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Kugler v. Pontiac-Buick

Decided: September 28, 1972.

GEORGE F. KUGLER, JR., ATTORNEY GENERAL OF NEW JERSEY, PLAINTIFF,
v.
BANNER PONTIAC-BUICK, OPEL, INC. A NEW JERSEY CORPORATION, DEFENDANT



Stamler, J.s.c.

Stamler

The question before the court is whether the Attorney General is precluded from bringing a consumer fraud action under N.J.S.A. 56:8-1 et seq. after defendant had been acquitted in municipal court of disorderly persons charges arising out of the same operative facts.

Defendant Banner Pontiac-Buick, Opel, Inc., a New Jersey corporation, is engaged in the business of selling new and used automobiles to the consuming public. Plaintiff, as Attorney General of New Jersey, filed a verified complaint under the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. , against defendant. The complaint alleged that defendant had altered the odometer so that the vehicle purchased by a member of the consuming public was represented to have been driven less than 40,000 miles when in actuality the miles were in excess of 75,000. This was the fraud or deceptive practice charged. The relief demanded is: (a) a permanent injunction enjoining defendant from altering true odometer readings in cars thereafter sold or offered for sale to the consuming public; (b) restitution for the defrauded consumer; (c) an order revoking for an appropriate period defendant's motor vehicle dealer's license issued by the Division of Motor Vehicles under N.J.S.A. 39:10-9; (d) an order revoking for an appropriate period defendant's license to operate as a motor vehicle installment seller issued by the Commissioner of Banking in accordance with N.J.S.A. 17:16c 2 and 4; (e) a monetary penalty of $2,000 in accordance with N.J.S.A. 56:8-13, and (f) costs for the State pursuant to N.J.S.A. 56:8-11.

An order to show cause was issued for summary hearing as provided by the Consumer Frauds Act in conformity with

R. 4:67-1 et seq. Prior to the return day defendant filed an answer denying the alleged turnback of the odometer and additionally set up three separate defenses. Defendant demanded a trial by jury of 12. On the return day defendant moved to have the order to show cause discharged and the complaint dismissed relying on the separate defenses of res judicata , collateral estoppel and the absence of jurisdiction in this court to enjoin what is asserted to be the violation of a criminal statute.

Prior to the filing of the complaint herein, defendant had appeared in municipal court to answer a charge that it had violated N.J.S.A. 2A:170-50.1 which declares that one who alters an odometer reading on a car is a disorderly person. Defendant was acquitted in municipal court. Plaintiff acknowledges that the activity there complained of arose out of the same operative facts which are now set forth in the case at bar.

If the res judicata plea is tenable, it must be shown that there are identical causes of action.

Defendant was tried in the prior action under a statute which makes it a disorderly persons offense to misrepresent the mileage of a motor vehicle which is offered for sale. Such offense is below the grade of a misdemeanor. Although punishable in a summary manner and quasi -criminal, the procedural rules governing criminal prosecution apply. State v. Vaughner , 76 N.J. Super. 594 (App. Div. 1962). The standard of proof to be carried by the State requires that each element be proven beyond a reasonable doubt. An acquittal, therefore, is only indicative of the fact that the prosecution was unable to meet this high burden of proof as to each and every element of the offense.

Turning now to the cause of action sub judice , the complaint was filed under a separate statute, the Consumer Frauds Act, N.J.S.A. 56:8-1 et seq.

The statement on the bill sets forth clearly the intent of the Legislature:

The purpose of this bill is to permit the Attorney General to combat the increasingly widespread practice of defrauding the public. The authority conferred will provide effective machinery to investigate and prohibit deceptive and fraudulent advertising and selling ...


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