IN THE THE MATTER OF PISACK V B&C TOWING AND PELLEGRINO V NICK'S
TOWING, CAN WE PLEASE HAVE APPEARANCES OF COUNSEL. APPEARANCE
S TENDERED. ) CHIEF JUSTICE RABNER: WELCOME, COUNSEL.
MR. STEIN, PLEASE GO AHEAD. MR. STEIN: YOUR HONOR, MAY I RESERVE
A FEW MINUTES FOR REBUTTAL. CHIEF JUSTICE RABNER: OF COURSE.
MR. STEIN: THANK YOU. MAY IT PLEASE THE COURT,
THE APPELLATE DIVISION'S ORDER SHOULD BE REVERSED FOR FOUR REASONS. FIRST,
THE REGULAR LAGSDZ PROMULGATED BY THE DIRECTOR OF THE DIVISION OF CONSUMER AFFAIRS
UNDERSTAND THE PREDATORY TORE RETOWING PREVENTION ACT THE T T P A CLEARLY
REQUIRE THAT CONSUMERS ADDRESS IN THE FIRST INSTANCE ANY COMPLAINTS THEY HAVE REGARDING
A TOWING CHARGE DIRECTLY WITH THE TOWING COMPANY. THE REGULATION
PLAINLY SAYS IF A TOWING COMPANY CHARGES A CONSUMER A FEE FOR PRIVATE PROPERTY
OR OTHER NON-CONSENSUAL TOWING SERVICE THAT IS DISPUTED BY THE CONSUMER
THE PARTIES SHALL USE GOOD FAITH EFFORTS TO RESOLVE THE DISPUTE.
THERE IS NO QUESTION THAT THE NAMED PLAINTIFF IN THIS CASE, IN THE PELLEGRINO
CASE DID NOT DO THAT. SHE ACTUALLY DID THE OPPOSITE. SHE CALLED UP THE
TOWING COMPANY, ASKED WHAT HER BILL WAS, SHE PAID IT ON HER CREDIT CARD. SHE SENT
A THANK YOU E-MAIL ANL SHE WENT ON HER WAY. THE NEXT THING
DEFENDANTS KNEW, OVER A YEAR LATER, SHE FILED THIS PUNITIVE CLASS ACTION LAWSUIT.
FILING A CLASS ACTION LAWSUIT IS NOT USING GOOD FAITH EFFORTS DIRECTLY WITH
THE TOWING COMPANY TO RESOLVE THE DISPUTE. THE APPELLATE DIVISION,
HOWEVER, DECLINED TO ENFORCE THE REGULATION AS WRITTEN. INSTEAD, THE
APPELLATE DIVISION DECIDED THAT WHEN THE REGULATION SAYS THAT THE PARTIES SHALL
USE GOOD FAITH EFFORTS, THE APPELLATE DIVISION INTERPRETED THAT TO MEAN THAT THE
PARTIES ARE ENCOURAGED TO DO SO; THAT'S NOT WHAT THE WORD SHALL MEANS.
SHALL MEANS THAT THE PARTIES ARE REQUIRED TO DO SO. AND THE REGULATION EXPRESSES
A CLEAR POLICY CHOICE BY THE DIRECTOR THAT IN THIS ONE NARROW CORNER OF
CONSUMER PROTECTION LAW, CONSUMERS ARE REQUIRED IN THE FIRST INSTANCE BEFORE THEY
DO ANYTHING ELSE TO ATTEMPT TO RESOLVE THEIR DISPUTES DIRECTLY WITH THE
TOWING COMPANY AND THAT'S NOT A SURPRISING POLICY AND IT'S NOT AN UNREASONABLE
ONE. THE REGULATION DOES NOT REQUIRES CONSUMERS TO GO THROUGH
ANY ONEROUS ADMINISTRATIVE REMEDIES OR ADMINISTRATIVE PROCESS. THE REGULATION
DOESN'T EVEN REQUIRE THE CONSUMER TO BRING THE COMPLAINT TO THE DIRECTOR
AT ALL. THE REGULATION ALSO DOESN'T TAKE AWAY A CONSUMER'S RIGHT TO TAKE THE CASE
TO COURT IF THEY CAN'T RESOLVE IT WITH THE TORE AND THE REGULATION DOESN'T
TAKE AWAY THE CONSUMERS TO PURSUE TREBLE DAMAGES, ATTORNEY'S FEES AN OTHER KRFR
A REMEDIES THAT MAY BE AVAILABLE. THE POLICY ALSO DOES NOT CONFLICT AS
PLAINTIFFES ARGUES WITH THE HOLDING IN BOSLAND. IN BOSLAND THE COURT HELD THAT
AS A GENERAL MATTER, CFA PLAINTIFFS ARE NOT REQUIRED TO ADDRESS THEIR CONCERNS
INITIALLY TO THE VENDOR TO THE MERCHANT. THEY DON'T HAVE TO ASK FOR A REFUND
BEFORE THEY DO ANYTHING ELSE. THE COURT IN BOSLAND ROTHD RECOGNIZED
THAT THERE MAY BE CIRCUMSTANCES IN WHICH THAT MIGHT MAKE SENSE BUT THE COURT
SAID THAT'S FOR THE LEGISLATURE TO DECIDE. IN THIS CASE THE LEGISLATURE AUTHORIZED
THE DIRECTOR TO PROMULGATE REGULATIONS TO FURTHER THE PURPOSESES OF THE
T P P A AND THE, THEY PROMULGATED THIS REGULATION THAT CLEARLY REQUIRES ON ITS
FACE THAT THAT'S WHAT CONSUMERS DO IN THE FIRST INSTANCE SO THE PARADE OF PAR,
PLAINTIFFS ARE CONCERNED ABOUT CLOSING THE COURTROOM DOORS AN THAT THE ATTORNEY
GENERAL WRITES ABOUT IN HIS AMICUS BRIEF THAT THEY SAY IS ON THE HORIZON
NONE OF THAT IS COMING TO PASS. ALL THE REGULATION REQUIRES IS THAT CONSUMERS
ADDRESS IT IN THE FIRST INSTANCE WITH THE TOER, PICK UP A PHONE, SEND AN E-MAIL,
SWING BY THE SHOP SEE IF YOU CAN WORK IT OUT. ONCE THAT IS DONE THE CONSUMER IS
FREE TO MOVE ON. THAT'S WHAT THE REGULATION SAYS AND THE ONLY WAY
THE REGULATION CHANGES IS IF THE DIRECTOR GOES THROUGH THE ADMINISTRATIVE PROCESS
TO STOP IT. CHIEF JUSTICE RABNER: MRS, BEFORE WE START
QUESTIONING YOU WITH QUESTIONS AT THE ENDS OF THE FIVE MINUTES WHY DON'T YOU TICK
OFF THE OTHER THREE ITEMS YOU HOPE TO ADDRESS. MR. STEIN:
THE OTHER THREE ISSUES, FIRST WITH RESPECT TO, WITH RESPECT TO PARTICULAR KWAN
KNOW, THE TRUTH AN, TCCWNA, NO. 1, THERE IS TWO ISSUES WITH RESPECT TO TCCWNA,
ONE IS THAT THE TCCWNA CLAIM CAN'T POSSIBLY PROCEED AS A CLASS ACTION BECAUSE
INDIVIDUAL ISSUES WILL PREDOMINANT AS OPPOSED TO CLASS ISSUES PREDOMINATING
AN THAT'S BECAUSE WHETHER OR NOT EACH CLASS MEMBER IS AN AGGRIEVED CONSUMER WILL
TURN CRITICALLY ON WHETHER OR NOT EACH PERSON, WHEN EACH CLASS MEMBER
RECEIVED AN ALLEGEDLY OFFENDING WRITING, WHAT IMPACT IT HAD AND, AS IS OBVIOUS FROM
THE COMPLAINT IN THIS CASE IT DIDN'T HAVE ANY IMPACT ON THE PLAINTIFF.
THE SECOND ISSUE WITH RESPECT TO TCCWNA IS THAT IT'S NOT THE RIGHTS AND
RESPONSIBILITIES UNDER THE T T P A ARE NOT CLEARLY ESTABLISHED. IF THERE WERE EVER
RIGHTS AND RESPONSIBILITIES UNDER A STATUTE THAT WERE NOT CLEARLY
ESTABLISHED IT'S UNDERSTAND THE T T P A, THE T T P A HAS BEEN AMENDED TWICE IN THE
LAST TWO YEARS ONCE BEFORE THAT AND IN THE RECENT AMENDMENTS THE LEGISLATURE
ITSELF IN ITS STATEMENT ACTUALLY EXPLICITLY STATED THAT THE AMENDMENTS WERE
CLARIFICATIONS AND THAT THE LEGISLATURE WROTE THAT SEVERAL TIMES IN ITS
STATEMENT THAT IT WAS A CLARIFICATION OF SEVERAL DIFFERENT POINTS. IF ANYTHING,
IT IS NOT CLEARLY ESTABLISHED FOR THE PURPOSES OF TCCWNA, THOSE WORDS DON'T
MEAN ANYTHING UNDER TCCWNA. IT HAS TO EXCLUDE CLAIMS THAT ARE -- THAT THE LEGISLATURE
ITSELF HAS TOLD US NEED TO BE CLARIFIED. THE CFA CLAIMS ALSO
CAN'T PROCEED AS A CLASS ACTION BECAUSE WHETHER OR NOT EACH CLASS MEMBER SUFFERED
AN ASCERTAIN ABDOMINAL LOSS ALSO WILL REQUIRE HIGHLY INDIVIDUALIZED
INQUIRIES REGARDING WHETHER OR NOT EACH CLASS MEMBER RECEIVED A SERVICE. THERE
MAY BE -- EVEN IF THERE IS AN ALLEGED REGULATORY VIOLATION, IT'S A BEAR
INVESTIGATORY VIOLATION THAT DID NOT CAUSE AT LEAST IN PLAINTIFF'S CASE DID NOT
CAUSE A BENEFIT OF THE BARGAIN TYPE LOSS AN WITHOUT THAT, WE DON'T HAVE AN
ASCERTAINABLE LOSS THAT GIVES EACH CLASS MEMBER A PRIVATE RIGHT OF ACTION, FIGURING
OUT WHETHER OR NOT EACH CLASS MEMBER SUFFERED SUCH A LOSS IS GOING TO BE
IMPOSSIBLE TO DO. THE LAST POINT YOUR HONOR IS THAT THE T T P A
REGULATES TOWING AND STORAGE RELATED SERVICES, THE CREDIT CARD SURCHARGE THAT HAS
BEEN CHALLENGED BY PLAINTIFF IS NOT A CHARGE THAT'S CHARGED FOR TOWING AND
RELATED STORAGE SERVICES, IT'S A CHARGE THAT'S CHARGED BY MANY COMPANIES ACROSS
THE MASHTH TO DEFRAY THE COST OF USING A CREDIT CARD. IN FACT, THE LEGISLATURE
IN THE PAST HAS CONSIDERED BILLS THAT WOULD BAR CREDIT CARD SURCHARGES
ACROSS THE MASHTH, THOSE BILLS HAVEN'T PASSED PLAINTIFF CAN'T NOW USE THE T T P
A TO IMPOSE THAT RESTRICTION WHERE THE LEGISLATURE HAS DECIDED NOT TO IMPOSE
IT GENERALLY. THE COURT: LET'S GO TO YOUR FIRST ISSUE, YOUR
ARGUMENT THAT THERE IS AN ADMINISTRATIVE EXHAUSTION REQUIREMENT THAT YOU HAVE
TO GO TO THE DIRECTOR FIRST. DOESN'T THE STATUTE PROVIDE TWO TRACTS,
56:13-21 B PROVIDES FOR REMEDIES UNDER THE CONSUMER FRAUD ACT AND IN FRONT
OF THE AGENCY. MR. STEIN: I AM NOT ARGUING THAT THE CONSUMER
NEEDS TO GO TO THE DIRECTOR FIRST. I AM ARGUING THAT UNDER THE REGULATION, THE
CONSUMER NEEDS TO GO TO THE TOWING COMPANY FIRST, NEEDS TO ADDRESS IT DIRECTLY
WITH THE TOWING COMPANY AND THAT'S BECAUSE THAT'S WHAT THE REGULATION SAYS, THE
REGULATION SAYS IF A TOWING COMPANY CHARGES A CONSUMER A FEE, ETC., ETC.,
THE PARTIES SHALL USE GOOD FAITH EFFORTS TO RESOLVE THE DISPUTE.
JUSTICE PATTERSON: THE ATTORNEY GENERAL REPRESENTING THE DIRECTOR TELLS US
OBVIOUSLY WE LOOK VERY CAREFULLY AT WHAT THEY HAVE TO SAY ABOUT A REGULATION
THAT THE DIRECTOR PROMULGATED OR THE DIVISION PROMULGATED, THEY SAY THAT THE GOOD
FAITH PROVISION IS JUST TO REDUCE THE CASELOAD OF COMPLAINTS THAT THE
DIRECTOR HAS TO DEAL WITH SO THAT'S OVER ON THE DIRECTOR SIDE. THEY JUST ARE HOPING
THAT HE MIGHT NOT BE SO BUSY WITH DISPUTES IF THERE IS A DISPUTE RESOLUTION PROVISION
BUT THEY SEEM TO BE INDICATING, THE ATTORNEY GENERAL SEEMS TO BE
INDICATING THAT THIS DOES NOT ADDRESS THE CFA ASPECT. MR. STEIN:
THE ATTORNEY GENERAL'S POSITION, I RESPECTFULLY SUBMIT IS INCONSISTENT WITH THE
LANGUAGE OF THE REGULATION. THE LANGUAGE OF THE REGULATION STATES SIMPLY
AND WITHOUT QUALIFICATION THAT A CONSUMER IS REQUIRED TO GO TO THE TOWING COMPANY
FIRST. JUSTICE ALBIN: WHY ISN'T THAT JUST ON THE ADMINISTRATIVE
TRACT? AFTER ALL THE ATTORNEY GENERAL PROMULGATED THAT
REGULATION AND WE HAVE IN MANY DIFFERENT SCHEMES TWO DIFFERENT TRACTS, YOU CAN SEEK
ADMINISTRATIVE RELIEF OR YOU CAN GO TO COURT. WE HAVE THAT WITH THE DIVISION
OF CIVIL RIGHTS. WE HAVE THAT WITH THE DIVISION OF CONSUMER AFFAIRS.
WHY IS THIS NO DIFFERENT? MR. STEIN: IT COULD HAVE BEEN.
THE DIRECTOR COULD HAVE CHOSEN TO SAY THAT BEFORE GOING TO THE DIRECTOR,
THE CONSUMER IS REQUIRED TO USE GOOD FAITH EFFORTS TO RESOLVE THE DISPUTE BUT THAT'S
NOT WHAT THEY WROTE IN THE REGULATION. THEY COULD HAVE MADE THAT CHOICE,
BUT THEY DIDN'T. THE CHOICE AS WRITTEN IN THE REGULATION IS THAT WITHOUT QUALIFICATION
A CONSUMER IS REQUIRED TO GO TO THE TOWING COMPANY FIRST. THE DIRECTOR
COULD HAVE EXPLICITLY SAID BEFORE BRINGING A CLAIM TO THE DIRECTOR, HERE IS WHAT
YOU HAVE TO DO AND THE ATTORNEY GENERAL'S ARGUMENT IS REALLY A CONTEXTUAL ONE,
THE ATTORNEY GENERAL DOESN'T OFFER ANY TEXTUAL ARGUMENT THAT IT IS -- THAT THIS
REQUIREMENT IS LIMITED TO LIMIT THE ABILITY OF A CONSUMER TO GO TO THE
DIRECTOR. JUSTICE ALBIN: WHERE IS THE ENABLING LANGUAGE IN
THE LEGISLATION THAT EVEN GIVES THE DIRECTOR THAT AUTHORITY BEFORE SOMEONE CAN
FILE A CLAIM IN COURT UNDER THE CFA. A. ACTUALLY 19 OF THE T T P A
BROADLY STATES THAT THE DIRECTOR HAS THE AUTHORITY TO PROMULGATE REGULATIONS TO
FURTHER THE PURPOSES OF THE THE T P A. CHIEF JUSTICE RABNER: IF WE
READ THE REGULATION AS YOU DO AND PARENTHETICALLY I DON'T SEE THE WORD
FIRST IN THE REGULATION, BUT IF WE WERE TO ACCEPT YOUR ARGUMENT HAVE WE UNDERMINED
THE STATUTE. MR. STEIN: I DON'T THINK SO. THE STATUTE GIVES
A DIRECTOR AUTHORITY TO PROMULGATE REGULATIONS TO FURTHER THE PURPOSES THE PURPOSES
OF THE T T P A THE STATUTE DOES NOT QUALIFY THAT AUTHORITY IN ANY WAY,
THAT'S AGAIN SECTION 19 OF THE STATUTE. THE DIRECTOR HERE WROTE A SENTENCE WHICH
INCIDENTLY IS IN THE MIDDLE OF THE REGULATION THAT IS NOT ABOUT PROCEDURES IN
FRONT OF THE DIRECTOR. IT'S NOT AS IF THERE IS A REGULATION ABOUT WHAT TO
DO BEFORE YOU BRING THE CLAIM OR HOW TO BRING A CLAIM TO THE DIRECTOR. THIS APPEARS
AS SUBSECTION F, ONE OF 11 SUBSECTIONS OF 31.4, 31.4 IS THE MEAT AN POT
ATOES REGULATION OF THE T T P A REGULATIONS IT LISTS OUT SOME OF THE MORS, MOST
IMPORTANT SECTIONS ABOUT WHAT A TOWING COMPANY CAN AND CAN'T CHARGE, WHAT
THEY HAVE TO RECORD IF THEY ISSUE BILLS, A WHOLE HOST OF OTHER THINGS. THIS ONE
-- THERE IS ONE SUBSECTION OF THAT REGULATION AND IT HAS TWO PROVISIONS, ONE IS
THAT THEY HAVE TO GO TO THE TOWING COMPANY FIRST AN ANOTHER ONE THAT IN THE
EVENT THAT SOMEBODY BRINGS A CLAIM TO THE DIRECTOR, THE DIRECTOR IS AUTHORIZED
TO -- JUSTICE ALBIN: CAN YOU GIVE ANY EXAMPLES WHERE THERE IS
AN ADMINISTRATIVE REGULATION THAT SETS FORTH A PRECONDITION FOR FILING A CLAIM
IN COURT WHERE THAT PRECONDITION IS NOT IN THE LEGITIMATE I HAVE ENACTMENT
ITSELF? ARE YOU FOLLOWING ME? MR. STEIN: I
AM AND THE ANSWER IS NO, I CAN'T. I WOULD END ON THIS POINT,
WHICH IS THAT IT MAKES GOOD SENSE AND IT'S NOT SURPRISING TO ME JUST THE
LEGISLATIVE FINDINGS AND THE BEGINNING OF THE T T P A INCLUDE A FINDING THAT MOST
TOERS IN THE STATE OF NEW JERSEY ARE HONEST AND GOOD BUSINESS PEOPLE. IT'S NOT
SURPRISING THAT WHEN THE STATUTE WENT THROUGH THE LEGISLATIVE PROCESS AND
THE ATTORNEY GENERAL ISSUED ITS REGULATIONS THAT AT THE TIME THE DIRECTOR
MADE THE CHOICE TO INCLUDE THIS PROVISION SO THAT THERE WOULDN'T BE AN
UNNECESSARY DELUGE OF EITHER LITIGATION OR CLAIMS TO THE DIRECTOR.
