Della Vecchia v. World Scope Pub. Co.

• Decision Date: 17 November 1960
• Docket Number: No. A--4754,A--4754
• Citation: 165 A.2d 872,64 N.J.Super. 333
• Parties: Gene DELLA VECCHIA, Petitioner-Appellant, v. WORLD SCOPE PUBLISHING COMPANY, Respondent-Respondent.
• Court: New Jersey County Court

Page 333

64 N.J.Super. 333

165 A.2d 872

Gene DELLA VECCHIA, Petitioner-Appellant, v. WORLD SCOPE PUBLISHING COMPANY, Respondent-Respondent.

No. A--4754.

Essex County Court Law Division, New Jersey.

Nov. 17, 1960.

M. Marvin Soperstein, Newark, for appellant (Mortimer Wald, Newark, attorney).

Andrew Lawrie, Newark, for respondent (Lawrie & Barnes, Newark, attorneys).

BARRETT, J.C.C.

This is an appeal from the Division of Workmen's Compensation. The deputy director entered judgment in favor of the respondent on the ground the Division did not have jurisdiction to hear and determine the issues because the New York Workmen's Compensation Board had exercised complete jurisdiction prior to the institution of these proceedings in New Jersey.

The facts are substantially without dispute, but I make the following specific findings.

The appellant Della Vecchia was originally hired by the respondent to sell encyclopedias. This hiring took place at a branch office of the respondent in East Orange, New Jersey, in October 1957; further, the employment agreement stated that he was to sell only in New Jersey. The East Orange branch office closed about a month after the aforesaid hiring. Subsequently, the claimant worked out of the company's home office in Lynbrook, Long Island, N.Y. Della Vecchia reported to that office from one to three times per week and it was there that all meetings and conferences between the claimant and his employer took place. Up to this point the petitioner continued to live and work most of the time in New Jersey.

However, from March 1958 until the date of the accident in March 1959 the appellant went on various selling trips for his employer to such places as Washington, D.C., Richmond, Va., Rochester, N.Y., Niagara Falls, N.Y., and Detroit, Michigan. These trips would last anywhere from two weeks to two months, and each time brought a slightly different commission arrangement. Upon returning home to New Jersey from a Detroit selling trip in March 1959, the appellant met with an automobile accident in Pennsylvania.

Upon learning of the accident, the employer filed an employer's report of injury with the New York Workmen's Compensation Board. The insurance carrier was notified and proceeded to make payments by check to Della Vecchia for his injury pending a determination by the New York Board. The first check, dated April 8, 1959, was accompanied by a form from the Board which indicated that payment was being made under the New York Workmen's Compensation Law. That check and those that followed were endorsed by the petitioner. On April 30, 1959 petitioner received a check along with a form from the Board indicating payments were being stopped. On May 14, 1959 payments were resumed and the check was accompanied by a form to that effect. Two weeks later Della Vecchia received a check and notice from the Board stating that payments had been stopped. At this point the petitioner also received a request from the Board for a medical report to be prepared by his physician.

It was stipulated by counsel that the Board mailed a 'Notice of a Hearing' to Della Vecchia. On May 25, 1959 appellant's counsel informed the New York Board that Della Vecchia had filed a claim in New Jersey. The New York Board forwarded to the appellant on July 20, 1959 a 'Notice of Decision' indicating that a hearing had been held on July 15, 1959, and that a decision was entered in his favor on all questions, except that there was left open for continuance the question of disability.

Prior to the receipt of this 'Notice of Decision' appellant's attorneys on May 1, 1959 filed an 'Employees Claim Petition' in New Jersey. A hearing was held on that petition which resulted in a dismissal on May 13, 1960. So much for these factual findings.

The deputy director based this determination on his interpretation of Buccheri v. Montgomery Ward & Co., 19 N.J. 594, 118 A.2d 21 (1955). The present appeal followed.

