GLEN PARKER et al. v. A.J. JERSEY INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2852-04T52852-04T5

GLEN PARKER and ALEXANDRIA

PARKER,

Plaintiffs-Appellants,

v.

A.J. JERSEY INC., a corporation,

CROWN EQUIPMENT CORPORATION, a

corporation,

Defendants-Respondents.

_________________________________

 

Argued December 20, 2005 - Decided April 21, 2006

Before Judges Collester and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, L-1310-03.

Michael J. Dillon argued the cause for

Appellants (Krumholz Dillon, attorneys; Mr.

Dillon, of counsel and on the brief).

Howard Myerowitz argued the cause for respondent

A.J. Jersey, Inc. (Marshall, Dennehey, Warner,

Coleman & Goggin, attorneys; George P. Helfrich,

of counsel; Patricia M. McDonagh, on the brief).

J. Joseph Bainton argued the cause for respondent

Crown Equipment Corporation (Bainton McCarthy,

attorneys; Mr. Bainton, of counsel and on the brief).

PER CURIAM

Plaintiffs Glen Parker and Alexandria Parker appeal from an order entered on December 22, 2004, dismissing plaintiffs' complaint pursuant to R. 4:21A-6(b)(1), and from the January 21, 2005, order denying plaintiffs' motion for an extension to file a demand for trial de novo. Plaintiffs' complaint filed on March 6, 2003, alleged that Mr. Parker was injured as a result of a defective forklift sold by A.J. Jersey, Inc. An amended complaint was filed on April 22, 2004, to include Crown Equipment Corporation, the manufacturer of the forklift. After the discovery phase concluded, the case was scheduled for arbitration on October 27, 2004. On that date the arbitrator found no cause of action as against either defendant.

Throughout the litigation plaintiffs were represented by Alan L. Krumholz, Esq. of the firm of Krumholz Dillon, P.A. On the day of the unfavorable arbitration result Krumholz dictated and sent a demand for trial de novo and a check in the amount of $200 as required by R. 4:21A-6. However, the check was made payable to "Superior Court of New Jersey" rather than "Treasurer, State of New Jersey" as specified in R. 4:21A-6(c). On November 1, 2004, a form notice was sent to Krumholz from the Hudson County Superior Court stating that the trial de novo demand was not filed for the following reason:

Your Trial De Novo was not filed and is returned to you for failure to remit the required fee. Please return the Notice of Trial De Novo and the required fee in the amount of $200. If you do so within ten days of the date of this notice, filing will be deemed to have been made on the stamped receipt date. Please make your check payable to "Treasurer, State of New Jersey."

(Emphasis in original.)

Krumholz did not resubmit his de novo trial notice with a check made out to the proper entity within the specified ten day period. However, the thirty-day period for filing the de novo trial demand under R. 4:21A-6(b)(1) had not expired. On or about November 20, 2004, Krumholz took ill. He was taken to Englewood Hospital from his office in the morning on November 24 and underwent serious abdominal surgery on December 8. He remained in the hospital until December 16, 2004, and returned to his office on January 3, 2005. It then came to his attention that his office had received notification from the Hudson County Superior Court on December 27 that this case was dismissed pursuant to R. 4:21A-6(b)(1) since no trial de novo demand had been filed within thirty days of the arbitrator's decision. Krumholz filed a motion on January 5, 2005, for an order granting a trial de novo from the arbitration award. In his attached certification he stated that he attempted to comply with the court rule and was unaware that his de novo trial demand and check had been returned. He added that the "fail safe" in his office would have diaried the matter "for several days prior to the last date [which] would have resulted in a diary entry on or about November 22, 2004." He added the following:

Because of my illness I was not notified of the fail safe date of November 22, 2004, at anytime during the week of November 22 to November 26 and had no[t] thought of that date as a result of my illness and I learned of the situation for the first time on January 2, 2005, from my partner, Michael J. Dillon, Esq. The only person who would have been responsible for following through on the fail safe system of seeing to it that the demand for the Trial De Novo was indeed filed between November 22 and November 26, 2004, was the undersigned, who was unable, for reasons of ill health, to ensure that the fail safe system provided for the filing of the Trial De Novo.

On the return date the motion judge denied the requested relief, stating:

Unfortunately, even though I would rule differently, I believe I am restricted by the Appellate Division in this particular case. The letter came back with a ten-day window and the fact that I do not have any specific - if the fail safe system failed, the illness would have nothing to do with it.

There aren't acts in front of me that show that the fail safe system worked and the illness specifically caused it not to. So I can't find the distinction and, based upon the opposition's quoted law of the Appellate Division, I really don't have a choice, and I have to deny the motion.

