TERESA MANKO v. BARNES & NOBLE, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3713-06T33713-06T3

TERESA MANKO,

Petitioner-Appellant,

v.

BARNES & NOBLE, INC.

Respondent-Respondent.

_______________________________

 

Submitted October 22, 2007 - Decided November 2, 2007

Before Judges Weissbard and S.L. Reisner.

On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, 2006-17647.

Lanza & Lanza attorneys for appellant (Kenneth W. Thomas, of counsel and on the brief).

Respondent did not file a brief.

PER CURIAM

Petitioner Teresa C. Manko appeals from a February 2, 2007 order of the Workers' Compensation Court dismissing her claim petition for lack of jurisdiction. We affirm.

I

According to her claim petition, Manko worked at a Barnes & Noble store in Easton, Pennsylvania. She was injured while working at that store. Petitioner lives in New Jersey. The employer filed an answer alleging that the New Jersey Worker's Compensation Court lacked jurisdiction and contending that petitioner had already filed a "case" in Pennsylvania. The employer also filed a motion to dismiss for lack of jurisdiction.

The motion was supported by a certification of respondent's attorney attesting that petitioner was employed in the Easton store and that "all medical and temporary benefits for the Petitioner were paid in the state of Pennsylvania." In opposition, petitioner's counsel filed a certification, which was part statement of facts and part brief. The certification conceded that petitioner was employed in the Easton store, but contended that Barnes & Noble also does business in New Jersey and that petitioner "became aware of the job opportunity" by reading an advertisement in a newspaper that circulated in New Jersey. The attached page from the newspaper indicated that the job opening was in Pennsylvania and that the newspaper itself, The Morning Call, was located in Allentown, Pennsylvania.

At the oral argument of the motion, there was no dispute that petitioner had already filed a claim in Pennsylvania and had received benefits for her injury in Pennsylvania. In an oral opinion, placed on the record on February 2, 2007, Judge Granados held that the petition would be dismissed for lack of jurisdiction.

[A]lthough the Petitioner does and has lived in New Jersey, she appears to have been hired in Pennsylvania, worked in Pennsylvania at the Pennsylvania branch of Barnes & Noble. Even though . . . attached to your motion you have a copy of the ad in the Morning Call Career Builder . . . even that is a Pennsylvania publication, I think, but regardless, the contract of hire was in . . . Pennsylvania. The work took place completely in Pennsylvania. I don't think mere residence in New Jersey is enough to establish sufficient nexus with New Jersey to allow a claim to be placed here.

She's already properly, in my opinion, filed in Pennsylvania, and I believe that's where venue should stay.

The judge also confirmed her understanding that dismissal of the New Jersey petition would not preclude petitioner from continuing her claim in Pennsylvania.

II

Petitioner relies on Larson's treatise on Workers' Compensation Law, which recognizes six possible bases to assert jurisdiction:

There are six grounds on which the applicability of the particular compensation act has been asserted; they are that the local state is the:

(1) 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 the contract.

[2 Larson, Law of Workmen's Compensation, 86.10, p. 368.]

Our courts have looked to Larson's treatise in deciding jurisdictional issues. See, e.g., Williams v. Port Auth. of N.Y. and N.J., 175 N.J. 82, 88 (2003). However, while an employee may under some circumstances file a workers' compensation claim in New Jersey when the employee's work is not entirely performed in this State, the employee's "[r]esidence alone . . . is not a sufficient basis for jurisdiction." Wenzel v. Zantop Air Transp., Inc., 94 N.J. Super. 326, 334 (Law Div.), aff'd o.b. 97 N.J. Super. 264 (App. Div. 1967). In Wenzel, the court held that New Jersey did not have jurisdiction over a pilot's workers' compensation claim, even though he performed a small amount of work in New Jersey. Id. at 335-36.

Likewise, in Connolly v. Port Auth. of N.Y and N.J., 317 N.J. Super. 315 (App. Div. 1998), we held that the mere fact that the Port Authority was a bi-state New Jersey and New York agency did not confer jurisdiction in New Jersey over a claim based on an injury incurred in New York. In reviewing the possible jurisdictional bases, we recognized that "[t]he employee's New Jersey residency appears, as well, to be sufficient, at least where there are also some employment contacts in New Jersey." Id. at 320 (citations omitted; emphasis added). Here, there are no such employment contacts.

Petitioner's reliance on Phillips v. Oneida Motor Freight, Inc., 163 N.J. Super. 297 (App. Div. 1978), is likewise misplaced. In that case, the employee's work had a clear nexus to New Jersey. "Every assigned work stint of the decedent began in New Jersey or was concluded here. Consequently every such job performance involved to some extent execution of the work in this State." Id. at 302-03. While Phillips recognized that filing a claim petition in another State would not necessarily bar a claimant from also filing a petition here, so long as there was otherwise jurisdiction in New Jersey, id. at 305, Phillips does not support petitioner's claim of jurisdiction here.

 
In this case, petitioner's employment had no connection to New Jersey, and her petition was properly dismissed for lack of jurisdiction.

Affirmed.

The attorney's certification was not legally competent evidence as to how petitioner became aware of the job opening.

(continued)

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A-3713-06T3

November 2, 2007