Before Judges Muir, Jr., and Lesemann.
The opinion of the court was delivered by: Lesemann, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted on January 25, 2000 - Decided March 7, 2000
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
This case raises the intriguing question of whether parties to a suit not covered by the mandatory non-binding arbitration provisions of R. 4:21A-1, who nevertheless avail themselves of such arbitration, become liable to the dismissal provisions of that rule if they do not comply with its procedural requirements. We conclude that an affirmative answer to that question would represent an unauthorized broadening of the rule adopted by the Supreme Court, and thus we reverse the trial court's dismissal of plaintiff's complaint.
Plaintiff filed a complaint charging a violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to 21 (LAD) by his employer, Harrah's Casino Hotel, as well as by other named defendants. *fn1 Such a complaint is not covered by R. 4:21A-1 which provides for mandatory non- binding arbitration of certain automobile negligence actions (subsection (a)(1)) and certain other personal injury suits defined in subsection (a)(2). *fn2
After filing his complaint, plaintiff received from the office of the court a form of "civil case information statement" which included a question as to whether "CDR" (Complimentary Dispute Resolution) was desired. Plaintiff answered "yes" to that question, and where the form then asked that he "specify" [the] desired type of CDR, plaintiff inserted the words "ESP [Early Settlement Panel] and/or arbitration.
Thereafter, the court sent the parties a document headed "Arbitration Hearing," which stated that, This case has been selected for mandatory, non- binding arbitration. The arbitration is scheduled on September 09, 1998 at 11:30 a.m. The notice included a statement that "cases assigned to arbitration may be subject to removal pursuant to R. 4:21A-1."
At the designated time and place, the parties presented their case to a three-member arbitration panel which concluded that plaintiff had shown no liability on the part of defendants. The panel so indicated on a standard form provided by the court administrator, entitled "Report and Award of Arbitration." The form included a printed provision reading as follows:
Parties desiring to reject this award and obtain a trial de novo must file with the division manager a trial de novo request together with a $200 fee within thirty (30) days of today. Parties requesting a trial de novo may be subject to payment of counsel fees and costs as provided by R. 4:21A- 6(c). Note that unless otherwise expressly indicated, this award will be filed today.
It also requested that, "Counsel acknowledge receipt of this award by signing below." Counsel for each of the parties did sign the form where indicated.
Plaintiff's counsel did not file a rejection of the award or a request for a trial de novo, nor did she submit the $200 fee, referred to within thirty days. Only during an unrelated conversation, when defense counsel indicated his intention to file a motion confirming the arbitrators' decision, did plaintiff's counsel indicate surprise that her request for a trial de novo had not already been filed. Although beyond the time specified in the rule, plaintiff's counsel resisted defendants' attempt to confirm the arbitration award and sought instead a de novo trial on her client's complaint. The court denied plaintiff's request, granted defendants' motion and accordingly dismissed the complaint. This appeal followed.
Were this a proceeding covered by the mandatory arbitration provisions of R. 4:21A, there is no question that plaintiff's complaint would be subject to dismissal and this appeal would have no substance. The thirty day limit prescribed in Rule 4:21A-6(b) can be extended only for "extraordinary circumstances," a narrowly construed concept which is not even arguably applicable here. Hartsfield v. Fantini, 149 N.J. 611 (1997); Wallace v. J.F.K. Hartwyck at Oak Tree, Inc., 149 N.J. 605 (1997). However, since the scope of the rule is limited and does not cover alleged violations of LAD, plaintiff argues that the severe sanctions of the rule are inapplicable.
Defendants, however, argue that plaintiff voluntarily submitted his claim to the non-binding arbitration procedure, and he should not be free to pick and choose which portions of the rule he wants to apply. Whether submission to the non-binding arbitration procedure was mandatory or voluntary, they claim, once a party elects to proceed therein, he or she is liable to all of the applicable ...