BARBARA MCLAREN, ETC. VS. THE UPS STORE, INC. (L-0919-20, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-1612-20

BARBARA MCLAREN,
on behalf of herself and
others similarly situated,

Plaintiff-Respondent,

v.

THE UPS STORE, INC.,
TURQUOISE TERRAPIN, LLC,
formerly d/b/a UPS STORE #4122,
RK & SP SERVICES, LLC,
formerly d/b/a UPS STORE #4122,
HAMILTON PACK N SHIP, LLC,
in their own right and as
representatives of a class of
similarly situation UPS STORE
franchisees,

Defendants-Appellants.
______________________________

Argued May 10, 2021 – Decided July 22, 2021

Before Judges Messano, Hoffman, and Suter.

On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Mercer County,
Docket No. L-0919-20.
 Joseph R. Palmore (Morrison & Foerster, LLP) of the
District of Columbia bar, admitted pro hac vice, argued
the cause for appellants (Morrison & Foerster, LLP,
attorneys; David J. Fioccola, Adam J. Hunt, and Mark
R. McDonald (Morrison & Foerster, LLP) of the
California bar, admitted pro hac vice, on the briefs).

Jared M. Placitella argued the cause for respondent
(Cohen, Placitella & Roth, PC, attorneys; Jared M.
Placitella, Caroline Ramsey Taylor (Whitfield Bryson,
LLP) of the Tennessee bar, admitted pro hac vice, and
Daniel K. Bryson and Jeremy R. Williams (Whitfield
Bryson, LLP) of the North Carolina bar, admitted pro
hac vice, of counsel and on the briefs).

PER CURIAM

In this putative class action, we granted defendant, RK & SP Services

LLC, leave to appeal from the Law Division's order denying defendant's motion

to dismiss the complaint brought by plaintiff Barbara McLaren individually and

as representative of a class. Our February 18, 2021 order limited our review to

plaintiff's individual claims premised upon defendant's "alleged violation of

N.J.S.A. 22A:4-14."1 That statute provides:

For a service specified in this section, foreign
commissioners of deeds, notaries public, judges and

1
Plaintiff alleged that defendant, a franchisee of defendant The UPS Store, Inc.
(TUPPS), was the owner of "UPS Store #4122," and the other individually
named defendants were defendant's predecessor and successor in interest. Given
the limitation of our order, we use the singular "defendant" throughout this
opinion.
A-1612-20
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 other officers authorized by law to perform such
service, shall receive a fee as follows:

For administering an oath or taking an affidavit, $2.50.

For taking proof of a deed, $2.50.

For taking all acknowledgments, $2.50.

For administering oaths, taking affidavits, taking
proofs of a deed, and taking acknowledgments of the
grantors in the transfer of real estate, regardless of the
number of such services performed in a single
transaction to transfer real estate, $15.00.

For administering oaths, taking affidavits and taking
acknowledgments of the mortgagors in the financing of
real estate, regardless of the number of such services
performed in a single transaction to finance real estate,
$25.00.

[N.J.S.A. 22A:4-14 (the Statute) (emphasis added).]

Because this appeal comes to us from the denial of defendant's motion to

dismiss the complaint for failure to state a claim, "[w]e . . . treat [plaintiff's]

version of the facts as uncontradicted and accord it all legitimate inferences. We

pass no judgment on the truth of the facts alleged; we accept them as fact only

for the purpose of reviewing the motion to dismiss." Banco Popular N. Am. v.

Gandi, 184 N.J. 161, 166 (2005) (citing R. 4:6-2(e)). The critical concern is

whether, upon review of the complaint, exhibits attached thereto and matters of

public record, there exists "the fundament of a cause of action"; "the ability of

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the plaintiff to prove its allegations is not at issue." Id. at 183 (citing Printing

Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)).

We review a decision denying a motion to dismiss for failure to state a

claim de novo applying the same standard as the Law Division judge. MasTec

Renewables Constr. Co. v. SunLight Gen. Mercer Solar, LLC, 462 N.J. Super.

297, 309 (App. Div. 2020) (citing Castello v. Wohler, 446 N.J. Super. 1, 14

(App. Div. 2016)). Moreover, when analyzing pure questions of law raised in a

dismissal motion, such as the application of a statute of limitations, we

undertake a de novo review. Smith v. Datla, 451 N.J. Super. 82, 88 (App. Div.

2017) (citing Royster v. N.J. State Police, 227 N.J. 482, 493 (2017); Town of

Kearny v. Brandt, 214 N.J. 76, 91 (2013)).

I.

On August 26, 2019, plaintiff visited UPS Store #4122 in Hamilton

Square, owned at the time by defendant. She sought a notary to take her affidavit

on an L-8 Form for the Division of Taxation and to acknowledge her signature

on a bank form. Defendant charged plaintiff five dollars per document, for a

total of ten dollars. Plaintiff filed this complaint, alleging the following causes

of action against defendant: violation of the Statute; violation of the Consumer

Fraud Act (CFA), N.J.S.A. 56:8-1 to -226; unjust enrichment; and civil

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conspiracy. She sought bilateral certification of a class of all customers in New

Jersey charged fees in excess of those permitted by the Statute by a defendant

class of TUPPS franchisees who charged excessive fees to notarize documents.

Defendant moved to dismiss the complaint before filing an answer,

contending it failed to state a cause of action; defendant also sought to strike

plaintiff's class allegations. The judge heard legal argument on the motion.

In a written decision, after reciting the relevant case law and the parties'

contentions and arguments, the judge concluded "[t]he actual interpretation of

the [S]tatute and how parties have perceived [it] cannot be established without

further evidence. There are clearly triable issues of fact here, and . . . the matter

must be allowed to proceed." The judge denied defendant's motion. 2

II.

Defendant repeats the same arguments made in the Law Division. It

contends the plain meaning of the Statute is clear — by using the phrase "shall

receive," the Legislature signified a "minimum fee" for a notary's service in

administering an oath or taking an affidavit, not "a maximum limit" as to what

2
The judge granted the motion as to count five of plaintiff's complaint which
separately sought equitable and injunctive relief. The judge concluded this was
not a claim but "rather a remedy, a prayer for relief." He "converted" the fifth
count to "a request for relief" and dismissed count five. Plaintiff did not seek
leave to appeal that portion of the order.
A-1612-20
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a business may charge for such services. Defendant contends the Statute's plain

meaning is confirmed by "statutory context and canons of construction," and

"subsequent legislative history and secondary sources" do not "alter [the

Statute's] plain meaning." Lastly, defendant contends the Statute does not

"infer" any private right of action for alleged violations.

Plaintiff agrees the Statute is not ambiguous — simply put, it "sets the

price that can be charged for notary services." Plaintiff contends this

construction is supported by canons of statutory interpretation, legislative

history, and secondary sources. Plaintiff also argues the Statute implicitly

creates a cause of action for its violation, and any violation is also actionable

under the CFA.

"The objective of all statutory interpretation is to discern and effectuate

the intent of the Legislature[,]" Murray v. Plainfield Rescue Squad, 210 N.J.

581, 592 (2012), and "the best indicator of that intent is the statutory language"

which should be given its "ordinary meaning and significance." DiProspero v.

Penn, 183 N.J. 477, 492 (2005) (first citing Frugis v. Bracigliano, 177 N.J. 250,

280 (2003); and then citing Lane v. Holderman, 23 N.J. 304, 313 (1957)). "We

construe the words of a statute 'in context with related provisions so as to give

sense to the legislation as a whole.'" Spade v. Select Comfort Corp., 232 N.J.

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504, 515 (2018) (quoting N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, 229

N.J. 541, 570 (2017)).

Courts may not "rewrite a plainly written statute or . . . presume that the

Legislature meant something other than what it conveyed in its clearly expressed

language." Murray, 210 N.J. at 592 (citing DiProspero, 183 N.J. at 492). "If

the plain language leads to a clear and unambiguous result, then our interpretive

process is over." Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016)

(quoting Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189,

195 (2007)). "We rely on extrinsic evidence of legislative intent 'only when the

statute is ambiguous, the plain language leads to a result inconsistent with any

legitimate public policy objective, or it is at odds with a general statutory

scheme.'" Spade, 232 N.J. at 515 (quoting Shelton v. Restaurant.com, Inc., 214

N.J. 419, 429 (2013)).

