RALPH CIOFFI v. CITY OF JERSEY CITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0660-10T3

RALPH CIOFFI,

Plaintiff-Appellant,

v.

CITY OF JERSEY CITY,

Defendant-Respondent.

__________________________________

October 18, 2011

Argued September 21, 2011 - Decided

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2770-10.

Patrick P. Toscano, Jr., argued the cause for appellant.

Terri Keller, Assistant Corporation Counsel, argued the cause for respondent (William C. Matsikoudis, Jersey City Corporation Counsel, attorney; Ms. Keller, on the brief).

PER CURIAM

Plaintiff appeals the dismissal of his complaint seeking enforcement of an Intergovernmental Transfer Agreement (ITA) and compensatory damages as a result of defendant's failure to honor the agreement. The Law Division judge found the action was barred by the six-year statute of limitations governing contract actions. We affirm.

Plaintiff was employed by Hudson County (County) as a sheriff's officer. Prior to his employment as a sheriff's officer, he was a County police officer. The Sheriff's Department absorbed the County police in 1996. Plaintiff apparently initiated a civil suit against the County in 1998. Negotiations between the parties during the litigation resulted in the execution of an ITA. Under the ITA, plaintiff would be transferred from the County as a sheriff's officer to the Jersey City Police Department (JCPD) in the requested title of police officer, effective July 11, 2003. The ITA was signed by the appropriate officials from the County and JCPD.

The ITA required approval from the Department of Personnel (DOP). By correspondence dated June 23, 2003, DOP notified the County that pursuant to its review of the job specifications for sheriff's officer and police officer, it did not consider the titles "as being compatible" and could not process the County's request for an intergovernmental transfer. The letter further advised that the County could seek appropriate relief from its decision.

On July 10, the JCPD notified plaintiff that it had postponed its decision to hire him as a police officer under the ITA and that "[u]pon completion of a background check and pre-employment requirements [his] application will be reconsidered." Plaintiff claims that he resigned his position as a sheriff's officer "on or about July 10, 2003."

According to plaintiff, on May 24, 2004, he met with Jersey City Mayor Glenn Cunningham, who advised him that the ITA would be effectuated and that he would "soon" begin his new position. Based upon the mayor's representation, plaintiff contends he was led to reasonably believe that he would be sworn in as a police officer on or soon after May 24, 2004. However, he was never appointed to the position. Mayor Cunningham apparently died the day after he met with plaintiff.

On May 20, 2010, more than six years after being notified that the JCPD was postponing its decision to appoint him as a police officer, plaintiff filed his complaint in the Law Division alleging breach of contract, palpably unreasonable conduct, breach of an oral promise creating a contract, breach of express or implied contract, and promissory and/or equitable estoppel. In lieu of an answer, defendant filed a motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 4:6-2(e). It argued that there was no breach of contract, the mayor's promise was not enforceable and did not create a contract, neither promissory nor equitable estoppel were applicable in the absence of an enforceable contract, and the action was barred by the six-year statute of limitations attributable to contract claims.

Plaintiff opposed the motion and submitted a certification in support of his opposition. He urged the court could not resolve the issues based upon the face of the pleadings and therefore contended the motion should be denied. In addition, plaintiff argued the pleadings were such that further discovery was warranted on his breach of contract and estoppel claims, and the action was not barred by the statute of limitations.

In granting the motion, Judge Hector Velazquez first observed it was undisputed that the ITA was subject to DOP approval and all parties were aware of this condition prior to plaintiff's appointment to the position. Citing Allstate Redevelopment Corporation v. Summit Associates, 206 N.J. Super. 318, 324 (App. Div. 1985), the judge reasoned that no liability could be imposed upon defendant based upon a promise of employment that was subject to a condition precedent "that obviously never happened."

Next, the judge concluded that any promise Mayor Cunningham may have made was also unenforceable since, pursuant to N.J.S.A. 4:69(a), the mayor is not the appointing authority and "could not offer employment to p[ro]spective police officer[s]." The judge further reasoned:

[E]ven if the [c]ourt would agree that the mayor may have the authority to propose an employment contract[,] there is no evidence that in this instance a conversation at a social event with the plaintiff would in any way constitute a binding, enforceable agreement upon the City of Jersey City.

To be enforceable[,] a contract must be sufficiently definite in its terms, that the performance to be rendered by each party can be ascertained by reasonable certainty. See Friedman [v.] Tappan Development Corp., . . . 22 [N.J.] 523 [(1956)].

In this case[,] the mayor's alleged promise to give the plaintiff a job was not sufficiently definite in its terms. The mayor gave the plaintiff no date of employment, no terms of employment, no indication of a salary, benefits, rank, etcetera. The mayor merely said he felt the [ITA] would be effectuated soon and gave no other promises or explanation as to how this would be done. It is clear that the mayor certainly had no authority to overrule the [DOP,] who refused in the first instance to consent to the transfer.

Turning to plaintiff's estoppel claims, the judge determined those claims were without merit, as there was no evidence of any misrepresentation of the terms of the ITA since both plaintiff and defendant were aware that the transfer required DOP approval. Further, the judge noted that while there may have been a promise to hire, the promise was conditioned upon DOP approval, which did not occur. Additionally, Judge Velazquez observed plaintiff was aware of the necessity for DOP approval in order to effectuate the ITA, and he could not reasonably rely upon any promise by Jersey City or Mayor Cunningham.

Finally, the judge addressed the statute of limitations defense raised by defendant. He first noted that there is a six-year limitation period in which claims sounding in contract may be brought. He found that plaintiff's cause of action accrued either on July 10, 2003, when the JCPD rescinded its offer, or July 11, 2003, the effective date of hire set forth in the ITA. Having filed the complaint more than six years beyond either date, the judge concluded the complaint was barred under N.J.S.A. 2A:14-1. Further, Judge Velazquez rejected plaintiff's contention that he first believed he had a viable claim when he spoke with Mayor Cunningham in May 2004 as "disingenuous and incredulous," reiterating the absence of any statutory authority on the part of the mayor to hire plaintiff as a police officer, as well as the absence of any competent proof that he would be sworn in as a police officer the day after he met with Mayor Cunningham.

On appeal, plaintiff contends Judge Velazquez erred in dismissing his complaint because the court "wrongly ignored the allegations pleaded in the complaint and, instead, speculated on the ultimate merits of the litigation." We disagree and affirm substantially for the reasons expressed by Judge Velazquez in his thorough and well-reasoned September 24, 2010 oral opinion. We add the following brief comments.

Here, the facts pled unquestionably establish that plaintiff's cause of action accrued in July 2003, when he was notified that the JCPD was rescinding its offer of employment for further review. Plaintiff's complaint was not filed until 2010, after the expiration of the six-year period set forth under N.J.S.A. 2A:14-1 for contract actions. Moreover, there are no equitable considerations, such as application of the discovery rule, that would provide an equitable exception to the six-year statutory filing period. See Lopez v. Sawyer, 62 N.J. 267, 272 (1973) (holding that "in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim."). Rescinding an offer of employment, such as occurred here, is a discrete event which placed plaintiff on notice of a cause of action and the necessity to file his complaint. See, e.g., Roa v. Roa, 200 N.J. 555, 569 (2010) (holding that a discharge from employment is a discrete event placing an employee on notice of the existence of a cause of action and the need to file a claim). Thus, irrespective of the merits of any of plaintiff's arguments, his cause of action is barred by the six-year statute of limitations under N.J.S.A. 2A:14-1.

Affirmed.