SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
(NOTE: This Court wrote no full opinion in this case. Rather, the Court’s affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Skillman's opinion below.)
Argued October 7, 2002 -- Decided October 24, 2002
PER CURIAM
The issue before the Court is whether a two or a six-year statute-of-limitations
period applies to an employee’s private cause of action for underpayment of the
wages required by the Prevailing Wage Act (the Act).
Steven Wittek was employed by Extel Communications, Inc. from September 1989 through October
1993 as a cable installer in the Passaic County Administration Building in Patterson,
New Jersey. Shortly after the conclusion of his employment, Wittek filed a protest
with the New Jersey Department of Labor (the Department), alleging that Extel had
not paid him the full amount of wages required under the Act.
The Department conducted an investigation and found that Extel had underpaid Wittek and
six other employees a total of $27,788.46. The amount of underpayment to Wittek
was $9,755.23. In May 1994, the Department assessed Extel and the general contractor,
Prismatic Development Corporation, the additional wages allegedly owed to the seven employees, as
well as $5,278.85 in administrative penalties and fees. Extel and Prismatic contested the
assessed fees and requested an administrative hearing. Prior to that hearing, the parties
entered a settlement agreement, under which Excel agreed to pay $8,000 in exchange
for dismissal of the Department’s claims. Wittek received $5,000 from the Department, the
balance going toward administrative penalties and fees. The Stipulation of Settlement specifically provided
that the Department does not waive any rights former employees may have to
pursue individual claims against Extel and Prismatic.
On June 22, 1999, Wittek and another employee, Michael Troise, filed a complaint
in the Law Division against Extel, Prismatic, the Department, and a surety company,
seeking the full amount of additional wages allegedly owed them for the work
they performed. The trial court granted the Department’s motion to dismiss the complaint
for failure to state a cause of action. Wittek and Troise filed a
motion for summary judgment against the other defendants and Extel filed a cross-motion
to dismiss on the ground that the complaint should have been filed within
two years from the time they finished working on the building.
The trial court granted the cross motion, dismissing the complaint as untimely filed.
Only Wittek appealed to the Appellate Division, which reversed, concluding that an employee
has six years to bring a claim for additional wages under the Act.
In reaching its decision, the Appellate Division noted that an employee who is
paid less than the prevailing wage on a public work covered by the
Act has two statutory remedies. First, the employee can file a protest with
the Commissioner of Labor objecting to the amount of wages paid. If the
Commissioner finds that the employer has failed to pay the prevailing wage, he
can, among other things, assess administrative penalties. In addition, the employee can recover
in a civil action the full amount of the prevailing wage less the
amount actually paid to him or her together with costs and reasonable attorney’s
fees. The Act does not require that the employee who claims to have
received less than the prevailing wage elect one or the other of these
remedies or seek administrative relief through the department before filing a civil suit.
The Appellate Division noted that the Act does not contain an express time
limitation; therefore, the court
sought to apply the general limitations period governing the category of claim. The
Appellate Division concluded that Wittek’s claim for additional wages based on Extel’s violation
of the Act clearly was a claim for breach of contract or other
economic harm, entitling Wittek to a six-year limitations period. The court rejected Extel’s
argument that the appropriate limitations period was two years, noting that the legislative
directive as to the limitations period for initiation of administrative proceedings does not
control the time for filing of an action in Superior Court.
In addition, the court rejected Extel’s argument that the Prevailing Wage Act should
be treated the same as the Wage and Hour Law, which has a
two-year statute of limitations, because the statutes have similar purposes. The court found
that these are separate and distinct legislative enactments that do not require identical
limitations periods.
HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed
in the opinion below. An employee has six years to bring a claim
for additional wages under the Prevailing Wage Act.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join
in this PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
A-
78 September Term 2001
MICHAEL A. TROISE,
Plaintiff,
and
STEVEN J. WITTEK,
Plaintiff-Respondent,
v.
EXTEL COMMUNICATIONS, INC.,
Defendant-Appellant,
and
PRISMATIC DEVELOPMENT CORP. and ST. PAUL SEABOARD SURETY CO.,
Defendants,
and
STATE OF NEW JERSEY, DEPARTMENT OF LABOR,
Defendant-Respondent.
Argued October 7, 2002 – Decided October 24, 2002
On certification to the Superior Court, Appellate Division, whose opinion is reported at
345 N.J. Super. 231 (2001).
Angelo J. Genova argued the cause for appellant (Genova, Burns & Vernoia, attorneys;
Mr. Genova and Jeffrey S. Leonard, on the brief).
Santo J. Bonanno argued the cause for respondent Steven J. Wittek (Struble Ragno
Petrie Spinato Bonanno MacMahon Conte & Acquaviva, attorneys).
Lorie E. Grifa, Assistant Attorney General, argued the cause for respondent State of
New Jersey, Department of Labor (David Samson, Attorney General of New Jersey, attorney;
Michael J. Haas, Assistant Attorney General, of counsel; Pamela E. Gellert, Deputy Attorney
General, on the brief).
Warren B. Kasdan argued the cause for amicus curiae Utility and Transportation Contractors
Association of New Jersey (Schwartz, Tobia, Stanziale, Sedita & Campisano, attorneys).
Steven A. Berkowitz argued the cause for amici curiae Plumbers & Pipefitters Local
Union 9; Plumber Local Union 14; Plumbers Local Union 24; Pipefitters Local Union
274; Plumbers & Pipefitters Local Union 322; Steamfitters Local 475; Sprinkler Fitters Local
Union 669; Sprinkler Fitters Local Union 696 and the Public Utility Construction and
Gas Appliance Workers of New Jersey Local Union 855.
PER CURIAM
The judgment is affirmed, substantially for the reasons expressed in Judge Skillman’s opinion
of the Appellate Division, reported at
345 N.J. Super. 231 (2001).
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join
in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-78 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
MICHAEL A. TROISE,
Plaintiff,
And
STEVEN J. WITTEK,
Plaintiff-Respondent,
v.
EXTEL COMMUNICATIONS, INC.,
Defendant-Appellant.
DECIDED October 24, 2002
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST