JOHN BERRIOS v. PNC BANK

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2128-05T22128-05T2

JOHN BERRIOS,

Plaintiff-Appellant,

v.

PNC BANK,

Defendant-Respondent.

________________________________________________________________

 

Submitted September 26, 2006 - Decided

Before Judges Lisa and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-2372-03.

O'Brien, Belland & Bushinsky, attorneys for appellant (Robert F. O'Brien, of counsel and on the brief; Brett I. Last, on the brief).

Ronan, Tuzzio & Giannone, attorneys for respondent (Michael K. Tuzzio, of counsel and on the brief; Brian C. Nicholas, on the brief).

PER CURIAM

Plaintiff, John Berrios, appeals from a summary judgment dismissing his complaint against defendant, PNC Bank (PNC), for tortious interference with prospective economic relations and defamation. Plaintiff argues on appeal that genuine issues of material fact are in dispute with respect to elements of both claims. We reject plaintiff's argument and affirm.

Plaintiff was employed as a security officer by SOS Security, Inc. (SOS), which contracted with PNC to provide security services. From October 2000 to April 2003, plaintiff was assigned by SOS to work at PNC's Moorestown facility. Plaintiff worked a nightshift. He was stationed at a console area and periodically made rounds through the building, including in secure areas.

On the morning of April 24, 2003, a PNC security analyst received a report that there had been four unauthorized access attempts to a laptop computer located in a restricted area of the bank which contained confidential client information. The report indicated that the attempts occurred between 10:58 p.m. and 11:04 p.m. on April 23, 2003. The area in which the alleged attempts occurred was secured by a door requiring a swipe card for entry; access to the secure area was logged through use of individual swipe cards. The secure area was monitored by video surveillance.

PNC reported to SOS the unauthorized computer access attempts and asked SOS to conduct an investigation by reviewing the swipe card records and surveillance video footage of the secured doorway. The records revealed that just before the time of the alleged unauthorized access attempts, plaintiff's swipe card was used to gain access to the secure area. Video footage confirmed that plaintiff was the only individual to have entered or left the secure area within hours of the alleged incident. PNC representatives did not question plaintiff or any other on-duty security guard about their activities or whereabouts on the night of April 23, 2003.

On April 25, 2003, as a result of this limited investigation, PNC requested that SOS remove plaintiff from its facility. In addition, PNC posted notices in the lobby of its Moorestown site stating there had been computer or software issues. At no point, however, did PNC report the incident to the police or accuse plaintiff of a crime. Nor did any representative of PNC discuss the alleged unauthorized access attempts with anyone outside of PNC or SOS.

SOS complied with PNC's request and removed plaintiff from his assignment at the Moorestown facility. Plaintiff's supervisor at SOS nevertheless expressed doubt as to whether plaintiff had any involvement in the alleged unauthorized attempts. Indeed, SOS did not terminate plaintiff from his employment but offered him a choice of three additional security assignments, one of which was in Cherry Hill, which is adjacent to Moorestown. The new assignments would involve similar responsibilities and the same pay. However, plaintiff chose not to accept any of them, complaining they were not "supervisory" and were geographically inconvenient. Plaintiff stopped working for SOS. He claims he has been unable to find comparable security work.

Judge Baldwin granted PNC's motion for summary judgment, and this appeal followed.

When considering a motion for summary judgment, the judge must decide whether

the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact for purposes of Rule 4:46-2.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]

On appeal, the Appellate Division uses the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). It decides first whether there was a genuine issue of fact. Ibid. If there was not, it then decides whether the trial court's ruling on the law was correct. Ibid.

Applying the Brill standard, we agree with the trial judge that, viewing the evidence most favorably to plaintiff, a rational factfinder could not find in his favor, and PNC was entitled to judgment as a matter of law.

At issue in both claims is the scope of the investigation into the alleged unauthorized computer access attempts. Plaintiff contends the investigation was hasty and incomplete and, therefore, PNC lacked adequate justification for removing him from its facility or for communicating its suspicions about him to SOS. PNC argues it has a fiduciary duty to protect its clients' confidential information and, therefore, had no duty to further investigate the incident before requesting plaintiff's removal and before voicing concerns to SOS about potential security issues.

We first address the tortious interference claim. A claim for tortious interference with a prospective economic advantage requires a plaintiff to prove: (1) he had a reasonable expectation of economic advantage; (2) his economic advantage was lost as a direct result of defendant's malicious interference; and (3) he suffered damages. Lamorte Burns & Co. v. Walters, 167 N.J. 285, 305-06 (2001). The inquiry here focuses on the second element, more particularly whether PNC acted with malice. Plaintiff contends he was removed without a proper investigation, which would give rise to an inference of "malice."

In the context of a tortious interference cause of action malice is not construed as ill will, but is defined to mean that the interference was inflicted intentionally and without justification or excuse. DiMaria Constr., Inc. v. Interarch, 351 N.J. Super. 558, 567 (App. Div. 2001), aff'd, 172 N.J. 182 (2002). Malice is determined on an individualized basis, and the standard used by the court must be flexible, viewing defendant's actions in the context of the case presented. Ideal Dairy Farms, Inc. v. Farmland Dairy Farms, Inc., 282 N.J. Super. 140, 199 (App. Div.), certif. denied, 141 N.J. 99 (1995). The determination will ultimately rest on the "common conception of what is right and just dealing under the circumstances" for both the defendant's motive and the means it used. Sustick v. Slatina, 48 N.J. Super. 134, 144 (App. Div. 1957).

