DAVID GUIRGUESS VS. PUBLIC SERVICE ELECTRIC AND GAS COMPANY (L-3041-17, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0511-17T1
DAVID GUIRGUESS,
Plaintiff-Appellant,
v.
PUBLIC SERVICE ELECTRIC AND
GAS COMPANY AND PUBLIC SERVICE
ELECTRIC AND GAS SERVICES
CORPORATION AND RICHARD BLACKMAN,
Defendants-Respondents.
__________________________________
Argued May 24, 2018 – Decided July 30, 2018
Before Judges Simonelli and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex Company, Docket No.
L-3041-17.
Darren C. Barreiro argued the cause for
appellant (Greenbaum, Rowe, Smith & Davis,
LLP, attorneys; Darren C. Barreiro, of counsel
and on the briefs; Irene Hsieh, on the
briefs).
Sean P. Lynch argued the cause for respondents
(Fisher & Phillips, LLP, attorneys; Sean P.
Lynch and Valerie C. Curry, on the brief).
PER CURIAM
Plaintiff David Guirguess appeals from the September 15, 2017
Law Division order, which granted the motion of defendants Public
Service Electric and Gas Company, Public Service Electric and Gas
Services Corporation, and Richard Blackman to compel arbitration.
We reverse and remand.
In December 2008, plaintiff was offered a position as a
Nuclear Shift Supervisor in the Salem Operations Department of
PSEG Power Nuclear LLC (PSEG Power), a subsidiary of Public Service
Enterprise Group Incorporated (PSEG). The offer letter specified
his salary and benefits and that his employment with PSEG Power
was at-will. Enclosed with the letter was a mandatory arbitration
agreement:
As a condition of my employment, I agree to
waive my right to a jury trial in any action
or proceeding related to my employment with
PSEG. I understand that I am waiving my right
to a jury trial voluntarily and knowingly, and
free from duress or coercion. I understand
that I have a right to consult with a person
of my choosing, including an attorney, before
signing this document. I agree that all
disputes relating to my employment with PSEG
or termination thereof, whether based upon
statute, regulation, contract, tort or other
common law principles, shall be decided by an
arbitrator through the Labor Relations Section
of the American Arbitration Association.
Any and all disputes arising out of or
relating to this Agreement or my employment,
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other than an unemployment or workers
compensation claim, will, at the demand of
either me or PSEG, whether made before or
after the institution of any legal proceeding,
be resolved through binding arbitration
administered by the American Arbitration
Association (AAA) in accordance with the
Employment Dispute Resolution Rules of the AAA
and with the United States Arbitration Act.
The arbitration will be conducted before one
arbitrator in Newark, New Jersey or by mutual
consent at another agreed upon location. If
the parties cannot agree on the arbitrator
within 30 days after the demand for an
arbitration, then either party may request the
AAA to select the arbitrator, which selection
will be deemed acceptable to both parties. To
the maximum extent practicable, the
arbitration proceeding will be concluded
within 180 days of filing the demand for
arbitration with the AAA. All costs and fees
of the arbitration will be shared equally by
the parties, unless otherwise awarded by the
arbitrator. Each party agrees to keep all
such disputes and arbitration proceedings
strictly confidential except for disclosure of
information required by law. Each party
further agrees to abide by and perform any
award rendered by the arbitrator, and that a
judgment of a court of competent jurisdiction
may be entered on the award.
In May 2011, plaintiff was offered the position of Project
Manager with PSEG Services Corp. The offer letter specified his
salary and stated he would "continue to be eligible to participate
in PSEG [Services Corp.'s] discretionary Performance Incentive
Plan (PIP) under the terms and conditions of that plan." The
letter did not mention arbitration and enclosed no arbitration
agreement.
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Plaintiff's employment was terminated on September 9, 2016.
On May 18, 2017, he filed a complaint against defendants, alleging
a violation of the New Jersey Conscientious Employee Protection
Act, N.J.S.A. 34:19-1 to -14; violation of the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; aiding and
abetting discrimination under the LAD; and wrongful termination.
Defendants filed a motion to compel arbitration, and
requested oral argument if plaintiff filed opposition. Plaintiff
filed opposition. Without hearing oral argument, on September 15,
2017, the motion judge entered an order dismissing the complaint
with prejudice and compelling arbitration before the AAA. The
judge gave no reasons for this ruling. This appeal followed.
Pursuant to Rule 1:6-2(d), Civil Part motions, other than
certain exceptions set forth in Rule 1:6-2(b), must be listed for
oral argument if "a party requests oral argument in the moving
papers or in timely-filed answering or reply papers, or . . .
unless the courts directs." A request for oral argument by a
party is required to be granted as of right. Great Atl. & Pac.
Tea v. Checchio, 335 N.J. Super. 495, 497-98 (App. Div. 2000).
Furthermore, a party filing opposition papers to a motion need not
make a separate request for oral argument. Vellucci v. DiMella,
338 N.J. Super. 345, 347-48 (App. Div. 2001).
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In addition, "Rule 1:7-4(a) requires a judge to issue a
decision either orally or in writing which 'find[s] the facts and
state[s] its conclusions of law thereon in all actions tried
without a jury[.]'" In re Tr. Agreement Dated Dec. 20, 1961, by
& between Johnson & Hoffman, Lienhard & Perry, 399 N.J. Super.
237, 253 (2006) (alterations in original), aff'd, 194 N.J. 276(2008). "The purpose of the rule is to make sure that the court
makes its own determination of the matter." Id. at 254.
"When a trial court issues reasons for its decision, it 'must
state clearly [its] factual findings and correlate them with
relevant legal conclusions, so that parties and the appellate
courts [are] informed of the rationale underlying th[ose]
conclusion[s].'" Avelino-Catabran v. Catabran, 445 N.J. Super.
574, 594 (App. Div. 2016) (alteration in original) (quoting Monte
v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986)). When that
is not done, a reviewing court does not know whether the judge's
decision is based on the facts and law or is the product of
arbitrary action resting on an impermissible basis. See Monte,
212 N.J. Super. at 565.
The manner in which a judge complies with the Rule is left
to the judge's discretion. In re Tr. Agreement Dec. 20, 1961, 399
N.J. Super. at 253. A judge is not required to specify grounds
for the denial of a motion and, instead, can rely upon reasons
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expressed by a party. Id. at 253-54. However, the judge must
make "such reliance 'explicit.'" Allstate Ins. Co. v. Fisher, 408
N.J. Super. 289, 301 (App. Div. 2009); Pressler & Verniero, Current
N.J. Court Rules, cmt. 1 on R. 1:7-4 (2018). The judge must "clear
the extent of [the judge's] agreement with and reliance on [the]
proposed findings of fact and conclusions of law," demonstrating
that the judge "carefully considered the evidentiary record and
did not abdicate [the judge's] decision-making responsibility."
In re Tr. Agreement Dated Dec. 20, 1961, 399 N.J. Super. at 254.
Here, defendants requested oral argument, yet the motion
judge decided the motion on the papers without argument. There
is nothing in the order granting defendants' motion in this matter
that confirms that the judge made an independent decision based
upon an analysis of the facts and applicable law. "While the
failure to provide reasons necessitates a remand, we are left with
the option of remanding for a statement of reasons or reversing
and remanding for consideration of the motion . . . anew. We
determine that the latter course of action is appropriate here."
Fisher, 408 N.J. Super. at 303.
The order under review is vacated. The matter is remanded
and the motion judge is directed to reconsider defendants' motion
with oral argument and enter a new order, together with a written
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or oral statement of reasons in conformity with Rule 1:7-4. We
do not retain jurisdiction.
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