FRANCIS HANNON v. HALAL MIDDLE EASTERN GROCERY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FRANCIS HANNON and MICHAEL MARTIN,

Plaintiffs-Appellants,

v.

HALAL MIDDLE EASTERN GROCERY,

Defendant.

____________________________________

December 15, 2015

Submitted November 9, 2015 Decided

Before Judges Sabatino, Accurso and Suter.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Mercer County, Docket No. SC-1203-13.

Cutolo Mandel, LLC, attorneys for appellants (Jeffrey S. Mandel, of counsel and on the brief).

Respondents Hajji Ma Mound and Rammi-Ibn Ma Mound have not filed a brief.1

PER CURIAM

Plaintiffs Francis Hannon and Michael Martin appeal from a March 19, 2014 order of the Special Civil Part, Small Claims Section denying their request to vacate the dismissal of their complaint for their failure to appear on the trial date. Plaintiffs are inmates of the New Jersey State Prison in Trenton serving life sentences. They filed a lengthy Small Claims complaint against defendant Halal Middle Eastern Grocery in October 2013, alleging Hannon ordered $203.08 in food from defendant through the "Inmate Incentive Food Package Program" at the prison, and the delivery was short items totaling $93.50. Plaintiffs further alleged they both became sick after eating a chicken breast received as part of Hannon's order and required medical treatment. Finally, plaintiffs claim that the chicken breast, which allegedly was packaged by ALDI for sale only in ALDI stores, was illegally sold by defendant. Hannon sought reimbursement of $93.50 for product never received, $19 in medical fees, costs of $22 and "personal injury damages" of $1350. Martin sought $19.50 in medical fees and "personal injury damages" of $1350.

It appears from the sparse record that the complaint was filed, assigned a docket number and served on defendant by the clerk of the court in accordance with Rule 6:2-3(d). When plaintiffs failed to appear on the trial date, the court dismissed the action without prejudice. Some months later, Hannon wrote to the court inquiring as to the status of the action and claiming not to have received confirmation that the complaint was successfully served. The clerk responded promptly, advising Hannon that the complaint was dismissed on the trial date when plaintiffs failed to appear. Plaintiffs then filed their motion to reinstate the complaint, which the court denied in an order with the following notation: "The request of plaintiffs to re-open and re-schedule the within case is denied, until the court is advised plaintiffs are no longer incarcerated, and able to attend such a hearing." We agree with plaintiffs that there is nothing in the record to suggest the judge knew when he entered the order that plaintiffs were serving life sentences.

We granted Hannon's motion for leave to appeal and to proceed as an indigent by order of July 24, 2014. We determined he was entitled to appeal as of right, deemed his motion a timely notice of appeal and directed the clerk's office to provide him with a pro se packet to assist him in its prosecution.2 The same was done for plaintiff Martin. The clerk's office immediately wrote to plaintiffs offering them the opportunity to participate in the court's pro bono civil pilot program. Plaintiffs enrolled in the program, and able and experienced counsel volunteered to represent them on this appeal. Defendant did not file an opposing brief, but submitted a letter stating that the non-appearance issue essentially is one which implicates the judiciary and the Department of Corrections rather than defendant's private rights.

Plaintiffs' counsel argues that dismissal of the complaint should be reversed and the matter remanded so that plaintiffs may be afforded notice of the trial date and "the trial judge can consider the factors set forth in Beneficial of New Jersey v. Bullock, 293 N.J. Super. 109 (App. Div. 1996)[3] on the issue of whether plaintiffs' physical appearance is necessary and, if so, how to effectuate such attendance." Counsel further recommends that we refer to the Civil Practice Committee the question of whether inmates should be required to identify their status in the initial pleading (as the Court Rules do not require a Case Information Statement to be filed in the Special Civil Part); that we require the trial court in any case involving an inmate to identify the inmate's parole eligibility date "which, pursuant to Bullock, would be a factor for the court to consider in crafting a resolution to the inmate's inability, without undue burden on the Department of Corrections or the Judiciary, to physically appear in court"; and that we declare any order conditioned upon an inmate's release from prison be deemed final for purpose of appeal if the inmate has been sentenced to life. Because we conclude this particular case is a poor vehicle for consideration and resolution of such far-reaching issues, we decline plaintiffs' request for remand and affirm the order as modified.

We base our decision both on the state of the record and the nature of the claim. First, our inquiry of the Clerk of the Special Civil Part in Mercer County confirmed what we expected from the clerk's advice to plaintiffs that their complaint was dismissed on the trial date, that is that defendant had been served with the complaint by the clerk. When service is effected pursuant to Rule 6:2-3(d), the automation program used by the clerk's office generates postcards to the parties advising them of their trial date in accordance with Rule 6:2-3(c).

Although plaintiffs claim not to have received notice of the trial date, the clerk's records confirm that notice was sent to both plaintiffs at the prison, and we note that plaintiffs obviously received all other notices sent by the clerk's office. Accordingly, the record is insufficient to allow us to resolve whether plaintiffs did or did not individually receive actual notice of the trial date.

