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DeMarco v. Township of Piscataway


July 1, 2009


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1257-07.

Per curiam.


Submitted February 11, 2009

Before Judges Stern, Rodríguez and Payne.

Plaintiff, Richard DeMarco, appeals from a final judgment of February 29, 2008, denying his "motion to enforce" a prior order of November 16, 2007. The judgment also required plaintiff "to pay any reasonable costs associated with the impoundment and storage" of the car he had purchased, and denied his motion to vacate the dismissal of his complaint. The November 16, 2007, order had required defendant Township of Piscataway to "turn over" the subject vehicle to plaintiff "without any costs or further requirements." The vehicle had been impounded because a record check, following a random motor vehicle stop, revealed no registration and title. It has been in storage since September 22, 2006.

Plaintiff contends that the November 2007 order for release of the vehicle should be enforced, that the towing company had no right to retain the vehicle or obligate the vehicle owner, and that the fee it sought is inconsistent with the governing ordinance and cannot be enforced in this proceeding against the Township. Plaintiff seeks to avoid paying storage fees after October 5, 2006, when the owner first endeavored to obtain release of the car.*fn1


There is no dispute about the propriety of the impoundment as the vehicle was not registered and had no insurance when a mobile data terminal (MDT) check was performed.

On September 22, 2006, the Piscataway Township Police Department impounded the 2002 Nissan Silva vehicle that was being driven by Bhavin A. Patel, after he failed to produce valid insurance and motor vehicle registration cards. In addition, the vehicle did not have a vehicle identification number (VIN) and had a license plate that was not on record with the New Jersey Motor Vehicle Commission (MVC). The vehicle was removed from the roadway and stored by Gemini Towing, an operator licensed by Piscataway Township.*fn2

On October 5, 2006, Mr. Patel produced a "Bill of Sale" indicating that the vehicle was ... a RHD (right hand drive) Japanese spec SILVA. Not 240SX in United States. This Unit is for exhibition/demonstration purpose only. It should not be driven on public, private, or off-road highways.

Attached to the Bill of Sale was a document written entirely in Japanese that purportedly was the title of ownership for the vehicle. Upon presentation of these documents, the Piscataway Police Department refused to release the impounded vehicle and informed Patel that he would need to acquire a proper certificate of ownership issued by the MVC.

On January 2, 2007, plaintiff sent to the Piscataway Police Department an insurance identification card, a copy of a Bill of Sale and Assignment of Claim transferring interest in the vehicle from Mr. Patel to the plaintiff, along with a "notice of intent and demand for release" of the vehicle. On January 9, 2007, the Township responded by letter, again advising plaintiff that he needed to obtain the proper certificate of ownership issued by the MVC in order to reclaim the vehicle.

On January 10, 2007, plaintiff filed a Verified Complaint and Order to Show Cause seeking the "immediate release" of the vehicle to him, and fixing the cost of storage to the time period between the initial impoundment of the vehicle and Patel's attempt to retrieve it on October 5, 2006. On April 5, 2007, the Law Division denied relief, and "recommended" to plaintiff, who was pro se at that time, to "add Gemini Towing as a party inasmuch as there was an issue concerning the payment of towing and storage fees being charged by the towing company."

On October 25, 2007, plaintiff filed another motion for the release of the vehicle after obtaining a certificate of ownership from the MVC. Defendant Township responded to the court that it did not object to the release of the vehicle upon plaintiff's payment of the storage fees due to Gemini Towing.

In its letter to the court, dated November 7, 2007, defendant's counsel wrote:

As the Plaintiff is aware, there are costs for towing and storage which are due prior to the release of the vehicle. It is the Township's understanding that the Plaintiff contests the amount of the fees. However, the Plaintiff has chosen not to name the wrecker as a Defendant in the present action. Therefore, it is requested that any order for the release of the vehicle require the Plaintiff to pay all fees incurred for towing and storage.

On November 16, 2007, the motion judge entered the order requiring defendant, "without any costs or further requirements [to] turn over [the vehicle] to the Plaintiff."

