PATRICK BARILE VS. GF-PASSAIC FOODS, LLC (L-0659-17, PASSAIC COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4706-16T1
PATRICK BARILE,
on behalf of himself
and those similarly situated,
Plaintiff-Appellant/
Cross-Respondent,
v.
GF-PASSAIC FOODS, LLC, and
GF-EAST PATTERSON FOODS, LLC,
Defendants-Respondents/
Cross-Appellants.
_______________________________
Submitted June 5, 2018 – Decided August 17, 2018
Before Judges Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. L-
0659-17.
The Wolf Law Firm, LLC and the Law Office of
David C. Ricci, LLC, attorneys for
appellant/cross-respondent (Matthew S.
Oorbeek, on the briefs).
Cruser, Mitchell, Novitz, Sanchez, Gaston &
Zimet, LLP, attorneys for respondents/cross-
appellants (Douglas V. Sanchez, of counsel and
on the brief; Michael S. Williams, on the
brief).
PER CURIAM
In this matter, we are asked to decide whether the trial
court erred in granting the defendants' Rule 4:6-2(e) motion to
dismiss with prejudice plaintiff's class action complaint, which
alleged violations of the Truth-in-Consumer Contract, Warranty and
Notice Act (TCCWNA or the Act), specifically N.J.S.A. 56:12-15,
by providing sales receipts for purchases that revealed sales tax
charges higher than the rate allowed by state law. We are also
asked whether the court erred in deciding that it does not have
jurisdiction over plaintiff's complaint because the Director of
the Division of Taxation (Director) has exclusive jurisdiction to
refund sales tax. Plaintiff appeals the court's dismissal based
upon its determination that the sales receipts do not violate the
TCCWNA. Defendants cross-appeal the court's rejection of their
contention that the sales receipts were not "contracts" or
"notices" under the TCCWNA. We conclude the complaint should have
been dismissed with prejudice because the sales receipts are not
a violation of the TCCWNA, and that they are not contracts or
notices under the Act, and that exclusive jurisdiction over sales
tax disputes resides with the Director. Thus, we affirm in part
and reverse in part.
Plaintiff's complaint seeking class-action relief alleged
that on multiple occasions over a three-week period in 2016, he
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purchased grocery items at defendants' Gala Fresh stores in
Paterson and Passaic and was given sales receipts showing that he
paid sales tax in excess of the seven percent rate permitted by
the Sales and Use Tax Act (SUTA), specifically, N.J.S.A. 54:32B-
5(3). He contended the sales receipts violated the TCCWNA. In
response, defendants filed a Rule 4:6-2(e) motion to dismiss the
complaint with prejudice arguing that as a matter of law, the
sales receipts did not constitute contracts or notices as required
to establish a TCCWNA violation, and that the exclusive
jurisdiction to refund sales tax resided with the Director of the
Division of Taxation.
The court granted defendants' motion on the basis that,
accepting there was a violation of the law by overcharging
plaintiff sales tax, the sales receipts did not violate the TCCWNA
because the overcharging occurred after the sales transaction was
complete – "the goods were received and the monies paid." Simply
put, the court found "[t]he violation, if there is one, is the
overcharging, not the provision of a receipt." In reaching this
determination, the court relied upon the pronouncement in Shelton
v. Restaurant.Com, Inc., 214 N.J. 419, 427-28 (2013), that the
intent behind TCCWNA is to prevent consumer deception – a non-
occurrence here by merely giving sales receipts memorializing the
overcharged sales tax after the sale. Although it found there was
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no TCCWNA violation, the court found that a sales receipt
constituted notice to plaintiff under TCCWNA because it was
undefined in the Act and the ordinary meaning of notice according
to Black's Law Dictionary 1164 (9th Ed. 2009) is "a written or
printed announcement". See Shelton, 214 N.J. at 431 (holding that
where "the TCCWNA does not define the term 'property,' . . . the
default definition of the property applies").
The court also agreed with defendants that since plaintiff's
claim only concerns the overcharging of sales tax, in accordance
with Kawa v. Wakefern Food Corp., 24 N.J. Tax 444, 449 (App. Div.
2009), jurisdiction lies exclusively with the Director. The fact
that plaintiff alleged a TCCWNA violation, and Kawa involved the
Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, was immaterial given
the statutory scheme under N.J.S.A. 54:32B-20(a) that conveyed
exclusive jurisdiction to the Director for refund of excess sales
tax.
On appeal, plaintiff argues the court erred in dismissing his
complaint by finding the sales receipts did not contain any
violations of law under TCCWNA, and that the Director of Taxation
does not have exclusive jurisdiction over issues involving SUTA.
Defendants argue on cross-appeal that although the court properly
found there was no TCCWNA violation, it erred in finding that the
sales receipts constitute contracts or notices under the TCCWNA.
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When considering a Rule 4:6-2(e) motion to dismiss a complaint
with prejudice for failure to state a claim upon which relief can
be granted, a trial court must determine "whether a cause of action
is 'suggested' by the facts." Printing Mart-Morristown v. Sharp
Elecs. Corp., 116 N.J. 739, 746 (1989). The court must "search[]
the complaint in depth and with liberality to ascertain whether
the fundament of a cause of action may be gleaned even from an
obscure statement of claim, opportunity being given to amend if
necessary." Ibid. (citation omitted). We apply a de novo standard
when reviewing an order dismissing a complaint for failure to
state a claim. State ex rel. Campagna v. Post Integrations, Inc.,
451 N.J. Super. 276, 279 (App. Div. 2017). Since our "review is
plenary[,] . . . we owe no deference to the trial judge's
conclusions." State v. Cherry Hill Mitsubishi, 439 N.J. Super.
462, 467 (App. Div. 2015) (citation omitted).
Our de novo review of defendants' motion to dismiss requires
us to interpret N.J.S.A. 56:12-15 to discern and give effect to
the Legislature's intent. DiProspero v. Penn, 183 N.J. 477 (2005).
We first turn to the plain language of the statute, which is "the
best indicator" of legislative intent. In re Plan for the
Abolition of the Council on Affordable Hous., 214 N.J. 444, 467
(2013). "If the plain language leads to a clear and unambiguous
result, then [the] interpretive process is over." Richardson v.
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Bd. of Trs., 192 N.J. 189, 195 (2007). When the language does not
yield an unambiguous interpretation, we continue the process to
discern legislative intent, interpreting statutory language "in
accordance with common sense" and may "consider the entire
legislative scheme of which a particular provision is but a part."
Morristown Assocs. v. Grant Oil Co., 220 N.J. 360, 380 (2015).
Moreover, we may look to dictionary definitions to determine the
common meaning of words. In re Election Law Enf't Comm'n Advisory
Op. No. 01-2008, 201 N.J. 254, 264 (2010); Macysyn v. Hensler, 329
N.J. Super. 476, 485 (App. Div. 2000).
N.J.S.A. 56:12-15 states in pertinent part:
No seller, . . . shall in the course of his
business offer to any consumer . . . or enter
into any written consumer contract or give or
display any written . . . notice or sign after
the effective date of this act which includes
any provision that violates any clearly
established legal right of a consumer or
responsibility of a seller . . . as
established by State or Federal law at the
time the offer is made or the consumer
contract is signed or the . . . notice . . .
is given or displayed.
[(Emphasis added).]
The TCCWNA "is a remedial statute, entitled to a broad
interpretation to facilitate its stated purpose." Shelton, 214
N.J. at 442. This statute, "by its terms, only prohibits certain
affirmative actions, that is, the offering or signing of a consumer
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contract, or giving or displaying of consumer warranties, notices,
or signs, which violate a substantive provision of law." Jefferson
Loan Co., Inc. v. Session, 397 N.J. Super. 520, 540-41 (App. Div.
2008). The plain language of the statute establishes certain
requirements for its application. The entity that is the target
of the prohibition must be a "seller . . . [acting] in the course
of his business." N.J.S.A. 56:12-15. The party to be protected
must be a "consumer." Ibid. The targeted conduct has two
elements. First, there is the action of the seller, who must
"offer" or "enter into any written consumer contract" or "give or
display any written . . . , notice." Ibid. The second element
regards the content of the writing. It must "include [a] provision
that violates any clearly established legal right of a consumer
or responsibility of a seller." Ibid. See Kent Motor Cars, Inc.
v. Reynolds & Reynolds, Co., 207 N.J. 428, 457 (2011) (stating the
purpose of the TCCWNA "is to prevent deceptive practices in
consumer contracts by prohibiting the use of illegal terms or
warranties in consumer contracts").
Guided by these principles, for the reasons substantially
stated by the court in its oral decision we agree that the sales
receipts memorialize plaintiff's purchases and, therefore, are not
violations of the law covered under TCCWNA. We further agree with
the court's reasoning that the Director has exclusive jurisdiction
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under SUTA over issues involving sales tax. The fact that, under
N.J.S.A. 56:12-17, a TCCWNA violation imposes a civil penalty of
not less than $100, or actual damages at the consumer's election,
together with reasonable attorney fees and court costs, does not
nullify the Director's exclusive jurisdiction in matters involving
sales tax.
We find unpersuasive plaintiff's submission under Rule 2:6-
11(d), that our recent decision in Pisack v. B & C Towing, Inc.,
___ N.J. Super. ___, ___ (App. Div. 2018), requires us to conclude
that the sales receipts constitute contracts and notices under
TCCWNA, and that discovery should be permitted on his class claims.
In Pisack, we held that the towing companies bills containing
prohibited charges "are consumer contracts and notices within the
meaning of the TCCWNA" because they serve "as the 'writings
required to complete the consumer transaction[,]' N.J.S.A. 56:12-
1[,]" and that a vehicle owner is led to believe the charges must
be paid. Id. (slip op. at 29-30). Here, the sales receipts,
despite memorializing sales tax overcharges, are not bills or
invoices given to purchasers to indicate what must be paid but are
given to record the purchases and the sales tax charged. Unlike
the towing companies' bills, sales receipts – albeit containing
sales tax overcharges – were not tendered to deceive the consumer
into paying charges that are not allowed by law.
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Furthermore, we see no cause for discovery as plaintiff
contends. Even assuming discovery would reveal that defendants
were intentionally overtaxing their customers and keeping the
excess sales taxes rather than turning them over to the State, the
sales receipts are still neither contracts nor notices under TCCWNA
because they were not issued to plaintiff to entice him to pay
more sales taxes than he was required to pay. The fact that the
TCCWNA is remedial legislation and entitled to broad
interpretation does not allow us to impose requirements that are
not within the four corners of its language.
Finally, we disagree with the court's declaration that the
sales receipts constitute contracts or notices under TCCWNA. For
the same reason that the receipts do not constitute a violation
of TCCWNA, they do not constitute a notice or contract. Under the
TCCWNA, a contract is a written agreement to purchase real or
personal property for cash or credit. Shelton, 214 N.J. at 438
(citing N.J.S.A. 56:12-1). And, as mentioned previously, notice
means a written or printed announcement. Since the receipts are
merely a record of the sales transaction and do not set forth or
publicize a deceptive practice, they are neither a contract nor
notice under TCCWNA.
Affirmed in part and reversed in part.
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