GLENN MACDONALD v. DENNIS GIOVINE, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4696-04T24696-04T2

GLENN MACDONALD,

Plaintiff-Appellant,

v.

DENNIS GIOVINE, JR.

Defendant-Respondent.

_______________________________________________________________

 

Argued April 24, 2006 - Decided June 8, 2006

Before Judges Cuff and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2874-04.

Michael H. Nieschmidt argued the cause for appellant.

Michael E. Downey argued the cause for respondent (McLaughlin & Cooper, attorneys; James J. McLaughlin, of counsel; Mr. Downey, on the brief).

PER CURIAM

Plaintiff, Glenn MacDonald, was a passenger in a vehicle being driven by defendant, Dennis Giovine, Jr., which was involved in a motor vehicle accident on November 4, 2002. Plaintiff filed a personal injury negligence complaint against defendant with the deputy clerk of the Law Division, Mercer County on November 5, 2004, one day after the expiration of the two-year statute of limitations for personal injury negligence actions contained in N.J.S.A. 2A:14-2. The Mercer County Sheriff served plaintiff's complaint on defendant on December 3, 2004. Defendant filed an answer on January 28, 2005, along with a demand for a statement of damages, request for admissions and Form A supplemental interrogatories. Defendant moved for summary judgment on February 8, 2005. Plaintiff appeals the Law Division's April 1, 2005 order granting summary judgment and dismissing plaintiff's complaint based on the statute of limitations having run. We reverse.

On November 3, 2004, two days prior to the expiration of the statute of limitations, plaintiff's counsel's office entrusted the complaint to DHL Express, a recognized delivery company, for filing on November 4, 2004, with the clerk of the Superior Court at 175 Broad Street, Trenton, New Jersey. The certification of Michael Nieschmidt, Esquire, plaintiff's counsel, states that counsel's staff placed the complaint in the DHL Express overnight drop box located in East Windsor with specific and explicit instructions that the envelope containing the complaint be delivered to the court by overnight delivery on November 4, 2004.

These contentions are corroborated by a DHL tracking results detail, which shows that the "MacDonald shipment" for next day service at 3:00 p.m. departed the East Windsor drop box at 8:39 p.m. on November 3, 2004 and arrived at the East Windsor DHL facility at 7:27 a.m. on November 4, 2002. The shipment, however, was not picked up by a DHL courier until 8:46 a.m. on November 5, 2004 and was not actually delivered to the clerk's office until November 5, 2004 at 12:55 p.m.

Nieschmidt further certifies that on November 4, 2004, his office confirmed by telephone with DHL Express that plaintiff's complaint had been picked up and was scheduled to be delivered that day to the court. However, for reasons unknown, DHL failed to deliver plaintiff's complaint on the requested date. A letter dated March 7, 2005, from Deborah Coletti, a DHL Customer Service Lead Agent, on DHL Express letterhead, directed to plaintiff's counsel, by way of explanation reads:

The above shipment was tendered to DHL on 11/3/04 from your company and was due to be delivered on 11/4/04. Due to a handling error on the part of DHL, your shipment incurred an additional 24 hour delay. Your shipment was delivered on 11/5/04 at 12:55 p.m. and was signed for by J. Flin.

Please accept my sincere apology for the inconvenience this situation has caused and for the disappointment you have experienced with our service. We want you to understand that this is not indicative of the type of service we regularly provide our customers.

Pursuant to N.J.S.A. 2A:14-2, "[e]very action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within two years next after the cause of any such action shall have accrued." The motion judge, in granting summary judgment, construed the two year statutory limitation as being "inviolate." The judge relied on this court's opinion in Leake v. Bullock, 104 N.J. Super. 309 (App. Div. 1969), in granting defendant's motion for summary judgment.

In Leake, plaintiff's complaint for personal injuries sustained on February 1, 1966, with filing fee attached, was mailed from Hackensack to the Superior Court Clerk's Office in Trenton on Monday, January 29, 1968, at 5:00 p.m. Id. at 311. The complaint was received and stamped by the clerk as "filed February 2, 1968," one day after the statute of limitations period had expired. Ibid.

