Fleming v. United Parcel Service, Inc.
| Decision Date | 22 January 1992 |
| Parties | Theodore FLEMING, Plaintiff, v. UNITED PARCEL SERVICE, INC., Julio Castellanos, Dennis O'Keefe, Ronald Fox, William Rogalsky, Walter M.D. Kern, Atlantic Area Parcel Grievance Committee and Al Barlow and John Does, members of the Atlantic Area Parcel Grievance Committee, Defendants. |
| Court | New Jersey Superior Court |
After an arbitration panel upheld plaintiff's discharge from employment on the grounds of dishonesty and after the termination of criminal complaints against him, he filed this action for interference with his contractual rights, slander, suffering severe emotional distress and six counts dealing with the prosecution of criminal charges against him.
Plaintiff's grounds for relief are primarily that the Arbitration Panel established under the collective bargaining agreement, which waited almost two years until the disposition of the criminal complaints in the municipal court, wrongfully refused to delay its proceedings until the completion of plaintiff's trial de novo in the Superior Court. Plaintiff also contends that the municipal court proceedings were tainted by all defendants
because the municipal prosecutor was compensated by plaintiff's former employer.
The court holds that all plaintiff's causes of action except one slander charge are barred for various reasons, such as federal preemption, statutes of limitation, privilege, arbitral immunity, prosecutorial immunity and Tort Claims Act immunity. Furthermore, Opinion 523 of the Supreme Court Committee on Attorney Ethics permits a municipal prosecutor to be compensated by a complaining person.
On December 27, 1989, plaintiff Theodore Fleming ("Fleming") filed a ten count complaint against his former employer, United Parcel Service, Inc. ("UPS"), four of its employees, Ronald Fox, Dennis O'Keefe, Julio Castellanos 1 and William Rogalsky 2, the Atlantic Area Parcel Grievance Committee, ("Arbitration Panel"), Al Barlow, a member of the Arbitration Panel, "John Doe" members of the Arbitration Panel, and Walter M.D. Kern, former municipal prosecutor of the Township of Saddle Brook, New Jersey. The complaint is based upon Fleming's discharge from employment by UPS on March 3, 1986 on the grounds of dishonesty, the Arbitration Panel's upholding of his discharge, and the prosecution of him for theft and assault on criminal complaints signed by Fox, O'Keefe and Castellanos with the knowledge and approval of UPS.
Two counts of the complaint deal with Fleming's discharge from employment and the Arbitration Panel's upholding of that discharge. Fleming alleges in the Second Count that the Arbitration Panel refused to delay his discharge arbitration hearing until an appeal of his municipal court conviction had been decided contrary to public policy and in violation of his contractual
rights under a collective bargaining agreement between UPS and Local Union No. 177, affiliated with the International Brotherhood of Teamsters ("Local 177"). Fleming alleges in the Fifth Count that all defendants interfered with his contractual rights under the same collective bargaining agreement. 3 Defendants contend that both of these claims are governed by federal substantive law. These allegations involve the Arbitration Panel's decision upholding Fleming's discharge. Count Two alleges that the Arbitration Panel, Al Barlow and other "John Doe" members of that committee acted wrongfully by proceeding with his discharge hearing during the pendency of his appeal from a municipal court conviction. Count Five alleges that the Arbitration Panel, Al Barlow and other "John Doe" members of that committee interfered with his contractual rights by proceeding with his discharge hearing.
Six counts of the complaint deal with the criminal charges lodged against Fleming and the prosecution of those charges. Fleming alleges false arrest against UPS, Fox, O'Keefe, Castellanos and Rogalsky (Eighth Count), and malicious prosecution against those defendants and Kern (Sixth Count). He also alleges that UPS made, and Kern accepted, payment for services in connection with Kern's prosecution of the criminal charges against him in the Saddle Brook Municipal Court, which payments he asserts were illegal. (Third and Fourth Counts). In addition, Fleming alleges misuse [abuse] of process in connection with his criminal prosecution (Seventh Count), and denial of the constitutional right to a speedy trial (First Count) against UPS, Fox, O'Keefe, Castellanos, Rogalsky and Kern.
