SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1214-17T4

DREW WARES and MEDIN

TAFA, on behalf of themselves 

and others similarly situated,

Plaintiffs-Appellants,

v.

GUARANTEED MOTOR 

TOWING SERVICE, INC.,

and MARK DIGIOVANNI,

Defendants-Respondents.

___________________________

Argued November 29, 2018 – Decided April 11, 2019

Before Judges Whipple and DeAlmeida.

On appeal from Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. L-2088-16.

Andrew R. Wolf argued the cause for appellants (The 

Wolf Law Firm, LLC, and The Law Office of 

Christopher J. McGinn, attorneys; Matthew S. 

Oorbeek, Andrew R. Wolf, Bharati Sharma Patel and 

Christopher J. McGinn, on the briefs).

NOT FOR PUBLICATION WITHOUT THE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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Eric S. Schlesinger argued the cause for respondents 

(Golden, Rothschild, Spagnola, Lundell, Boylan & 

Garubo, PC, attorneys; Eric S. Schlesinger and Hristo 

Zevlikaris, of counsel and on the brief).

PER CURIAM

Plaintiffs Drew Wares and Medin Tafa appeal from the April 21, 2017 and 

November 9, 2017 summary judgment orders dismissing their claims under the 

Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20; Predatory Towing 

Protection Act (Towing Act), N.J.S.A. 56:13-7 to -23; and the Truth-inConsumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14

to -18. Plaintiffs, representing a putative class, complained defendants 

Guaranteed Motor Towing Service (Guaranteed) and Mark DiGiovanni, 

Guaranteed's owner and president, violated the Towing Act when Guaranteed 

towed their cars from a residential apartment complex. Plaintiffs also alleged

defendants violated the CFA and TCCWNA when plaintiffs attempted to 

retrieve their cars. For the reasons that follow, we reverse the trial court's 

summary judgment dismissal of plaintiffs' claims and remand for further 

proceedings.

Both Wares and Tafa lived in an apartment complex at 32 Union Street 

(32 Union) in New Brunswick. Both had assigned parking spots in 32 Union's 
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underground garage and received parking placards. Both received a parking 

policy document stating the following:

We are allowing Guaranteed Motors (732)247-7491 the 

permission to enter our private property and remove 

any vehicles in violations as follows:

 Permit parking tag matches the numbered spot

 Vehicles with no parking passes

 Parking permits must be displayed on rearview 

mirror or dashboard ONLY

If the rules listed above are not followed your car WILL

be towed.

Guaranteed Motor is located at 636 Hamilton Street, 

Somerset, New Jersey. To contact Guaranteed Motor 

Towing Service, call 732 247-7491.

Towing services are available 24/7, 7 days a week.

The office is open during the following times: Monday 

– Friday: 8:00 a.m. – 3:30 p.m. Saturday: 8:00 a.m. –

10:00 a.m. Sunday: Closed

ALL CARS WILL BE TOWED AT OWNERS 

EXPENSE

1. IF VEHICLE PARKED IN FIRE ZONE

2. TAGS NOT DISPLAYED ON DASHBOARD OR 

HANGING CLEARLY FROM THE REAR MIRROR 

FACING OUT

3. IF VEHICLE TAG DOES NOT MATCH PARKING 

SPOT #

32 Union posted a sign in the parking garage stating, "PARKING BY 

PERMIT ONLY violators will be towed." The sign did not include such 

information as the name, address, operating hours and phone number of the 

towing company.
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On August 17, 2015, Wares parked his brother's car in the garage 

overnight but did not hang the parking placard on the car's rear view mirror. The 

next morning, he learned Guaranteed towed the car. Guaranteed told Wares he 

could pay eighty-five dollars to retrieve his car, but when Wares asked for a 

receipt, Guaranteed told him he could not pay with a credit card. According to 

Wares, Guaranteed refused to give him an invoice unless and until he paid 

eighty-five dollars in cash.

Guaranteed towed Tafa's car on July 30, 2015, and January 22, 2016, 

respectively. Tafa did not display the placard on both occasions. In July 2015, 

Tafa went with his girlfriend to retrieve the car. Guaranteed told him he had to 

pay $127.80 (comprised of an eighty-five dollar tow charge, a forty-dollar

storage fee, and two dollars and eighty cents in taxes) and provided an invoice. 

