JERSEY CENTRAL POWER & LIGHT COMPANY v. TOWNSHIP OF PHILLIPSBURG

 

(NOTE: The status of this decision is Published.)

                        NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1652-16T3

JERSEY CENTRAL POWER & LIGHT
COMPANY,

        Plaintiff-Appellant,

v.

TOWNSHIP1 OF PHILLIPSBURG,
PHILLIPSBURG EMERGENCY SQUAD,
and ASHLEY M. CRAWFORD,

     Defendants-Respondents.
_________________________________

              Argued telephonically February            27,   2018    –
              Decided March 12, 2018

              Before Judges Sabatino, Ostrer and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Special Civil Part, Warren
              County, Docket No. DC-000550-16.

              Daniel F. Sahin argued the cause for appellant
              (Daniel F. Sahin, PC, attorney; Daniel F.
              Sahin and Mark B. Watson, on the briefs).

              John J. Abromitis argued the cause for
              respondents (Lavery, Selvaggi, Abromitis &
              Cohen, PC, attorneys; John J. Abromitis, on
              the brief).


1
  The complaint erroneously names the Town of Phillipsburg as the
"Township".
PER CURIAM

       This is a property damage case brought against two public

entities.    Plaintiff Jersey Central Power & Light Co. appeals the

trial court's dismissal of its complaint for failure to serve a

tort   claims   notice    within   the       ninety-day   period   mandated   by


N.J.S.A. 59:8-8.         The trial court deemed untimely the notice

plaintiff mailed on the ninety-first day after its cause of action

accrued.    We agree, and affirm.

       At 8:49 p.m. on December 24, 2014, an ambulance of the

Phillipsburg Emergency Squad, a public entity, struck and damaged

a utility pole owned by plaintiff.              Plaintiff incurred expenses

in repairing the pole.       It decided to pursue a claim for property

damage against the Squad, the Town of Phillipsburg, and the

ambulance driver.

       Plaintiff's staff mailed to the Squad a tort claims notice

on March 25, 2015.       That date of mailing was a Wednesday, ninety-

one days after the ambulance struck the pole.                 After plaintiff

filed suit in the Law Division, the Squad and the Township moved

to dismiss the lawsuit for non-compliance with the notice provision

of 
N.J.S.A. 59:8-8.         The judge granted the motion, rejecting

plaintiff's claim that the notice mailed on the ninety-first day

after the accident was timely.


                                         2                             A-1652-16T3
     Although plaintiff argues that case law and court rules

concerning time-counting2 principles in other contexts support its

position, the inescapable fact is that the notice served in this

case was untimely, even if those authorities pertained.   The cause

of action plainly accrued on December 24, 2014, which was the date

of the accident.   Beauchamp v. Amedio, 
164 N.J. 111, 117 (2000).

     The time of day of the accident for purposes of accrual is

irrelevant.   For ease of simplicity and uniformity, the statute

utilizes a common method for calculating the date by which the

notice must be served regardless of the time of day the accident

occurred. Hence, it makes no difference whether an accident occurs

at 12:01 a.m. or 11:59 p.m. on the date of accrual.

     The tort claims notice had to be filed and served no later

than March 24, 2015, which was a non-holiday weekday.   The mailing

on March 25, 2015 was simply a day too late.

     Affirmed.




2
  See, e.g., Hein v. GM Construction Co., 
330 N.J. Super. 282, 285
(App. Div. 2000); McCulloch v. Hopper, 
47 N.J.L. 189, 190 (Sup.
Ct. 1885); Rule 1:3-1.

                                3                           A-1652-16T3