Jewish Center of Sussex County v. Whale

• Decision Date: 13 February 1980
• Citation: 411 A.2d 475,172 N.J.Super. 165
• Parties: JEWISH CENTER OF SUSSEX COUNTY, Plaintiff-Respondent, v. Chaim WHALE a/k/a Louis R. Wolfish, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 165

172 N.J.Super. 165

411 A.2d 475

JEWISH CENTER OF SUSSEX COUNTY, Plaintiff-Respondent, v. Chaim WHALE a/k/a Louis R. Wolfish, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 16, 1980.

Decided Feb. 13, 1980.

Anthony M. Mahoney, Cranford, for defendant-appellant (Bernstein & Mahoney, Cranford, attorneys; Dennis M. Mahoney, Cranford, on the brief).

Lewis Stein, Succasunna, for plaintiff-respondent (Nusbaum, Stein & Goldstein, Succasunna, attorneys).

Before Judges LORA, ANTELL and PRESSLER.

The majority's opinion was delivered by

PER CURIAM.

The judgment appealed from rescinding the contract of rabbinical employment between the parties is affirmed substantially for the reasons set forth in Judge Polow's opinion, 165 N.J.Super. 84, 397 A.2d 712 (Ch.Div.1978). We are persuaded that a rabbi's ethical and moral character is a matter which goes to the essence of his employment as a congregation's spiritual leader and educational supervisor and that a rabbi's recent disbarment as a lawyer occasioned by a series of ethical violations, his conviction of a crime of moral turpitude committed after the disbarment and his service of a custodial sentence in a federal penitentiary are facts so obviously affecting ethical and moral character as to leave absolutely no doubt of his obligation to have disclosed them. ¹

Affirmed.

ANTELL, J. A. D. (dissenting).

Defendant appeals from a summary judgment which granted rescission of his contract of employment as a rabbi on the ground that, even though not asked, he failed to volunteer that he had been earlier disbarred from the practice of law and convicted of crime. This determination was arrived at even though the trial judge was told by plaintiff during oral argument that in addition to nondisclosure as a reason for rescission, defendant's written resumee for the position also contained an affirmative misrepresentation as to his whereabouts between 1970 and 1977. Whereas defendant therein stated that he was then employed as an educational administrator in Israel, plaintiff presumably could prove that he was actually imprisoned for part of that time in the United States. The judge responded that this information "beclouds the issue". He preferred that the case be decided on the basis of whether there was "an absolute duty to disclose" and whether defendant's failure to do so constituted "fraudulent concealment." Thus, although the result reached below could probably have been eventually placed on a sound factual footing, the trial judge resolved the controversy by unnecessarily establishing a far-reaching and, in my respectful judgment, an unsound legal precedent.

The essence of the decision under review is found in the trial judge's conclusion that

. . . as a matter of law, a prior criminal record and disbarment from the practice of law must be disclosed by one seeking a rabbinical post involving the spiritual, religious and educational leadership of a religious congregation (and that failure to do so) results in damage and prejudice to the employer congregation and provides an undue, unconscientious advantage to the applicant. (Jewish Center of Sussex County v. Whale, 165 N.J.Super. 84, 92, 397 A.2d 712, 716 (Ch.Div.1978))

This holding is affirmed by this court on the reasoning that it rests on facts "obviously affecting ethical and moral character."

If the duty of disclosure is valid in this context it cannot, in principle, be limited to information relating to conviction and disbarment. It applies with equal logic to other derogatory details of an applicant's background, such as alcoholism, drug dependence, certain forms of illness and other conditions influencing behavior. It is also applicable to crimes committed by an applicant for which he has not yet been apprehended or detected. These facts are as material to the applicant's capacity to serve as a previous conviction and disbarment, and I disagree that he must volunteer these facts at peril of being later held guilty of equitable fraud.

Furthermore, the duty would seem to apply to all such misconduct, no matter how remote in time. Defendant was disbarred in 1969 and his criminal conduct, for which he was convicted in 1974, occurred in 1971. The contract of hiring began in 1978. Must he always display these infamous emblems whenever he seeks employment as a rabbi? What would be the effect of a pardon? Or an expungement of the record? These hard questions are now forecast for future cases without any compelling necessity to do this under the facts hereof.

Although no reasoned basis is given to support the court's flat pronouncement, its surface appeal in this case is obvious. However, legal propositions must be examined in their wider application as precepts to govern other cases. The difficulty here is that nothing appears in the record before us about the relationship between this rabbi and this congregation that would limit the principle of required disclosure to the present setting. No facts were found with respect thereto, no testimony was taken, and plaintiff's affidavits only state the facts of the hiring and subsequent discovery of defendant's history. Therefore, there is no way of discerning what there is about the duties entailed in the position for which he was hired which is necessary to understand why the obligation of voluntary disclosure of derogatory information is appropriate for a rabbi and not others. If the principle is valid on these meager facts, then all professionals must advise their prospective clients and patients of previous convictions of crime and suspensions from practice. Whatever differences there may be between those situations and this only bear on the nature of the remedy sought, not on whether the duty exists and whether it may furnish some element necessary to a cause of action or defense to a claim.

Nor can the principle, stated so broadly as it is, stop with professionals. It would encompass businessmen seeking advancement to positions of trust, teachers, government employees and officials, and certainly candidates for elective public office. Although people who fill these occupations may not be "spiritual leaders," their rectitude and probity are matters of no less concern to those who give them their trust and confidence than defendant's are to plaintiff. Labels and talismanic phrases are no substitutes for a careful factual analysis of how defendant's history under the particular circumstances presented was so material to the terms of employment that his failure to make a voluntary disclosure thereof amounted to a material misrepresentation and therefore an equitable fraud. Accord, Weintraub v. Krobatsch, 64 N.J. 445, 449, 317 A.2d 68 (1974); Keen v. James, 39 N.J.Eq. 527, 540-41 (E. & A.1885). Absent such an undertaking, the court's categorical statement of principle must apply to all applicants for any position of employment. I suggest that in reaching its judgment the court has overlooked the axiom germane to motions for summary judgment, that a " '(m)aximum of caution is necessary . . . where a ruling is sought that would reach far beyond the particular case.' " Jackson v. Muhlenberg Hospital, 53 N.J. 138, 142, 249 A.2d 65, 67 (1969). The significant policy questions here projected alone require that their determination rest on a plenary record and not scanty affidavits. Ibid.; Beadling v. Sirotta, 39 N.J. 34, 35, 186 A.2d 680 (1962); Pierce v. Ortho Pharmaceutical Corp., 166 N.J.Super. 335, 342, 399 A.2d 1023 (App.Div.1979), certif. granted 81 N.J. 266, 405 A.2d 810 (1979); McGowan v. Eatontown, 151 N.J.Super. 440, 446, 376 A.2d 1327 (App.Div.1977).

Long-standing authority supports the views here expressed. The rule regarding nondisclosure as a form of equitable fraud is treated in Keen v. James, supra, where the Court of Errors and Appeals explained:

"It is not every concealment, even of facts material to the interest of a party, which will entitle him to the interposition of a court of equity. The case must...