However, Guaranteed issued the invoice to Tafa's girlfriend because Tafa's 

insurance information was inside the car and Guaranteed would not let him 

retrieve it. In the second instance, Tafa was required to pay eighty-five dollars,

and the invoice was issued to his girlfriend.

On April 7, 2016, Wares and Tafa filed a class action complaint alleging 

Guaranteed violated: (1) the CFA by towing the putative class's cars illegally; 

(2) the Towing Act because Guaranteed charged excessive towing fees; (3) the 
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TCCWNA by charging excessive fees; (4) the TCCWNA by failing to provide 

a proper invoice; and (5) the CFA for illegally towing Tafa's car. Neither Wares 

nor Tafa pursued an administrative remedy with any governmental agency 

before filing a complaint.

On April 21, 2017, defendants moved for summary judgment and the 

judge dismissed the CFA counts. The judge found plaintiffs could not establish 

Guaranteed violated the Towing Act, a necessary predicate to show a CFA

violation, because both received the parking policy, which permitted Guaranteed 

to conduct non-consensual towing, and neither displayed their parking placards 

at the time Guaranteed towed their cars. The trial judge acknowledged the 

signage displayed in the parking garage was deficient under the Towing Act but 

found "the intent and spirit of the legislature in forming and passing that 

legislation has been satisfied because here . . . [w]e are dealing . . . with notice 

that complies with the statute[.]"

On November 9, 2017, the judge dismissed plaintiffs' remaining claims. 

She found plaintiffs did not exhaust their administrative remedies pursuant to 

the Towing Act, because they neither engaged in good faith negotiations with 

Guaranteed nor complained to a governmental entity before filing a complaint. 
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With no remaining claims, the judge dismissed plaintiffs' motion to compel 

discovery and to file a second-amended complaint. This appeal followed.

"[W]e review the trial court's grant of summary judgment de novo under 

the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l 

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A motion for 

summary judgment should be granted "if the pleadings, depositions, answers to 

interrogatories and admissions on file, together with the affidavits, if any, show 

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). The evidence must be viewed "in the light most favorable to the nonmoving party[.]" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 

(2012). "Rule 4:46-2(c)'s 'genuine issue [of] material fact' standard mandates 

that the opposing party do more than 'point[] to any fact in dispute' in order to 

defeat summary judgment." Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 

(2016) (alteration in original) (quoting Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520, 529 (1995)).

Enacted in 2008, the Towing Act set minimum standards for tow truck 

operators and prevents predatory towing practices, such as "charging 

unwarranted or excessive fees . . . or overcharging persons for towing services 
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provided under circumstances where the consumer has no meaningful 

opportunity to withhold consent[.]" N.J.S.A. 56:13-8(b) (2017). The Towing 

Act, in part, "regulates the removal of vehicles that are on private property 

without proper authorization. [The Towing Act] is intended to stop the practice 

of predatory towing, where a vehicle is removed without the owner's notice or

consent and the owner is charged an exorbitant fee for the vehicle's return." S. 

Transp. Comm. Statement to S. 2759 (June 14, 2007).

A towing company may not tow an improperly parked car on private 

property unless the towing company has a contract with the property owner and 

signage, which must include towing charges, is conspicuously posted. N.J.S.A. 

56:13-13(a). However, if the private property is a residential community with 

assigned parking spaces, the towing company, whom the landlord has a contract, 

may tow a vehicle provided:

(1) the assigned spaces are clearly marked as such;

(2) there is specific documented approval by the 

property owner authorizing the removal of the 

particular vehicle; and

(3) a sign, which can easily be seen by the public, is 

posted in a conspicuous place at all vehicular entrances 

to the residential community property, stating that 

unauthorized parking in an assigned space is prohibited 

and unauthorized motor vehicles will be towed at the 

owner's expense, and providing information or a 
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telephone number enabling the vehicle owner or 

operator to immediately obtain information as to the 

location of the towed vehicle.

[N.J.S.A. 56:13-13(e).]

