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Brovich v. Hudson News Group

January 12, 2010

THOMAS BROVICH A/K/A ROBERT BROVICH, PLAINTIFF-APPELLANT,
v.
HUDSON NEWS GROUP, STOP N' SHOP,*FN1 HOWARD SPATZ AND ROSS FALISI, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4257-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 16, 2009

Before Judges Fisher and Sapp-Peterson.

In this appeal, we consider the argument of plaintiff Thomas Brovich (plaintiff) that the trial judge erred in dismissing plaintiff's hostile work environment claim against defendant Hudson News Group (the employer), as well as his tortious interference with a contractual relationship claim against defendant Stop & Shop. We agree with the trial judge that plaintiff's claims were not maintainable and, therefore, we affirm.

Plaintiff was a magazine delivery driver who was terminated by the employer on July 5, 2005, for theft of company property he was encharged with delivering to Stop & Shop in Wilton, Connecticut. Pursuant to a collective bargaining agreement, plaintiff filed a grievance regarding his termination. An arbitrator considered the evidence and found the employer "met its high burden of proving [plaintiff's] culpability." The arbitrator reached what she described as "the inescapable conclusion that [plaintiff] was responsible for the shortage or misappropriation" of magazines he was required to deliver to Stop & Shop.

Plaintiff filed a complaint in the Law Division on August 24, 2007, alleging wrongful discharge, breach of contract, breach of the implied covenant of good faith and fair dealing, a hostile work environment,*fn2 tortious interference with a contractual relationship, violation of the New Jersey Civil Rico Act, N.J.S.A. 2C:41-1 to -6.2, and two unlabeled counts that would appear to allege an intentional infliction of emotional distress. The employer was served with process a few months later and promptly removed the action to the United States District Court for the District of New Jersey, pursuant to 28 U.S.C.A. § 1446.

While the matter was pending in federal court, defendants moved for dismissal. Plaintiff responded by filing an amended complaint, which eliminated the wrongful discharge and breach of contract claims. The parties then consented to a remand of the action to state court and defendants thereafter moved for dismissal. In dismissing the amended complaint, Judge Mary K. Costello largely relied on the statute of limitations and the fact that the original complaint was filed two years and fifty days after plaintiff's termination.

Plaintiff appealed, presenting the following two arguments for our consideration:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DISMISSING THE LAD COUNT, WITH PREJUDICE, AS THE STATUTE OF LIMITATIONS HAD NOT RUN AT THE TIME OF THE FILING OF THE COMPLAINT AND THE TRIAL COURT MISAPPLIED THE DISCOVERY RULE FOR THE STATUTE OF LIMITATIONS.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DISMISSING THE TORTIOUS INTERFERENCE CLAIM BASED ON COLLATERAL ESTOPPEL AS MULTIPLE EXCEPTIONS TO COLLATERAL ESTOPPEL SHOULD HAVE BEEN APPLIED BY THE TRIAL COURT.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). In affirming the dismissal based on Rule 4:6-2,*fn3 we add only the following brief comments.

In considering plaintiff's first point, we initially observe that he has not been very specific about his "hostile work environment" claim. Neither the complaint nor the amended complaint provided any amplification of what in plaintiff's view made the workplace hostile except for the allegations that the "work environment . . . was filled with racial and ethnic slurs," and that defendants "created an environment which discouraged and threatened action against those involved in union organization activity." In his appeal brief, plaintiff additionally asserted that he was ...


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