The defendant was granted an order dismissing the plaintiff's complaint because the complaint was not filed within the statutory two-year period. Ibid. The plaintiff argued that the complaint was filed within the statute of limitations because it was mailed four days prior to the expiration of the statute of limitations and should have arrived prior to the end of the two-year period in the ordinary course of business. Id. at 312. However, for some unexplained reason, it did not. Ibid. We pointed out that:

[S]tatutes of limitations embody important public policy considerations in that they stimulate activity and punish negligence and promote repose by giving security and stability to human affairs. They are intended to run against those who are neglectful of their rights and who fail to use reasonable and proper diligence in the enforcement thereof.

[Id. at 313 (citation omitted).]

Civil actions in the Law Division, are commenced by filing the original complaint with the deputy clerk of the Superior Court in the county of venue. R. 1:5-6(b)(1). The rule further provides that a judge or a member of the judge's staff at the judge's chambers may also accept a complaint for filing if they show the filing date, and the judge's name and office. The filed papers are directed forthwith to be forwarded to the office of the deputy clerk. "It is clear that unlike service, which is complete upon mailing, filing can only be effected by the receipt of the filed paper by the designated office." Pressler, Current N.J. Court Rules, comment 2 on R. 1:5-6 (2006).

Cases since Leake have relaxed the strict application of statutes of limitations in appropriate circumstances, where there has been substantial compliance with the statute's requirements. See Negron v. Llarena, 156 N.J. 296, 305 (1998); Stegmeier v. St. Elizabeth Hosp., 239 N.J. Super. 475, 482 (App. Div. 1990).

In Negron, Martha Negron, administratrix ad prosequendum of the estate of William Negron, filed in the United States District Court for the District of New Jersey, a wrongful death medical malpractice action against two physicians for negligent medical treatment administered to her husband after he sustained injuries in an automobile accident. Negron, supra, 156 N.J. at 299. On November 28, 1994, she voluntarily dismissed that complaint because the District Court lacked diversity jurisdiction. Ibid. William Negron "died January 24, 1991, from the injuries suffered in the accident." Ibid.

On February 16, 1995, Negron filed a complaint in the Law Division alleging the same facts and causes of action that she had alleged in the federal action. Ibid. Defendants moved for summary judgment, arguing the bar of the two-year statute of limitations for wrongful death actions. Ibid. The trial court denied the motion and tolled the statute of limitations. Ibid. In an unreported decision, this court reversed the trial court's denial of summary judgment. Ibid. The Supreme Court reversed this court, invoking the "doctrine of substantial compliance to 'avoid technical defeats of valid claims.'" Id. at 305 (citations omitted). In Negron, the Court restated its holding in White v. Violent Crimes Compensation Board, 76 N.J. 368, 374 (1978), "'that in the case of a statutorily created right, a 'substantive' limitation period may appropriately be tolled in a particular set of circumstances if the legislative purpose underlying the statutory scheme will thereby be effectuated.'" Negron, supra, 156 N.J. at 302 (quoting White, supra, 76 N.J. at 379). The Court also found critical the "question [of] whether relaxation of the statute of limitations would comport with the legislative intent." Id. at 302. The Court then determined that "'there is nothing reflective in the objective of [the Wrongful Death Act] or its history that suggests the Legislature intended to foreclose the familiar doctrine of substantial compliance in the [statute of limitations] context.'" Id. at 304 (quoting Cornblatt v. Barow, 153 N.J. 218, 240 (1998)).

The Court, citing to this court's decision in Bernstein v. Board of Trustees of Teachers' Pension & Annuity Fund, 151 N.J. Super. 71 (App. Div. 1977), set forth the factors a defaulting party must show to prove substantial compliance:

(1) the lack of prejudice to the defaulting 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 strict compliance with the statute.

[Negron, supra, 156 N.J. at 305 (quoting Bernstein, supra, 151 N.J. Super. at 76-77).]

We determined in Stegmeier, a case factually similar to this case, that a plaintiff's use of an overnight delivery service as opposed to regular or certified mail can constitute a diligent method of satisfying a statute of limitations in an appropriate case. Stegmeier, supra, 239 N.J. Super. at 483. In Stegmeier, on December 6, 1988, after the court reduced the jury's verdict against the defendant hospital to $10,000, pursuant to the then existing charitable immunity statute, N.J.S.A. 2A:53-8, judgment was entered against defendant, St. Elizabeth Hospital. Id. at 479. On Friday, December 16, 1998, the hospital filed a motion for a new trial and that same day gave a copy of the motion to Comet Delivery Service with instructions to deliver it to plaintiff's attorney. Ibid. For unknown reasons, actual delivery was not made to plaintiff's attorney until Tuesday, December 20, 1988. Ibid.

