On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L- 11169-97.
Before Judges Skillman, Conley and Wecker.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The issue presented by this appeal is whether a party to an arbitration proceeding mandated by Rule 4:21A which filed and served a demand for a trial de novo within the permitted thirty day period is entitled to a trial de novo even though it mistakenly made service of the demand upon the other party's former attorney. We conclude that the substantial compliance doctrine applies to service of a demand for a trial de novo, and that defendant's timely service of its demand upon plaintiffs' former attorney substantially complied with Rule 4:21A-6(b)(1).
On November 19, 1997, plaintiffs filed this personal injury action arising out of plaintiff Roseann Corcoran's trip and fall on the premises of defendant St. Peter's. When they filed their complaint, plaintiffs were represented by Edward F. Duschock. On April 8, 1999, a substitution of attorney was filed, substituting Michael A. Cohan for Mr. Duschock as plaintiffs' attorney. Thereafter, defendant's attorney dealt with Mr. Cohan as plaintiffs' attorney. On February 17, 2000, an arbitration was held in accordance with Rule 4:21A, which resulted in an award of $240,000 to plaintiffs.
On March 8, 2000, defendant submitted a notice of a demand for a trial de novo to the Arbitration Administrator. When defendant's attorney sent this notice for filing, he also served a copy upon plaintiffs. However, the notice was sent to Mr. Duschock rather than to Mr. Cohan. On March 23, 2000, defendant's attorney also sent a copy of the notice to Mr. Cohan.
On March 22, 2000, plaintiffs filed a motion for confirmation of the arbitration award. Mr. Cohan submitted a certification which stated that the thirty day period for filing a demand for a trial de novo had expired on March 20, 2000, and that he had not been "served with a Demand for Trial De Novo on behalf of the defendant."
Defendant's answering papers took the position that the notice of demand for trial de novo had been properly served on Mr. Duschock because its file showed he was still plaintiffs' attorney of record. The certification submitted by defendant's attorney stated in pertinent part:
5. On or about April 9, 1999, this office received a copy of a letter from Michael A. Cohan, Esq. to the Clerk of Middlesex County which had annexed thereto a purported Substitution of Attorney which was signed by Edward F. Duschock, Esq. but not signed by Michael A. Cohan, Esq.
6. Contrary to R. 1:5-1, this office has never been served with a filed, signed copy of that pleading purporting to be a Substitution of Attorney. Therefore, our file still reflects Mr. Duschock as the Attorney of Record of the plaintiff.
In reply, plaintiffs submitted a supplemental certification by Mr. Cohan which alleged that he had served the substitution of attorney upon defendant's attorney at the same time he sent it to the court for filing and that his office had had an extensive course of dealings with defendant's attorney since that time.
The trial court granted plaintiffs' motion, concluding that Mr. Cohan was the attorney of record at the time of the arbitration hearing, and that, under our decision in Jones v. First Nat'l Supermarkets, Inc., 329 N.J. Super. 125 (App. Div.), certif. denied, 165 N.J. 132 (2000), defendant's service of its demand for a trial de novo upon plaintiffs' former attorney, rather than upon Mr. Cohan, compelled rejection of the demand and confirmation of the award.
Defendant appeals from the order memorializing this ruling. We assume for the purpose of this opinion that Mr. Cohan properly served defendant with a copy of the substitution of attorney. However, we conclude that defendant's mistaken service of the demand for a trial de novo upon plaintiffs' former attorney within the thirty day period allowed by Rule 4:21A-6(b)(1), followed by service of the demand upon Mr. Cohan within a few days after expiration of the period, constituted substantial compliance with the service ...