Grossman Furniture Co. v. Pierre

• Decision Date: 23 May 1972
• Citation: 291 A.2d 858,119 N.J.Super. 411
• Parties: GROSSMAN FURNITURE CO., Inc., Plaintiff, v. Eleanor PIERRE, Defendant.
• Court: New Jersey District Court

Page 411

119 N.J.Super. 411

291 A.2d 858

GROSSMAN FURNITURE CO., Inc., Plaintiff, v. Eleanor PIERRE, Defendant.

District Court, Essex County, New Jersey.

May 23, 1972.

Arthur J. Corkery, Jersey City, and Robert S. Fisher, Teaneck, for plaintiff.

Sam Farrington, Essex County Legal Services, Orange, for defendant.

YANOFF, P.J.D.C.

This is a test case in which defendant questions the constitutionality of the New Jersey Replevin Act, N.J.S.A. i2A:59--1, on the ground that it permits the taking of property by force without a preliminary trial-type hearing, alleging that it thereby violates the Fourth and Fourteenth Amendments of the United States Constitution. No claim is made of unconstitutionality under the New Jersey Constitution.

The factual context in which the issue is raised is that plaintiff sold defendant and her husband household furniture, including a bedroom set, a refrigerator and other items for a cash price of $2,065 and a time sale price of $2,385. Although a blank space is provided for that purpose on the contract form, the time sale price is not inserted. I have obtained it by adding the time balance and down-payment as directed by the contract.

The contract is a single sheet. On its face are set out the items sold, the cash price, the trade-in, unpaid cash balance, principal balance, time-price differential and time balance, as well as the amount of each installment, and the number of installments. The print is 8-point. The first sentence of the contract reads: 'Undersigned Seller sells and undersigned Buyer (if more than one, jointly and severally) purchases subject to the terms and conditions set forth on both sides hereof the Merchandise described below.' Both defendant and her husband signed.

Beneath their signatures is the statement, 'For office use only,' below which is an area equal in size to the contract already described consisting of unfilled blank spaces.

On the reverse side of the sheet appears, 'Other Conditions of Contract,' the third paragraph of which contains a reservation of title, an acceleration clause and a right to retake the property upon default. The type is the same size as that on the face.

Below this is a form of assignment and notices with respect to group and property insurance.

Procedurally, the matter arose on order to show cause based upon an affidavit in which Mrs. Pierre stated that her only source of income is from Aid to Dependent Children benefits; that her husband has deserted her; that most of her furniture was removed from her home as result of the execution of the writ of replevin, including the refrigerator in which she kept her food; that she had no place to keep her own and her children's clothing; that she had a meritorious defense; that she had paid approximately three-quarters of the time-sales price, and that she could not afford the cost of the replevin bond required by N.J.S.A. 2A:59--6.

The order to show cause provided as interim relief that specific items of furniture, including the refrigerator, be returned to defendant, and that she be subject to contempt penalties if she failed to deliver them to plaintiff upon court order. The Attorney General was given notice of this proceeding, but elected not to appear.

Oral testimony was taken upon the return date of the order, in the course of which Mrs. Pierre confirmed her statements as to her poverty and her urgent need for the repossessed goods. As to these matters there is no question, and I find them to be a fact.

By way of defense, defendant alleged that:

1. Plaintiff was guilty of equitable fraud because it did not affirmatively advise her of the security provisions.

2. Failure to insert the time sales price constitutes a violation of N.J.S.A. 17:16C--17.

3. Failure to separately describe the property in connection with the security provisions is a violation of the same statute.

4. Defendant is not bound by the security provisions because they were not specifically called to her attention in view of their location on the reverse side of the contract.

I directed that a hearing be held to determine whether defendant could make a prima facie showing of a meritorious defense because it would be pointless to explore an issue of constitutionality addressed solely to whether a defendant in replevin was entitled to hearing prior to the taking if it developed at the conclusion of the case that in all events plaintiff was entitled to possession of the property. A hearing was held at which plaintiff, defendant and the constable who took possession of the property testified.

However, I have determined not to decide the constitutional issue. The principles which control a court's function when a constitutional question is raised are well settled. Some of them are enunciated in WHYY, Inc. v. Glassboro, 50 N.J. 6, 231 A.2d 608 (1967), where Justice Schettino said for the court:

Moreover, there is a strong presumption that a statute is constitutional, In re Village of Loch Arbour, 25 N.J. 258, 264--265, 135 A.2d 663 (1957), and a legislative act will not be declared void unless its repugnancy to the Constitution is clear beyond a reasonable doubt. Gangemi v. Berry, 25 N.J. 1, 10, 134 A.2d 1 (1957). 'To declare a statute unconstitutional is a judicial power to be delicately exercised.' Wilentz v. Hendrickson, 133 N.J.Eq. 447, 487, 33 A.2d 366 (Ch.1943), affirmed 135 N.J.Eq. 244, 38 A.2d 199 (E. & A. 1944). (at 13, 231 A.2d at 612)

This case was reversed, 393 U.S. 117, 89 S.Ct. 286, 21 L.Ed.2d 242 (1968), for other reasons.

