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In the Matter of West-Way Car Rental, Inc. v. New Jersey Motor Vehicle Commission

July 27, 2012

IN THE MATTER OF WEST-WAY CAR RENTAL, INC. WEST-WAY CAR RENTAL, INC., PLAINTIFF-RESPONDENT,
v.
NEW JERSEY MOTOR VEHICLE COMMISSION, DEFENDANT-APPELLANT, AND SHARON HARRINGTON, DIRECTOR, MICHAEL CALOREL, INDIVIDUAL, A.T.R. ENTERPRISES, INC., D/B/A ALL-HOURS TOWING SERVICE, AND ANTHONY KESSLER, INDIVIDUAL, DEFENDANTS.



On appeal from the New Jersey Motor Vehicle Commission in A-3664-09 and from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7256-08 in A-5122-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 17, 2012

Before Judges Sabatino and Kennedy.

In these consolidated appeals, West Way Car Rental, Inc. (West Way) appeals from a March 3, 2010 final agency decision of the New Jersey Motor Vehicle Commission (MVC) ordering that a "forty foot, 2001 Ford Excursion autobus" owned by West Way not be released from impoundment unless West Way registers the vehicle, obtains insurance in the amount of $5 million, and obtains operating authority or a waiver thereof from the Federal Motor Carrier Safety Administration (FMCSA). The MVC appeals from a June 17, 2010 order of the Law Division vacating the court's May 19, 2010 stay of a writ of replevin for the vehicle it had issued on July 22, 2009.

Our review of these matters is hampered by the failure of both parties to provide all the materials required by Rule 2:6-1(a). In addition, both parties cite to orders, briefs and arguments made before an administrative law judge (ALJ), and fail to provide copies of such orders, briefs or a transcript of the hearing conducted by the ALJ. This failure to provide a complete record of materials essential to a proper consideration of the issues, R. 2:6-1(a)(1)(H) and R. 2:6-3, ordinarily would warrant a summary affirmance. See Society Hill Condominium Ass'n v. Society Hill Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). Nonetheless, we chose to examine the parties' arguments on appeal to the extent permitted by what has been provided to us.

I.

We discern the following facts and procedural history from materials supplied by the parties, which, as noted, are not the complete record.

It appears that on August 31, 2008, MVC investigators discovered West Way's vehicle discharging passengers in Belmar and ordered the vehicle impounded. We recite the background facts as set forth in the ALJ's initial decision of January 6, 2010, because it appears that these facts are uncontested:

On August 31, 2008, Daniel Hebert and Ronald English, both motor carrier investigators for the New Jersey Motor Vehicle Commission noticed a forty-foot Ford Excursion discharging passengers in Belmar, New Jersey. As they approached the autobus, they noticed it had no license plates and no inspection sticker. They identified themselves to the driver and instructed him to follow their vehicle to a nearby inspection site. As they returned to the inspection site, the autobus, the vehicle in question herein, made a right-hand turn and drove the wrong way down a one-way street. The autobus came to a stop when another vehicle approached from the opposite direction.

The police were called while Mr. Hebert and Mr. English attempted to get the driver of the autobus to shut off the engine. When the police arrived, the autobus was driven to a mobile inspection unit at which point, the driver was arrested and the vehicle inspected. At the time of the inspection, it was determined that the vehicle was uninsured, unregistered, had fictitious plates and the driver did not have a commercial driver's license. In addition to these violations, there were many safety violations which resulted in the issuance of sixteen motor vehicle violations.

The vehicle was impounded.

On September 19, 2008, West Way Car Rental filed an Order to Show Cause in the Law Division seeking the release of the impounded vehicle. The Court dismissed the request for restraints and injunctive relief citing its lack of jurisdiction to determine the validity of agency actions.

Petitioner then filed an application for emergent relief with the Appellate Division, which denied the petitioner's relief resulting in the petitioner filing this motion with the Motor Vehicle Commission for emergent relief.

After several adjournments and unsuccessful settlement negotiations, a hearing was conducted on August 6, 2009.

Not in dispute was the fact that the subject autobus was properly impounded. The certifications of English and Calorel (supervisor at the ...


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