SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-812-96T1
ROBERT BONCZEK,
Plaintiff-Appellant,
v.
CARTER-WALLACE, INC.,
Defendant-Respondent.
___________________________________________________________________
Argued September 15, 1997 - Decided October
22, 1997
Before Judges Landau, Newman and Collester.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County.
Thomas A. Thompson (Collier, Shannon, Rill &
Scott) of the Washington, D.C. bar, admitted
pro hac vice, argued the cause for appellant
(Lowenstein, Sandler, Kohn, Fisher & Boylan,
and Mr. Thompson, attorneys; Gregory B.
Reilly, of counsel; William J. Rodgers and Mr.
Thompson, of counsel and on the brief; Amy C.
Grossman, on the brief).
Eric M. Nelson of the New York bar, admitted
pro hac vice, argued the cause for respondent
(Whitman, Breed, Abbott & Morgan, attorneys;
Mr. Nelson, Kevin F. Kostyn and Sally G.
Blinken, of counsel; Andrew Muscato, on the
brief).
The opinion of the court was delivered by
LANDAU, J.A.D.
Plaintiff Richard Bonczek appeals from the grant of summary
judgment dismissing his complaint against defendant Carter-Wallace,
Inc. which asserted breach of an employment contract and sought
application of a promissory estoppel claim against Carter-Wallace.
Bonczek's appeal also challenges the denial of his request to amend
the complaint to join a new party, Ralph Levine, and to add a count
for intentional interference with contract. We affirm.
Bonczek is an attorney who had been employed since 1969 in in-house counsel roles of increasing responsibility by E.I. DuPont De
Nemours & Co. (DuPont), located in Delaware. In 1993, following
contacts initiated by an executive search firm retained by Carter-Wallace, Bonczek met with its Vice-President for Corporate
Development to discuss employment as "Corporate Vice-President,
Compliance and Regulatory" to be performed at the Carter-Wallace
facility in Cranbury, New Jersey.
Several months of discussions culminated in a September 28,
1993 letter sent from Carter-Wallace's New York headquarters by its
Vice-President of Human Resources offering Bonczek the job, to
commence about thirty (30) days from his resignation from DuPont.
It contained, in part, the following language:
14. Per our standard procedure, this
letter is not intended nor should it be
considered as an employment contract for a
definite or indefinite period of time. Once
employed, you will be an employee at will.
Additionally, this offer is contingent on the
completion of reference checks. In this
regard, we would require that the references
would be generally positive in content and
character.
Bonczek signed and returned the letter on October 4, 1993, resigning from DuPont on the same day. None of the parties'
meetings took place in New Jersey. None of the correspondence was
sent from or received in New Jersey.
Carter-Wallace's reference checks continued, as indicated in
paragraph 14, and on October 12, 1993 the parties met to discuss
questions that had been raised as to the accuracy of Bonczek's
representations respecting his job title and salary level at
DuPont. After Bonczek forwarded additional information, Carter-Wallace withdrew its offer, explaining in an October 18, 1993
letter that the additional submission did "not substantiate the
[DuPont] salary you claimed." Additionally, it was noted that
Bonczek's title at DuPont was not, as first indicated, "Senior
Corporate Counsel", but "Corporate Counsel". The letter concluded
that:
In view of these discrepancies and the lack of
credibility they imply, we have decided to
withdraw our offer of employment to you. As
you know, the offer was contingent on
satisfactory reference checks, which, of
course, includes verification of all material
information on which we relied for the purpose
of making the offer of employment.
In early 1994, Bonczek filed his complaint against Carter-Wallace in New Jersey. Contending that there was no factual
dispute respecting the legal arguments it asserted as defenses,
Carter-Wallace moved, shortly before trial in 1996, for summary
judgment. The motion was granted by order dated August 27, 1996.
In that order, the motion judge also denied Bonczek's eleventh hour
cross-motion to amend the complaint. Bonczek urges on appeal that
Carter-Wallace breached an employment contract which he had
accepted; that under a choice of laws analysis, failure to apply
New Jersey principles of contract law and promissory estoppel
constituted plain error; that the trial judge misapplied and
misinterpreted our decision in Peck v. Imedia, Inc.,
293 N.J.
Super. 151 (App. Div. 1996); that genuine issues of material fact
should have precluded grant of summary judgment as to the breach of
contract and promissory estoppel claims; and that it was an abuse
of discretion to deny his motion to amend the complaint.
It is clear from the proposed date of employment in the
September 28, 1993 letter, and from the provisions of paragraph 14,
that Bonczek's employment never commenced. We note the language,
"[o]nce employed, you will be an employee at will" and "this offer
is contingent on the completion of reference checks...generally
positive in content and character." (emphasis supplied).
Bonczek was not employed by Carter-Wallace because of the
paragraph 14 conditions, and Carter-Wallace's reasonable conclusion
that Bonczek's embellishment of his DuPont title and salary raised
questions of credibility and character. A contract that generated
employment which commenced would be subject, in this State, to the
duty of good faith and fair dealing implicit in all contracts, even
if the employment was at will. Peck v. Imedia, Inc., supra, 293
N.J. Super. at 168 (App. Div.), certif. denied,
147 N.J. 262
(1996); Nolan v. Control Data Corp.,
243 N.J. Super. 420, 429 (App.
Div. 1990).
New Jersey law differs in some respects from that of New York.
In Imedia, we held that even when a job is terminable at will, a
promissory estoppel claim can arise from revocation of a job offer,
depending upon the facts. Imedia, supra, 293 N.J. Super. at 167.
