JOHN HOWELL v. GREENWICH TOWNSHIP MAYOR and COUNCIL
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-4889-15T4
JOHN HOWELL,
Plaintiff-Appellant,
v.
GREENWICH TOWNSHIP MAYOR and
COUNCIL, and GREENWICH TOWNSHIP
MUNICIPAL CLERK,
Defendants-Respondents.
__________________________________
Argued November 16, 2017 – Decided December 6, 2017
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Docket No. L-
0051-16.
George T. Daggett argued the cause for
appellant.
James M. McCreedy argued the cause for
respondents (Wiley Malehorn Sirota & Raynes,
attorneys; Mr. McCreedy, of counsel and on the
brief; Carolyn C. Duff, on the brief).
PER CURIAM
Plaintiff John Howell appeals from the Law Division's June
7, 2016 order dismissing his complaint against defendants
Greenwich Township Mayor and Council, and Greenwich Township
Municipal Clerk. We affirm.
Plaintiff worked for Greenwich Township from January 20, 1988
until he retired over twenty-seven years later on April 30, 2015.
During his employment, plaintiff was a member of a union that
negotiated a collective bargaining agreement (Agreement) with the
Township covering the period between January 1, 2013 and December
31, 2015. This Agreement applied to plaintiff and similarly-
situated employees and, as stated in its preamble, "represent[ed]
the final understanding on all the bargainable issues between the
Township and the [u]nion."
In pertinent part, the Agreement stated: "The Township agrees
to furnish Medical and Dental Insurance to its present employees
and their eligible dependents." (Emphasis added). Nothing in the
Agreement provided that retired employees, like plaintiff, were
entitled to health insurance upon retirement. The Agreement also
stated:
This Agreement represents and incorporates the
complete and final understanding and
settlement by the parties of all bargainable
issues which were or could have been the
subject of negotiations. During the term of
this Agreement, neither party will be required
to negotiate with respect to any such matter
whether or not covered by this Agreement, and
whether or not within the knowledge or
contemplation of either or both of the parties
2 A-4889-15T4
at the time they negotiated or signed this
Agreement.
This Agreement shall not be modified in whole
or in part by the parties, except by
instrument in writing only executed by both
parties.
When plaintiff retired, the Township canceled his health
insurance. Plaintiff subsequently filed a complaint against
defendants, and asserted he was entitled to health insurance as a
retiree based upon the following statement that was included in
the Greenwich Township Personnel Policies and Procedures Manual
(Manual)1:
(Employees who retire with twenty-five years
of service to the Township may continue to
receive paid health insurance coverage.
Employees receiving retiree health benefits
must notify the Municipal Clerk in writing,
with proof of enrollment, when they become
eligible for Medicare Parts A and B. For more
information, consult the Municipal Clerk.)
At the same time the Township adopted the Manual, it also adopted
an Employee Handbook (Handbook), which contained a provision
identical to that quoted above.
"[E]mployee manuals, . . . depending on the surrounding
circumstances, have been held to give rise to an enforceable
obligation on the part of an employer." Troy v. Rutgers,
168 N.J.
354, 365 (2001). However, an employer's "general personnel
1
The Township adopted the Manual on April 15, 2010.
3 A-4889-15T4
practices embodied in a policy manual do not automatically become
legally binding terms and conditions of employment." Ware v.
Prudential Ins. Co.,
220 N.J. Super. 135, 144 (App. Div. 1987),
certif. denied,
113 N.J. 335 (1988). Indeed, if an employer
does not want the manual to be capable of being
construed by [a] court as a binding contract,
there are simple ways to attain that goal.
All that need be done is the inclusion in a
very prominent position of an appropriate
statement that there is no promise of any kind
by the employer contained in the manual; that
regardless of what the manual says or
provides, the employer promises nothing and
remains free to change wages and all other
working conditions without having to consult
anyone and without anyone's agreement; and
that the employer continues to have the
absolute power to fire anyone with or without
good cause.
[Woolley v. Hoffman-La Roche, Inc.,
99 N.J.
284, 309, modified on other grounds,
101 N.J.
10 (1985).]
The Manual relied upon by plaintiff in his complaint contained
just such a conspicuous disclaimer on the first substantive page
of the document. This disclaimer stated:
The Personnel Policies and Procedures Manual
adopted by the Township Committee is intended
to provide guidelines covering public service
by Township employees and is not a contract.
This manual contains many, but not necessarily
all of the rules, regulations, and conditions
of employment for Township personnel. The
provisions of this manual may be amended and
supplemented from time to time without notice
and at the sole discretion of the Township.
4 A-4889-15T4
[(Emphasis added).]
The Handbook contained a similar, prominent disclaimer. The
first substantive page of the Handbook stated:
Neither this handbook nor any other Township
document, confers any contractual right,
either express or implied, to remain in the
Township's employ. Nor does it guarantee any
fixed terms and conditions of your employment.
The provisions of this Employee Handbook may
be amended and supplemented from time to time
without notice and at the sole discretion of
the Township Committee.
On the second substantive page, the Handbook stated in capital
letters and bold type: "NEITHER THIS MANUAL NOR ANY OTHER
GUIDELINES, POLICIES OR PRACTICES CREATE AN EMPLOYMENT CONTRACT.
THE TOWNSHIP OF GREENWICH HAS THE RIGHT, WITH OR WITHOUT NOTICE,
IN AN INDIVIDUAL CASE OR GENERALLY, TO CHANGE ANY OF ITS
GUIDELINES, POLICIES, PRACTICES, WORKING CONDITIONS OR BENEFITS
AT ANY TIME."