Admittedly, the petitioner was never served with process of any sort or nature in New York State; hence, as its first point as grounds for reversal, the appellant argues a lack of jurisdiction In personam on the part of the New York Workmen's Compensation Board, citing as the leading case on the subject Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877). A decision on this question is not necessary in view of my ultimate conclusion to remand this case on other grounds; nevertheless, it will be discussed.

Pennoyer holds that a personal judgment is without any validity if rendered by a state court in an action upon a money demand against a non-resident of the state who is served merely by publication of summons and not by personal service of process within the state. Also, the individual thus served did not appear.

In 1950, Justice Jackson writing for the Supreme Court in Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, at page 314, 70 S.Ct. 652, at page 657, 94 L.Ed. 865 (1950), said:

'The Court has not committed itself to any formula achieving a balance between these interests in a particular proceeding or determining when constructive notice may be utilized or what test it must meet. Personal service has not in all circumstances been regarded as indispensable to the process due to residents, and it has more often been held unnecessary as to nonresidents. We disturb none of the established rules on these subjects. No decision constitutes a controlling or even a very illuminating precedent for the case before us. But a few general principles stand out in the books.

'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice Reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. * * * The notice must be of such nature as reasonably to convey the required information, * * * and it must afford a reasonable time for those interested to make their appearance. * * * But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied. 'The criterion is not the possibility of conceivable injury, but the just and reasonable character of the requirements, having reference to the subject with which the statute deals. " (Emphasis added.)

Measuring this standard against the situation here present, I believe the petitioner was brought before the New York Board by due process. He not only had notice of the proceeding, but he benefited substantially by it. He knew what type of action was pending, he received and recognized the nature of various notices from the New York Board, and he cashed checks accompanying such notices. Such a proceeding is entirely proper to establish full jurisdiction under New York practice and procedure. Meaney v. Keating, 200 Misc. 308, 102 N.Y.S.2d 514 (Sup.Ct.1951), affirmed 279 App.Div. 1030, 113 N.Y.S.2d 240 (App.Div.1952), affirmed 305 N.Y. 660, 112 N.E.2d 763 (Ct.App.1953).

In that case the plaintiff Meaney was employed as a laborer by the defendant in 1948, and on December 12 of that year he sustained burns in a fire in a building on the employer's construction job. The defendant employer reported the accident to the Workmen's Compensation Board. A claim was initiated, and as the proceeding progressed the plaintiff received a notice of hearing and other notices. Subsequently, the Board made an award.

Compensation was made to the plaintiff in the amounts specified in the award and was accepted and retained by him. The last notice of hearing was given for August 8, 1950, and contained the statement: 'Claimant to be present or case will be closed.' The final decision of the Board on that day was in this form: 'Decision: Closed on previous award--non-appearance of claimant.'

The plaintiff Meaney did not file, and did not authorize anyone to file in his behalf a claim for workmen's compensation. He did not appear in any of the compensation proceedings. Later he instituted an action for negligence against the employer and tendered back the amount of compensation awards, but not the value of the hospital and medical services furnished by the compensation carrier. Meaney contended that the Board did not acquire jurisdiction of him, for the reason he filed no claim and made no appearance before it. In dismissing the complaint the trial court held at page 517 of 102 N.Y.S.2d:

'That the Board acquired jurisdiction of the plaintiff is not open to any doubt. The statute provides that 'a claim for compensation may be presented to the employer or to the chairman, and that the Board shall have jurisdiction of claims 'presented to it.' Section 20. This language implies, of course, that the injured employee has 'presented' the claim to his employer, who in turn reports the accident to the Board, or that the employee has presented it directly to the Board. But it must be considered in connection with Section 28 which provides that in any case in which an advance payment of compensation is made to the employee, the Board may order a hearing in the same manner as though a claim for compensation had been filed.

'This provision was intended primarily for the benefit of employees who had neglected to file claims, but it also has set up the jurisdictional basis upon which the Board proceeds in a great volume of cases where there is no...