MOVING ONTO -- I AM SORRY. ARE YOU READ DREE TO TALK ABOUT TCCWNA A
LITTLE BIT? MR. STEIN: I AM. JUSTICE
PATTERSON: IF THE PLAINTIFFS ARGUE AND PROVE THAT THEY ARE NOT AGGRIEVED -- THAT
THEY PAID MORE THAN THE STATUTE AND REGULATIONS PERMIT AN OF COURSE THERE
IS THE REQUISITE NOTICE UNDERSTAND TCCWNA, WHY IS THAT NOT A TCCWNA CLAIM OR THE
COMMON ISSUES PREDOMINATE. MR. STEIN: IT'S NOT BECAUSE OF THE
CAUSATION EL: IN ORDER TO HAVE A TCCWNA CLAIM UNDERSTAND THE TEACHING OF
SPAD, EACH CLASS MEMBER WOULD HAVE TO SHOW THAT THE -- WHATEVER HARM CAME TO THEM,
CAME TO THEM AS A RESULT OF RECEIVING THE ALLEGEDLY OFFENDING WRITING.
THERE NEEDS TO BE A WRITING. HERE THE WRITING THAT IS ALLEGED TO HAVE OFFENDED
IS AN INVOICE. THE SEEK CONSEQUENCE IS CRITICAL. WHAT PLAINTIFF ALLEGATIONS
IS THAT SHE CALLED UP, SHE ASKED WHAT HER BILL WAS, SHE PAID IT. SHE SENT AN E-MAIL
AUTHORIZING DEFENDANT TO CHARGE HER CREDIT CARD, THEN SOMETIME AFTER THAT
SHE RECEIVED AN INVOICE IN THE MAIL PRESUMABLY A FEW DAYS LATER, IT WAS SNAL MAIL.
THERE IS NO WAY RECEIVING THAT VOICE IN THE MAIL CAUSED WHATEVER HARM.
JUSTICE PATTERSON: IS THERE A TCCWNA CLAIM WHEN A NOTICE CLAIMS A CHARGE
THAT IS ILLEGAL, OBVIOUSLY A LITTLE BIT DIFFERENT FROM SPAD WHERE THERE WERE OTHER
TYPES OF PROVISIONS ABOUT RETURNING THE FURNITURE AND SO FORTH, BUT IF THE
NOTICE IS THE WAY THAT THE MERCHANT, IN THIS CASE, THE TOWING COMPANY CONVEYS A
CHARGE THAT IS AN UNLAWFUL CHARGE. I KNOW YOU'RE CONTESTING THAT BUT I
AM JUST ASSUMING THAT FOR THE MOMENT, IS THAT A NOTICE THAT'S ILLEGAL UNDER TCCWNA?
MR. STEIN: PRESUMABLY, YES. JUSTICE PATTERSON:
SO IF THAT NOTICE IS THE WAY THAT THE PERSON, AN INDIVIDUAL AND YOU'RE INDICATING
SOME OF THEM GOT THEM LATER, BUT IF THAT NOTICE IS THE PAY THE TOWING COMPANY
COMMUNICATED AN ILLEGAL CHARGE TO THE CONSUMER IS THAT POTENTIALLY A TCCWNA
VIOLATION. MR. STEIN: TIETS EASE POTENTIALLY A TCCWNA VIOLATION.
JUSTICE PATTERSON: BUT YOU ARE SAYING THAT IS INDIVIDUALIZED.
MR. STEIN: BECAUSE OF THE CAUSATION ISSUE. STILL, EVEN IF
EACH ONE OF THE INVOICES WERE SENT BEFORE THE PAYMENT WERE MADE AND THAT'S NOT
WHAT HAPPENED, IT WAS SENT AFTER THE PAYMENT WAS MADE BUT EVEN IF THEY WERE
SENT BEFORE THE PAYMENT WAS MADE THERE WOULD STILL HAVE TO BE SOME PROOF THAT
RECEIVING THE INVOICE CAUSED THE HARM, INDUCED THE PLAINTIFF TO DO SOMETHING OR
NOT DO SOMETHING. I GRANT THAT IT WOULD PROBABLE BLEE -- THERE MAY BE A FAIR
INFERENCE IN THE CASE WHERE THE INVOICE IS PROVIDED BEFORE PAYMENT, BUT WHERE THE
INVOICE IS NOT PROVIDED BEFORE PAYMENT IT STANDS TO REASON THAT IT DIDN'T
CAUSE NO HARM AND IN FACT WE DON'T HAVE TO GUESS HERE. THE PLAINTIFF DOES NOT
ALLEGE IN HER COMPLAINT THAT SHE WAS HARMED AS A RESULT OF RECEIVING THE
INVOICE. JUSTICE ALBIN: TO THE EXTENT THAT THE INVOICE BREAKS
DOWN VARIOUS CHARGES HAS AN AIR OF LEGITIMACY AN THEREFORE MIGHT DETER SOMEONE
FROM ACTING DEBT RECOVER RI FROM ANL ILLEGAL CHARGE WHY WOULDN'T THAT BE
AN ARGUMENT IN SUPPORT OF A TCCWNA CLAIM. MR. STEIN: IT IS A POSSIBILITY
AND THE APPELLATE DIVISION SUGGESTS THE SAME THING. THE PROEBL IS WE HAVE
A CLASS ACTION HERE AND IN ORDER TO FIGURE OUT WHETHER OR NOT THE INVOICE RECEIVED
BY EACH CLASS MEMBER AFTER THEY MADE PAYMENT DID OR DID NOT INDUCE THEM
NOT TO THEN PICK UP THE PHONE AND COMPLAIN THAT THEY HAD BEEN OVER CHARGED IS GOING
TO BE IMPOSSIBLE ON A CLASS WIDE BASIS. JUSTICE ALBIN: CAN'T
WE PRESUME IF THE PERSON IS -- IF YOU CAN DETERMINE THAT CERTAIN CLASSES OF
CHARGES ARE JUST ACROSS THE BOARD ILLEGAL, CAN'T AN INFERENCE BE DRAWN THAT THE
NOTICE, THE WRITING HAD SOME SORT OF EFFECT? LIKE, WHO
WOULDN'T CLAN ABOUT AN ILLEGAL CHARGE UNLESS THEY WERE COULD YOUED BY A POOES,
PIECE OF PAPER OR WHATEVER. MR. STEIN: IT IS POSSIBLE THAT
INDIVIDUAL CLASS MEMBERS WERE COWED BY AN INVOICE AN INDUCE TD NOT TO COMPLAIN
BUT IT IS POSSIBLE THAT THEY WEREN'T AND ALSO LIKELY THAT THEY WEREN'T BECAUSE
THE PLAINTIFF IN THIS CASE STOPPED SHORT OF ACTUALLY ALLEGED THAT SHE WAS
HARMED AS A RESULT OF RECEIVING IT. SHE DOES NOT ALLEGE IN HER COMPLAINT THAT SHE
DIDN'T COMPLAIN BECAUSE SHE RECEIVED AN INVOICE. SHE JUST SAID SHE RECEIVED THE
INVOICE PERIOD FULL STOP. JUSTICE PATTERSON: YOUR POINT IS
AN INDIVIDUAL MIGHT BE ABLE TO MAKE THAT CLAIM BY SAYING IT BEFORE A FACT
FINDER BUT THIS IS A CLASS SITUATION. MR. STEIN: EXACTLY. AND IF
AN INDIVIDUAL BROUGHT THAT CLAIM. IF THIS CLAIM PROCEEDED AS AN INDIVIDUAL
ACTION AS THE TRIAL COURT ORDERED, I WILL TAKE THE PLAINTIFF'S DEPOSITION AND I WILL
ASK HER THOSE QUESTIONS BUT WE CAN'T DO THAT ON A CLASS WIDE BASIS.
JUSTICE LA VECCHIA: BECAUSE OF THE POSTURE OF YOUR ARGUMENT DO WE HAVE TO ACCEPT
THAT NONLS TOWING IS EVEN AN ACTUAL SETH FOR A CLAIM? MR. STEIN:
WELL, I THINK THAT SPEAKS TO THE SECOND TCCWNA ISSUE OF WHETHER OR NOT THE T T
P A RIGHTS AND RESPONSIBILITIES ARE CLEARLY ESTABLISHED AND THERE IS EVEN
A VIABLE OR A POTENTIAL TCCWNA CLAIM. OUR POSITION IS THAT THERE IS NO POSSIBLE
TCCWNA CLAIM BECAUSE RIGHTS AND RESPONSIBILITIES UNDERSTAND THE T P P
A ARE NOT CLEARLY ESTABLISHED AS THOSE WORDS ARE USED IN TCCWNA.
JUSTICE LA VECCHIA: BUT DO YOU THINK THAT PEOPLE WHOSE CARS ARE NONCONSENSUALLY
TOWED ARE CONSUMERS TO WHICH TCCWNA WAS ORIGINALLY INTENDED TO APPLY.
MR. STEIN: I HAVE NO REASON TO DOUBT THAT THEY WOULD BE. I AM NOT
CHALLENGING THEIR STANDING AS CONSUMERS. JUSTICE ALBIN:
THESE ARE BAILMENTS, RIGHT? MR. STEIN: PLAINTIFF ALSO ARGUES THAT
THE INVOICE IS A NOTICE. JUSTICE LA VECCHIA: WHERE IS THE
OFFER AND ACCEPTANCE. I MEAN THE CAR IS TOWED, THE CONSUMER HAS NO CHOICE, RIGHT? MR. STEIN: YES. JUSTICE LA VECCHIA:
IF THAT IS EVEN AN ISSUE STILL IN THIS APPEAL? MR. STEIN:
WHICH OFFER AND ACCEPTANCE ARGUMENT. JUSTICE FERNANDEZ-VINA:
SINCE THEY HAD NO PRIOR NOTICE NOTHING TO AGREE TO. MR. STEIN:
I AM NOT ARGUING THAT THESE CONSUMERS ARE NOT CONSUMERS AS DEFINED BY TCCWNA AND
I AM NOT ARGUING THAT THE PIECE OF PAPER DOESN'T FIT INTO THE CATEGORIES
OF PIECES OF WRITING THAT ARE ACTIONABLE UNDER TCCWNA. JUSTICE
ALBIN: ULTIMATELY THERE IS CONSIDERATION, THEIR CAR HAS BEEN TOWED, STORED AND
THEY PAY A FEE SO WE HAVE A SERVICE AND WE HAVE A PAYMENT. MR.
STEIN: YES. JUSTICE ALBIN: SO WE HAVE SOME FORM OF CONTRACTUAL
RELATIONSHIP, YOU'RE NOT QUESTIONING THAT? MR. STEIN: I AM NOT?
CHIEF JUSTICE RABNER: YOU'RE NOT QUESTIONING WHETHER THERE
WAS AN OFFER TO ENTER INTO A WRITTEN CONSUMER CONTRACT? MR.
STEIN: THE ISSUE AS WE'VE ARGUED IT IS NOT WHETHER OR NOT THERE IS A CONTRACT.
THE ISSUE IS ON THE CAUSATION ELEMENT OF HARM. JUSTICE PATTERSON:
AS YOU THINK ABOUT IT NOW, IS THERE AN ISSUE WITH RESPECT TO WHETHER THIS IS
EITHER A CONTRACT OR AN OFFER TO ENTER INTO A CONTRACT? MR. STEIN:
CHIEF JUSTICE RABNER: YOU WOULD STILL HAVE TO DEAL WITH THE
REMANLD DER OF THE SENTENCE WHETHER THIS IS A NOTICE OR A SIGN THAT HAS BEEN GIVEN.
MR. STEIN: I DON'T BELIEVE IT'S A CONSUMER CONTRACT AND THE
REASON I DON'T BELIEVE IT'S A CONSUMER CONTRACT BECAUSE THE INVOICE CERTAINLY IN
THIS CASE WAS NOT AN OFFER TO PROVIDE A SERVICE IN EXCHANGE FOR A FEE. IT
WAS SENT AFTER THE PAYMENT. JUSTICE PATTERSON: YOU'RE HITH THE POINT
STOOINL STOOIN YES. JUSTICE PATTERSON: IS THERE LANGUAGE IN
TCCWNA THAT THIS MAY BE EX CLUTD FROM? MR. STEIN: I DON'T BELIEVE
IT'S A CONSUMER CONTRACT. JUSTICE ALBIN: I THOUGHT YOU JUST
SAID A COUPLE OF MINUTES AGO THAT THIS WAS A CONTRACT. DID I
HEAR WRONG? MR. STEIN: IF I SAID THAT, THEN I APOLOGIZE.
I DON'T THINK THIS IS A CON SUMMER CONTRACT. JUSTICE ALBIN: DID YOU
NOT SAY A COUPLE OF MINUTES AGO THAT PEOPLE WHOSE CARS WERE TOWED WERE
CONSUMERS OR DID I MISS THAT? MR. STEIN: CONSUMER, I BELIEVE IS DEFINED,
I DON'T HAVE THE DEFINITION IN FRONT OF ME, I DON'T BELIEVE THEY'RE EXCLUDED
FROM THE DEFINITION OF CONSUMER, THE QUESTION IS WHETHER OR NOT THESE INVOICES
WOULD BE CONSIDERED CONSUMER CONTRACTS. I DON'T THINK THEY WOULD BE BECAUSE
THERE IS NO OFFER TO PROVIDE SERVICES. JUSTICE ALBIN: LET'S
GO THROUGH THIS AGAIN BECAUSE I THOUGHT I ASKED THIS QUESTION. WAS
THERE A CONTRACT? MR. STEIN: NO. JUSTICE ALBIN:
SO THE CAR IS STORED, CORRECT? MR. STEIN: YES.
JUSTICE ALBIN: A SERVICE IS PROVIDED, EVEN IF IT IS BY LAW. THIS PERSON, WHETHER
IT'S A CONSUMER OR WHATEVER YOU'RE GOING TO DESIGNATE, PAYS FOR THOSE SERVICES,
NO? MR. STEIN: YES. JUSTICE ALBIN: DO YOU HAVE
A CONTRACT, YES? MR. STEIN: I DON'T BELIEVE THAT'S A CONTRACT.
JUSTICE ALBIN: WHAT IS IT IF IT'S NOT A CONTRACT?
MR. STEIN: I BELIEVE, YOUR HONOR, YOU REFER TO IT AS A BAILMENT. I THINK
IT'S PROBABLE BLEE CLOSER TO THAT THAN A CONTRACT. JUSTICE LA
VECCHIA: ISN'T THE QUESTION WHETHER IT COMES WITH THE INTEND, TCCWNA AND THEIR
SENSE OF WHAT KINDS OF CONSUMER CONTRACTING SITUATIONS WOULD BE
COVERED BY THEIR PROHIBITIONS? JUSTICE ALBIN IS ASKING YOU STRAIGHTFORWARD
BLACK LETTER LAW ISSUES ABOUT CONTRACTS AN WHETHER THEY CAN BE FORMED OR
FOUND TO BE FORMED UNDERSTAND, YOU KNOW, ABSTRACT QUESTIONS OF FACT, BUT THE ISSUE
IS WHETHER OR NOT IT FITS WITHIN THE INTEND MENT OF CONSUMER CONTRACT UNDER
THIS STATUTE AND THAT'S WHAT I WAS TRYING TO ASK YOU. ARE WE
FORECLOSED FROM ADDRESSING THAT QUESTION BY THE WAY YOU ARE CHOOSING TO FASHION
YOUR ARGUMENT? MR. STEIN: IN THE APPELLATE DIVISION, WE
DID ARGUE BEFORE THE APPELLATE DIVISION THAT IT WAS NOT THE TYPE OF WRITING
THAT WAS INTENDED TO BE COVERED BY TCCWNA BECAUSE IT WAS NOT A WRITING THAT WAS
INTENDED, NOT AS A CONSUMER CONTRACT IT WASN'T AN OFFER TO PROVIDE SERVICES,
IT WASN'T A DEMAND FOR PAYMENT. IT WAS NOT THE TYPE OF WRITING THAT IS COVERED
BY TCCWNA. JUSTICE LA VECCHIA: SO THE ISSUE IS PRESENT?
MR. STEIN: THE ISSUE HAS CERTAINLY BEEN ARGUED BELOW. IT IS
TRUE THAT BEFORE THE SUPREME COURT WE HAVE ARGUED TO SOME DEGREE THAT EVEN IF YOU
ASSUME IT IS A NOTICE AS CHIEF JUSTICE MENTIONED THAT THERE IS SEVERAL MORE
WORDS IN THAT SENTENCE THAT WE WOULD HAVE TO DEAL WITH, EVEN IF IT WERE A NOTICE
AND NOT A CONTRACT WE WOULD STILL POTENTIALLY HAVE A TCCWNA VIOLATION.
EVEN IF ALL OF THAT WERE TRUE, MY PRIMARY ARGUMENT BEFORE THIS COURT IS THAT ON
THE CLASS ISSUE WHICH IS THE ISSUE THAT THE TRIAL COURT DECIDED, ON A CLASS
ISSUE IT CAN'T PROCEED AS A CLASS ACTION BECAUSE OF THE CAUSATION ELEMENT WITH RESPECT
TO BEING AN AGGRIEVED CONSUMER. JUSTICE LA VECCHIA: I UNDERSTAND
YOUR POSITION. YOU CAN PROCEED TO THE REST OF YOUR ARGUMENT.
I'M DONE. JUSTICE PATTERSON: LET'S TALK ABOUT NOTICE.
THE CONSUMER CONTRACT IS SIGNED AND THEN THE WRITTEN CONSUMER WARRANT
NOTICE OR SIGN IS DISPLAYED, WHAT IS YOUR ARGUMENT AS TO WHETHER THIS INVOICE
CONSTITUTES A NOTICE FOR PURPOSES OF TCCWNA. MR. STEIN: I
AM CONCEDING THAT IT IS LIKELY A NOTICE. CHIEF JUSTICE RABNER: DO
YOU WANT TO MOVE ON TO THE OTHER ITEMS IN THE FEW MINUTES YOU HAVE LEFT?
MR. STEIN: THANK YOU. CIRCLING BACK TO THE CLEARLY
ESTABLISHED ISSUE, ACTUALLY, I AM SORRY, BEFORE -- WELL, BEFORE WE GET TO
THE CLEARLY ESTABLISHED ISSUES, REMAINING ON THE CLASS ACTION ISSUE, WE'VE ARGUED
THAT THE CFA CLAIMS ALSO CANNOT PROCEED AS A CLASS ACTION AND THE ISSUE THERE
IS SOMEWHAT DIFFERENT THAN IN TCCWNA. WITH RESPECT TO TCCWNA THE ISSUE IS CAUSATION.
WITH RESPECT TO CFA CLAIMS THE ISSUE IS REALLY ASCERTAINABLE LOSS. THIS IS
A SOMEWHAT UNIQUE ANIMAL IN THIS CASE. WE HAVE A REGULATORY VIOLATION, AS WELL AS
A PAYMENT OUT OF POKT BY THE CLASS MEMBERS, THEY PAID OR THEY ARE ALLEGED TO
HAVE PAID PAYMENTS THAT WERE DISALLOWED UNDER THE T T P A, THE ISSUE IS AS ALLEGED
IN THE COMPLAINT, THE CLASS MEMBERS RECEIVED SERVICES IN EXCHANGE AND IF THEY
RECEIVED SERVICES IN EXCHANGE THEY DID NOT SUFFER AN OUT OF POKT AND I SHOULD
SAY LOST BENEFIT OF THE BARGAIN TYPE LOSS; THAT IS THE TYPE --
JUSTICE PATTERSON: CFA CLAIMS ARE OFTEN BASED ON OVER CHARGING AREN'T THEY?
MR. STEIN: THEY ARE. JUSTICE PATTERSON: AND SO YOU OVER
CHARGE FOR A SERVICE OR GOOD OR WHATEVER IT MAY BE AND THE DEFENDANT THEN
SAYS, WELL, GEE, I GAVE THEM -- I REMODELLED THE KITCHEN OR I PROVIDED THE
SERVICE; THAT'S NOT A DEFENSE TO OO CFA CLAIM IS IT. MR. STEIN:
THAT IS A GOOD EXAMPLE. IN THE CASE OF REMODELING AND I BELIEVE IT'S KOKS, THE ISSUE THERE WAS THE COURT FOUND AN ASCERTAINABLE LOSS BECAUSE THE
THE NECESSARY INSPECTIONS AND AS A RESULT OF FAILING TO SCHEDULE THE NECESSARY
INSPECTIONS, THE WORK WAS SHODDY AND THERE WAS A DIMINUTION IN VALUE IN THE PROPERTY;
THAT WAS THE LOST BENEFIT OF THE BARGAIN TYPE LOSS IN THAT CASE. SO THE FACT
THAT THE CONTRACTOR HAD PROVIDED SERVICE WAS NOT -- DID NOT REBUT THE FINDING OF
AN ASCERTAINABLE LOSS BECAUSE THEY HAD PROVIDED SOME SERVICE BUT NOT OF THE
QUALITY THEY WERE SUPPOSED TO THEY PROVIDED A LESSER QUALITY.
