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Mangiapane v. Central Jersey Waste & Recycling

November 4, 2010

GUSTO E. MANGIAPANE, PLAINTIFF-RESPONDENT,
v.
CENTRAL JERSEY WASTE & RECYCLING, INC., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2827-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 19, 2010

Before Judges Baxter and Koblitz.

Defendant Central Jersey Waste & Recycling, Inc. (Central Jersey or the company) appeals from a December 4, 2009 Law Division order that denied its motion to vacate the default judgment plaintiff Gusto Mangiapane had obtained against the company in February 2006. We conclude that defendant presented sufficient evidence of an office procedure requiring staff to immediately give a summons and complaint to the company president, and of a violation of that policy by the company's receptionist, as to warrant a hearing on whether defendant had demonstrated exceptional circumstances under Rule 4:50-1(f). We reverse and remand for further proceedings.

I.

On January 7, 2005, plaintiff was allegedly injured when the garbage truck he was operating was involved in a traffic accident. He asserted in his April 15, 2005 complaint that Central Jersey was the owner of the vehicle, it had maintained the vehicle negligently, and such negligent maintenance rendered the vehicle unsafe, thereby contributing to, or causing, his injuries. The complaint did not name any other driver or any other company as a defendant.

Plaintiff's counsel forwarded the summons and complaint to the Mercer County Sheriff in July 2005, requesting that the Sheriff serve the complaint on defendant at 235 Gibbs Avenue, Trenton. The Sheriff provided plaintiff's counsel with a return of service specifying that the summons and complaint had been served upon defendant on July 11, 2005 and the person served with the pleadings was Judy Mayhew, defendant's receptionist. At the bottom of the page, the deputy sheriff circled three items:

Served person authorized to accept service/Managing agent Moved, no longer can be found at address given Other. 432 Stokes Ave., Ewing, NJ 08628.

Thus, as of July 2005, plaintiff was advised by the Mercer County Sheriff that Central Jersey's current address and business office was 432 Stokes Ave, Ewing, and not 235 Gibbs Avenue, Trenton.

Several months later, on December 12, 2005, plaintiff submitted a request to the clerk in Middlesex County to enter default against defendant pursuant to Rule 4:43-1 because defendant had been served with the summons and complaint, the time for answering or filing a responsive pleading had expired without being extended, and defendant had not filed an answer to plaintiff's complaint. Despite having been notified of defendant's Ewing address some five months earlier, plaintiff sent a copy of the request for entry of default to defendant at the invalid Trenton address. The court entered the requested default on December 27, 2005.

After being notified that the clerk in Middlesex County had indeed entered the default, plaintiff sent a notice of proof hearing, see Rule 4:43-2(b), to defendant, but, as plaintiff had done with the request for entry of default, sent the notice of proof hearing to defendant at the defunct Trenton address, rather than to the Ewing address that the Mercer County Sheriff had provided on the return of service in July 2005.

At the conclusion of the February 15, 2006 proof hearing, the judge entered judgment by default against Central Jersey in the amount of $106,670 with an additional $2,131 in pre-judgment interest. On May 25, 2006, plaintiff forwarded an Information Subpoena to Central Jersey notifying it that a default judgment in the amount of $106,670 had been entered and advising the company of its right to move to vacate that default judgment. The Information Subpoena also sought information about defendant's assets and where such assets were located. The Information Subpoena was again sent to the defunct Trenton address, rather than to the Ewing Township address that the Sheriff had provided on the July 11, 2005 return of service.

Receiving no response to its May 25, 2006 Information Subpoena, plaintiff submitted a request to the United States Postal Service for information about any change of address Central Jersey may have filed. By letter of November 28, 2006, the Postal Service notified plaintiff that there was "[n]o [c]hange of [a]ddress [o]rder on file."

Years passed before plaintiff took any further action. In particular, on November 4, 2008, two years after being notified by the Postal Service that it had no change of address on file for Central Jersey, plaintiff again sent a copy of the Information Subpoena to defendant, but, for the first time, sent the documents to Central Jersey at its correct Ewing Township address. Five weeks later, on December 11, 2008, plaintiff sent another copy of the ...


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