Defendant contends the Statute "creates an entitlement for notaries to be

compensated, not a restriction on what they or their employers may charge."

Plaintiff counters that the plain language of the Statute — a notary "shall receive

a fee" — evidences the Legislature's intent to limit the fee for performance of

the outlined services. With both sides arguing diametrically opposed views of

the Statute's plain meaning, we might assume some ambiguity regarding the

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Legislature's choice of words. See, e.g., MasTec Renewables, 462 N.J. Super.

at 320 (noting ambiguity in a statute if its wording "leads to more than one

plausible interpretation" (quoting State v. Twiggs, 233 N.J. 513, 532 (2018))).

However, we are inclined to agree with plaintiff.

Shall means "[h]as a duty to; more broadly, is required to." Black's Law

Dictionary 1653 (11th ed. 2019). "When according statutes their plain meaning,

'the word "may" ordinarily is permissive and the word "shall" generally is

mandatory.'" In re State Bd. of Educ.'s Denial of Petition, 422 N.J. Super. 521,

532 (App. Div. 2011) (quoting Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318,

325 (2000)). "In

. . . rare situations, the word 'shall' conveys only a suggestion that something be

done, rather than a mandate to do it." Ibid. But, only "[i]f no public benefit

ensues and no private right is insured by according the word 'shall' an imperative

meaning, . . . is [it] to be construed as directory rather than mandatory." State

v. Jorn, 340 N.J. Super. 192, 196 (App. Div. 2001) (quoting Franklin Ests. v.

Twp. of Edison, 142 N.J. Super. 179, 184 (App. Div. 1976), aff'd, 73 N.J. 462

(1977)).

Pursuant to the Notaries Public Act (the NPA), N.J.S.A. 52:7-10 to -21,

notaries are appointed by the State Treasurer for a five-year term "but may be

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removed from office at the pleasure of the State Treasurer." N.J.S.A. 52:7-11(a).

A notary must "subscribe an oath" and "indorse a certificate of commission and

qualification." N.J.S.A. 52:7-14(a) and (b). Notaries may be denied

appointment or re-appointment if convicted of certain crimes. N.J.S.A. 52:7-

20; N.J.S.A. 52:7-21.

The Legislature generally has provided notaries public with the authority

to administer oaths and take affidavits since 1864. State v. Eisenstein, 16 N.J.

Super. 8, 12 (App. Div. 1951) (citing L. 1864, p. 15; Rev. 1877, p. 740).

N.J.S.A. 41:2-1 lists those "officers" empowered to administer oaths and take

affidavits; notaries public are included, along with justices of the Supreme

Court, judges, mayors, surrogates, sheriffs and clerks of court. Notaries public

and attorneys are in a short list of otherwise public officials "authorized to take

acknowledgments or proofs." N.J.S.A. 46:14-6.1(a).3

Our point is simple. As Chief Justice Weintraub said, "The notary holds

a public office . . . [and] exercises a power he [or she] receives from government

rather than from someone who happens to be his private employer." Com. Union

Ins. Co. v. Burt Thomas-Aitken Constr. Co. (Com. Union I), 49 N.J. 389, 392–

3
See Tunia v. St. Francis Hosp., 363 N.J. Super. 301, 306 (App. Div. 2003)
(explaining "acknowledgments" as "statements completed by the notaries public
. . . necessary to record an instrument, N.J.S.A. 46:14-2.1," and not a "jurat").
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93 (1967) (citations omitted). See also Immerman v. Ostertag, 83 N.J. Super.

364, 369 (Law Div. 1964) ("A notary is a public officer and, as such, he owes a

duty to the public to discharge his functions with diligence.").

Plaintiff sought the services of a public officer to whom the government

has granted significant powers limited to few others in the state, and over whom

the government exercises significant authority. A member of the public would

hardly expect that other public officials empowered by the Statute to perform

certain functions could charge whatever they wished for administering oaths,

taking acknowledgements, et cetera. Yet, during oral argument before us,

defendant acknowledged that its interpretation of the Statute's plain language

would permit a notary to charge $100 or more for these services, an absurd result

that cannot be countenanced based on a literal reading of the statutory language.

Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012). In our

view, the Statute provides a decidedly public benefit by limiting the amount of

money the public may be charged by a public officer, and that benefit is only

secured by "according the word 'shall'" — a notary public shall receive a fee —

its "imperative meaning." Jorn, 340 N.J. Super. at 196 (quoting Franklin Ests.,

142 N.J. Super. at 184).

A-1612-20
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 Defendant posits other arguments that do not rely on the Statute's plain

language. While noting the paucity of caselaw, defendant cites Gittleman v.

City of Newark, 132 N.J.L. 328 (E. & A. 1945), Castellano v. City of Newark,

21 N.J. Misc. 63 (Cir. Ct. 1943), and Samson v. City of Newark, 125 N.J.L. 221

(Sup. Ct. 1940), as supporting its position that the Statute merely states

minimum compensation to which notaries are entitled, not a limitation on fees

they may charge. None of the cases cited by defendant are apposite.

In Gittleman, the plaintiff, an attorney working for the City of Newark,

sued seeking payment for taking acknowledgements on tax sale certificates three

years earlier. 132 N.J.L. at 329. The court simply held that the plaintiff

"waive[d] . . . any claim for the taking of acknowledgments." Id. at 330

(citations omitted). Similarly, in Castellano, the plaintiff attorney employed by

the City of Newark sued "for alleged statutory compensation claimed to be due

. . . for taking acknowledgments to tax sales certificates." 21 N.J. Misc. at 63.

The court recognized the Statute "provide[d] . . . compensation . . . for taking

acknowledgements," but rejected the plaintiff's suit, noting his position and

annual salary "contemplated . . . the performance . . . of such services," and

further, that at the time the plaintiff actually performed the services, the Statute

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made "no provision for compensation . . . for taking acknowledgments by an

attorney-at-law." Id. at 65–66.

The court in Samson reached a different result, concluding that the

plaintiff-attorneys, who were not employed by the City of Newark, took

acknowledgments on tax sale certificates but never received "[t]he fee fixed by

law." 125 N.J.L. at 222. Instead, those fees became part of the tax lien and

when sold those fees were paid into the city treasury. Ibid. The court concluded

the plaintiffs were entitled to judgment because the city was "enriched at the

expense of officers performing a statutory service for which a fee has been

earned and paid to the city." Id. at 223.

In our view, these cases stand for nothing more than the unremarkable

proposition that the Statute provides compensation for a notary and other public

officials who perform certain services. They do not advance defendant's claim

that the Statute does not cap the fee charged to the public.

In fact, the dicta in these cases, and one more which neither party cites,

support plaintiff's position, not defendant's. In Commercial Union Insurance

Company v. Burt Thomas-Aitken Construction Company (Com. Union II), the

Court considered the plaintiff-surety's claim that the "notary should be held to

guarantee the truth of his acknowledgement." 54 N.J. 76, 81 (1969).

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Recognizing the notary was "not an insurer, and is not liable except for

negligence[,]" the Court affirmed the jury's no cause verdict. Ibid. Importantly

for our purposes, the Court said: "The authorized fee for an acknowledgment

. . . is nominal and would hardly support an investigation appropriate for the

assumption of absolute liability." Ibid. (emphasis added) (citing N.J.S.A.

22A:4-14).4 See also Castellano, 21 N.J. Misc. at 65 (the Statute "merely fixes

the amount" for certain services); Samson, 125 N.J.L. at 223 (noting the

plaintiffs were "entitled by law to fixed fees") (emphases added). In short, these

cases support plaintiff's principal argument that the fee charged for services

listed in the Statute has been fixed by the Legislature.

Defendant contends the Statute should not be read as setting a mandatory

maximum fee for the services listed because the phrase — "shall receive a fee

as follows" — is markedly different from other statutory provisions that evince

the Legislature's clear intention to fix a permitted fee. We accept as a general

proposition that the Legislature knows how to express its intent, and the

presence of explicit language of other statutory provisions may imply a

legislative intent different from the expressed language in the Statute at issue.

