CLASSIC TOWING, INC v. MELISSA DePROSPO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5879-08T25879-08T2

CLASSIC TOWING, INC.,

Plaintiff-Appellant,

v.

MELISSA DePROSPO,

Defendant-Respondent.

_______________________________________

 

Submitted February 24, 2010 - Decided

Before Judges J. N. Harris and Newman.

On appeal from Superior Court of New

Jersey, Law Division, Special Civil Part,

Passaic County, Docket No. DC-025002-08.

William J. Pollinger, P.A., attorneys for appellant (Mr. Pollinger, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Classic Towing, Inc., appeals from an order dismissing its complaint for towing and storage charges incurred by defendant Melissa DeProspo. We reverse and remand.

The relevant facts are straightforward. The Paterson Police Department directed that a 1985 Jeep, presumably owned by defendant, be towed off the streets on February 12, 2005. The vehicle had fictitious plates. On April 26, 2005, the vehicle was acquired at public auction by plaintiff for $17. Defendant was notified by the City of Paterson under a publication notice of the auction. Plaintiff resold the Jeep for scrap for $86.40 and gave defendant the appropriate credit.

Plaintiff sought a judgment for the seventy-four days of storage at $24 per day, allegedly in accordance with the city ordinance; labor of $25; a city fee of $15 for the seventy-four days of storage; towing charges of $78; and taxes of $120.12 for a total of $2,215.12. Additional interest and credits brought the grand total to $2,401.39.

Defendant did not answer the Special Civil Part complaint and default was entered against her. When plaintiff submitted its proofs for the entry of a default judgment, the trial court rejected the application on two grounds: (1) plaintiff did not itself give notice required by statute to defendant of the impending auction of her car by the City of Paterson, and (2) plaintiff did not adequately demonstrate the reasonableness of its charges.

On appeal, plaintiff raises the following points for our consideration:

POINT I

THE COURT UTILIZED THE INCORRECT STATUTE UPON WHICH TO BASE ITS OPINION.

POINT II

A TOWER IS ENTITLED TO TOWING AND STORAGE FEES INDEPENDENT OF A MUNICIPALITY'S OBLIGATION TO AUCTION A VEHICLE.

POINT III

PLAINTIFF'S FEES WERE REASONABLE AS BASED UPON MUNICIPAL ORDINANCE.

In denying the motion, the trial court held that plaintiff did not provide the notice required under N.J.S.A. 39:10A-1(a)(5)(b). According to that statutory provision, plaintiff, as a storage facility, has to provide notice to the owner of record by first class mail, include a certification of mailing, and a schedule of costs with instructions to the owner as to how the vehicle could be claimed. The notice provision relied upon by the trial court was not in effect at the time of the towing, incurring of storage charges, and auction. The amendment relied upon by the court was not effective until April 1, 2009, almost four years after the auction here had taken place.

The court could not impose an ex post facto obligation on plaintiff. The time of decision rule, Lizak v. Faria, 96 N.J. 482 (1984), has no applicability here. Under the version of N.J.S.A. 39:10A-1 applicable at the time of storage and subsequent auction sale, there was no requirement by the storage facility to provide notice to the owner. There was a notice requirement for the auction itself, and the City satisfied that obligation by providing publication notice.

With regard to the reasonableness of the storage fee of $24 per day, plaintiff certified that it could not charge more than what was provided under the City ordinance. No copy of the ordinance was provided, although the charge was averred to be valid. There were also nominal labor and towing charges. The affidavit submitted did not indicate that the price obtained for the scrap value of the twenty-year-old Jeep was fair and reasonable. See Vito's Towing v. Kemp, 279 N.J. Super. 414, 418 (App. Div. 1995). We deem it appropriate that plaintiff resubmit an affidavit of proof, along with a copy of the applicable City ordinance provision, relating to storage charges at the time and address the other concerns previously noted.

We also question the mathematical calculation used by plaintiff to arrive at the amount owed by defendant. Based on our understanding of plaintiff's invoice and our calculation, seventy-four days at $24 per day equals $1776, plus $78 in towing, $25 in labor, and $15 in the city fee equals $1894 before tax. Plaintiff's invoice indicates $2095 was due before tax. This discrepancy must be addressed on remand, which will affect the amount of taxes and interest owed.

 
Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

(continued)

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A-5879-08T2

March 15, 2010