               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                SUPERIOR COURT OF NEW JERSEY
                                APPELLATE DIVISION
                                DOCKET NO. A-1987-17T4

JAMES MURRAY,

     Plaintiff-Respondent,
                                        APPROVED FOR PUBLICATION
v.
                                               January 8, 2019
(1) COMCAST CORP., a
                                           APPELLATE DIVISION
Pennsylvania corporation,
(2) GARY KOTZEN, individually
and as Senior Manager of Comcast,
(3) VICTOR KRUZ, individually
and Director of Comcast,
(4) THOMAS O'KANE, individually
and Manager of Comcast,

     Defendants-Appellants.
________________________________

          Argued September 26, 2018 – Decided January 8, 2019

          Before Judges Fuentes, Accurso, and Moynihan.

          On appeal from Superior Court of New Jersey, Law
          Division, Atlantic County, Docket No. L-2552-16.

          Frank A. Chernak argued the cause for appellants
          (Montgomery McCracken Walker & Rhoads, LLC,
          attorneys; Frank A. Chernak and Erin K. Clarke, on
          the briefs).

          Louis P. McFadden, Jr. argued the cause for
          respondent (McFadden Law Firm, PC, attorney for
          respondent; Louis P. McFadden, Jr., on the brief).
      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      On November 17, 2016, plaintiff James Murray filed a two-count

complaint against defendants Comcast Corporation, 1 Gary Kotzen, Victor

Kruz,2 and Thomas O'Kane alleging violations of (1) the Conscientious

Employee Protection Act, N.J.S.A. 34:19-1 to -14 and (2) the New Jersey Law

Against Discrimination, N.J.S.A. 10:5-1 to -49. On March 15, 2017, plaintiff

filed an amended complaint adding a third count for breach of contract. On

the same date, defendants filed a motion to compel arbitration and stay

proceedings.   By mutual consent of the parties, defendants withdrew their

motion because it was filed before service of plaintiff's amended complaint.

On April 21, 2017, defendants filed a second motion to compel arbitration and

stay proceedings.

      On June 9, 2017, the trial judge granted defendants' motion to compel

arbitration and stayed the proceeding pending the outcome of the arbitration

hearing. On July 20, 2017, plaintiff sent for filing a motion for reconsiderati on

of the court's June 9, 2017 order under Rule 4:49-2. Plaintiff's motion for

1
 The actual name of plaintiff's employer is Comcast Cable Communications
Management, LLC.
2
  This defendant's last name was misspelled by plaintiff in his complaint. The
correct spelling of this defendant's last name is Cruz.


                                                                         A-1987-17T4
                                        2
reconsideration was received by the Law Division on July 26, 2017. Plaintiff's

motion for reconsideration was filed forty-seven days after the court's June 9,

2017 order compelling arbitration. The trial judge granted plaintiff's motion

for reconsideration on November 16, 2017.

      Defendants appeal from the November 16, 2017 order granting plaintiff's

motion for reconsideration and vacating the June 9, 2017 order compelling

arbitration. When this matter came before this court for oral argument, we

questioned, sua sponte, whether this court had subject matter jurisdiction to

review the Law Division's November 16, 2017 order pursuant to our decision

in Hayes v. Turnersville Chrysler Jeep, 453 N.J. Super. 309 (App. Div. 2018).

      In Hayes, we noted the Supreme Court has made clear that "all orders

compelling and denying arbitration shall be deemed final for purposes of

appeal, regardless of whether such orders dispose of all issues and all parties,

and the time for appeal therefrom starts from the date of the entry of that

order." Id. at 312 (quoting GMAC v. Pittella, 205 N.J. 572, 587 (2011)). We

emphasized that "[t]o dispel any lingering doubts about the need to seek timely

appellate review of such an order, the Court also included the following

admonition: 'Because the order shall be deemed final, a timely appeal on the

issue must be taken then or not at all.'" Hayes, 453 N.J. Super. at 312 (quoting

GMAC, 205 N.J. at 586).



                                                                        A-1987-17T4
                                       3
      On October 3, 2018, plaintiff filed a post-argument motion seeking leave

from this court to file a supplemental brief addressing this issue. In an order

dated October 5, 2018, we granted plaintiff's motion and directed the parties to

submit, within twenty days from the date of the order, supplemental briefs

limited to a maximum of twenty pages, regarding the legal question: "Did the

trial court have subject matter jurisdiction to decide plaintiff's motion for

reconsideration filed under Rule 4:49-2 based on this court's decision in Hayes

v. Turnersville Chrysler Jeep, 453 N.J. Super. 309 (App. Div. 2018)?"

      On October 29, 2018, twenty-four days after our October 5, 2018 order,

plaintiff filed a motion seeking "to extend [the] time to file [a] supplemental

brief to November 8, 2018." We granted the motion with the proviso that "no

further extension will be granted." Defendants filed a timely supplemental

brief.3 In their supplemental submission, defendants argue that pursuant to

Rule 4:49-2, a party seeking reconsideration "to alter or amend a judgment or

order shall be served not later than 20 days after service of the judgment or


3
    Plaintiff submitted an untimely "letter in lieu of a more formal
memorandum" which adopted defendants' legal position.          This "letter
memorandum" is dated November 12, 2018, and was received by the Appellate
Division Clerk's Office on November 16, 2018. Plaintiff's counsel did not
provide any explanation for his dilatory behavior. Because this submission
was filed beyond the November 8, 2018 deadline, we will not consider it in
any manner in deciding this appeal.



