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Ballinger v. Delaware River Port Authority5/8/1998
Argued March 3, l998 and by telephone on March 9, l998
On appeal from Superior Court of New Jersey, Law Division, Camden County.
The primary issue addressed in these appeals, which we have consolidated for the purpose of this opinion, is whether the Delaware River Port Authority (DRPA), a bi-state agency created by compact between New Jersey and Pennsylvania is subject to the provisions of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:l9-l to -8. Our review of this record, in light of relevant legal principles, has led us to conclude that the answer is "no." We have also concluded that the waiver provisions of CEPA cannot be invoked where, as here, plaintiffs lacked the right to make a CEPA claim. Therefore, the dismissal of Gregory Ruggiero's common law claims against DRPA was erroneous as was the refusal to allow Ralph Ballinger to amend his complaint to assert such claims.
A-5584-95T2
Ralph Ballinger began his employment as a police officer with DRPA in April of l984 and worked there until his termination on February 8, l995. On December 29, l995, he filed a single count complaint alleging that he had been discharged from his employment by DRPA in violation of CEPA. More particularly, he claimed that he had been terminated in retaliation for disclosing information to the New Jersey State Police concerning a criminal activity (theft) by DRPA employees. He later filed an amended complaint alleging that various individual employees of DRPA also violated CEPA. In lieu of an answer, DRPA and the individual employees filed a notice of motion to dismiss the complaint for failure to state a claim for relief, pursuant to R. 4:6-2(e). The trial Judge granted the motion and dismissed the amended complaint because he concluded that DRPA is not subject to CEPA.
In the interim, Ballinger filed a notice of cross-motion to file a second amended complaint to include a common law retaliatory discharge claim against the individual employees. On May 28, 1996, the judge denied Ballinger's cross-motion and entered a final judgment in favor of all defendants.
A-5622-95T2
Gregory Ruggiero began his employment at DRPA as a toll collector on the Benjamin Franklin Bridge around 1987 and worked there until his termination on December 30, 1994. During this time, Ruggiero was a member and officer of the International Union of Operating Engineers, Local 7l6 (Union). On December l3, l994, along with other toll takers, he shut down his toll booth in order to address his concerns about asbestos in the tunnel which the toll takers had to use to gain access to the toll booths. Approximately 9 minutes after the shut down, the toll takers returned to their respective booths. All of the other toll takers involved in this incident were suspended for no more than three days without pay. Ruggiero, however, was terminated from employment.
Ruggiero filed a five count complaint on December 26, l995 against DRPA asserting he was wrongfully discharged in violation of CEPA; that various DRPA employees violated CEPA by retaliating against him for the work stoppage to protest health and safety violations; that he was wrongfully discharged for his union activities; that he was wrongfully discharged in violation of public policy; and that defendants breached the collective bargaining agreement. Defendants filed a notice of motion to dismiss the complaint for failure to state a claim for relief, pursuant to R. 4:6-2(e). At the same time, an arbitration proceeding was instituted against DRPA pursuant to the labor agreement between Ruggiero's Union representative and DRPA. The issue presented at the arbitration proceeding, which was
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