JOSEPH SPICUZZO, SHERIFF OF MIDDLESEX COUNTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2413-07T32314-07T3

JOSEPH SPICUZZO, SHERIFF

OF MIDDLESEX COUNTY AND

THE COUNTY OF MIDDLESEX,

Plaintiffs-Respondents,

v.

MATTHEW BARCHESKI,

Defendant-Appellant.

___________________________________

 

Submitted January 7, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5821-06.

Loccke, Correia, Schlager, Limsky & Bukosky, attorneys for appellant (Marcia J. Tapia, of counsel and on the brief).

Thomas F. Kelso, Middlesex County Counsel, attorney for respondents (Benjamin D. Leibowitz, Deputy County Counsel, on the brief).

PER CURIAM

Defendant Matthew Barcheski appeals from a final judgment entered in favor plaintiff the Middlesex County Sheriff's Department, his former employer, requiring him to reimburse $8,469.48, pursuant to a "Payment Reimbursement Agreement" (the Agreement). In light of our review of the record, the arguments of the parties presented in their briefs, and the applicable legal standards, we affirm.

Defendant applied for employment as a Sheriff's Officer. On February 7, 2003, as part of the application process, defendant executed the Agreement as prepared and presented by plaintiff. We set forth the Agreement's relevant substantive provisions because it is integral to the determination of this matter. The Agreement executed by defendant provided:

I understand that in order to be eligible for employment in the Sheriff's Department of the County of Middlesex as a Sheriff's Office[r], . . . , I must pass a physical and psychological exam and I must attend and successfully complete training . . . . This includes training at the Sheriff's Department followed by training at a Police Training Academy arranged for by the Sheriff's Department. The entire time period for this training, commencing with my start date at the Sheriff's Department, consumes some 26 weeks time. During that period I will receive a training salary of $31,297.00 and am given uniforms to wear.

I understand that at this time I can pay the Department and County for the Police Academy training and uniforms myself, or alternatively[,] I can agree to have the Department and County advance the payment of same for me, subject to my reimbursement of these expenses as is described below.

I also understand and agree that in the event I pass my physical and psychological exams and then turn down the job offer, I will be liable to reimburse the County of Middlesex/Sheriff for the cost of these exams and related reports. I understand that the expense of my physical and psychological exams and related reports will be sent to me by the Sheriff's Department and that I will make reimbursement of these expenses within 30 days from service of them upon me. I understand that the approximate expense for the exams and related reports are as follows:

Physical exam and report $405

Psychological exam and report $190

In the event that I agree to have the Department and County advance the expenses for my training and uniforms, I agree to reimburse the Department and County the full amount in one lump sum [] no later than 48 months from my employment start date. In the event that I remain actively employed by the Department and in good standing for 48 months from my start date, I understand that the foregoing debt shall be excused, discharged and extinguished and I will have no further obligation to pay it. If I leave the Department for any reason whatsoever prior to completion of 48 months of active service, I understand and agree that I am liable to pay for my Police Academy training and uniforms, the expenses for which are [$]17,642 (PA) and [$]297 (uniforms), totaling [$]17,939, plus simple interest at the rate of 3[] per cent per annum from my incursion of these expenses until their payment by me.

Payment of said sum, plus interest at the above rate from inception of the debt shall be accelerated if I leave employment with the Sheriff's Department prior to 48 months from inception of the debt, and shall be due and payable no later than my last day of active employment with the Department, without any further demand for payment.

Plaintiff explained the purpose of the Agreement was to decrease the turnover previously experienced because Sheriff's recruits terminated employment shortly after training in favor of positions with municipal police departments. In effect, plaintiff paid for the necessary training of the recruits and received a limited benefit of that expenditure when a recruit left the Sheriff's Office employ shortly after training. Plaintiff suffered an increased financial burden from the expenses and an overtime work-load assigned to the remaining officers. The Agreement intended to mitigate these issues with an incentive provided to newly employed recruits to maintain employment for a minimum of forty-eight months.

After passing his physical and psychological exams, defendant was hired by plaintiff on March 17, 2003. Plaintiff registered defendant to attend the Passaic County Police Academy (PCPA) for a twenty-six week training period. While defendant attended PCPA, he received compensation from the plaintiff of more than $600 per week. Once he completed his period of training, defendant remained employed with plaintiff until March 3, 2005, when he voluntarily resigned to assume a position with the South Amboy Police Department.

As a result of defendant's early departure from the Sheriff's Department employ, plaintiff sought to enforce the terms of the Agreement. Plaintiff sent defendant a demand for reimbursement of $9,238.61. This sum represented the training expenses pro rated for the period of defendant's employment, plus the costs of uniforms ($297), a physical exam ($405) and psychological testing ($190).

At trial, defendant admitted he executed the Agreement. However, he maintained the Agreement was invalid due to a material misrepresentation regarding the cost of his training at PCPA. Shortly before his departure, defendant learned PCPA did not bill Middlesex for the training costs of its recruits. Instead, plaintiff provided and paid for two sheriff's officers to serve as drill instructors at PCPA. Defendant also determined he would have been charged $1,150 had he opted to individually pay his tuition to PCPA. Plaintiff advised the amount in the agreement represented the expenses of training recruits, which included the weekly payments made while defendant attended PCPA. Defendant was never told plaintiff would recoup his training salary if he departed employment prior to the expiration of four years.

