Zoning Bd. of Adjustment of Sparta Tp. v. Service Elec. Cable Television of New Jersey, Inc.

• Decision Date: 25 January 1985
• Citation: 198 N.J.Super. 370,487 A.2d 331
• Parties: ZONING BOARD OF ADJUSTMENT OF the TOWNSHIP OF SPARTA, Plaintiff-Respondent, v. SERVICE ELECTRIC CABLE TELEVISION OF NEW JERSEY, INC., a New Jersey Corporation, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 370

198 N.J.Super. 370

487 A.2d 331

ZONING BOARD OF ADJUSTMENT OF the TOWNSHIP OF SPARTA Plaintiff-Respondent, v. SERVICE ELECTRIC CABLE TELEVISION OF NEW JERSEY, INC., a New Jersey Corporation, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 8, 1985.

Decided Jan. 25, 1985.

Holzapfel, Perkins & Kelly, Cranford, for defendant-appellant Service Elec. Cable Television of New Jersey, Inc. (Francis R. Perkins, Cranford, of counsel, Thomas C. Kelly, Albert N. Stender, and Patricia F. Hernandez, Cranford, on the brief).

Richard H. Downes, Sparta, for plaintiff-respondent Zoning Bd. of Adjustment of the Tp. of Sparta (Glen C. Kienz, Trenton, of counsel and on the letter brief).

Laddey & McGarry, Sparta, filed a statement in lieu of a brief on behalf of plaintiff-respondent Tp. of Sparta (Brian M. Laddey, Sparta, of counsel and on the statement).

Irwin I. Kimmelman, Atty. Gen. of N.J., for intervenor-respondent New Jersey State Bd. of Public Utilities (Andrea M. Silkowitz, Deputy Atty. Gen., of counsel; Roberta Nan Berkwits, Deputy Atty. Gen., on the brief).

Before Judges MICHELS, PETRELLA and BAIME.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Pursuant to leave granted by this court, defendant Service Electric Cable Television of New Jersey, Inc. (Service Electric) appeals from an order of the Law Division entered in favor of plaintiff Zoning Board of Adjustment of the Township of Sparta (Sparta) staying administrative proceedings before the Board of Public Utilities, Office of Cable Television (Board), pending determination of this matter.

In June, 1982, defendant Service Electric, a New Jersey corporation, submitted an application to Sparta to obtain a variance to expand and upgrade its cable television transmission and receiving facilities within the township. Service Electric sought permission to construct an addition to the existing headend facility to house a generator room and equipment room, to erect a second receiving disc, and to erect two two-hundred foot towers for receiving and retransmitting television signals. After numerous public hearings Sparta voted to deny the variance on January 25, 1984.

On March 1, 1984, Service Electric filed an appeal from Sparta's decision with the Board pursuant to N.J.S.A. 48:5A-17(e), seeking an order permitting it to undertake the improvements denied by Sparta. Sparta filed an answer to Service Electric's petition alleging that the Board lacked jurisdiction and that Service Electric should have petitioned the Law Division for relief by a complaint in lieu of prerogative writs. The Office of Administrative Law designated Service Electric's appeal a contested case and assigned the matter to an administrative law judge, who issued a prehearing order. On May 14, 1984, Sparta instituted this action seeking a declaratory judgment (1) that Service Electric is not a public utility and that any appeal from its decision therefore should be made to its (Sparta's) Township Committee pursuant to N.J.S.A. 40:55D-17 of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., not the Board, as provided by N.J.S.A. 48:5A-17(e) of the Cable Television Act, N.J.S.A. 48:5A-1 et seq., and (2) that following passage of the Municipal Land Use Law, specifically N.J.S.A. 40:55D-17, N.J.S.A. 48:5A-17(e) of the Cable Television Act is null and void. Sparta also filed a motion to stay the hearings before the Board. The trial court granted the stay, and we granted Service Electric leave to appeal from that order.

Preliminarily, both the Attorney General and Service Electric object to the adequacy of the service of process and notice with regard to both Sparta's declaratory judgment complaint and its motion for stay of the administrative hearing before the Board.

First, Service Electric urges that it was served with a summons in the declaratory judgment action beyond the ten days following the filing of the complaint as required by R. 4:4-1 and that it was never properly served with notice of the motion for the stay. Service Electric therefore contends that Sparta's complaint should be dismissed and the stay vacated.

