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

NOT FOR PUBLICATION WITHOUT THE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

2 A-4706-16T1
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

3 A-4706-16T1
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.

4 A-4706-16T1
 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.

5 A-4706-16T1
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

6 A-4706-16T1
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

7 A-4706-16T1
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.

8 A-4706-16T1
 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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