Bernice Pisack, on behalf of herself and all others similarly situated, Plaintiff-Respondent,
B & C Towing, Inc., Defendant-Appellant, and Marie J. Cavalchire and Alan Anthony Young, Defendants, and B & C Towing, Inc., Defendant-Third-Party Plaintiff,
The City of Newark, Third-Party Defendant. Eptisam Pellegrino, on behalf of herself and all others similarly situated, Plaintiff-Respondent,
Nick's Towing Service, Inc., Defendant-Appellant, and Nicholas Testa and Susan Testa, Defendants. Christopher Walker, on behalf of himself and all others similarly situated, Plaintiff,
All Points Automotive & Towing, Inc., Defendant, and Thomas Locicero, Defendant.
October 24, 2019
appeal from the Superior Court, Appellate Division, whose
opinion is reported at 455 N.J.Super. 225 (App. Div. 2018).
Gabriel H. Halpern argued the cause for appellant B & C
Towing, Inc. (Pinilis Halpern, attorneys; Gabriel H. Halpern,
on the briefs).
B. Stein argued the cause for appellants Nick's Towing
Service, Inc. (Hartmann Doherty Rosa Berman & Bulbulia,
attorneys; Jeremy B. Stein and Paul S. Doherty, III, on the
R. Wolf argued the cause for respondents Bernice Pisack and
Eptisam Pellegrino (The Wolf Law Firm, The Law Office of
Christopher J. McGinn, and Law Office of Edwyn D. Macelus,
attorneys; Andrew R. Wolf, David J. DiSabato, Lisa R.
Bouckenooghe, Christopher J. McGinn, and Edwyn D. Macelus, on
Matthew J. Giacobbe argued the cause for amicus curiae Garden
State Towing Association (Cleary Giacobbe Alfieri Jacobs,
attorneys; Matthew J. Giacobbe and Jessica V. Henry, on the
Isabella R. Pitt, Deputy Attorney General, submitted a brief
on behalf of amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Jason W.
Rockwell, Assistant Attorney General, of counsel, and
Isabella R. Pitt, on the brief).
Michael R. McDonald submitted a brief on behalf of amicus
curiae Tumino's Towing, Inc. (Gibbons, attorneys; Michael
R. McDonald and Caroline E. Oks, on the brief).
LaVECCHIA, J., writing for the Court.
appeal concerns consolidated putative class actions brought
by plaintiffs whose vehicles were towed at the direction of
local police and without plaintiffs' consent. Each
plaintiff was charged for the non-consensual tow by a
privately owned towing company that had a contract with the
respective local government to perform that towing service.
Plaintiffs brought suit challenging those charges in three
class actions with common legal claims. Plaintiffs alleged
that the fees imposed by the private companies violated the
Predatory Towing Prevention Act (Towing Act), the Consumer
Fraud Act (CFA), and the Truth-in-Consumer Contract, Warranty
and Notice Act (TCCWNA).
class action was dismissed on summary judgment and the other
was allowed to proceed only as an individual case. Plaintiffs
appealed. The Appellate Division reversed in a consolidated
opinion. 455 N.J.Super. 225, 231-32 (App. Div. 2018).
Appellate Division's decision explained that the Towing
Act does not require a preliminary exhaustion of
administrative remedies prior to filing a complaint in
Superior Court, id. at 242; it considered and
rejected the argument that defendants have derivative
immunity under the Tort Claims Act (TCA) because the private
towing companies were directed by the local police to tow
plaintiffs' vehicles, id. at 244; it emphasized
that the Towing Act expressly contemplates a CFA action,
id. at 245; and it addressed the pivotal question
whether the pre-2018 Towing Act limited the types of services
for which a towing company can charge a fee and held that
towing charges must be consistent with the limitations
provided by the Act and its regulations, id. at
last holding, the Appellate Division carefully reviewed and
relied on the then-current language of the Towing Act, which
required the Director to "establish a schedule of
private property and other non-consensual towing and related
storage services for which a towing company may charge a
service fee." N.J.S.A. 56:13-14(a) (2018). The Act then
provided that it is "an unlawful practice for [a]towing
company that provides non-consensual towing services . . .
