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Jameson v. Great Atlantic and Pacific Tea Co.

October 20, 2003

FREDERICK JAMESON AND SUSAN JAMESON, PLAINTIFFS-RESPONDENTS,
v.
GREAT ATLANTIC AND PACIFIC TEA COMPANY, AND A&P SUPERMARKETS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, MiddleseX County, Docket No. MID-L-8283-01.

Before Judges Stern, A.A. Rodriguez*fn1 and Lefelt.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 23, 2003

Plaintiff Frederick Jameson fell on melted ice cream in the frozen food aisle of a Morris County supermarket owned by defendant, The Great Atlantic and Pacific Tea Company (A&P). Plaintiff and his wife live in Warren County and filed suit in Middlesex County. Even though A&P's corporate office is located in Montvale, plaintiff contends that A&P was properly served when a Middlesex County sheriff officer left the summons and complaint with the head cashier, Kelly A. Indyk, at the courtesy counter of one of A&P's markets in Edison, a town in MiddleseX County. The sheriff officer's return of service indicated that Indyk was authorized to receive process. A&P failed to answer plaintiff's complaint, and plaintiff eventually obtained a $115,000 default judgment, which was soon after recorded as a lien.

A&P now appeals from the trial judge's denial of its three motions attempting to vacate the default judgment. A&P argues before us, as it did in the trial court, that because service was defective, plaintiff's judgment was void and should have been vacated. We reverse and remand for further proceedings.

I.

We add some procedural facts to place the dispute in more precise focus. Before filing its complaint, plaintiff's attorney had some communications with Crawford & Company, A&P's claims administrator. At no point, before or after beginning this lawsuit, did plaintiff's counsel inform Crawford that a complaint was either imminent or filed. Similarly, the record does not reflect that counsel contacted Crawford after the corporation failed to answer by October 16, 2001.

Instead, plaintiff's counsel obtained a default, certifying that the Middlesex County sheriff officer, on September 10, 2001, had personally served A&P. Counsel attached a copy of the officer's affidavit of service containing a check mark next to served an"agent authorized to accept service," with the cashier Indyk's signature as the person served.

On March 5, 2002, via overnight mail to the Edison supermarket, plaintiff's counsel attempted to notify A&P of a doctor's deposition scheduled for March 8, 2002. On March 6, 2002, Indyk called plaintiff's counsel inquiring about the deposition. Counsel informed Indyk that plaintiff filed a complaint against A&P and the sheriff had left it with the store. Counsel further certifies,"Ms. Indyk asked who accepted service and I read her the Affidavit of Service with her name and signature. Ms. Indyk replied,'That's me.'" Plaintiff's counsel further certifies that he"informed Ms. Indyk that Defendant had not entered an appearance or filed a responsive pleading... [and] notified Ms. Indyk of the status of default and... she should contact Defendant's attorneys and have them contact me." In response, plaintiff's counsel certifies that Indyk explained,"the mail run doesn't go out until Sunday," to which counsel replied"the deposition would go forward unless we hear from Defendant's attorneys."

On March 8, 2002, again via overnight mail to the Edison market, plaintiff's counsel attempted to notify A&P of a proof hearing scheduled for March 14, 2002 in Middlesex County. A&P failed to appear at the proof hearing and the trial judge granted plaintiff's motion and on March 20, 2002 awarded plaintiff the default judgment at issue in this case. Plaintiff recorded the judgment as a lien on March 26, 2002.

A&P's first motion to vacate the default judgment was made soon after plaintiff attempted to execute on the judgment. As previously indicated, A&P made three motions attempting to vacate the default judgment. As support for its position, A&P supplied an attorney's certification indicating that Indyk was neither a manager nor an agent authorized to accept service, and that Indyk told the attorney that the sheriff's officer never asked Indyk whether she was so authorized. Furthermore, A&P's attorney certifies Indyk"never represent[ed] to anyone that she was so authorized."

II.

It is elementary that service must be accomplished in accordance with the pertinent rules in such a way as to afford"notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 97 (App. Div. 1998), certif. denied sub nom., Davis v. Surrey Downs/Fidoreo, Inc., 158 N.J. 686 (1999) ...


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