BERNICE PISACK, on behalf of herself and all others similarly situated, Plaintiff-Appellant Cross-Respondent,
B & C TOWING, INC., Defendant-Respondent Cross-Appellant, and MARIE J. CAVALCHIRE and ALAN ANTHONY YOUNG, Defendants, and B & C TOWING, INC., Defendant/Third-Party Plaintiff-Respondent/Cross-Appellant,
THE CITY OF NEWARK, Third-Party Defendant-Respondent, EPTISAM PELLEGRINO, on behalf of herself and all others similarly situated, Plaintiff-Appellant,
NICK'S TOWING SERVICE, INC., Defendant-Respondent, and NICHOLAS TESTA and SUSAN TESTA, Defendants. CHRISTOPHER WALKER, on behalf of himself and all others similarly situated, Plaintiff-Appellant,
ALL POINTS AUTOMOTIVE & TOWING, INC., Defendant-Respondent, and THOMAS LOCICERO, Defendant.
April 24, 2018
appeal from Superior Court of New Jersey, Law Division,
Middlesex County, Docket No. L-6501-13, and Bergen County,
Docket Nos. L-1606-17 and L-7929-13.
R. Wolf argued the cause for appellant/cross-respondent in
A-2546-16 and appellant in A-5668-16 (The Wolf Law Firm, LLC,
and Christopher J. McGinn, attorneys; Matthew S. Oorbeek, on
R. Wolf argued the cause for appellant in A-5399-16 (The Wolf
Law Firm, LLC, and Edwyn D. Macelus, attorneys; Matthew S.
Oorbeek, on the briefs).
Gabriel H. Halpern argued the cause for
respondent/cross-appellant in A-2546-16 (Pinilis Halpern,
LLP, attorneys; Gabriel H. Halpern, of counsel and on the
F. Olivo, Assistant Corporation Counsel, argued the cause for
respondent in A-2546-16 (Kenyatta K. Stewart, Corporation
Counsel, attorney; Steven F. Olivo, on the brief).
B. Stein argued the cause for respondent in A-5399-16
(Hartmann Doherty Rosa Berman & Bulbulia, LLC, attorneys;
Paul S. Doherty, III, and Jeremy B. Stein, on the brief).
T. Giblin, Sr., argued the cause for respondent in A-5668-16
(Giblin & Gannaio, attorneys; Brian T. Giblin, Sr., and
Brian T. Giblin, Jr., on the brief).
Judges Reisner, Hoffman, and Gilson.
three appeals involve the non-consensual towing of vehicles
and raise questions concerning the Predatory Towing
Prevention Act (Towing Act), N.J.S.A. 56:13-7 to -23, the
Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and the
Truth-In-Consumer Contract, Warranty and Notice Act (TCCWNA),
N.J.S.A. 56:12-14 to -18. Accordingly, we issue a
consolidated opinion to address the common questions
presented by these appeals.
reviewed the language and legislative history of the Towing
Act and its implementing regulations, we hold that: (1) the
Towing Act does not require the exhaustion of administrative
remedies before the Division of Consumer Affairs (Division)
or dispute resolution procedures established by
municipalities that have towing ordinances; (2) the Tort
Claims Act (TCA) does not provide immunity against claims
based on the fees companies charge for non-consensual towing
of vehicles; and (3) the Towing Act and its regulations limit
the services for which a towing company can charge. We also
hold that the TCCWNA applies to the non-consensual towing of
vehicles because the bills issued by towing companies are
contracts and notices within the definition of the TCCWNA.
Finally, we hold that class actions may, in the right
circumstances, be appropriate for claims under the Towing
Act, the CFA, and the TCCWNA.
we reverse the orders on appeal in each of these three cases
and remand for further proceedings. Specifically, in
Walker, we reverse a July 24, 2017 order granting
summary judgment to defendants and remand for further
proceedings; in Pisack, we reverse a January 13,
2017 order denying plaintiff's motion to certify a class
and granting defendants' cross-motion for summary
judgment, and we remand for further proceedings; and in
Pellegrino, we reverse a June 5, 2017 order striking
plaintiff's request to certify a class action and remand
to allow class discovery.
these appeals involves certain common facts. None of the
three named plaintiffs consented to the towing of their
vehicles. Instead, the vehicles were towed from public roads
at the direction of the police. Plaintiffs then were charged
for the non-consensual towing of their vehicles by
privately-owned towing companies that had contracts with the
local municipalities to provide such towing and storage
those common facts, the three cases arise out of different
factual backgrounds and involve different procedural
histories. Thus, we will summarize the relevant facts and
procedural history of each case to give context to the
early morning hours of December 29, 2012, Christopher Walker
was driving his vehicle in River Edge when he was stopped by
a police officer. The officer observed the vehicle was not
registered. Thus, the officer issued Walker a summons and
directed that the vehicle be towed and held until Walker
registered the vehicle. Defendant All Points Automotive &
Towing, Inc. (All Points Towing), which had a contract with
River Edge, towed Walker's vehicle.
registered the vehicle later that same day, which was a
Saturday, and tried to pick up the vehicle from All Points
Towing before it closed for business at 1 p.m. Walker
contends that the police authorized the release of his
vehicle on December 29, 2012, but All Points Towing refused
to release the vehicle to him because they were closing for
the remainder of the weekend. In contrast, All Points Towing
maintains that the police did not authorize the release of
the vehicle until the following Monday, December 31, 2012.
December 31, 2012, Walker retrieved his vehicle, and All
Points Towing charged him $290.85. Walker was given a bill
that listed the charges as: Towing Charge $125; Storage $120;
"Admin" $35; Tax $10.85; and Total $290.85. Walker
paid the bill in cash without disputing the charges.
October 2013, Walker filed a complaint on behalf of himself
and similarly situated individuals against All Points Towing
and its owner. Walker alleged that the Towing Act did not
permit an administrative charge for the non-consensual towing
of a vehicle that was not involved in an accident. Walker
contended that the administrative charge violated the Towing
Act, the CFA, and the TCCWNA. Walker also asserted that All
Points Towing unlawfully failed to release his vehicle after
normal business hours as required by the Towing Act and its
regulations. Thus, Walker asserted that a class action should
case effectively was stayed while Walker was on active
military service. See R. 1:13-6. Following the
completion of discovery, defendants moved for summary
judgment. Walker had not filed a motion to certify the class.
The trial court heard oral argument and, on July 24, 2017,
issued a written opinion and entered an order granting
defendants summary judgment.
Walker's case, the court granted defendants summary
judgment on two grounds. First, the court found that Walker
had failed to administratively resolve his dispute. In that
regard, the court held that the Towing Act regulations
required vehicle owners who disputed charges imposed by a
towing company for non-consensual towing services to use good
faith efforts to resolve the dispute before filing a lawsuit.
The court also held that if those good faith efforts failed,
the vehicle owner then must either go to the Division to seek
reimbursement of the disputed amount, or avail himself or
herself of the dispute resolution mechanisms established by
the municipality. Second, the court reasoned that the
administrative fee was allowed by the River Edge towing
ordinance and, therefore, was a permitted fee.
trial court never addressed Walker's claim that defendant
unlawfully failed to release his vehicle after hours. The
trial court also did not clarify whether Walker could refile
his lawsuit after he exhausted his administrative remedies.
25, 2013, the son of Bernice Pisack illegally parked her car
on a public street in Newark. The Newark Police contacted B
& C Towing, Inc. (B&C Towing) and directed it to tow
Pisack's vehicle to its lot. B&C Towing had a
contract with Newark to provide such towing services.
that day, Pisack's son went to B&C Towing's lot
and retrieved the vehicle. He was given a bill for $152.45,
which listed the charges as: Towing $65; Labor (recovery)
$25; Administrative Fee $50; Storage $10; and Tax $2.45.
Under B&C Towing's contract with Newark, B&C
Towing retained $25 of the administrative fee and remitted
the remaining $25 to Newark. The son paid the bill without
contesting the charges.