[t]o charge a fee for a private property or other
non-consensual towing or related storage service not listed
on [that] schedule of services . . . except as may be
permitted by the director by regulation." N.J.S.A.
56:13- 16(f)(1). The Director's implementing regulations
reinforced that command by providing that "[a] towing
company shall not charge any fee for private property towing
or other non[-]consensual towing and related storage services
not included in [the Director's schedule]." N.J.A.C.
13:45A-31.4(e). Given that statutory and regulatory language,
the Appellate Division reached the indisputable conclusion
that "if a service is not listed on the Director's
schedule, a towing company cannot charge for that
service." 455 N.J.Super. at 247.
the Appellate Division addressed whether any of
plaintiffs' asserted claims can be pursued as class
actions, holding that, depending on the facts developed
post-discovery, violations of the Towing Act and the CFA, as
well as the TCCWNA, may be challenged in a class action.
Id. at 250.
defendant towing companies filed motions for leave to appeal
to challenge the Appellate Division's decision, which the
Court granted. 236 N.J. 24, 25 (2018); 235 N.J. 477 (2018).
Those defendants now not only dispute the determinations
listed above, but also assert that amendments made to the
Towing Act after the Appellate Division issued its decision
should be applied retroactively and would essentially resolve
The 2018 legislation amending the Towing Act does not have
retroactive effect, and the Court agrees with the Appellate
Division's construction of the pre-2018 Act. The Court
affirms the Appellate Division's thorough and thoughtful
decision as to exhaustion of administrative remedies,
derivative immunity, and the remand as to the Towing Act and
CFA claims, all substantially for the reasons expressed in
Judge Gilson's opinion. The Court separately addresses
whether plaintiffs can pursue claims under the TCCWNA and
finds that plaintiffs are unable to state a claim under that
statute. The Court therefore reverses the judgment of the
Appellate Division on that issue but affirms as to all
2008, the Legislature enacted the Towing Act, codified at
N.J.S.A. 56:13-7 to -23. The Court reviews key provisions of
that act as it existed at the time of the trial court and
Appellate Division decisions. After the Appellate Division
rendered its decision, the Legislature amended the Towing
Act, see L. 2018, c. 165. Among the
amendments effected by the 2018 legislation, the Legislature
added a new subsection to N.J.S.A. 56:13-16, which provides
in pertinent part that no provision of the Towing Act should
be interpreted to prevent towing companies "from
charging fees for non-consensual towing or related storage
services in accordance with a duly-authorized fee schedule
established by a municipality or other political subdivision
of this State with respect to a vehicle that has been subject
to non-consensual towing authorized by a law enforcement
officer of this State or the political subdivision."
L. 2018, c. 165, § 3(i) (codified at
N.J.S.A. 56:13-16(i). The new section 16(i) took effect after
the events that gave rise to this appeal. (pp. 5-10)
Three scenarios justify retroactive application of a
legislative amendment: (1) when the Legislature expresses its
intent that the law apply retroactively, either expressly or
implicitly; (2) when an amendment is curative; or (3) when
the expectations of the parties so warrant. (pp. 10-11)
Here, the Legislature did not state that the 2018 amendments
to the Towing Act would have retroactive effect. Rather, the
Legislature provided that the 2018 amendatory legislation
"shall take effect immediately." L. 2018,
c. 165, § 5. Those words bespeak an intent
contrary to, and not supportive of, retroactive application.
Defendants point to language in a Statement that accompanied
the bill when introduced, which mirrored the language of the
bill and described it as clarifying. Case law has
consistently recognized that an amendment may be treated as
curative provided it does not establish different or new
standards but rather is designed to reaffirm and clarify the
existing standards. The 2018 legislation incorporating the
new subsection (i) substantially changed the Towing Act in a
major way. Prior to the amendment, it was unlawful for a
towing company to charge a fee not included within the
Director's schedule. N.J.S.A. 56:13-16(f)(1) (2017).
