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Liam Kilcommons, By His Guardian Ad Litem, Sean Kilcommons; Sean v. Eileen W. Cappiello

March 2, 2012

LIAM KILCOMMONS, BY HIS GUARDIAN AD LITEM, SEAN KILCOMMONS; SEAN KILCOMMONS, INDIVIDUALLY; AND JODI KILCOMMONS, PLAINTIFFS-RESPONDENTS,
v.
EILEEN W. CAPPIELLO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5302-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 14, 2012

Before Judges A. A. Rodriguez and Sabatino.

This appeal arises out of the delayed delivery of a defendant's demand for a trial de novo following an arbitration award. Defendant's trial counsel*fn1 provided correspondence containing the demand to a courier service two days before the thirty-day filing deadline prescribed by N.J.S.A. 39:6A-31 and Rule 4:21A-6(b)(1), with instructions to deliver it to the court the next day. For reasons that are unclear from the record, the courier service did not deliver the demand to the courthouse until three days later, which was one day after the thirty-day period lapsed. The demand was timely served, however, upon plaintiffs' counsel. Given these particular circumstances, the trial court erred in rejecting defendant's request to extend the filing deadline by one day, and we accordingly reverse and remand for a trial de novo in the Law Division.

I.

The relevant chronology is uncomplicated and substantially undisputed. Plaintiffs, Liam Kilcommons, Sean Kilcommons, and Jodi Kilcommons, sued defendant Eileen W. Cappiello in the Law Division for personal injuries arising from an automobile accident. On December 7, 2010, the parties appeared in the courthouse for mandatory, non-binding arbitration pursuant to N.J.S.A. 39:6A-24 to -35 and Rule 4:21A-1 to -9.

The arbitrator determined that defendant was exclusively at fault for causing the accident and awarded $150,000 in damages to plaintiffs.

Pursuant to N.J.S.A. 39:6A-31 and Rule 4:21A-6(b)(1), defendant had thirty days, i.e. until January 6, 2011,*fn2 to file and serve a demand for a trial de novo. Defendant's trial counsel accordingly prepared such a demand.

On January 4, 2011, the office of defendant's trial counsel gave correspondence containing the de novo demand and the required $200 fee to a well-established and reputable courier service. The correspondence was addressed to the trial court's arbitration administrator, with instructions to the courier service to deliver the correspondence to the courthouse as a "standard service" item. According to the courier service's materials, when a customer checks the "standard service" box for a delivery, it "means that the package will be delivered to the recipient's address by the end of the next day." Meanwhile, defendant's trial counsel also transmitted the de novo demand to plaintiffs' counsel, who received it on January 4, 2011, two days before the thirty-day deadline.*fn3

Unfortunately, the courier service did not deliver the package containing the de novo demand to the courthouse until January 7, 2011, one day after the deadline. The record does not enlighten us as to why it took the courier service three days to make this particular delivery.*fn4 However, it is undisputed that defendant's trial counsel had no reason to believe that the courier service would not deliver the package, as instructed, on the next day. It is also undisputed that defendant's trial counsel did not make any follow-up inquiries of the courier service on or before January 6 to confirm that the package would be delivered to the courthouse on time. Instead, defendant's trial counsel did not learn of the lateness of the delivery until after the fact.

The arbitration administrator's office rejected the de novo demand because it had arrived one day late. Consequently, the office sent a form letter to defendant's trial counsel noting the rejection and advising counsel to "file a motion for leave to file the Trial De Novo [Demand] out of time." Pursuant to that advice, defendant's trial counsel promptly moved for leave to file a late notice, contending that he had substantially complied with the thirty-day deadline and that the unanticipated failure of the courier service to deliver the demand within two days was an extraordinary circumstance that justified relaxation of the period by one day. Plaintiffs' counsel did not oppose defendant's motion for relaxation of time, but instead cross-moved to confirm the arbitration award.

After considering the matter on papers, the trial court denied defendant's motion for leave to file a late de novo demand and granted plaintiffs' cross-motion to confirm the arbitration award. The court issued two companion orders on February 4, 2011 reflecting these dispositions. The order denying defendant's motion included a handwritten notation by the motion judge, stating that "[a] slow delivery service does not constitute 'exceptional circumstances,'" and citing Hartsfield v. Fantini, 149 N.J. 611 (1997).

Defendant then moved for reconsideration, which the trial court also denied following oral argument. In its bench ruling on the reconsideration motion, the trial court concluded that defendant had neither shown extraordinary circumstances to justify the late delivery nor demonstrated substantial compliance with the thirty-day filing deadline. The court likened the present situation to the one in Hartsfield, in which the Supreme Court underscored the stringent nature of the thirty-day deadline and declined ...


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