                                                                        A-1987-17T4
                                       4
order upon all parties by the party obtaining it." (Emphasis added).       Here,

defendants claim "[t]he parties did not receive the [o]rder from the trial court

until June 30, 2017." Defendants argue that "in this case [p]laintiff Murray

filed a motion for reconsideration on July 20, 2017, exactly 20 days after all

parties   received     on    June    30,    2017,     the    [o]rder    granting

[d]efendants/[a]ppellants' motion to compel arbitration.     This motion was,

therefore, timely under Rule 4:49-2."4 (Emphasis added).

      We agree that the twenty-day time frame in Rule 4:49-2 starts from the

date of service of the order, not from the date of entry. However, although

plaintiff's motion for reconsideration is dated July 20, 2017, the Law Division

did not receive and file the motion papers until July 26, 2017, twenty-six days

after plaintiff's counsel was served with the order compelling arbitration. We


4
    In a footnote in their supplemental brief, defendants observe that our
Supreme Court has stated that, "[c]ourts may reconsider final judgments or
orders within twenty days of entry." Lee v. Brown, 232 N.J. 114, 126 (2018)
(emphasis added) (citing R. 4:49-2). After a careful review of the Court's
decision in Lee, we conclude this apparent incongruity with the plain language
in Rule 4:49-2 is based on a misapprehension of the Court's reasoning. The
plaintiffs in Lee moved for reconsideration of an interlocutory summary
judgment under Rule 4:49-2. Ibid. As Judge Pressler held "unequivocally"
more than thirty years ago, "review of interlocutory orders by the court prior to
final judgment is . . . a matter committed to the sound discretion of the court."
Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 263 (App. Div.
1987). This construction of Rule 4:49-2 is so engrained in our motion practice
jurisprudence that we infer the Supreme Court believed it was not necessary to
clarify it given the procedural posture of the case.


                                                                        A-1987-17T4
                                       5
also note defendants do not claim their counsel was served with plaintiff's

motion papers on July 20, 2017. Pursuant to Rule 1:6-3(c), "service of motion

papers is complete only on receipt at the office of adverse counsel or the

address of a pro se party.     If service is by ordinary mail, receipt will be

presumed on the third business day after mailing." The third business day

after Thursday July 20, 2017 was Tuesday July 25, 2017.              Thus, even

assuming plaintiff mailed the notice of motion and supporting papers on J uly

20, 2017, defendants were not served within the twenty-day time frame

mandated by Rule 4:49-2.

      We nevertheless commend defendants' appellate counsel's forthrightness,

especially since the argument he advanced favored plaintiff's position in this

appeal.   Defendants' appellate counsel's conduct exemplifies the type of

professional candor we expect from the attorneys who practice law in our

State. See R.P.C. 3.3(a)(3).

      We now return to the issues before us in this appeal. In Hayes, we

addressed the interplay between Rule 4:49-2 and Rule 1:3-4(c), which

expressly prohibits the relaxation of the twenty-day time restriction for filing a

motion for reconsideration. We noted that Rule 1:3-4(c) "expressly" prohibits

"the parties" and "the court" from enlarging the time specified by Rule 4:49-2.




                                                                         A-1987-17T4
                                        6
Hayes, 453 N.J. Super. at 313. Our Supreme Court has defined "jurisdiction"

as

            the right to adjudicate concerning the subject matter in
            the given case. To constitute this there are three
            essentials: (1) the court must have cognizance of the
            class of cases to which the one to be adjudicated
            belongs; (2) the proper parties must be present, and (3)
            the point to be decided must be, in substance and
            effect, within the issue.

            [Petersen v. Falzarano, 6 N.J. 447, 453 (1951).]

      Furthermore, as noted by Justice Pashman on behalf of a unanimous

Court more than forty years ago, "[t]he principle is well established that a

court cannot hear a case as to which it lacks subject matter jurisdiction even

though all parties thereto desire an adjudication on the merits."      Peper v.

Princeton Univ. Bd. of Trs., 77 N.J. 55, 65-66 (1978).          Subject matter

jurisdiction cannot be waived by the parties' failure to object, nor conferred

upon the court by the parties' agreement. Ibid. Whether presiding over a case

or deciding an appeal, judges have an independent, non-delegable duty to raise

and determine whether the court has subject matter jurisdiction over the case

whenever there is a reasonable basis to do so. 5


5
  Although a party may raise "at any time" a "challenge" to the court's subject
matter jurisdiction, see Lall v. Shivani, 448 N.J. Super. 38, 48 (App. Div.
2016), that general proposition does not aid plaintiff in the present context.
Plaintiff's untimely motion did not attempt to "challenge" the court's
                                                                   (continued)

                                                                       A-1987-17T4
                                       7
      Here, there is no question that the Law Division judge granted

defendants' motion to compel arbitration on June 9, 2017. For reasons not

clear, that order was not transmitted to the parties until June 30. Plaintiff's

motion for reconsideration under Rule 4:49-2 was not received by the Law

Division until July 26, 2017, twenty-seven days after service of the order and

forty-seven days after the court entered the order compelling arbitration. The

record also shows plaintiff did not serve defendants' counsel with the motion

for reconsideration within the twenty-day time frame mandated by Rule 4:49-

2. We thus hold the Law Division did not have subject matter jurisdiction at

the time it granted plaintiff's untimely motion under Rule 4:49-2 for

reconsideration of its June 9, 2017 final judgment granting defendants' motion

to compel arbitration.

      The trial court's November 16, 2017 order is vacated accordingly and the

matter is remanded to allow the parties to proceed to arbitration.




(continued)
jurisdiction. Instead, he sought to the contrary: to have the court maintain
jurisdiction and disallow proceedings in an arbitral forum. In making such an
application, plaintiff was obligated to adhere to time limits specified in the
Rules of Court.




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