October 2013, Bernice Pisack filed a proposed class action
against B&C Towing and its owners, alleging violations of
the Towing Act, the CFA, and the TCCWNA. Specifically, Pisack
challenged the labor charge and the administrative fee.
Towing moved to dismiss the complaint, but in an order
entered on March 28, 2014, the trial court denied that
motion. B&C Towing then filed an answer and asserted a
third-party complaint against Newark. Thereafter, the claims
against Newark were severed and transferred to another
discovery, Pisack filed a motion to certify the class, and
B&C Towing cross-moved for summary judgment. After
hearing oral argument on the motions, the trial court entered
an order on January 13, 2017, granting summary judgment to
defendants and denying plaintiff's motion as
court explained its reasons on the record and identified four
grounds for its decision: (1) the TCCWNA was inapplicable
because there was no contract between Pisack and B&C
Towing; (2) Pisack failed to exhaust administrative remedies
before pursuing a court action; (3) the fees charged by
B&C Towing were permitted under Newark's towing
ordinance; and (4) B&C Towing was entitled to derivative
immunity under the TCA because the towing was performed at
the direction of the police.
November 28, 2015, Eptisam Pellegrino was involved in a motor
vehicle accident in East Rutherford. At the direction of the
East Rutherford Police, Nick's Towing Service, Inc.
(Nick's Towing), towed Pellegrino's vehicle. Three
days later, Pellegrino contacted Nick's Towing to inquire
about the charges related to the towing and storage services.
She was informed that the charges totaled $448.36, and she
authorized Nick's Towing to charge her credit card.
Nick's Towing sent Pellegrino an itemized bill, which
listed the charges as: Flatbed/Towing $125; Yard Charge $40;
Crash/Collision Wrap $60; Credit Card Surcharge $13.06;
Administrative Charge $4 0; Sweep Roadway/Cleanup $30;
Storage Fee $120; and Sales Tax $20.30.
March 2017, Pellegrino filed a complaint on behalf of herself
and similarly situated individuals against Nick's Towing
and its owners. Pellegrino alleged that the yard charge, the
credit card surcharge, the administrative charge, and the
storage fee violated the Towing Act, the CFA, and the TCCWNA.
engaging in discovery, defendants filed a motion to dismiss
Pellegrino's complaint. Alternatively, defendants sought
to deny class certification. The trial court heard oral
argument and, on June 5, 2017, issued a written opinion and
entered an order ruling that Pellegrino could pursue her
claims only in her individual capacity and not on behalf of a
class. The court also denied the remainder of the motion to
court found that Pellegrino could not satisfy the standard
for class certification because the questions of law and fact
affecting the class did not predominate over those affecting
individual members of the proposed class. We granted
plaintiff's motion for leave to appeal the interlocutory
order of June 5, 2017.
summarize, plaintiffs appeal from three orders. Walker
appeals from a July 24, 2017 order granting summary judgment
to defendants. Pisack appeals from a January 13, 2017 order
denying class certification and granting summary judgment to
defendants. On leave granted, Pellegrino appeals from a June
5, 2017 interlocutory order denying her request to certify a
class and allowing her to proceed only on her individual
the appeals raise four legal issues: (1) whether the Towing
Act requires the exhaustion of administrative remedies and
dispute resolution procedures before a civil suit can be
filed in court; (2) whether towing companies that engage in
non-consensual towing at the direction of the police are
immune from liability under the TCA for claims related to the
fees they charge; (3) whether the Towing Act limits the types
of services for which a towing company can charge a fee for
the non-consensual towing of a vehicle; and (4) whether the
TCCWNA applies to the non-consensual towing of vehicles. The
appeals also raise a fifth fact-based issue of whether
certain claims for violations of the Towing Act, the CFA, and
the TCCWNA can be pursued as class actions.
these issues in context, we will start with an overview of
the relevant statutes, which include the Towing Act, the CFA,
and the TCCWNA. We will then address the four legal issues.
Thereafter, we will analyze the class action issue. Finally,
we will apply our ...