More important, however, than whether plaintiffs received or acted upon notice of the trial date is what the complaint reveals about the nature of the claims. Plaintiffs ordered the food from defendant pursuant to what they call the "Inmate Incentive Food Package Program," which they claim allows inmates to "order food products from outside vendors." They contend defendant was paid $203.08 from Hannon's institutional account. In its letter to the clerk of this court advising that it would not participate in the appeal, defendant noted

that the food incentive program is supervised by the [C]orrection[s] facility, in part to prevent any contraband or potentially dangerous items from coming into the prison. Only items on an approved list may be delivered and must be packaged as required by the facility. Correction[s] personnel inspect all the deliveries I make and check the contents against an invoice for each order. If an inmate claims something was missing from an order, I respond to those claims with [C]orrection[s] personnel. I did that in this case. Likewise, the handling of perishable items after delivery is subject to procedures of the facility.

Although we could not find any information about this program in the Department of Corrections' regulations or on its website, it appears clear to us that this case is not particularly well suited for resolution in a Special Civil Part trial. In addition to the possible existence of administrative remedies for plaintiff Hannon with regard to his contract claim, given that his order was placed and delivered pursuant to a prison program overseen by prison officials, both the contract claim and the personal injury claim appear to implicate actions by prison personnel in the debiting of Hannon's prison account and the receipt, handling and storage of his food order.

Such claims would, at the very least, appear to raise a potential need for discovery of the Department of Corrections and might well lead to defendant impleading the Department by way of a third-party complaint. See R. 4:8-1(a) and R. 6:3-1. Accordingly, the nature of the claims as well as the status of plaintiffs appear to make this case one particularly ill-suited for the expedited procedures of the Special Civil Part generally or the summary practice employed in the Small Claims Section specifically, in which actions are to be disposed of on the return day set forth in the summons. See R. 6:11.

Because this case, on account of its complexity and the status of plaintiffs, does not appear one appropriate for the Small Claims Section or the Special Civil Part, we find no error in the court's determination to dismiss it without prejudice when plaintiffs failed to appear on the trial date. We do, however, modify the order to allow plaintiffs to refile their complaint in the Law Division, without waiting for the conclusion of their sentences, after they have exhausted their administrative remedies.

Should plaintiffs desire to refile their complaint, they must advise the court immediately upon filing of their status as inmates serving life terms and advise in the complaint whether they have pursued their administrative remedies within the prison system as well as the outcome of any such administrative proceeding, attaching copies of all relevant documents. Should plaintiffs desire to pursue their claims for personal injuries, they must specifically allege the particulars of the illness they claim to have suffered, the dates they sought medical attention and proof of the diagnosis rendered, attaching whatever proofs they have to their complaint. We offer no opinion as to whether any new complaint should equitably relate back to the date of plaintiffs' original filing, leaving any such determination to the trial court in the first instance on the basis of the facts at the time any such application is made.

Because the state of the record and the nature of the complaint makes the case a poor vehicle to consider whether the Bullock factors should apply or be modified to address the dismissal of a complaint when a prisoner plaintiff fails to appear on the trial date,4 we decline plaintiffs' invitation to address the issues on this record. We accordingly affirm the decision as modified by the terms of our opinion.

Affirmed as modified.

1 The two individual respondents were not named in the complaint or the trial court order. Although plaintiffs included them in their notices of appeal, they are obviously not proper parties to this appeal.

2 Because we deemed the appeal one of right on Hannon's initial motion to this court, we do not address the second point of the brief that the order denying reinstatement, although interlocutory on its face, was "final for purpose of appeal when the inmate is serving a life sentence."

3 Bullock involved an inmate's challenge to a default judgment entered against him when he was unable to secure transport from prison to appear for trial. Although we declined to compel the Department of Corrections to produce inmates for civil proceedings or to require a plaintiff to increase its costs by funding the defendant prisoner's transport, we held "the trial court must treat with liberality an inmate's endeavor to defend" before entering a default judgment for non-appearance. 293 N.J. Super. at 112. Specifically, we required that in the event an "inmate asserts the right to defend, or a meritorious defense," the trial court must consider

the efforts of the parties to secure [the inmate] defendant's presence, including the defendant's ability and plaintiff's willingness to pay, the nature and complexity of the action and the expected length of incarceration, whether the prisoner's claims are substantial; whether a determination of the matter can reasonably be delayed until the prisoner is released; whether the prisoner can and will offer admissible, noncumulative testimony which cannot be offered effectively by deposition, telephone or otherwise; whether the prisoner's presence is important in judging his demeanor and credibility compared with that of other witnesses; whether the trial is to the court or to a jury and the prisoner's probability of success on the merits

in balancing the equities and determining how to proceed. Id. at 112-13 (citations and quotation marks omitted); see also United Jersey Bank v. Siegmeister, 163 N.J. 392 (2000) (granting petition for certification and remanding for consideration of the Bullock factors before entry of a default judgment against an inmate for failure to appear at trial).

4 We also note in this regard that the Department does have regulations, see N.J.A.C. 10A:3-9.13, that specify procedures for transporting inmates to court in civil cases, and that many vicinages have procedures for video-conferencing access for prisoners. We need not address those procedures here because plaintiffs never made any request to be transported to or linked by video to the court, since they allegedly never knew about the trial date.