Opinion
DOCKET NO. A-1348-12T2
2013-09-11
JOSEPH VANDERSLICE, Plaintiff-Appellant, v. HAROLD STEWART, CAMDEN COUNTY FIRE POLICE DEPARTMENT, AND CAMDEN COUNTY, Defendants-Respondents.
Helmer, Paul, Conley & Kasselman, P.A., attorneys for appellant (Patricia B. Quelch, of counsel and on the brief). Sherri L. Schweitzer, Camden County Counsel, attorney for respondents (Howard L. Goldberg, First Assistant County Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4401-10.
Helmer, Paul, Conley & Kasselman, P.A., attorneys for appellant (Patricia B. Quelch, of counsel and on the brief).
Sherri L. Schweitzer, Camden County Counsel, attorney for respondents (Howard L. Goldberg, First Assistant County Counsel, on the brief). PER CURIAM
This matter involves the failure of defendants Harold Stewart, Camden County and Camden County Fire Police Department (collectively the County) to timely file a demand for a trial de novo following a non-binding arbitration held pursuant to Rule 4:21A-1. The trial judge denied the motion of plaintiff Joseph Vanderslice to confirm the arbitration award and enter judgment and granted defendants' cross-motion to permit a late filing. Because the judge erroneously applied the substantial compliance standard, which applies to the failure to serve a demand, instead of the extraordinary circumstances standard, which applies to the failure to timely file a demand, and because we find there were no extraordinary circumstances presented, we reverse.
On August 31, 2010, plaintiff filed a complaint, alleging that he had sustained personal injuries in an automobile accident on September 13, 2008. Non-binding arbitration on January 18, 2012, resulted in a determination that the County was 100% liable to plaintiff, who was entitled to $90,000 for non-economic damages and $55,970 for lost wages. The time to file a demand for a trial de novo expired thirty days later on February 17, 2012. See N.J.S.A. 2A:23A-16; Rule 4:21A-6(b)(1).
After confirming that the County had not filed a demand for a trial de novo, on February 23, 2012, plaintiff's counsel filed a motion to confirm the arbitration award and enter judgment. The County opposed the motion and filed a cross-motion to permit a late filing. County counsel conceded that the demand was not filed, but argued that the court should apply the substantial compliance standard to relax the thirty-day requirement and permit a late filing. Counsel explained that after receiving plaintiff's motion, he discovered that an attorney from his office prepared the demand and gave it to a secretary to file. The secretary prepared a voucher for payment of the filing fee, which was mailed along with the demand to the arbitration administrator with copies sent to plaintiff's counsel. The arbitration administrator signed the direct voucher on January 20, 2012, and returned it to the County on January 26, 2012. On February 17, 2012, the County issued a check for the filing fee and forwarded it to the State Treasurer. The arbitration administrator did not file the demand because actual payment was required and he had not received payment. See R. 4:21A-6(c).
Plaintiff's counsel denied he received the demand.
The trial judge denied plaintiff's motion and granted the County's cross-motion, finding that the County had substantially complied with Rule 4:21A-6(b)(1) and established the factors set forth in Corcoran v. St. Peter's Med. Ctr., 339 N.J. Super. 337 (App. Div. 2001). Following trial, the jury rendered a defense verdict finding no cause of action was presented. This appeal followed.
On May 21, 2012, this court denied plaintiff's motion for leave to appeal.
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Rule 4:21A-6(b) sets forth post-arbitration obligations of a party dissatisfied with an arbitration award, stating:
An order shall be entered dismissing the action following the filing of the arbitrator's award unless:
(1) within 30 days after filing of the arbitration award, a party thereto files with the civil division manager and serves on all other parties a notice of rejection of the award and demand for a trial de novo and pays a trial de novo fee as set forth in [Rule 4:21A-6(c)].
[R. 4:21A-6(b).]
The "substantial compliance" standard applies where a demand for a trial de novo was timely filed but not timely served on all other parties. See Nascimento v. King, 381 N.J. Super. 593, 601 (App. Div. 2005); Flett Assocs. v. S.D. Catalano, 361 N.J. Super. 127, 134 (App. Div. 2003); Corcoran, supra, 339 N.J. Super. at 343. The standard for failure to timely file a demand is more stringent. Because the thirty-day time limitation for filing a demand is a statutory requirement under N.J.S.A. 2A:23A-16, as well as a requirement of Rule 4:21A-6(b)(1), it is strictly enforced and will be relaxed only upon a showing of "extraordinary circumstances." Hartsfield v. Fantini, 149 N.J. 611, 616 (1997); Allen v. Heritage Court Assocs., 325 N.J. Super. 112, 118 (App. Div. 1999). Counsel's inattention, inadvertence, carelessness, neglect or substantial compliance will not constitute an extraordinary circumstance to relax the thirty-day filing requirement. Hartsfield, supra, 149 N.J. at 617-18; see also Wallace v. JFK Hartwyck at Oak Tree, Inc., 149 N.J. 605, 610 (1997) (counsel's carelessness was not found sufficient when he placed a filing reminder on the wrong date in his calendar); Martinelli v. Farm-Rite, Inc., 345 N.J. Super. 306, 312-13 (App. Div. 2001) (holding that an attorney's computer malfunction was not an extraordinary circumstance warranting relief), certif. denied, 171 N.J. 338 (2002); Flagg v. Twp. of Hazlet, 321 N.J. Super. 256, 259-60 (App. Div. 1999) (holding counsel's failure to timely mail a demand for trial de novo was "nothing more than a claim of human error or carelessness" and not extraordinary); Behm v. Ferreira, 286 N.J. Super. 566, 574 (App. Div. 1996) (determining counsel's failure to supervise staff was insufficient ground to relax deadline for filing a trial de novo demand).
Here, the extraordinary circumstances standard applied to the County's failure to timely file a demand for a trial de novo. The facts in this matter do not establish extraordinary circumstances warranting relaxation. The County's failure to timely file a demand for a trial de novo resulted from nothing more than counsel's lack of diligence and neglect in failing to ensure that the demand had been timely filed.
As to plaintiff, the no-cause judgment dismissing his complaint is vacated. The orders denying plaintiff's motion to confirm the arbitration award and enter judgment and granting the County's cross-motion to permit a late filing are reversed. The matter is remanded to the Law Division for entry of an order confirming the arbitration award for plaintiff and entering judgment.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION