NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2466-15T2
THE OCEAN COUNTY UTILITIES
AUTHORITY,
Plaintiff-Respondent,
v.
UNITED STEEL, PAPER AND
FORESTRY, RUBBER,
MANUFACTURING, ENERGY,
ALLIED-INDUSTRIAL, AND
SERVICE WORKERS INTERNATIONAL
UNION AFL-CIO Local 1-149, a/k/a
UNITED STEEL WORKERS, Local
4-149, and PAUL GUDZAK,
Defendants-Appellants.
___________________________________
Argued May 17, 2017 – Decided July 12, 2017
Before Judges Alvarez, Accurso and Lisa.
On appeal from Superior Court of New Jersey,
Chancery Division, General Equity Part, Ocean
County, Docket No. C-0006-14.
David Tykulsker argued the cause for
appellants (David Tykulsker & Associates,
attorneys; Mr. Tykulsker, on the briefs).
Richard S. Haines argued the cause for
respondent (Haines & Yost, attorneys; Jerome
C. Landers, on the brief).
PER CURIAM
On October 16, 2009, the Ocean County Utilities Authority
(Authority) fired one of its employees, Paul Gudzak, who was
represented by United Steel Workers Local 4-149 (Union) as his
collective bargaining representative. The Union filed a
grievance, which did not result in resolution of the dispute, and
the parties filed for arbitration with the State Board of
Mediation, which was provided for in the Collective Bargaining
Agreement (CBA). The arbitration resulted in an award reversing
the Authority's action and reinstating Gudzak with back pay, after
serving a thirty-day suspension.
On January 9, 2014,1 the Authority filed a Chancery Division
action seeking to vacate the arbitrator's award as untimely under
the CBA, and thus void. This was because the CBA required that
the award be rendered within thirty days of closing the hearing,
and the arbitrator did not issue the award for approximately six
1
This long delay resulted in substantial part from an action
the Authority filed challenging the timeliness of the filing of
the arbitration. After an adverse trial court determination, the
Authority appealed. We affirmed, Ocean Cty. Utils. Auth. v. United
Steel, Paper & Forrestry [sic], Rubber, Mfg., No. A-5794-10 (App.
Div. June 25, 2012), thus returning the matter for arbitration on
the merits.
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months after the hearing was concluded. On cross-motions for
summary judgment, the court agreed with the Authority, and on
February 28, 2014, issued an order vacating the award as untimely
and remanding the matter to the State Board of Mediation for a new
arbitration before a different arbitrator.
For reasons that are not entirely clear from the record, and
which are not dispositive, a long period of inactivity ensued.
Although the February 28, 2014 order was sent to the State Board
of Mediation, no new arbitrator was appointed, no hearing was
held, and no action occurred. On June 30, 2015, the Authority
moved to dismiss the new arbitration for failure to prosecute.
The court denied this motion on September 18, 2015, and again
ordered that the matter proceed to arbitration.
The Union then filed a motion seeking reconsideration of the
February 28, 2014 order that had vacated its winning arbitration
award on grounds that the court's decision had been palpably
incorrect for automatically vacating the award because it was
issued beyond the thirty-day limit. The Union contended that the
February 28, 2014 order was interlocutory in nature and therefore
could be reconsidered at any time in the court's discretion.
The court rejected the Union's argument that the February 28,
2014 order was interlocutory. The court held that, under Rule
2:2-3(a), an order compelling arbitration is deemed final, as a
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result of which a reconsideration motion had to be filed within
twenty days pursuant to Rule 4:49-2, the time limit for which is
non-relaxable pursuant to Rule 1:3-4(c). The court therefore
entered an order on January 8, 2016 denying the reconsideration
motion. The effect of this order was to leave in effect the
February 28, 2014 order compelling re-arbitration of the dispute.
The Union appeals denial of the reconsideration motion. It
argues (1) that in ordering re-arbitration because the thirty-day
deadline was not met, the court's February 28, 2014 decision was
based on plainly incorrect reasoning and misapplication of the
controlling legal principles; and (2) that in denying its motion
for reconsideration filed twenty-one months later, the court
wrongly concluded that the February 28, 2014 order was a final
order and acted arbitrarily when it failed to reconsider the
palpably incorrect order compelling re-arbitration.
We reject the Union's second argument. We agree with the
trial court that the February 28, 2014 order was a final order,
not subject to reconsideration by the trial court unless a motion
was filed within twenty days. We therefore conclude that the
reconsideration motion was properly denied as untimely. Because
of this conclusion, we need not consider the substantive issues
raised in defendant's first argument. We therefore affirm the
January 8, 2016 order.
4 A-2466-15T2
The sole issue before us is whether an order compelling
arbitration (in this case re-arbitration after the initial award
was vacated by the court) is a final order. Rule 2:2-3(a) provides
that "any order either compelling arbitration, whether the action
is dismissed or stayed, or denying arbitration shall also be deemed
a final judgment of the court for appeal purposes." The Union
argues that an order compelling arbitration is, by its nature,
interlocutory. The Union contends that the dispute in such a case
has obviously not been resolved at the time of the order compelling
arbitration, and the parties can and often do return to court
seeking relief, such as an order enforcing an arbitration award
or an order vacating it. Indeed, that was done in this case after
the initial award was rendered. The Union argues that the
qualifying language, "for appeal purposes," bolsters its argument
by reflecting that such orders are not actually final, but only
treated as such to allow an appeal without requiring leave to
appeal from an interlocutory order. See Rule 2:2-4.
