ANGELA MASELLI v. VALLEY NATIONAL BANCORP VALLEY NATIONAL BANK

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        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-0440-16T1

ANGELA MASELLI,

        Plaintiff-Appellant,

v.

VALLEY NATIONAL BANCORP.,
VALLEY NATIONAL BANK,

     Defendants-Respondents.
__________________________________

              Submitted October 2, 2017 – Decided February 13, 2018

              Before Judges Ostrer and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No. L-
              4530-16.

              Michael S. Harwin, attorney for appellant.

              Fox Rothschild LLP, attorneys for respondents
              (Christina A. Stoneburner, of counsel and on
              the brief; Thomas R. Basta, on the brief).

PER CURIAM

        Plaintiff Angela Maselli appeals from the Law Division's

August 19, 2016 order dismissing with prejudice her breach-of-

contract complaint against defendant Valley National Bank (the

Bank).       Specifically, Maselli alleges that the Bank breached
binding promises in its Code of Conduct and Ethics (the Code).

The trial court accepted the Bank's contention that the Code

adequately   disclaimed   any    contractual   duty.   Having   reviewed

Maselli's arguments in light of the record and governing principles

of law, we reverse.

     Maselli contends the Bank failed to enforce the Code's anti-

harassment   provisions   when    Maselli's    supervisor   bullied   and

mistreated her.    Maselli alleges the unaddressed and unabated

harassment caused her to take a medical leave and return to a

position in a different unit of the Bank.       A subsequent downsizing

of that unit – but not her previous unit – led to her furlough.

Although she concedes she was an at-will employee, she alleges the

Bank's breach of its Code caused her loss of employment.

     In its motion to dismiss in lieu of an answer, the Bank

contended it disclaimed any contractual obligations.            The Bank

relied on the following language, which appeared in the first

substantive page of an eighteen-page pamphlet:

          Employment is at Will:

          Employees   of  Valley   National   Bank   are
          generally employees-at-will. This means that
          both the employee and Valley have the
          unrestricted right to terminate the employment
          relationship, with or without cause, at any
          time. No employee or agent of Valley National
          Bank is authorized to make any oral or written
          representations    altering     the    at-will
          employment relationship unless made the

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          subject of a specific written contract of
          employment.   Such contract can only be
          authorized by the Chairman, President, and
          CEO.

          It should be noted that nothing contained in
          this Valley Code of Conduct and Ethics or in
          any policy or work rule of Valley shall
          constitute a contract of employment or a
          contract or agreement for a definite or
          specified term of employment.

     We exercise de novo review of the trial court's decision to

grant a motion to dismiss under Rule 4:6-2(e).          Rezem Family

Assocs. v. Borough of Millstone, 
423 N.J. Super. 103, 114 (App.

Div. 2011).   "In reviewing a complaint dismissed under Rule 4:6-

2(e) our inquiry is limited to examining the legal sufficiency of

the facts alleged on the face of the complaint."    Printing Mart-

Morristown v. Sharp Elecs. Corp., 
116 N.J. 739, 746 (1989); see

also Green v. Morgan Props., 
215 N.J. 431, 451 (2013).

     We do not address whether the Code, absent an effective

disclaimer, constituted an implied and enforceable promise by the

Bank to comply therewith.      See Witkowski v. Thomas J. Lipton,

Inc., 
136 N.J. 385, 393 (1994) (setting forth "factors [that] bear

on whether an employee may reasonably understand that an employment

manual   is    intended   to    provide   enforceable     employment

obligations"); see also Woolley v. Hoffmann-La Roche, 
99 N.J. 284,

302, modified, 
101 N.J. 10 (1985) (holding that an employment

manual contained an implied and enforceable promise that the

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employee could be fired only for cause).               The sole issue before

us is whether the disclaimer was effective as a matter of law,

obviating the need to determine the import of the Code, or to

reach Maselli's claim of contract breach and consequential damage.

      The Court in Woolley recognized the efficacy of a disclaimer

in an otherwise contractually binding manual.                Woolley, 
99 N.J.

at 309.    The disclaimer must be "in a very prominent position."

Ibid.   It also must be "clear."       Id. at 285.       The Court suggested

what an effective disclaimer could say, to disavow an implied

promise to terminate only for cause.           Id. at 309.      The suggested

disclaimer    includes   a   general       disavowal    of   any   contractual

obligation: "there is no promise of any kind by the employer

contained in the manual; [and] that regardless of what the manual

says or provides, the employer promises nothing . . . ."                 Ibid.

