Opinion
DOCKET NO. A-0858-13T3
04-22-2015
RICHARD KOST, Petitioner-Appellant, v. GPU ENERGY, Respondent-Respondent.
Wilentz, Goldman & Spitzer, P.A., attorneys for appellant (Fred Hopke, of counsel and on the brief). Stahl & DeLaurentis, P.C., attorneys for respondent (Marcia S. Freedman, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from the Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition Nos. 2003-31014, 2003-25728, 2003-25721, 2003-25725, 2003-25910, 2003-25922, and 2003-25929. Wilentz, Goldman & Spitzer, P.A., attorneys for appellant (Fred Hopke, of counsel and on the brief). Stahl & DeLaurentis, P.C., attorneys for respondent (Marcia S. Freedman, on the brief). PER CURIAM
Petitioner, Richard Kost, appeals from a September 16, 2013 order of the Division of Workers' Compensation, denying with prejudice his motion to re-open his previously dismissed claim petitions. We reverse the decision of the Judge of Workers' Compensation (JWC) and remand for reinstatement of petitioner's claims.
The relevant facts are as follows. In 2003, petitioner filed seven claims against his employer, respondent, GPU Energy/JCP&L. Petitioner's former attorney, Eric Lentz, Esq. of Garces and Grabler, P.C., filed each of these claims on petitioner's behalf. Lentz also represented petitioner, as a named defendant, in a parallel civil action spanning 2003 through 2008.
In March 2005, Lentz left Garces and Grabler, but remained petitioner's attorney of record. Initially, Lentz would meet with petitioner at an office in Springfield. Later, however, they would meet at a rest stop McDonald's restaurant, petitioner's house, or Lentz's house in his cellar.
Between 2005 and 2008, Lentz failed to comply with various requests made by the Workers' Compensation Court. On December 5, 2008, respondent filed a motion to dismiss each of petitioner's claims for lack of prosecution. On that date, the workers' compensation judge granted respondent's motion, initially noting that although Lentz was aware of the motion, he was not in attendance. The JWC specifically held that the motion was granted without prejudice. On December 8, 2008, respondent's counsel sent Lentz a copy of the Order of Dismissal. Petitioner asserts that he was never made aware of the order, or notified that his cases had been dismissed. The record reflects numerous phone calls where petitioner was unable to reach Lentz. During the interaction they did have through January 2010, Lentz assured petitioner his cases were progressing, occasionally asking for signatures or a list of medical providers. However, it is clear that Lentz hid from petitioner the true status of his cases.
In January 2010, Lentz advised petitioner that he had scheduled an appointment for a permanency exam. When petitioner arrived at the doctors' office, there was neither a record of an appointment, nor any paperwork received from Lentz. Petitioner responded by confronting Lentz, who again assured him that his cases were progressing, and expressed his desire to finish the cases with him. Again, Lentz made no mention of the order of dismissal.
Petitioner then sought and obtained new counsel, who contacted Lentz. Unfortunately for petitioner, Lentz failed to sign substitutions of attorney, or to turn over the files at that time. Eventually, however, new counsel ascertained that the cases were dismissed and he filed a motion to restore them on August 5, 2010. He was finally able to effectuate a substitution of attorney on October 12, 2010.
On December 10, 2010, February 15, 2013, and June 21, 2013, hearings were held on Kost's motion to reinstate. On September 16, 2013, the JWC entered an Order and Decision denying petitioner's motion pursuant to N.J.S.A. 34:15-54, which states that a petition for reinstatement, upon good cause shown, must be made within one year. The JWC held that petitioner's motion was filed more than eighteen months after the order of dismissal, beyond the one-year statutory period. The JWC later amplified her decision, finding that under Baumann v. Marinaro, 95 N.J. 380, 394 (1984), "an attorney's neglect is not grounds for relief."
It is from the September 16, 2013 order denying petitioner's motion that he appeals. He argues that the principles of fundamental fairness and equity require restoration of his cases. We agree.
Petitioner also argues that his cases should be reinstated because he was "incompetent," and therefore should not have been charged with the omissions and misrepresentations of his prior attorney. We need not address this argument because we reverse and remand on other grounds.
We accord deference to "the factual findings and legal determinations made by the [JWC] unless they are manifestly unsupported by or inconsistent with competent relevant and reasonably credible evidence as to offend the interests of justice." Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 262 (1995). Review of a trial judge's conclusions of law is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The same standard applies to the legal rulings of a judge of compensation. Sexton v. Cnty. of Cumberland/Cumberland Manor, 404 N.J. Super. 542, 548 (App. Div. 2009).
The New Jersey Workers' Compensation Act "provides a remedy to an employee who suffers injury arising out of and in the course of employment either by accident, N.J.S.A. 34:15-7, or by contracting a compensable occupational disease, N.J.S.A. 34:15-34." Brunell v. Wildwood Crest Police Dep't, 176 N.J. 225, 236 (2003) (quotation marks omitted). The Act is "remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished." Kahle v. Plochman, 85 N.J. 539, 547 (1981).
A claim under the Workers' Compensation Act may be dismissed for want of prosecution, "subject, however, to the right to have the petition reinstated for good cause shown, upon application made to the deputy commissioner before whom the matter was heard or to the Commissioner of Labor within one year thereafter." N.J.S.A. 34:15-54.
Although N.J.S.A. 34:15-54 does not expressly create an exception to the one-year requirement for filing a motion for reinstatement, our courts have recognized that compensation judges possess the inherent power to excuse the one-year time bar upon the grounds set forth in Rule 4:50-1. Beese v. First Nat'l Stores, 52 N.J. 196, 200 (1968); see also Estelle v. Bd. of Educ. of Red Bank, 14 N.J. 156, 261 (1954); Stone v. Dugan Bros. of N.J., 1 N.J. Super. 13, 16-17 (App. Div. 1948). Relevant here is consideration of Rule 4:50-1(f), which provides that a court may vacate a judgment for "any other reason justifying relief from the operation of the judgment or order."
When considering relief under that basis, "[n]o categorization can be made of the situations which would warrant redress under subsection (f). . . . the very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966) (citation omitted).
In Jansson v. Fairleigh Dickenson University, we held that Rule 4:50-1(f) was appropriate to vacate a discovery related dismissal. 198 N.J. Super. 190, 193 (App. Div. 1985). There, we set forth the following factors to be considered in determining if an attorney's conduct constituted exceptional circumstances: "(1) the extent of the delay [between dismissal and the motion to re-open]; (2) the underlying reason or cause; (3) the fault or blamelessness of the litigant; and (4) the prejudice that would accrue to the other party." Id. at 195.
In Parker v. Marcus, we expanded the Jansson analysis to cases involving situations of attorney malpractice unrelated to discovery. 218 N.J. Super. 589, 591 (App. Div. 1995), certif. denied, 143 N.J. 324 (1996). There, where an attorney failed to appear at an arbitration hearing and did not tell the plaintiff of the subsequent dismissal, we granted plaintiff's motion to vacate the dismissal pursuant to Rule 4:50-1(f) despite a two-and-a-half-year delay in filing the motion to vacate dismissal, because the delay was due to the attorney's cover-up, and was not plaintiff's fault. Id. at 594-95.
In the present case, we are convinced that petitioner was entitled to relief under Rule 4:50-1(f). Petitioner's dilemma was not caused by his own dereliction or ambivalence. Instead, fault for the dismissal rests squarely on his prior attorney. As we stated in Jansson, supra, absent "demonstrable prejudice to the other party it is neither necessary nor proper to visit the sins of the attorney upon the blameless client." 198 N.J. Super. at 196; accord Familia v. Univ Hosp. of the Univ. of Med. & Dentistry of N.J., 350 N.J. Super. 563, 568 (App. Div. 2002). Here, petitioner made significant effort to keep in contact with Lentz. He was affirmatively mislead, and assured his cases were still active. It was not until new counsel took over in 2010 that petitioner was informed his cases were dismissed.
We recognize the length of delay in this matter may now be significant, and we are aware the application to reinstate was made approximately eighteen months after the dismissal. However, the compensation cases had been pending for five years prior to dismissal, and respondent had the opportunity during that time to investigate the allegations, obtain discovery, get medical records, and move for dismissal if the same were not being supplied. In fact, as plaintiff points out, there was ongoing civil litigation that allowed for collection of medical records and witness statements documenting plaintiff's injuries. Other than bald assertions, respondent does not describe any specific prejudice such as the death of a witness or destruction of specific records. We believe these facts warrant equitable relief.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION