JOAN HOOVER v. MELISSA E. SMITH, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1204-05T31204-05T3

A-1205-05T3

JAMES M. HOOVER,

Plaintiff-Respondent,

v.

MELISSA E. SMITH, SERGEANT K. SHOPPAS,

and TOWNSHIP OF BURLINGTON,

Defendants-Appellants.

_______________________________________

JOAN HOOVER,

Plaintiff-Respondent,

v.

MELISSA E. SMITH, SERGEANT K. SHOPPAS,

TOWNSHIP OF BURLINGTON,1

Defendants-Appellants,

and

JAMES M. HOOVER,

Defendant.

__________________________________

 

Argued February 5, 2007 - Decided

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County,

L-1224-03 and L-1225-03.

Richard D. Cordry and Joseph M. Pinto argued the cause for appellants (George T. Kotch and Polino and Pinto, attorneys; Mr. Pinto, on the joint brief).

James Lazzaro and Joel R. Rosenberg argued the cause for respondents (Roselli Griegel, attorneys for Joan Hoover; Stark & Stark, attorneys for James Hoover; Mr. Lazzaro and Christopher Froba, of counsel and on the joint brief).

PER CURIAM

Plaintiffs, Joan and James Hoover, were injured when a motorcycle driven by James, on which Joan was a passenger, was struck by a patrol car driven by Melissa Smith, a police officer employed by the Township of Burlington. This appeal arises out of the consolidated personal injury lawsuits brought by both plaintiffs naming Melissa Smith, Sergeant K. Shoppas, and the Township of Burlington as defendants. Defendants appeal from an order of the Law Division entered on October 14, 2005, confirming the arbitration awards entered in favor of plaintiffs. We reverse and remand for trial.

On August 19, 2005, pursuant to R. 4:21A-1(a)(1), the matters were arbitrated, resulting in an award of $375,000 for Joan and $50,000 for James. On September 1, 2005, defendants filed a demand for trial de novo, R. 4:21A-6(b)(1), with the Burlington Law Division. On September 13, 2005, a notice was sent from the clerk's office scheduling trial for December 6, 2005, designating the trial judge and advising the courtroom where the parties were to report. On September 15, 2005, the Law Division judge sent a letter to all counsel advising that she was scheduling a settlement conference for November 17, 2005, in an effort to move cases that were listed for trial de novo before counsel had to pay their experts.

On Monday, September 19, 2005, after reviewing his diary entry for the last day for service of a trial de novo demand, James' attorney had his paralegal call the court to determine whether a demand for a trial de novo had been filed. According to James' counsel, "that's when [the demand for trial de novo] was discovered." According to Joan's counsel, he learned of the previously filed trial de novo demand on September 20 when he called defendants' counsel to advise that he was filing a motion to confirm the arbitration. Defendants' counsel immediately served Joan's counsel on September 20 by hand delivering a copy of the notice for trial de novo. A copy was faxed, overnight, to James' counsel.

Plaintiffs filed their motions to confirm the arbitration awards on September 20. Defendants' counsel objected, certifying that on September 6, 2005, after it was discovered that the original demand for trial de novo had not been simultaneously sent to plaintiffs' counsel, he placed a post-it note on the filed stamped copies of the trial de novo demand that were received from the court, directing his secretary to send them to plaintiffs' counsel. For reasons unknown to defendants' counsel, copies had not been forwarded as directed.

The Law Division judge granted plaintiffs' motions, finding that defendants were not in strict compliance with R. 4:21A-6(b)(1), that "19 days went by without any effort on the part of [defendants] to deal with service." R. 4:21A-6(b)(1) requires both filing and service of a trial de novo demand to be made within thirty days. Noting "that once a party files a timely demand, the clerk of the court will promptly schedule the case for trial and notify the parties of the trial date," we have pointed out that "a delay in satisfaction of the service requirement does not have the same deleterious effect upon efficient administration of the arbitration program as a failure to file the demand within time." Flett Assocs. v. S.D. Catalano, Inc., 361 N.J. Super. 127, 134 (App. Div. 2003). Indeed, the purpose for service of pleading is to give notice to the opposing party. See O'Connor v. Altus, 67 N.J. 106, 126-28 (1975).

 
Here, James' counsel conceded on the record that he was made aware that the trial de novo was filed after his paralegal telephoned the court on the thirtieth day, while Joan's attorney received a copy of the demand for trial de novo one day later. Notably, two notices were sent by the court, within thirty days, effectively informing counsel of defendants' demand for trial de novo in the form of a trial notice and the scheduling of a settlement conference. In his dissent in Stone v. Twp. Of Old Bridge, 111 N.J. 110, 125 (1988), Justice Clifford aptly recognized that "[o]ur [r]ules of procedure are not simply a minuet scored for lawyers to prance through on pain of losing the dance contest should they trip." In our view, under these particular circumstances, there was sufficient justification to relax the thirty-day proscription to prevent injustice. R. 1:1-2.

Reversed and remanded for trial.

Although the Township of Burlington and its police department were named as separate defendants in the original complaint, the Township was omitted as a defendant in the Appellate caption. The Township of Burlington Police Department is a department of the Township and not a separate public entity. We, therefore, have amended the caption, naming only the Township as the public entity defendant.

The transcript indicates that the judge said "19 days." We assume that is a misprint and the judge actually said 29 days. September 19, 2005, was a Monday and was the thirtieth day when calculated in accordance with R. 1:3-1.

(continued)

(continued)

2

A-1204-05T3

 

March 5, 2007