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Murray v. Comcast Corp.

Superior Court of New Jersey, Appellate Division

January 8, 2019

JAMES MURRAY, Plaintiff-Respondent,
v.
(1) COMCAST CORP., a Pennsylvania corporation, (2) GARY KOTZEN, individually and as Senior Manager of Comcast, (3) VICTOR KRUZ, individually and Director of Comcast, (4) THOMAS O'KANE, individually and Manager of Comcast, Defendants-Appellants.

          Argued September 26, 2018

          On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2552-16.

          Frank A. Chernak argued the cause for appellants (Montgomery McCracken Walker & Rhoads, LLC, attorneys; Frank A. Chernak and Erin K. Clarke, on the briefs).

          Louis P. McFadden, Jr. argued the cause for respondent (McFadden Law Firm, PC, attorney for respondent; Louis P. McFadden, Jr., on the brief).

          Before Judges Fuentes, Accurso, and Moynihan.

          OPINION

          FUENTES, P.J.A.D.

         On November 17, 2016, plaintiff James Murray filed a two-count complaint against defendants Comcast Corporation, [1] Gary Kotzen, Victor Kruz, [2] and Thomas O'Kane alleging violations of (1) the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14 and (2) the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49. On March 15, 2017, plaintiff filed an amended complaint adding a third count for breach of contract. On the same date, defendants filed a motion to compel arbitration and stay proceedings. By mutual consent of the parties, defendants withdrew their motion because it was filed before service of plaintiff's amended complaint. On April 21, 2017, defendants filed a second motion to compel arbitration and stay proceedings.

         On June 9, 2017, the trial judge granted defendants' motion to compel arbitration and stayed the proceeding pending the outcome of the arbitration hearing. On July 20, 2017, plaintiff sent for filing a motion for reconsideration of the court's June 9, 2017 order under Rule 4:49-2. Plaintiff's motion for reconsideration was received by the Law Division on July 26, 2017. Plaintiff's motion for reconsideration was filed forty-seven days after the court's June 9, 2017 order compelling arbitration. The trial judge granted plaintiff's motion for reconsideration on November 16, 2017.

         Defendants appeal from the November 16, 2017 order granting plaintiff's motion for reconsideration and vacating the June 9, 2017 order compelling arbitration. When this matter came before this court for oral argument, we questioned, sua sponte, whether this court had subject matter jurisdiction to review the Law Division's November 16, 2017 order pursuant to our decision in Hayes v. Turnersville Chrysler Jeep, 453 N.J.Super. 309 (App. Div. 2018).

         In Hayes, we noted the Supreme Court has made clear that "all orders compelling and denying arbitration shall be deemed final for purposes of appeal, regardless of whether such orders dispose of all issues and all parties, and the time for appeal therefrom starts from the date of the entry of that order." Id. at 312 (quoting GMAC v. Pittella, 205 N.J. 572, 587 (2011)). We emphasized that "[t]o dispel any lingering doubts about the need to seek timely appellate review of such an order, the Court also included the following admonition: 'Because the order shall be deemed final, a timely appeal on the issue must be taken then or not at all.'" Hayes, 453 N.J.Super. at 312 (quoting GMAC, 205 N.J. at 586).

         On October 3, 2018, plaintiff filed a post-argument motion seeking leave from this court to file a supplemental brief addressing this issue. In an order dated October 5, 2018, we granted plaintiff's motion and directed the parties to submit, within twenty days from the date of the order, supplemental briefs limited to a maximum of twenty pages, regarding the legal question: "Did the trial court have subject matter jurisdiction to decide plaintiff's motion for reconsideration filed under Rule 4:49-2 based on this court's decision in Hayes v. Turnersville Chrysler Jeep, 453 N.J.Super. 309 (App. Div. 2018)?"

         On October 29, 2018, twenty-four days after our October 5, 2018 order, plaintiff filed a motion seeking "to extend [the] time to file [a] supplemental brief to November 8, 2018." We granted the motion with the proviso that "no further extension will be granted." Defendants filed a timely supplemental brief.[3] In their supplemental submission, defendants argue that pursuant to Rule 4:49-2, a party seeking reconsideration "to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it." (Emphasis added). Here, defendants claim "[t]he parties did not receive the [o]rder from the trial court until June 30, 2017." Defendants argue that "in this case [p]laintiff Murray filed a motion for reconsideration on July 20, 2017, exactly 20 days after all parties received on June 30, 2017, the [o]rder granting [d]efendants/[a]ppellants' motion to compel arbitration. This motion was, therefore, timely under Rule 4:49-2."[4] (Emphasis added).

         We agree that the twenty-day time frame in Rule 4:49-2 starts from the date of service of the order, not from the date of entry. However, although plaintiff's motion for reconsideration is dated July 20, 2017, the Law Division did not receive and file the motion papers until July 26, 2017, twenty-six days after plaintiff's counsel was served with the order compelling arbitration. We also note defendants do not claim their counsel was served with plaintiff's motion papers on July 20, 2017. Pursuant to Rule 1:6-3(c), "service of motion papers is complete only on receipt at the office of adverse counsel or the address of a pro se party. If service is by ordinary mail, receipt will be presumed on the third business day after mailing." The third business day after Thursday July 20, 2017 was Tuesday July 25, 2017. Thus, even assuming plaintiff mailed the notice of motion and supporting papers on July 20, 2017, defendants were not served within the twenty-day time frame mandated by Rule 4:49-2.

         We nevertheless commend defendants' appellate counsel's forthrightness, especially since the argument he advanced favored plaintiff's position in this appeal. Defendants' appellate counsel's conduct exemplifies the type of professional candor we ...


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