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Kalathia v. PMM

October 25, 2010

PARTHESH "DANNY" KALATHIA, PLAINTIFF-RESPONDENT,
v.
PMM, INC. D/B/A TOGETHER, AND ARLENE HANSON, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1766-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 15, 2010

Before Judges Fisher and Fasciale.

At the heart of this appeal is a contract expressing defendant PMM, Inc.'s promise to provide dating services to plaintiff in exchange for a fee. The contract, which plaintiff did not read before executing, did not memorialize the oral representation uttered by PMM's salesperson that plaintiff had three days to cancel if he changed his mind; in fact, unknown to plaintiff, the contract stated there was "no provision for . . . cancellation." When plaintiff attempted to cancel the next day, PMM relied on the contract and refused. At the conclusion of a bench trial, the judge found that the salesman's oral misrepresentation about the right to cancel violated the Consumer Fraud Act (CFA), N.J.S.A. 56:1-1 to --20, and awarded treble damages and counsel fees.

In appealing, defendants argue:

I. PLAINTIFF CANNOT AVOID HIS CONTRACTUAL OBLIGATION ON THE GROUND THAT, WHILE HE ADMITTEDLY SIGNED AND INIT[I]ALED THE AGREEMENT, HE FAILED TO READ THE NON-CANCELLATION PROVISION. THE COURT'S CONTRARY RULING CONSTITUTED PREJUDICIAL ERROR WARRANTING REVERSAL.

II. THE PAROL EVIDENCE ADOPTED BY THE COURT AND RELIED BY THE PLAINTIFF RESULTED IN PREJUDICIAL ERROR.

III. BECAUSE THERE WAS NO FRAUD IN THE EXECUTION, PLAINTIFF CANNOT MAKE A CLAIM FOR FRAUD UNDER THE [CFA] AND THE LOWER COURT'S JUDGMENT WAS THEREFORE PREJUDICIAL ERROR.

We find insufficient merit in Point II to warrant discussion in a written opinion.*fn1 R. 2:11-3(e)(1)(E). We also reject defendants' other arguments for the following reasons.

The facts that govern our disposition of this appeal may be briefly summarized. Plaintiff answered an advertisement and, on November 12, 2006, discussed with PMM's salesperson, Arlene Hanson, the purchase of a PMM membership that would provide him with dating services. Hanson advised that the cost was $6495 but, if plaintiff signed a contract that day, he would receive a $1000 discount. Hanson also told plaintiff he would have the right to cancel within three days; the contract expressly states otherwise.

The contract*fn2 consists of a single sheet of paper containing eighteen numbered paragraphs. The paragraphs are comprised of ninety-two lines containing nearly 1400 words, all in an area measuring only five-and-one-half inches by eight inches. The print size is therefore extremely small. The letters are approximately one-sixteenth of an inch high.

The first paragraph states that:

The Client, by executing this agreement, hereby acknowledges that Client is purchasing services of interviewing, testing, evaluating, processing, matching and marketing by [PMM]. It is hereby understood and agreed that PMM matches cost of 5495.00 upon joining; therefore, there is no provision for refunds, recisions [sic] or cancellations of any kind. Client agrees that PMM is an independently owned and ...


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