On appeal from Superior Court of New Jersey, Law Division, Atlantic County, L-3785-98.
Before Judges King, Cuff and Winkelstein.
The opinion of the court was delivered by: Winkelstein, J.A.D.
As amended December 27, 2001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The question presented is whether the failure of defense counsel's computer diary system to pick up the date to appeal an arbitrators' award constitutes an extraordinary circumstance allowing relaxation of the thirty-day time frame within which to demand a trial de novo. R. 4:21A-6(b)(1). The motion judge, in an oral decision, concluded that a computer failure did not constitute an "extraordinary circumstance" under the rule. We agree and affirm.
Plaintiff, who operates a farm in Hammonton, New Jersey, claims defendant supplied him with a defective water pump resulting in the loss of his blueberry crop in 1993. Suit was filed on October 30, 1998 and the case was referred to arbitration on May 19, 2000. See R. 4:21A-1 to -8 (1999). Although the Rule as then- enacted applied only to automobile negligence and other personal injury actions, by Supreme Court Orders dated June 3, 1997 and March 16, 1998 the rules of court were modified to permit referral of all civil cases filed in Atlantic County (with certain exceptions not applicable to this case) to arbitration.
Upon completion of the arbitration proceeding, the arbitrators assessed liability at eighty percent upon defendant and twenty percent upon plaintiff; they awarded plaintiff damages of $150,000. Neither party filed a notice of rejection of the award and demand for a trial de novo within thirty days after the arbitration award was filed. See R. 4:21A-6(b)(1). On June 20, 2000 plaintiff filed a motion to confirm the arbitration award, R. 4:21A-6(b)(3), which defense counsel received on June 22, 2000. Upon receipt of the motion defense counsel reviewed his file. He discovered that due to an apparent system failure, his computerized diary had not alerted him to file a demand for a trial de novo within the thirty- day time period as required by R. 4:21A-6(b)(1).
Defense counsel's office was in the end stage of converting from an Alpha-Micro Mainframe Computer System to a local area network (LAN) PC Service System. Counsel relied on the computer "markup" system to diary statutes of limitations and other deadlines, including a diary notation to alert him when to file a demand for a trial de novo. Counsel had no backup diary system. Without dispute, counsel had no reason to suspect, in advance of the incident, that the system would not operate correctly. Not until counsel received the motion to confirm the arbitrators' award did the system failure become known and was the loss of the diary notation discovered.
At oral argument defense counsel acknowledged that he was unaware of any other circumstance in which the system failed. Although the reason for the system failure has not been conclusively determined, counsel suspects it was a malfunction of the system's software.
The thirty-day period to file a notice of rejection of an arbitrators' award and demand for a trial de novo may be extended upon a showing of extraordinary circumstances. Hartsfield v. Fantini, 149 N.J. 611, 616-17 (1997) (citing Mazakas v. Wray, 205 N.J. Super. 367, 370-71 (App. Div. 1985)). In Mazakas, we cautioned that, when neither party has made a timely motion for a trial de novo, the court's power to extend the time frame "must be sparingly exercised with a view to implementing both the letter and the spirit of the compulsory arbitration statute and the rules promulgated pursuant thereto, to the end that the arbitration proceedings achieve finality." 205 N.J. Super. at 372. To relax the thirty-day rule, a court must determine that "extraordinary circumstances" exist and that those circumstances did not arise from an attorney's "mere carelessness" and "lack of proper diligence." Hartsfield, 149 N.J. at 618 (citing In re T., 95 N.J. Super. 228, 235 (App. Div. 1967)).
A fact-sensitive analysis is necessary in each case to determine what constitutes an extraordinary circumstance. Hartsfield, 149 N.J. at 618. In Hartsfield, the attorney's failure to supervise his secretary and review his diary was not considered an extraordinary circumstance. Id. at 619; see also Wallace v. JFK Hartwyck at Oak Tree, Inc., 149 N.J. 605, 610 (1997) (concluding that writing the wrong date on a calendar, causing the thirty-day period to be missed, did not qualify as an extraordinary circumstance warranting an extension for the attorney); Behm v. Ferreira, 286 N.J. Super. 566, 574 (App. Div. 1996) (finding that an attorney's failure to supervise staff is generally insufficient to allow a late demand for a trial de novo); Hart v. Property Mgmt. Sys., 280 N.J. Super. 145, 147-49 (App. Div.), certif. denied, 141 N.J. 99 (1995) (holding that extraordinary circumstances did not exist where the associate in the ...