Capasso v. L. Pucillo & Sons, Inc.

• Decision Date: 28 June 1974
• Citation: 132 N.J.Super. 473,334 A.2d 334
• Parties: Frank CAPASSO, t/a Capasso Bros., and Robert Laudati, Plaintiffs-Respondents, v. L. PUCILLO & SONS, INC., and The Town of Belleville, Defendants-Appellants. Richard W. DILL and James Petrozello Co., Inc., a New Jersey corporation, Plaintiffs-Respondents, v. TOWN OF BELLEVILLE et al., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 473

132 N.J.Super. 473

334 A.2d 334

Frank CAPASSO, t/a Capasso Bros., and Robert Laudati, Plaintiffs-Respondents, v. L. PUCILLO & SONS, INC., and The Town of Belleville,

Defendants-Appellants.

Richard W. DILL and James Petrozello Co., Inc., a New Jersey

corporation, Plaintiffs-Respondents, v. TOWN OF BELLEVILLE et al., Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued June 4, 1974.

Decided June 28, 1974.

Mark D. Larner, Newark, for defendants-appellants (Budd, Larner, Kent, Gross & Picillo, Newark, attorneys for appellant L. Pucillo & Sons, Inc.; John R. Scott, Belleville, attorney for appellant Town of Belleville).

David Samson, Newark, for plaintiffs-respondents (Lieb, Wolff & Sampson, Newark, attorneys).

Before Judges KOLOVSKY, FRITZ and CRANE.

PER CURIAM.

The judgment is affirmed substantially for the reasons set forth by Judge Kimmelman in his opinion, to which we add the following comments.

There is no merit to defendants' contention that the Legislature, by enacting the Local Public Contracts Law, L.1971, c. 198; N.J.S.A. 40A:11--1 et seq., impliedly repealed N.J.S.A. 40:66--4 which provides in pertinent part that:

The governing body (of a municipality) may * * * contract with any person for * * * the collection, removal and disposal of ashes, garbage, refuse and waste matter or any portion thereof. Before making any such contract or contracts the governing body shall first adopt specifications for the doing of the work in a sanitary and inoffensive manner, and any such contract or contracts the amount of which exceeds $2,500.00 shall be entered into and made only after bids shall have been advertised therefor, and awarded in the manner provided in chapter 50 of this Title (§ 40:50--1 et seq.).

As the court said in Henninger v. Bergen Cty. Bd. of Chosen Free-holders, 3 N.J. 68, 68 A.2d 833 (1949):

* * * Repeals by implication are not favored in the law. In the absence of an express repealer indication of an intention of the Legislature to repeal a prior act must be clear and compelling. There is a strong presumption against such an intention (at 71, 68 A.2d at 834).

Further, the fact that the Local Public Contracts Law, while expressly repealing in N.J.S.A. 40A:11--38 a number of pre-existing statutes relating to public contracts, did not include N.J.S.A. 40:66--4 among the sections so repealed is cogent evidence that there was no legislative intent to repeal it by implication. Swede v. Clifton, 22 N.J. 303, 317, 125 A.2d 865 (1956).

We find without substance defendants' contention that the fact that N.J.S.A. 40:50--1 to 40:50--5 and 40:50--7, which are referred to in N.J.S.A. 40:66-4, were expressly repealed by the Local Public Contracts Law, see N.J.S.A. 40A:11--38, somehow, affects the continued viability of N.J.S.A. 40:66--4. The Local Public Contracts Law is a revision embodying and corresponding in substance with the provisions of the former law. It repeats in its pertinent aspects what had the theretofore appeared in the repealed sections of Article 50 of Title 40, thus calling for application of N.J.S.A. 1:1--3.3 which provides:

Any reference in any statute to any other statute, which is revised by a revision law, shall, after the effective date of such revision law, be construed to be a reference to the section or sections, if any, of the revision law corresponding in substance to, or superseding, the section or sections of the statute so revised and so referred to.

In view of the last quoted statute, N.J.S.A. 40:66--4 is to be construed so that its provisions relating to the award of a contract in excess of $2500 for the collection of refuse will read as follows:

* * * any such contract * * * shall be entered into and made only after bids shall have been advertised therefor, and awarded in the manner provided in (the Local Public Contracts Law, N.J.S.A. 40A:11--1 et seq.) * * *.

Finally, as Judge Kimmelman's opinion demonstrates, there is no validity to defendants' argument that the award of the contract by Belleville to Pucillo without public bidding was authorized by the exception found in N.J.S.A. 40A:11--5(1)(h) which reads in pertinent part:

Any * * * contract * * * of the character described in (N.J.S.A. 40A:11--4 relating to contracts over $2500) may be made, negotiated or awarded without public advertising for bids and bidding therefor if

(1) The subject matter thereof consists of

(h) The supplying of any product or the rendering of any service by a public utility, which is subject to the jurisdiction of the Board of Public Utility Commissioners, in accordance with tariffs and schedules of charges made, charged or exacted, filed with said board.

The fact that persons or corporations engaged in solid waste collection or disposal are now deemed to be public utilities (see the Solid Waste Utility Control Act of 1970, N.J.S.A. 48:13A--1 et seq. and N.J.S.A. 48:2--13), subject to the jurisdiction of the Board of Public Utility Commissioners, is not dispositive. The statutory exception applies to services rendered by a public utility only where they are rendered 'in accordance with tariffs and schedules of charges made,...