JUSTICE PATTERSON: OBVIOUSLY KOKS IS ONE EXAMPLE, BUT YOU COULD HAVE A CFA CLAIM
BASED UPON AN UNLAWFUL OVERCHARGE THAT IS A REGULATORY VIOLATION, COULDN'T
YOU? MR. STEIN: IF NO SERVICE WAS PROVIDED IN EXCHANGE.
JUSTICE PATTERSON: EVEN IF SERVICE WAS PROVIDED OR GOODS
PROVIDED, IF THERE WAS AN OVER CHARGE THAT WAS FOUND TO CONSTITUTE A REGULATORY
VIOLATION, COULDN'T THAT GIVE RISE TO A CFA CLAIM? MR. STEIN:
MY POSITION IS THAT IT CAN'T BECAUSE IF THERE IS NO LOST BENEFIT OF THE BARGAIN
TYPE LOSS THEN THERE IS NO ASCERTAINABLE LOSS WHICH IS NOT TO SAY THAT IT'S
NOT REDRESS ABDOMINAL, IT MAY BE REDRESS ABDOMINAL BY THE DIRECTOR JUST NOT OF THE
TYPE OF CFA VIOLATION -- JUSTICE ALBIN: I AM NOT UNDERSTANDING.
LET'S TAKE THE CASE OF PISACK, SHE IS CLAIMING THAT THE T T P A DID NOT
CLAIM THIS LABOR AND, IT WAS PROHIBITED UNDER THE REGULATORY PROVISIONS SET FORTH
BY THE DIRECTOR. WHY AREN'T THOSE EASILY ASCERTAINABLE AMOUNTS OF MONEY,
$25 AND $50. MR. STEIN: WITH RESPECT TO PISACK, I HAVE TO
DEFER TO MY COLLEAGUE WHO REPRESENTS THE DEFENDANT IN THAT CASE. IN PELLEGRINO
THAT WASN'T THE ISSUE AND I DON'T KNOW THAT ACTUALLY THEY ARE GOING TO ARGUE THAT
IN PISACK. JUSTICE ALBIN: YOU ARE CHARGED IN PELLEGRINO.
MR. STEIN: YES. JUSTICE ALBIN: ISN'T THAT
PROHIBITED. MR. STEIN: IT IS ALLEGED TO BE PROHIBITED.
JUSTICE ALBIN: SO EVERY CLASS IN THE CHARGE WHO IS CHARGED A YARD CHARGE WHY
ISN'T THAT A COHESIVE GROUP FOR THAT CLASS ACTION. MR. STEIN:
BECAUSE IN EXCHANGE FOR THAT YARD CHARGE THEY RECEIVED A SERVICE.
JUSTICE ALBIN: BUT THE REGULATION SAYS THEY SHOULDN'T HAVE BEEN CHARGED PERIOD.
THEY COULD HAVE BEEN CHARGED OTHER THINGS BUT NOT THE YARD CHARGE?
MR. STEIN: FOR THE PURPOSES OF -- JUSTICE ALBIN: AM I WRONG ABOUT
THAT? MR. STEIN: YOUR HONOR, YOU'RE NOT WRONG ABOUT THAT.
THE POINT THAT I AM MAKING IS THAT EVEN IF IT'S A VIOLATION, EVEN IF IT IS A CHARGE
THAT WAS CHARGED IN VIOLATION OF THE STATUTE, IF THERE WAS A SERVICE
PROVIDED IN EXCHANGE, THERE IS NO ASCERTAINABLE LOSS. IT'S NOT OF THE TYPE OF
ASCERTAINABLE LOSS THAT THIS COURT IN THE PAST HAS FOUND QUALIFIES A CFA
PLAINTIFF TO BRING A PRIVATE CAUSE OF ACTION BECAUSE THEY GOT SOMETHING IN
EXCHANGE. JUSTICE ALBIN: WHATEVER THEY GOT, THEY WERE SUPPOSED
TO GET WITHOUT THAT $40 YARD CHARGE AND WITHOUT THE CREDIT CARD SURCHARGE AND THE
ADMINISTRATIVE CHARGE UNDERSTAND THE T T P A, THOSE WERE ALL UNLAWFUL CHARGE KS
UNDERSTAND THE ACT, CORRECT? MR. STEIN: AND THE TOWING COMPANY DID
NOT NEED TO PROVIDE THOSE SERVICES. NO CHARGE WAS CHARGED BECAUSE THE CAR
WAS DISABLED IN THE ACCIDENT AND THEY WERE UNABLE TO MOVE IT AROUND THE LOT AN
APPARENTLY THERE WERE REASONS TO MOVE IT AROUND THE LOT. THEY MOVED IT
AROUND THE LOT AND THAT COST TIME AN MONEY AND THEY CHARGED FOR IT. THE T T P
A MAY BAR THAT CHARGING FOR THAT SERVICE BUT THAT DOESN'T MEAN THE SERVICE
WASN'T PROVIDED. THE ARGUMENT I'M MAKING IS NOT THAT IT IS NOT A VIOLATION --
JUSTICE PATTERSON: WELL, IF THEY WERE TO SAY WE'LL KEEP THE
LIGHTS ON FOR TEN MINUTES WHILE YOU TAKE YOUR BELONGINGS OUT OF THE CAR AND THAT'S
NOT AN ALLOWED CHARGE UNDERSTAND THE T T P A YOU WOULD HAVE AN OFFENSE TO
A CFA CLAIM FOR A CHARGE OF KEEPING THE LIGHTS ON BECAUSE THE LIGHTS WERE ACTUALLY
ON STROOIN. MR. STEIN: IF THE DIRECTOR BROUGHT THE CLAIM
THEN NO. IF IT WERE BROUGHT AS A REGULATORY MATTER BY THE DIRECTOR TO ENFORCE
THE DIRECTION THEN NO. CHIEF JUSTICE RABNER: I DON'T UNDERSTAND
THE LIMITS OF YOUR ARGUMENT COULD THEY ADD A DOZEN CHARGES ANL SAY YOU RECEIVED
THESE SERVICES EVEN THOUGH WE ARE NOT ABLE TO CHARGE YOU FOR THEM SO YOU'RE UNABLE
TO COMPLAIN NOW YOU HAVE NO ASCERTAINABLE LOSS. MR. STEIN:
UNDERSTAND MY ARGUMENT THE PLAINTIFF WOULD BE BARRED FROM BRINGING A PRIVATE CAUSE
OF ACTION. JUSTICE ALBIN: THESE ARE I WILL LUS SORRY
CHARGES. FOR INSTANCE, I AM TALKING ABOUT THE PELLEGRINO CASE, THERE WAS A STORAGE
FEE THAT WAS PERMITTED, $120. MR. STEIN: YES.
JUSTICE ALBIN: THEN YOU ADD ON THIS YARD CHARGE THAT IS PROHIBITED UNDERSTAND THE
ACT AND YOU'RE SAYING THERE WAS A SERVICE, BUT THE SERVICE APPARENTLY WAS
A STORAGE FEE AND THE YARD CHARGE WAS JUST AN UNLAWFUL ADD ON AND NOW YOU'RE
CHARACTERIZING THAT AS A SERVICE. I AM JUST NOT UNDERSTANDING THIS.
MR. STEIN: SO THE INVOICE ATTACHED TO THE COMPLAINT DISCLOSES THAT THE YARD
CHARGE WAS CHARGED FOR A PARTICULAR REASON AND BECAUSE IT WAS IN EXCHANGE FOR A
PARTICULAR SERVICE. AS OPPOSED TO AND IN CON TRA DISTINCTION
TO THE STORAGE FEE WHICH IS JUST CHARGING FOR STORING THE VEHICLE IN THE
LOT THE YARD CHARGE WAS CHARGED BECAUSE THE CAR THEY WERE STORING WAS DISABLED
AND IN ORDER TO STORE THE CAR THAT WAS DISABLED AND CONTINUE TO RUN THE
BUSINESS, YOU HAVE GOT TO MOVE THE CAR AROUND THE LOT AND THAT MEANS THEY ARE LITERAL
LY GOING OUT TO THE CAR, HOOKING IT UP, TOWING IT FROM ONE SPOT TO ANOTHER AT
VARIOUS POINTS DEPENDING ON HOW LONG THEY HAVE TO STORE THE CAR.
JUSTICE FERNANDEZ-VINA: EVEN THOUGH THE SERVICE MAY HAVE BEEN PERFORMED IF THE
CHARGE FOR THAT SERVICE IS ILLEGAL IT DOESN'T RECTIFY THE SITUATION BY THE
FACT THAT YOU ACTUALLY PERFORMED THE SERVICE. MR. STEIN: I AM NOT
SUGGESTING THAT IT RECTIFIES IT. I AM SUGGESTING THAT A PLAINTIFF, A MROOIF
VAT PLAINTIFF CAN'T NECESSARILY BRING THAT CLAIM. CHIEF JUSTICE RABNER:
WE UNDERSTAND YOUR ARGUMENT. JUSTICE SOLOMON: CAN I ASK
ONE OTHER QUESTION ABOUT THAT? HAVEN'T WE ALREADY SAID A REGULA
TORY VIOLATION CAN GIVE RISE OR GIVES RISE TO A PRIVATE RIGHT OF ACTION
UNDERSTAND THE CFA? WE'VE ALREADY SAID THAT, HAVEN'T WE?
MR. STEIN: YES. JUSTICE SOLOMON: HOW CAN YOU SIT HERE AND
ARGUE THAT YOU CAN'T THEN? MR. STEIN: BECAUSE WHERE THE COURT
HAS SAID THAT A REGULATORY VIOLATION CAN GIVE RISE TO A CFA CLAIM STILL
REQUIRES THE PRIVATE PLAINTIFF WHO BRINGS A PRIVATE CAUSE OF ACTION TO SHOW AN
ASCERTAINABLE LOSS. JUSTICE SOLOMON: IS THAT AN ARGUMENT TO SAY
THIS IS NOT PROPERLY A CLASS CLAIM? MR. STEIN: YES.
JUSTICE SOLOMON: YOU'RE NOT ARGUING THE PLAINTIFF DOESN'T HAVE A RIGHT OF
ACTION YOU'RE ARGUING THAT IT'S NOT APPROPRIATE FOR CLASS CERTAIN,
CERTIFICATION. MR. STEIN: I ARGUED BEFORE THE TRIAL COURT B
BUT THE TRIAL COURT DENIED MY MOTION TO DISMISS. THE TRIAL COURT DID GRANT THE
MOTION TO STRIKE THE CLASS CLAIMS SO HERE ON APPEAL I AM ARGUING THAT IT CAN'T
PROCEED AS A CLASS CLAIM BECAUSE EVEN IF SHE MAY HAVE HAD ANOTHER CLAIM.
JUSTICE PATTERSON: PLAY THAT OUT BECAUSE OBVIOUSLY WE'VE
TALKED ABOUT TCCWNA AN THE ISSUES THAT MIGHT BE INDIVIDUALIZED IN TCCWNA BUT WHEN
YOU'RE TALKING ABOUT THIS TYPE OF CLAIM IN THE CFA CLAIM AND YOU CAN SEE
IT AS YOU HAVE TO THAT A REGULATORY VIOLATION CAN ARISE TO A CFA CLAIM, IF THE
CAUSE OF ACTION IS THE FACT OF THE CHARGE ITSELF, THAT'S THE -- AND THE
ASCERTAINABLE LOSS IS THAT WAS WAS CHARGED AND I AM NOT SAYING THAT'S A GOOD CLAIM
OR A BAD CLAIM BUT WE'RE TALKING ABOUT CLASS CERTIFICATION ISSUES HERE WHY IS
THAT NOT VERY EASILY DEALT WITH AS A CLASS IN THE SENSE THAT ANYBODY THAT HAD THAT
YARD CHARGE ON THERE IS PART OF THAT SUBCLASS IN THE CLASS.
MR. STEIN: BECAUSE UNDERSTAND MY ARGUMENT IT HAS TO BE -- WE WOULD HAVE TO FIGURE
OUT CLASS MEMBER BY CLASS MEMBER WHETHER OR NOT THEY WERE PROVIDED A SERVICE
IN EXCHANGE. FOR EXAMPLE WAS THE CAR DIS ANLD OR NOT. WAS
THE CAR MOVED AROUND THE LOT OR NOT IN EX CHANG FOR THE $40 YARD CHARGE.
JUSTICE PATTERSON: LET'S SAY THEORETICALLY A YARD CHARGE IN AND OF ITSELF
IN ADDITION TO A STORAGE CHARGE IS UNLAWFUL AND I AM NOT SAYING IT IS OR IT
ISN'T BUT JUST SAYING THAT IS UNLAWFUL JUST THE FACT OF THE CHARGES IS THE
REGULATORY VIOLATION WHY ISN'T THAT A GOOD CLASS? MR. STEIN:
BECAUSE THE INDIVIDUAL CLASS MEMBERS WON'T HAVE A PRIVATE CAUSE OF ACTION EVEN
IF THERE IS A REGULATORY VIOLATION. JUSTICE PATTERSON: YOU'RE
SAYING BECAUSE THEY CAN PROVE ASCERTAINABLE LOSS, BUT LET'S JUST SAY
HIEPLY THAT THE FACT OF THE CHARGE AND THE FACT THAT IT WAS CHARGED AND PAID IS
ASCERTAINABLE LOSS BECAUSE IT NEVER SHOULD HAVE BEEN CHARGE ND THE FIRST PLACE
THAT'S A GOOD CLASS IS IT NOT. MR. STEIN: IF THE COURT REJECTS
MY ARGUMENT THAT THERE IS ASCERTAINABLE LOSS NO MATTER WHETHER OR NOT A
SERVICE WAS PROVIDED IN EX CHANG OR NOT, THEN YES, BUT I AM ARGUING THAT THE COURT
SHOULD NOT ADOPT THAT POSITION. THE COURT SHOULD FIND THAT AN ASCERTAINABLE LOSS
IS ONLY FOUND IF THERE IS A LOST BENEFIT OF THE BARGAIN TYPE LOSS IN WHICH CASE
FIGURING OUT WHETHER EACH CLASS MEMBER DID OR DID NOT SUFFER.
JUSTICE ALBIN: HOW CAN THE CUSTOMER GET A BENEFIT OF THE BARGAIN WHEN THE CHARGE
IS UNLAWFUL? MR. STEIN: THE REASON IS BECAUSE THERE IS STILL
A SERVICE PROVIDED AND THE T T P A PROVIDES -- TRIES TO SMOOTH OUT THE EDGES.
TOWING COMPANIES ACROSS THE STATE PROVIDE PAN, A PANOPLY OF SERVICES AN THE
BACKGROUND TO THE T T P A IS THAT THE LEGISLATURE AN THEN THROUGH THE DIRECTOR TRY
TO SET A SCHEDULE OF THE MOST COMMON AMONGST THOSE SERVICES SO THAT YES, IN SOME
OUTLIER SCENARIOS THERE WILL BE SERVICES THAT A TORE WILL PROVIDE THAT WILL BE
BEYOND THE SCHEDULE AND THEY ARE BONA FIDE SERVICES, THEY WERE NECESSARY, THEY
COST THE TOWING COMPANY MONEY, TIME, MANPOWER, ETC., BUT THE T T P A TRIES
TO DO IS SAY THAT SO THAT FOR THE PROTECTION OF ALL OF US WE'RE GOING TO ADOPT
SORT OF A BASELINE OF WHAT IT IS THAT A TORE CAN AND CAN'T CHARGE FOR.
THE T T P A DOES NOT SAY THAT THE TOWING COMPANY THAT CHARGES AN ADDITIONAL CHARGE
BEYOND THE SCHEDULE IS NOT PROVIDING A BONA FIDE SERVICE THEY ARE JUST SAILING
AS A POLICY MATTER WE'RE NOT GOING TO LET TOWING COMPANIES CHARGE BEYOND
THAT AND THAT'S WHERE WE END UP HITH UPON THE ASCERTAINABLE LOSS QUESTION AN THEN
THE PREDOM NANLS QUESTION IN THE CLASS. CHIEF JUSTICE RABNER:
I AM GOING TO TRY TO BREAK IT DOWN IN SIMPLE LANGUAGE. YOUR POSITION IS IF A
TOE WER WAS NOT ALLOWED TO CHARGE FOR A CERTAIN ITEM BUT PROVIDED IT AN THEY
MADE THE CONSUMER PAY FOR AT THIS TIME, THE CONSUMER IS OUT THAT AMOUNT OF MONEY,
BUT YOU'RE SAYING THEY HAVEN'T SUFFERED A LOSS? MR. STEIN:
YES. CHIEF JUSTICE RABNER: OKAY. WE GOT IT. I WILL
GIVE YOU TWO MINUTES TO ADDRESS THE SURCHARGE ITEM ON THE KRED CARDS.
MR. STEIN: THANK YOU, YOUR HONOR. THE T T P A BY ITS TERM
REGULATES TOWING AND RELATED STORAGE SERVICES, DIRECTS THE DIRECTOR TO PROM
ULGATE A LIST OF TOWING AND RELATED STORAGE SERVICES FOR WHICH A TOW COMPANY CAN
CHARGE AND THAT'S EXACTLY WHAT THE DIRECTOR DID HE ISSUED A LAUNDRY LIST OF
TOWING SERVICES THAT THEY CAN CHARGE FOR. CREDIT CARD SURCHARGES ARE NOT
CHARGED IN EXCHANGE FOR TOWING AND RELATED STORAGE SERVICES. IT'S CHARGED IN EXCHANGE
FOR THE COST TO THE VENDOR OF ALLOWING MEEM TO USE A CREDIT CARD. THAT
IS NOT A TOW AND RELATED -- JUSTICE ALBIN: DOES THE T T P A PRO
HIBIT A CREDIT CARD SURCHARGE? MR. STEIN: NO.
CHIEF JUSTICE RABNER: ANYTHING YOU WOULD LIKE TO ADD? MR. STEIN:
THE LAST POINT THERE IS THAT CREDIT CARD SURCHARGES, THIS IS NOT A NEW ISSUE, THE
LEGISLATURE HAS CONSIDERED, IN THE LAST, PAST BARRING THE CREDIT CARD
SURCHARGES ACROSS THE MARKET. THOSE BILLS HAVE NOT PASSED. THERE IS NO REASON
TO READ INTO THIS PARTICULAR TOWING STATUTE A BAR TO CHARGING CREDIT CARD
SURCHARGES WHEN THE LEGISLATURE HAS CONSIDERED IT ELSEWHERE AS A GENERAL MATTER
SPECIFICALLY ABOUT CREDIT CARD SURCHARGES AN DECLINED TO PASS THAT LAW. HERE
WE'VE GOT A T T P A STATUTE ABOUT TOWING AN STORAGE CHARGES IT HAS NOTHING
TO DO WITH THE KRED CARDS. CHIEF JUSTICE RABNER: THANK YOU, MR.
STEIN. MR. HALPERN. MR. HALPERN: MAY IT PLEASE THE COURT,
I AM GOING TO TRY TO USE MY FIVE FREE UNINTERRUPTED MINUTES TO ADDRESS THE
MAIN FOUR ISSUES WHICH ARE THE ADMINISTRATIVE REMEDY, THE TORT CLAIM
IMMUNITIES, TCCWNA AND RETROACTIVITY. I WANT TO ADDRESS TCCWNA
FIRST BECAUSE I DISAGREE WITH MY COLLEAGUE JUSTICE PATH DESCRIBED WHAT THE
ELEMENTS OF TCCWNA WERE IN SPADS. IN THIS CASE THE PLAINTIFF IS NOT A CONSUMER
AS DEFINED IN TCCWNA. THERE ARE DIFFERENT DEFINITIONS OF A CONSUMER UNDER THE
CFA. UNDER TCCWNA, A CONSUMER IS ANY INDIVIDUAL WHO BUYS LEASES BORROWS
OR BAILS ANY MONEY PROPERTY OR SERVICE WHICH IS FOR HOUSEHOLD USE, ETC., ETC.
