DENITA ZIEGER v. PUBLIC SERVICE ENTERPRISE GROUP, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DENITA ZIEGER,

Plaintiff-Appellant,

v.

PUBLIC SERVICE ENTERPRISE GROUP, INC.,

PSEG NUCLEAR, L.L.C., AFTEROURS URGENT

CARE INC., AFTEROURS NJ PA, PINNACLE

GROUP, and CHRISTOPHER REHM,

Defendants,

and

LEGACY HUMAN RESOURCES, INC.,

Defendant-Respondent.

_______________________________________

December 28, 2016

Argued November 29, 2016 Decided

Before Judges Rothstadt and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3695-15.

Elizabeth Zuckerman argued the cause for appellant (Zuckerman & Fisher, L.L.C., attorneys; Ms. Zuckerman, of counsel and on the brief).

Stacey Boretz argued the cause for respondent (Lindabury, McCormick, Estabrook & Cooper, P.C., attorneys; Ms. Boretz, on the brief).

PER CURIAM

In this wrongful termination action, plaintiff Denita Zieger appeals from the Law Division's March 10, 2016 order compelling arbitration of her claims against defendant Legacy Human Resources, Inc. For the reasons that follow, we reverse and remand.

Legacy is an entity that provides human resources and payroll services. One of its clients, AfterOurs NJ PA, had a contract to provide nursing services at the PSEG nuclear facility in Hancocks Bridge. On February 24, 2011, plaintiff, an employee of AfterOurs, started work as a licensed practical nurse at the facility, and was requested by Dr. Ronald Mack, PSEG's Executive Medical Director, to sign a document titled "LEGACY HUMAN RESOURCES, INC., EMPLOYEE APPLICATION DISPUTE RESOLUTION AGREEMENT." The document indicated that plaintiff was signing it as an applicant for employment with Legacy and that any disputes with Legacy must be resolved in arbitration. Neither at that time, nor thereafter, was the agreement executed by someone on behalf of Legacy.

Plaintiff continued working at the nuclear facility until her employment with AfterOurs ended on June 4, 2014. About a year later, plaintiff filed a complaint against Legacy and others alleging violation of the Conscientious Employee Protection Act, N.J.S.A 34:19-1 to -14, and wrongful termination in violation of public policy.1 A month after entering an appearance, Legacy filed a motion for summary judgment contending that plaintiff was not its employee or, in the alternative, if Legacy was plaintiff's employer, plaintiff was required to arbitrate her claims against Legacy in accordance with the arbitration agreement she signed. Plaintiff opposed the motion, arguing that, despite signing the agreement, there was no contract formed that bound her to arbitrate her dispute with Legacy.

Following argument on March 4, 2016, the motion judge issued an oral decision that plaintiff agreed to resolve her dispute against Legacy through arbitration. The judge found that plaintiff did not disavow her signature on the arbitration agreement, or claim that she did not understand what she was signing. The judge determined that Legacy's motion for summary judgment was essentially a motion to dismiss, which would be granted without prejudice because the dispute was going to arbitration and was not a dismissal on the merits. On March 10, the judge entered an order denying Legacy's motion for summary judgment and dismissal with prejudice, but granted its motion to compel arbitration. This appeal followed.

The question before us is whether the parties entered into a binding agreement to arbitrate their disputes. Plaintiff contends that the motion judge erred in finding that her claims against Legacy must be resolved by arbitration because there was no formation of a contract to arbitrate. The arbitration agreement was not presented to her by Legacy, but by a PSEG employee without authorization from Legacy, and the agreement was never executed by Legacy. We find merit in plaintiff's contention.

Orders compelling or denying arbitration are deemed final and appealable as of right. R. 2:2-3(a); GMAC v. Pittella, 205 N.J. 572, 585-86 (2011). We exercise plenary review of the trial court's decision regarding the applicability and scope of an arbitration agreement. See Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013). The decision on whether parties agreed to arbitrate is a question of law that is reviewed de novo. Ibid.

When reviewing an order to compel arbitration, courts must take into account the strong preference both at the federal level and in New Jersey for enforcing arbitration agreements. Ibid. Nevertheless, the policy favoring arbitration is "not without limits[,]" Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 132 (2001), "and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Angrisani v. Fin. Tech. Ventures, L.P., 402 N.J. Super. 138, 148 (App. Div. 2008) (citing AT&T Techs. v. Commc'n Workers of Am., 475 U.S. 643, 648, 106 S. Ct. 1415, 1418, 89 L. Ed. 2d 648, 655 (1986)).

"[A]t its heart, [arbitration is] a creature of contract." Kimm v. Blisset, LLC, 388 N.J. Super. 14, 25 (App. Div. 2006), certif. denied, 189 N.J. 428 (2007). "In interpreting an arbitration clause, we rely upon basic contract principles." Alamo Rent A Car, Inc. v. Galarza, 306 N.J. Super. 384, 390-91 (App. Div. 1997) (citation omitted). "A contract arises from offer and acceptance, and must be sufficiently definite that the performance to be rendered by each party can be ascertained with reasonable certainty. Thus, if parties agree on essential terms and manifest an intention to be bound by those terms, they have created an enforceable contract." Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992) (internal quotations and citations omitted).

With these principles in mind, we conclude that the motion judge erred in finding that plaintiff and Legacy entered into an arbitration agreement. There was no offer and acceptance of an agreement binding the parties to arbitrate their disputes. On her first day at work, plaintiff was requested by a PSEG employee to sign the arbitration agreement. There is no indication in the record that the request to sign the agreement was directed or authorized by Legacy. Although the agreement reflected that plaintiff sought employment with Legacy, the present record indicates that plaintiff was employed by AfterOurs. Moreover, Legacy never executed the agreement.

Further, we are unpersuaded by Legacy's argument that it may compel plaintiff to arbitrate as a non-signatory to the agreement because her claims arise out of the agreement she signed. Arbitration clause language broad enough to cover any and all disputes related to the business transactions between signatories may only include disputes involving non-signatories if expressly provided. Hirsch, supra, 215 N.J. at 195-96 (citation omitted). A non-signatory may compel arbitration against a signatory to an arbitration agreement when: (1) an agency agreement exists between a signatory and the non-signatory against which arbitration is sought, or (2) via equitable estoppel, which does not apply absent proof of detrimental reliance. Id. at 192-93.

Here, there is no language in the agreement which suggests that the agreement applies to non-signatories, and Legacy does not assert that the agreement was signed by one of its agents or subsidiaries. Additionally, there is no assertion that Legacy detrimentally relied on plaintiff's execution of the arbitration agreement.

Reversed and remanded. We do not retain jurisdiction.

1 This appeal only addresses Legacy's contention that plaintiff's claim is subject to binding arbitration.