Opinion
DOCKET NO. A-2899-10T4
02-07-2013
SEVELL'S AUTO BODY CO., INC., Plaintiff-Appellant, v. BOROUGH OF ROSELLE PARK, Defendant-Respondent.
William J. Pollinger argued the cause for appellant. Keith A. Loughlin argued the cause for respondent (Johnstone, Skok, Loughlin & Lane, attorneys; I. Blakeley Johnstone, III, of counsel; Mr. Loughlin, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves, and Harris.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-4699-10.
William J. Pollinger argued the cause for appellant.
Keith A. Loughlin argued the cause for respondent (Johnstone, Skok, Loughlin & Lane, attorneys; I. Blakeley Johnstone, III, of counsel; Mr. Loughlin, on the brief). PER CURIAM
Plaintiff Sevell's Auto Body Co., Inc., was licensed by defendant the Borough of Roselle Park ("Borough") to tow vehicles abandoned or otherwise deemed legally subject to removal and impoundment by the municipality. Plaintiff is statutorily authorized to charge a fee to store impounded vehicles. The question presented in this appeal concerns the amount of storage fees plaintiff is entitled to receive from the Borough when abandoned, impounded vehicles are sold by the municipality at public auction.
Plaintiff filed this action in lieu of prerogative writs seeking a judicial declaration that under N.J.S.A. 39:10A-5, it is entitled to recover the total amount of its "expenses of possession" of impounded vehicles. Under the facts presented here, plaintiff also sought a writ of mandamus compelling the Borough to pay plaintiff the total price received for vehicles sold at public auction by the Borough. In rebuttal, the Borough argues that plaintiff's fees are limited by N.J.S.A. 40:48-2.50, which sets out the "fees to be paid to an operator by a municipality for the storage of removed motor vehicles."
The trial court accepted the Borough's argument, holding that N.J.S.A. 40:48-2.50 limits the payment due to a tow operator when an abandoned vehicle is sold at public auction pursuant to the statutory procedures governing the sale of abandoned vehicles. The court also found that the Borough substantially complied with all of the procedural requirements of the statute, except for N.J.S.A. 39:10A-1(d), which required that plaintiff be notified of the pending auction via certified mail. The trial court dismissed all of plaintiff's claims for monetary relief and directed the Borough to provide notice of auctions by certified mail. Plaintiff now appeals. We affirm.
I
Citing N.J.S.A. 40A:11-5(u), the Borough Council adopted a resolution on January 21, 2010, authorizing the Borough Clerk "to issue licenses for towing services for a period of two (2) years commencing on February 1, 2010" to two autobody businesses, one of which was plaintiff. According to a certification submitted by Borough Clerk Doreen Cali, as compensation for towing services provided by plaintiff and the other towing company approved in the resolution, the Borough follows N.J.S.A. 40:48-2.50, which establishes the following fee schedule:
N.J.S.A. 40A:11-5(u) authorizes municipalities to enter into towing and storage contracts without first soliciting public bids "provided that all such contracts shall be pursuant to reasonable non-exclusionary and non-discriminatory terms and conditions, which may include the provision of such services on a rotating basis, at the rates and charges set by the municipality pursuant to [N.J.S.A. 40:48-2.49 ]." (Emphasis added).
All fees to be paid to an operator by a municipality for the storage of removed motor vehicles shall not exceed the following:
(1) A limit of $3.00 per day for the first 30 days of storage per vehicle; and
(2) A limit of $2.00 per day for the 31st day of storage and any day thereafter; and
(3) A limit of $400.00 per vehicle stored regardless of the duration of the storage, except that a waiver may be granted for good cause upon the request of a municipality by the Division of Local Government Services in the Department of Community Affairs.
Pursuant to its agreement with the Borough, plaintiff towed numerous cars at the request of the Roselle Park Police Department. The Borough Clerk notified the owners that their cars had been towed. With respect to the three vehicles at issue in this litigation, there is documentation showing that the Borough sent notice to each of the registered owners that their cars had been towed. Under the Borough's ordinance describing the duties of tow operators, plaintiff was required to notify the Borough on a weekly basis of any unclaimed impounded vehicles as well as the number and type of vehicles that had been claimed and released to their owners.
