NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2287-13T3

THE PITNEY BOWES BANK, INC.,

Plaintiff-Respondent,

v.

ABC CAGING FULFILLMENT,

Defendant-Appellant.

______________________________________________

Argued December 16, 2014 – Decided

Before Judges Messano, Ostrer and Hayden.1

On appeal from Superior Court of New Jersey, 

Law Division, Monmouth County, Docket No. 

L-5518-11.

Jeff Thakker argued the cause for appellant.

Nicola G. Suglia argued the cause for 

respondent (Fleischer, Fleischer & Suglia, 

attorneys; Jaclyn Scarduzio Dopke, on the 

brief).

The opinion of the court was delivered by

HAYDEN, J.A.D.

In this case we consider the effect of N.J.S.A. 34:11-31 and 

-32 on a levy, pursuant to a writ of execution, of a debtor's bank 

 

1 Judge Messano did not participate in oral argument. He joins 

the opinion with counsel's consent. See R. 2:13-2(b).

APPROVED FOR PUBLICATION

May 8, 2015

APPELLATE DIVISION

May 8, 2015
A-2287-13T3

2

account, which purportedly was used to pay employees' wages. 

Defendant ABC Caging Fulfillment (ABC) appeals from the December 

6, 2013 Law Division order granting plaintiff Pitney Bowes Bank's 

(Pitney Bowes) motion for reconsideration. Having considered 

ABC's contentions in light of the record and applicable law, we 

affirm in part, reverse in part, and remand for further 

proceedings.

We discern the following facts from the record. This dispute 

arises out of a civil complaint filed by Pitney Bowes, which 

claimed that ABC had breached a purchase agreement. In its 

complaint, Pitney Bowes alleged that ABC failed to make the 

required payments and, thus, defaulted under the terms of the 

agreement. The trial court struck ABC's answer with prejudice due 

to ABC's failure to respond to discovery requests. Thereafter, 

on July 12, 2013, the trial court entered a default judgment in 

favor of Pitney Bowes in the amount of $69,315.59. 

On September 6, 2013, the Ocean County Sheriff levied ABC's 

Shore Community Bank account containing $30,455 pursuant to a writ 

of execution. The Sheriff sent ABC a notice of the levy on the

same day. On September 12, 2013, Pitney Bowes moved for an order 

requiring the bank to turn over the levied funds. In its 

opposition, ABC argued that the funds in the bank account were 

exempt as unpaid wages under N.J.S.A. 34:11-31 and -32. 
A-2287-13T3

3

ABC's president, Patsy O'Brien, certified that the levied 

account was ABC's "payroll account" and its contents were used to 

pay employees' wages. O'Brien stated that approximately $10,000 

was due and owing to employees at the time of the levy. As a 

result of the levy freezing the payroll funds, O'Brien paid the 

employees' wages using her own personal funds. During the month 

that Pitney Bowes's motion for turnover was pending, O'Brien 

continued to pay the employees' wages from other funds. 

Pitney Bowes responded that the levied funds were not exempt

under N.J.S.A. 34:11-31 and -32. In particular, Pitney Bowes 

contended that the statutes applied to wages "due and owing" and 

since ABC's employees had been paid after the levy, the statutes 

did not apply. On October 11, 2013, the trial court denied Pitney 

Bowes's motion, without oral argument, for "the reasons set forth 

in the opposition." 

Pitney Bowes filed a timely motion for reconsideration, 

arguing that the trial court "may not have been in receipt of 

and/or considered [its] reply to [ABC's] late opposition at the 

time of the decision." On December 6, 2013, the trial judge, 

after hearing oral argument, granted the motion. In determining 

that reconsideration was appropriate, the trial judge explained

that he had "taken another look" at the matter as he now "had the 

benefit of all the papers[.]" The trial judge found that N.J.S.A.
A-2287-13T3

4

34:11-31 and -32 did not apply to "wages owed after the date of 

the levy" and that while O'Brien had to advance monies to pay 

employee wages, that fact "[did not] qualify as an exemption"

under the statutes. Instead, he opined, it made her a creditor 

of ABC. This appeal followed. 

On appeal, ABC first argues that the trial court abused its 

discretion in granting the motion for reconsideration as there 

were no new facts or law presented to the court. Rather, ABC 

contends that the parties fully briefed, and the trial court fully 

adjudicated, the issues when it denied Pitney Bowes's original 

motion. 