After the amendment, towing companies may charge fees not
included in the Director's schedule if the fee is
authorized by a municipal ordinance. N.J.S.A. 56:13-16(i)
(2018). With that significant change, the Legislature
substantively deviated from its prior approach in the Towing
Act; the amendment therefore cannot be considered curative.
Finally, the evidence and briefing submitted to the trial
court and Appellate Division indicated that all parties
expected the issues in this appeal to be governed by the
prior version of N.J.S.A. 56:13-16. The 2018 legislation
amending the Towing Act does not have retroactive effect and
has no application in the present matter. (pp. 11-15)
After reviewing the procedural history of the consolidated
cases, the Court affirms the determinations detailed in the
"Held" paragraph above. (pp. 15-21)
Court addresses separately the Appellate Division's
determination that the TCCWNA provides a cause of action for
vehicle owners who received towing bills with prohibited
charges. Pisack, 455 N.J.Super. at 249. To assert a
claim under the TCCWNA, a plaintiff must establish: first,
that the defendant was a seller, lessor, creditor, lender or
bailee or assignee; second, that the defendant offered or
entered into a written consumer contract or gave or displayed
any written consumer warranty, notice or sign; third, that at
the time that the written consumer contract is signed or the
written consumer warranty, notice or sign is displayed, that
writing contains a provision that violates any clearly
established legal right of a consumer or responsibility of a
seller, lessor, creditor, lender or bailee as established by
state or federal law; and finally, that the plaintiff is an
aggrieved consumer. (pp. 21-24)
respect to the first element, the owners of vehicles
subjected to non-consensual towing clearly were not buying,
leasing, or borrowing any money, property, or services from
the towing companies. The Appellate Division agreed but found
that the companies are "bailees" under the Act when
they "take a vehicle." Id. at 248. Here,
no contract existed between the vehicle owners and the towing
companies when the companies towed the vehicles, and it seems
far from clear that a non-consensual or involuntary bailment
is what the Legislature had in mind for purposes of
authorizing a TCCWNA action that is premised on the idea that
it is a consumer contract remedy. For bailment to
constitute a contract for purposes of a TCCWNA claim, the
Legislature likely intended contractual bailments for
purposes of the TCCWNA, if at all. And, as for the second
element of a TCCWNA claim, the only writing exchanged between
the plaintiffs and the towing companies was the list of
charges, which was provided after the plaintiffs paid to
retrieve their vehicles. The Court cannot accept that such
after-the-fact "bills" constituted a contract or
notice to plaintiffs when plaintiffs had already paid the
amount demanded to recover their cars. That could not
constitute a "meeting of the minds." Given the
contractual underpinning of the consumer remedy that the
TCCWNA is designed to accomplish, that cause of action is
ill-suited as a vehicle for plaintiffs to assert claims
relating to their non-consensual relationship with the towing
companies. The Court finds that plaintiffs are able to
establish the final two elements of a TCCWNA claim but that
they failed to establish elements one and two. Plaintiffs
therefore cannot state a cause of action under the TCCWNA.
The Court reverses the portion of the Appellate
Division's judgment reinstating plaintiffs' TCCWNA
claims. (pp. 24-31)
judgment of the Appellate Division is AFFIRMED IN PART and
REVERSED IN PART.
JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA's opinion.
appeal concerns consolidated putative class actions
challenging the fees charged in connection with the
non-consensual towing of vehicles at the direction of local
police. The putative class plaintiffs brought
lawsuits against the towing companies that had municipal
contracts to provide the towing services. These consolidated
actions involve a common set of facts. None of the named
plaintiffs consented to the towing of their vehicles. Each
had his or her vehicle towed at the direction of local
police. And, each plaintiff was charged for the
non-consensual tow by a privately owned towing company that
had a contract with the respective local government to
perform that towing service.
addition to a common set of basic facts, the actions asserted
common legal claims. Plaintiffs alleged that the fees imposed
by the private companies violated the Predatory Towing
Prevention Act (Towing Act or the Act), N.J.S.A. 56:13-7 to
-23, the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -211,
and the Truth-in-Consumer Contract, Warranty and Notice Act
(TCCWNA), N.J.S.A. 56:12-14 to -18.
not only dispute plaintiffs' ability to pursue their
causes of action but assert that amendments made to the
Towing Act after the Appellate Division issued its decision
should be applied retroactively and would essentially resolve
the Towing Act lies at the center of this appeal, we begin by
reviewing that Act and the amendments thereto and by
determining which version of the legislation applies in this
first summarize the Towing Act, in the form in which it
existed when these causes of action arose; we then turn to
the recent legislative amendment of that Act and consider
whether the amendments apply retroactively, as defendants
urge, or prospectively.
2008, the Legislature enacted the Towing Act, L.
2007, c. 193 (codified at N.J.S.A. 56:13-7 to -23),
for the stated purpose "to create a coordinated,
comprehensive framework to establish and enforce minimum
standards for tow truck operators," N.J.S.A. 56:13-8(e)
(2008). The Legislature found that prior
regulation of towing and towing companies was
"fragmented among various State agencies and local
governments," was "inconsistent or
inadequate," and provided "insufficient recourse .
. . under the law." N.J.S.A. 56:13-8(d). In addition,
the Legislature found that some towing companies engaged in
predatory practices such as "charging unwarranted or
excessive fees." N.J.S.A. 56:13-8(a), (b). In
particular, the Legislature found companies were
"overcharging consumers for towing services provided
under circumstances where the consumer ha[d] no meaningful
opportunity to withhold consent." N.J.S.A. 56:13-8(b).
Accordingly, the Legislature enacted the Towing Act, stating,
as it was advancing this reform legislation, its intent to
stop "predatory towing, where a vehicle is removed
without the owner's notice or consent and the owner is
charged an exorbitant fee for the vehicle's return."
A. Consumer Affairs Comm. Statement to A. 4053 1
(May 17, 2007).
enacted in 2008 and, where noted, amended by the Legislature
in 2009, the Towing Act requires the Director of the Division
of Consumer Affairs (Director) to "establish a schedule
of private property and other non-consensual towing and
related storage services for which a towing company may
charge a service fee." N.J.S.A. 56:13-14(a). The Act
instructs the Director to "specify services that are
ancillary to and included as part of basic . . . towing
services for which no fees in addition to the basic towing
service fee may be charged." Ibid. And, the Act
renders it unlawful for towing companies "[t]o charge a
fee for private property or other non-consensual towing or
related storage service not listed on the schedule of
services for which a fee may be charged as established by the
director except as may be permitted by the director by
regulation." N.J.S.A. 56:13-16(f)(1). The Towing Act
makes breach of its provisions a violation of the CFA.
N.J.S.A. 56:13-21(a). In addition to remedies available under
the CFA, the Towing Act provides that "the director may
order a towing company that has billed a consumer for any
non[-]consensual towing or related storage an amount
determined by the director to be unreasonable to reimburse
the consumer for the excess cost with interest."
required by N.J.S.A. 56:13-14(a), the Director promulgated a
schedule of permitted fees for non-consensual towing and
related storage services. See N.J.A.C. 13:45A-31.4.
Plaintiffs allege that, in violation of the Towing Act, the
towing company defendants here charged them fees that were
authorized by municipal ordinance but were outside the
schedule established by the Director. Thus, this appeal
springs from the conflict between what defendants charged and
what appears in the Director's schedule.
trial courts and Appellate Division addressed plaintiffs'
claims in each of the individual matters based on the law in
effect at the time under the Towing Act and the