Sparta filed its declaratory judgment complaint and its notice of motion for stay of the hearings before the Board on May 15, 1984. Sparta attempted service on Service Electric by sending a copy of the complaint and notice of motion to Albert N. Stender, Esq. (Stender) of the New Jersey law firm of Holzapfel, Perkins & Kelly (which firm is a partner in the New York law firm of LeBoeuf, Lamb, Leiby & MacRae), by certified mail, return receipt requested. The service documents were accompanied by an acknowledgment for receipt of service pursuant to R. 4:4-6. Sparta's attorney apparently decided to serve Stender rather than Service Electric directly because Stender had appeared on Service Electric's behalf at the prehearing conference before the administrative law judge. In addition Sparta's attorney certified that Stender had notified him following the rejection of Service Electric's application for a variance that he had taken over representation of Service Electric "and that he would be handling all their legal proceedings in regard to this matter."

Stender's office received the service documents sometime after May 16, 1984, but, alleging that it did not have authorization from Service Electric to accept service in this matter, did not complete or return the acknowledgment of service. Stender did, however, contact the office of Sparta's attorney and advise a secretary there that proper service had not been made on Service Electric in compliance with the provisions of R. 4:4-4(c)(1). Thereafter, on June 7, 1984, Sparta personally served Clifford Paul, a General Manager of Service Electric, with a copy of the declaratory judgment complaint. Sparta did not, however, serve a copy of the notice of motion for a stay upon Paul. A week later, on June 15, 1984, the trial court granted Sparta's motion for a stay on the basis only of documents submitted by Sparta. Service Electric's attorney, Stender, claims that he did not learn of Sparta's motion until the day before, June 14, 1984, and that he twice attempted that day to reach the trial court to object to its consideration of the motion. Unable to reach the trial court, he allegedly made his argument to the trial court's law clerk.

R. 4:4-6 provides that "an acceptance of the service of a summons, signed by the defendant's attorney ... shall have the same effect as if the defendant had been properly served." The question then is whether, at the time Sparta attempted to serve Service Electric pursuant to R. 4:4-6, Stender was Service Electric's attorney for purposes of service in this matter. The manner in which summonses, writs and complaints are to be served on corporations in New Jersey is clearly set forth by R. 4:4-4(c)(1), which, in pertinent part, provides as follows:

(1) Corporations. Upon a domestic or foreign corporation, by serving, in the manner prescribed in paragraph (a), either an officer, director, trustee, or managing or general agent; or any person authorized by appointment or by law to receive service of process on behalf of the corporation; or the person at the registered office of the corporation in charge thereof. If service cannot be made upon any of the foregoing, then it may be made upon the person at the principal place of business of the corporation in this State in charge thereof, or if there is no place of business in this State, then upon any servant of the corporation within this State acting in the discharge of his duties....

In the leading New Jersey case on point, Local 617, Etc. v. Hudson Bergen Trucking Co., 182 N.J.Super. 16, 440 A.2d 18 (App.Div.1981), we adopted the position of the federal courts that the plaintiff has the burden of showing that an alleged agent has specific authority, express or implied, for the receipt of process, stating:

The federal courts have consistently held that, in the absence of an express agreement between the agent and principal or in the absence of circumstances which clearly show that such an agreement was intended by the parties, authorization to accept service of process on behalf of a corporation or an individual would not be deemed to exist. Miree v. United States, 490 F.Supp. 768 (N.D.Ga.1980); United States v. Marple Community Record, Inc., 335 F.Supp. 95 (E.D.Pa.1971); WICA, Inc. v. WWSW, Inc., 191 F.2d 502 (D.C.Cir.1951), Burger Chef Systems, Inc. v. Baldwin Inc., 365 F.Supp. 1229 (S.D.N.Y.1973). [182 N.J.Super. at 20, 440 A.2d 18].

In the instant case Sparta failed to fulfill its burden of showing that Stender or his firm had an express or implied agency agreement to accept process on Service Electric's behalf. Though Stender was representing Service Electric in related proceedings, Service Electric had not given Stender or any member of his law firm express authorization to accept service of process on its behalf. Moreover, Stender apparently conferred with two officers of Service Electric before deciding to refuse process and made no representation to Sparta's attorney that he was authorized to accept service. In fact, he contacted the office of Sparta's attorney and advised a secretary there that proper service had not been made.

Although service of the complaint upon Service Electric was made twenty-three days after the filing of the complaint and was therefore thirteen days late, see R. 4:4-1, Service Electric claims no specific or demonstrable prejudice as a result of the time lapse with regard to the complaint and there is no basis to dismiss the complaint on this ground. See Vines v. Orange Memorial Hospital, et al. 192 N.J.Super. 496, 471 A.2d 71 (App.Div.1984); McLaughlin v. Bassing, et al., 100 N.J.Super. 67, 70, 241 A.2d 237 (App.Div.1967) (Sullivan, J.A.D., dissenting opinion), rev'd on grounds stated in dissent, 51 N.J. 410, 421 A.2d 450 (1968). Cf. Moschou v. DeRosa...