Fleming also claims that defendants have slandered him (Ninth Count) and that he has suffered severe emotional distress (Tenth Count).
All defendants move for summary judgment to dismiss the complaint.
Acting pursuant to a customer complaint, UPS loss prevention specialists set up a surveillance of certain packages at their Saddle Brook facility in March 1986. On March 3, 1986, during this surveillance they observed Fleming, a UPS employee truck driver, place the packages in his UPS vehicle. When confronted, Fleming sped off with UPS Loss Prevention Manager Fox literally hanging from the vehicle. Despite Fox's protests, Fleming continued to accelerate, nearly running over two other loss prevention specialists, defendants Castellanos and O'Keefe. The UPS employees positively identified both Fleming and his vehicle. This was a finding in the written opinion of the Honorable John A. Conte, Judge of the Municipal Court of the Township of Saddle Brook. Nevertheless, Fleming still denies these allegations.
Fleming was confronted by the loss prevention specialists at UPS's Secaucus facility later on March 3, 1986. Also on that day a discharge hearing was held pursuant to the collective bargaining agreement then in effect between UPS and Fleming's union representative, Local 177. The hearing was attended by Fleming, alternate union steward John Jennings, Fox and Rogalsky, who was Feeder Division Manager of UPS's Saddle Brook facility at the time of Fleming's arrest. Fleming contends that Rogalsky told him that if he resigned his employment, he would not be prosecuted. When Fleming refused to resign, he was informed by letter from Rogalsky dated March 4, 1986 that his employment was terminated for committing a dishonest act.
On March 3, 1986 Fleming was arrested and charged with three counts of aggravated assault and one count of theft over $200. The theft charge was signed by Castellanos, and the assault charges were signed by Castellanos, O'Keefe and Fox.
The arrest was effected by officers from the Secaucus Police Department, who later turned Fleming over to the Saddle Brook Police. The Bergen County Prosecutor's Office downgraded the charges to theft under $200 and simple assault, and the matter was then referred to the Saddle Brook Municipal Court. An initial trial date was set for June 9, 1986.
Fleming was represented for purposes of collective bargaining by Local 177. He had certain rights under a collective bargaining agreement, which contained a discharge provision and a binding grievance and arbitration procedure. Fleming filed a grievance protesting his discharge which was processed by Local 177. Under UPS's agreement with Local 177 unresolved discharge grievances were heard by the Arbitration Panel. The Arbitration Panel consisted of three Teamster Union representatives, three UPS representatives and a neutral arbitrator who ruled only when the other six Arbitration Panel members were deadlocked.
While UPS was ready to proceed before the Arbitration Panel with its discharge case against Fleming, the matter was forestalled by the refusal of the three Union Arbitration Panel members to proceed. This refusal was caused by Local 177's request that the Arbitration Panel not proceed during the pendency of Fleming's criminal trial, which request was also made by Fleming and his attorney.
During an appearance in Saddle Brook Municipal Court in June of 1986, Municipal Prosecutor Walter M.D. Kern ("Kern") advised Fox and Rogalsky that the Fleming case would have to be tried on nonregular court dates (regular dates were Wednesday evenings), and that he (Kern) received no compensation for such dates. He told them that they could retain him at $150 per hour for services for his preparation and appearances on non-regularly scheduled court dates, retain another attorney to prosecute the case or attempt to get the county prosecutor to do it. They agreed to retain Kern and pursuant thereto Kern submitted bills for services to UPS which were paid by UPS.
The criminal trial against Fleming, which began on December 4, 1986, was initially prosecuted by Kern. When Kern was disbarred, due to unrelated complaints, effective December 1987, Scott E. Smith, an associate with Pitney, Hardin, Kipp & Szuch, took over ...
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