See, e.g., Fraternal Ord. of Police, Newark Lodge No. 12 v. City of Newark, 244

4
At the time, the statutory fee for an acknowledgment was one dollar. Ibid.
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N.J. 75, 111–12 (2020) (concluding that "power of inquiry" provided by one

statute is not the power to subpoena explicitly provided in other statutes).

The statutes defendant cites are not part of Chapter 4 of Title 22A which

generally deals only with fees charged by various public officers for their

services. We confine our review to those provisions, many of which were

enacted as part of a comprehensive legislative scheme.5 See DiProspero, 183

N.J. at 492 (reading statutory words "in context with related provisions so as to

give sense to the legislation as a whole"). The language in many sections varies

little from that used in the Statute. See N.J.S.A. 22A:4-6 ("county clerk shall

receive" certain amount for "attending . . . daily sessions" of Superior Court);

N.J.S.A. 22A:4-8 (enumerating fees that sheriffs "shall receive" for various

services); N.J.S.A. 22A:4-10 (listing fees that "[s]heriffs, undersheriffs, deputy

sheriffs, constables, court attendants and other officers authorized by law to

perform" certain services "shall receive"); N.J.S.A. 22A:4-11 (computing

mileage payments that "[s]heriffs, constables and other authorized officers shall

receive"); N.J.S.A. 22A:4-12 (setting fees that clerk of the Superior Court,

county clerks and registrars "shall receive" for various services); N.J.S.A.

5
Although its historical antecedents extend back to the nineteenth century, the
Statute was part of a comprehensive revision enacted by the Legislature in 1953.
See L. 1953, c. 22.
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22A:4-16 (services performed by judicial officers "shall be paid to, demanded

and received by the clerk of the court"). According to N.J.S.A. 22A:4-17(a),

"[a]ll fees . . . and other perquisites of whatever kind" that certain county

officials "are entitled to charge and receive for any official acts or services they

may render shall be for the sole use of the county." (emphasis added).

As already noted, the Statute includes notaries amongst other public

officers and is part of a larger scheme devised by the Legislature. It is

incomprehensible that the Legislature intended public officers, including

notaries public, could simply charge "and receive a fee" for certain services

exceeding those fees set forth within the statutory framework.

Defendant's interpretation of the Statute's language is also not supported

by its more recent legislative history. See Varsolona v. Breen Cap. Servs. Corp.,

180 N.J. 605, 623 (2004) ("[S]ubsequent legislation may be used by a court as

an extrinsic aid when seeking to discern earlier legislative intent."). The

Legislature enacted amendments to the Statute in 2002 that increased the fees

for certain services, including taking an affidavit or acknowledgment. L. 2002,

c. 34 § 48, eff. July 1, 2002. In addition, the 2002 amendment added the

following new provisions to the Statute:

For administering oaths, taking affidavits, taking
proofs of a deed, and taking acknowledgments of the

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 grantors in the transfer of real estate, regardless of the
number of such services performed in a single
transaction to transfer real estate, $15.00.

For administering oaths, taking affidavits and
taking acknowledgments of the mortgagors in the
financing of real estate, regardless of the number of
such services performed in a single transaction to
finance real estate, $25.00.

[N.J.S.A. 22A:4-14 (emphasis added).]

Defendant contends that these additional provisions evince a legislative

intent to cap notary fees only in certain circumstances — real estate and

mortgage transactions — not present here. We reach a different conclusion. The

Legislature understood that federal law required closing statements provide

accurate figures for certain ministerial duties, like notary services, that were

necessary to consummate the sale or mortgage financing:

Under federal law (Real Estate Settlement
Procedures Act), notary charges must be shown on the
closing statement of a real estate transaction. However,
the precise amount of the charges is typically not
known until shortly before the settlement. To amend
the closing statement so close to the settlement can
cause delay in the process of completing the
transaction. This bill takes the guesswork out of
calculating the notary public charges so that closing
statements can be prepared in advance of the settlement
and the transaction can be completed without additional
delay.

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 [Sponsor's Statement to A. 1848 (Feb. 21, 2002).]6

These new provisions limited the fees notaries public "shall receive" when

providing certain services in real estate and mortgage transactions, regardless of

the number documents involved. The new provisions did not change the fees

notaries "shall receive" in other circumstances, and they do not indicate a

different legislative intent as to the maximum fees notaries could charge for their

services.

