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Marconi v. United Airlines

Superior Court of New Jersey, Appellate Division

July 22, 2019

RICHARD MARCONI, Petitioner-Appellant,
v.
UNITED AIRLINES, Respondent-Respondent.

          Argued May 20, 2019

          On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition Nos. 2016-31488 and 2016-31489.

          Cristie Robostell Nastasi argued the cause for appellant (Hoffman Di Muzio, attorneys; Kenneth A. Di Muzio, of counsel; Cristie Robostell Nastasi, on the brief).

          Prudence M. Higbee argued the cause for respondent (Capehart & Scatchard PA, attorneys; Prudence M. Higbee, on the brief).

          Before Judges Messano, Fasciale and Gooden Brown.

          OPINION

          MESSANO, P.J.A.D.

         New Jersey resident Richard Marconi filed two claim petitions with the Camden Vicinage of the Division of Workers' Compensation (the Division). In the first, Marconi alleged a workplace injury to his left hip occurred on January 31, 2015, while working for United Airlines (United) in Philadelphia. United answered the petition and acknowledged that it employed Marconi on the date of the incident, his injury arose out of the course of his employment, and it had made full payment of benefits to Marconi.

         In his second petition, Marconi alleged an occupational injury to his hip while "[p]erforming repetitive duties [as an] aircraft technician" between 1986 through present. The petition again asserted the injury occurred at the "[e]mployer's [p]remises" in Philadelphia. United answered this petition, denied the injury arose out of Marconi's employment, and reserved all defenses under the New Jersey Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to-128.[1]

         United subsequently moved to dismiss both petitions alleging lack of jurisdiction. In her certifications, United's counsel explained Marconi was "hired in San Francisco in 1986," began working at Philadelphia International Airport in 1988, "was displaced due to furlough in 2009 and transferred to . . . Dulles [Airport in] Washington[, ] . . . transferred back to Phil[adelphia] in 2012 and . . . worked there ever since." Counsel asserted Marconi "was not hired in . . . New Jersey, the accident did not occur in New Jersey and United does not have any contact with . . . New Jersey."[2]

         The Workers' Compensation judge (WCJ) conducted a hearing limited to the jurisdictional issue. Marconi was the sole witness.[3]

         Although Marconi temporarily lived in other cities throughout his career, he was born and raised in New Jersey and lived here continuously since 1988, when United transferred him to Philadelphia. Marconi's supervisor in Philadelphia reported to a United employee at Newark's Liberty International Airport, a United "hub" for at least a decade. Although never stationed at Newark, Marconi frequently depended on the technical advice of United's staff at that airport and would call "once every couple of months" for assistance.

         Marconi received training all over the world, including in Newark. He would fly from Newark whenever United assigned him to do "field service," i.e., assisting in the servicing of United planes because of a lack of local technicians at other airports.[4] Marconi requisitioned parts from United's Chicago and San Francisco operations, but these would routinely be delivered first to Newark and then to Marconi in Philadelphia. Marconi's supervisor sometimes would drive to United's facility at Newark to retrieve parts delivered there.

         In a thorough and thoughtful written opinion, the JWC reviewed relevant case law and considered a noted commentator's "six grounds for asserting applicability of a particular state's compensation act." Those are:

(1) Place where the injury occurred;
(2) Place of making the contract;
(3) Place where the employment relation exists or is carried out;
(4) Place where the industry is localized;
(5) Place where the employee resides; or
(6) Place whose statute the parties expressly adopted by contract.
[13 Lex K. Larson, Larson's Workers' Compensation, § 142.01 (Matthew Bender, Rev. Ed. 2019).]

         The JWC found that Marconi established factor five, residency.

         Citing Williams v. Raymours Furniture Co., 449 N.J.Super. 559 (App. Div. 2017), [5] and Parks v. Johnson Motor Lines, 156 N.J.Super. 177 (App. Div. 1978), the JWC noted a seeming "dispute among . . . Appellate Division panels" as to whether residency alone was sufficient. After analyzing those decisions and others, the JWC concluded "any exercise of jurisdiction in extraterritorial injury cases . . . must be based upon New Jersey case law . . . and I can find no New Jersey case where jurisdiction based solely on residency was deemed sufficient."

         The JWC also considered Professor Larson's fourth factor, whether United was "localized" in New Jersey. He found that "United . . . has a substantial presence in New Jersey" and, recounting Marconi's testimony, the JWC concluded United was "'localized' in New Jersey (as well as Pennsylvania)." However, citing our decision in Connolly v. Port Authority of New York & New Jersey, 317 N.J.Super. 315 (App. Div. 1998), the JWC concluded "Workers' Compensation Courts should decline to exercise jurisdiction even when the injured worker is a New Jersey resident and there is substantial localization of the employer's operations in New Jersey." The JWC found this to be "somewhat vexing," because our courts "will exercise jurisdiction in non-workers' compensation extraterritorial injury cases where the injured party resides here and the responsible party has substantial operations here." (citing Rose v. Port of N.Y. Auth., 61 N.J. 129 (1972)).

         The JWC observed that our court had approved the exercise of jurisdiction over extraterritorial injuries when the petitioner was a resident and New Jersey was the "[p]lace where the employment relation exists or is carried out." 13 Larson, § 142.01.[6] Unlike the fourth factor, which "focuses on the employer's operations and presence in the state," this factor "focuses on the ...


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