MON-L-002859-20 11/02/2020 5:27:15 PM Pg 1 of 15 Trans ID: LCV20201971965

FLORIO PERRUCCI STEINHARDT CAPPELLI

TIPTON & TAYLOR, LLC
By: Susan A. Lawless, Esq. (026301994)
430 Mountain Avenue, Suite 103
New Providence, NJ 07974
T: (908) 878-0136
F: (201) 843-5877
Email: Slawless@floriolaw.com
Attorney for Defendant Monmouth Ocean Educational Services Commission

SUPERIOR COURT OF NEW JERSEY

JAY’S BUS SERVICE, INC. and LAW DIVISION
SEMAN-TOV, INC. and D.A.G. MONMOUTH COUNTY
TRANSPORT, LLC,
DOCKET NO.: MON-L-002859-20
Plaintiffs,
Civil Action
v.
OPPOSITION TO PLAINTIFF’S
MONMOUTH OCEAN EDUCATIONAL ORDER TO SHOW CAUSE WITH
SERVICES COMMISSION (a/k/a/ TEMPORARY RESTRAINTS
“MOESC”,

Defendant.

Defendant, Monmouth Ocean Educational Services Commission, (hereinafter referred to

collectively as “the Commission” or “Defendant”), submits the following opposition to Plaintiff’s

order to show cause with temporary restraints:

PRELIMINARY STAEMENT

This contract dispute arises out of recently passed legislation in response to the COVID-

19 pandemic which provided for continued payment to contracted service providers by

Educational Service Commissions pursuant to specific supporting documentation requirements. In

response to the COVID-19 pandemic, Governor Murphy closed New Jersey’s schools and the New

Jersey Legislature enacted P.L. 2020, c.27 which modified N.J.S.A. 18A:7F-9 and became

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effective April 14, 2020. Thereafter, New Jersey P.L. 2020, c.57 (Assembly Bill No. 4132/Senate

Bill No. 2350), was signed into law on July 2, 2020, which further modified N.J.S.A. 18A:7F-9

and requires that Educational Services Commissions, such as Defendant here, certify and provide

certain supporting documentation to school districts. The documentation required by the

legislation is to ensure that payments disbursed to contracted services providers, such as Plaintiffs,

were used solely to meet the payroll and fixed cost obligations of the contracted service provider

not otherwise satisfied through business interruption insurance. Requiring basic proof that

taxpayer funded monies, for services not provided, are actually dedicated to paying the employees

and other fixed costs of the service providers is not only essential to the obvious purpose for which

this emergent legislation was passed, but is also a matter of common sense and good governance.

Pursuant to this new legislation, the Commission promptly undertook renegotiations, in

good faith, with each of the bus service providers with whom it had 2019-2020 academic year

transportation contracts. As a part of those renegotiations with these Plaintiffs, the Commission

actually issued payment at 50% of the contract price, given the absence of any documentation from

Plaintiffs; the Commission offered to continue negotiations of the contract price should each bus

company comply with the statutory requirements and provide proof that Plaintiffs have paid their

fixed costs, met their payroll obligations and attest that each bus company had not already received

compensation via business interruption insurance. Defendant is simply not, however, authorized

to pay for costs saved by the interruption of school service such as tolls and fuel. As to these

Plaintiffs, the Commission was even willing to exceed the 85% renegotiation price if Defendant

were provided with documentation that showed that Plaintiffs’ fixed costs and payroll obligations,

actually incurred, warranted such payment.

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Plaintiffs concede that N.J.S.A. 18A:7F-9 governs Defendant’s payment obligations. See

(Jay’s Bus Service et al, Complaint ¶ 10,22,31). There is a factual dispute over which subsection

should apply to the present dispute. As explained in further detail below, Plaintiffs believe N.J.S.A.

