Conley v. Township of Ocean

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TAX COURT OF NEW JERSEY Mala Sundar JUDGE R.J. Hughes Justice Complex P.O. Box 975 25 Market Street Trenton, New Jersey 08625 Telephone (609) 815-2922 TeleFax: (609) 376-3018 August 24, 2017 UPLOADED AND BY FIRST-CLASS MAIL Debra Conley, Self-Represented Ocean, New Jersey UPLOADED Matthew Goode, Esq. ARBUS, MAYBRUCH & GOODE, LLC 61 Village Court Hazlet, New Jersey 07730 Re: Conley v. Township of Ocean Block 86, Lot 23 Docket No. 008093-2017 Dear Ms. Conley and Counsel: In furtherance of the plenary hearing under R. 1:6-6 held on August 18, 2017 as directed by this court’s letter opinion of July 7, 2017, the court decides the issue of whether plaintiff’s complaint (the above captioned matter) was untimely by one day. To reiterate the undisputed facts, the Monmouth County Board of Taxation (“County Board”) issued a judgment dated February 28, 2017 affirming the 2017 assessment of $301,300 on the above captioned property owned by plaintiff. The judgment noted the mailing date as March 14, 2017, the day when the State was declared to be in a state of emergency due to winter conditions, and all State offices including the courts were closed for business. A posting on the postal service website dated March 14, 2017 stated that due to “Winter Storm Stella,” New Jersey * declared a State of Emergency” which in turn closed “highways and transportation,” due to which “mailers will not have access to roads to deliver the mail in” New Jersey. The notice also stated that there were “no other postal closures or service interruptions reported at this time,” and that “postal operations will continue in areas where it remains safe to do so.” Plaintiff filed a complaint (dated April 24, 2017) with this court on May 2, 2017. This was one day beyond the 45-day deadline of May 1, 2017, if one counted the 45-day time limit from March 14, 2017. After defendant (“Township”) moved to dismiss the complaint, duly opposed by plaintiff, the court, pursuant to its July 7, 2017 letter opinion, held a plenary hearing to determine whether the County Board was open on March 14, 2017 and “undertook its mailing responsibilities as well,” although the State offices were closed for business that day. The Assistant Tax Administrator for the County Board testified as follows: The County Tax Board was open for normal business because she had notified her boss that she would be coming in late that day, and later took an absent day since she did not come in to work. However, for purposes of this motion, she personally verified the employee time sheets for that day (having access to the same on her computer as a supervisor) and saw that employees filled in time sheets for March 14. Time sheets can only be filled in if the employee was physically present, and “clocks in” and “clocks out.” She testified that there are four full-time employees and three temporary individuals who comprise the total staff of the Tax Administrator’s office (not counting herself or the Tax Administrator). The normal office procedure for mailing judgments was as follows: due to the large volume of judgments, the full-time staff requires time to “process” the same, i.e., enter the same on the computer and generate the judgments. The temporary staff also requires time to 2 prepare and stuff envelopes for mailing those judgments. The temporary staff do not process the judgments. Based on the volume of judgments to be processed after the County Board makes determinations in each petition of appeal filed for a particular tax year, the Tax Administrator verbally instructs the staff of a future mailing date by which the processed judgments must be mailed. That future date will provide a window of time for completion of the judgment processing. Once the judgments are placed in the mailing envelope, they are put in a large plastic mail bin. A County employee, who picks up from, and delivers mail to the Tax Administrator’s office, twice a day, physically collects that mail bin. An item of mail that is properly addressed, stamped, and mailed, is presumed to be received by the mail recipient. In SSI Medical Servs. v. HHS, Div. of Medical Assistance & Health Servs, 146 N.J. 614, 621 (1996), the Court held that for the presumption of receipt to apply, the mailer (sender) must show that (1) the mail was correctly addressed; (2) the return address on the mailing envelope was correct; (3) the correct postage was affixed; and (4) the mail “was deposited in a proper mail receptacle . . . .” Proof of mailing “can also be demonstrated by evidence of habit or routine practice.” Id. at 622-23. However, there must be “corroboration that the [routine custom] was followed in a particular instance.” Id. Where “items mailed on a daily basis are voluminous,” and it is difficult to obtain proof of whether the routine procedure or custom was actually followed “on a given day,” credible corroborating proof can create a “reasonable inference that the custom was followed on the given occasion,” which can “suffice to establish proof of mailing.” Id. at 624. A court must weigh the credibility of such corroborative evidence to decide “whether it meets the preponderance of the evidence standard,” and whether it “raises a presumption of mailing and receipt.” Id. at 624 n.1. Thus, courts will accept a “lower standard of proof” such as for instance, 3 proof of “bulk processing and mailing.” Davis & Assoc. L.L.C. v. Township of Stafford, 18 N.J. Tax 621, 628 (Tax 2000). In most cases involving a “presumption of receipt” of items sent by regular mail, the intended mail recipient claims lack of receipt, thus implicating proof of proper mailing, which if satisfied, raises the attendant presumption. See, e.g., Davis, supra; J&J Realty Co. v. Township of Wayne, 22 N.J. Tax 157 (Tax 2005); Southway v. Township of Wyckoff, 20 N.J. Tax 194 (Tax 2002). Here, however, plaintiff undisputedly received the County Board’s judgment. The issue is thus not one of receipt, but whether the County Board’s judgment was mailed on March 14, 2017, since the key fact for computation of the 45-day time limit to appeal is the “date the judgment is mailed,” to which three extra days are added. R. 8:4-1(a)(4); R. 1:3-1; Majestic Const. Co. v. Township of Deptford, 14 N.J. Tax 332, 337 (Tax 1994). The court has credible testimony that the office of the Tax Administrator of the County Board was operating on March 14, 2017 during the winter storm and despite the officially declared State-wide emergency during which State offices and courts were closed. The court also has credible testimony as to the routine procedures for mail pick-up from, and delivery to, the Tax Administrator’s office. However, the court cannot make the inference that because the County Board was open, the routine custom of bulk mailing was or must have been followed on March 14. This is because of the State-wide emergency. The witness, who herself did not attend work that day, presumed that mail was picked up because the County Board was open. However, the employees who reported for work at the County Board were not the employees responsible for picking up the mail bin and then presumably delivering the mail to the post office. Indeed, the witness had no knowledge of how the mail placed in the mail bins is routinely delivered to a post office even on a normal business day. Therefore, and because of the State-wide emergency, 4 road/postal closures in certain areas, the court cannot make a “reasonable inference” from the testimony that the mail placed in the mail bin for pick up on March 14, 2017 by the Tax Administrator’s office was picked up, and then delivered to the post office on that day by a County employee. In sum, and under the circumstances of this case, the court cannot conclude that the March 14, 2017 date shown on the County Board judgment was the date on which the judgment was actually or even inferentially mailed. Therefore, the start date for the 45-day appeal period (to which the 3 extra days would be added) cannot be deemed as March 14, 2017.1 CONCLUSION For the aforementioned reasons, the court denies the Township’s motion to dismiss the complaint as untimely by one day. Very truly yours, Mala Sundar, J.T.C. 1 As noted in its prior opinion, if the mailing date was March 15, 2017, then the complaint would be timely. 5