By the Union's reasoning, when an order compelling
arbitration is entered, the party who had resisted arbitration
would have several choices. It could file a timely appeal within
forty-five days in the Appellate Division pursuant to Rule 2:2-
3(a). It could file a timely reconsideration motion within twenty
days pursuant to Rule 4:49-2. It could go through with the
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arbitration proceeding and, if the award is unfavorable and the
trial court denies its motion to vacate the award, it could then
file a plenary appeal. It would then argue in the Appellate
Division that the order compelling arbitration was substantively
infirm and should be reversed, the result of which would be to
render the arbitration award void for lack of jurisdiction. Or,
as occurred in this case, it could wait much longer than the
twenty-day non-relaxable time limit for reconsideration of final
judgments or orders and file a motion to reconsider an
"interlocutory" order. Under this option, the court would have
the authority to decide the motion because interlocutory orders
"may be reconsidered and revised 'at any time before the entry of
a final judgment in the sound discretion of the court in the
interest of justice.'" Bender v. Walgreen E. Co., 399 N.J. Super.
584, 593 (App. Div. 2008) (quoting R. 4:42-2).
We reject this reasoning. A review of the cases in which our
Supreme Court implemented the provision in Rule 2:2-3(a) with
respect to orders compelling arbitration reveals an opposite
intent and purpose. This specific issue first came before the
Court in 2008, in Wein v. Morris, 194 N.J. 364 (2008). The Court
held that upon the issuance of an order compelling arbitration and
dismissing the complaint, "that decision ended the litigation in
the Superior Court." Id. at 379. Therefore, "[t]here was nothing
6 A-2466-15T2
left for the trial court to decide between the parties," as a
result of which "the order of the trial court was a final judgment
subject to an immediate appeal." Ibid.
The Court went on to state that
there should be a uniform approach with
respect to the right to appeal an order for
arbitration. When the parties are ordered to
arbitration, the right to appeal should not
turn on whether a trial court decides to stay
the action or decides to dismiss the action.
Rather, the same result should apply in either
case.
[Ibid.]
This uniform procedure would "provide uniformity, promote
judicial economy, and assist the speedy resolution of disputes."
Id. at 380. The Court therefore invoked its rulemaking authority
and directed the amendment of Rule 2:2-3(a) "to add an order of
the court compelling arbitration to the list of orders that shall
be deemed final judgments for appeal purposes." Ibid.
The Rule and its application were further refined three years
later in GMAC v. Pittella, 205 N.J. 572 (2011). In that case, the
trial court entered orders compelling arbitration between some,
but not all of the parties, allowing the claim against the party
for which arbitration was not ordered to proceed in court. Id.
at 574. When the litigation in court concluded one year later,
an appeal was taken from the orders compelling arbitration. Id.
7 A-2466-15T2
at 575. This court rejected the argument that the appeal was
untimely, addressed the merits of the appeal, and reversed the
orders compelling arbitration. Id. at 577.
Because the split order entered in Pittella was not
contemplated in Wein, the Supreme Court determined that the
"difference requires us to again consider basic principles
regarding finality." Id. at 583. It concluded:
A reference to arbitration, unlike most
interlocutory orders, terminates the role of
the court altogether. The policy behind Wein
applies irrespective of whether other claims
or parties remain in the trial court, and—as
already noted—the Uniform Act expressly
permits appeals from orders denying
arbitration.
We, therefore, now hold that Rule 2:2-
3(a) be further amended to permit appeals as
of right from all orders permitting or denying
arbitration. Because the order shall be
deemed final, a timely appeal on the issue
must be taken then or not at all. A party
cannot await the results of the arbitration
and gamble on the results.
[Id. at 586 (emphasis added).]
Again referring to policies of uniformity and expedition in
resolving disputes in cases in which arbitration is an issue, the
Court also directed the amendment of Rule 2:11-1(a), to
automatically confer expedited status in the Appellate Division
to appeals of orders compelling or denying arbitration, in the
8 A-2466-15T2
same manner as with appeals by leave granted from interlocutory
orders. Id. at 586 n.12.
The Court concluded that the novel question before it, which
had not been addressed in Wein, "and its resolution are now crystal
clear: orders compelling or denying arbitration are deemed final
and appealable as of right as of the date entered." Id. at 587.
Therefore, the Court warned that
as of today, litigants and lawyers in New
Jersey are on notice 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.
[Ibid.]
The trial court applied these principles correctly in this
case. The reconsideration motion was from a final order and was
grossly out of time. That reconsideration motion was therefore
properly denied. As we have stated, because of our determination
on the timeliness issue, we do not reach the substantive issues
the Union raised in its reconsideration motion.
Accordingly, the February 28, 2014 order compelling
arbitration remains in effect, and the parties will take the
necessary steps to arrange for the appointment of an arbitrator
9 A-2466-15T2
and proceed as expeditiously as possible with the re-arbitration
of this dispute.
Affirmed.
10 A-2466-15T2