We conclude that the fees for notarial services set by the Statute are the

maximum fees that may be charged. Such interpretation is consistent with the

plain language of the Statute, the context of the entire legislative scheme of

which it is part, the limited caselaw applying the Statute, and its recent

legislative history.

III.

Defendant contends that the Statute confers no private right of action upon

plaintiff to bring a suit alleging she was charged notary fees in excess of the

statutory amounts. Defendant also asserts, in passing, that since it is a business

6
It appears that the provisions of A.B. 1848 were incorporated in the final text
of A. 2506 and enacted as L. 2002, c. 34.
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entity, not a corporeal person serving as a notary, even if plaintiff was correct

in her construction of the Statute, she had no cause of action against defendant.

As to this latter point, the motion judge aptly noted that issues of

defendant's vicarious responsibility for the actions of the notary who provided

the services to plaintiff, as well as TUPPS' potential liability for the conduct of

its franchisees, were incapable of resolution without further development of the

record.7 We decide only whether the facts alleged in plaintiff's complaint

"suggested" a cause of action against defendant. Printing Mart-Morristown, 116

N.J. at 746. The complaint certainly meets this test.

As to the right to bring a cause of action specifically under the Statute,

"New Jersey courts have been reluctant to infer a statutory private right of action

where the Legislature has not expressly provided for such action." R.J. Gaydos

Ins. Agency, Inc. v. Nat'l Consumer Ins. Co., 168 N.J. 255, 271 (2001). The

Court has adopted a three-part test for determining whether a statute implies a

private right of action:

7
We also hasten to add that we do not decide whether a franchisee may charge
a notary fee consistent with the Statute and a separate "convenience" fee. The
appendix to defendant's motion for leave to appeal included a similar complaint
filed by another plaintiff in another vicinage, to which was attached the store
receipt demonstrating an alleged violation of the Statute. That receipt, however,
had the charge broken down into two components: a notary fee of $2.50; and a
convenience fee of $12.50.
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 To determine if a statute confers an implied
private right of action, courts consider whether: (1)
plaintiff is a member of the class for whose special
benefit the statute was enacted; (2) there is any
evidence that the Legislature intended to create a
private right of action under the statute; and (3) it is
consistent with the underlying purposes of the
legislative scheme to infer the existence of such a
remedy.

[Id. at 272.]

"Although courts give varying weight to each one of those factors, 'the primary

goal has almost invariably been a search for the underlying legislative intent. '"

Id. at 272–73 (quoting Jalowiecki v. Leuc, 182 N.J. Super. 22, 30 (App. Div.

1981)).

Here, the first Gaydos prong weighs in favor of an implied cause of action

because the fees set by the Statute were intended to benefit the public by limiting

the amount of money that public officers could charge for performing certain

functions. It is anomalous, indeed, if our courts were to recognize the potential

right of a notary to sue for his or her statutory fees, as in Gittleman, Castellano,

and Samson without recognizing the public's reciprocal right to only pay those

fees permitted by the Statute.

As to the second Gaydos prong, there is no evidence that the Legislature

intended to create a private right of action under the Statute as it expressly did

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in other provisions of Chapter 4 of Title 22A. N.J.S.A. 22A:4-8, for example,

provides that an "aggrieved" party may file suit against a sheriff whose charges

exceed the statutory amount. As part of the 1953 legislation which included the

Statute, the Legislature enacted N.J.S.A. 22A:4-13, a provision that expressly

permitted a party to sue a notary who overcharged for services involving certain

commercial instruments. L. 1953, c. 22, § 11; repealed by L. 2002, c. 34, § 49.8

N.J.S.A. 22A:4-15 expressly permits the State Treasurer to file a "civil action"

to recover fees charged by the Clerks of the Supreme Court and Superior Court

and bring suit in lieu of prerogative writs against those public officers. See also

N.J.S.A. 22A:4-17 (permitting county commissioners to file similar suits against

county surrogates, clerks, registrars, and sheriffs for failing to remit fees

received for their official acts).