THERE WAS NO CONTRACT. THERE WAS NO AGREEMENT AND JUSTICE ALBIN, THERE IS
NO BAILMENT BECAUSE A BAILMENT REQUIRES A PERSON TO VOLUNTARILY TURN OVER POSSESSION OF
THEIR VEHICLE TO SOMEONE AND IF YOU LOOK AT THE CASE OF LA MRAS VERSUS 40
4 N J SUPER 584 THAT DEFIANCE WHAT A BAILMENT IS SO WHEN THERE IS NON-CONSENSUAL
TOWING THERE IS NO BAILMENT SO I DISAGREE THAT TCCWNA IS APPLICABLE AND
I DON'T BELIEVE THAT A RECEIPT OR AN INVOICE IS A NOTICE OR THE DISPLAY OF A SIGN
IN VIOLATION OF TCCWNA. THE NEXT ISSUE IS TORT CLAIM IMMUNITY THAT
WE ASSERTED AND WE -- IN OUR CASE, IN B N C'S CASE, WE ARE COMPLETELY UNDERSTAND
THE DRISHGS AN CONTROL OF THE THE CITY OF NEWARK. WE HAVE AN ALMOST 60 PAGE CONTRACT
WITH THE CITY OF NEWARK THAT DESCRIBES EVERYTHING WE CAN DO, CAN'T DO AND
IT INCLUDES -- THERE ARE REMEDIES IN THERE WITH REGARD TO BILLING PRACTICES, THERE IS
TESTIMONY FROM THE POLICE DEPARTMENT THAT THEY DEAL WITH US EVERYDAY, THEY
DEAL WITH BILLING ISSUES ALL THE TIME AND THAT THEY APPROVED THE BILLS THAT WE
PROVIDED. THE ENABLING STATUTE THAT ALLOWS A PRIVATE TOWING
COMPANY TO PERFORM THE POLICE FUNCTION, B&C TOWING IS THE POLICE TOW TRUCK THAT'S
WHAT B&C TOWING IS. IT SAYS IT MUST BE UNDER THE MUNICIPALITIES DIRECTION
AN CONTROL. THE 52-PAGE CONTRACT IS AT P A 76 TO 122 WHICH SETS FORTH EVERYTHING.
WE ARE SO LINKED TO THE POLICE DEPARTMENT THE CONTRACT REQUIRES WE HAVE A
COMPUTER SYSTEM LINKED UP TO THE POLICE DEPARTMENT. WE CAN'T TOW UNLESS THE
POLICE OFFICER PROVIDES US A TOW SHEET AND FILLS OUT A TOW SHEET. THERE IS ESSENTIAL
LY NOTHING THAT WE CAN DO ADDITIONALLY UNDER THE ENABLING STATUTE THE
MUNICIPALITY IS REQUIRED TO SET FORTH A SCHEDULE OF FEES AN THEY DID THAT IN OUR
CASE AND THEY CONTROLLED THE CHARGES UNDER THE CONTRACT, PAGE 107 A. THERE ARE
PROVISIONS FOR THE ADMINISTRATION OF THE FEES AND THERE ARE PENALTIES IMPOSED BY
THE MUNICIPALITY AGAINST B&C TOWING IF THEY CHARGE FEES THAT THE MUNICIPALITY
DOES NOT ALLOW. THE OTHER POINT I WOULD MAKE IS THAT THE FEE
THAT WE CHARGE, THE $25, WHICH WAS REFERRED TO AS AN ADMINISTRATIVE FEE, THAT WAS
FOR WORK THAT NEWARK HAD BEEN DOING, SHOULD BE DOING AND THEY ASKED BK TO DO IT.
HAD NEWARK DONE IT ITSELF AND CHARGED MISS PISACK THE $25 WE WOULDN'T BE
HERE TODAY, BUT, INSTEAD, THEY SAY YOU DO IT, YOU GET THE $25 FOR PERFORMING THE
WORK AND WE DID IT AT THEIR DIRECTION UNDER THEIR CONTROL, WITH THEIR
KNOWLEDGE AND THE PERSON RESPONSIBLE SAYS, WE COULD CHARGE IT UNDER NEWARK'S ORDINANCE.
I AM GOING TO GO WITH RESPECT TO RETROACTIVITY OF THE AMENDMENT
THE BILL SAYS, IN THE INTRO DOCTOR RELANGUAGE, THREE TIMES IT USES THE WORD
CLARIFIES, THIS BILL CLARIFIES, CLARIFIES, CLARIFIES. IT'S PRESUMED THAT THE
LEGISLATURE UNDERSTAND WHAT THE EXISTING LAW IS WITH REGARD TO LEGISLATION THAT
IT DOOMENTS AN WHEN IT USES THE WORD CLARIFIES IT IS EVIDENCING ITS
INTENTION THAT IT SHOULD BE RETROACTIVE. JUSTICE LA VECCHIA: WELL
THE LEGISLATURE KNOWS THAT IN THE PAST CLARGS HAS BEEN GIVEN RETROACTIVE
APPLICATION SO SIMPLY BECAUSE THEY SAY IT DOESN'T MEAN THAT IT IS IT. WE HAVE ALWAYS
LOOKED TO SEE WHETHER, IN FACT THE SO-CALLED CLARIFYING AMENDMENTS ARE, IN FACT,
CLARIFYING THINGS THAT WERE ALREADY PRESENT OR MISS UNDERSTOOD IN THE
ORIGINAL STATUTE AS OPPOSED TO CHANGING ESSENTIAL TERMS IN THE STATUTE. THE ARGUMENT
BEING MADE HERE IS THAT THIS NEW AMENDMENT HAS DRAMATICALLY CHANGED THE
ORIGINAL STATUTE FROM WHAT IT WAS TO SOMETHING DIFFERENT; THAT'S NOT CLARGS UNDER
OUR PAST INTERPRETATION OF WHEN LEGISLATION IS CLARIFYING IN NATURE.
MR. HALPERN: WELL, I THINK THAT THE LAW IS THAT THE LEGISLATURE
CAN EXPRESSLY OR IMPLIEDLY INDICATE THAT IT IS RETROACTIVE ON THE FIRSTHAND AND,
IN THIS CASE, BY USING THE WORDS CLARGS, THEY USE THE WORDS CLARGS INSTEAD OF
SAYING APPLY THIS RETRO ACT I HAVELY. JUSTICE LA VECCHIA: WHY DID
THEY NOT SAY THAT WHEN THEY SET THE EFFECTIVE DATE OF THE STATUTE?
MR. HALPERN: I DON'T KNOW. WHAT I AM SAYING IS THAT I BELIEVE THAT THE INTENT
BECAUSE THEY USE THE WORD CLARIFY AND THEY UNDERSTOOD USING THE WORD CLARIFY
MEANS RETROACTIVE APPLICATION IT'S ESSENTIALLY THE SAME THING.
JUSTICE ALBIN: THAT'S NOT IN THE STATUTE. YOU'RE TALKING IN THE STATEMENT, IN
THE COMMITTEE STATEMENT? MR. HALPERN: CORRECT, IN THE INTRO
DUCTORY LANGUAGE. JUSTICE ALBIN: JUSTICE LA VECCHIA SAID IF
THEY WANTED IT TO BE RETROACTIVE WHY DIDN'T THEY PUT IN THE STATUTE THAT
IT IS EFFECT I IMMEDIATELY. MR. HALPERN: BECAUSE WHEN YOU'RE LOOKING
FOR RETROACTIVITY YOU CAN LOOK INTO THE LEGISLATIVE HISTORY AN WHAT WAS
THE INTENTION SO I THINK THAT BY LOOKING AT THAT, THEY ARE INDICATING THEY WANT
IT TO BE APPLIED RETROACTIVELY. WITH REGARD TO THE CHANGES
-- CHIEF JUSTICE RABNER: CAN I ASK A QUESTION ABOUT THE
CHANGES? THERE IS A REBL ABDOMINAL PRESUMPTION NOW THAT THESE
ARE REASONABLE AS STATED IN THE LAST CLAUSE OF THE AMENDMENT. IS
THAT SUBSTANTIVE AND IS THAT NEW CLOP UP TOP LE BUT ABDOMINAL CLOP.
MR. HALPERN: NO, I DON'T THINK SO. CHIEF JUSTICE RABNER: IT EXISTED
BEFORE? MR. HALPERN: WELL, LET ME EXPLAIN SOMETHING TO YOU
BECAUSE IT'S GOING TO TIE BACK INTO THE ADMINISTRATIVE REMEDY ARGUMENT IF I MAY
DIGRESS FOR A MINUTE AND ARGUE MY -- THE ISSUE ON THE ADMINISTRATIVE RE
MEDY. I AGREE THAT THERE IS A REQUIREMENT TO FIRST GO TO THE
TOWING COMPANY BECAUSE IT SAYS "SHALL", BUT I GO FURTHER THAN MY COLLEAGUE AN SAY
THAT AFTER THAT YOU MUST GO TO THE DIRECTOR AND THE REASON I SAY THAT IS YOU
HAVE TO LOOK AT THE ENTIRE STATUTORY AND REGULATORY SCHEME THAT WAS ADOPTED.
AND IMPORTANTLY -- FIRST OF ALL, THE N.J.S.A. 56:13-18 CREATES A TOWING AN STORAGE
ADMINISTRATION FUND FOR USE BY THE DIVISION. WELL, THAT
MONEY SHOULD BE USED FOR ADMINISTERING THESE CLAIMS. THE
N.J.S.A. 56:13-14 THE STATUTE SAYS THAT THE DIRECTOR SHALL ESTABLISH A SCHEDULE
OF PRIVATE PROPERTY TOWING CHARGES. THE DIRECTOR DID NOT ESTABLISH A SCHEDULE.
WHAT HE DID INSTEAD WAS ADOPTED A GENERAL FRAMEWORK IN WHICH THEY SAID THAT FEES
FOR PRIVATE TOWING AND OTHER NON-CONSENSUAL ARE PRESUMED
UNREASONABLE IF THEY ARE, IN ONE INSTANCE MORE THAN 25 PERCENT OF THE CHARGE IN
THE MUNICIPALITY OR MORE THAN 50 PERCENT OF THE CHARGE UNDER OTHER CIRCUMSTANCES
SO WE HAVE MANY OCCASIONS WHERE THE LEGISLATURE DOES NOT HAVE EXPERTISE
IN AN AREA AND THEY DELEGATE THE EXER EXPERTISE TO A DIVISION, TO THE
ADMINISTRATIVE AGENCY. AND HERE, THEY ARE ESSENTIALLY TELLING THE DIRECTOR YOU
NEED TO BECOME FAMILIAR WITH WHAT THE RATES ARE IN THE MUNICIPALITIES AND
ESTABLISH THE RATES. SO THE DIRECTOR KEPT FOR HIMSELF THE ABILITY
TO LOOK AT THE SURROUNDING MUNICIPAL RATES AND DETERMINE WHETHER THEY EXCEEDED
THAT 25 OR 50 PERCENT AND THERE ARE NUMEROUS, NUMEROUS INSTANCES IN OUR
REGULATIONS WHERE THE LEGISLATURE DIRECTS THE ADMINISTRATIVE AGENCIES TO
BECOME EXPERT. WHAT DOES KOSHER MEAN, THE LEGISLATURE DIDN'T
LIST WHAT KOSHER MEAT IS THEY SAID YOU FIGURE OUT WHAT KOSHER OR HALL LATERAL MEAT
IS. WHAT ARE HOME IMPROVEMENT PRACTICES THAT ARE PROPER, YOU
FIGURE OUT WHAT THE APPROPRIATE HOME IMPROVEMENT PRACTICES THAT ARE PROPER.
IF YOU TAKE A LOOK AT THE LEMON LAW, THE LEMON LAW SPECIFICALLY CREATES
AN AGENCY AND A DETERMINATION BY THE AGENCY AND AN ADMINISTRATIVE REMEDY,
BUT IT ALSO SPECIFICALLY SAYS ONE OF YOUR OTHER REMEDIES IS TO GO TO SUPERIOR COURT.
THIS DOES NOT SAY ONE OF YOUR REMEDIES IS TO GO -- INITIALLY, TO SUPERIOR COURT.
ALSO, WHEN YOU READ THE STATUTORY LANGUAGE REGARDING THE --
WHAT IT SAYS IS SHALL AND WHAT IT SAYS IS MAY, THE MAY APPLIES TO WHAT REMEDIES
THE DIRECTOR MAY APPLY IN ADDITION TO THE REMEDIES UNDERSTAND THE CONSUMER FRAUD
ACT, THE DIRECTOR MAY ALSO IMPOSE OTHER REMEDIES SO I THINK IF YOU LOOK AT THE
BROAD SCOPE OF THE ENTIRE ENACTMENT AND WHAT REGULATIONS THE DIRECTOR
IMPLEMENTED, IT'S CLEAR THAT THE DIRECTOR WAS KEEPING FOR HIMSELF HOW TO DETERMINE
EXCESSIVE AND UNREASONABLE FEES BASED UPON WHAT THE GOING RATES WERE IN DIFFERENT
MUNICIPALITIES. EVEN UNDER THE STATUTORY SCHEME, 56:13-23,
WHICH SAYS IN ADDITION TO ANY PENALTIES OR OTHER REMEDIES PROVIDED, THE
DIRECTOR MAY ORDER A TOWING COMPANY THAT HAS BILLED FOR NON-CONSENSUAL TOWING OR
RELATED STORAGE AN AMOUNT DETERMINED BY THE DIRECTOR TO BE UNREASONABLE
TO REIMBURSE FOR THE EXCESS COSTS WITH INTEREST SO THE APPELLATE DIVISION SAID
THAT THIS EVIDENCE THAT THERE WASN'T A MANDATORY REQUIREMENT OF FIRST GOING
TO THE DIRECTOR, THIS PROVISION TALKS ABOUT THE DIRECTOR AWARDING THE REMEDY.
AND IT SAYS IN ADDITION TO THE CFA AND COMMON LAW REMEDIES, HE MAY ALSO AWARD
OTHER REMEDIES? CHIEF JUSTICE RABNER: CAN YOU CLARIFY YOUR
ARGUMENT FOR US? ARE YOU SAYING A CLAIMANT CANNOT GO TO THE
SUPERIOR COURT OR CAN GO TO SUPERIOR COURT AS A SECOND STEP? MR.
HALPERN: SECOND STEP. IT'S ESSENTIALLY A THIRD STEP. I BELIEVE IT IS CONTACT
THE TOWING COMPANY, AS MR. STEIN ARGUED AND TRY TO WORK IT OUT. IF THAT
DOESN'T WORK, GO TO THE DIRECTOR AND THE -- I KNOW THE ATTORNEY GENERAL'S ARGUMENT
IS OH, THIS IS GOING TO CREATE A FLOOD OF CASES, BUT, YOU KNOW, SOMETIMES THE
JOB OF COURTS OR SOMETIMES THE JOB OF ADMINISTRATIVE AGENCIES IS TO DEAL
WITH WORK. CHIEF JUSTICE RABNER: SO YOU'VE GIVEN US THIS
OVERVIEW NOW AS AN EFFORT TO RESPOND TO THE RETROACTIVITY QUESTIONS WHERE WE STARTED.
ARE YOU TELLING US THERE IS NOTHING OF A SUBSTANTIVE NATURE
THAT IS NEW IN THE 2018 AMENDMENT? MR. HALPERN: YOUR HONOR, THE
WAY YOU PHRASED THE QUESTION WAS THE REBUTTAL PRESUMPTION OF THE FEES AND
IS THAT A SUBSTANTIVE CHANGE AND I KIND OF THREW YOU BACK TO MY ARGUMENT.
THE WAY I TIE THOSE TWO IN IS NO, IT'S NOT A SUBSTANTIVE CHANGE OF THE LAW
BECAUSE THE DIRECTOR KEPT FOR HIMSELF A DETERMINATION BASED ON THIS AMORPHOUS --
A LITTLE AMORPHOUS CONCEPT OR A CONCEPT THAT HE WAS SUPPOSED TO LEARN ABOUT
THE FEES IN THE LOCAL MUNICIPALITIES AND DETERMINE WHETHER THOSE FEES ARE
REASONABLE AND WITHIN THE 25 AND 50 PERCENT RANGE SO I DON'T THINK THAT IT IS A
SUBSTANTIVE CHANGE TO THE LAW. JUSTICE ALBIN: I AM TRYING TO UNDERSTAND
YOUR ARGUMENT. UNDERSTAND THE PRIOR LAW BEFORE THIS
AMENDMENT, IT IS MY UNDERSTANDING THAT THE DIRECTOR WAS -- HAD THE AUTHORITY TO
SET FORTH A PERMISSIBLE AN IMPERMISSIBLE CHARGES AN THAT THE MUMENTS WERE OUT OF
THE PICKET ON THAT, AM I WRONG UNDER THE T T P A, PRIOR VERSION.
MR. HALPERN: I BELIEVE THAT THE MUNICIPALITY COULD ALWAYS SET FORTH THE
CHARGES AND AS LONG AS THOSE CHARGES FELL WITHIN THE CONFINES OF THOSE
PROVISIONS OF THE STATUTE AN THE REGULATION THAT THEY WERE PERMISSIBLE.
JUSTICE ALBIN: YOU'RE SAYING THAT THE MUNICIPALITY COULD SET FORTH A CHARGE
THAT WAS DEEMED IMPERMISSIBLE BY THE DIRECTOR? MR. HALPERN:
NO, I DO NOT SAY THAT THEY COULD SET FORTH A CHARGE THAT WAS IMPERMISSIBLE BY THE
DIRECTOR. JUSTICE PATTERSON: DON'T YOU THINK YOUR
CLIENTS ARE A WHOLE LOT BETTER OFF RIGHT NOW THAN THEY WERE IN TERMS OF THIS AMENDMENT?
YOU DON'T THINK YOUR CLIENTS ARE A WHOLE LOT BETTER OFF RIGHT
NOW THAN THEY WERE BEFORE THIS AMENDMENT IN TERMS OF BEING ABLE TO GO IN IF THERE IS
A CLAIM AGAINST THEM WHETHER IT IS A CLASS OR INDIVIDUAL CLAIM AND GET IT
THROWN OUT ON SUMMARY JUDGMENT? MR. HALPERN: I DON'T THINK ON SUM
MARY JUDGMENT BECAUSE ALL IT DOES IS CREATES A REBUTTAL PRESUMPTION THAT
THE FEE IS SO IT'S JUST A MATTER OF -- WHAT IT DOES IS JUST CHANGE THE PROOFS BUT
NOT INTANL. I THINK IT CHANGES THE PROOFS A LITTLE BIT. JUSTICE
PATTERSON: IT STRENGTHENS YOUR HAND? MR. HALPERN: WE GET
THE REBUTTAL PRESUMPTION THAT THE FEES ARE LEGAL IF THEY ARE CHARGED PURSUANT
TO AN ORDINANCE. AND LET ME ADDRESS -- JUSTICE LA VECCHIA: PURSUANT
TO AN ORDINANCE OR PURSUANT TO THE DIRECTOR'S FEE SCHEDULE?
MR. HALPERN: IF IT'S CONSISTENT WITH THE ORDINANCE. I WOULD SAY IT CAN'T CONFLICT
WITH THE -- IT CAN'T BE A DIRECT CONFLICT WITH THE REGULATIONS.
JUSTICE ALBIN: LET'S TAKE THE ADMINISTRATIVE FEE, THE ADMINISTRATIVE FEE
UNDERSTAND A T T P A BEFORE THIS AMENDMENT WAS PROHIBITED, RIGHT?
