01-2-8903 In the Matter of Notice of Protest Pursuant to N.J.S.A. 19:9-2.12 Rejection of Prequalification Submission of Routine Towing, App. Div. (per curiam) (10 pp.) Appellant Thomas Makuch L.L.C., d/b/a Accurate Towing Service, appealed from a final agency decision of the New Jersey Turnpike Authority rejecting Accurate’s untimely prequalification application to perform routine towing services on the Garden State Parkway. Accurate has over 25 years of experience towing cars on various New Jersey roadways and highways. It sought prequalification to bid on towing contracts for zones four, five and six on the Parkway and retained counsel to assist it with the prequalification process. It is undisputed that an employee of the law firm that previously represented Accurate was responsible for personally delivering the prequalification applications to the Authority on June 21. Unfortunately, because of a death in her family, the employee left work early and neglected to deliver the applications. Accurate’s prequalification applications were delivered to the Authority on Monday, June 24. The issue on appeal was whether the Authority acted arbitrarily and capriciously in refusing to waive the filing deadline for Accurate’s untimely prequalification application. The Authority’s final decision reflected that the executive director conferred with the Authority’s director of procurement and materials management and determined that it was necessary to “proceed without delay in order to protect the interest of the Authority and the public-at-large.” The Authority’s rejection of Accurate’s untimely applications reflected a valid discretionary exercise of its business judgment. Additionally, Accurate clearly had ample advance notice of the filing deadline and the mandatory nature of that deadline. Accordingly, Accurate failed to demonstrate that the Authority’s decision to reject its prequalification applications was arbitrary or capricious.
03-2-8928 Roach v. BM Motoring LLC, App. Div. (per curiam) (11 pp.) Plaintiffs Emelia Jackson and Tahisha Roach, on behalf of themselves and all others similarly situated, appealed the trial court order dismissing their consumer fraud complaint with prejudice and compelling arbitration with BM Motoring LLC and Federal Auto Brokers Inc., both t/a BM Motor Cars. The court granted BM’s motion to compel arbitration based on the dispute resolution agreement as part of a contract to purchase a car. The DRA included a waiver of any right to pursue a claim as a class action arbitration. On appeal, plaintiffs contended that BM materially breached the DRA by failing to arbitrate after receiving service of their demands for arbitration, and BM waived the right to enforce the DRA by failing to pay the fees as was required. BM contended that the AAA was not the appropriate forum to initiate the claims, so there was no breach or waiver. Although BM did not respond to plaintiffs’ claims, it alleged that this was because of the disagreement over the appropriate forum, and ultimately, arbitration was what it sought. The motion judge determined that a sufficient factual dispute as to the forum existed and thus ordered arbitration through the AAA. The judge correctly found that BM did not materially breach the DRA, and thus arbitration between the parties was still enforceable. Further, BM did not waive its right to arbitrate. The trial court’s decision to compel arbitration, and specifying the forum, was in accordance with the terms of the DRA.
