Pomerantz Paper Corp. v. New Community Corp.
207 N.J. 344
| N.J. | 2011Background
- Pomerantz Paper and New Community Corporation had a 15-year relationship selling paper goods and supplies to defendant's housing operations.
- Pricing was not fixed in advance; purchase orders identified items and quantities, while prices were reflected on invoices after delivery.
- Delivery and receipt were evidenced by a double-check system on delivery slips; defendant sometimes notified missing items by telephone.
- In 2000, price disputes arose, leading to trial on breach of contract and a CFA counterclaim alleging bait-and-switch and overcharging.
- Trial court found some invoices unpaid and, on CFA theory, found overcharges and damages based largely on an expert's markup analysis.
- Appellate Division affirmed CFA liability but reversed the breach-of-contract ruling, prompting further appellate review by this Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CFA applies to transactions between merchants/non-profits | CFA may apply to non-profit buyer dealings with merchants. | CFA should be limited or not apply to commercial transactions between such entities. | Court did not resolve CFA applicability to merchants; affirmed reversal on evidence grounds rather than broad CFA applicability. |
| Whether defendant's CFA proof was legally sufficient | CFA proof insufficiently supported by credible evidence and proper expert foundation. | Expert opinion showed overcharges and bait-and-switch; adequate under rules of evidence. | CFA proof insufficient; expert testimony was improper net opinion and could not support damages. |
| Whether trial court properly admitted and used expert testimony | Untimely and improper expert report; net opinion should have been excluded. | Expert relied on industry experience; admissible under Rule 702/703 as supporting evidence. | Trial court erred by admitting and relying on a net opinion; damages and liability findings based on that testimony cannot stand. |
| Whether a written notice of non-delivery is required under the UCC | Written notice not required; delivery evidence shows non-delivery without written notice. | UCC requires written notice to support non-delivery finding. | UCC does not require written notice; notice may be oral under course of dealing, and trial court findings must be sustained. |
| How damages should be calculated and disposition on remand | Damages properly computed from conceded unpaid invoices plus appropriate CFA damages. | Damages supported by expert markup analysis; correct calculation yields larger CFA award. | Damages based on net opinion were improper; remand to enter $15,000 unpaid invoices and no CFA action. |
Key Cases Cited
- Lubarr v. Royal Woodwork, Inc., 70 N.J. Super. 1 (App.Div.1961) (proof of delivery essential to plaintiff's cause of action)
- Jaehnig & Peoples, Inc. v. Fried, 83 N.J.L. 361 (Sup. Ct.1912) (delivery and acceptance as questions of fact)
- Jakowski v. Carole Chevrolet, Inc., 180 N.J. Super. 122 (App.Div.1981) (perfect tender rule; non-conforming delivery violations)
- Zabriskie Chevrolet, Inc. v. Smith, 99 N.J. Super. 441 (Law Div.1968) (tender and acceptance interplay under UCC)
- Massari v. Accurate Bushing Co., 8 N.J. 299 (1951) (buyer rights and timeliness of inspection under predecessor act)
- Polzo v. County of Essex, 196 N.J. 569 (2008) (net opinion admissibility; need for foundational support)
- Buckelew v. Grossbard, 87 N.J. 512 (1981) (net opinion rule; expert testimony must have basis)
- Taylor v. DeLosso, 319 N.J. Super. 174 (App.Div.1999) (limits on proving standard of care or pricing via expert)