On appeal from Superior Court, Law Division, Union County.
Petrella, Long and D'Annunzio.*fn1The opinion of the court was delivered by Petrella, P.J.A.D.
[261 NJSuper Page 127] This appeal involves the interpretation of a provision regarding arbitration in a contract for construction of a house, election of remedies and the interrelationship of the contract's provisions with the applicable statutes, including The New Home Warranty and Builders' Registration Act (the Act), N.J.S.A. 46:3B-1 to 20. The Law Division Judge granted summary
judgment in favor of defendants. Plaintiff Ronald Marchak appeals. We reverse.
Marchak entered into an October 11, 1986 contract with Claridge Commons, Inc. (Claridge)*fn2 for construction of a single-family house in a development known as "Parkside Manor" at 300 Parkside Drive in Union, New Jersey. At the time Marchak signed the contract he was represented by an attorney.*fn3
Paragraph twelve of the contract Marchak signed with Claridge was entitled "Homeowner's Warranty" and stated in pertinent part:
12. Homeowners Warranty. Seller shall provide buyer with insurance-backed warranty coverage and protection under New Jersey's Homeowners Warranty Act.
Buyer and Seller acknowledge and agree that the warranty and insurance remedies contained in the homeowner's warranty provided by seller to buyer constitute the exclusive remedies of the buyer. The parties agree that the conciliation and arbitration procedures as outlined in the Homeowner's Warranty Act, are better suited to the determination of outstanding issues, if any, between the parties than any remedy which may be sucured [ sic ] by resort to legal process. Buyer represents that he has read the act to which reference is made and that he has secured the advice of counsel in making this election of remedies. This election of remedies, it is agreed, shall survive closing of title.
The closing of title took place on July 13, 1987. Although the summary judgment record does not reflect it,*fn4 before the closing,
Marchak delivered a "punch list" of items which needed to be corrected. There were apparently other punch lists, but defendant seems to have failed to remedy certain of the items listed. We are satisfied that this appeal can be decided on the law despite the limited record. We can take judicial notice of court records, applicable law, and facts of common knowledge, see Evid.R. 9.
Marchak instituted suit against Claridge on March 7, 1990. An engineering firm retained by Marchak to conduct an inspection submitted a report dated September 6, 1991, which noted several instances where construction of the home allegedly did not meet the "Performance Standards" of the New Jersey Administrative Code and regulations governing New Home Warranty and Builder's Registration. The report also stated that there were some missing building components, including a missing steel "lolly" column which should have been installed under a girder in the basement. Instead, an improper wood column was in its place and that column did not perform its intended function.*fn5 Marchak asserted that as a result of the use of the wood column, the floor is bowed and tiles cracked. Thereafter, Marchak amended his complaint to assert that Claridge's conduct constituted an unconscionable act in violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to 60.
Claridge contended in its motion for summary judgment that under its contract with Marchak arbitration under the Act was his exclusive remedy based on the language in paragraph twelve quoted above. However, the two-year period for resolving disputes over matters of workmanship and material has elapsed and Claridge takes the position ...