Opinion
DOCKET NO. A-5448-15T1
07-11-2018
MONA WEISS, Plaintiff-Appellant, v. STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS, Defendant-Respondent.
Chance & McCann, LLC, attorneys for appellant (Beth White, on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Submitted August 8, 2017 - Decided August 15, 2017
Motion for reconsideration granted.
Resubmitted February 12, 2018 - Decided July 11, 2018 Before Judges Whipple and Rose. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0919-15. Chance & McCann, LLC, attorneys for appellant (Beth White, on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff Mona Weiss appeals from the trial court's April 29, 2016 order dismissing her complaint to vacate an arbitration award as untimely. For the reasons that follow, we affirm.
We discern the following facts from the record on appeal. From 2004 to 2011, plaintiff was employed by the New Jersey Department of Corrections (DOC) as a social worker, most recently at the Southern State Correctional Facility. The DOC received an anonymous tip that plaintiff had a sexual relationship with a parolee and obtained subpoenas for her phone records. These records revealed approximately thirty-three telephone calls between plaintiff and the parolee. The DOC interviewed the parolee, who disclosed he had a sexual relationship with plaintiff after he was released on parole in 2010, but the relationship ended in 2011.
On June 28, 2011, the DOC interviewed plaintiff and read plaintiff her Weingarten rights. Plaintiff orally declined these rights but checked a box on the waiver form, indicating she wanted union representation. She then admitted to having four or five encounters with the parolee after his release but denied a sexual relationship.
On July 1, 2011, the DOC served plaintiff with a preliminary notice of disciplinary action, charging her with multiple rule infractions. On September 20, 2011, the DOC served plaintiff with a final notice of disciplinary action, terminating her employment. Plaintiff then filed a grievance, and the matter was submitted to arbitration pursuant to a collective bargaining agreement.
The arbitrator conducted hearings in March 2015. On July 21, 2015, the arbitrator entered an opinion and award, denying plaintiff's grievance and finding the DOC had just cause to terminate her employment. Plaintiff alleges that at the close of the hearings, her counsel asked the arbitrator where he should file an appeal, and the arbitrator instructed him to file in the Appellate Division.
On September 4, 2015, plaintiff sent a notice of appeal to the Appellate Division. By letter dated October 8, 2015, the clerk of the Appellate Division instructed plaintiff to either establish a basis for the court to exercise jurisdiction or withdraw her appeal. In another letter dated October 15, 2015, plaintiff acknowledged the erroneous filing and requested the Appellate Division transfer her appeal to the Superior Court pursuant to Rule 1:5-6(d).
On December 23, 2015, plaintiff filed a verified complaint and order to show cause against the DOC in the Superior Court. Attached to this complaint was a letter stating:
This matter is an appeal from an agency arbitration decision issued on July 21, 2015. Said appeal was misfiled in the Superior Court Appellate Division on September 4, 2015. Request was made to transfer the appeal to the Superior Court Law Division in Cumberland County pursuant to New Jersey Court Rule 1:5-6(d). It is respectfully requested that the matter be given the filing date it received from the Appellate Division.The DOC moved to dismiss the compliant for failure to state a claim upon which relief can be granted under Rule 4:6-2(e). On April 29, 2016, the trial judge granted this motion, finding: (1) the complaint was untimely because it was filed in the Superior Court beyond the required three-month period provided by N.J.S.A. 2A:24-7; and (2) Rule 1:5-6(d) is inapplicable to appellate court filings.
Plaintiff appealed that determination, and on August 15, 2017, we dismissed her appeal without prejudice, finding under Rule 2:6-1(a)(1)(A), "plaintiff failed to provide copies of the necessary pleadings to entitle us to properly review this matter." Weiss v. State of N.J. Dep't of Corr., No. A-5448-15 (App. Div. Aug. 15, 2017) (slip op. at 6).
This rehabilitated appeal followed.
On appeal, plaintiff argues, among other things, the complaint was timely filed because under Rule 1:5-6(d), it should have been deemed filed when she submitted it to the Appellate Division, which was within the three-month limitation period. We disagree.
Pursuant to N.J.S.A. 2A:24-7, a party may commence a summary action to vacate an arbitration award within three months of receiving the award. See also Atlantic City v. Laezza, 80 N.J. 255, 268 n.2 (1979) (noting Atlantic City was precluded from moving to vacate an arbitration award because more than three months had elapsed from the time the award was received).
Here, the arbitration award was issued on July 21, 2015. Therefore, plaintiff had to commence an action by October 21, 2015, however, she did not file her complaint in the Superior Court until December 23, 2015. Plaintiff contends, under Rule 1:5-6(d), her complaint should be back dated to September 4, 2015 — the date she misfiled it in the Appellate Division.
Under Rule 1:5-6(d):
If papers are sent to the wrong filing office, they shall be stamped "Received but not Filed (date)" and transmitted by that office to the proper filing office and a notice shall be sent by the transmitting office to the filer of the paper advising of the transmittal. The stamped received date shall be deemed to be the date of filing.
The trial court determined that Rule 1:5-6(d) did not apply to Appellate Division filings and granted the DOC's motion to dismiss. Indeed, this rule is inapplicable to Appellate Division filings due to the numerous differences between the Appellate Division and the Superior Court, and Rule 1:5-6 comprehensively addresses the filing of papers in each division of the trial court and makes no mention of the Appellate Division. State v. Perry, 439 N.J. Super. 514, 523 (App. Div. 2015) (citation omitted) ("We do not add terms which may have been intentionally omitted . . ., speculate, or otherwise engage in an interpretation which would avoid its plain meaning."). Furthermore, there are considerable differences between the trial court and Appellate Division. See R. 1:43 (outlining the various filing and other fees applicable to each court); R. 2:2-3 (detailing the Appellate Division's limited jurisdiction). On appeal, plaintiff contends this determination ignores Rule 1:1-2(a), which states:
The rules in Part I through Part VIII, inclusive, shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice.
It cannot be said that justice would be served by loosening the strictures of Rule 1:5-6(d) to include the Appellate Division. On October 15, 2015, within the three-month filing period, plaintiff was advised that we questioned jurisdiction and instructed her to either establish it or withdraw the appeal. As such, she knew or should have known to timely file her complaint in the trial court by October 21, 2015. However, she did not file it until beyond the three-month period, on December 23, 2015.
All other issues raised by plaintiff lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).