18A:7F-9(e)(3) applies and Defendant believes that as an Educational Services Commission the

applicable section is N.J.S.A. 18A:7F-9(e)(4). The overwhelming majority of bus companies

contracted with Defendant promptly renegotiated their claims for payment after providing the

documentation requested by the Commission. Here, all three Plaintiffs seek 100% payment for the

contracted services, totaling $2,125,249.80, even though no such services have been rendered and

while refusing to provide any documentation regarding what fixed costs each has paid, that each

has met its payroll obligations, and that none of the Plaintiffs has already received compensation

for such expenses through business interruption insurance as required by statute. Plaintiffs have

consistently failed to renegotiate in good faith and instead have filed suit against Defendant and

seek to enforce this order to show cause with temporary restraints.**

STATEMENT OF FACTS

Defendant entered into transportation contracts with each of the Plaintiffs, Jay’s Bus

Service, Seman-Tov Inc. and D.A.G. Transport for the 2019-2020 academic year. Defendant is an

Educational Services Commission established under N.J.S.A 18A:6-52, and created by New Jersey

statute, “for the purpose of carrying on programs of educational research and development and

providing public school districts such educational and administrative services as may be authorized

pursuant to rules of the State Board of Education.” See, N.J.S.A. 18A:6-51; See also, (Jay’s Bus

Service et al, Complaint ¶ 4) (“Defendant, Monmouth-Ocean Educational Services Commission

(a/k/a “MOESC”) is a Commission in Monmouth County”).

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The newly enacted provisions of N.J.S.A. 18A:7F-9(e)(4) mandate that a service provider who

contracts with a school district must: (1) use the payments to meet its payroll and fixed costs

obligations; and (2) pay its employees as if the school facilities had remained open and fully

operating. Accordingly, as a condition of funding by the state, the legislation further requires

Educational Services Commissions, which Defendant clearly is, to make all reasonable efforts to

renegotiate their contracts in good faith, with the clear imprimatur that final payments shall not

include indirect costs such as fuel or tolls. As a further condition to receiving pandemic funding,

the Commission is tasked with confirming that a service provider has not already received

compensation through available business interruption insurance. Plaintiffs are not entitled to the

Court order they seek directing the release of taxpayer funds in the absence of the requisite

certification that such sums have been expended for the purposes to which the Legislature

dedicated the funding in the first place.

LEGAL STANDARD

Plaintiff bears a “particularly heavy burden” in attempting to receive mandatory injunctive

relief through its order to show cause with temporary restraints pursuant to Rule 4:52. “[A] party

who seeks mandatory preliminary injunctive relief must satisfy a ‘particularly heavy’ burden”

Guaman v. Velez, 421 N.J. Super. 239, 247, 23 A.3d (App. Div. 2011). “A mandatory injunction is

‘an extraordinary remedy that is only granted sparingly by the courts’” Id. at 160; Davidovich v.

Israel Ice Skating Fed'n, 446 N.J. Super. 127, 160,161 140 A.3d (App. Div. 2016); (Quoting Trinity

Indus. v. Chicago Bridge & Iron, Co., 735 F.3d 131, 139 (3d Cir.2013)). When such extraordinary

relief is requested, “the moving party’s right to relief must be indisputably clear” Davidovich,

supra, 446 N.J. Super. at 160,161.

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Such cause of action subjects Plaintiff the preliminary injunctive relief standard. In order

to obtain the extraordinary remedy of injunctive relief, Plaintiff must meet the specific criteria

established by the New Jersey Supreme Court in Crowe v. DeGioia, 90 N.J. 126 (1982). Under the

Crowe standard, a court may not grant a request for a preliminary injunction unless:

(1) The relief requested is necessary to prevent irreparable harm;

(2) The legal right underlying the Plaintiff’s claim is settled;

(3) The material facts are uncontroverted, and the Plaintiff has made a preliminary

showing of a reasonable probability of ultimately prevailing on the merits; and

(4) When viewing the interests of both parties, the Plaintiff will suffer greater

hardship then the Defendant if the requested relief is not granted and the public

interest will not be harmed.

Id. at 132-134.

