SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6644-95T2
CLARENCE SHAMBRY,
Plaintiff-Respondent,
v.
NEW JERSEY TRANSIT BUS
OPERATIONS, INC. and KENNETH D.
WILLIAMS,
Defendants-Respondents,
and
HARVEY L. HARRIS and CHRISTOPHER J.
HARRIS,
Defendants-Appellants.
______________________________________________
Argued January 28, 1998 - Decided February 5, 1998
Before Judges Shebell, A.A. Rodríguez and Coburn.
On appeal from the Superior Court of New Jersey,
Law Division, Camden County.
Francis X. Ryan argued the cause for appellants
(Law Offices of Green, Lundgren & Ryan, attorneys;
Mr. Ryan, on the brief).
Richard M. Josselson argued the cause for respondent,
Shambry (Mitnick, Josselson, DePersia & DePersia,
attorneys; Mr. Josselson, on the brief).
Melvin M. Wright, Jr., Deputy Attorney General,
argued the cause for respondent, New Jersey Transit Bus
Operations, Inc. (Peter Verniero, Attorney General of
New Jersey, attorney; Joseph L. Yannotti, Assistant
Attorney General, of counsel; Mr. Wright, on the
brief).
The opinion of the court was delivered by
SHEBELL, P.J.A.D.
This controversy involves the rejection of an arbitration
award in a consolidated case by a party who is involved in only
one of the cases. It raises the question: Does such a rejection
require a trial de novo as to all of the consolidated actions?
On September 17, 1993, a bus, owned by defendant New Jersey
Transit Bus Operations, Inc. (NJT) and driven by its defendant-employee, Kenneth D. Williams, collided with an automobile owned
by defendant Harvey L. Harris and driven by defendant Christopher
J. Harris. Two bus passengers, Clarence Shambry and Carleen
Bozarth, filed separate actions against the four defendants in
the Law Division, Camden County. Shambry's 1994 action was filed
under docket number L-6776-94. Bozarth's 1995 action was filed
under docket number L-2844-95. On May 26, 1995, an order was
entered which "consolidated" the two actions "under Docket No. L-6776-94."
On February 6, 1996, the matter was arbitrated under R.
4:21A. A single award was filed on that date, which found 100" liability against the Harris defendants and 0" liability on the
part of NJT and its employee. The arbitrator awarded $14,000 to
Shambry and $40,000 to Bozarth. On February 7, 1996, Bozarth
filed a notice of rejection of the arbitration award and demanded
trial de novo pursuant to R. 4:21A-6(b)(1). This rule provides
that an order shall be entered dismissing the action following
the filing of the arbitration award unless, within 30 days after
filing the award, "a party thereto files with the civil case
manager and serves on all other parties a notice of rejection of
the award and demand for a trial de novo...." R. 4:21A-6(b)(1).
Shambry did not file a notice of rejection and demand for a
trial de novo, leading the NJT defendants, on March 29, 1996, to
file a motion for confirmation of Shambry's arbitration award and
for entry of judgment. See R. 4:21A-6(b)(3). Also, the Harris
defendants did not file a notice of rejection and remand for a
trial de novo, and on April 3, 1996, Shambry filed a motion for
confirmation of his arbitration award and for entry of judgment.
On April 11 and 15, 1996, the Harris defendants filed briefs
in opposition to these motions. They noted that, on May 26,
1995, Shambry and Bozarth's actions had been "consolidated" and
that, on February 7, 1996, Bozarth had filed "a demand . . . for
a trial de novo." They also noted that R. 4:21A-6(c), in part,
says: "An action in which a trial de novo has been demanded by
any party shall be returned, as to all parties, to the trial
calendar for disposition." They concluded, therefore, that the
entire consolidated action was required to be returned to the
trial list. On May 14, 1996, the Harris defendants filed a
"cross-motion for leave to file trial de novo nunc pro tunc."
The record reflects that there was a "COURT NOTICE" to the
Camden County bar that was published in the May 1996 issue of The
Barrister, a publication of the Camden County Bar Association,
subsequent to the events surrounding the arbitration in question.
This notice, signed by Judge Vogelson, P.J.S.C., says:
It is hoped that the following will clarify any confusion that may exist
regarding the filing of a De Novo in
consolidated cases in Camden County.
