Pisack v. B&C Towing, Inc.

• Citation: 222 A.3d 693,240 N.J. 360
• Decision Date: 16 January 2020
• Docket Number: A-17/18 September Term 2018,081492
• Parties: Bernice PISACK, on behalf of herself and all others similarly situated, Plaintiff-Respondent, v. B & C TOWING, INC., Defendant-Appellant, and Marie J. Cavalchire and Alan Anthony Young, Defendants, and B & C Towing, Inc., Defendant-Third-Party Plaintiff, v. The City of Newark, Third-Party Defendant. Eptisam Pellegrino, on behalf of herself and all others similarly situated, Plaintiff-Respondent, v. 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, v. All Points Automotive & Towing, Inc., Defendant, and Thomas Locicero, Defendant.
• Court: United States State Supreme Court (New Jersey)

240 N.J. 360

222 A.3d 693

Bernice PISACK, on behalf of herself and all others similarly situated, Plaintiff-Respondent,

v.B & C TOWING, INC.,

Defendant-Appellant,

and

Marie J. Cavalchire and Alan Anthony Young, Defendants,

and

B & C Towing, Inc.,

Defendant-Third-Party Plaintiff,

v.The City of Newark, Third-Party Defendant.

Eptisam Pellegrino, on behalf of herself and all others similarly situated, Plaintiff-Respondent,

v.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,

v.All Points Automotive & Towing, Inc., Defendant,andThomas Locicero, Defendant.

A-17/18 September Term 2018

081492

Supreme Court of New Jersey.

Argued October 24, 2019

Decided January 16, 2020

Gabriel H. Halpern, Morristown, argued the cause for appellant B & C Towing, Inc. (Pinilis Halpern, attorneys; Gabriel H. Halpern, on the briefs).

Jeremy B. Stein, River Edge, 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 briefs).

Andrew R. Wolf, New Brunswick, 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 the briefs).

Matthew J. Giacobbe, Matawan, argued the cause for amicus curiae Garden State Towing Association (Cleary Giacobbe Alfieri Jacobs, attorneys; Matthew J. Giacobbe and Jessica V. Henry, on the briefs).

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, Newark, submitted a brief on behalf of amicus curiae Tumino's Towing, Inc. (Gibbons, attorneys; Michael R. McDonald and Caroline E. Oks, on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

This 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.¹ 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.

In 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.

Defendants 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 these disputes.

Because 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 case.

I.

We 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.

A.

In 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).² 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).

As 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).³ 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." N.J.S.A. 56:13-21(b).⁴

As 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.

The 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 Director's regulations promulgated pursuant to his authority under that Act.

B.

After the Appellate Division rendered its decision in Pisack v. B&C Towing, Inc., 455 N.J. Super. 225, 188 A.3d 1088 (App. Div. 2018), however, the Legislature amended the Towing Act, see L. 2018, c. 165.

1.

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:

Nothing contained in any provision of the [Towing Act] shall be construed to prevent a towing company from charging a reasonable fee for storage of a vehicle that has been subject to non-consensual towing authorized by a law enforcement officer of this State or by any political subdivision of this State. Nothing contained in any provision of the [Towing Act] shall be construed to prevent a towing company 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, and there shall be a rebuttable presumption that fees charged in accordance with a fee schedule are not unreasonable or excessive.

[L. 2018, c. 165, § 3(i) (codified at N.J.S.A. 56:13-16(i) ) (emphasis added).]

The amendatory legislation stated that it would "take effect immediately," L. 2018, c. 165, § 5; it therefore became effective when signed into law on December 20, 2018.

Defendants contend that the new section explicitly permits the practices challenged here, that is, the charging of "fees for non-consensual towing or related storage services in accordance with a duly-authorized fee schedule." We turn first to their contention that the new section 16(i) should govern here, even though it took effect after the events that gave rise to this appeal.

2.

"Settled rules of statutory construction favor prospective rather than retroactive application of new legislation." James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563, 83 A.3d 70 (2014). In determining whether a statute applies retroactively, a court's analysis will focus on "whether the Legislature intended to give the statute retroactive application." Ibid. (quoting In re D.C., 146 N.J. 31, 50, 679 A.2d 634 (1996) ). We recognize three scenarios that 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." Ibid.

Here, the Legislature did not state that the 2018 amendments to the Towing Act would have retroactive effect....