Plaintiff does not dispute PNC's motive but asserts that, in light of Sustick, PNC should have done more before asking for his removal. Plaintiff contends the investigation was incomplete and a thorough investigation would have exculpated him. Plaintiff points to the fact that neither PNC nor SOS interviewed him or any other guard before making a determination as to his fate. Plaintiff argues that these facts give rise to an inference that PNC acted without full knowledge and, therefore, without justification.

In granting PNC's summary judgment motion, the trial judge found that PNC owed no duty to make any investigation before asking for plaintiff's removal, and that the limited internal investigation gave rise to an undisputed inference of justification. We agree.

Plaintiff has the burden of proving that defendant acted without justification. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 756 (1989). On appeal, plaintiff has still failed to offer any facts that would rebut the presumption that PNC acted within the scope of "what is right and just dealing under the circumstances," especially in light of PNC's fiduciary duty to protect its clients' information. Even if plaintiff did not touch the computers, PNC based its action, requesting that SOS remove plaintiff from its facility, on legitimate and objective information, namely the access cards and video recordings. This information provided a reasonable basis to believe that plaintiff was the only individual in the secure area when the unauthorized access to the computers was attempted, and it therefore provided a reasonable belief that plaintiff was the wrongdoer. Even if that belief was incorrect, and even if PNC was negligent for not investigating further before requesting plaintiff's removal, it could not be said that PNC's action constituted an intentional interference without justification or excuse in plaintiff's protectable interest (his employment position). PNC's measured action was reasonable and clearly justified under the circumstances presented. A rational factfinder could not find otherwise, and summary judgment dismissing the tortious interference claim was properly granted.

With respect to the defamation claim, plaintiff's principle argument is that a genuine issue of material fact exist as to whether PNC abused its qualified privilege when it communicated to SOS its suspicions about plaintiff's involvement in the alleged unauthorized computer access attempts without more than a cursory investigation.

The elements of a defamation claim are: the assertion of a (1) false and (2) defamatory statement concerning another; (3) the unprivileged publication of that statement to a third party; and (4) fault amounting at least to negligence by the publisher; and (in most cases) damages. DeAngelis v. Hill, 180 N.J. 1, 12-13 (2004) (internal citations omitted).

The inquiry here is whether, under the third element, plaintiff provided sufficient facts to adequately challenge the contention that PNC acted within its qualified privilege. A qualified privilege arises when "a communication, made bona fide, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be actionable." Jorgensen v. Pennsylvania R.R. Co., 25 N.J. 541, 564 (1958) (quoting Rothholz v. Dunkle, 53 N.J.L. 438, 440 (E & A 1891)).

Whether a qualified privilege applies in a given situation is a matter of law for the court to decide. Swede v. Passaic Daily News, 30 N.J. 320, 332 (1959). The trial judge found that PNC, with a fiduciary duty to protect its clients' confidential information, has an implicit qualified privilege to communicate to SOS information related to security issues, including whether an SOS employee potentially breached security. Plaintiff does not dispute this, but contends that PNC abused the qualified privilege. Qualified privilege may be abused in limited situations, for example, where: (1) the publisher knows the statement is false or acts in reckless disregard of its truth or falsity; (2) the publication serves a purpose contrary to the interests of the qualified privilege; or (3) the statement is excessively published. Kass v. Great Coastal Express, Inc., 152 N.J. 353, 356 (1998) (internal citations omitted).

Plaintiff raises two arguments: (1) PNC communicated to SOS with a reckless disregard for the truth in failing to carry-out a thorough investigation; and (2) PNC communicated its suspicions to SOS employees unrelated to the investigation, which would suggest excessive publication. The record does not support these arguments. Without factual support for his position, plaintiff asserts that abuse of privilege is an issue normally reserved for the jury (and one not generally suited for summary judgment). See Erickson v. Marsh & McLennan Co., 117 N.J. 539, 566 (1990). However, once qualified privilege attaches, plaintiff bears the burden of showing by clear and convincing evidence that defendant abused its discretion. See Costello v. Ocean County Observer, 136 N.J. 594, 614-617 (1994). Furthermore, qualified privilege is favored with a presumption that there was no express malice. Fees v. Trow, 105 N.J. 330, 342 (1987).

The competent evidential materials do not contain any basis upon which a rational factfinder could conclude that PNC reported the incident to SOS with a reckless disregard for the truth because it failed to carry out a more thorough investigation. PNC was charged with the responsibility of safeguarding its clients' sensitive and confidential information. In furtherance of this fiduciary duty, PNC had to act swiftly once it became aware of the attempted unauthorized computer access. The information immediately available, which was objective and reliable, identified plaintiff as the only individual who had access to the secure area when the unauthorized attempt occurred.

Likewise, there is no basis in the record upon which a rational factfinder could find excessive publication. PNC acted in a measured and discrete manner in reporting the incident only to the responsible officials at SOS. And, as far as the posting at PNC's Moorestown facility, the document has not been produced and we (as did the trial court) have only a vague description of what it contained, which was some general reference to an incident involving computer or software issues. Without dispute, plaintiff was not identified in the posting. The vague description of the document provides no basis for a reasonable inference that those reading it would conclude that inculpated plaintiff.

 
Affirmed.

On appeal, plaintiff couches the defamation argument as one of slander per se. However, the issue of slander per se was not raised before the trial court and we decline to consider it on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

(continued)

(continued)

11

A-2128-05T2

October 16, 2006