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G & W, Inc. v. Borough of East Rutherford

March 29, 1995

G&W, INC., T/A G&W TOWING, PLAINTIFF-APPELLANT,
v.
BOROUGH OF EAST RUTHERFORD, STARS AND STRIPES, INC., T/A ROADMASTERS TOWING, INC., AND JOHN OCCHIUZZIO AND SON, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication March 29, 1995

Before Judges Stern and Humphreys. The opinion of the court was delivered by Humphreys, J.s.c. (temporarily assigned).

The opinion of the court was delivered by: Humphreys

HUMPHREYS, J.S.C. (temporarily assigned).

Plaintiff G&W, Inc., a towing company, charges the defendant municipality and two towing companies with conspiring to exclude plaintiff from the towing business in East Rutherford. Plaintiff seeks damages contending that the defendants violated (1) the New Jersey Antitrust Act ("Act"), N.J.S.A. 56:9-3 and N.J.S.A. 56:9-4a; (2) the New Jersey Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq.; and (3) the Federal Civil Rights Act, 42 U.S.C.A. § 1983.

The motion Judge found "no intent by the defendants to deprive G&W from towing in the borough." The Judge therefore entered a summary judgment dismissing the complaint. The Judge also denied plaintiff's cross-motion for the entry of a partial summary judgment declaring that the municipality violated the Local Public Contracts Law. A year earlier, the Judge had denied plaintiff's motion to add the municipal police chief and members of the borough council as defendants.

Plaintiff appeals these decisions. We reverse and remand as set forth in this opinion.

I

We have carefully reviewed the record and considered the briefs and oral argument. We conclude that read indulgently in favor of the plaintiff, see Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75, 110 A.2d 24 (1954), the facts and inferences therefrom support a Conclusion that the defendant municipality acting in concert with the other defendants has wrongfully restricted the towing business in East Rutherford to those defendants and thereby excluded plaintiff.

This Conclusion is based on the following probative evidence supporting plaintiff's position: (1) Plaintiff has been seeking a share of the towing business in East Rutherford for the last ten years. Its applications are regularly denied or otherwise rebuffed. (2) Defendant Roadmasters Towing, Inc. ("Roadmasters") refuses to pay East Rutherford for a towing license but still gets the municipal towing business. (3) Roadmasters apparently uses municipal land for its towing business without paying any rent. (4) Roadmasters makes political contributions to public officials in East Rutherford. (5) The President of Roadmasters is an old and good friend of the East Rutherford Police Chief. The police are instrumental in deciding who gets the towing business. (6) The Attorney General advised East Rutherford in 1986 that its towing arrangements with Roadmasters violated the antitrust laws. Despite that advice, East Rutherford continued the arrangements. (7) In 1989, the Attorney General issued a formal opinion that a municipality which elects to provide municipal towing services through private vendors can only do so by public advertisement and bidding. Notwithstanding the Attorney General's opinion, East Rutherford and the defendant towing companies continued their exclusive relationship.

Based on the foregoing, a trier of fact could conclude that the New Jersey Antitrust Act has been violated. That Act provides that "every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce, in the State, shall be unlawful." N.J.S.A. 56:9-3.

The Act also provides that "it shall be unlawful for any person to monopolize, or attempt to monopolize, or to combine or conspire with any person or persons, to monopolize trade or commerce in any relevant market within this State." N.J.S.A. 56:9-4a.

Private parties who are injured by violations of the Act may recover treble damages and attorneys' fees and costs. N.J.S.A. 56:9-12a.

In interpreting the New Jersey Act, federal cases should be looked to for guidance. The Act expressly provides that it "shall be construed in harmony with ruling judicial interpretations of comparable Federal antitrust statutes and to effectuate, insofar as practicable, a uniformity in the laws of those states which enact it." N.J.S.A. 56:9-18. See also ...


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