On appeal from Superior Court of New Jersey, Law Division, Camden County (AM-107-85T5).
Dreier, Bilder and Gruccio. The opinion of the court was delivered by Dreier, J.A.D.
Defendants have sought leave to appeal from the granting of plaintiffs' motion for a trial de novo under the Automobile Arbitration Program and the denial of defendants' cross motion to confirm an arbitration award. We have elected to consider the merits of this appeal simultaneously with the motion for leave to appeal on the motion papers pursuant to R. 2:11-2.
Plaintiff's initial claim rests upon the fact that the vehicles in which the plaintiff, Robert Mazakas, Sr. and defendant, Robert Twisdale were riding were, respectively, a commercial truck and a school bus. Although there may have been some question as to whether the parties were occupying "automobiles" subject to compulsory arbitration under N.J.S.A. 39:6A-24 et seq., the fact remains that they did not object to the submission of this case to arbitration under the Act and implicitly waived their right to raise this issue. We, therefore, will not consider that issue on this appeal.
The matter was scheduled for arbitration in the Camden County program on July 17, 1985. The arbitration was held on that date, the arbitrator awarding plaintiffs $35,000 in damages and $4,000 in prejudgment interest.*fn1 Neither party rejected the decision within 30 days as required by N.J.S.A. 39:6A-31 and Rule 10B(1) of the Statewide Rules Governing Automobile Arbitration (Arbitration Rules)*fn2 and, therefore, the underlying pending tort complaint was dismissed August 19, 1985. On August 27, 1985, plaintiff filed a motion (a "petition," under N.J.S.A. 39:6A-1) requesting a trial de novo pursuant to Rule 10B(1), and on September 3, 1985 pursuant to Rule 10B(2) defendants filed a motion seeking confirmation of the arbitration award. This latter motion was within the 50-day period specified by the Rule. At oral argument the trial judge ruled that plaintiffs would be granted a trial de novo and defendants were denied confirmation.
Plaintiffs note that permitting the case to go to trial would occasion no delay since the assignment judge has already placed the case on the current monthly trial list. Also plaintiffs assert that settlement discussions had been proceeding between the parties following the arbitration, and it would be inherently
unfair to enforce the 30-day limitation when plaintiffs thought defendants were bargaining in good faith for an amount other than that awarded by the arbitrator. Defendants contend that plaintiffs knew well before the 30 day period expired that they were offering the full arbitration award, and that no offers would be made in excess thereof.
The trial judge stated that his practice has been to relax the filing rules and permit a late filing of the petition for a trial de novo. He further noted that there is no definite rule governing this point and that in other counties judges "are becoming very strict and holding parties to the letter of the 30 day time period." See, e.g., Cotter v. Dodd, 204 N.J. Super. 561 (Law Div.1985) and Cuccurullo v. Meskin, 204 N.J. Super. 386 (Law Div.1985).
The issues before us are whether the 30-day period is jurisdictional and, if not, (a) whether the statutory time period and Arbitration Rule 10B(1) are either subject to the general relaxation provisions of R. 1:1-2 or, as held in Cotter, the trial courts have been denied power to relax the rule; and (b) if relaxable, what standards for relaxation should be applied.
The 30-day limitation upon a party's filing for a trial de novo is not jurisdictional. The complaint already is before the Superior Court, and the arbitration proceedings are but a diversion of at least the initial adjudication of the claim to arbitration. There are no new statutory rights created limited in their exercise to a specific time period. See White v. Violent Crimes Compensation Board, 76 N.J. 368, 376 (1978), although, as there stated, even in such cases we no longer apply a "mechanistic treatment" to determine whether the limitation is substantive or procedural (at 379). And see Kaczmarek v. New Jersey Turnpike Authority, 77 N.J. 329, 338-39 (1978). It is clear from ...