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Superior Court of New Jersey, Appellate Division
December 5, 1994, Argued ; March 10, 1995, Decided
[*128] [**1004] The opinion of the court was delivered by
Plaintiffs appeal from summary judgment orders dismissing their complaint against defendants sounding in fraud, negligence, malicious abuse of process and malicious interference. They also appeal from pretrial determinations that their emotional distress claims were time-barred under N.J.S.A. 2A:14-2, and denying their motion to amend their complaint to name William V. Webster, Jr., Esq. and his law firm as party-defendants.
The central issues in this case are: [***2] (1) whether a defense attorney's threat that his client intends to file criminal charges against the plaintiff, made purportedly to gain an advantage in the civil litigation, constitutes a malicious abuse of process and, if so; (2) is the threat protected by the absolute immunity privilege afforded to statements made during judicial proceedings. In granting summary judgment to defendants, Judge Supnick concluded that the statements did not constitute an abuse of process. Alternatively, he determined that even if plaintiffs had made out a prima facie case of abuse of process, the statements were protected by the absolute immunity privilege. We agree on both points, and affirm.
In 1983, plaintiff James A. Ruberton was terminated from his managerial position at defendant Agway Petroleum's Hammonton plant. He and his wife thereupon instituted a wrongful discharge action against Agway Petroleum and its parent, Agway, Inc. Defendant Charles W. Gabage, Esq. represented Agway Petroleum and William V. Webster, Jr. Esq. represented Agway, Inc. in the wrongful discharge case.
On July 7, 1986, a settlement conference was conducted, attended by Richard L. Press, Esq., attorney for plaintiff, Gabage, [***3] [*129] Webster and the trial judge. According to Ruberton, during the conference Gabage extended, on behalf of Agway Petroleum, a $ 10,000 settlement offer to Press. Press told him that Gabage, in making the settlement offer, suggested that Ruberton use the money to hire a criminal defense lawyer to defend him in a criminal action Agway Petroleum was contemplating filing against him. The criminal charge was predicated upon certain alleged improprieties by Ruberton while he was an Agway Petroleum plant manager.
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280 N.J. Super. 125 *; 654 A.2d 1002 **; 1995 N.J. Super. LEXIS 102 ***
JAMES A. RUBERTON AND LORETTA RUBERTON, PLAINTIFFS-APPELLANTS, v. CHARLES W. GABAGE, ESQUIRE, EISENSTAT, GABAGE & BERMAN, P.A., A NEW JERSEY PROFESSIONAL CORPORATION, AGWAY PETROLEUM CORPORATION, CHRISTOPHER FOX, AGWAY, INC., ROBERT J. KUTIL, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.
Subsequent History: [***1] Approved for Publication March 10, 1995.
Prior History: On appeal from the Superior Court, Law Division, Camden County.
settlement conference, malicious abuse, proceedings, judicial proceedings, absolute immunity, malicious, absolute privilege
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