Before Judges King, Newman and Fall.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January l3, l999
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County.
In this Consumer Fraud Act case, plaintiff Albert Delaney, an automotive consumer, brought suit against defendant Garden State Auto Park, an automobile dealership, seeking damages for consumer fraud, breach of contract and negligence relating to the purchase of a used automobile. At issue is whether an automobile dealer's failure to disclose the price charged to the consumer for pre-delivery services and failure to itemize such services violates the Consumer Fraud Act, N.J.S.A. 56:8-1. We hold that defendant violated the Consumer Fraud Act in failing to disclose to the consumer the price of the pre-delivery services and in failing to itemize such services in the final sales agreement.
Plaintiff responded to a newspaper advertisement in the Asbury Park Press for a l988 Ford Crown Victoria at defendant's advertised price of $5995. On October l8, l993, plaintiff met with Donna Mattos, a salesperson with defendant. He entered into a retail buyer's order for a sale price of $5783. Leaving a deposit of $75, he sought to finance part of the purchase in order to establish credit because he had not done so for many years.
Plaintiff received a call from the dealership informing him that there was a problem with the credit submission. He, therefore, returned on October 26, l993 depositing an additional $3425, $3000 of which was paid in cash. Plaintiff was then referred to a financial officer, Joseph DeGeorge, Jr. DeGeorge sought to sell plaintiff a vehicle service contract for $ll00. The standard warranty on the used car plaintiff was purchasing for the engine and powertrain was thirty days or l,000 miles. The service contract extended the warranty to two years or 24,000 miles. In connection with this warranty, plaintiff signed an internal authorization form which listed the following items to be completed: rust proofing, undercoating, paint sealant and fabric guard. Underneath those four items, the following appeared:
"All this is included in payment with the payment with the powertrain warranty. $2l8.29 b.o. 36 months."
Plaintiff rejected the service contract, considering it too costly. The service contract was then marked "VOID."
Thereafter, a retail installment sales agreement was executed, although some dispute exists over whether plaintiff endorsed the agreement in blank. The retail sales agreement, containing an itemization of the amount financed, noted plaintiff's total cash purchase price of $7983. After the deduction of plaintiff's total cash deposit of $3500 and added finance charges, plaintiff's monthly payment was reduced to $177 for a thirty-six month term once he rejected the service contract. The retail installment sales agreement did not include or enumerate any pricing or listing of any type of pre-delivery service.
John Schmelz, III, the owner and president of Garden State Auto Park, testified that the price of each pre-delivery service was not enumerated in any document provided to the consumer:
Q: "Now, you were asked a question regarding the invoice, and the fact that these items don't appear separately on an invoice. Is that unusual?" A: "No, it would never be reflected. This is an internal document. This document is not provided to the consumer; this is an internal accounting document, so that the office can then put this through our accounting system." Q: "And when it talks about accessories and other things that Counsel pointed out to you, what type of stuff would that be?" A: "It's never provided on this document. This document never reflects anything like that. The vehicle was sold as a whole, and as I said, this particular document is used, prepared by the clerk who administers the sales file in getting it ready for the bank. And then it's provided to the account personnel so that they can account for the sale of this vehicle. It's not ever provided. The only other thing that would be shown on this internal document, other than what's shown, is if there's a trade-in, that would be reflected on this document so that also it could be accounted for and brought into inventory."
After plaintiff made all of the payments, he received a copy of the retail installment sales agreement, disclosing that he had paid $7983 for the vehicle, an amount $2200 more than the $5783 he had agreed to pay pursuant to the retail buyer's order. Upon contacting defendant, plaintiff learned that the $2200 discrepancy ...