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Gaskill v. Harrah's Casino Hotel Promus Co.


March 7, 2000


Before Judges Muir, Jr., and Lesemann.

The opinion of the court was delivered by: Lesemann, J.A.D.


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 provisions of the procedure. Defendants point to the signatures of both counsel acknowledging that principle.

Although there is some merit to defendants' argument, we are satisfied that acceptance of their contention would represent nothing less than an implied amendment and enlargement of R. 4:21A-1. That is not an appropriate function for this court to undertake. If the rule is to be so amended and enlarged, that is a function of the Supreme Court in its rule making capacity. N.J. Const. art. VI, § II, ¶ 3.

The rule is not ambiguous in its scope. Its mandatory provisions cover automobile accidents and other personal injury suits with limited financial consequences. Its permissive extensions cover other personal injury actions, but in no way and in no provision does the rule expressly or impliedly refer to other claims, such as an alleged violation of LAD.

Here, non-binding arbitration was apparently employed as a form of complementary dispute resolution, in an attempt to settle plaintiff's claim. The printed form employed in the procedure had apparently been prepared for customary use in an R. 4:21A proceeding. The provisions limiting the right to a trial have no authorization in any rule or directive of the Supreme Court. They should not have been included in the form used here, and they cannot be employed in a "bootstrap" argument to give them an effect not authorized by the rules.

The matter is reversed and remanded for further proceedings consistent with this opinion.

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