CLAIM PETITION
C.P.98-013530

RESERVED DECISION

ELEANOR SARACINE, Petitioner
vs.
ARAMARK,Respondent

BEFORE:

HONORABLE SHELLEY B. LASHMAN
Judge of Compensation

APPEARANCES:

FRANC J. H. MARMERO, ESQ.
By: DENNIS E. BLOCK, ESQ.
Attorney for the Petitioner

COOPER, PERSKIE, APRIL, NIEDELMAN,
WAGENHEIM & LEVENSON, P.A.
By: KENNETH J. SYLVESTER, ESQ.
Attorney for the Respondent

* * *

This is a Motion to Dismiss by respondent, based on lack of jurisdiction in New Jersey.

FACTS

Petitioner was a catering waitress for Aramark, employed solely in Pennsylvania at 1101 Market Street, Philadelphia, Pennsylvania. (The petitioner also works at Corestates Bank, 1345 Chestnut Street, Philadelphia, Pennsylvania.) She suffered admitted fractures to her right arm on April 8, 1986 when she tripped and fell. She was treated by Dr. Hume in Philadelphia and at Jefferson Medical Center in Philadelphia. Her wages were $412.87 giving rise to temporary disability rate of $275.25, calculated pursuant to Pennsylvania law. Temporary disability was paid by respondent for 17 and 4/7 weeks, and petitioner returned to work on September 1, 1996. The respondent is a Pennsylvania corporation. Petitioner resides in Collingswood, New Jersey, and the employment contract, situs of employment and the injury occurred in Pennsylvania. Petitioner has already received all benefits in Pennsylvania to which she is entitled under Pennsylvania law for a compensable accident: namely, all medical expenses and temporary disability for loss of wages. Pennsylvania, unlike New Jersey, does not compensate for permanent loss of function of a member or organ.

No testimony has been taken, and I rely on the facts as presented in the moving papers with certification of attorney annexed, the brief of respondent and the three briefs of petitioner, for the facts conceded therein.

CONCLUSIONS OF LAW

I. In passing, I will first comment on the federal and New Jersey constitutional law involved, on the issue of conflict of laws and full faith and credit to the laws of other states.

Neither federal constitutional law requires that a Judgment of a sister state be accorded full faith and credit, nor does New Jersey constitutional law, bar a claimant from bringing a compensation proceeding in New Jersey, after first instituting a compensation proceeding in another state and obtaining an award there, where the foreign statute did not provide that it barred relief under the law of another state merely because the proceeding was first instituted in the first state. U.S. Const., art. IV, ' 1; 28 U.S.C.A.' 1738; N.J.S.A. 34:15-1 et seq. 22, 39. Per Cramer v. State Concrete Corp., 39 N.J. 507 (1963).

See further, 2 Larson, Workmen's Compensation Law (1961) ' 85, pages 358 et seq.

The second award is generally subject to credit for monies paid under the prior award. Cf. Industrial Commission of Wisconsin v. McCartin, 936 U.S. 622, 67 S. Ct. 886, 91 L. Ed. 1140 (1947); Restatement, Conflict of Laws, ' 403 (1945 (Supp.)); Goodrich, Conflict of Laws, ' 100, page 289 (3rd Ed. 1949) .

However, Bowers v. American Bridge Co., 43 N.J. Super. 48 added a provision that the out-of-state decision is not to be obnoxious to the policy of the New Jersey Workers' Compensation Act.

II. Professor Larson, in 4 Larson, Workmen's Compensation Law, Section 87.41 at 16-84, states:

Of the three original theories on extra-territoriality C tort, contract, and employment relation C the last is the most relevant to compensation theory and the least artificial. In this view, the existence of the employer-employee relation within the state gives the state an interest in controlling the incidents of that relation, one of which incidents is the right to receive and the obligation to pay compensation.

 

The variables and the very many New Jersey cases in point are:

(1) the site of the employment.

(2) the place where the contract of employment is consummated.