N.J.S.A. 39:10A-1 sets out the procedural and notice requirements that a municipality must follow to obtain title of a vehicle that has been found abandoned within its borders. The statute reflects the Legislature's concern that public agencies provide the registered owner and/or the holder of a security interest in the vehicle due process of law before infringing upon their property rights. The statute also authorizes the person storing the vehicle to impose fees for storing the abandoned motor vehicle. Ibid.
N.J.S.A. 39:10A-1(a)(5) imposes certain notice obligations on the person storing the abandoned vehicle:
Upon receipt of the notice required by paragraph (4) of this subsection, the person storing the abandoned motor vehicle shall provide notice to the owner of record and to any security interest holder.N.J.S.A. 39:10A-1(b), (c), and (d) further provide:
(a) The notice shall be by first class mail, with a certificate of mailing, and shall include a schedule of the costs imposed for storing the motor vehicle and instructions explaining how the owner of record or the security interest holder may claim the stored motor vehicle.
(b) Except as provided in subparagraph (c) of this paragraph, if the person storing the motor vehicle fails to provide this notice to the owner of record and to the security interest holder within 30 days of the date on which the storer of the vehicle received the notice required under paragraph (4) from the public agency, the maximum amount that person may charge the owner of record or the security interest holder for storing that motor vehicle shall be $750, provided that the owner of record or security interest holder submits a proper claim for the vehicle not later than the 30th day following the date the notice is delivered from the public agency to the person storing the motor vehicle.
(c) When a vehicle is abandoned due to the death or incapacitation of the driver or any passenger, the person storing the vehicle shall charge the owner of record or
the security interest holder no more than $100 for the first 72 hours after the vehicle is placed on the premises.
(d) If the owner of record or security interest holder fails to submit a proper claim for the vehicle on or before that 30th day, the person storing the motor vehicle may charge the security interest holder reasonable costs for the removal and storage of the motor vehicle. If the notice is properly provided by the person storing the motor vehicle, that person may charge the owner of record or the security interest holder reasonable costs for the removal and storage of the motor vehicle from the date the person removed and stored the motor vehicle.
(e) The public agency may assess the person storing the abandoned motor vehicle, and the person storing the abandoned motor vehicle may assess the security interest holder, for the actual costs of providing the notices required under paragraphs (4) and (5) of this subsection.
[(Emphasis added).]
b. When such motor vehicle which has been ascertained not to be stolen and to be one which can be certified for a junk title certificate under [N.J.S.A. 39:10A-3] shall have remained unclaimed by the owner or other person having a legal right thereto for a period of 15 business days, even if at that time the owner has not been identified as a result of efforts to make identification by the public agency or the Motor Vehicle Commission, the same may be sold at auction in a public place. If the certified motor vehicle is sold at auction prior to identification of the owner, the public agency shall document the conditionN.J.S.A. 39:10A-5 finally provides:
of the motor vehicle in writing and with photographs prior to the sale; document the amount obtained from the sale of the motor vehicle; and notify the owner, if his name and address are identified after the sale, of the actions taken by the public agency to dispose of the motor vehicle.
c. When a motor vehicle which cannot be certified for a junk title certificate under [N.J.S.A. 39:10A-3] remains unclaimed by the owner or other person having a legal right thereto for a period of 20 business days, the motor vehicle may be sold at auction in a public place, but shall be sold no later than 90 business days after the public agency takes possession of the vehicle, except that a waiver of the 90-day limit may be obtained for good cause from the Division of Local Government Services in the Department of Community Affairs.
d. The public agency shall give notice of a sale conducted pursuant to subsection b. or c. of this section, by certified mail, to the owner, if his name and address be known and to the holder of any security interest filed with the administrator, and by publication in a form to be prescribed by the administrator by one insertion, at least five days before the date of the sale, in one or more newspapers published in this State and circulating in the municipality in which such motor vehicle is held.
[(Emphasis added).]
Upon the sale of a motor vehicle pursuant to the provisions of this act all claims of interest therein shall be forever barred and the proceeds realized therefrom after payment of the expenses of possession
and sale, shall be remitted to the treasury of the public agency as its sole property.