In the words of Judge Kilkenny: 'It is axiomatic that courts will not decide constitutional issues not necessary to the disposition of the case before them.' Accident Index Bureau, Inc. v. Hughes, 83 N.J.Super. 293, 302, 199 A.2d 656, 661 (App.Div.1964), aff'd 46 N.J. 160, 215 A.2d 529 (1965). In my view, justice can be done in this case without deciding the constitutional question.

Additionally, as a trial judge, I am enjoined not to hold a statute unconstitutional except in a clear case. Legg v. Passaic County, 122 N.J.L. 100, 4 A.2d 300 (Sup.Ct.1939), aff'd 123 N.J.L. 263, 8 A.2d 574 (E. & A. 1939); State v. Packard-Bamberger & Co., Inc., 123 N.J.L. 180, 8 A.2d 291 (Sup.Ct.1939); Neeld v. Automotive Products Credit Ass'n, 21 N.J.Super. 159, 161, 90 A.2d 558 (Cty.D.Ct.1952); State v. Cannarozzi, 77 N.J.Super. 236, 186 A.2d 113 (App.Div.1962); Chalmers v. Chalmers, 117 N.J.Super. 474, 285 A.2d 77 (Ch.Div.1971); Almor Furniture & Appliances v. MacMillan, 116 N.J.Super. 65, 280 A.2d 862 (Cty.D.Ct.1971).

It cannot reasonably be said that this is a clear case. Throughout the country, as the result of Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), courts are being pressed for determinations that the taking of property or property rights without a prior trial-type hearing violates constitutional rights. The issue is substantial and judicial responses have not been uniform.

Courts have found a constitutional infirmity where replevin laws have not provided for a full trial-type hearing prior to the taking: Laprease v. Raymours Furniture Co., 315 F.Supp. 716 (N.D.N.Y.1970) (New York replevin statute, N.Y.Civil Practice Law & Rules §§ 7101 et seq. (McKinney 1970)); Kosches v. City of New York, 10 U.C.C.Rep.Serv., Release #1, p. 3, March 8, 1972 (N.Y.Civil Ct.) (New York Uniform Commercial Code retaking provisions, N.Y. Uniform Commercial Code §§ 9--503 and 9--504 (McKinney 1964)); Blair v. Pitchess, 5 Cal.3d 258, 96 Cal.Rptr. 42, 486 P.2d 1242 (Sup.Ct.1971) (California replevin statute, Cal.Code Civ.Proc. §§ 509--521); Adams v. Egley, 338 F.Supp. 614 (S.D.Cal.1972) (California Uniform Commercial Code retaking provisions, Cal. Uniform Commercial Code §§ 9503 and 9504 (West 1970); Blocker v. Blackburn, 228 Ga. 285, 185 S.E.2d 56 (Sup.Ct.1971) (Georgia replevin statute, Ga.Code §§ 61--401 to 61--407); Westinghouse Credit Corp. v. Edwards, CCH Poverty Law Reports, June 28, 1971 (Mich.C.C.P.) (Michigan replevin statute, 23 M.S.A. §§ 27A.7301 et seq., M.C.L.A. § 600.7301 et seq.). Other courts have sustained the constitutionality of such statutes: Brunswick Corp. v. J & P Inc., 424 F.2d 100 (10 Cir. 1970) (Oklahoma replevin statute, 12 O.S. §§ 1571 et seq.); Fuentes v. Faircloth, 317 F.Supp. 954 (S.D.Fla.1970) (Florida replevin statute, F.S. §§ 78.01 et seq., F.S.A.); Epps v. Cortese, 326 F.Supp. 127 (E.D.Pa.1971); (Pennsylvania replevin statute, 12 P.S. § 1821 and Pa.R.Civ.P. §§ 1071--1087, 12 P.S. Appendix); Union Teachers Credit Union v. Fran Kay Hunter, 2 CCH Poverty Law Reports 13,265, July 20, 1971 (Ill.Cir.Ct. (Illinois replevin statute, 119 Ill.Anno.St. § 1 et seq.). Fuentes and Epps have been appealed to the United States Supreme Court, which has not yet spoken. ¹

In view of the strongly defined principles as to judicial restraint in overriding legislative action for constitutional reasons, it is apparent that this court must approach the problem with the utmost circumspection. Nevertheless, I would not be deterred from laying the issue on the table were there not an alternative basis for doing justice between the parties. In this connection the comment of Judge Fulop, while a county district court Judges, in-Neeld v. Automotive Products Credit Ass'n, Supra, in which he held a statute unconstitutional is pertinent:

It is clear that it is not the function of this court to pioneer in the field of constitutional law. The presumption of constitutionality must be applied with greater force here than in the appellate courts. The pattern of the law must be drawn by the appellate courts. The trial courts, especially those of limited jurisdiction, must follow, not lead.

Nevertheless, the issues presented must be determined. There must be a conviction or an acquittal. I cannot conceive it to be my duty to convict when an acquittal is indicated, on the theory that the question should be settled on appeal. Even a policeman...