MR. HALPERN: YES. JUSTICE ALBIN: THAT $50. MR.
HALPERN: YES. JUSTICE ALBIN: NOW IT'S PERMISSIBLE BECAUSE THE
MUNICIPALITY IS ABLE TO ENFORCE ITS OWN FEE SCHEDULE, CORRECT? MR.
HALPERN: I WOULD SAY THAT THE MUNICIPALITY CANNOT ADOPT AN ORDINANCE THAT CONFLICTS
DIRECTLY WITH THE STATUTE. JUSTICE ALBIN: SO UNDER THE AMENDMENT,
IS THIS ADMINISTRATIVE FEE PERMISSIBLE OR IMPERMISSIBLE? MR.
HALPERN: A STRAIGHT OUT ADMINISTRATIVE FEE WOULD BE IMPERMISSIBLE IF IT IS AN
ADMINISTRATIVE FEE AS DEFINED IN THE STHAT TUT AND THE REGULATIONS. IN OUR
CASE, FOR BK, ALTHOUGH WE CALLED IT AN ADMINISTRATIVE FEE, IT WAS DOING WORK THAT
THE MUNICIPALITY ASKED US TO DO THAT NEWARK COULD HAVE DONE ITSELF, THAT
HAD NEWARK DONE IT, THEY COULD HAVE CHARGED AND THEY WOULD NOT BE SUBJECT TO A
LAWSUIT BECAUSE THEY HAVE IMMUNITY CLOP UP TOP BK CLOP. JUSTICE
SOLOMON: HAD NEWARK PREVIOUSLY DONE THAT SERVICE AN SATISFIED ASSESSED THAT CHARGE?
MR. HALPERN: WHILE THEY WERE CHARGING $25, THEY ARE NOW
CHARGING $50. JUSTICE SOLOMON: I AM GOING BACK IN TIME.
BEFORE THIS EVER HAPPENED AND YOU ARE SAYING YOU TOOK OVER AN ADMINISTRATIVE
RESPONSIBILITY THAT THE CITY OF NEWARK HAD AND COULD HAVE BUILD FOR, BEFORE YOU
TOOK OVER THOO SERVICE DID THE MUNICIPALITY PERFORM THAT SERVICE AND
BILL FOR IT? MR. HALPERN: NO, THE MUNICIPALITY DID NOT PERFORM
THAT SERVICE, THEY REQUIRED -- THEY PILL. CHIEF JUSTICE RABNER:
DID THEY BILL FOR THAT SERVICE. MR. HALPERN: THEY DIDN'T
PERFORM IT OR BILL FOR IT. THEY CALLED US TO PERFORM IT. JUSTICE
SOLOMON: BEFORE THEY TOLD YOU, PEOPLE WHO WERE TOLD DIDN'T GET THAT $25 ADMINISTRATIVE
FEE FOR WHATEVER WAS BEING DONE BY THE MUNICIPALITY ADMINISTRATIVELY.
MR. HALPERN: LET ME CLARIFY. JUSTICE SOLOMON: PLEASE.
MR. HALPERN: NEWARK WAS CHARGING A $25 ADMINISTRATIVE FEE
AND THEY WERE NOT DOING ANYTHING. THEY WERE JUST CHARGING A $25 ADMINISTRATIVE
FEE. AFTER THE CONTRACT EXPIRED, NEWARK SAID TO US, WE WANT YOU TO DO THIS
WORK THAT IS NOT UNDER THE EXISTING CONTRACT. WE WANT YOU TO PERFORM ADDITIONAL
SERVICES. WE SAID OKAY, WE'RE GOING TO CHARGE $25 UNDER THE ORDINANCE AND
NEWARK SAID OKAY. SO WE STARTED DOING THAT WORK. WE STOPPED CHARGING THE ADDITIONAL
$25 AND NOW NEWARK CHARGES THE ADDITIONAL $25 AND OUR POSITION IS WE -- HAD
NEWARK DONE IT, EVERYTHING WOULD HAVE BEEN FINE, THERE COULDN'T BE A LAWSUIT AGAINST
NEWARK. THEY JUST TOLD US TO DO IT AND THEY SAID OKAY, YOU CAN CHARGE FOR DOING
THIS EXTRA WORK AND THE WAY IT WORKS IS WHEN SOMEONE WANTS TO RETRIEVE THEIR
CAR THEY HAVE TO GO DOWN TO THE NEWARK POLICE DEPARTMENT AND GET A RELEASE FORM
AFTER 72 HOURS SO I MEAN NEWARK CAN JUST DO THE WORK WHEN THE PEOPLE ARE
DOWN THERE, YOU KNOW, AT THE OFFICE, BUT THEY DIRECTED BK TO PERFORM THAT WORK.
CHIEF JUSTICE RABNER: BACK TO YOUR IMMUNITY ARGUMENT YOU MADE
A STRONG STATEMENT THAT TOE ERS ARE ACTING WORKING CLOSELY WITH THE MRILS AND ONLY
TOWING CARS AFTER THEY'VE BEEN DIRECTED BY THE POLICE IN THE WAY THAT YOU
DESCRIBED. THIS CASE IS ABOUT BILLING, THE BILLING AND NOT
THE TOWING. HOW IS THAT SUPERVISED BY THE POLICE?
MR. HALPERN: I THINK I DID MENTION THAT IT IS SUPERVISED BY THE POLICE DEPARTMENT.
FIRST OF ALL, IN CONNECTION WITH THE SPECIFIC FEES IN THIS CASE, THE POLICE
DEPARTMENT WAS AWARE OF THEM. THE PERSON RESPONSIBLE FROM THE VEHICLE SQUAD OR
THE CAR SQUAD IN NEWARK WAS AWARE OF THE CHARGES THAT B&C TOWING. PURSUANT
TO THE STATUTES THAT WERE IN EFFECT AND HAVE NOT BEEN REVOKED OR RESCINDED, WHEN
A MUNICIPALITY ALLOWS A PRIVATE TOWING COMPANY TO PERFORM THE POLICE
FUNCTION, THE MUNICIPALITY MUST, IT ACTUALLY SAYS SHALL CREATE, ESSENTIALLY ITS
OWN ADMINISTRATIVE REMEDY SO THEY HAVE, IN THE POLICE DEPARTMENT, IF THERE IS AN
ISSUE WITH THE CHARGES A CONSUMER CAN GO TO THE POLICE DEPARTMENT AND THEY
SUPERVISE THE CHARGES THAT BK IS TOWING. AND I ASKED SERGEANT LA SO HOE OF THE
POLICE DEPARTMENT HAD THAT EVER HAPPENED AND THEY SAID YES AND SPECIFICALLY
ABOUT THE CHARGES THAT ARE AT ISSUE IN THIS CASE, HAVE THEY EVER BEEN CONTESTED,
YES, AND WHAT IS NEWARK'S POSITION, NEWARK'S POSITION IS THOSE CHARGES ARE
PERMISSIBLE UNDER OUR ORDINANCE AND ARE YOU THE PERSON RESPONSIBLE ON BEHALF OF
NEWARK FOR INTERPRETING THE ORDINANCE AS TO WHAT FEES CAN BE CHARGED UNDER YOUR
ORDINANCE AN HE SAYS YES, I'M THE PERSON RESPONSIBLE FOR DETERMINATION IT.
UNDER SECTION 7.2 OF THE CONTRACT, WHICH I MENTIONED, IT SETS
FORTH THAT NEWARK CAN SUPERVISE OUR COSTS AND IF THEY DETERMINE THAT WE ARE CHARGING
IN EXCESS OF THE AMOUNT ALLOWED BY THE CITY OF NEWARK, THEY CAN IMPOSE PEJTS,
INTANL HIGHER THAN UNDERSTAND THE CONSUMER FRAUD ACT SO NEWARK DOES OVERSEE WHAT
IS GOING ON WITH THE BILLING. THEY DON'T -- I AM NOT SAYING THAT THEY DIRECT
IT. THEY DON'T PREPARE THE BILL FOR US. WE PREPARE THE BILL.
JUSTICE ALBIN: HOW DOES THE FACT THAT A LIEUTENANT IN A NEWARK POLICE DEPARTMENT
MAY NOT BE ENFORCING THE LAW A STATE LAW SOMEHOW CONVERT YOUR TOWING COMPANY
INTO AN AGENT OF THE MUNICIPALITY; THAT'S WHAT I AM TRYING TO UNDERSTAND?
MR. HALPERN: I THINK THOSE ARE TWO DIFFERENT ISSUES?
JUSTICE ALBIN: YOU'RE CLAIM IMMUNITY. MR. HALPERN: BECAUSE WE'RE
UNDERSTAND -- JUSTICE ALBIN: IF YOU'RE CHARGING AN UNREASONABLE
FEE, HOW DO YOU GET TORT CLAIM IMMUNITY FROM THAT? HOW DO YOU
BECOME AN AGENT OF NEWARK BY CHARGING THESE UNREASONABLE FEES?
MR. HALPERN: BECAUSE THE ENABLING STATUTE FIRST SAYS WE CAN ONLY ACT UNDERSTAND
THE DIRECTION AND CONTROL OF THE POLICE DEPARTMENT OF THE CITY OF NEWARK. OUR
CONTRACT SETS A 52-PAGE CONTRACT SETS FORTH AND GOVERNS VIRTUALLY EVERYTHING THAT
WE DO AND THAT JUST THOSE COURTS HAVE TO GIVE DEFENSE TO DEFERENCE TO AN ADMIN
ISTRATIVE AGENCIES INTERPRETATION MUCH ITS OWN REGULATIONS COURTS ALSO HAVE TO GIVE
DEFERENCE TO THE CITY OF NEWARK IN ITS INTERPRETATION OF ITS OWN ORDINANCES.
CHIEF JUSTICE RABNER: IS THERE ANYTHING ELSE YOU WOULD LIKE
TO PRESENT? MR. HALPERN: THAT IS ALL, YOUR HONOR, THANK YOU.
THE COURT: THANK YOU, MR. GOOEHALPERN P THE COURT:
MR. GUY KOEB A. TOERP ATTORNEY MATTHEW GUY A KOEB ON BEHALF OF OF GARDEN STATE TOGETHER
ASSOCIATION. I KNOW MY TIME IS LIMITED. THE FIRST ISSUE IS THE P IMMUNITY ISSUE, AS
WE POINTED OUT IN OUR BRIEF AND I THINK WE HAVE TO START HOW DO TOGETHER COMPANIESES GET
HIRED. HOW DO THE MUNICIPALITIES COUNTIES PUT OUT REQUESTS FOR BIDS AND ASK TOGETHER
COMPANIES TO AN ACT IN THEIR INSTEAD FOR POLICE SERVICES. WHETHER IT'S THE TOWNSHIP OF
WAYNE, THE CITY OF NEWARK, THEY, THE MUNICIPAL ENTITY, THE GOVERNING BODY HIRES THESE
TOGETHER COMPANIES AND THEY HAVE RESTRICTIONS YOU HAVE TO HAVE A TOGETHER YARD SO CLOSE
YOU HAVE TO HAVE RESPONSE TIMES IN SO MANY MINUTES ET CETERA SO THEY'RE HIRED BY THE
MUNICIPAL ENTITY TO ACT IN THE MUNICIPAL'S INSTEAD. IF A POLICE DEPARTMENT HAD ITS OWN
TOW TRUCK AND OWN TOWER AND THEY WENT OUT YOU WOULDN'T BE HERE. SO THESE TOGETHER TOWING
COMPANIES ARE ACTING ON BEHALF OF THE MUNICIPALITY. THEY'RE TOWING CARS AWAY FROM
FIRE HIGH DRANTS, CARS THAT ARE IN ACCIDENTS, IMPOUNDED BECAUSE OF DRUGS OR DWIS AND
THEY'RE NOT DOING IT ON THEIR OWN BEHEST THEY DO IT WHEN THE POLICE CALL THEM. SO THEY'RE
APPOINTED BY THE MUNICIPALITY AND WHEN YOU LOOK AT IT AND I THINK THAT'S WHY I BELIEVE
THEY HAVE IMMUNITY. THEY'RE ACTING IN THE INSTEAD OF THE MUNICIPALITY AND ALI ASK IS
JUST THINK IF THE MUNICIPALITY HAD ITS OWN TOW TRUCK AND OWN TOWING OPERATOR WE WOULDN'T
BE HERE. CHIEF JUSTICE RABNER: WE'RE TALKING ABOUT FEES IN THIS CASE NOT
ABOUT THE ACTIVE TOWING. APPELLANT: APPELLANT: THE FEES R
IF THE MUNICIPALITY IMPOSED THE FEES WE WOULDN'T BE HERE. THESE ARE SERVICES BEING RENDERED.
THIS IS A PUBLIC SAFETY FUNCTION TO REMOVE DABLD VEHICLES WHETHER THEY'RE IN ACTIVE OR
NOT FROM THE ROADWAY TO PROTECT THE CITIZENS SO THEY ARE PERFORMING A SERVICE AND THE
BILL IS GENERATED FOR THE SFRS THAT THEY ARE RENDERING. CHIEF JUSTICE RABNER:
JUSTICE ALBIN: ARE YOU SAYING THEY ARE RENDERED THE ACTS OF THE PC P A IN
ACTIVE. I'M WONDERING IF YOUR IMMUNITY ARGUMENT WERE CORRECT HOW WOULD YOU ENFORCE THE
P T P A. UNDER THE LAW AS IT WAS BEFORE THE AMENDED ACT, TELL ME ABOUT HOW WOULD YOU
BE ABLE TO ENFORCE THE P T P A IF THE TORT CLAIMS ACT SUPERCEDED. APPELLANT:
APPELLANT: WHETHER IT'S THE MUNICIPALITY, TALKING ABOUT MUNICIPALITIES,
CITIES, TOWNS, BORES, ET CETERA, THE TOWER WHO'S APPOINTED BY THE MUNICIPAL ENTITY HAS
TO COMPLY WITH THE MUNICIPAL ORDINANCE THAT SETS FORTH THE TOWING CHARGES. IF THEY STARTED
ACTING OUTSIDE THE BOUNDS OF WHAT THE MUNICIPALITY APPOINTED THEM TO, THEN THEY
ABSOLUTELY COULD BE SUED BUT IN THIS INSTANCE IF THEY ARE BEING ASKED TO PERFORM A SERVICE
ON BEHALF OF THE MUNICIPALITY, THEY'RE FOLLOWING THE MUNICIPAL ORDINANCE THAT'S BEEN ENACTED
BY THE GOVERNING BODY AND THEY'RE COMPLYING WITH THAT SERVICE THAT WOULD BE THE IMMUNITY
THAT THEY'D BE AFFORDED. JUSTICE ALBIN: YOU'RE SAYING IF THE ORDINANCE
PERMITTED A CHARGE THAT DIRECTLY CONFLICTED WITH THE P T P A, THAT THE MUNICIPAL ORDINANCE
WOULD GIVE IMMUNITY TO THE VIOLATION OF STATE LAW. APPELLANT:
APPELLANT: I DONTS THINK THAT THAT WOULD BE ACCURATE. I DON'T THINK IT WOULD GIVE
IMMUNITY TO VIOLATION OF STAY LAW. I THINK STATE LAW TRUMPS AN ORDINANCE. I THINK IN
THIS INSTANCE WHEN YOU'RE DOING POLICE SERVICES WE'RE NOT TALKING ABOUT PRIVATE TOES
WE'RE TALKING ABOUT POLICE SERVICES YOU'D LOOK TO THE ENABLE LINK ORDINANCE AND IT SETS
FORTH THE ORDINANCE. WHEN THE REGULATION WAS PASSED, THE DICHOTOMY IS NOT IN THE STATUTE.
THE STATUTE DOESN'T TALK ABOUT ACCIDENT VERSUS NON-ACCIDENT AND IF YOU LOOK AT THE ENABLING
WITH THE STATUTE THEY HAVE A WHOLE LIST OF WHAT YOU CAN CHARGE. THAT'S NOT AN ENABLING
ING STATUTE. THAT WAS CORRECTED BY THE DIRECTOR SO WHEN THE AMENDMENT WAS CODIFIED IN
DECEMBER OF 2018 IT TALKED ABOUT THE CLARIFICATION AND ONE OF THE IMPORTANT THINGS
THAT THEY CLARIFIED IS THEY CITED WHEN THEY DEFINED THE WORD TOW IT SAYS IT ENCOMPASSES
FOR ALL TYPES OF TOES. THEY MADE IT CLEAR IT WASN'T AN ACCIDENT VERSUS NON-ACCIDENT.
IT WAS FOR TOWING SERVICES, WE'RE TALKING ABOUT NON-CONSENSUAL LAW ENFORCEMENT TOWS,
SO WHEN YOU LOOK AT THE OTHER STATUTES THAT ENABLE TOWNS TO SET UP TO HAVE TOWING
SERVICES, YOU LOOK AT THE STATUTES UNDER 48 THAT ALLOW FOR TOWNS TO SET TOWING FEE SCHEDULES,
NONE OF THOSE ARE OBVIATED BY THE P T P A. IF YOU CHARGE SOMETHING THAT'S NOT CODIFIED
IN THE ORDINANCE IF YOU CHARGE SOMETHING THAT'S OUTSIDE THE P T P A THEN I DO BELIEVE
YOU HAVE A CAUSE OF ACTION BUT WHEN I THINK LAULT IS DIRECTING A TOWER TO PERFORM A PUBLIC
SERVICE THEY ARE AFFORDED IMMUNITY AND I THINK IT TIES INTO THE RETROACTIVE APPLICATION
OF THE DECEMBER 2018 AMENDMENT. SO IN THE LEGISLATIVE STATEMENTS IT TALKS ABOUT THE
CLARIFICATION, THE CLARIFICATION, THE CLARIFICATION. IF YOU LOOK AT ONE OF THE
MAIN CLARIFICATIONS THAT OCCURRED, WHAT THEY DEFINE WHAT IS A TOW AND THEY SAID IT WAS
FOR ANY REASON. I WASN'T NON-ACCIDENT VERSUS ACCIDENT DICHOTOMY. IT WAS TOWS, THE SECOND
THING THEY TALKED ABOUT THE REBUTTABLE PRESUMPTION AND CHIEF JUSTICE REHAB ASKED IS
THAT A SUBSTANTIVE CHANGE. IT'S NOT A SUBSTANTIVE CHANGE. WHAT THEY'RE SAYING IS WE
OUGHT TO HAVE FAITH IN THE GOVERNING BODIES THE MUNICIPALITIES OF CITIES OF BORE ONS.
WHEN THEY PASS AN ORDINANCE THEY'RE DOING IT WITH A LAWFUL INTENT AND IF SOMEBODY WANTS
TO CHALLENGE IT THEY CAN CHALLENGE IT THROUGH A PREROGATIVE WRIT VIOLATION. IT'S ON THE
BOOK AND IT'S A VALID ORDINANCE. JUSTICE PATTERSON: YOU'RE SAYING THAT IN
THE STATUTE BUT THE FACT IS THAT'S NOT THE LAW IN GENERAL, IS IT NOT? DO PEOPLE WHO ACT
IN CONSISTENTLY WITH ORDINANCES HAVE THE SAME LEVEL OF PROTECTION THAT THE MEMBERS OF
YOUR ASSOCIATION NOW DO UNDER THE 2018 STATUTE? I WOULD SUGGEST THE ANSWER TO THAT IS
NO. OTHERWISE, WHY DID YOU WORK TO GET THAT STATUTE? APPELLANT:
APPELLANT: TO GET THE AMENDMENT. JUSTICE PATTERSON: YES.
APPELLANT: APPELLANT: THE REASON WE WORKED TO GET THE AMENDMENT, JUSTICE,
IS BECAUSE OF THIS COMPLETE INCONSISTENCY IN THE REGULATIONS DEALING WITH ACCIDENT VERSUS
NON-ACCIDENT, THE LACK OF CLARITY IN IT, THE FACT THAT THERE WAS NO GUIDANCE AND WHAT'S
INCREDIBLE IN THE STATUTE IS IT TALKS ABOUT THE SEPGS EXCEPTIONS FOR TOTAL ROADS AND WHEN
YOU HAVE A TOTAL RODZ ACTUALLY DRIVING UP TODAY I WAS GOT PULLED OVER BY A STATE TROOPER
AND SO IF YOU'RE ON A TOTAL RODE THAT'S GOVERNED BY THE NOIPS AND THEY HAVE NEW JERSEY
STATE POLICE AND THEY HAVE A STRIK TUR OF WHAT YOU CAN CHARGE. JUSTICE
PATTERSON: I UNDERSTAND AND I SEE THE VALUE OF THE STATUTE. MY POINT IS THAT THIS
REBUTTABLE PRESUMPTION I THINK IT'S A STRETCH TO SAY THE REBUTTABLE PRESUMPTION THAT THE
COMPANIES IN YOUR ASSOCIATION NOW ENJOY WHICH I THINK IS GOING TO BE A VERY POWERFUL WEAPON
IN LITIGATION GOING FORWARD IS REALLY HARD TO READ INTO THE PRIOR STATUTE.
APPELLANT: APPELLANT: YOUR HONOR, JUSTICE. APPELLANT:
APPELLANT: THAT'S A WAY OF SAYING KONGSS, YOU CON INTEGRATE LAGS YOU GOT A GREAT RESULT
FOR ITS MEMBERS BUT IT'S REALLY HARD TO SAY IT'S SOMETHING THAT WAS JUST IN THE ATMOSPHERE
BEFORE AND WE JUST NEED IT ON PAPER. APPELLANT: APPELLANT:
I DON'T KNOW THAT IT'S ACCURATE BECAUSE MR. HALPERN WAS TALK ABOUT HOW THE DRESH IS
SUPPOSED TO LOOK AT THE MUNICIPAL OR NANCE IN THE AREA OF 25 TO 50 PERCENT SO IT'S A
RECOGNITION THAT THESE ORDINANCES EXIST SO IF THERE'S A RECOGNITION IN THE REGULATION THAT
THIS ORDINANCE EXIST AND THIS WAS FOR, THESE WERE FOR ACCIDENT TOWS, NOT NON-ACCIDENT
TOES THEY'RE SUPPOSED TO BE LOOKING AT THE ORDINANCE SO RIGHT THERE IF IT'S WITHIN THAT
25 TO 50 PERCENT THERE'S THAT REBUTTABLE PRESUMPTION THAT IT'S A VALID CHARGE. SO I
THINK THE ORDINANCES WERE NOT OBVIATED BY THE P T P A IN FACT THE REGULATIONS SAY YOU HAVE
TO GO TO THE ORDINANCES OR YOU'RE DEALING WITH THESE ACCIDENT TOES VERSUS NON-ACCIDENT
TOWS, SO I THINK WHAT THE CLARIFICATION IS, THE LEGISLATURE SAID THERE'S NOT DICHOTOMY
BETWEEN ACCIDENTS AND NON-ACCIDENTS IF THE POLICE CALL YOU YOU GET TOWED. THE ORDINANCES
THAT THE DIRECTOR HAS TO LOOK AT WHEN THEY'RE DOING IT WITH ACCIDENTS VERSUS NON-ACCIDENTS
THERE'S VALIDITY TO THOSE ORDINANCES AND IF IT'S WITHIN THAT RANGE THEN IT'S DEEMED A
VALID CHARGE SO I THINK THAT IT'S NOT A STRETCH. I THINK THERE IS THIS REBUTTABLE PRESUMPTION
THAT HAS EXISTED THROUGHOUT THE ENTIRETY. JUSTICE PATTERSON: THE VAL VA
LIDITY OF ORDINANCES BUT TO PUT IT INTO THESE CHARGES ARE TO ENJOY A REBUTTABLE PRESUMPTION
IS I WOULD SUGGEST SOMETHING KNEW. APPELLANT: APPELLANT: I
WOULD ALSO SUGGEST YOUR HONOR THAT WHEN YOU LOOK AT THE P T P A AND I THINK JUSTICE ALBIN
ASKED ABOUT THE QUESTION OF CHAUFGS. JUSTICE ALBIN ASKED WHERE IN THE P T P A DOES IT
TALK ABOUT EX HAUS SHUN. THAT WAS CREATED BY THE DIRECTOR AND I FRANKLY I THINK THAT
WENT FAR BEYOND THE P T P A AND IF THERE HADN'T BEEN THAT DICHOTOMY WE WOULDN'T BE HERE
TODAY. THERE PROBABLY WOULD NOT BE AN AMENDMENT BECAUSE ALL THESE LAWSUITS THAT HAVE
ARISEN ARE BASED AUTOMOTIVE OF THE REGULATIONS. THEY'RE NOT BASED AUTOMOTIVE OF THE
P T P A THEY'RE BASED AUTOMOTIVE THE REGULATIONS THAT WERE DERIVED FROM THE P T P A SO
THE LEGISLATURE WENT BACK AND SAID LET US CLARIFY WHAT WE MEANT. JUSTICE SOLOMON:
MAY I BRING YOU BACK TO WHAT THE CHIEF ASKED. IT SOUNDED LIKE YOUR ARGUMENT WAS THAT
WITH RESPECT TO BILLING WHICH IS COMPLETELY CONTROLLED BY THE MUNICIPALITY, THE POLICE
DEPARTMENT AS PART OF THE FUNCTION OF HAVING THESE INVOLUNTARILY TOWS, THE TORT ACT COMPLIES
AND THE TOWING COMPANY IS IMMUNE BUT YOU'RE NOT ARGUING THAT THE ACTUAL TOW, THE DRIVER'S
CONDUCT, THE WAY THE TOW IS PERFORMED, THAT THAT IS SOMEHOW PROIKTED BY THE TORT CLAIMS ACT.
IN OTHER WORDS YOU'RE SAYING BILLING YES BECAUSE OF THE WAY IT'S CONTROLLED, BUT NOT THE
ACTUAL TOW. APPELLANT: APPELLANT: THE BILLING THAT'S WHAT I'M
TALKING ABOUT SO FOR EXAMPLE IF A TOW TRUCK DRIVER HOOKED UP A CAR RIDING DOWN THE ROAD
AT 2 HUNDRED MILES PER HOUR AND RAN FOO SOMEBODY THEY DON'T GET THE IMMUNITY OF THE TORT
CLAIM. JUSTICE SOLOMON: EVEN THOUGH IT'S A TOWING CONTRACT THE IMMUNITY
DOESN'T APPLY TO THE TOWING CONTRACT IT APPLIES TO THE BILLING. APPELLANT:
APPELLANT: IT APPLIES TO THE BILLING THAT YOU'RE DOING AND CONFINES WITH
THE MUNICIPAL ORDINANCE. JUSTICE SOLOMON: JUST MAKING SURE.
CHIEF JUSTICE RABNER: ANYTHING ELSE YOU'D LIKE TO ADD. APPELLANT:
APPELLANT: NO. CHIEF JUSTICE RABNER: MR. WOLF. RESPONDENT:
^ AND DREW ^ ANDREW WOLF AGAIN I HAVE TO START WITH NO MATTER HOW MANY TIMES I APPEAR
HERE I'M STILL NEFS WHEN I START SO I'LL TRY NOT TO BE I'D LIKE TO START WITH THE BACK
END OF THE ARGUMENT THE TORT CLAIMS ACT AND THIS ALLEGED RETROACTIVITY. THERE ARE SUBSTANTIVE
CHANGES IN THE AMENDMENT, NOT JUST REGARDING SECTION I OF 16. IT TAKES OUT CONSUMERS,
IT MAKES IT PERSONS, THEY'RE NOT ARGUING WE SHOULD GO BACK AN INCREASE OUR PUNITIVE
CLASSES TO INCLUDE COMMERCIAL TRANSACTIONS IF WE WIN BECAUSE THAT'S A SUBSTANTIVE CHANGE.
THERE IS A SUBSTANTIVE CHANGE IN SECTION EYE AS WELL. SECTION EYE AT LEAST THE FIRST
SENTENCE OF IT TALKS ABOUT, MIND YOU THESE CHANGES DON'T HAVE ANYTHING TO DO WITH THE
PRIVATE PROPERTY TOWS. . . THEY WANT TO CHANGE THE LAW TO MAKE IT GOOD FOR THEM AND I
GUESS CONGRATULATIONS ARE DUE BUT AS RECOGNIZED BY YOUR HONORS, IT SAYS IT TAKES EFFECT
IMMEDIATELY. IF THE LEGISLATURE WANTED THIS TO GO BACKWARDS AND BE RECOLLECTION TEMPORARY
RESTRAINING ORDER ACTIVE TO APPLY TO THIS CASE THEY COULD HAVE DONE IT. THERE'S OTHER
CASES WHERE LAWS WERE CHANGED AND YOU KNOW THE LEGISLATURE SUED TO NO ONE. IF WE GO BACK
TO THE CONSUMER FRAUD ACT IN 1971 THEY ADDED IT TO ADD UNCONSCIONABLE PRACTICE. THEY
KNOW WHAT THIS COURT IS DOING, THEY KNOW WHAT THE APPELLATE DIVISION IS DOING AND IF THEY
WANT SOMETHING TO CHANGE TO HELP THEM THEY WOULD HAVE SAID SO AND THEY DIDN'T SAY THAT
BUT MORE IMPORTANTLY I THINK THEY'RE GETTING THEY'RE NOT REALLY LOOKING AT THE LAW AND
THE AMENDMENT AND WHAT IT SAYS SO AND I JUST WANT TO POINT OUT SO FRAUDULENTLY, THE AMENDMENT
ITSELF IF I CAN FINED IT, THE SECOND SNEBS IN SECTION I, IT TALKS ABOUT NOTHING CONTAINED
IN THE PROVISIONS OF THE P T P A SHALL BE CONSTRUED TO PREVENT A TOWING COMPANY FROM
CHARGING FEES RELATED BLAH, BLAH, BLAH AND NOT UNREASONABLE. THEY'RE MISSING, THERE'S
A WHOLE STATUTORY SCHEME, RIGHT, WHEN THE P T P WAS ENACTED AND EFFECT OCTOBER OF 2008,
THE LEGISLATURE WANTED TO CONSOLIDATE ALL OF THE STATUTES INCLUDING THE POWERS, THE ENABLING
STATUTE FOR SETTING FEES, FOR MUNICIPALITIES. AND WHAT THE DEFENDANTS IN MIEKS ARE ARGUE
AN AMICUS US ARE ARGUING THEY MISS THE POINT. IF WE GO BACK TO THE ENABLING THE GENERAL
POWERS ENABLING STATUTE, SECTION TITLED 40:4-29 WHICH BOTH MR. HALPERN AND I'M SORRY I DON'T
KNOW YOUR NAME. GUY A KOEB I ARGUED THAT THEY'RE ALLOWED TO DO, LET'S GO BACK TO WHAT
THAT STAP ACTUALLY SAYS. IT LULS THE MUNICIPALITIES TO SET THE FEES NOT THE
SERVICES, IT ALLOWS THEM TO SET THE FEES FOR SERVICES AND TO SERVICES BUT THEY ADDED IN
2007 EFFECT IF SEPTEMBER 2008 THE LAST PARAGRAPH WHICH SAYS NOTHING IN THIS SECTION SHALL
BE CONSTRUED TO AUTHORIZE A MUNICIPALITY TO ESTABLISH CHARGES FOR SERVICES THAT ARE NOT
INCLUDED IN THE SCHEDULE OF TOWING AND STORAGE SERVICES FOR WHICH A TOWING COMPANY MAY
CHARGE A SERVICE FEE ESTABLISHED BY THE DIRECTOR OF THE CONSUMER AFFAIRS PURSUANT TO THE
P T P A SECTION 14. NOTHING IN THE SECTION SHALL BE CONSTRUED TO ACCEPT EXEMPT AN OPERATOR
FROM CLIEG WITH THE REQUIREMENTS OF THE P T A. THAT FLIES IN THE FACE OF THE TORT CLAIMS
ACT NOTICE WHEN THE MUN ENABLING STATUTE SAYS THEY HAVE TO COMPLY WITH THEM AND IT ALSO
FLIES IN THE FACE OF WHEN IT SAYS AS OF 2008 EVERY MUNICIPAL ORDINANCE IN THIS STATE HAD
TO COMBLIE WITH THE DIRECTOR OF CONSUMER AFFAIRS SAYS THEY CAN CHARGE. THE FACT THAT
NEWARK RENEWED A CONTRACT FROM 2004 AND CONTINUED OPERATING ON THAT FOR 15 YEARS AND
DIDN'T CHANGE THEIR ORDINANCE TO COMPLY WITH THIS THAT MEANS THIS ORDINANCE IS ULTRA VI
US TO THE STATUTE AND EVERY ORDINANCE IN THE STATE SHOULD HAVE BEEN CHANGE TO INCLUDE
ONLY THE SERVICES THAT THE DIRECTOR SAID THEY COULD INCLUDE IN ANY OF THE FEES, A YARD
FEE IS AN AWFUL EVEN IF IT'S ENORMOUS USE BECAUSE THIS STATUTE SAYS THEY CAN'T HAVE IT
SO THIS WHOLE ARGUMENT, THE APPELLATE DIVISION CITED TO THIS STATUTE 3 TIMES IN THEIR
OPINION. THEY TALKED ABOUT IT GENERALLY IN THE BEGINNING OF THEIR DECISION AND THEY APPLIED
IT TO BOTH PISACK AND THE WALKER CASE THAT'S NOT HERE. THEY WENT BACK AND CITED IT BECAUSE
THIS STATUTE SAYS YOU CAN'T CHARGE THE FEE UNLESS THE DIRECTOR SAYS AND THIS DICHOTOMY
OF ACCIDENT, NON-ACCIDENT, THERE'S THE GENERAL EM POURING STATUTE THAT ALLOWED THE DIRECTOR
TO ESTABLISH THE SERVICES THAT CAN BE CHARGED AND THEY DID, THEY SAID WHEN YOU TOW A
CAR THAT'S NOT IN AN ACCIDENT YOU GOT TO CHARGE A BASIC TOW FEE AND IT INCLUDES ALL THESE
SERVICES, AND WHEN IT'S NOT AN ACCIDENT THERE'S THESE OTHER SERVICES YOU CAN CHARGE.
THE AMENDMENT AS TO POLICE TOES DOESN'T REALLY CHANGE THAT BECAUSE THE REGULATIONS ARE
WHAT ARE IN PLACE SO THE ADMINISTRATOR FEE, FOR EXAMPLE, I DON'T THINK YOU CAN CHARGE
IT BECAUSE THE NEW AMENDMENT DIDN'T HANG THE FACT THAT THE DIRECTOR WAS ABLE TO DEFINE
WHAT'S IN A BASIC TOW AND WHAT COULD BE CHARGED SO A BASIC TOW INCLUDES THESE OTHER FEES,
SO FRANKLY, WHEN YOU LOOK AT THE WHOLE STATUTORY SCHEME AND THIS AMENDMENT AT LEAST THE
SECOND SENTENCE OF SECTION I, I DON'T THINK IT HAS AS BIG AN IMPACT AS THE DEFENDANTS
IN THE GARDEN STATE TOWING AUTHORITY THINK THAT IT SHOULD HAVE. I THINK IT DOES CHANGE
THE STORAGE FEES AND ALLOWS A STORAGE FEE WHICH IS A SUBSTANTIVE CHANGE WITH REGARD TO
POLICE AUTHORIZED TOWS, IT DOESN'T ALLOW A STORAGE FEE IF IT'S NOT AN ACCIDENT INVOLVED
IF IT'S A PUBLIC PRIVATE PROPERTY TOW. SO THIS WHOLE ARGUMENT AND CONCEPT OF THE ORDINANCE
CONTROLS THE ORDINANCE CONTROLS THEY DIDN'T CHANGE THAT, THE LEGISLATURE, THEY
SPECIFICALLY SAID THIS ONLY APPLIES TO THE P T P A AND IT DOESN'T APPLY TO THE ENABLING
STATUTE. JUSTICE SOLOMON: THE TOWING COMPANIES SGREE AND SAY THAT THE
DIRECTOR NEVER SET FORTH A SCHEDULE, HE SET FORTH A FRAMEWORK AND THAT THE MUNICIPALITIES
ALWAYS HAD CHARGES THAT THEY ALLOWED AND THAT THE DRISHG WOULD MEDIATE AND DECIDE WHETHER THEY
WERE ALLOWABLE UNDER THE P T P A AND ALL THAT THE KNEW AMENDMENT DID WAS SET OUT MORE
SPECIFICALLY THAT SCHEDULE THAT BASICALLY ALREADY EXISTED IN SUBSTANCE. HOW DO YOU ADDRESS
THAT. RESPONDENT: I THINK THEY'RE CONFLATING FEES AND SERVICES, THE
MUNICIPALITIES STILL HAVE THE POWER TO SET THE FEES AND SERVICE THEY DON'T HAVE THE POWER
TO SET THE SERVICES. JUSTICE SOLOMON: DO YOU AGREE THAT EVEN BEFORE THE
AMENDMENT, THE MUNICIPALITY HAD A SCHEDULE OF FEES AND THE DIRECTOR WOULD STILL DECIDE
WHETHER THOSE FEES WERE CONSISTENT WITH THE P T P A. DO YOU AGREE WITH THAT.
RESPONDENT: I THINK THAT THE FEES AND THAT THE SERVICES ARE TWO DIFFERENT THINGS.
JUSTICE SOLOMON: I GET THAT. RESPONDENT: THE FEES COULD BE SET BY THE
MUNICIPALITY AND NEWARK COULD CHARGE $150 FR A BASIC TOW AND NORTH BRUNSWICK COULD CHARGE
$75 FOR A BASIC TOW. THE OTHER PART WHICH I THINK YOU'RE ASKING ME IS IF YOU ACTUALLY
LOOK TO THE SECTION THAT THEY'RE TALKING ABOUT WHEN THEY'RE TALKING ABOUT THE 25 PERZ,
THE 50 PERCENT, I THINK THAT'S WHAT YOU'RE ADDRESSING HERE YOUR HONOR SO WHAT THEY
IGNORED AND DIDN'T POINT OUT TO YOU IS THAT IF YOU LOOK AT SECTION 14 OF THE P T P A AND
SECTION B, AFTER THEY TALK ABOUT THE 25 PERCENT AND THE 50 PERCENT, THE LAST SENTENCE
OF THAT PROVISION SAYS NOTWITHSTANDING THE FOREGOING GOING SUCH FEES MAY NOT EXCEED THE
MAXIMUM AMOUNTS THAT MAY BE CHARGED FOR SERVICES IN ACCORDANCE ANY APPLICABLE SCHEDULE
OF FEES BY MUNICIPAL ORDINANCE ADOPTED PURSUANT TO THE STATUTE I JUST READ TITLE 40 SECTION
48.D-49 SO THESE 25 AND 50 PERCENT OBVIOUSLY APPLY IF THEY DON'T CHARGE THE MAXIMUM AND
IT ONLY APPLIES THEN THROUGH A STANDARD OF USAGE IN THOSE MUNICIPALITIES IF IT'S 25 PERCENT
OR 50 PERCENT BUT IN NO EVENT AND YOU DON'T NEED A RE PUT ABLE PRESUMPTION CAN THEY CHARGE
MORE THAN WHAT THE MUNICIPALITY SET ON ITS FEE SCHEDULE SO THEY LEFT THAT PART OUT OF
THEIR ARGUMENT. THAT'S THE LAST SENTENCE IN THAT PROVISION. SO WHEN YOU LOOK AT THAT
PROVISION, THE 25 PERCENT AND 50 PERCENT IS I WON'T SAY MEANINGLESS, EVERYBODY CHARGES
THE MAX MUNL. BECAUSE THEY'RE ALLOWED TO SO THESE ARGUMENTS KIND OF CONFLATE THE LAW
AND THE IMPACT OF THAT SECOND SENTENCE. DOINT THINK, I THINK THEY WANTED TO DO THIS,
I THINK THEY TRIED TO DO IT IN JANUARY OF 2018 WHEN THEY PASSED A FIRST AMENDMENT AND
THEY THOUGHT IT ACCOMPLISHED THIS WITH REGARD TO POLICE TOWS, THE DIRECTOR OF CONSUMER
AFFAIRS ADVISED THEM IT DIDN'T DO WHAT THEY THOUGHT. WE GOT THE APPELLATE DIVISION AND
YOU GRANTING THE MOTION TO LEAVE AND IN A 3 WEEK PERIOD WITHOUT REALLY ANY OF THE NORMAL
PROCESS OF HAVING IT GO TO COMMITTEE AND PEOPLE LIKE ME AND OTHER EXCUSE ME FRIENDLY
ORGANIZATIONS GOING TO THE ASSEMBLE AND SENATE COMMITTEES TO ARGUE WHY IT'S INEFFECTIVE
IT KIND OF GOT PUSHED THROUGH BECAUSE THIS CASE WAS PENDING AND I THINK THEY DIDN'T DO
AN EFFECTIVE JOB AGAIN AND AT LEAST WITH REGARD TO THE SECOND SENTENCE OF SECTION I.
