NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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., APPROVED FOR PUBLICATION Plaintiff-Respondent, May 8, 2015
v. APPELLATE DIVISION
ABC CAGING FULFILLMENT,
Defendant-Appellant. ______________________________________________
Argued December 16, 2014 – Decided May 8, 2015
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). 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.
2 A-2287-13T3 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.
3 A-2287-13T3 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)).
4 A-2287-13T3 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 Achacoso-
Sanchez 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.
5 A-2287-13T3 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).
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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., APPROVED FOR PUBLICATION Plaintiff-Respondent, May 8, 2015
v. APPELLATE DIVISION
ABC CAGING FULFILLMENT,
Defendant-Appellant. ______________________________________________
Argued December 16, 2014 – Decided May 8, 2015
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). 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.
2 A-2287-13T3 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.
3 A-2287-13T3 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)).
4 A-2287-13T3 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 Achacoso-
Sanchez 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.
5 A-2287-13T3 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.
6 A-2287-13T3 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. 7 A-2287-13T3 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
8 A-2287-13T3 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
9 A-2287-13T3 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.
10 A-2287-13T3 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.
11 A-2287-13T3