On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L- 6322-99.
Before Judges Skillman, Wallace, Jr.*fn1 and Wells.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 oral notification of an intention to demand a trial de novo following an arbitration award constitutes substantial compliance with the requirement that such a demand be served on the opposing party.
On July 18, 2000, this personal injury action, which arose out of a slip and fall in one of defendant's supermarkets, was arbitrated in accordance with Rule 4:21A. The arbitrator determined that both parties were responsible for the accident, and assigned 80% liability to the defendant. The arbitrator also determined that plaintiff's damages were $50,000. Accordingly, the arbitrator entered a molded arbitration award in favor of plaintiff for $40,000 exclusive of prejudgment interest. On July 27, 2000, plaintiff filed a demand for a trial de novo. However, plaintiff failed to serve the demand upon defendant.
On September 20, 2000, defendant moved to dismiss plaintiff's complaint with prejudice on the ground that plaintiff had failed either to serve a demand for a trial de novo or to file a motion for confirmation of the arbitration award. The motion was supported by a certification of defendant's counsel, who stated that he first learned plaintiff had filed a demand for a trial de novo when he called the Essex County Court House on September 15, 2000, to inquire about the status of the case.
Plaintiff's counsel submitted a certification in opposition to the motion which admitted that defendant's counsel "was inadvertently not provided with a copy of" the demand for a trial de novo. In addition, plaintiff's counsel alleged that he told defendant's counsel immediately after the end of the arbitration hearing that "we would definitely de novo the award."*fn2 Defendant's counsel filed a reply certification denying that such a conversation occurred.
The trial court granted defendant's motion to dismiss, noting that Rule 4:21A-6(b)(1) requires a demand for a trial de novo not only to be filed with the court but also to be served on all other parties to the action, and that this court held in Jones v. First Nat'l Supermarkets, Inc., 329 N.J. Super. 125 (App. Div.), certif. denied, 165 N.J. 132 (2000), that this requirement should be strictly enforced. The court stated that even if plaintiff's counsel told defendant's counsel that he planned to demand a trial de novo, this did not shift the burden to opposing counsel "to ferret out" whether such a demand actually had been filed. Plaintiff filed a motion for reconsideration of the dismissal of her complaint, which the trial court also denied.
Rule 4:21A-6(b) provides in pertinent part:
(b) Dismissal. An order shall be entered dismissing the action following the filing of the arbitrator's award unless:
(1) within 30 days after filing of the arbitration award, a party thereto files with the civil division manager and serves on all other parties a notice of rejection of the award and demand for a trial de novo and pays a trial de novo fee as set forth in paragraph (c) of this rule; or
(3) within 50 days after the filing of the arbitration award, any party moves for confirmation of the arbitration award and entry of judgment thereon. [Emphasis added.]
In Jones v. First Nat'l Supermarkets, Inc., supra, 329 N.J. Super. at 127, we held that because "[t]he express language of R. 4:21A-6(b)(1) provides that both filing and service of the demand must be accomplished within thirty days of the entry of an arbitration award[,] . . . the requirement of [such] service should be strictly enforced." However, in Corcoran v. St. Peter's Med. Ctr., 339 N.J. Super. 337, 339 (App. Div. ...