Although the hospital conceded that "Rule 4:49-1(b) require[d] service of a motion for a new trial upon opposing counsel within ten days of the jury's verdict," the hospital argued that "placing a copy of the motion in the hands of a delivery service on the tenth day should be effective since posting a copy in the mail on that day would have constituted effective service under R. 1:5-4(b)[,]" pursuant to which service by regular mail was complete upon mailing. Id. at 479-80 (footnote omitted).

We relaxed the technical application of the rule and applied the doctrine of substantial compliance to defendant's actions. We determined that there was substantial compliance by the hospital's attorney as a result of his timely filing of the motion and on the same day entrusting a copy of the motion to an independent delivery service to effect delivery on plaintiff's counsel. Id. at 482. We reiterated the Bernstein factors, later adopted by the Supreme Court in Negron, which should be employed to determine whether conduct substantially complies with statutory provisions and recognized the substantial compliance doctrine's use to "avoid technical defeat of valid claims." Ibid. We concluded, therefore, that the interests of justice required the hospital's motion for new trial be heard on its merits, and not dismissed on technical grounds. Id. at 483.

In Lenox, Inc. v. Director, Division of Taxation, 19 N.J. Tax 437, 451 (Tax 2001), plaintiff's report of change (Form IRA-100), on which IRS changes are to be reported, was completed and mailed by regular certified mail the day before the expiration of the remaining eighty-five days of the full ninety-day period required by N.J.S.A. 54:10A-13, for perfecting plaintiff's corporate business tax refund claim. The court, in determining that the plaintiff's report was not timely filed, stated: "Plaintiff could have delivered its report by hand or by overnight delivery service. Plaintiff decided not to use either of these methods and must bear the consequences of that decision." Id. at 451; see also Corcoran v. St. Peters Med. Ctr., 339 N.J. Super. 337 (App. Div. 2001) (holding that the substantial compliance doctrine applies to service of a demand for a trial de novo and defendant's timely service of its demand upon plaintiffs' former attorney, although not their present attorney, within the thirty-day period required by Rule 4:21-6(b), constituted substantial compliance).

The record here establishes that there was only a one day delay in the filing of plaintiff's complaint, and defendant was timely served via the county sheriff within one month of the filing date. Defendant filed an answer less than two months after the filing date. Defendant served three forms of discovery less than two months after the filing date. Defendant admits that there is no prejudice to him as a result of the one day delay in filing. Defendant had reasonable notice of plaintiff's claim and is unable to show that notice via service of process would have occurred any sooner had plaintiff's complaint been filed on November 4, 2004 instead of November 5, 2004. Plaintiff also took a series of steps to comply with the applicable statute of limitations. Plaintiff's counsel entrusted the delivery of the complaint to a well-known, world-wide delivery company, with instructions for overnight delivery on a date within the statute of limitations. Plaintiff's counsel then confirmed with the delivery company, on November 4, 2004, that the delivery would occur on November 4, 2004.

We are convinced that plaintiff exhibited general compliance with the statute of limitations by arranging for the overnight delivery of the complaint in a timely fashion. Under the facts and circumstances existing here, the one day delay was not due to the fault or lack of attentiveness of plaintiff. Although plaintiff could have hand carried the complaint to the clerk's office or to a judge for filing, we are satisfied that plaintiff's counsel did enough and that plaintiff has provided a reasonable explanation as to why there was not strict compliance with the statute of limitations in this matter. See Viviano v. CBS, Inc., 101 N.J. 538, 556 (1986).

Based on the facts existent here, the requirements for substantial compliance recited in Negron were satisfactorily complied with by plaintiff's delivery of his complaint to the DHL Express delivery service for one day delivery to the Superior Court. Accordingly, the Law Division's April 1, 2005 order granting summary judgment is reversed and the matter is remanded to the Law Division.

Reversed and remanded.

 

The Court noted that procedural statutes of limitation govern general causes of action, such as torts and contract and are not applied as strictly as substantive statutes of limitation and that flexible applications of procedural statutes of limitations may be based on equitable principles such as the discovery rule or estoppel. (citations omitted). Id. at 300. Neither of those equitable principles are applicable here.

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A-4696-04T2

June 8, 2006