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Novack v. Cities Service Oil Co.

Decided: April 7, 1977.

STANLEY NOVACK, PLAINTIFF,
v.
CITIES SERVICE OIL COMPANY, A CORPORATION, DEFENDANT



Weinberg, J.d.c., temporarily assigned.

Weinberg

This matter is presently before this court on defendant's motion for summary judgment. Plaintiff's complaint alleges causes of action grounded in contract and tort (defamation) for the allegedly wrongful revocation of plaintiff's Cities Service credit card. Defendant contends plaintiff has failed to state a justiciable cause of action. For the reasons expressed herein, this court concurs.

A motion for summary judgment is appropriate where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2. See generally, Jackson v. Muhlenberg Hospital , 53 N.J. 138 (1969); Judson v.

Peoples Bank and Trust Co. of Westfield , 17 N.J. 67 (1954); Allen v. Planning Board of Evesham , 137 N.J. Super. 359 (App. Div. 1975).

The material facts alleged by the litigants are not in dispute*fn1 and, therefore, it is appropriately before this court on a motion for summary judgment. The facts leading up to this litigation are relatively simple and best recounted in chronological fashion.

Plaintiff applied for and obtained a Cities Service credit card in September 1972. Included with the card, when mailed to plaintiff, was a pamphlet describing generally the terms of the account. One such term was that the account could be cancelled at any time and that upon written request the card was to be returned to Cities Service. On February 4, 1974, plaintiff's account had a substantial balance which was then more than 40 days past due. On that same date, defendant mailed a notice to the operator of one of its service stations which plaintiff had used on a regular basis. The notice informed the operator that plaintiff's card was no longer to be honored and that a reward would be paid for its return.*fn2

Plaintiff thereafter instituted this suit, alleging that this procedure of account cancellation was a breach of contract and that the notification sent by defendant to the station

operator was defamatory. On either ground, plaintiff has failed to state a cause of action cognizable in law.

I. Action Based in Contract

Plaintiff's argument under contract theory is that defendant, by cancelling plaintiff's credit card account without prior notice, and contrary to established intercompany procedures, breached an express term of the contract between them. This term, according to plaintiff, is to be found in the brochure supplied by defendant, specifically;

The card(s) shall remain the property of Cities Service, may be cancelled by it at any time, and upon its written request, you will surrender and mail same to it at its address set out below.

Both parties have expended considerable time and effort in attempting to give varying interpretations to this language. Plaintiff contends that before defendant can cancel the credit card it is required to give plaintiff written notice. In fact, during oral argument plaintiff stated that if he refused to return the credit card, defendant's only recourse would be by an action in replevin. Defendant states that the account may be revoked at any time by any means.

The initial question to be answered is whether the issuance and receipt of a credit card creates a ...


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