NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 20, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4401-10.
Helmer, Paul, Conley & Kasselman, P.A., attorneys for appellant (Patricia B. Quelch, of counsel and on the brief).
Sherri L. Schweitzer, Camden County Counsel, attorney for respondents (Howard L. Goldberg, First Assistant County Counsel, on the brief).
Before Judges Graves and Simonelli.
This matter involves the failure of defendants Harold Stewart, Camden County and Camden County Fire Police Department (collectively the County) to timely file a demand for a trial de novo following a non-binding arbitration held pursuant to Rule 4:21A-1. The trial judge denied the motion of plaintiff Joseph Vanderslice to confirm the arbitration award and enter judgment and granted defendants' cross-motion to permit a late filing. Because the judge erroneously applied the substantial compliance standard, which applies to the failure to serve a demand, instead of the extraordinary circumstances standard, which applies to the failure to timely file a demand, and because we find there were no extraordinary circumstances presented, we reverse.
On August 31, 2010, plaintiff filed a complaint, alleging that he had sustained personal injuries in an automobile accident on September 13, 2008. Non-binding arbitration on January 18, 2012, resulted in a determination that the County was 100% liable to plaintiff, who was entitled to $90, 000 for non-economic damages and $55, 970 for lost wages. The time to file a demand for a trial de novo expired thirty days later on February 17, 2012. See N.J.S.A. 2A:23A-16; Rule 4:21A-6(b)(1).
After confirming that the County had not filed a demand for a trial de novo, on February 23, 2012, plaintiff's counsel filed a motion to confirm the arbitration award and enter judgment. The County opposed the motion and filed a cross-motion to permit a late filing. County counsel conceded that the demand was not filed, but argued that the court should apply the substantial compliance standard to relax the thirty-day requirement and permit a late filing. Counsel explained that after receiving plaintiff's motion, he discovered that an attorney from his office prepared the demand and gave it to a secretary to file. The secretary prepared a voucher for payment of the filing fee, which was mailed along with the demand to the arbitration administrator with copies sent to plaintiff's counsel. The arbitration administrator signed the direct voucher on January 20, 2012, and returned it to the County on January 26, 2012. On February 17, 2012, the County issued a check for the filing fee and forwarded it to the State Treasurer. The arbitration administrator did not file the demand because actual payment was required and he had not received payment. See R. 4:21A-6(c).
The trial judge denied plaintiff's motion and granted the County's cross-motion, finding that the County had substantially complied with Rule 4:21A-6(b)(1) and established the factors set forth in Corcoran v. St. Peter's Med. Ctr., 339 N.J.Super. 337 (App. Div. 2001). Following trial, the jury rendered a defense verdict finding no cause of action was presented. This appeal followed.
Rule 4:21A-6(b) sets forth post-arbitration obligations of a party dissatisfied with an arbitration award, stating:
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 ...