"The Towing Act requires the Director of the Division of Consumer 

Affairs (Director) to establish, by regulation, a schedule of the services for 

which a towing company can charge fees in connection with the non-consensual 

towing of a motor vehicle." Pisack v. B & C Towing, Inc., 455 N.J. Super. 225, 

237 (App. Div.), leave to appeal granted, 236 N.J. 24 (2018). Towing companies 

must charge "reasonable and not excessive" fees. N.J.S.A. 56:13-14(b). A fee 

is presumptively unreasonable if it is "[m]ore than [twenty-five] percent higher 

than the fee charged by the towing company . . . for the same services when" the 

owner of the car consents to the tow or "[m]ore than [fifty] percent higher than 

the fee charged for such other non-consensual towing[.]" N.J.A.C. 13:45A31.5(a).

The Towing Act provides consumers with two remedial paths. A 

consumer may sue under the CFA or "the [Director of the Division of Consumer 

Affairs] may order a towing company that has billed a person for any 

nonconsensual towing . . . an amount determined by the [Director] to be 

unreasonable to reimburse the person for the excess cost with interest." N.J.S.A. 
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56:13-21(b). The Director, in promulgating regulations under the Towing Act, 

encouraged parties to "use good faith efforts to resolve [their] dispute" before 

petitioning the Director. N.J.A.C. 13:45A-31.4(f).

Any violation of the Towing Act "is an unlawful practice and a violation 

of [the CFA.]" N.J.S.A. 56:13-21(a). To state a private cause of action under 

the CFA, a consumer must prove "'1) unlawful conduct [or practice] by 

defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship 

between the unlawful conduct and the ascertainable loss.'" Manahawkin 

Convalescent v. O'Neill, 217 N.J. 99, 121 (2014) (quoting Bosland v. Warnock 

Dodge, Inc., 197 N.J. 543, 557 (2009)). A Towing Act violation satisfies the 

"unlawful conduct" element of a CFA claim. Cf. Dugan v. TGI Fridays, Inc., 

231 N.J. 24, 51 (2017) ("An 'unlawful practice' contravening the CFA may arise 

from (1) an affirmative act; (2) a knowing omission; or (3) a violation of an 

administrative regulation.").

To establish a TCCWNA claim, a plaintiff must prove he or she is an 

"aggrieved consumer" and the defendant violated a "clearly established legal 

right" or "responsibility." N.J.S.A. 56:12-15, -17; Dugan, 231 N.J. at 69. "[T]he 

term 'aggrieved consumer' denotes a consumer who has suffered some form of 

harm as a result of the defendant's conduct." Spade v. Select Comfort Corp., 
10 A-1214-17T4

232 N.J. 504, 522 (2018). Because "vehicle owners are consumers under the 

Towing Act, they also should be considered consumers under the TCCWNA." 

Pisack, 455 N.J. Super. at 248. "The bills issued by the towing companies are 

consumer contracts and notices within the meaning of the TCCWNA." Id. at 

249. "Accordingly, those bills and invoices act as the 'writings required to 

complete the consumer transaction.'" Ibid. (quoting N.J.S.A. 56:12-1). Any 

"inclusion of prohibited charges in the bill 'deceives a consumer into thinking 

they are enforceable.'" Ibid. (quoting Dugan, 231 N.J. at 68). Therefore, 

prohibited charges contained in a towing bill violate a "clearly established legal 

right" or "responsibility." Ibid.

In her statement of reasons in support of the November 9, 2017 order, the 

judge agreed with Guaranteed that plaintiffs were required to exhaust their 

administrative remedies pursuant to N.J.S.A. 56:13-21(b), before suing under 

the Towing Act. The judge dismissed plaintiffs' Towing Act and TCCWNA 

claims because neither plaintiff pursued an administrative remedy or petitioned 

the Director before filing a complaint.

Consistent with our recent decision in Pisack, we disagree. The Towing 

Act permits administrative remedies but does not impose exhausting 

administrative as a condition precedent before suing under the Towing Act. 
11 A-1214-17T4

Pisack, 455 N.J. Super. at 242. The Towing Act omits the type of specific 

language New Jersey courts have required before reading an exhaustion of 

administrative remedies requirement into a statute. Cf. Jersey Cent. Power & 

Light Co. v. Melcar Util. Co., 212 N.J. 576, 587-88 (2013) (holding the 

legislature deliberately meant to create two types of remedies under a statute by 

using "shall" for mandatory avenues of relief and "may" for permissive ones). 

Although the administrative regulations promulgated pursuant to the Towing 

Act state parties "shall use good faith efforts to resolve the dispute," the term 

"shall" only refers to good faith efforts, not further administrative dispute 

resolution avenues. Pisack, 455 N.J. Super. at 243. Accordingly, we reverse 

the November 9, 2017 order dismissing counts two, three, and four of plaintiffs' 

complaint and remand for further proceedings.

The November 9, 2017 order also disposed of plaintiffs' motions to 

compel more specific discovery responses and to file a second amended 

complaint. The judge did not reach the merits of those motions after dismissing 

plaintiffs' claims for failure to exhaust administrative remedies. On remand, 

plaintiffs' motions shall be considered anew.

In addition, the April 21, 2017 order dismissed counts one and five in 

error. The premise of the judge's decision therein was Guaranteed did not 
12 A-1214-17T4

violate the "spirit" of the Towing Act, because plaintiffs received notice of 32 

Union's parking policy, notwithstanding the parking lot's deficient signage. 

Therefore, the judge found plaintiffs could not prove a CFA violation based on 

the Towing Act.

"When called on to interpret a statute, 'our overriding goal must be to 

determine the Legislature's intent.'" Cast Art Indus., LLC v. KPMG LLP, 209 

N.J. 208, 221 (2012) (quoting State v. Gonzalez, 142 N.J. 618, 627 (1995)). "It 

is not the function of this [c]ourt 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.'" DiProspero v. Penn, 183 N.J. 477, 

492 (2005) (alteration in original) (quoting O'Connell v. State, 171 N.J. 484, 488 

(2002)). "Our duty is to construe and apply the statute as enacted." In re Closing

of Jamesburg High Sch., 83 N.J. 540, 548 (1980).

N.J.S.A. 56:13-13(a) generally prohibits the unconsented towing of 

vehicles from private property unless certain conditions are met. N.J.S.A. 

56:13-13(e) imposes specific conditions before a towing company may legally

tow from a residential community. A car may not be towed from a residential 

community unless: (1) parking spaces are specifically assigned and clearly 

marked, (2) "there is specific documented approval by the property owner 
13 A-1214-17T4

authorizing the removal of the particular vehicle," and (3) a sign, stating 

unauthorized parking is prohibited, violators will be towed at the owner's 

expense, and containing the towing company's phone number, is conspicuously 

posted. N.J.S.A. 56:13-13(e). The Legislature's intentional use of "and" means 

all three conditions must be met before a vehicle may be towed from a residential 

community. 32 Union's signage was deficient because it did not include

Guaranteed's phone number, among other missing information. This deficiency 

was not minor. The owners of towed vehicles need to know where and how to 

retrieve their vehicles. It was therefore error to excuse that deficiency and grant 

summary judgment.

Moreover, the judge did not determine whether 32 Union management 

reported or documented plaintiffs' cars as improperly parked. The record 

contained no "specific documented approval by the property owner authorizing 

the removal of" plaintiffs' vehicles. Thus, affording plaintiffs all favorable 

inferences, they raised a genuine dispute of material fact as to whether 

Guaranteed towed their cars in violation of the Towing Act.

Excusing technical compliance in lieu of conformity with the "spirit" of 

the statute would render the Towing Act's protection against unauthorized 

towing "mere surplusage." Cf. In re Attorney Gen.'s "Directive on Exit Polling: 
14 A-1214-17T4

Media & Non-Partisan Pub. Interest Grps.", 200 N.J. 283, 298 (2009). The 

Legislature enacted specific conditions, each of which must be met, before a car 

can be towed from private property. Cf. DiProspero, 183 N.J. at 493 

("Ordinarily, we are enjoined from presuming that the Legislature intended a 

result different from the wording of the statute . . . ."). Therefore, a towing 

company violates the Towing Act when it tows a car from private property 

absent compliance with all applicable statutory conditions.

We need not address other questions raised but not reached by the trial 

judge, such as whether plaintiffs suffered an ascertainable loss, whether 

Guaranteed violated a "clearly established legal right," or whether the necessary 

requirements for class certification have been met. Those questions are to be 

addressed by the trial judge on remand consistent with this opinion.

Reversed and remanded. We do not retain jurisdiction.