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Darryl Denman v. Public Service Electric & Gas Company and Carolyn Baynes

August 24, 2012


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5137-07.

Per curiam.


Argued February 28, 2012

Before Judges Messano and Espinosa.

Plaintiff appeals from an order that imposed sanctions upon his attorney, William A. Feldman, pursuant to Rule 1:4-8. For the reasons that follow, we affirm.

Plaintiff was employed by Public Service Electric & Gas Company (PSE&G) when a woman he supervised, defendant Carolyn Baynes, filed a sexual harassment complaint against him. Thereafter, in November 2003, Baynes received obscene and threatening correspondence, warning her she "better keep [her] mouth shut." Baynes filed a complaint against plaintiff with the Franklin Township Police Department, charging him with harassment, in violation of N.J.S.A. 2C:33-4(c). The charges were ultimately dismissed for lack of prosecution.

Plaintiff's employment was terminated by PSE&G over three years later, in May 2007. On June 25, 2007, plaintiff filed the complaint in this action against PSE&G, Baynes and defendant Thomas Kiernan. The complaint alleged various claims under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, i.e., sex/gender discrimination (count one - against all defendants), failure to provide a reasonable accommodation for plaintiff's handicap (count two - against PSE&G), and a violation of the anti-retaliation provisions of the LAD (count three - against all defendants). In addition, the complaint alleged intentional infliction of emotional harm (count four - against all defendants), tortious interference of contractual and/or economic relations (count five - against Baynes and Kiernan) and malicious prosecution (count six - against Baynes). Plaintiff claimed he was "terminated involuntarily after an extended period of illness and disability occasioned by a pattern of harassment, hostility, and mistreatment directed against him by PSE&G and its employees." Plaintiff alleged he was terminated in part because of the sexual harassment complaint Baynes filed against him and because the anonymous letters were attributed to him. The complaint alleged that Kiernan authored and sent the letters "for the purpose of falsely implicating Plaintiff as the purported author thereof, falsely lending increased credibility and substance to Baynes' charges."

The matter was resolved with PSE&G and a stipulation of dismissal with prejudice was filed in October 2008. Baynes did not answer the complaint. A default was entered against her and the complaint was dismissed for lack of prosecution.

Kiernan wrote seven letters to plaintiff, asking him to withdraw the complaint against him. Kiernan's attorney, Gregory A. Devero, wrote a letter, dated September 29, 2007, to Feldman, demanding the dismissal of the complaint as frivolous litigation. His letter stated in part:

As you are aware, the undersigned represents the defendant, Mr. Kiernan in above referenced matter. Mr. Kiernan adamantly denies all of the claims asserted by your client. These claims have no basis in law or fact and irrefutably constitute frivolous litigation in violation of [R.] 1:4-8 and [N.J.S.A.] 2A:15-59.1. We hereby provide you with notice that these claims against my client must be dismissed within 28 days from today or sanctions will be sought pursuant to the Rules of Court and New Jersey law.

These untimely allegations assert that my client was responsible for sex/gender discrimination, aiding and abetting, intentional infliction of emotional distress and tortuous interference of a contract. The facts giving rise to these allegations occurred in November of 2003. Further, my client never participated in any activity that resulted in Mr. Denman's termination and there is no evidentiary basis to support this contention.

Pursuant to [Rule] 1:4-8, this serves as notice to you and your law firm that the above counterclaims filed by your firm in this matter constitute frivolous litigation and expressly violate the provisions of [Rule] 1:4-8. The defendants' claims are not warranted by existing law and your allegations have no evidentiary support. [See Rule] 1:4-8(a).

Pursuant to [Rule] 1:4-8(b), you are hereby notified that we will, within a reasonable period of time thereafter, apply by motion for sanctions, including an award for attorney fees and costs, against you, your law firm and your client if these counterclaims are not withdrawn within 28 days from your receipt of this letter. As an attorney licensed in New Jersey, you and your law firm have a joint responsibility not to pursue claims that you know are wholly unjustified under the law. Pursuant to [Rule] 1:4-8(f), my client also expressly reserve our right to proceed against the defendants' ...

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