The moving party must satisfy all of the elements listed above in order to obtain the

extraordinary relief requested. Id. Plaintiff must also prove each prong of the Crowe standard

through clear and convincing evidence; a failure to do so will bar the court from granting injunctive

relief. Guaman, supra, 421 N.J. Super. at 247-48; see also, Brown v. City of Paterson, 424 N.J.

Super. 176, 183 (App. Div.2012) (each Crowe factor must be clearly and convincingly

demonstrated); Dolan v. De Capua, 16 N.J. 599, 614 (requiring clear and convincing proof as a

prerequisite for granting injunctive relief). In addition, the Plaintiff must show that the public

interest will not be greatly adversely impacted if the requested relief is granted. Waste Mgmt. v.

Union Cty. Utils Auth., 399 N.J. Super. 508, 520, (App. Div. 2008).

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APPLICABLE LAW

In response to the emergent conditions created by the COIVD-19 pandemic, the legislature

amended N.J.S.A. 18A:7F-9(e)(4) on July 2, 2020 by New Jersey P.L. 2020, c.57 (Assembly Bill

No. 4132/Senate Bill No. 2350). It provides as follows:

If the schools of a school district are subject to a health-related closure for

a period longer than three consecutive school days, which is the result of a declared
state of emergency, declared public health emergency, or a directive by the
appropriate health agency or officer, the school district shall be obligated to make
payments for benefits, compensation, and emoluments and all payments required
pursuant to P.L.1968, c.243 (C.18A:6-51 et seq.), to an educational services
commission, county special services school district, and a jointure commission, and
under any shared services agreement and cooperative contract entered into with any
other public entity. An educational services commission, county special services
school district, and jointure commission shall continue to make payments of
benefits, compensation, and emoluments pursuant to the terms of a contract with a
contracted service provider or a shared services agreement in effect on the date of
the closure as if the services for such benefits, compensation, and emoluments had
been provided, and as if the school facilities had remained open. Payments
received by a contracted service provider or public entity pursuant to this
paragraph shall be used to meet the payroll and fixed costs obligations of the
contracted service provider or public entity, and employees of the contracted
service provider or public entity shall be paid as if the school facilities had remained
open and in full operation. Upon request of the school district, the educational
services commission, county special services school district, and a jointure
commission shall certify, and provide any supporting documentation to a
school district as may be necessary to verify, that payments received have been
used solely to meet the payroll and fixed costs of the contracted service
provider or public entity. Any portion of those payments not used to meet the
payroll and fixed costs shall be returned to the school district. An educational
services commission, county special services school district, jointure commission
or any lead school district under a shared services agreement or cooperative
contract, shall make all reasonable efforts to renegotiate a contract in good faith
subject to this paragraph and may direct contracted service providers or public
entities, who are a party to a contract and receive payments under this paragraph,
to provide services which may reasonably be provided and are within the general
expertise or service provision of the original contract. Negotiations shall not
include indirect costs such as fuel or tolls. As a condition of negotiations, a
contracted service provider or public entity shall reveal whether the entity has
insurance coverage for business interruption covering work stoppages.

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A review of N.J.S.A. 18A:7F-9(e)(4), clearly mandated by the consistent use of the

word “shall” shows that these bus companies are required to provide adequate

documentation on fixed costs, payroll obligations and a lack of business interruption

insurance. Indirect costs such as tolls and fuel cannot be included in the renegotiation. “The

word ‘may’ is ordinarily permissive or directory, and the words ‘must’ and ‘shall’ are

generally mandatory” Harvey v. Bd. of Chosen Freeholders of Essex Cty., 30 N.J. 381, 391,

153 A.2d (1959); See also Cryan v. Klein, 148 N.J. Super. 27, 33, 371 A.2d 812, 815 (App.

Div. 1977) (Where the legislature uses the term “shall,” there is a presumption that it is being

used in the mandatory sense). The purpose of the legislation is obvious: to insure, to the

extent possible, that service providers enduring this current crisis do not receive payment for

costs that may not have actually been incurred by them or to impose upon the taxpayer a

burden which has already been satisfied by insurance.