Motions for reconsideration are governed by Rule 4:49-2, 

which provides that the decision to grant or deny a motion for 

reconsideration rests within the sound discretion of the trial 

court. See Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 

398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 

(2008) (internal citations omitted). Reconsideration should be 

used only where "1) the [c]ourt has expressed its decision based 

upon a palpably incorrect or irrational basis, or 2) it is obvious 

that the [c]ourt either did not consider, or failed to appreciate 

the significance of probative, competent evidence." Ibid.

(quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 

1990)). 
A-2287-13T3

5

Thus, a trial court's reconsideration decision will be left 

undisturbed unless it represents a clear abuse of discretion. 

Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). An 

abuse of discretion "arises when a decision is 'made without a 

rational explanation, inexplicably departed from established 

policies, or rested on an impermissible basis.'" Flagg v. Essex 

Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting AchacosoSanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 

(7th Cir. 1985)). 

We accord substantial deference to the trial court's findings 

of fact provided that they are "supported by adequate, substantial 

and credible evidence[,]" and also give deference to the trial 

court's conclusions and "discretionary determinations that flow 

from them." Cosme v. Borough of East Newark Twp. Comm., 304 N.J. 

Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 

(1998) (internal quotation marks and citations omitted). However, 

"[a] trial court's interpretation of the law and the legal 

consequences that flow from established facts are not entitled to 

any special deference." Manalapan Realty, L.P. v. Twp. Comm. of 

Twp. of Manalapan, 140 N.J. 366, 378 (1995). 

Here, the trial court's decision to entertain defendant's 

application was certainly "within the scope of [its] discretion." 

See Union Cnty. Improvement Auth. v. Artaki, LLC, 392 N.J. Super.
A-2287-13T3

6

141, 146 (App. Div. 2007). Even assuming that the trial court had 

the benefit of all of the papers, the court's choice to undertake 

a second review of the evidence and facts presented was well within 

its discretionary authority. See Fusco v. Bd. of Educ. of City 

of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 

174 N.J. 544 (2002). Given the little used statutes involved as

well as the lack of judicial precedent or legislative history 

discussing the scope of N.J.S.A. 34:11-31 and -32, the trial 

court's choice to consider his decision again was reasonable. 

Nonetheless, as explained below, we conclude it was a mistaken

exercise of discretion to grant the reconsideration motion in 

full. 

ABC further contends that the trial court erred in finding 

that N.J.S.A. 34:11-31 and -32 did not apply to its levied payroll 

account. Specifically, ABC contends that the wages due and owing 

on September 6, 2013, the date of the levy, were exempt under 

N.J.S.A. 34:11-31, and that those wages which accrued between the 

date of the levy and when the trial court decided Pitney Bowes's 

turnover motion were also exempt under N.J.S.A. 34:11-32. Based 

upon our scrutiny of these statutes, we agree with ABC's position 

with respect to those wages that were due on September 6, 2013, 

but reject ABC's contention that the wages due after the levy was 

executed were also exempt. 
A-2287-13T3

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N.J.S.A. 34:11-31 and -32 sets forth the priority of 

employees' wages against other creditors of the employer.2 See

Maureen S. Binetti & Stephanie D. Gironda, New Jersey Wage Payment 

Law § 16.07 (2014). N.J.S.A. 34:11-31 provides:

No personal property, being in this state and 

belonging to any person, corporation or 

manufacturer, shall be liable to be removed 

by virtue of any execution, attachment or 

other process, unless the party, by whom or 

at whose suit such process was issued or sued 

out, shall first pay or cause to be paid to 

the operatives, mechanics and other employees 

of such person, manufacturer or corporation 

the wages then owing from such person, 

manufacturer or corporation. The wages 

required to be paid as aforesaid shall not 

exceed two months' wages, and, if the wages 

due and owing as aforesaid shall exceed two 

months' wages, the party at whose suit such 

process is sued out may, upon paying or 

causing to be paid to such employees two 

months' wages, proceed to execute his process 

. . . . 

[Ibid. (emphasis added).]

Additionally, N.J.S.A. 34:11-32 provides that property 

removed by the sheriff without employees' wages being paid may not 

be sold "until the plaintiff or party causing the levy shall 

. . . pay to such employees such wages . . . [then] owing[.]" If 

employees are not paid the wages due and owed to them, they must 

 

2 The law was passed in 1877 and only amended in 1896. L. 1896, 

c. 2 § 1, 53. No legislative history is available.
A-2287-13T3

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notify the officer of their claim in order to stop the sale of the 

property within ten days of the property being removed. Ibid. 

While there is a dearth of legal precedent concerning these 

timeworn statutes, "[t]here is no question about the general 

primacy of the wage claimant's position under New Jersey law." 

