September 26, 2018
appeal from Superior Court of New Jersey, Law Division,
Atlantic County, Docket No. L-2552-16.
A. Chernak argued the cause for appellants (Montgomery
McCracken Walker & Rhoads, LLC, attorneys; Frank A.
Chernak and Erin K. Clarke, on the briefs).
P. McFadden, Jr. argued the cause for respondent (McFadden
Law Firm, PC, attorney for respondent; Louis P. McFadden,
Jr., on the brief).
Judges Fuentes, Accurso, and Moynihan.
November 17, 2016, plaintiff James Murray filed a two-count
complaint against defendants Comcast Corporation,
Gary Kotzen, Victor Kruz,  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.
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.
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).
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).
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.
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. 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." (Emphasis added).
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.
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 ...