JUSTICE PATTERSON: IT'S THREW. RESPONDENT: FOR THE REASONS
I'M ARGUING HERE I DON'T THINK THAT IT GOES AS FAR AS THEY THINK IT DOES BECAUSE OF TITLE
40. JUSTICE PATTERSON: DO YOU ADDRESS 40-30 B. RESPONDENT:
I GOT CAUGHT UP IN THAT REGARDING T C C. RESPONDENT: THIS IS THE FOURTH
TIME T C C HAS BEEN IN FRONT OF THIS COURT. YOU DEALT WITH IT IN THESE CASES AND FRANKLY
I THINK THIS CASE MEETS ALL OF YOUR REQUIREMENTS, THAT YOU SET FORTH. CHIEF
JUSTICE RABNER: CAN YOU HELP US ON THAT THRESHOLD QUESTION. TO MAKE OUT YOUR T C C CLAIM
YOU HAVE TO SHOW THAT TOWERS EITHER OFFERED OR ENTERED INTO A BRIN CONSUMER CONTRACTOR
TWO GAVE NOTICE. WHICH ONE HAVE YOU SATISFIED AND HOW. RESPONDENT: ACTUALLY
I THINK THAT THEY'RE BOTH SATISFIED IN THIS CASE I'LL START WITH THE CONTRACT. FRAUDULENTLY,
THIS IS NON-CONSENSUAL TOGETHER BUT THERE'S STILL SERVICES PROVIDED, A FEE PAID AND A
NOTICE. I BELIEVE IN SHELTON, YOU SAID THIS COURT SAID THAT FRAUDULENTLY THE STATUTE
SAYS ANY OF THESE DOCUMENTS THAT ARE GIVEN IN THE COURSE OF THE BUSINESS AND YOU SAID
THAT A DOCUMENT ACCORDING TO THE PLAIN LANGUAGE ACT THAT FORMAL LIEZS OR SUBSEQUENT TO THE
TRANSACTION THAT IDENTIFIES THE TRANSACTION I'M NOT USING THE RIGHT WORD IS A CONTRACT
UNDER THE THE PLAIN LANGUAGE ACT. YOU SAID THAT IN SHELTON. SO I BELIEVE THIS.
JUSTICE PATTERSON: UNDER THE PLAIN LANGUAGE. LET'S DO THIS IN STAGES, GOT APPELLANT OF
TIME. I SHOULDN'T SAY THAT. BUT LET'S TAKE CONTRACT FIRST, OFFER CONTRACT THAT FIRST
PROVISION. RESPONDENT: I ADDS. APPELLANT: APPELLANT:
I BELIEVE YOU WILL HAVE ALREADY DONE THAT IN SHELTON. THE PLAIN LANGUAGE ACT COVERS --
JUSTICE PATTERSON: THE CONSUMERS IN SHELT TO KNOW WANT TO GET TO GO OUT
TO DINNER. THEY DIDN'T WANT TO COMBET TOWED, THEY DIDN'T DO ANYTHING TO INITIAL THIS,
SO I UNDERSTAND YOU'RE SAYING SHELTON, BUT THERE WAS A LOT ABOUT THE MEETING OF THE MINDS
IN SHELTON THAT IS REALLY NOT EXACTLY APPLICABLE HERE. APPELLANT:
APPELLANT: LET ME ADDRESS THAT, SO THAT'S A POINT OF THE P T P A BUT LET'S LOOK AT MY
CAR IS STUCK ON THE SIDE OF THE ROAD AND I'M IN NEWARK AND I CALL B B&C TOWING TO TOW
MY CAR BUT THAT DOCUMENT THAT THEY GIVE ME AFTER THEY TOW THE CAR AND I GO TO PICK IT
UP AND DO IT, I THINK YOU WOULD AGREE IS A CONTRACT UNDER THE P L A AND UNDER SHELTON
IN A CONSENSUAL TOW. JUSTICE PATTERSON: LET'S TALK ABOUT WHAT SEEMS TO BE
THE PREDOMINANT SITUATION HERE AND THAT IS YOU GO TO A MOVIE IN NEWARK AND YOU COME OUT
AND YOUR CAR IS GONE AND IT'S BEEN TOWED BECAUSE YOU PARKED IN THE WRONG PLACE. HOW IS
THAT A CONTRACT BETWEEN YOU, DO YOU THINK TO YOURSELF WHEN THAT HAPPENS WELL MY CAR IS
GONE BUT CLEES I HAVE A CONTRACT WITH THE TOWING COMPANY. APPELLANT:
APPELLANT: NO, I DON'T. RESPONDENT: I DON'T THINK WHEN I GET MY CAR TOWED
I HAVE A CONTRACT. THE NON-CONSENSUAL TOGETHER I DIDN'T HAVE A CHANCE TO DO THAT BUT
THEY'RE STILL PROVIDING A SERVICE AND THEY'RE STILL CHARGING ME A FEE FOR THAT AND THEN
I HAVE TO PAY THAT FEE AND THEY'RE DOCUMENTING THAT IN A SCOMBENT DOCUMENT THAT BY THE WAY
UNDER THE STATUTE THEY HAVE TO GIVE INVOICES BECAUSE THEY HAVE TO KEEP THE INVOICES FOR
3 YEARS. JUSTICE PATTERSON: YOU MAY BE READING SHELTON PRETTY BROADLY.
RESPONDENT: THE SPIRIT HERE I THINK IT'S A CONTRACT. IT'S STILL A NOTICE
EVEN IF YOU AGREE WITH ME. CHIEF JUSTICE RABNER: TELL US HOW.
RESPONDENT: I HATE TO GOING BACK TO SHELTON BUT YOU DEFINE WHAT A NOTICE IS AND IT'S ANY
DOCUMENT. INCONSISTENT WITH SHELTON, SHELTON WAS ABOUT THE POST SALE CERTIFICATE THAT
PEOPLE GOT. IT WASN'T SOMETHING THEY GOT BEFORE THEY HAD THEIR TRANSACTION, REMEMBER
AGAIN THE TCCWNA SAYS THAT ANYONE OF THE CATEGORIES THAT PROVIDES A CONTRACTOR NOTICE
IN THE COURSE OF THEIR BUSINESS, IT DOESN'T SAY THAT IT HAS TO BE BEFORE YOU PAY, AT THE TIME
YOU PAY OR AFTER YOU PAY, IT'S ANY DOCUMENT, ANYONE OF THOSE QUALIFYING DOCUMENT THAT
THEY GIVE IN THE COURSE OF THEIR BUSINESS AND THIS RECEIPT, THE INVOICE IS A DOCUMENT
THAT TELLS PEOPLE GIVES THEM NOTICE OF WHAT THEY'RE CHARGE FOR. SO I THINK IT MEETS THEIR DEFINITION OF WHAT YOU APPLY TO WHAT A NOTICE IS AND I DOESN'T MATTER WHERE IN THE
IT'S A NOTICE. IT'S A NOTICE OF WHAT THEY WERE CHARGED. IF YOU WANT TO GO TO THE REST
OF THE TCCWNA ANALYSIS UNLESS YOU HAVE MORE QUESTIONS ON THAT, I MEAN, IN SPADE YOU SAID
THAT A REGULATION IS A CLEARLY ESTABLISHED RIGHT. THE REGULATION WAS IN EFFECT FOR 8
YEARS WHEN THE APPELLATE DIVISION DECIDED THIS CASE. THE REGULATIONS PROHIBITED CERTAIN
CHARGES. JUSTICE PATTERSON: TALK ABOUT PRE-DOMINANCE. RESPONDENT:
TO COMMON QUESTIONS OF FACT OF LAW HAVE TO PREDOMINATE AND THAT MEANS THAT, THE THING
ABOUT PRE-DEMEANOR HANS IN TERMS OF ALL THE CLASS ACTIONS I'VE DONE WHEN YOU HAVE A DOCUMENT
THAT HAS A VIOLATION OF THE LAW IN IT THAT'S THE. JUSTICE PATTERSON: THAT
WAS A VERY OVER GENERAL QUESTION. HOW CAN YOU ESTABLISH PRE-DOMINANCE IN LIGHT OF THE
REQUIREMENT THAT THERE BE A CLEARLY, THAT THERE BE AGGRIEVED CONSUMER AND THEREFORE THERE
HAS TO BE SOME LEVEL OF HARM UNDER SPADE HOW CAN YOU ESTABLISH PRE-DOMINANCE CLASS WIDE
WITHOUT AS YOUR ADVERSARIES BOTH ARGUE TO REPRESENTING THEIR CLIENTS BOTH ARGUED TODAY
THAT THERE WOULD HAVE TO BE SPECIFIC DISCOVERY WITH RESPECT TO INDIVIDUAL CONSUMERS, HOW
DO YOU GET PAST THAT. RESPONDENT: OKAY. I THOUGHT I UNDERSTOOD YOUR QUESTION,
I UNDERSTAND IT BETTER NOW. SO THE QUESTION IS THERE IS NO INDIVIDUAL ISSUE AT ALL IN
THIS CASE. SO IN THE CASE OF PELLEGRINO, YOU HAVE AN INVOICE THAT HAS A YARD FEE, ALL
RIGHT. THAT YARD FEE IS PROHIBITED, CHARGE, IT'S UNLAWFUL BECAUSE IT'S NOT ON THE SCHEDULE
OF SERVICES FOR WHICH A FEE CAN BE CHARGED. IT'S PROHIBITED BECAUSE THE ORDINANCE THAT
SAID THEY COULD CHARGE THE YARD FEE SHOULD HAVE BEEN AMENDED BACK IN 2008 SO IT'S UNLAWFUL
UNDER THE THE ORDINANCE AND NOW YOU HAVE AN UNLAWFUL FEE THAT'S ON A DOCUMENT THAT THEY
WERE REQUIRED TO GIVE AND THEY HAVE TO HAVE KEPT FOR THREE YEARS, SO THERE'S NO INDIVIDUAL
ISSUE IF THERE'S AN UNLAWFUL ACT. AGAIN WE'RE NOT GOING TO THE MERITS HERE BUT IF THERE'S
AN UNLAWFUL ACT, UNLAWFUL CHARGE AND IT'S REPRESENTED BY AN IN A DOCUMENT, AND PEOPLE
WERE CHARGED AND PAID IT THEN THEY WERE AGGRIEVED. THIS GOES TO THE EXACT HARM THAT
WAS REQUIRED IN SPADE. YOU HAVE TO SHOW SOME HARM EVEN IF THEY WEREN'T MONETARY. IN
THIS CASE IT IS MONETARY BECAUSE IT'S AN UNLAWFUL CHARGE AND WE CAN GO BACK TO LIKE IN
BOSS LAND AND IN WALKER CASE WHICH THIS COURT HEARD SOME OF THOSE ISSUES, THE CHARGE,
THE VIOLATION THERE WAS THE VIOLATIONS OF THE A S P REGULATIONS BY CHARGING AN UNITEMIZED
DOCUMENTARY FEE SOMETIMES HIDDEN IN A REGISTRATION FEE, SOMETIMES JUST ON THE
DOCUMENT. THAT WAS PART OF THE CASE. MY POINT THAT I'M MAKING IS THAT UNLAWFUL CHARGE,
THEY COULD HAVE CHARGED A DOCUMENTARY FEE IF THEY PROPERLY ITEMIZED IT ON THE DOCUMENT
AND THEY CAN'T BECAUSE THE REGULATIONS SAID THEY COULDN'T, THE ASCERTAINABLE LOSS UNDER
THE CFA IS THE ACTUAL HARM THAT'S MONETARY HARM COVERED UNDER THE TCCWNA IN THIS CASE
THE SAME THING HERE IT'S AN UNLAWFUL CHARGE IF YOU CAN'T CHARGE IT YOU PUT IT ON THE PIECE
OF PAPER AND GIVE IT TO SOMEBODY THAT'S HOW THEY KNOW THEY GOT THE CHARGE. THE FACT THAT
OTHER PEOPLE DIDN'T SUE THEM IS THE SAME AS IN THE OTHER CASES THEY DIDN'T KNOW THEY WERE
UNLAWFULLY CHARGED AND WHO'S GOING TO SUE FOR $30. THAT'S WHY WE HAVE THE CLASS ACTION MECHANISM SO I THINK PRE-DOMINANCE IS CLEAR AND WHEN THE CASE LAW SAYS YOU HAVE DOCUMENTS
WE DON'T HAVE A CLASS CERTIFIED HERE BUT IT SHOULDN'T BE PRECLUDED AT THIS STAGE OF THE
LITIGATION CERTAINLY NOT IN PELLEGRINO BECAUSE THE CHARGE WAS UNLAWFUL AND IT'S ON THEIR
DOCUMENT AND I THINK THAT THERE'S NO QUESTION OF PRE-DOMINANCE BECAUSE WAS THERE A VIOLATION
AS THE COMMON QUESTION, WHAT PEOPLE CHARGE IS IT, WAS THERE A DOCUMENT, IT'S ALL THERE,
SO I DON'T THINK WE GET THAT PRE-DOMINANCE WOULD PRECLUDE A CLASS ACTION IN THIS CASE.
CHIEF JUSTICE RABNER: PLEASE GO AHEAD. RESPONDENT: I WAS READY
FOR MORE QUESTIONS. THERE'S SO MANY ISSUES TO COVER. I THINK I COVERED THE CFA. SO
THIS WHOLE CONCEPT OF HAVING TO GO TO THE DIVISION OF CONSUMER AFFAIRS AND ASK FOR I
GUESS A REFUND OR TO TRY TO WORK IT OUT BEFORE YOU GO, THE STATUTE IS REALLY CLEAR. IT'S
SECTION 21 A IT SAYS ANY VIOLATION OF THIS LAW OF THE P T P A IS A VIOLATION OF THE CONSUMER
FRAUD ACT. IN ADDITION AND B SAYS IN ADDITION TO ANY OF THE REMEDIES AVAILABLE UNDER THE
CONSUMER FRAUD ACT, THE DIRECTOR MAY BY REGULATION DO EX, SO THAT'S PERMISSIVE AND I
THINK THE APPELLATE DIVISION GOT THIS RIGHT. THERE'S NO PRIMARY JURISDICTION HERE AND
THERE'S NO EXCLUSIVE JURISDICTION. THE LEGISLATURE KNOWS HOW TO TALK ABOUT PRIMARY
AND EXCLUSIVE JURISDICTION WHEN THEY WANT TO. WE HAVE CASES LIKE THE CASE WHICH I'M NOT
SURE IF I PRONOUNCE THAT LEMON DITTO WHICH SAYS THE CONSUMER FRAUD ACT IS PRESUMED TO
APPLY UNLESS THERE'S A CLEAR LEGISLATIVE INTENT TO THE CONTRARY. THERE'S NO CLEAR
LEGISLATIVE INTENT TO GIVE PRIMARY LET ALONE EXCLUSIVE JURISDICTION TO THE D C A IN THIS
CASE AND THEY DIDN'T TAKE THAT AND IN THEIR OWN AMICUS BRIEF THEY SAY IT DOESN'T DO THAT
SO THIS ARGUMENT IS I KNOW THEY LIKE US TO HAVE TO DO THIS BUT REMEMBER THE ENABLING STATUTE
ITSELF SECTION 8 SAYS IT'S TO CONSOLIDATE EVERYTHING IN ONE LAW. CHIEF
JUSTICE RABNER: WHAT'S WHAT'S LEFT OF THE REGULATION THAT SAYS WHICH SAYS YOU SHALL USE
GOOD FAITH EFFORTS. YOU GO TO COURT ON A RECEIVE A C F A CLAIM DO YOU HAVE TO GO AND
ATTEMPT TO RESOLVE THE DISPUTE. RESPONDENT: NO, I DONTS THINK YOU DO. I
THINK THE STATUTE GIVES PLENARY AUTHORITY TO JUST BRING A CASE IN COURT. A PERSON CAN
CHOOSE TO GO. JUSTICE ALBIN: IS THAT 1321 YOU'RE REFERRING TO. WHEN YOU
SAID. RESPONDENT: SECTION 13. 56:13-21 A AND B IS THE REMEDY SECTION OF THE
P T P A REHAB. JUSTICE ALBIN: YOUR ADVERSARY LOOKING AT B LANGUAGES IT SAYS
IN ADDITION TO ANY PENALTY OR REMEDIES PROVIDED IN THE C F A AND HE'S READING THAT TO
SAY THAT PREVIOUS CLAUSE WAS ALL ABOUT THE DIRECTOR LIKE THE DIRECTOR COULD HAVE DONE
THESE PENALTIES, REMEDIES IN ADDITION TO THAT HE COULD HAVE DONE SOME MORE.
RESPONDENT: I BELIEVE THAT'S IMPROPER. JUSTICE ALBIN: TELL US WHY.
RESPONDENT: I'D BE HAPPY TO DO THAT YOUR HONOR SO FRAUDULENTLY IT CLEARLY TO MY MIND REFERS
BACK TO A BUT THE CLERK OR THE ATTORNEY GENERAL HAS NO POWER UNDER THE C F A TO AWARD
TREBLE DAMAGES OR ATTORNEY'S FEES, THE ENABLING STATUTE WHEN THE C F A WAS ENACTED THERE'S
A WHOLE BUNCH OF SECTION TO AMEND PRIOR RIGHT OF ACTION AND HA ALL THAT THE DIRECTOR CAN
REALLY DO IS INJUNCTIVE AND THEY CAN WHAT THEY CALL RESTORATIVE REAL ESTATE LEASE THEY
CAN GIVE YOU YOUR MONEY BACK AND IN THIS CASE UNDER THIS STATUTE MAYBE THEY CAN GIVE YOU
INTEREST BUT THEY CAN'T GIVE YOU ANY RELIEF BECAUSE THE C F A DOESN'T GIVE THE DIVISION
OF IT'S CONSUMER AFFAIRS OR THE ATTORNEY GENERAL THE POWER TO GET ANY OTHER RELIEF BESIDES
THE INJUNCTIVE OR RESTORATIVE RELIEF AND IN SOME CASE THEY CAN GET PENALTIES.