Robison-Anton Textile Co. v. Embroidery Prods. Corp., 97 N.J. 

Super. 507, 508 (App. Div. 1967) (citing N.J.S.A. 34:11-31 and -

33). It is clear that the purpose of these statutes was to ensure 

that employee wage claims take priority over other creditors. See

In re Holly Knitwear, Inc., 115 N.J. Super. 564, 579 (Cty. Ct. 

1971), modified on other grounds, 140 N.J. Super. 375 (App. Div. 

1976); see also State v. Rosen, 40 N.J. Super. 363, 369 (Law Div. 

1956) ("[I]t was the intent [of the Legislature] to make wages 

earned by employees a paramount claim to all others upon the assets 

of the employer."), rev'd on other grounds, Dep't of Labor & Indus. 

v. Rosen, 44 N.J. Super. 42 (App. Div. 1957). 

In interpreting a statute, "[w]ell-known principles of 

statutory construction guide [our] analysis[.]" State v. Hudson, 

209 N.J. 513, 529 (2012). "The overriding goal is to determine 

as best we can the intent of the Legislature, and to give effect 

to that intent." Ibid. To that end, we look to the plain language 

of the statute as the best indicator of the intent of the 

Legislature. Ibid. "If the plain language leads to a clear and 
A-2287-13T3

9

unambiguous result, then our interpretive process is over." 

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

189, 195 (2007); see also N.J.S.A. 1:1-1 (A statute's "words and 

phrases shall be read and construed with their context, and shall

. . . be given their generally accepted meaning, according to the 

approved usage of the language."). When interpreting a statute 

that is part of a larger framework, the statute should be read in 

connection with the other parts to give meaning to the entire 

legislative scheme. See Rosen, supra, 40 N.J. Super. at 369; see 

also Carlson v. City of Hackensack, 410 N.J. Super. 491, 497 (App. 

Div. 2009).

Our function is not "to rewrite a plainly-written enactment 

of the Legislature or presume that the Legislature intended 

something other than that expressed by way of the plain language." 

Borough of Glassboro v. Fraternal Order of Police, Lodge No. 108, 

197 N.J. 1, 11 (2008) (internal quotation marks and citations 

omitted). Further, courts may not "read into a statute words that 

were not placed there by the Legislature." State v. Smith, 197 

N.J. 325, 332 (2009). 

Applying these principles, we conclude that N.J.S.A. 34:11-

31 unambiguously requires that wages "then owing" to employees at 

the time of the levy must be paid before the creditor for whom the 

sheriff levied the funds, in this case, Pitney Bowes. When a levy 
A-2287-13T3

10

is made on a bank account, "the funds levied are technically no 

longer the bank's or debtor's to control." Sylvan Equip. Rental 

Corp. v. C. Washington & Son, Inc., 292 N.J. Super. 568, 574 (Law 

Div. 1995). A bank levy is "fixed in time as of the date the 

sheriff served the writ on [the bank.]" T & C Leasing, Inc. v. 

Wachovia Bank, N.A., 421 N.J. Super. 221, 230 (App. Div. 2011). 

Thus, to the extent that the funds in the account represented 

employee wages then due and owing, they were exempt from the levy. 

In our view it is of no moment that after the levy, ABC, unable 

to pay their employees' wages due to the freezing of exempt funds, 

obtained the money elsewhere and paid the employees. ABC was 

under a legal obligation to pay its employees at least twice each 

month. N.J.S.A. 34:11-4.2.

On the other hand, ABC's argument that the wages that became 

due and owing after the levy were exempt under N.J.S.A. 34:11-32 

is not supported by the statute. N.J.S.A. 34:11-32 prohibits the 

sale of property pursuant to a writ before the wages due at the 

time of the removal are paid. ABC incorrectly contends that until 

the levied funds were turned over to Pitney Bowes, any wages that 

accrued became exempt. This argument ignores the reality that the 

funds were removed on the day of the levy and the wages due and 

owing were fixed by the date of the removal. See T & C Leasing, 

supra, 421 N.J. Super. at 230. 
A-2287-13T3

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Notwithstanding our conclusion that the funds representing 

employee wages due and owing on September 6, 2013 were exempt from 

the levy, we conclude that a remand to the trial court is necessary 

to determine the exact amount of wages due on the date of the 

levy. While the wage amount was discussed in ABC's papers, the 

figures are contradictory and unsubstantiated.

Affirmed in part, reversed in part and remanded for further 

proceedings consistent with this opinion. We do not retain 

jurisdiction.