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Zorba Contractors, Inc. v. Housing Authority of City of Newark

June 29, 1995

ZORBA CONTRACTORS, INC., PLAINTIFF,
v.
HOUSING AUTHORITY OF THE CITY OF NEWARK, DEFENDANT-THIRD PARTY PLAINTIFF-APPELLANT, V. GEORGIA-PACIFIC CORPORATION, OSMOSE WOOD PRESERVING COMPANY, WOOD TREATING CORPORATION OF PHILADELPHIA, THIRD PARTY DEFENDANTS-RESPONDENTS.



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

Approved for Publication June 29, 1995.

Before Judges Gaulkin, Kestin and A.a. Rodriguez. The opinion of the court was delivered by Rodriguez, A.a., J.A.D.

The opinion of the court was delivered by: Rodriguez

RODRIGUEZ, A.A., J.A.D.

The Law Division dismissed consumer fraud claims brought by the Housing Authority of the City of Newark (Authority), concluding that the Authority is not a "person" as defined by N.J.S.A. 56:8-1 (d). We reverse and hold that the Authority is a person entitled to pursue a claim under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20.

The Authority, a defendant in a multi-party case, filed a third party claim against three suppliers *fn1 to recover the costs of repairing or replacing defective wood-framed asphalt-shingled roofs at three housing complexes. The claims were based on the Act. The Law Division dismissed the claims, concluding that "had the Legislature intended to include organizations such as the Authority under the definition of person it would have so provided...."

By leave granted, the Authority appeals and contends that (1) the statutory language demonstrates that the Legislature intended the term "person" to be expansively construed, (2) governing law declares that the Act should be liberally construed and (3) the Judge relied on case law which is distinguishable in fact and law.

I

The Act was intended to be "one of the strongest consumer protection laws in the nation." Cox v. Sears Roebuck & Co., 138 N.J. 2, 15, 647 A.2d 454 (1994) (quoting Governor's Press Release for Assembly Bill No. 2402, at 1 (Apr. 19, 1971)). It provides, among other things, that a person who suffers a loss due to an unlawful practice under the Act may sue and recover treble damages, attorney's fees and costs of suit. N.J.S.A. 56:8-19; Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 271, 390 A.2d 566 (1978). The Authority asserts that it is a person entitled to sue under the Act.

We begin our analysis by examining the statutory language. The Act provides,

The term "person" as used in this act shall include any natural person or his legal representative, partnership, corporation, company, trust, business entity or association, and any agent, employee, salesman, partner, officer, director, member, stockholder, associate, trustee or cestuis que trustent thereof; ....

[N.J.S.A. 56:8-1(d).]

It is settled that a term whose statutory definition declares what it "includes" is more susceptible to an extension of meaning by construction than a term whose definition declares what a term "means." That is so because "includes" is usually a term of enlargement, not of limitation. It conveys the Conclusion that there are other items includable, though not specifically enumerated. 2A Norman J. Singer, Sutherland Statutory Construction, § 47.07 (5th ed. 1992); see also Fraser v. Robin Dee Day Camp, 44 N.J. 480, 210 A.2d 208 (1965); Cuna v. Board of Fire Comm'rs, Avenel, 42 N.J. 292, 200 A.2d 313 (1964).

The Authority is a body corporate and politic organized under N.J.S.A. 40A:12A-17. It has the power to sue and be sued; make and execute contracts; make, amend and repeal by-laws, rules and regulations; invest in property and securities; borrow money; pay or compromise claims; and acquire real or personal property. N.J.S.A. 40A:12A-22. In many respects the Authority has powers similar to those of a "corporation," "company," ...


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