JUSTICE PATTERSON: HOW DO WE KNOW THAT'S NOT LEGISLATIVE INTENT IF THIS IS GOING ON IT'S
UNLAWFUL THE DIRECTOR CAN COME IN BRING AN ACTION GET AN INJUNCTION, GET PEOPLE'S MONEY
BACK AND ALL GOES FORWARD JUST FINE. APPELLANT: RESPONDENT:
THAT DOESN'T PRECLUDE PEOPLE FROM FILING THEIR CASES SIMULTANEOUSLY. ONCE THEY GET A
LETTER FROM THE DIRECTOR OF THE DIVISION OF CONSUMER AFFAIRS I KNOW THIS ATTORNEY THAT
CAN GET ME THREE MORE TIMES THAN THAT. I THINK IN THE OTHER CASE THERE'S INJUNCTIONS
BY THE D C A AND THERE'S SIMULTANEOUS CLASS ACTIONS THAT GO FORWARD. THIS IS THE TYPE
OF AND THE D C A ISN'T GOING TO TAKE A CASE UNLESS LIKE A LOT OF PEOPLE COME TO THEM AND
THEN THEY REVIEW IT AND THEN THEY'LL GO THROUGH IT BUT THEY DON'T DO CLASS ACTIONS AND
FOR THE SAME REASON LIKE IN BOSS LIN MOST OF THESE PEOPLE ALL OF THESE PEOPLE PROBABLY
EXCEPT FOR MY CLIENTS DONTS KNOW THAT THEY WERE POTENTIALLY CHARGED UNLAWFUL FEES AND
THAT THEY'RE NOT GOING TO TAKE ANY ACTION AND THAT'S THE WHOLE PURPOSE OF THE C F A AND
ABILITY TO DO CLASS ACTION IN WHERE PEOPLE HAVE SMALL AMOUNTS OF MONEY BUT I BELIEVE IT
REFERS BACK TO A AND AND IT SAYS IT MAY DO THEM AND AGAIN THERE'S NOTHING IN THE STATUTE
ITSELF THAT GRIFS EITHER PRIMARY OR EXCLUSIVE AUTHORITY. JUSTICE ALBIN:
SHALL MEANS NOTHING WE SHOULD IGNORE THAT. RESPONDENT: IT'S IN THE REGULATION
NOT IN THE STATUTE. THE SATURATE SAYS MAY. CHIEF JUSTICE RABNER: RESPOND
DIRECTORLY TO YOUR COLLEAGUES ARGUMENT ON THE OTHER SIDE OF THE I'LL THAT SHALL USE GOOD
FAITH TO RESOLVE THE DISPUTE MEANS EXACTLY WHAT IT SAYS. RESPONDENT: IT MEANS
WHEN YOU GO TO THE DIVISION YOU WANT TO GO TO THE ADMINISTRATIVE ROUTE PRIOR TO FILING
A COMPLAINT TO GET RELIEF FROM THE ADMINISTRATIVE COURT OR THE D C A YOU HAVE TO FIRST
TRY TO GET RELIEF. CHIEF JUSTICE RABNER: IT'S NOT PHRASED THAT WAY IN THE
REGULATION, WOULD YOU AGREE? RESPONDENT: I'LL LOOK AT IT AGAIN.
CHIEF JUSTICE RABNER: IF THERE'S A DISPUTE PARTIES ARE TO USE GOOD FAITH EFFORTS TO
RESOLVE. HOW DO YOU SQUARE THAT WITH YOUR ARGUMENT ABOUT THE C F A?
RESPONDENT: I THINK I GO BACK TO MY ARGUMENT THAT THE DIRECTOR CAN ONLY DO WHAT IT'S
AUTHORIZED UNDER THE STATUTE AND THE STATUTE STILL PROVIDES FOR A PRIVATE RIGHT OF ACTION
AND THE SHALL I THINK THE D C A IS WHAT THEY MEANT IT TO BE, WHEN YOU COME TO US IT'S
KIND OF LIKE USE CAR LENDING LAW LIKE YOU HAVE TO SEND A 10 DAY LETTER YOU KNOW AFTER
THE SECOND OR THE THIRD BEFORE THE THIRD DISPUTE AND IF YOU DON'T SEND THAT, YOU DON'T
GET A PRESUMPTION UNDER THE NEW CAR LEMON LAW BUT YOU DON'T NEED TO DO THAT IF YOU GO
TO COURT YOU COULD STILL GO TO COURT AND YOU DON'T NEED TO HAVE SEND THAT TO GET THAT
PRESUMPTION YOU COULD STILL DO YOUR CASE. CHIEF JUSTICE RABNER: IS YOUR
ARGUMENT IF IT IS READ TO REQUIRE THAT YOU MUST GO TO THE TOWING COMPANY FIRST, THEN IT
GOES BEYOND THE STATUTE. BEYOND THE ENABLING PROVISION. RESPONDENT: I
BELIEVE THAT'S YES, YOUR HONOR. CHIEF JUSTICE RABNER: ANYTHING ELSE YOU'D
LIKE TO ADDRESS? RESPONDENT: CAN I JUST LOOK AT MY NOTES FOR A SECOND? .
SO THE CREDIT CARD SURCHARGE ISSUE, THERE'S TWO ARGUMENTS AGAINST THAT NOT BEING CHARGEABLE,
1 IT'S NOT ON THE SCHEDULE SET BY THE DIVISION AND THE DIRECTOR BUT I THINK MORE IMPORTANTLY
THE P T P A ITSELF DIRECTS THAT IF A TOGETHER COMPANY ACCEPTS CREDIT CARDS CHARGE CARDS
IN THE REGULAR COURSE OF THEIR BUSINESS THAT THEY MUST ACCEPT THOSE CARDS IN LIEU OF CASH
AND IN LIEU OF CASH NEEDS INSTEAD OF, IN EXCHANGE FOR. IT DOESN'T MEAN IF YOU TAKE A
CREDIT CARD YOU CAN CHARGE AN EXTRA $13, IN LIEU OF, IN REPLACEMENT FOR AND I THINK THAT
THAT PROVISION ALONG WITH THE FACT THAT IT'S NOT IN THE SCHEDULE OF FEES IS THAT AND YOU
KNOW THE ONLY PLACE THAT I KNOW OF WHERE YOU CAN ACTUALLY CHARGE MORE MONEY FOR COMBRUS
ING A CREDIT CARD I THINK IS IN RELATED TO GAS STATIONS AND I THINK THERE'S A STATUTE THAT
APPLIES TO THAT BUT I DON'T KNOW ANYWHERE ELSEWHERE PEOPLE CAN JUST CHARGE OR SURCHARGE
FOR THAT BUT I THINK THE STATUTE IS CLEAR, IT'S RELATED TO TOGETHER BECAUSE IT'S HOW YOU'RE
PAYING FOR YOUR TOGETHER SERVICES AND IT'S NOT ON THE SCHEDULE BUT I THINK MORE IMPORTANTLY
WHEN THEY SAID YOU HAVE TO ACCEPT IT IN LIEU OF CASH, THAT'S INSTEAD OF AND A REPLACEMENT
FOR AND YOU DON'T HAVE TO PAY $10 TO PAY IN CASH. THE ISSUE OF BAILMENT, I THINK MAYBE
THIS IS A BAILMENT AND I THINK THE APPELLATE DIVISION SAID YEAH IT'S LIKE MORE LIKE A
BAILMENT THAN NOT, BUT I THINK THE TOWING COMPANY IS STILL SELLERS, THEY'RE STILL SELLING
THE SERVICE IT'S IN VOLUNTEER SERVICE BUT THEY'RE STILL SELLING THE SERVICE AND I THE
CONSUMER UNDER THE THE CONSIDER THE CAR IS FOR THEIR OWN USE AND I THINK IT FITS WITHIN
THE DEFINITION WHETHER YOU AGREE IT'S A BAILMENT OR NOT THEY'RE STILL A SELLER THEY'RE
SELLING THE SERVICE, THE WHOLE PURPOSE OF THE P T P A IS TO REGULATE THE SALE OF A SERVICE
WHEN I DON'T HAVE A MEANINGFUL OR. JUSTICE PATTERSON: THE CONSUMER REALLY
TAKES NO INITIATIVE WHATSOEVER IN MOST OF THESE CASES TO HAVE ANY CONTACT, ANY TRANSACTION
WITH THIS, WITH THESE TOGETHER COMPANIES AND WOULD PROBABLY RATHER NOT EVER HEAR EVER
HAVE THEM INVOLVED IN THEIR LIFE AT ALL. RESPONDENT: I HATE WHEN MY CAR
BRAKES DOWN AND CALL A TOGETHER COMPANY AND TOW IT TO THE SHOP SO I RATHER NOT HAVE IT
BUT THIS IS A FORCED. JUSTICE PATTERSON: I'M TALKING ABOUT THE SITUATION
WHERE IT'S BEEN TOWED BECAUSE OF VIOLATION OR FOR WHATEVER REASON WITHOUT SOMEONE, WITHOUT
THE CONSUMER ACTUALLY REACHING OUT AND CALLING THE TOGETHER COMPANY, TALK ABOUT THE POLICE
TOES FOR THE MOST PART HERE, ARE WE NOT? RESPONDENT: WE HAVE OTHER CASE
WHERE PRIVATE PROPERTY TOGETHER. JUSTICE PATTERSON: THE CASE HERE.
RESPONDENT: ALL POLICE TOES AT PAT NOT MANY PEOPLE GO OUT THERE AND SAY I WANT A POLICE
TOW I WONDER HOW I CAN GET A GOOD PRICE. THE CONSUMER IS NOT DOING ANYTHING TO BRING
THIS ABOUT. RESPONDENT: YES, I AGREE THEY DON'T DO ANYTHING BUT THAT DOESN'T
MEAN IT DOESN'T TURN INTO A SALES TRANSACTION RIGHT WHEN YOUR AIR-CONDITION BREAKS IN
YOUR HOUSE YOU DON'T WANT TO BUY A NEW AIR-CONDITION YOU CALL SOMEBODY UP TO, I
DON'T THINK TCCWNA SAYS ANYTHING ABOUT MAKING THE CALL. IT SAYS SERVICES OR MERCHANDISE
IN A CONSUMER TRANSACTION, THIS END UP BEING A CONSUMER TRANSACTION WHETHER IT'S FORCED
OR NOT AND YOU DON'T WANT IT, IT BECOMES THAT TYPE OF TRANSACTION. IT CERTAINLY SOMEBODY
IS TAKING CONTROL OF YOUR CAR SO THE BAILMENT FITS I JUST THINK THAT A SELLER WOULD ALSO
BE APPLICABLE UNDER THIS SITUATION BUT IT'S CERTAINLY A BAILMENT. CHIEF
JUSTICE RABNER: WE HAVE YOUR POSITION. RESPONDENT: THAUNGS. THE
COURT: VERY BRIEF REBUTTAL. TAKE A MOMENT BEFORE YOU START. GO AHEAD. APPELLANT:
THANK YOU, YOUR HONOR. VERY BRIEFLY. WITH RESPECT TO SECTION 21 OF THE P T P A, THE
TITLE OF THIS SECTION IS UNLAWFUL PRACTICE, VIOLATION. THE PURPOSE OF THE SECTION I
THINK IS QUITE READILY A PARENT THAT WHATEVER THAT ANY VIOLATION OF THE P T P A IS A VIOLATION,
IS A VIOLATION OF THE C F A. THAT'S THE PURPOSE OF THE SECTION. THE SECTION DOESN'T
SAY ANYTHING ABOUT THE SEQUENCING OF REMEDIES IT DOESN'T SAY ANYTHING ABOUT GOING TO COURT
NOT GOING TO COURT, IT'S THE SECTION THAT SAYS 2 THINGS, IT SAYS ONE THAT A VIOLATION
OF P T P A IS A VIOLATION OF THE C F A AND IN SECTION B IT SAYS THE DIRECTOR IS AUTHORIZED
TO AWARD REMEDIES IF THE DIRECTOR SO CHOOSES. CHIEF JUSTICE RABNER: DOESN'T
SAY ANYTHING ABOUT SUBSEQUENCING HOW CAN THE REGULATION BE RED TO COMPEL A CERTAIN
SEQUENCE. APPELLANT: BECAUSE IT AUTHORIZES THE DIRECTOR TO REFERENCE.
CHIEF JUSTICE RABNER: THE REGULATIONS ARE LIMITED BY THE STATUTE.
APPELLANT: AND THE STATUTE RESPECTFULLY DOESN'T SAY ANYTHING ABOUT SEQUENCING AND IT DOESN'T
SAY ANYTHING ABOUT SEQUENCING IT'S SILENT ON THAT AND INSTEAD IT AUTHORIZES THE DIRECTOR
TO ISSUE REGULATIONS WITH NO QUALIFICATION ON THAT AUTHORITY. IN THIS CASE, THE DIRECTOR
CHOSE TO EXERCISE THAT AUTHORITY TO IMPOSE THE SEQUENCE, THAT'S MY ARGUMENT.
CHIEF JUSTICE RABNER: I WANTED YOU TO HAVE VERY BRIEF REBUTTAL AND I STOPPED YOU SO GO AHEAD.
APPELLANT: THE LAST POINT ON THIS ISSUE IS COUNSEL MENTIONED BOSS LIN AS
A COUNTER EXAMPLE. AGAIN, THERE WAS NO REGULATION ON POINT IN BOSS LIN, WITH RESPECT
TO THE AUTOMOTIVE SALES PRACTICES REGULATIONS DON'T INCLUDE ANY PROVISION REQUIRING THE
CONSUMER TO GO TO THE CAR DEALERSHIP FIRST TO RESOLVE THE DISPUTE. THERE'S A REASON THE
DIRECTOR CHOSE TO DO IT HERE AND NOT THERE. LAST IN TERMS OF CREDIT CARDS, COUNSEL MADE
THE ARGUMENT THAT THE P T P A I BELIEVE IT'S THE REGULATION ACTUALLY REQUIRES THEM TO
REQUIRES TOWERS TO ACCEPT CREDIT CARDS QUOTE UNQUOTE IN LIEU OF CASH, TO READ THE WORDS
IN LIEU OF CASH TO MEAN THAT IT BARS A CREDIT CARD SURCHARGE, THAT THE LEGISLATURE HAS
ALREADY CONSIDERED AND REJECTED MORE GENERALLY TO READ THAT IN TO MEAN THAT IN THE UNDER THE
THE P T P A BHI INCLUDES VARIOUS WHERE THE P T P A REGULATIONS WHICH INCLUDES VERY SPECIFIC
LIMITATION, TO READ INTO THERE THAT LIMITATION IS PUTTING A LOT ON THOSE WORDS. THE
DIRECTOR HAD NO PROBLEM LISTING IN EX SCRUTINIZE SHATING DETAIL WHAT TOWERS WERE AND WERE
NOT ALLOWED TO CHARGE FOR AND THOSE ARE HE'S LISTING THERE TOWING AND RELATED STORAGE
SERVICES THAT THEY ARE NOT ALLOWED TO CHARGE FOR, THERE'S NO REASON TO EXPAND BEYOND THERE.
THERE'S NO TEXTURAL INDICATION OR OTHERWISE TO INDICATE THAT THE DIRECTOR MEANT TO EXCLUDE
THIS PARTICULAR TYPE OF TYPE OF CHARGE AND LAST POINT AND I'LL SIT DOWN IS WITH RESPECT
TO THE ADMINISTRATIVE CHARGE AT LEAST IN PELLEGRINO JUSTICE ALBIN YOU ASKED A FEW
QUESTIONS ABOUT IT JUST TO BE CLEAR AN AD ADMINISTRATIVE CHARGE IS SPECIFICALLY ALLOWED
UNDER THE IN CERTAIN CIRCUMSTANCES UNDER THE REGULATION AND THAT'S 13.
JUSTICE ALBIN: YES. APPELLANT: THE ADMINISTRATIVE CHARGE IN PELLEGRINO WAS
PERMITTED AND SPECIFICALLY AUTHORIZED UNDER THE REGULATION. CHIEF JUSTICE
RABNER: THANK YOU ALL COUNSEL FOR THE HELPFUL ARGUMENTS I'LL TAKE THE MATTER UNDER
ADVISEMENT. GO AHEAD, COUNSEL. APPELLANT: I'LL BE VERY BRIEF I DO AGREE
WITH MR. WOLF ON ONE ISSUE. IF THE ORDINANCE CHARGES ARE INCONSISTENT WITH OR DIRECTLY
VIOLATIVE OF THE PREDATORY TOWING ACT THEY CAN'T STAND. BUT IN THE CASE OF B B&C I WANT
TO MAKE A COUPLE OF POINTS. THERE'S A CHARGE FOR LAW-ABIDING CHARGES AND THAT IS COMMON
BECAUSE WE TALK ABOUT A BASIC TOW IS THE DEFINITION. IT WOULD BE NICE IF EVERY TOW
TRUCK COULD BACKUP TO THE FIRST CAR AT THE END OF THE BLOCK AND HOOK UP TO THE CAR AND
DRIVE AUTOMOTIVE WITH THE CAR BUT WHEN WE ARE DOING POLICE TOWING FOR A VARIETY OF REASONS,
THERE MAY BE A CAR IN THE MIDDLE OF THE BLOCK WEDGED IN BETWEEN TWO OTHER VEHICLES. THAT
IS NOT A BASIC TOW. THEY HAVE TO FIGURE OUT HOW ARE WE GOING TO GET THIS CAR OUT FROM
IN BETWEEN THESE TWO CARS WITHOUT DAMAGING THE OTHER TWO CARS, THEY SYSTEMS HAVE TO USE
DOLLIES, SOMETIMES THEY HAVE TO JACK IT UP. THERE'S A VARIETY OF FACTORS. SOMETIMES
THEY CAN'T TOW THE CAR BECAUSE IT'S A FOUR WHEEL DRIVE CAR AND ALL FOUR WHEELS ARE LOCKED
SO THE WHEELS DON'T SPIN FREELY SO THERE ARE CHARGES WHICH ARE PERMISSIBLE UNDER THE
ORDINANCE SO WHEN MY CLIENT CHARGED A LABOR CHARGE THOSE CHARGES WERE ALLOWABLE. THE REGULATION
DEFINE A BASIC TOW AND MY CLIENT CHARGED WHAT THEY CALL AN AD ADMINISTRATIVE FEE. HOWEVER,
THE DEFINITION OF BASIC TOW IS FOR ISSUING DOCUMENTS FOR THE RELEASE OF THE VEHICLE TO
ITS OWNER. THAT WASN'T THE DOCUMENTATION THAT MY CLIENT WAS PREPARING, MY CLIENT WAS
PREPARING DOCUMENTS FOR THE CITY OF NEWARK SO THAT THE CITY OF NEWARK KNEW HOW MANY
VEHICLES WE WERE TOGETHER ON A DAILY BASIS SO THEY COULD MAKE SURE THAT THEY COLLECTED
THEIR $25 ADMINISTRATIVE FEE FOR EACH VEHICLE CHLTH IT WASN'T, WE HAD DONE THIS FOR 30
OR 40 YEARS AND NEVER HAD TO DO THIS PAPERWORK IN ORDER TO RELEASE A VEHICLE. MR. WOLF
SAID THAT THE APPELLATE DIVISION THE APPELLATE DIVISION SAID UNDER TCCWNA THIS IS LIKE
A BAILMENT BUT I CITED THE CASE AND I CITED THE DEFINITION OF BAILMENT. IT IS NOT A BAILMENT
BECAUSE THERE IS NOT A VOLUNTARY TURN OVER OF THE VEHICLE AND I DON'T WANT TO BEAT THIS
TO A DEAD HORSE BUT THERE'S CLEARLY NO CONTRACT EXPRESS OR IMPLIED UNDER TCCWNA AN AGREEMENT
TO TOW. THERE WAS NO OFFER AND ACCEPTANCE AND IF YOU WERE TO AGREE WITH MR. WOLF'S DEFINITION,
THE TRAFFIC TICKET OR THE PARKING TICKET WOULD ALSO BE A CONTRACT, YOU'VE ENTERED INTO
A CONTRACT TO PARK ON A PLACE ON THE STREET AND YOU'VE AGREED TO GIVE THE CITY OF NEWARK
EX DOLLARS BECAUSE YOU WEREN'T ALLOWED TO PARK THERE. A PARKING TICKET IS NOT A CONTRACT
AND NEITHER IS NON-CONSENSUAL TOWING AND JUST TO MAKE THAT POINT IF ANY MEMBERS OF THE
COURT WOULD LIKE I SEE THERE ARE REPRESENTATIVES OF THE GARDEN STATE TOWING ASSOCIATION
HERE, IF I WILL GIVE YOU ON THEIR BEHALF AN OFFER TO TOW YOUR CAR BACK TO NEWARK TODAY
AND. JUSTICE PATTERSON: THE COUNSEL FOR THE GAR EN STATE WAS ALREADY PULLED
OVER. APPELLANT: YOU CAN