ROBERT MARTIN v. NEW JERSEY COUNCIL 52

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROBERT MARTIN,

Plaintiff-Appellant,

v.

NEW JERSEY COUNCIL 52 OF THE

AMERICAN FEDERATION OF STATE,

COUNTY, MUNICIPAL EMPLOYEES,

Defendant-Respondent.

____________________________________

August 22, 2014

Submitted February 4, 2014 Decided

Before Judges Fisher and O'Connor.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No. L-

8553-12.

Robert Martin, Appellant, pro se.

Zazzali, Fagella, Nowak, Kleinbaum &

Friedman, attorneys for respondent

(Colin M. Lynch, of counsel and on the

brief).

PER CURIAM

The trial court dismissed the complaint for lack of subject matter jurisdiction, pursuant to Rule 4:6-2(a). Plaintiff claims the court dismissed the complaint for failure to state a claim upon which relief can be granted under Rule 4:6-2(e), a ruling plaintiff contends was error. Plaintiff also alleges there is an inconsistency between the court's oral decision and its subsequent written order that dismissed the complaint, warranting a limited remand for clarification. We affirm.

According to plaintiff's complaint, he was terminated from his position at the New Jersey Institute of Technology. Plaintiff alleges his union, defendant New Jersey Council 52 of American Federation of State, County, Municipal Employees, breached an agreement between the union members and defendant when it failed to represent him during the termination process. The specific causes of action plaintiff alleges in his complaint are "breach of contract/promise and fraud."

In lieu of filing an answer, defendant moved to dismiss the complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 4:6-2(e). In the alternative, defendant requested that the matter be transferred to the New Jersey Public Relations Commission (PERC), pursuant to Rule 1:13-4(a), on the grounds the court lacked subject matter jurisdiction.

At the conclusion of oral argument, the court stated, in relevant part, that

the State has clearly, through the Public Employment Relations Act, . . . established a mechanism . . . by which one resolves these issues and that's via the Public Employment Relations Commission.

They can provide a remedy that . . . makes [plaintiff] whole if . . . they accept his argument as a matter of fact and as a matter of law. For that reason, [plaintiff] belongs in PERC.

This court doesn't have jurisdiction. [Plaintiff] has failed to exhaust his administrative remedies. And for those reasons, the motion to dismiss the claim is granted.

The order states in pertinent part:

The plaintiff's complaint in this matter is hereby dismissed without prejudice pursuant to R. 4:6-2(a) and R. 4:5-8(a), for failure to state a claim upon which relief can be granted.

Plaintiff is correct that there is an inconsistency between the trial court's oral decision and its written order, but a remand for clarification of the judge's ruling is unnecessary. "Where there is a conflict between a judge's written or oral opinion and a subsequent written order, the former controls." Taylor v. Int'l Maytex Tank Terminal Corp., 355 N.J. Super. 482, 498 (App. Div. 2002). Here, the opinion the trial court placed on the record following oral argument controls.

In its oral decision, the trial court stated it was dismissing the complaint for lack of jurisdiction and implied there was a lack of subject matter jurisdiction. The court did not state or indicate it was dismissing the complaint for a failure to state a claim upon which relief can be granted, under Rule 4:6-2(e). Defendant did not seek dismissal of the complaint on both but on alternative grounds; the court determined dismissal on the grounds it lacked subject matter jurisdiction was warranted.

The court did not make any ruling and could not have as it lacked subject matter jurisdiction about whether the allegation of fraud in the complaint was deficient because the "particulars of the wrong, with dates and items if necessary" as required by Rule 4:5-8(a), were not set forth.

We note the order the trial court executed was one prepared by defendant. The failure of the court to properly edit the form of order and strike that portion that states the complaint was being dismissed pursuant to Rule 4:5-8(a) and for the failure to state a claim upon which relief can be granted was obviously an oversight.

Affirmed.