On appeal from Workmen's Compensation Board.
This is an appeal from the Division of Workmen's Compensation. The deputy director entered judgment in favor of the respondent on the ground the Division did not have jurisdiction to hear and determine the issues because the New York Workmen's Compensation Board had exercised complete jurisdiction prior to the institution of these proceedings in New Jersey.
The facts are substantially without dispute, but I make the following specific findings.
The appellant Della Vecchia was originally hired by the respondent to sell encyclopedias. This hiring took place at a branch office of the respondent in East Orange, New Jersey, in October 1957; further, the employment agreement stated that he was to sell only in New Jersey. The East Orange branch office closed about a month after the aforesaid hiring. Subsequently the claimant worked out of the company's home office in Lynbrook, Long Island, N.Y. Della Vecchia reported to that office from one to three times per week and it was there that all meetings and conferences between the claimant and his employer took place. Up to this point the petitioner continued to live and work most of the time in New Jersey.
However, from March 1958 until the date of the accident in March 1959 the appellant went on various selling trips for his employer to such places as Washington, D.C., Richmond, Va., Rochester, N.Y., Niagara Falls, N.Y., and Detroit, Michigan. These trips would last anywhere from two weeks to two months, and each time brought a slightly different commission arrangement. Upon returning home to
New Jersey from a Detroit selling trip in March 1959, the appellant met with an automobile accident in Pennsylvania.
Upon learning of the accident, the employer filed an employer's report of injury with the New York Workmen's Compensation Board. The insurance carrier was notified and proceeded to make payments by check to Della Vecchia for his injury pending a determination by the New York Board. The first check dated April 8, 1959 was accompanied by a form from the Board which indicated that payment was being made under the New York Workmen's Compensation Law. That check and those that followed were endorsed by the petitioner. On April 30, 1959 petitioner received a check along with a form from the Board indicating payments were being stopped. On May 14, 1959 payments were resumed and the check was accompanied by a form to that effect. Two weeks later Della Vecchia received a check and notice from the Board stating that payments had been stopped. At this point the petitioner also received a request from the Board for a medical report to be prepared by his physician.
It was stipulated by counsel that the Board mailed a "Notice of a Hearing" to Della Vecchia. On May 25, 1959 appellant's counsel informed the New York Board that Della Vecchia had filed a claim in New Jersey. The New York Board forwarded to the appellant on July 20, 1959 a "Notice of Decision" indicating that a hearing had been held on July 15, 1959, and that a decision was entered in his favor on all questions, except that there was left open for continuance the question of disability.
Prior to the receipt of this "Notice of Decision" appellant's attorneys on May 1, 1959 filed an "Employees Claim Petition" in New Jersey. A hearing was held on that petition which resulted in a dismissal on May 13, 1960. So much for these factual findings.
The deputy director based this determination on his interpretation of Buccheri v. Montgomery Ward & Co. , 19 N.J. 594 (1955). The present appeal followed.
Admittedly, the petitioner was never served with process of any sort or nature in New York State, hence as its first point as grounds for reversal, the appellant argues a lack of jurisdiction in personam on the part of the New York Workmen's Compensation Board, citing as the leading case on the subject Pennoyer v. Neff , 95 U.S. 714, 24 L. Ed. 565 (1877). A decision on this question is not necessary in view of my ultimate conclusion to remand this case on other grounds; nevertheless, it will be discussed.
Pennoyer holds that a personal judgment is without any validity if rendered by a state court in an action upon a money demand against a non-resident of the state who is served merely by publication of summons and not by personal service of process ...