(3) the place where the injury occurred.

(4) the residence of the employee.

(5) the residence of the employer.

(6) whether out of New Jersey Workers' Compensation remedies have been obtained, are pending or available.

In this case before me, the employment was entirely in Pennsylvania; the contract of employment was made in Pennsylvania; the injury occurred in Pennsylvania; only the residence of the employee is in New Jersey; the residence of the employer is in Pennsylvania; and full Pennsylvania Workers' Compensation remedies have already been obtained.

No New Jersey case has yet held that New Jersey residents alone, without more, is a ground for New Jersey Workers' Compensation jurisdiction.

In a previous case before me Delores Ambruster-Kelly v. Northwest Airlines, the employment for 20 years was entirely in Pennsylvania. The contract of hiring 20 years prior to the injury was consummated by telephone from petitioner's New Jersey residence in Collingswood, New Jersey. The employer was a Minnesota corporation; the injury occurred in Pennsylvania; and petitioner's employer had voluntarily and without any Workers' Compensation action previously furnished medical benefits and lost-time benefits under Pennsylvania law. I ruled in that case that the only contacts with New Jersey were petitioner's continuing residence here for 20 years and a single telephone call of hire 20 years previously, and therefore there was insufficient nexus for New Jersey jurisdiction. The Appellate Division on December 28, 1998 in an unpublished opinion of Judges King and Newman, affirmed my decision. The principal basis of that holding was "the significant employment relationship considerations were all in Pennsylvania and over a long period of time" based on Professor Larson (Supra.) and on Judge Conford's holding in Phillips v. United Motor Freight, Inc., 163 N.J. Sup. 297 (App. Div. 1978). The Appellate Division in Ambruster-Kelly quoted my conclusion of law verbatim:

. . . in this case the existence of the entire employer-employee relation within Pennsylvania gives Pennsylvania the greater interest than New Jersey in controlling the safety of employees in Pennsylvania, the worker's insurance coverage for employees in Pennsylvania, the furnishing of appropriate medical treatment in Pennsylvania, and the payment of Workers' Compensation temporary and permanent disability benefits under Pennsylvania law. According to Professor Larson, such a ruling conforms to the more pertinent rule for some years regarding choice of forum.

Of the many New Jersey cases cited in the briefs on extra-territoriality of Workers' Compensation and of the even more that were not cited by the parties, not a single one, on its facts, held that residents alone, without any other of Professor Larson's indicia for jurisdiction, is sufficient to grant New Jersey Workers' Compensation jurisdiction.

It would serve no useful purpose for me to outline the facts and the holdings of each of the very many cases touching on this subject. The claims of petitioner's counsel that several cases rely on residence alone for jurisdiction, is misstated, and he relies on dicta not supported by the facts in their cases.

The many arguments advanced by petitioner's counsel are interesting and carry sound social purposes, but have not yet been held sole ground by our Courts to grant Workers' Compensation jurisdiction. They include: the beneficent purposes of our Workers' Compensation policies; the liberal interpretation to be given to our Act; the right to obtain the highest possible benefits for a work-related injury or disease; the fact that Pennsylvania Workers' Compensation law does not provide for permanent loss of function of a member or organ, only medical benefits and lost wages; the possibility of a petitioner becoming a ward of New Jersey and the possibility of unpaid medical and hospital bills in New Jersey; the interest of New Jersey in the health, well-being and recovery of a disabled resident.

Again, residency alone, without more, has not yet been held sufficient to grant New Jersey Workers' Compensation jurisdiction. It is not my province as a trial judge to judicially create new law in a field already well traversed by our Appellate Court and by our Supreme Court.

Accordingly, respondent's Motion to Dismiss for lack of jurisdiction in New Jersey is granted with prejudice.

Respondent's counsel shall submit an appropriate Judgment forthwith. There having been no testimony or exhibits presented, there is no stenographic fee awarded.

____________________________________

Shelley B. Lashman
Judge of Compensation

August 19, 1999