[(Emphasis added).]
II
As noted earlier, pursuant to the ordinance adopted by the Borough establishing the fees and procedures for the storage of abandoned motor vehicles, plaintiff was required to provide the Borough weekly reports of the cars it had impounded and/or released. In June 2010, plaintiff towed a 1985 Mack dump truck at the direction of the Roselle Park Police Department. According to the certification of the Borough Clerk, "[w]hen the truck remained in [the impound] lot over twenty (20) days, the Police Park Department [sent] a letter [by certified mail] to the owner and/or the lien holder" of the vehicle describing their obligations, and notifying them that the vehicle could be sold at auction to recover the storage costs. The record shows that the vehicle's registered owner received the certified notice on June 28, 2010. The owner did not respond.
The Borough ascertained the name and address of the owner of the vehicle from the Motor Vehicle Commission's records.
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On September 28, 2010, the Borough filed a report of possession with the State of New Jersey, requesting verification of ownership and issuance of an application for Certificate of Ownership. On October 8, 2010, the Borough's Police Department sent a letter to the Borough Clerk indicating that the requirements under N.J.S.A. 39:10A-1 had been "fulfilled" and requesting an approval resolution from the Mayor and Council of the Borough to sell the Mack truck.
The Borough published notice of the October 22, 2010, auction in the Star Ledger, Union Leader, and the Borough website pursuant to N.J.S.A. 39:10A-1. On October 21, 2010, the Mayor and Council passed a resolution, which included a minimum bid of $250 for the truck. On October 22, 2010, the Borough held a public auction of abandoned vehicles that included the 1985 Mack truck. The truck sold for $6200. The Borough provided the successful bidder/purchaser with a Motor Vehicle Commission Application for Certificate of Title and a statement signed by the Borough Clerk indicating that the Borough sold the Mack truck at public auction for $6200.
By letter dated November 4, 2010, plaintiff's counsel sent the Borough Clerk a letter indicating that plaintiff's storage fees for the Mack truck were $7759.50. Counsel further argued that because the truck was not the Borough's property at the time it was sold at public auction, plaintiff was entitled to the proceeds of the sale under N.J.S.A. 39:10A-5 because the storage charges exceeded the price paid at auction. Counsel specifically cited the following language from the statute:
Upon the sale of a motor vehicle pursuant to the provisions of this act all claims of interest therein shall be forever barred and the proceeds realized therefrom after payment of the expenses of possession and sale, shall be remitted to the treasury of the public agency as its sole property.
[N.J.S.A. 39:10A-5 (emphasis added).]
Plaintiff also provided other documents to the Borough showing a total of $26,722.40 of unpaid storage fees for eight other vehicles. Relying on N.J.S.A. 40:48-2.50, the Borough provided purchase orders totaling $1,520 for the same eight vehicles. Under this latter statute, the Borough argues that its maximum liability per vehicle is $400.
III
Although plaintiff has raised a number of arguments attacking the trial court's ruling, we will focus our discussion upon the interplay between N.J.S.A. 39:10A-5 and N.J.S.A. 40:48-2.50. We have previously examined this issue and stated, unequivocally, that the provisions of N.J.S.A. 39:10A-1 to -7 do not accord a tower and operator like plaintiff a private right of action against a municipality. Harvey v. Twp. of Deptford, 402 N.J. Super. 156, 164-65 (App. Div.), certif. denied, 197 N.J. 16 (2008). As Judge Messano made clear in Harvey, "there are no provisions in N.J.S.A. 39:10A-1 to -7 for a remedy in damages in the event a public agency fails to comply with its obligation to auction vehicles towed and stored at its request." Id. at 164.
Harvey also answered the second question raised in this appeal. In adopting N.J.S.A. 40:48-2.50, the Legislature intended to protect municipalities from being charged "exorbitant storage fees for storage following the removal of abandoned and unclaimed vehicles." Id. at 163 (emphasis added) (quoting L. 1987, c. 127, § 1). Here, the Borough's obligations to plaintiff are limited to $400 per vehicle, as provided for by N.J.S.A. 40:48-2.50.
The rest of plaintiff's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION