SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0620-20

STEVE'S AUTO BODY

AND REPAIR, LLC,

Plaintiff-Appellant,

v.

TOWNSHIP OF GLOUCESTER,

Defendant-Respondent,

and

BARE MOTOR CO., INC., a/k/a

BARE TOWING, IRRGANGS

TOWING, WM PAUL IRRGANG, 

III, d/b/a PAULS TOWING, 

BERNIE'S AUTO REPAIR, a/k/a

BERNIE'S TOWING, ERIN'S 

TOWING, AUTO IMAGES 

TOWING, a/k/a AUTO IMAGES, 

RIEHL'S TOWING, STEVE'S 

AUTO REPAIR, INC., a/k/a 

STEVE'S TOWING & AMT

TOWING AND RECOVERY, LLC,

Defendants.

_______________________________

NOT FOR PUBLICATION WITHOUT THE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.
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A-0620-20

Argued January 12, 2022 – Decided July 14, 2022

Before Judges Hoffman, Whipple, and Geiger.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Docket No. L-0655-20.

Michael Wiseberg argued the cause for appellant 

(Fruchter, Weiss & Associates, attorneys; Harvey 

Fruchter and Michael Wiseberg, on the briefs).

Sean T. O'Meara argued the cause for respondent 

(Archer & Greiner, PC, attorneys; Vincent P. Sarubbi 

and Sean T. O'Meara, on the brief).

PER CURIAM

Plaintiff Steve's Auto Body and Repair appeals from the October 30, 2020 

Law Division order granting the summary judgment dismissal of its complaint 

against defendant Township of Gloucester. Plaintiff's complaint challenged

Chapter 79, Gloucester Township's Towing Ordinance, alleging that the 

ordinance violated plaintiff's due process and property rights under Article 1, 

paragraph 1 of the New Jersey Constitution. Plaintiff further alleged the 

ordinance violated N.J.S.A. 40:48-2.49 by unlawfully discriminating against 

towing operators located outside of Gloucester Township.1 The Law Division

1

 To avoid confusion, we refer to Township of Gloucester as "defendant" and 

the Township of Gloucester, as a geographic entity, as "Gloucester Township."
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A-0620-20

entered the order without allowing plaintiff to complete any discovery. We 

vacate the dismissal order and remand for further proceedings.

I.

We discern the following facts and procedural history from the record. A 

towing operator, plaintiff maintains a storage facility at 1717 North Tuckahoe 

Road in Williamstown, approximately five and five-eighth miles from the point 

identified by defendant as the "center point" of Gloucester Township. In 2019, 

plaintiff applied for a towing license for the year 2020. On January 16, 2020, 

plaintiff received a letter, dated December 30, 2019, from Gloucester Township 

Police Chief David Harkins. The letter advised plaintiff its application was 

denied "due to the storage facility being located outside of a [five-]mile radius 

of the center point of Gloucester Township," pursuant to Section 79-2 of the 

ordinance adopted by defendant regarding towing services.

According to Section 79-2, the purpose of the ordinance is

to establish[,] pursuant to N.J.S.A. 40:48-2.49, an 

orderly system to provide for towing services for 

removal of damaged motor vehicles in accidents and 

other abandoned, illegally parked or disabled vehicles 

within [Gloucester Township]. [A] towing list of 

licensed towing operators . . . will be called upon a 

rotating basis by the Police Department.
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N.J.S.A. 40:48-2.49 authorizes municipalities to "regulate, by ordinance, 

the removal of motor vehicles from private or public property by operators 

engaged in such business," provided the ordinance sets forth "nondiscriminatory and non-exclusionary regulations."

Prior to April 27, 2015, the ordinance required towing operators seeking 

licensure to maintain a storage facility within Gloucester Township. On 

September 5, 2013, Riehl's Towing and Maintenance, Inc. (Riehl), which 

maintains a storage facility at 2301 Pennsylvania Avenue in the neighboring 

municipality of Deptford Township, filed a complaint against defendant, 

alleging the ordinance violated its due process rights by excluding towing 

operators located outside Gloucester Township from qualifying for licenses. 

Defendant and Riehl eventually agreed to a settlement. Pursuant to the 

settlement, on April 27, 2015, defendant amended its towing ordinance to its 

current form. Section 79-7, titled "Application and License Fee," now requires 

applicants to maintain a "[s]torage facility within a [five-]mile radius of the 

center[] point of Gloucester Township . . . ." The ordinance defines "storage 

facility" as a "storage lot or storage area . . . within a [five-]mile radius of the 

center point of Gloucester Township." The ordinance further defines "center 
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point of Gloucester Township" as "defined pursuant to the map, as prepared by 

the Township Engineer and attached to this ordinance."2

On February 17, 2020, plaintiff filed its complaint in this matter. On 

February 20, 2020, plaintiff served defendant with the filed complaint, along 

with an initial set of interrogatories and a notice to produce. On September 10, 

2020, defendant filed the motion under review, without responding to any of 

plaintiff's discovery requests.

In support of its summary judgment motion, defendant provided two 

certifications. The first certification, from Lieutenant Timothy Kohlmyer of the 

Gloucester Township Police Department, stated that the five-mile radius 

requirement is "for the convenience of residents retrieving vehicles that have 

been towed" and that five of the nine licensed towing operators for 2020 have 

"storage facilities outside of Gloucester Township." The second certification, 

from defendant's attorney Vincent P. Sarubbi, stated that defendant amended its 

towing ordinance as part of the Riehl settlement to avoid discriminating against 

2 It is unclear if the map attached to one of defendant's supporting certifications is 

the map attached to defendant's ordinance. No map was attached to the copy of the 

ordinance submitted to the motion court. Defendant did not submit a certification 

from the Township Engineer who was responsible for preparing the map nor was 

this person even identified by defendant.
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applicants located outside of Gloucester Township. Sarubbi attached a copy of 

the Riehl complaint and a map depicting Gloucester Township, the center point, 

the five-mile radius, and plaintiff's location. Sarubbi's certification did not 

include any settlement documents from the Riehl litigation. 

Plaintiff opposed the motion, submitting the certification of Kenneth 

Rainer, a manager for plaintiff's business. According to Rainer, when he 

previously worked for a licensed towing operator located within Gloucester 

Township, "the majority of the service calls requiring tows" were "from a point 

within [Gloucester Township] that [plaintiff] can respond to . . . sooner than any 

of the existing [licensed] towers." In addition, plaintiff urged the court to 

appreciate that defendant's motion was "extremely premature." 

On October 30, 2020, after hearing oral argument, the motion judge issued 

an oral opinion granting summary judgment to defendant. The judge found no 

genuine issue of material fact, stating there was "an . . . undisputed reasonable 

reason why [the ordinance] was put into place for the convenience of the 

residents of the Township of Gloucester. And there's no evidence at all that that 

is improperly administered or discriminatorily administered." The judge also 

rejected plaintiff's challenge to defendant's $1,000 application fee for a towing 

license, stating that the amount "seems reasonable to the [c]ourt." 
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This appeal followed, with plaintiff raising the following arguments:

POINT I

THE MOTION FOR SUMMARY JUDGMENT WAS 

PREMATURE AND THE STATEMENT OF 

MATERIAL FACTS WAS NOT SUPPORTED BY 

COMPETENT EVIDENCE FROM WITNESSES 

WITH PERSONAL KNOWLEDGE - PLAINTIFF 

SHOULD HAVE BEEN AFFORDED THE 

OPPORTUNITY TO ENGAGE IN DISCOVERY TO 

PROVE THE ELEMENTS OF ITS CAUSES OF 

ACTION WHERE, AS HERE, THE FACTS ARE 

PECULIARLY WITHIN THE TOWNSHIP'S 

KNOWLEDGE, AND PLAINTIFF'S UNANSWERED 

DISCOVERY DEMANDS HAD LONG BEEN 

SERVED UPON THE DEFENDANT TOWNSHIP. 

POINT II

CHARGING NEW APPLICANTS ALMOST SEVEN 

TIMES THE AMOUNT CHARGED FOR RENEWAL 

APPLICANTS IS DISCRIMINATORY AND 

EXCLUSIONARY.

II.

We begin our analysis by acknowledging the legal principles governing 

this appeal. Our review of the trial court's grant of summary judgment is de 

novo, applying the same standard as the trial court. N.J. Div. of Tax'n v. 

Selective Ins. Co. of Am., 399 N.J. Super. 315, 322 (App. Div. 2008). Summary 

judgment is appropriate when "the pleadings, depositions, answers to 

interrogatories and admissions on file, together with the affidavits, if any, show 
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that there is no genuine issue as to any material fact challenged and that the 

moving party is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). "An issue of fact is genuine only if, considering the burden of persuasion 

at trial, the evidence submitted by the parties on the motion, together with all 

legitimate inferences therefrom favoring the non-moving party, would require 

submission of the issue to the trier of fact." Ibid.; see also Brill v. Guardian Life 

Ins. Co. of Am., 142 N.J. 520, 523 (1995). 

The party opposing summary judgment "'must do more than simply show 

that there is some metaphysical doubt as to the material facts[,]'" Triffin v. Am. 

Int'l Grp., Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004) (quoting Big 

Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3rd Cir. 1992), 

as "[c]ompetent opposition requires 'competent evidential material' beyond mere 

'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.com, Inc., 404 

N.J. Super. 415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order 

Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 2005))). 

Moreover, municipal ordinances are presumed to be valid and reasonable, 

and "[t]he burden of proof to establish that they are arbitrary and unreasonable 

rests on the party seeking to overturn them." Quick Chek Food Stores v. Twp. 

of Springfield, 83 N.J. 438, 447 (1980) (citation omitted). "Legislative bodies 
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are presumed to act on the basis of adequate factual support and, absent a 

sufficient showing to the contrary, it will be assumed that their enactments rest 

upon some rational basis within their knowledge and experience." Hutton Park 

Gardens v. Town Council of Town of W. Orange, 68 N.J. 543, 564-65 (1975) 

(citations omitted). "The underlying policy and wisdom of ordinances are the 

responsibility of the governing body, and if any state of facts may reasonably be 

conceived to justify the ordinance, it will not be set aside." Quick Chek, 83 N.J. 

at 447 (internal citations omitted).

"Generally, summary judgment is inappropriate prior to the completion of 

discovery." Wellington v. Est. of Wellington, 359 N.J. Super. 484, 496 (App. 

Div. 2003). "When 'critical facts are peculiarly within the moving party's 

knowledge,' it is especially inappropriate to grant summary judgment when 

discovery is incomplete." Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 

193 (1988) (quoting Martin v. Educ. Testing Serv., Inc., 179 N.J. Super. 317, 

326 (Ch. Div. 1981)).

Plaintiff contends defendant failed to establish the absence of a genuine 

issue of material fact because its certifications were not based on personal 

knowledge. This argument has merit.
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"A certification will support the grant of summary judgment only if the 

material facts alleged therein are based, as required by Rule 1:6-6, on 'personal 

knowledge.'" Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 599 (App. 

Div. 2011). Additionally, "[a]ffidavits by attorneys of facts not based on their 

personal knowledge but related to them by and within the primary knowledge of 

their clients constitute objectionable hearsay." Pressler and Verniero, Current 

N.J. Court Rules, comment on R. 1:6-6 (2022). 

In support of its summary judgment motion, defendant relied on two 

certifications: 1) Sarubbi's certification regarding the defendant's settlement of 

the Riehl's litigation and 2) Lieutenant Kohlmyer's certification stating that the 

five-mile radius requirement is "for the convenience of residents retrieving 

vehicles." Neither certification satisfies R. 1:6-6. 

Sarubbi's certification states his personal knowledge about the settlement 

arises from being "one of the attorneys responsible for the handling of this 

matter on behalf of defendant." However, Sarubbi does not certify to his 

involvement in the Riehl settlement. No other evidence about the Riehl 

settlement is provided. Similarly, Lieutenant Kohlmyer's certification states his 

personal knowledge arises from his employment "as a Lieutenant in the 

Gloucester Township Police Department." Lieutenant Kohlmyer does not 
11 A-0620-20

certify to his involvement in the research for or creation of the ordinance to 

support this claim. 

Notwithstanding the deficiencies in defendant's supporting certifications, 

the motion judge concluded, "it's quite clear why [the ordinance was] 

developed . . . they picked a five-mile radius for the convenience of their 

residents." Based on the limited record, however, the judge's conclusion was 

unsupported by evidence of any analysis undertaken by defendant to achieve its 

stated objective. The record contains no credible evidence regarding the basis 

for deciding on the five-mile radius requirement for storage facilities, other than 

the location of Riehl's within such a radius. Accordingly, we find defendant 

presented insufficient proofs to warrant summary judgment.

Plaintiff also contends complete discovery is necessary for information 

about the passage of the ordinance and creation of the center point, such as "what 

study or data [Lieutenant Kohlmyer] relied upon to support his opinion that the 

'convenience of the residents' in retrieving their vehicles after being towed was 

the purpose served by the amendment to the [ordinance]." Plaintiff highlights 

defendant's failure to produce traffic and response time data, an engineering 

report or an affidavit from the engineer who determined Gloucester Township's 
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center point, and the true location of the center point. Plaintiff's arguments have 

merit.

Depositions of Sarubbi, Lieutenant Kohlmyer, the Township Engineer, 

and the Chief of Police will allow plaintiff to determine if there exists evidence 

of discriminatory intent improperly favoring towing operators within Gloucester 

Township. Plaintiff will also have the opportunity to learn how the Township 

Engineer developed the center point and five-mile radius, what research went 

into its creation regarding resident convenience, and the role of the Riehl 

settlement. Plaintiff contends that full discovery will reveal whether defendant 

strategically crafted the five-mile radius to permit Riehl to qualify for licensure 

while limiting the number of towing operators who could qualify to protect 

towing operators within Gloucester Township.

We recognize that any choice of a specific geographical limitation will 

exclude some towing operators who might plausibly be admitted and include 

others who might plausibly be excluded. Defendant's choice should not be 

disturbed unless it is unreasonable. Quick Chek, 83 N.J. at 447. However, full 

discovery may very well support plaintiff's contentions and reveal arbitrary, 

exclusionary, or discriminatory decision-making. At the very least, such 
13 A-0620-20

discovery could yield a genuine factual dispute. See Wellington, 359 N.J. Super. 

at 496. We discern no basis for denying plaintiff full discovery.

Lastly, plaintiff contends defendant's $1,000 application fee for new 

applicants, in comparison with the $150 application fee for renewal applicants, 

is also discriminatory and exclusionary. Plaintiff argues "such a dramatic gap 

cannot be justified simply by claiming it is less work to investigate and verify a 

renewal application" and the difference in costs is "designed to keep out 

competition." Plaintiff argues the fee must be equally applied and "reasonably

proportionate." Furthermore, plaintiff asserts discovery "would reveal the time 

spent on these investigations for license-holders and whether the 

disproportionate fee structure was arbitrary and capricious." We conclude that 

this issue also warrants full discovery.

Vacated and remanded. We do not retain jurisdiction.