Rule 4:21A-6C states: Trial De Novo
An action in which a trial de novo has been
demanded by any party shall be returned, as
to all parties, to the trial calendar for
disposition. Camden County's interpretation
of this rule is: When a consolidation takes
place, all the docket numbers remain the same
as they were prior to the consolidation.
Therefore, when a de novo request is filed,
each case is considered to be an individual
case . . . .
In keeping with the foregoing, the Bar
is advised that a request for a de novo in a
consolidated action does not automatically de
novo all the consolidated matters.
At the hearing on June 6, 1996, the motion judge noted that,
while he was not bound by Judge Vogelson's interpretation, the
Presiding Judge of Civil in the vicinage had interpreted R.
4:21A-6(c) and had given it a "reasonable interpretation."
According to the motion judge, Judge Vogelson meant that, "even
though these [two] cases were for administrative purposes put
together," they were, "nevertheless, two totally separate and
distinct actions." The motion judge then ruled that the
"arbitration will be confirmed as to Clarence Shambry and the
dismissal of claims, in that case only, against the New Jersey
Transit Company will likewise be confirmed."
The Harris defendants note that the Administrative Office of
the Courts (AOC), in the New Jersey Arbitration Newsletter,
stated the following in the Summer 1995 issue:
EFFECT OF TRIAL DE NOVO REQUESTS ON
CONSOLIDATED CASES
Rule 4:21A-6c provides that the filing
of a trial de novo request by one party
returns the entire case, as to all parties,
to the trial calendar for disposition.
Therefore, if a case was consolidated prior
to arbitration and one party files a trial de
novo request, the entire case (including all
of the separate matters consolidated) must be
returned to the trial calendar as to all
parties.
While we are not suggesting that the AOC is to be accepted
as the authoritative interpreter of court rules, we do, however,
agree with its interpretation of the rule as presently written.
R. 4:21A-6(c) was amended in 1987 to clarify "that if only one
party requests a trial de novo then the entire controversy
involving all parties is to be tried de novo." 2 New Jersey
Practice, Court Rules Annotated, R. 4:21A-6. comment 2 at 305
(Ralph N. Del Deo & John H. Klock) (4th ed. 1989). Thus,
according to the New Jersey Practice authors, there can be "no
partial arbitration and partial trial." Ibid. The rule
specifically was amended to provide that "[a]n action in which a
trial de novo has been demanded by any party shall be returned,
as to all parties, to the trial calendar for disposition." R.
4:21A-6(c). No such language was contained in the 1986 rule.
We hold that the amendatory language applies to all parties
in all cases in the consolidated action. R. 4:38-1, relating to
the consolidation of multiple actions, contemplates that separate
actions will be fused into one single action. Ettin v. Ava Truck
Leasing, Inc.,
53 N.J. 463, 477 (1969); Florio v. Galanakis,
107 N.J. Super. 1, 5 (App. Div. 1969). Therefore, the request for a
trial de novo in one of the cases triggers and compels the return
of the entire consolidated action and all of its components to
the trial calendar.
Moreover, the language employed by Judge Vogelson "suggests
that a "local rule" was thereby established in Camden County with
regard to R. 4:21A-6(c). There is no authority to promulgate
rules "which abrogate or modify the rules promulgated by the
Supreme Court," because the Supreme Court's rule-making power is
"exclusive." Cunningham v. Rummel,
223 N.J. Super. 15, 18 (App.
Div. 1988). A "local rule" that undermines the Supreme Court's
"exclusive domain" over the promulgation of court rules and the
public policy of providing "uniformity, predictability and
security in the conduct of litigation" throughout the State has
"no validity." Id. at 18-19.
While there may be reasons to provide exceptions to R.
4:21A-6(c), "Camden County's interpretation" is contrary to what
we perceive as the intended uniform state-wide interpretation of
the rule and it cannot prevail absent action by the Supreme Court
to amend the rule. We recommend that its Civil Practice
Committee review the issue. In any event, in these
circumstances, it should not serve to deprive the defendants of
their right to a trial de novo.
We, therefore, reverse and remand the orders under review.