll matters were disposed of by Order of [the judge] on November 3, 2008."
We pause at this juncture of our opinion to express our displeasure with this procedure. Clearly, the October 24, 2008 order was interlocutory as it failed to dispose of all claims as to all parties. See R. 2:2-3(a)(1) (permitting appeals as of right from final judgments of the Superior Court trial divisions); Grow Company, Inc. v. Chokshi, 403 N.J. Super. 443, 450 (App. Div. 2008); Township of Piscataway v. South Washington Avenue, LLC, 400 N.J. Super. 358, 365-66 (App. Div. 2008); Janicky v. Point Bay Fuel Co., 396 N.J. Super. 545, 549-50 (App. Div. 2007); Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006) (dismissing the appeal as interlocutory, noting "if we treat every interlocutory appeal on the merits just because it is fully briefed, there will be no adherence to the Rules, and parties will not feel there is a need to seek leave to appeal from interlocutory orders"); Mango v. Pierce-Coombs, 370 N.J. Super. 239, 245 n. 1 (App. Div. 2004). Moreover, we have specifically condemned, as "manifestly an improper maneuver to evade the rule against interlocutory appeals in the absence of leave granted[,]" the back-door procedure employed here by the November 3, 2008 order in dismissing plaintiff's claim "with prejudice," yet being "subject to reopening without opposition" upon completion of the appeal from that portion of the complaint dismissed on summary judgment. Ruski v. City of Bayonne, 365 N.J. Super. 166, 168-69 (App. Div. 2002).
Although a dismissal of this appeal would be fully appropriate, we may also grant leave to appeal nunc pro tunc when the interests of justice would be best served by that course. Township of Piscataway, supra, 400 N.J. at 366; Caggiano v. Fontoura, 354 N.J. Super. 111, 125 (App. Div. 2002). In light of the age of this case and the significant amount of work undertaken in presenting this matter to us, we hesitate to penalize the litigants for the disappointing failure of the attorneys and trial court to adhere to the clear guidelines promulgated by our court rules and case law. Accordingly, we grant leave to appeal nunc pro tunc. See R. 2:2-4.
In granting summary judgment dismissing plaintiff's age discrimination claims, the motion judge stated in pertinent part:
I'm going to grant this motion for summary judgment. I'm going to grant it because having looked at the context of the Petrusky [v. Maxfli Dunlop Sports Corp., 342 N.J. Super. 77 (App. Div.), certif. denied, 170 N.J. 388 (2001)] decision and a number of other decisions, I want to frame the issue so it's clear and narrow for purposes of appeal. There is insufficient evidence on this motion record to create a triable issue as to whether the plaintiff can prove... one of the elements of the prima facie case. I understand the jury charge and what the jury gets is a little bit different than the analytical model for summary judgment. But part of this analytical model is that the plaintiff has to show to establish a prima facie case as the fourth element that the employer sought others to perform the work after the complainant has been removed. I agree with the defendants' interpretation of that language that the employer has to seek others in the sense of either hiring and possibly, for example, if somebody advertised internally, does someone want to have this position, that would fulfill the requirement. But if the employer unilaterally dissolves a position and then redistributes the work to others in the... company's employment presumptively requiring those people to do a little bit more work than they did before, I don't believe a prima facie case has been established.
The judge went on to state that had plaintiff established a prima facie case of age discrimination, he would have denied summary judgment because he was satisfied there had been presented ...