NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-0440-16T1
VALLEY NATIONAL BANCORP.,
VALLEY NATIONAL BANK,
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-
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).
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
subject of a specific written contract of
employment. Such contract can only be
authorized by the Chairman, President, and
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,
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,
101 N.J. 10 (1985) (holding that an employment
manual contained an implied and enforceable promise that the
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,
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
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
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
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
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.