Opinion
Docket No. 016454-2011
05-22-2012
Vakmen Associates, LLC v. Borough of Bergenfield
Maria Gesualdi, Esq. William R. Betesh, Esq. Boggia & Boggia, LLC.
JUDGE
Maria Gesualdi, Esq.
William R. Betesh, Esq.
Boggia & Boggia, LLC.
Dear Counsel:
This matter was opened to the court on defendant's motion to dismiss plaintiff's appeal for failure to file the complaint within the timeframe prescribed by N.J.S.A. 54:51A-9. The motion is opposed on the grounds that plaintiff complied with the statute when the complaint was delivered to the Hughes Justice Complex in Trenton for filing and accepted by an individual at the court house within the statutory 45-day period. For the reasons that follow, defendant's motion is denied.
Findings of Fact and Procedural History
This appeal involves the 2011 assessment for the property located at 24 South William Street in Bergenfield, New Jersey, also known as Block 161, Lot 6 (the "subject property"). On August 5, 2011, the plaintiff was served with a copy of the County Board judgment by which the assessment on the subject property was affirmed without prejudice. Plaintiff prepared a complaint for filing with the Tax Court. Pursuant to the deadline set forth in N.J.S.A. 54:51A-9, September 19, 2011 was the last day of the filing period. Plaintiff submitted proofs of mailing which included a Federal Express ("FedEx") shipment history. FedEx picked up plaintiff's package on September 16, 2011 at 8:17 p.m. The mailing slip on the package was properly addressed to "Tax Court of New Jersey, Hughes Justice Complex, 25 Market Street, Trenton, NJ 08625," and the package was sent via FedEx priority overnight service. On September 19, 2011, at 10:00 a.m., FedEx delivered the package to the Hughes Justice Complex where it was signed for by "K. Lovett." The face of the complaint reads "Received, September 20, 2011, Tax Court of New Jersey."
The individual "K. Lovett" is not identified by plaintiff. In the reply papers, defendant described K. Lovett as an employee of the New Jersey Supreme Court.
Defendant first asserts that two procedural defects exist regarding plaintiff's opposition papers. The papers were received one day prior to the return date of the motion and, therefore are untimely, and, plaintiff failed to certify that the documents submitted in opposition to the motion are true and accurate copies of the shipping information. The court accepted plaintiff's papers over defendant's objection, and the parties were allotted additional time to further respond. Plaintiff was also provided with the opportunity to certify to the accuracy of the FedEx documents by way of supplemental certification.
Substantively, defendant argues that plaintiff's complaint should be dismissed for failure to comply with N.J.S.A. 54:51A-9 since the pleading was not filed by the Tax Court within the 45-day statutory period which constitutes a fatal jurisdictional defect and warrants dismissal pursuant to Poll v. City of Plainfield, 25 N.J. Misc. 325 (1947). According to the Certifications submitted by defendant's attorney, William Betesh, Esq., while FedEx did deliver plaintiff's papers to the correct address prior to the expiration of the 45-day filing period, the recipient who signed for delivery of the package worked for the New Jersey Supreme Court, which is a separate department and located on a different floor of the Hughes Justice Complex than the Tax Court. Therefore, defendant contends that the complaint should be dismissed since it was not received at the correct office prior to the running of the statutory period. Poll, supra, 25 N.J. Misc. 325.
Plaintiff opposes the motion on the following grounds. Pursuant to R.1:5-4(c) service was complete upon FedEx's receipt of the package from plaintiff. Alternatively, defendant's motion can not be granted unless the court hears testimony to determine where K. Lovett was working on the day that plaintiff's package was delivered, and/or where within the building the package was actually delivered by the FedEx employee. Finally, plaintiff argues that even if the package was delivered to the wrong department within the Hughes Justice Complex, defendant's motion should be denied in the interest of justice.
Conclusions of Law
"[A] complaint seeking review of adjudication or judgment of the county board of taxation shall be filed within 45 days of the service of the judgment." N.J.S.A. 54:51A-9. A failure to file a complaint within the period prescribed by the statute is a fatal jurisdictional defect. Sun Life Assurance Co. of Canada v. City of Orange, 2 N.J. Tax 25 (Tax 1980). The jurisdictional requirement for timely filing of a tax assessment appeal is strictly enforced. F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418 (1985). "It is part of the statutory pattern for the orderly assessment and collection of tax revenue which is essential to the operation of local government." Bear's Nest Condominium Assoc. v. Bergen County Bd. of Taxation and Borough of Park Ridge, 25 N.J. Tax 237, 241 (Tax 2009).
Defendant argues that in Poll, supra, 25 N.J. Misc. 325, the Division of Tax Appeals, sua sponte, dismissed plaintiff's petition for failure to file within the period prescribed by statute where petitioner deposited the pleading with the postal service on the last day of the filing period and it was not received for filing until the period had expired. Id. at 326. In reaching its decision the court noted that "[p]apers which the law requires to be filed on or before a certain day . . . are not legally filed by merely placing them in the United States mail during the period of time permitted for filing them. Such papers should not only be mailed within the time allowed by law but should be mailed sufficiently early to be received at the office of their destination before the time allowed by law expires for the filing of such papers." Id. at 327, citing Hewitt v. International Shoe Co., 115 Fla. 508 (Fla. 1934).