The estoppel may arise where there is denial of a good faith
opportunity to perform after a prospective employee has resigned
from an existing position in reliance upon a firm job offer. This
does not appear to be the law in New York. Mayer v. Publishers
Clearing House,
613 N.Y.S.2d 190 (App. Div. 1994); Dalton v. Union
Bank of Switz.,
520 N.Y.S.2d 764 (App. Div. 1987). Thus, a
possible conflict does exist, justifying the motion judge's
reference to conflict of laws principles and his choice of New York
law.
While place of performance is a highly significant factor for
determining applicable law when a conflict of laws appears in a
contract dispute, the significance of that factor is materially
diminished when performance has not yet begun in the forum state.
Here, the issues in dispute concern the existence and/or effect of
an agreement negotiated and contracted entirely outside of the
forum state. Also in dispute is the question of a promissory
estoppel claim allegedly arising from promises, made outside this
State to a person in another state, that assertedly produced
detrimental consequences in that other state to a resident of that
state who had never begun to work in New Jersey. Here, New Jersey
had not yet acquired any significant interest or relationship to
the transaction as required under New Jersey conflict of laws. See
Glynwed, Inc. v. Plastimatic, Inc.,
869 F.Supp 265, 270 (D.N.J.
1994). Moreover, the lack of New Jersey contacts in the instant
case can be contrasted with the circumstances in cases which have
held that New Jersey law applied because of a significant
relationship or interest. See Gantes v. Kason Corp.,
145 N.J. 478
(1996)(possibly defective machine manufactured in N.J.); McCabe v.
Great Pacific Century Corp.
222 N.J. Super. 397 (App. Div.
1988)(contract to be fully performed in N.J. pursuant to N.J.
regulations, and work had commenced). The choice of New York
substantive law was appropriate on the facts peculiar to this case.
Application of New York law precludes the promissory estoppel
argument put forth by Bonczek. See Mayer, supra, 613 N.Y.S.
2d at
190; Dalton, supra, 520 N.Y.S.
2d at 766.
However, while New Jersey and New York law may differ on the
promissory estoppel issue, we agree with the motion judge that
there would be no difference in result, even were New Jersey law
applied. The motion judge correctly perceived that the record does
not support the existence of the necessary promissory estoppel
element of "clear and definite promise." See Great Falls Bank v.
Pardo,
263 N.J. Super. 388, 401 n.9, (Ch. Div. 1993), aff'd,
273 N.J. Super. 542 (App. Div. 1994).
The employment offer was unambiguously contingent upon
character verification, a factor surely evident to Bonczek as an
experienced corporate attorney. We further agree that the
variations in salary and job title representations were reasonably
regarded by Carter-Wallace as sufficiently material to avail itself
of the paragraph 14 condition. Indeed, even had Bonczek's
employment actually commenced, a discharge would easily have
survived challenge under the good faith and fair dealing test.
Good cause would not have been required under the at-will contract,
had Bonczek's employment commenced.
Bonczek's further contention, also founded in promissory
estoppel under New Jersey law, that he received oral assurance that
he would receive a "generous severance payment" if his employment
with Carter-Wallace did not work out, was properly resolved under
New York law for the same reasons enunciated above with respect to
the contract claim arguments.
The fact that defendant promised plaintiff
employment at a certain salary with certain
other benefits, which induced him to leave his
former job and forego the possibility of other
employment in order to remain with defendant,
does not create a cause of action for
promissory estoppel.
[Dalton, supra, 520 N.Y.S.
2d at 766.]
Moreover, in New York, as in New Jersey, in order for a claimant to
establish promissory estoppel, one of the necessary elements is
existence of a clear and unambiguous promise. Pancza v. Remco
Baby, Inc.,
761 F.Supp. 1164, 1172 (D.N.J. 1991)(applying New York
law). The word "generous" is anything but clear and unambiguous.
The severance benefit contention is also barred under the parol
evidence rule. Assuming existence of an employment contract, in
order to receive evidence to supplement or vary its terms under New
York law,
[A]t least three conditions must exist: (1)
The agreement must in form be a collateral
one; (2) it must not contradict express or
implied provisions of the written contract;
(3) it must be one that parties would not
ordinarily be expected to embody in the
writing . . . [I]t must not be so clearly
connected with the principal transaction as to
be part and parcel of it.
[Mitchill v. Lath,
160 N.E. 646, 647 (N.Y.
1928).]
See also Crossland Fed. Sav. Bank by F.D.I.C. v. A. Suna & Co.,
935 F.Supp. 184, 194 (E.D.N.Y. 1996); Namad v. Salomon, Inc.,
537 N.Y.S.2d 807, 809 (App. Div. 1989), aff'd,
543 N.E.2d 722 (N.Y.
1989).
Absent the need to resolve an evident ambiguity in a written
agreement (not here present), the New Jersey parol evidence rule
would be no different on these facts, nor would the facts
surrounding the severance issue survive our "clear and definite
promise" requirement for establishment of promissory estoppel.
Finally, we find no abuse of discretion in denial of the
motion to amend. We note that although such motions are ordinarily
afforded liberal treatment, the factual situation in each case must
guide the court's discretion, particularly where the motion is to
add new claims or new parties late in the litigation. See Du-Wel
Prods., Inc. v. U.S. Fire Ins. Co.,
236 N.J. Super. 349, 364 (App.
Div.) certif. denied,
121 N.J. 617 (1990). Here we note that the
individual (Levine) sought to be joined is apparently not amenable
to personal service in New Jersey; his existence and corporate
function has been known since the litigation commenced; and his
deposition had been taken two years earlier. Further, it appears
that under New York law, a claim of tortious interference with
economic advantage would likely be dismissed as an effort to avoid
the employment-at-will rule. See Ingle v. Glamore Motor Sales,
Inc.,
535 N.E.2d 1311, 1313 (N.Y. 1989). We would adhere to the
same view.
Affirmed.