The   suggested    disclaimer   then       generally    describes    what   the

employer remains free to do, stating the employer "remains free

to change wages and all other working conditions without having

to consult anyone and without anyone's agreement . . . ."                Ibid.

Finally,     the   suggested    disclaimer        specifically       addresses

termination at will, stating "the employer continues to have the

absolute power to fire anyone with or without good cause."               Ibid.

      We have no quarrel with the trial court's determination that

the disclaimer was sufficiently prominent.               It appeared on the

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first substantive page of the Code; it was set off in a separate

paragraph; and introduced by a bolded title.          However, we decline

to find that the title "Employment is at will," clearly describes

the substance of the disclaimer that follows.            We also conclude

that the text of the disclaimer does not unambiguously disavow a

binding contract to abide by the Code.

     We must examine the substance of the Bank's disclaimer.

Although the Bank's disclaimer is significantly more limited than

the one the Court suggested in Woolley, the Bank contends it

nonetheless suffices to "disclaim any contractual relationship"

between Maselli and the Bank.        "[W]hen the facts surrounding the

content   .   .   .   of   a   disclaimer   are    themselves   clear   and

uncontroverted . . . the effectiveness of a disclaimer can be

resolved by the court as a question of law."          Nicosia v. Wakefern

Food Corp., 
136 N.J. 401, 416 (1994).             However, "in some cases

. . . a jury may need to decide whether the content of a disclaimer

is effective."    Ibid.

     The meaning of the Bank's disclaimer hinges on the meaning

of the phrase "contract of employment" in the disclaimer's last

sentence, and whether it encompasses promises to abide by an anti-

harassment policy Maselli contends the Code establishes.                The

balance of the disclaimer pertains to job security — not whether

the Bank or employee has assumed binding promises so long as the

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employment subsists.         The disclaimer's bold heading and the first

full paragraph convey only that employment is at will and the Bank

and   employees   have       "the    unrestricted      right      to    terminate     the

employment    relationship,         with   or    without    cause,       at    any    time

. . . ."     The single-sentence, second paragraph disclaims two

kinds of contracts:          "a contract of employment" and a "contract

or agreement for a definite or specified term of employment."                          The

second paragraph, like the first, pertains to job security.

      Notably, the disclaimer does not expressly and unqualifiedly

disavow the creation of a contract, as Woolley suggested with the

language,    "there     is   no     promise     of   any   kind    by    the   employer

contained in the manual; [and] that regardless of what the manual

says or provides, the employer promises nothing . . . ."                       Woolley,


99 N.J. at 309.       Rather, the disclaimer denies the creation of a

"contract of employment."             We are disinclined to treat language

as surplusage.    Washington Const. Co. v. Spinella, 
8 N.J. 212, 217

(1951) (stating that "all parts of the writing and every word of

it will if possible, be given effect" (quoting 9 Williston on

Contracts (Rev. ed.), sec. 46, p. 64)). Thus, we must give meaning

to the words "of employment."

      In contending that the disclaimer disavows any contractual

relationship,     the    Bank       essentially      interprets        the    words    "of

employment" to mean "related to your employment in any way."                            So

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defined, that would certainly encompass a promise to abide by an

anti-harassment policy embodied in the Code. Bolstering the Bank's

interpretation, the second part of the sentence refers to job

security, implying that the first part refers to something else.

On the other hand, if the first part is as broad as the Bank

essentially contends, there would be no need for the second part.

     An equally plausible reading by a reasonable employee is that

a "contract of employment" means "a contract to employ."        That

would disclaim any promise of job security, or termination only

for cause.    However, it would not disclaim a promise to abide by

the Code as long as an employee remained employed.    This reading

is supported by the title, "Employment is at will," and by the

content of the first paragraph.   Both refer only to job security.

     In sum, the meaning of the disclaimer is ambiguous, because

the terms "are susceptible to at least two reasonable alternative

interpretations."    See Chubb Custom Ins. Co. v. Prudential Ins.

Co. of Am., 
195 N.J. 231, 238 (2008).       As the content of the

disclaimer is not clear, the issue of its effectiveness is reserved

for a jury.   Nicosia, 
136 N.J. at 416.   Therefore, the disclaimer

did not compel dismissal at this early stage of the case.

     Reversed and remanded.   We do not retain jurisdiction.




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