The court rejects defendant's argument since the case cited is factually inapposite to this matter. In Poll, the petitioner essentially disregarded the requirement to timely file the petition having placed it in the mail on the last available filing date. As a result of petitioner's actions compliance with the statute was impossible. In the instant action, plaintiff placed the package, properly addressed, with a courier service and provided instructions for the pleading to be hand-delivered to the courthouse on the filing date. Plaintiff reserved sufficient time to ensure that the pleading would be filed within the required timeframe. The package was in fact delivered to and received at the courthouse during the morning hours which provided ample time for the pleading to be timely filed.
While plaintiff relies on R. 1:5-4(c) in opposition to the motion, instead the court finds that the governing rule is R. 1:5-6, which is captioned "Filing." R. 1:5-4(c) concerns the date on which service is complete when dealing with a commercial carrier, however, at issue here is the timely filing of plaintiff's complaint rather than service of the pleading. R. 1:5-6 applies to the filing of papers in the courts of New Jersey, including the Tax Court. Specifically, R. 1:5-6(d) is addressed to misfiled papers. The rule states in pertinent part:
Pursuant to R. 1:1-1, the rules in Part I apply to the Tax Court. An action is commenced in the Tax Court by filing a complaint with the Clerk of the Tax Court. R 8:3-1. The Clerk is located in the Tax Court Management Office in Trenton.
Present text of subsection (d) substituted as of July 13, 1994, effective September 1, 1994. Prior subsection (d) became R 1:5-6(e).
1:5-6 Filing.
(a) Time for Filing. In any trial court unless otherwise stated, all papers required to be served by R 1:5-1 shall be filed with the court either before service or promptly thereafter . . . .
(d) Misfiled Papers. If papers are sent to the wrong filing office, they shall be stamped "Received but not Filed (date)" and transmitted by that office to the proper filing office and a notice shall be sent by the transmitting office to the filer of the paper advising of the transmittal. The stamped received date shall be deemed to be the date of filing.
R. 1:5-6(d) addresses the situation presented by the parties. Subsection (d) requires transmittal by the office with whom the papers were misfiled to the correct office. Pressler & Verniero, Current N.J. Court Rules, Comment 4 to R 1:5-6 (GANN 2012). Upon receipt of the misfiling by the correct office the receipt date is deemed to be the filing date. Ibid. The rule provides a mechanism to protect filers erring as to the required place of filing and relieves the filer of the harsh outcome that would otherwise result from the mistake.
Notably the rule follows prior case law, Grubb v. J.C. Penny Co., Inc., 155 N.J. Super. 103 (App. Div. 1978), where the court held that plaintiff's complaint was considered filed prior to the running of the statute of limitations because it was within the court system before the cut- off date. Id. at 106. In that case, due to plaintiff's error, a personal injury complaint, captioned in the Superior Court, Middlesex County was mailed to the Clerk of the Superior Court in Middlesex County (New Brunswick) rather than to the Clerk of the Superior Court in Trenton. Id. at 104-105. The complaint was received by the Middlesex County Clerk and stamped "received" one day before the limitation period expired. Id. at 105. The pleading did not reach Trenton until two weeks later. The trial court ruled that the initial filing was ineffective. Ibid. On review, the appellate court found that since the complaint was in the hands of the Clerk in the county in which venue was laid prior to the running of the limitations period it was within the court system in sufficient time. Ibid. Therefore, plaintiff's initial filing was effective on the date it arrived and was stamped at the office of the Middlesex County Clerk. Id. at 105-106.
The case arose prior to the present system of direct local filing, R. 1:5-6. See Pressler & Verniero, Current N.J. Court Rules, Comment 2 to R. 1:5-6 (GANN 2012).
In a cautionary note the court advised that because the end of the limitations period was so near, the more prudent course for plaintiff would have been filing directly with a Superior Court judge or hand delivery to the Clerk's office in Trenton. Grubb, 155 N.J. Super. at 105-106, citing Leake v. Bullock, 104 N.J. Super. 309, 313 (App. Div. 1969), where the plaintiff mailed the complaint prior to the end of the limitation period but the pleading did not arrive at the court for filing until after the limitations period had expired. Id. at 106.
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It is undisputed that the complaint in this matter was timely delivered to the building where the Tax Court Management Office is located and it was accepted by an employee of the judiciary prior to the expiration of the 45-day statutory filing deadline. Unfortunately the complaint was incorrectly routed within the building by no fault of plaintiff. The proper course of action in this case was for the recipient at the Hughes Justice Complex to stamp plaintiff's complaint "Received but not yet Filed September 19, 2011" and to then transmit the pleading to the Tax Court Management Office as called for by the Rules of court. In that event the pleading would have been timely stamped when it arrived at the Tax Court Clerk, and the stamped received date would be deemed to be the date of filing. Because the pleading was in the court system and delivered to an individual at the correct venue for filing, within the statutory time frame, the court will consider the pleading filed as of September 19, 2011.
Based on the foregoing, defendant's motion is denied.
Very truly yours,
Christine M. Nugent, J.T.C