Relaxation of the thirty-day limitation of R. 4:21A-6(b)(1) requires a finding of "extraordinary circumstances." Hartsfield v. Fantini, 149 N.J. 611, 618-19 (1997); Wallace v. JFK Hartwyck at Oak Tree, Inc., 149 N.J. 605, 609-10 (1997). In Mazakas v. Wray, 205 N.J. Super. 367 (App. Div. 1985), later cited with approval in Hartsfield, supra, 149 N.J. at 616-17, we cautioned that extending the thirty-day time frame "must be sparingly exercised with a view to implementing both the letter and spirit of the compulsory arbitration statute and the rules promulgated pursuant thereto, to the end that the arbitration proceedings achieve finality. Mazakas, supra, 205 N.J. Super. at 372.

The standard of "extraordinary circumstances" furthers the aim of compulsory arbitration of litigation by mandating inexpensive speedy adjudications of disputes and easy caseloads since only something unusual or remarkable excuses compliance. Flagg v. Township of Hazlet, 321 N.J. Super. 256, 260 (App. Div. 1999). The determination of what constitutes an "extraordinary circumstance" requires a fact-sensitive analysis in each case.

Hartsfield, supra, 149 N.J. at 618. Negligence of an attorney, carelessness of his staff and failure to supervise all have been held insufficient. See Id. at 619 (attorney's failure to supervise his secretary and review his diary was not considered "extraordinary circumstances"); Wallace, supra, 149 N.J. 605 (entering the wrong date in a legal diary or calendar causing the thirty-day limitation to be missed does not qualify); Martinelli v. Farm Rite, Inc., 345 N.J. Super. 306 (App. Div. 2001) certif. denied, 171 N.J. 338 (2002) (failure of computer diary system held not to constitute an extraordinary circumstance). See also Behm v. Ferreira, 286 N.J. Super. 566 (App. Div. 1996); Hart v. Property Mgmt. Sys., 280 N.J. Super. 145, 147-49 (App. Div.), certif. denied, 141 N.J. 99 (1995).

The failure of the fail-safe system within Krumholz's office does not constitute extraordinary circumstances justifying a relaxation of the thirty-day filing limitation. Similarly, addressing the check to the wrong payee and failing to respond within ten days as stated in the Superior Court notice denotes carelessness and inefficiency rather than the unique circumstances permitting relaxation of the rule. However, based on the unique facts in this case, we find that extraordinary circumstances were demonstrated to permit late filing of the de novo trial demand. Moreover, Krumholz was not restricted to the ten-day period in the form letter rejecting his de novo trial demand. He had the option of filing within thirty days of the arbitrator's decision, which expired when he was hospitalized.

While Krumholz was not a sole practitioner, he was the only attorney in his firm with responsibility for and familiarity with the case. His hospitalization constitutes a valid reason for relaxation of the filing time limitation.

Furthermore, we find that under the circumstances there was "substantial compliance" with R. 4:21A-6. "Substantial compliance" is an equitable doctrine rooted in common law for the purpose of avoiding harsh consequences that may flow from technically inadequate actions that nonetheless are not offensive to the underlying statutory purpose. Galik v. Clara Maass Med. Ctr., 167 N.J. 351, 352 (2001). Its elements were set forth as follows:

(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim, and (5) a reasonable explanation why there was not a strict compliance with the statute.

[Bernstein v. Board of Trustees of the Teachers' Pension and Annuity Fund, 151 N.J. Super. 71, 76-77 (App. Div. 1977). See also Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 239 (1998).]

We find that the facts of this case are consistent with the elements of "substantial compliance" as enunciated in Bernstein. Krumholz acted promptly in filing his de novo demand. Defendants received notice of his intent to seek a trial de novo, and neither defendant asserted prejudice resulting from the late filing. Finally, as we have indicated, Krumholz's illness constituted a reasonable explanation for his failure to strictly comply with R. 4:21A-6(b)(1). Compare Tischler v. Watts, 177 N.J. 243 (2003). Since Krumholz established his illness and incapacity occurred prior to the expiration of the thirty-day time limit and his substantial compliance with the court rule, we hold that "extraordinary circumstances" were presented for relaxation of the court Rule to permit late filing.

Reversed and remanded for trial upon plaintiffs' filing a notice of rejection of the arbitration award and demand for a trial de novo in full compliance of R. 4:21A-6 within thirty days of this decision.

 

(continued)

(continued)

8

A-2852-04T5

April 21, 2006