Based upon the clear language of the Agreement that only
provided health insurance for present employees, and the equally
clear disclaimers included in the Manual and the Handbook,
defendants moved to dismiss plaintiff's complaint under Rule 4:6-
2(e) for failure to state a claim. Following oral argument, Judge
John H. Pursel rendered a thorough written opinion, granting
defendants' motion and dismissing the complaint.
5 A-4889-15T4
Applying the precedents discussed above, Judge Pursel found
that, as a member of the union, plaintiff was bound by the terms
of the Agreement, which "does not provide for health insurance
benefits for retired employees of the Township of Greenwich."
Because both the Manual and the Handbook "included prominent and
effective disclosures stating that [they] did not create a
contract[,]" the judge rejected plaintiff's contention that he was
entitled to health insurance under either of these documents. This
appeal followed.
On appeal, plaintiff argues that the judge erred in granting
defendants' motion to dismiss and in finding that the Agreement
was "the controlling document." We disagree.
In reviewing a Rule 4:6-2(e) dismissal, we employ the same
standard as that applied by the trial court. Donato v. Moldow,
374 N.J. Super. 475, 483 (App. Div. 2005). We "search[] the
complaint in depth and with liberality to ascertain whether the
fundament of a cause of action may be gleaned even from an obscure
statement of claim[.]" Printing Mart-Morristown v. Sharp Elecs.
Corp.,
116 N.J. 739, 746 (1989) (citation omitted).
"[W]hen the facts surrounding the content and placement of a
disclaimer are themselves clear and uncontroverted, . . . the
effectiveness of a disclaimer can be resolved by the court as a
question of law." Wade v. Kessler Inst.,
172 N.J. 327, 339 (2002)
6 A-4889-15T4
(alteration in original) (quoting Nicosia v. Wakefern Food Corp.,
136 N.J. 401, 412 (1994)). We "assume the facts as asserted by
plaintiff are true[,]" and we give the plaintiff "the benefit of
all inferences that may be drawn[.]" Banco Popular N. Am. v.
Gandi,
184 N.J. 161, 166 (2005) (quoting Velantzas v. Colgate-
Palmolive Co.,
109 N.J. 189, 192 (1988)). A motion to dismiss
"may not be denied based on the possibility that discovery may
establish the requisite claim; rather, the legal requisites for
plaintiff's claim must be apparent from the complaint itself."
Edwards v. Prudential Prop. & Cas. Co.,
357 N.J. Super. 196, 202
(App. Div.), certif. denied,
176 N.J. 278 (2003).
We have considered plaintiff's contentions in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We are satisfied that Judge Pursel
properly dismissed plaintiff's complaint, and affirm substantially
for the reasons expressed in his written opinion. However, we add
the following brief comments.
The Manual that plaintiff primarily relied upon in support
of his claim that he was entitled to health insurance after his
retirement plainly stated that it was not a contract, and could
be changed by the Township at any time. Thus, the judge correctly
ruled that this prominent disclaimer prevented the Manual from
7 A-4889-15T4
creating an implied contract between plaintiff and the Township
on this or any other issue. Woolley, supra,
99 N.J. at 309; Ware,
supra,
220 N.J. Super. at 144.
On the other hand, the Agreement that plaintiff's union
negotiated with the Township clearly stated that it "represent[ed]
the final understanding on all the bargainable issues between the
Township" and the union employees. The Agreement just as clearly
provided that the Township had agreed to provide medical and dental
insurance to its present employees. Nothing in the Agreement
extended this benefit to retirees such as plaintiff. Under these
circumstances, the judge properly concluded that the Agreement
controlled over the statements contained in the Manual and,
therefore, plaintiff did not have a cognizable claim for health
insurance.
Contrary to plaintiff's contention, the judge's consideration
of the Manual, the Agreement, and the Handbook did not require him
to treat the motion to dismiss as a motion for summary judgment.
It is well established that "a court may consider documents
specifically referenced in the complaint 'without converting the
motion into one for summary judgment.'" Myska v. N.J. Mfrs. Ins.
Co.,
440 N.J. Super. 458, 482 (App. Div. 2015) (quoting E.
Dickerson & Son, Inc. v. Ernst & Young, LLP,
361 N.J. Super. 362,
365 n.1 (App. Div. 2003), aff’d,
179 N.J. 500 (2004)), appeal
8 A-4889-15T4
dismissed,
224 N.J. 523 (2016). Moreover, even if the judge had
treated defendants' motion as one for summary judgment, the final
result would have been the same because defendants were clearly
entitled to a judgment in their favor as a matter of law for the
reasons discussed above.
Finally, the judge did not err by considering defendants'
motion prior to the close of the discovery period. A party
alleging that the court should not consider a dispositive motion
because discovery is not complete must demonstrate that "there is
a likelihood that further discovery would supply . . . necessary
information" to establish a missing element in the case. J.
Josephson, Inc. v. Crum & Forster Ins. Co.,
293 N.J. Super. 170,
204 (App. Div. 1996). The party must also show, with some
specificity, the nature of the discovery sought and its materiality
to the issues at hand. In re Ocean County Comm'r of Registration,
379 N.J. Super. 461, 479 (App. Div. 2005).
Plaintiff did not meet that burden here. As discussed above,
the terms of the Agreement are clear, as are the conspicuous
disclaimers contained in the Manual and the Handbook. Because
plaintiff's complaint stated no viable claim for relief, further
discovery was not warranted.
Affirmed.
9 A-4889-15T4
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