On appeal from Superior Court of New Jersey, Chancery Division, Hudson County.
Francis and Morton I. Greenberg.
This is an appeal by the defendant employer, Hudson Bergen Trucking Company, from the denial of its motion to vacate an order, entered against it by default, confirming an arbitration award in a dispute involving an employee and the plaintiff union. Defendant sought to have the confirmation order vacated on the ground that it had not been properly served with the order to show cause and complaint filed by the union seeking confirmation and thus the court did not obtain in personam jurisdiction over defendant in the matter. The union had served the New York City attorney who had represented defendant in the arbitration matter. Defendant's motion to vacate the confirmation order was denied by the trial court which held that when defendant authorized the New York attorney to execute a written submission to arbitration agreement on defendant's behalf, defendant placed no limitation on the attorney's agency either as an attorney or otherwise. The court concluded that:
"by thus holding him out as the individual responsible for the conduct of the proceeding on behalf of the employer, defendant here must be said to have so acted as to justify plaintiff's presuming that [the attorney] was an authorized agent for receipt of service of the order to show cause and verified complaint."
Defendant's contention on appeal is no different from its contention below. Defendant argues that the confirmation order entered by default against it is void for lack of in personam jurisdiction over defendant because plaintiff's service of the order to show cause and verified complaint upon the New York attorney at his New York office was insufficient and ineffective for jurisdictional purposes since the attorney was not one of those persons delineated by R. 4:4-4(c)(1) to receive service of process on defendant's behalf. We agree and reverse.
R. 4:4-4 prescribes the manner in which summonses, writs and complaints are to be served in this State. Subsection (c)(1) deals with service of process upon corporations and provides that service of process shall be made:
The question is whether the New York attorney representing defendant in the arbitration proceeding falls within any of the categories delineated in the court rule as appropriate persons to receive service of process.
While there are no reported cases in this State defining what is meant by a "person authorized by appointment or by law to receive service of process" for a corporation, our state court rule is virtually identical to that found in the Federal Rules of Civil Procedure*fn1 (Fed.R.Civ.Pro. 4(d)(3)) and thus we may look for guidance to cases emanating from the federal jurisdictions as well as to treatises dealing with the Federal Rules of Civil Procedure. Moore's Federal Practice and Wright and Miller, Federal Practice and Procedure: Civil provide concise articulations about what is meant by the phrase "any other agent authorized by appointment or by law to receive service of process." Paragraph 4.22 of Moore's Federal Practice (2d ed. 1979) explains that:
"Any other agent authorized by appointment" refers to an agent expressly or impliedly appointed by the corporation, partnership or other unincorporated association subject to suit under a common name. . . .
The agency for the receipt of process may be implied from the surrounding circumstances. But the mere appointment of an agent, even with broad authority
is not enough; it must be shown that the agent had specific authority, express or implied, for the receipt of service of process. While an attorney may be such an agent, the same principles apply in determining whether the attorney was specially vested with authority to receive service of process. An agent's acceptance of service, or his own statement as to his authority is insufficient, standing ...