On November 26, 2007, plaintiff failed to appear at the scheduled trial call, and his complaint was dismissed.*fn3 On December 6, 2007, plaintiff served the November 16, 2007 order upon the Township for the first time, when he arrived at the Piscataway Township Police Department with "a flat bed tow truck, demanding the release of the Vehicle." On December 7, 2007, the Township sent a letter to Gemini Towing, informing it that the Township "ha[d] no objection" to releasing the vehicle in light of the November 16, 2007 order. However, Gemini Towing refused to release the vehicle until payment of all towing and storage fees from the date of impoundment were paid.

On December 11, 2007, plaintiff filed a motion to enforce the order of November 16, 2007, and a motion seeking to vacate the entry of dismissal and to reinstate the complaint. On December 24, 2007, the Township cross-moved for reconsideration of the November order and for the court to order plaintiff "to pay any charges incurred with the impoundment and storage of [the car] prior to release of the vehicle." We are told that the original judge recused himself from all further proceedings after entering an order authorizing his replacement to reconsider his prior order.*fn4 As previously noted, the applications to vacate the dismissal, to enforce the November order and for its reconsideration were all denied in the order entered on February 29, 2008. That order added that "Plaintiff shall be required to pay any reasonable costs associated with the impoundment and storage of the subject vehicle prior to release of same." In his oral opinion the new judge also stated to plaintiff

Judge Paley's order still stands, and I think, quite clearly, when this order was entered, Judge Paley thought that the vehicle was in the custody and control of the Township. I don't find that to be the case. I'm satisfied the Township is not standing in your way of retrieving the vehicle, and there's a letter to confirm that in the file. Moreover, the case is dismissed. I would advise you, there is a statute of limitations, which you may have to deal with and you would be well advised, if you want to continue to pursue this, to file a claim against the more appropriate party. The matter is -- the motion is denied.


Plaintiff argues that the trial court lacked jurisdiction to enter a money judgment in favor of a non-party, the towing company.

"Ordinarily, a litigant may not claim standing to assert the rights of a third party." Jersey Shore Medical Center-Fitkin Hospital v. Estate of Baum, 84 N.J. 137, 144 (1980). In order to stake a claim on behalf of a third party, the proponent "must show a personal stake in the outcome of the litigation or controversy in an adversarial context and in a form historically viewed as capable of judicial resolution." Frazier v. Liberty Mut. Ins. Co., 150 N.J. Super. 123, 137 (Law Div. 1977).

Neither of the parties' pleadings named the towing company in the action, and the Township's answer did not set forth any monetary claims against plaintiff. There was no counterclaim. Nevertheless, upon defendant's cross-motion, the court ordered plaintiff to pay "any reasonable costs" of storage for the benefit of the towing company prior to obtaining release of the motor vehicle. However, that order did not compel any payment nor enter judgment against plaintiff. It merely set a condition for the compelled release of the vehicle impounded under the statutory authority delegated to defendant. The jurisdiction to compel payment of fees authorized by a governing ordinance is clear. To the extent the order can be read to sustain the non-party towing company's demands for payment, however, it is vacated.*fn5

The November 2007 order to release the vehicle was directed at the Township, which was the only named defendant in the action. The claims of the towing company remain unresolved because it was not brought into the action. Plaintiff remains without the vehicle because he failed to join the towing company as a party to the suit, thereby rendering the court unable to adjudicate on the question of fees claimed by the towing company. We are not convinced that, because the towing company acted pursuant to authorization of the Township, it is not entitled to be heard as to its independent rights.

In any event, we are advised that plaintiff has now commenced a separate action against the towing company. As the Township has authorized release of the vehicle, it need not be a party, and the fact this case was dismissed and not reinstated may be irrelevant.*fn6

Accordingly, we do not address the pending dispute between plaintiff and the towing company other than to say plaintiff's argument that the towing company had no legal right to retain the vehicle could not be properly adjudicated without naming the towing company as a party to the suit. We reject plaintiff's contention that because of the role of the Township, and the order of November 27, 2007 compelling it to return the car, we should now hold no storage fees can be awarded.