8
The Sponsor's Statement for the repealer explained its purpose, which had
nothing to do with the private right of action set forth in the statute:

[T]he bill repeals N.J.S.A. 22A:4-13, which establishes
the fees a notary public may collect for the service of
making a demand for payment or registering a protest
against a demand for payment. The act of making a
demand for payment under oath was made obsolete
with the passage of the Uniform Commercial Code . . .
in 1961.

[Sponsor's Statement to A. 1848.]

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 It is significant that the Legislature expressly provided for private and

public rights of action for violations involving statutory fees public officers may

charge for their services, or for other failures in carrying out their ministerial

duties, yet did not provide for similar rights under the Statute. "In determining

whether the Legislature intended to authorize an implied private cause of action,

'a court should be mindful of the "elemental canon of statutory construction that

where a statute expressly provides a particular remedy or remedies, a court must

be chary of reading others into it."'" Castro v. NYT Television, 370 N.J. Super.

282, 293 (App. Div. 2004) (quoting Glynn v. Park Tower Apartments, Inc., 213

N.J. Super. 357, 362 (App. Div. 1986)).

As to the third Gaydos prong, "[o]ur Supreme Court has indicated that a

court should be especially hesitant in implying a right to a private cause of action

against an entity that is subject to pervasive regulation by a State agency." Id.

at 293. As noted, pursuant to the NPA, notaries public are commissioned public

officers who are subject to statutory obligations and may be removed at the at

the pleasure of the State Treasurer. N.J.S.A. 52:7-11. The New Jersey Division

of Revenue's Business Support Services Bureau administers the notary public

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program and has published a manual for guidance a required by the NPA. 9 See

N.J.S.A. 52:7-17 (requiring the State Treasurer to include certain provisions in

the manual and update the manual as appropriate).

Presumably, the conduct of any notary public who charges fees exceeding

those permitted by the Statute could be brought to the attention of the State

Treasurer for appropriate action. See Warren Cnty. Bar Ass'n v. Bd. of Chosen

Freeholders, 386 N.J. Super. 194, 203 (App. Div. 2006) (declining to find

private right of action under N.J.S.A. 2B:6-1 because "recognition of a private

right of action is not required to ensure proper enforcement of the statute" (citing

R. J. Gaydos, 168 N.J. at 274–75)).

We conclude that the Statute confers no private cause of action on

plaintiff. We therefore reverse the order under review and order the trial court

to dismiss the first count of her complaint.

Our order limited the grant of interlocutory appeal to "causes of action

asserted by plaintiff in her individual capacity against defendant . . . premised

upon that defendant's violations of [the Statute]." Defendant correctly notes in

its brief the limited scope of our order, and we regret any imprecision in the

9
Parenthetically, the manual states the fees in the Statute "are fees that Notaries
may charge."
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order that may have implied our intention to address whether the complaint was

cognizable under the CFA. Additionally, plaintiff properly notes that her

complaint alleged other common law causes of action which also were not

within the scope of our order.

More importantly, since entry of our order, it has become clear that the

paucity of the existing record impedes any consideration of whether charging a

fee that violates the Statute is alone sufficient to sustain the CFA count in the

complaint. For example, we already noted the complex statutory scheme

governing notaries public under the NPA and the power of the State Treasurer

to remove a notary from his office at the Treasurer's pleasure.10

Plaintiff's assumption that a violation of the Statute is per se a violation

of the CFA fails to recognize the difference between services provided by a

public officer — an individual notary public — and a purveyor of consumer

goods and services. We are unfamiliar with any case that holds the CFA applies

to a public official who obtains his or her powers directly from the State and is

subject to significant State control and discipline, and plaintiff has failed to

bring one to our attention.

10
Several pieces of legislation are currently pending in the Legislature that
would significantly amend the current NPA.

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 At the same time, defendant and the other franchisees are providing a

service to the public. On the record that exists, we reach no conclusion as to

whether the complaint states a cause of action under the CFA or the common

law, nor was it our intention to address those issues by our grant of interlocutory

review.

We reverse the order under review only with respect to count one of

plaintiff's complaint. Although we conclude the Statute sets the maximum fee

a notary public may charge for services listed in the Statute, the Statute provides

no express or implied cause of action to recover for an excessive fee. The matter

is remanded to the Law Division for entry of an order dismissing count one of

plaintiff's complaint and for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

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