GERALD CATALANO v. UNITED PARCEL SERVICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3845-08T33845-08T3

GERALD CATALANO,

Petitioner-Appellant,

v.

UNITED PARCEL SERVICE,

Respondent-Respondent.

_________________________________

 

Submitted: February 25, 2010 - Decided:

Before Judges Axelrad and Fisher.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Claim Petition Nos. 05-31857 and 06-12716.

Gary P. Sarlo, attorney for appellant (Thomas W. Polaski, of counsel and on the briefs).

Freeman, Barton, Huber & Sacks, attorneys for respondent (William T. Freeman, on the brief).

PER CURIAM

The sole issue presented in this appeal is whether or not the State of New Jersey Division of Workers' Compensation may properly exercise jurisdiction to hear compensation claims filed by a United Parcel Service (UPS) employee who resides and works in Staten Island, New York, and who had two work accidents during that employment in Staten Island. After taking testimony from petitioner, Gerald Catalano, and three witnesses produced on behalf of UPS, the judge of compensation considered the principles and factors set forth in Williams v. Port Authority, l 75 N.J. 82, 87-88 (2003), concluded that New Jersey lacked sufficient interest in these claims to exercise jurisdiction and dismissed the claim petitions with prejudice. On appeal, petitioner contends the court conducted too narrow an evaluation and analysis of the facts on this issue, and overlooked or ignored relevant facts concerning the classification of Staten Island employees by UPS as belonging to a "Central Jersey District." We affirm.

In April 2000, petitioner Gerald Catalano, a resident of Staten Island, applied for a full-time position in Staten Island in person at a UPS facility in Edison, New Jersey, and was interviewed and underwent a physical examination there. The interviews for Staten Island employees take place in Edison because of space constraints at the Staten Island facility. On July 24, 2000, petitioner was hired by UPS by a telephone call to his home in Staten Island to work in Staten Island as a package delivery driver. Pursuant to UPS' procedure, petitioner began a mandatory, thirty-day training period, beginning with a one to two week drivers' training class at a UPS facility in Tinton Falls, New Jersey, and continuing in Staten Island for on-the-job training with experienced drivers. Following his successful completion of the training and probation period, a decision was made that petitioner achieved permanent employee status as a package car driver for UPS. He continued working exclusively in Staten Island, and reported to his supervisors there, and received his route assignments, job duties and pay checks at that location.

UPS is a union shop, meaning that all new hires, if they are not already members of the International Brotherhood of Teamsters (Teamsters), must become union members once they have completed their probationary period and are permanent UPS employees. The Teamsters is a national union and has its own rules for assigning its members to various locals. The Teamsters play no role in UPS' hiring process and UPS has no input in the assignment of its employees by the union to the various locals. Petitioner was assigned by the Teamsters, not UPS, to a local in Hillside, New Jersey, and as he was already a member of the Teamsters out of a local in New York, he was able to transfer his membership there.

Petitioner injured his lower back on October 28, 2003 while lifting a package at the Staten Island Facility. Petitioner re-injured his lower back on August 9, 2004, while picking up a heavy package in the process of unloading his truck during his New York route. Petitioner filed an action in the New York Division of Workers' Compensation and received temporary disability benefits and medical treatment pursuant to the New York statute. Prior to disposition by the court, petitioner apparently notified UPS and the court that he planned to file in New Jersey. Petitioner then filed workers' compensation claim petitions in the New Jersey Division of Workers' Compensation for the on-the-job injuries occurring in October 2003 and August 2004. In its answer UPS asserted, among other defenses, lack of jurisdiction and thereafter moved to dismiss the claim petitions on that basis.

Following trial, Judge of Compensation Leslie A. Berich issued a comprehensive oral opinion, concluding there was no compelling reason to invoke New Jersey's jurisdiction and dismissed the petitions with prejudice. She memorialized her ruling in a February 26, 2009 order, which petitioner has appealed.

On appeal, petitioner argues that New Jersey had sufficient contacts with the employment relationship for it to exercise jurisdiction over his workers' compensation claims. The factors he asserts, and which he contends the court ignored, overlooked or failed to give sufficient weight, are that: (1) UPS classifies non-management employees in Staten Island as members of a "Central Jersey District" and requires them to submit employment applications and appear for interviews and physical examinations in New Jersey, and if hired, they are required to receive some training in New Jersey, and (2) if hired, they are required to become members of the same union as that representing UPS' New Jersey package car drivers. He further urges that by exercising jurisdiction over this case, New Jersey will not interfere with or frustrate New York's workers' compensation laws. In support of both arguments, petitioner places primary reliance upon Phillips v. Oneida Motor Freight, Inc., 163 N.J. Super. 297 (App. Div. l978). Based on our review of the record and the applicable law, we are not persuaded by petitioner's arguments and affirm substantially for the reasons articulated by the judge of compensation in her comprehensive oral opinion of February 26, 2009. We make the following comments.

Professor Arthur Larson articulated a list of practical factors for the court to consider in determining whether an employee has sufficient contacts with the New Jersey Workers' Compensation Court to warrant jurisdiction, which were cited with approval by the Supreme Court in Williams, supra, namely:

(l) Place where the injury occurred;

(2) Place of making the contract;

(3) Place where the employment relationship exists or is carried out;

(4) Place where the industry is localized;

(5) Place where the employee resides; or

(6) Place whose statute the parties expressly adopted by contract.

[l75 N.J. at 87-88 (citing Larson's Workers' Compensation Law l42.0l at l42-2 (2000)).]

Petitioner acknowledged the court considered these factors in rendering its decision and found the following undisputed situs factors: the accidents occurred in New York, the contract took place in New York when petitioner accepted the job during a phone call to his home in Staten Island, and petitioner resides in New York. Moreover, petitioner does not dispute that he was hired for and works exclusively for UPS in Staten Island. He takes issue, however, with the court's conclusion that New Jersey's compelling interest was limited to only portions of the hiring and training processes, which were intended to be temporary, and that such interest evaporated when petitioner's employment status changed to a fixed employment situs in New York. He also challenges the court's finding that the situs of petitioner's local union membership, over which UPS had no direction or control, was not germane to the issue of workers' compensation jurisdiction.

According to petitioner, the facts the court should have placed greater emphasis on to establish contact with New Jersey for jurisdiction purposes were his application, interview and week of training in Central New Jersey and UPS' apparent classification of its Staten Island employees as belonging to its "Central Jersey District" as evidenced by his identification card. Furthermore, petitioner acknowledges the undisputed testimony by UPS' witness that the union played no role in petitioner's hiring and that UPS had no involvement in petitioner's assignment to union Local l77 in New Jersey. However, he asserts, without explanation, that the likelihood all UPS "Central Jersey District" employees were assigned to that local is a key factor that should have been addressed by the court.

We disagree. We are satisfied the court gave appropriate consideration to the relevant Williams factors and its findings could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole. See Close v. Kordulak Bros., 44 N.J. 589, 599 (1994). Moreover, Phillips, supra, is factually inapposite to the present case. In Phillips, the worker resided in Pennsylvania, his original employment contract was entered in Pennsylvania and he was killed in New York as a result of an on-the-job motor vehicle accident. 163 N.J. Super. at 299-300. However, for five years before his death, all of his assigned work stints began at the employer's main terminal at Carlstadt, New Jersey or were concluded there. Id. at 300, 302. Moreover, although he lived in Pennsylvania and drove his car home at the end of the week, the worker slept at the Carlstadt terminal between trips the entire work week. Id. at 300, 303. His trucks were stationed at the terminal. Id. at 303. The worker also received all his trip instructions and picked up his log books at the Carlstadt terminal, and his paychecks originated from the employer's central accounting office that was located there. Ibid. Accordingly, in affirming the determination of the Division of Workers' Compensation that New Jersey had jurisdiction over the claim, we held that "[t]he composite employment incidents present a most compelling identification of the employment relationship with this State." Ibid. In the present case, after completion of the initial one to two week training class in Tinton Falls, New Jersey, petitioner had no contact with New Jersey. He resided in New York and his work assignment, situs of the equipment and his injuries were exclusively in New York. The mere fact that UPS may have classified some of the Staten Island employees as part of the "Central Jersey District" for corporate organizational purposes or that the union, within its sole prerogative, assigned petitioner to a New Jersey local, does not detract from the clear evidence that petitioner's employment relationship with UPS was carried out in New York. Under the circumstances, there is no legal basis or policy justification for New Jersey assuming jurisdiction over petitioner's claims.

Affirmed.

 

According to UPS' workers' compensation carrier's representative, the New York court closed the matter but it could be reopened within eighteen years.

Petitioner acknowledged that it would be to his benefit to seek compensation under New Jersey's jurisdiction rather than New York as he would then be entitled to a permanent disability and a higher weekly benefit.

In discussing the pre-trip instruction card listing petitioner as a member of the Metro Jersey District, John Wesp, UPS Workforce Manager, explained that UPS had different districts in the country for various corporate purposes, which were not "broken up" by state.

(continued)

(continued)

9

A-3845-08T3

March 9, 2010