In a December 6, 2007 written opinion, the trial judge reviewed several bases to grant plaintiff relief. First, he determined plaintiff had not acted fraudulently. The Agreement, as written, sought reimbursement of "training-related expenses not to exceed $17,642 if [defendant] left County employment before serving forty-eight months." Further, enforcement of the Agreement was not unconscionable. The court declined to reimburse the expenses related to uniforms and the physical and psychological examinations because they were necessary prior to hiring any recruit. Finally, even if the Agreement was unenforceable, plaintiff was entitled to recover based upon quantum meruit. The court entered judgment for the pro rata portion of defendant's training salary together with three percent simple interest, totaling $8,469.

On appeal, defendant relies on 153 of the Restatement (Second) of Contracts (1982), arguing plaintiff's contractual recital of "[$]17,642 (PA)," as the basis of reimbursement, was a knowing misrepresentation of the PCPA costs. Thus, defendant maintains the contract is void. Alternatively, defendant argues the trial court erred in granting quantum meruit relief because plaintiff cannot sue for the salary paid to defendant.

Generally, parties are bound by the contracts they make for themselves. "Of course, a meeting of the minds is an essential element to the valid consummation of any contract." Center 48 Ltd. Partnership v. May Dept. Stores Co., 355 N.J. Super. 390, 406 (App. Div. 2002) (citing Gross v. Yeskel, 100 N.J. Eq. 293, 294, (E. & A. 1926)). Contrary to defendant's argument, a unilateral mistake of fact is not ordinarily grounds for avoidance of a contract. Ibid. (citing Intertech v. City of Paterson, 255 N.J. Super. 52, 59 (App. Div. 1992)).

To qualify for such extraordinary equitable relief sought, a party "must show special circumstances" described as:

(1) the mistake must be of so great a consequence that to enforce the contract as actually made would be unconscionable; (2) the matter as to which the mistake was made must relate to the material feature of the contract; (3) the mistake must have occurred notwithstanding the exercise of reasonable care by the party making the mistake, and (4) the requested rescission cannot cause serious prejudice to the other party, except for loss of bargain.

[Intertech, supra, 255 N.J. Super. at 59-60.]

We find no opinions adopting the Restatement's provision. However, section 153 reflects requirements similar to those set forth in the case law. The Restatement provides:

Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake . . . , and

 
(a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or

 
(b) the other party had reason to know of the mistake or his fault caused the mistake.

[Restatement (Second) of Contracts 153 (1982).]

Following our review, we conclude defendant failed to sustain an entitlement to relief. Thus, the parties' Agreement must not be set aside.

Trial testimony revealed each party clearly understood defendant would be responsible for reimbursement of the pro rata portion of the stated amounts if he voluntarily terminated his employment prior to the expiration of forty-eight months. We disagree with defendant's position that his misunderstanding of the direct costs paid by plaintiff for a recruit's training at PCPA resulted in the parties' failure to mutually agree on the terms stated in the Agreement. The first paragraph of the Agreement identified the annual stipend paid during a recruit's training, immediately followed by a paragraph presenting the recruit with the choice of individually shouldering the costs or entering into the Agreement. Thus, "the agreed exchange of performance" was clearly set forth.

Further, defendant had the opportunity to make an inquiry as to the nature of the reimbursement had he so chosen. He did not. Thus, application of the extraordinary remedy of relieving defendant's performance, based upon his claimed mistake, caused by his failure to exercise reasonable care cannot be sustained. Crane v. Biclski, 15 N.J. 342 (1954); Fidelity Chem. Prods. Corp. v. Rubino, 1 N.J. Super. 184, 189 (App. Div. 1949). We question whether defendant would, in fact, have declined plaintiff's offer of employment, as he suggests, to avoid the terms of the contract in favor of paying his tuition for PCPA, while not receiving compensation during the training.

Additionally, the record supports the trial judge's finding that there was no inequitable or fraudulent conduct on the part of plaintiff. Plaintiff did not understand defendant's "mistake" and did not attempt to conceal its desire to recoup defendant's training expenses if he opted for early termination. In the absence of fraud, undue influence, concealment, bad faith or an unconscionable advantage resulting from enforcement, defendant's position, equating to rescission resulting from his unilateral mistake, is untenable. Levine v. Lafayette Bldg. Corp., 103 N.J. Eq. 121, 139 (Ch. 1928), rev'd on other grounds, 105 N.J. Eq. 532 (E. & A. 1930).

Finally, plaintiff has fully performed under the contract and cannot be restored to its original position. Intertech, supra, 255 N.J. Super. at 59-60; Panco v. Rogers, 19 N.J. Super. 12, 18 (Ch. Div. 1952); Dencer v. Erb, 142 N.J. Eq. 422, 429 (Ch. 1948). Defendant received the benefit of the PCPA training, which made him marketable to the South Amboy Police Department. He chose to terminate the Agreement prior to its expiration knowing full well the consequences attached to termination.

The remaining arguments presented by defendant lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

In this opinion, we refer to the Middlesex County Sheriff's Department as the plaintiff, understanding defendant's training compensation was paid by Middlesex County and the Sheriff of Middlesex County, Joseph Spicuzzo, is the statutory hiring authority of sheriff's officers for the County. N.J.S.A. 40:9-117.

"New Jersey typically gives considerable weight to Restatement views, and has, on occasion, adopted those views as the law of the State when they speak to an issue our courts have not yet considered." Citibank v. Estate of Simpson, 290 N.J. Super. 519, 530, (App. Div. 1996).

(continued)

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A-2413-07T3

February 24, 2009