On appeal from the Union County Court.
Defendant appeals from a County Court judgment fining it $250 for violating N.J.A.C. 13:45A-5.1 by failing to deliver furniture by the promised delivery date, and by not notifying the customer of his options upon nondelivery. The trial judge also ordered defendant to return the customer's deposit of $98.10.
The pertinent facts were largely undisputed. Martin Brodbar ordered six chairs and one dining room table from defendant in August 1976. Brodbar intended, and defendant's salesman was aware, that the pieces were to be used together as a dining room set, even though the chairs and the table were made by two different manufacturers. On the contract of sale the salesman wrote the estimated delivery dates: 6-8 weeks for the chairs, 12-16 weeks for the table. Prices for each item were not listed separately on the contract. Rather, a total price was indicated.
The chairs arrived within the time promised, but Brodbar declined to accept delivery stating (as he had when he placed the order) that he wanted the chairs and table delivered at the same time. The table did not arrive by the promised date. When it had not arrived by March 1977, Brodbar canceled the entire order in writing.
On appeal de novo on the municipal court record, defendant was found to have violated N.J.A.C. 13:45A-5.1, a regulation purporting to define one form of practice proscribed by the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. That regulation provides:
(a) It shall be a deceptive practice in connection with the sale of household furniture, for which contracts of sale or sales orders are used for merchandise ordered for future delivery, to consumers resident in New Jersey and by persons engaged in business in New Jersey, unless, when the promised delivery date has been reached, the person (including any business entity) who is the seller either:
1. Delivers the promised merchandise; or
2. Notifies the consumer of the impossibility of meeting the promised delivery date by written notice, mailed on or prior to the delivery date, offering the consumer the option to cancel with a prompt, full refund of any payments already received; or
3. Notifies the consumer of the impossibility of meeting the promised delivery date by written notice, mailed on or prior to the delivery date, offering the consumer the option of accepting delivery at a specified later time.
(b) For purposes of this rule, "household furniture" includes but is not limited to furniture, major electrical or gas appliances, and such items as carpets and draperies.
It was undisputed that defendant failed to provide Brodbar with the required notice of options when the ...