N.J.S.A. 39:3-4 provides that "the expense involved in such removal and storing of the vehicle shall be borne by the owner of the vehicle." Plaintiff argues that only the Township, not the towing company, was authorized by the statute to receive the impoundment costs from the plaintiff and to retain the vehicle until the costs were paid, and that the Township does not now seek them.

Pursuant to N.J.S.A. 40:48-2.49: a municipality may regulate, by ordinance, the removal of motor vehicles from private or public property by operators engaged in such practice, including, but not limited to, the fees charged for storage following removal in accordance with section 3 of P.L.1987, c.127 (C.40:48-2.50), fees charged for such removal, notice requirements therefor, and the mercantile licensing of such operators.

The statute sets fee limits that a towing operator may charge to a municipality for the storage of removed motor vehicles [which] shall not exceed the following:

(1) A limit of $3.00 per day for the first 30 days of storage per vehicle; and

(2) A limit of $2.00 per day for the 31st day of storage and any day thereafter; and

(3) A limit of $400.00 per vehicle stored regardless of the duration of the storage, except that a waiver may be granted for good cause upon the request of a municipality by the Division of Local Government Services in the Department of Community Affairs. [N.J.S.A. 40:48-2.50.]

Such fee limits, however, pertain to municipal charges and do not expressly apply to vehicle owners whose automobiles are involuntarily towed and stored, and thereafter returned. A more recent statute, L. 1997, c. 387, §3, effective January 19, 1998, provides:

[t]he governing body of a municipality or county which requires the towing and storage of motor vehicles without the consent of the owners of those vehicles shall adopt an ordinance or resolution, as appropriate, setting forth a model schedule of towing and storage services which they require and the rates therefor, which rates shall be based on the usual, customary and reasonable rates of operators towing and storing motor vehicles in the municipality or county, as applicable. [N.J.S.A. 40:48-2.54(a).]

The same statute requires municipalities that adopt such a schedule to also implement a procedure to receive complaints and resolve disputes arising from the towing and storage of motor vehicles required by the municipality without the consent of the owner. [N.J.S.A. 40:48-2.54(b).]

Neither party cites these statutes, and we decline to address the relationship between the statutes in this case or their impact on the ordinances in question, as the issues have not been briefed.

The record indicates that the Township enacted two ordinances related to the towing and storage of motor vehicles. Ordinance 5-5.5 was directed at the impoundment of abandoned vehicles and it provides that

[t]he vehicle shall be retained and impounded until the owner or his duly authorized agent pays the cost of the taking and removal, together with a garage charge of two ($2.00) dollars for each day the vehicle is retained and impounded.

Additionally, the Township enacted Ordinance 7-13.11, which sets a schedule of towing and storage fees to be charged by licensed operators that provided a daily rate of $25.00 for inside storage facilities and $20.00 for outside storage facilities. Both ordinances provide the towing company the right to retain possession of the automobile until payment for its services was received. Because plaintiff failed to name the towing company in his suit, the Law Division could not adjudicate the amount of the fee claimed,*fn7 and properly did not do so in terms of setting an amount. Nor did the Law Division have to decide the entity responsible for collection.

In his action against the towing company, plaintiff may raise all issues he deems relevant including the validity and application of the ordinances. However, he cannot challenge the validity of the ordinances themselves without joining defendant Township. As some of his arguments in this case were not addressed because the towing company was not joined, there would be no procedural bar to their consideration in a single action against the Township and the towing company. Given the pending action against the towing company, we so hold as a matter of judicial economy, rather than remanding this matter with leave to add the towing company. See R. 4:5-1(b); R. 4:30; See also First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 351-52 (2007) (among elements necessary for a claim of issue preclusion are "(2) the issue was actually litigated in the prior proceeding" and "(3) the court in the prior proceeding issued a final judgment on the merits." Id. at 352 (quoting Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005)).

The judgment is affirmed as modified.*fn8

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