In addition, nothing in the language of N.J.S.A. 18AF-9 suggests that the legislature

intended to remove the good governance obligations detailed in N.J.S.A. 18A:19-2 and

N.J.S.A. 18A:19-3. Defendant has always been obligated to follow N.J.S.A. 18A:19-2 and

N.J.S.A. 18A:19-3 regulating payment of claims and verification of claims by school

districts. Under N.J.S.A. 18A:19-2, “[A] claim or demand against a school district shall not

be paid...unless the claim or demand is authorized by law and the rules of the board of

education of the district, is fully itemized and certified, has been duly audited as required by

law, has been presented to, and approved by, the board of education at a meeting thereof, or

presented to, and approved by, a person designated by the board of education for that

purpose, and the amount required to pay the claim or demand is available for that purpose.”

N.J.S.A. 18A:19-3 requires that claims and demands for payment against school districts

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verify that the subject services have been rendered and that the claim or demand is correct

in all particulars. In the current context, the verification can be provided in that a provider

need only certify that it has paid its employees and paid fixed costs and the sum incurred to

meet those obligations.

LEGAL ARGUMENT

I. PLAINTIFF CANNOT SHOW A REASONABLE PROBABILITY OF

SUCCESS ON THE MERITS, THAT THE FACTS ARE UNCONTROVERTED
OR ANY SETTLED LEGAL RIGHT SUPPORTING THEIR CLAIMS

To prevail in its request for injunctive relief, Plaintiff must show by clear and convincing

evidence that there is a reasonable likelihood of success on the merits, the facts underlying the

claim are uncontroverted and the legal right supporting their claim is settled. Here, Plaintiffs have

failed to show any reasonable likelihood of success on the merits, given that Plaintiffs have failed

to comply with the straightforward requirements of the newly minted legislation. Plaintiffs assert

claims for breach of contract, promissory estoppel, quantum meruit and a violation of a statutory

duty to pay in seeking to enforce this Order to Show Cause with temporary restraints. Each of

these claims is unfounded and Plaintiff cannot demonstrate a reasonable likelihood of success on

the merits. As such, Defendant seeks denial of the relief sought by Plaintiffs.

To successfully prove a breach of contract claim, Plaintiffs must show (1) the parties

entered into a contract containing terms; (2) the Plaintiffs did what the contract required them to

do; (3) the Defendant did not do what the contract required them to do; and (4) Plaintiffs suffered

damages as a result. Globe Motor Co. v. Igdalev, 225 N.J. 469, 482, 139 A.3d (2016). The parties

recognize the authority of the Legislature to alter payment terms via N.J.S.A. 18A;7F-9. Indeed,

Plaintiffs have not performed, because they are not transporting children who are presently

learning from home classrooms during pandemic created conditions. Likewise, Commissions,

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such as Defendant, would be unable to fund transportation costs in the absence of State funding.

Nonetheless, Plaintiffs refuse to acknowledge that, under such conditions, their demands for

continued payment are also subject to N.J.S.A. 18A:7F-9(e)(4) as amended by 2020 New Jersey

P.L. 2020, c.57. Plaintiffs seek to obtain the benefit conferred upon them to be paid for services

not rendered, while refusing to comply with the minor inconvenience of providing supporting

documentation for such payment as required by N.J.S.A. 18A:7F-9(e)(4).

The statute requires a good faith renegotiation of the contract, to ensure that payment being

made for services not rendered, is only for fixed costs and payroll obligations. The party receiving

payment must also show a lack of business interruption insurance. It also forbids the payment of

indirect costs such as fuel and tolls. Despite this clear statutory authority, Plaintiffs seek 100%

payment of the contract, including payment for costs not actually incurred, despite significant

savings on indirect costs such as fuel, tolls, and general wear and tear on the buses. These demands

come while simultaneously refusing to provide any documentation confirming that Plaintiffs paid

any fixed costs, met their payroll obligations or had not already received compensation through

business interruption insurance. Defendant has not breached its contract with each of the Plaintiffs:

Defendant remains willing to perform its payment obligations, as modified by N.J.S.A. 18A:7F-

9(e)(4) and has set forth that willingness in writing. Plaintiffs, however, have consistently failed

to renegotiate in good faith and have refused to provide the statutorily required documentation

necessary to release payment.

Further, by virtue of the express written contracts between the two parties, Plaintiffs claims

for promissory estoppel and quantum meruit must fail. To successfully assert a claim for

promissory estoppel, a Plaintiff must demonstrate: “(1) a clear and definite promise; (2) made with

the expectation that the promisee will rely on it; (3) reasonable reliance; and (4) definite and

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substantial detriment” Toll Bros. v. Bd. of Chosen Freeholders of Cty. of Burlington, 194 N.J. 223,

253, 944 A.2d (2008). Given the clear statutory language of N.J.S.A. 18A:7F-9(e)(4), and the

requirements for payments imposed by N.J.S.A. 18A:19-2 and N.J.S.A. 18A:19-3 it is entirely

unreasonable for Plaintiffs to expect to receive 100% payment of the contract price, for services

not rendered, without providing any of the statutorily required documentation. As such, Plaintiffs

reliance is patently unreasonable. To recover on a quantum meruit claim, a Plaintiff must

demonstrate: (1) the performance of services in good faith, (2) acceptance of the services by the

person to whom they were rendered, (3) the expectation of compensation thereafter, and (4) the

reasonable value of the services. Coldwell Banker Commercial/Feist & Feist Realty Corp. v.

Blancke P.W. L.L.C., 368 N.J. Super. 382, 401, 846 A.2d (App. Div. 2004). As a result of the

COVID-19 pandemic shutting down schools, services were not rendered by Plaintiffs for the time

period under which they seek compensation.

In addition, where, as here, Plaintiffs have failed to negotiate in good faith, equitable relief

is not available. Mobilio v. Schwartz, No. A-1556-05T5, 2007 WL 1661255, at *9 (N.J. Super.

2007) (citing Restatement (Second) of Contracts § 205 comment a (1981)). A claim for quantum

meruit will also not provide Plaintiff with the statutorily contradictory windfall they seek.

Quantum meruit is not available to enforce payment for services not rendered and costs that were

not incurred as a result of the COVID-19 shutdown.

Furthermore, these quasi-contractual causes of action for promissory estoppel and quantum

meruit must fail after Plaintiffs have acknowledged that an express contract exists between the

parties. See, (Jay’s Bus Service et al, Complaint ¶ 7) (“Each of the three (3) Plaintiffs herein and

Defendant “MOESC” entered into contracts that included the 2019-2020 school year”). “It is a

well settled rule that an express contract excludes an implied one” Moser v. Milner Hotels, 6 N.J.

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278, 280, 78 A.2d (1951); See also, Kas Oriental Rugs, Inc. v. Ellman, 394 N.J. Super. 278, 286–

87, 926 A.2d (App. Div. 2007) (“An implied contract cannot exist when there is an existing express

contract about the identical subject. The parties are bound by their agreement, and there is no

ground for implying a promise. It is only when the parties do not agree that the law interposes and

raises a promise.”); See also, Suburban Transfer Serv., Inc. v. Beech Holdings, Inc., 716 F.2d 220,

226–27 (3d Cir. 1983) (“Quasi-contract liability will not be imposed, however, if an express

contract exists concerning the identical subject matter”).

In addition, Plaintiffs cannot show a reasonable likelihood of success on the merits that the

Commission is under a statutory duty to pay Plaintiffs; because Plaintiffs have a fundamental

misunderstanding of the applicable law in this dispute. Plaintiffs complaint contends that N.J.S.A.

18A:7F-9(e)(3) requires continued payments to contracted service providers. See, (Jay’s Bus

Service et al Complaint, ¶ 31). Quite simply, N.J.S.A. 18A:7F-9(e)(3) does not apply to this

contract dispute. N.J.S.A. 18A:7F-9(e)(3) relates to payments made by school districts not

Educational Service Commissions. Defendant is clearly an Educational Services Commission

established under N.J.S.A 18A:6-52, and created by New Jersey statute, “for the purpose of

carrying on programs of educational research and development and providing public school

districts such educational and administrative services as may be authorized pursuant to rules of the

State Board of Education.” See, N.J.S.A. 18A:6-51; See also, (Jay’s Bus Service et al, Complaint

¶ 4) (“Defendant, Monmouth-Ocean Educational Services Commission (a/k/a) is a Commission in

Monmouth County”). As an Educational Services Commission, the applicable statute to apply to

this dispute is N.J.S.A. 18A:7F-9(e)(4), which requires that service contract providers, such as

Plaintiffs, include documentation to support that payment received will be for fixed costs and

payroll obligations. It also forbids payment for indirect costs such as tolls and gas and requires that

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no business interruption insurance exist as a non-taxpayer source of recovery. Plaintiffs failed to

provide any of this documentation to the Commission and therefore the Commission was under

no obligation to make payment to Plaintiffs.

The legislature intentionally created two different sections, N.J.S.A. 18A:7F-9(e)(3) which

applies to school districts and N.J.S.A. 18A:7F-9(e)(4) which applies to Educational Services

Commissions. “It is elementary that a statute should be construed so that effect is given to all its

provisions, such that no part will be inoperative or superfluous, void or insignificant, and so that

no section will destroy or contradict another. Aragon v. Estate of Snyder, 314 N.J. Super. 635,

640–41, 715 A.2d (Ch. Div. 1998). When looking at the complaint in its totality, the underlying

facts, relevant case law and applicable statutory provisions, Plaintiffs cannot demonstrate with any

reasonable likelihood success on the merits of their claims. Nor can Plaintiffs demonstrate that

the legal rights underlying their claims are settled or that the facts underlying this dispute are

uncontroverted. In failing to successfully assert the second and third prongs of the Crowe standard,

the Court is compelled to deny Plaintiffs request for injunctive relief pursuant to its Order to Show

Cause with temporary restraints.

II. THE RELIEF PLAINTIFFS SEEK IS NOT NECESSARY TO PREVENT ANY

IRREPARABLE HARM

Plaintiffs are unable to show that this Court must grant their requested relief in order to prevent

irreparable harm. Without such proof, there is no basis for the Court to grant Plaintiffs Order to

Show Cause with temporary restraints because Plaintiff must satisfy each of the four prongs in the

Crowe standard. Plaintiffs own actions are the sole cause of the harm alleged, had Plaintiffs

provided the necessary documentation and negotiated in good faith as required by N.J.S.A.

18A:7F-9(e)(4), there would be no dispute.

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In addition, the entirety of Plaintiffs claims for damages are monetary in nature, thus failing to

demonstrate why the harm alleged is “irreparable”. “Harm is generally considered irreparable

in equity if it cannot be redressed adequately by monetary damages” Crowe, 90 N.J. at 132–33.

See also, McNeil v. Legislative Apportionment Comm'n of NJ, 176 N.J. 484, 486, (2003) (“Harm

is not irreparable if it can be remedied with monetary relief”). “In other words, plaintiff must have

no adequate remedy at law.” Subcarrier Commc'ns, Inc. v. Day, 299 N.J. Super. 634, 638 (App.

Div. 1997). Here, all that Plaintiffs seek is money damages or more specifically to have a Court

order the release of taxpayer funds in the absence of the requisite certification that such sums have

been expended for the purposes to which the Legislature dedicated the funding in the first place.

To successfully show irreparable harm, Plaintiffs must show that a preliminary injunction

is the only means of addressing the alleged injury and that monetary relief granted at a later date

will be incapable of addressing the alleged wrong. By the contents of Plaintiffs’ own pleadings,

this is a contract dispute upon which Plaintiffs seek monetary compensation. (Jay’s Bus Service et

al, Compliant ¶ 4, 18,19). Plaintiffs have not shown by clear and convincing evidence that the

alleged damages they have or will suffer cannot be adequately redressed through monetary

remedy. Monetary damages alone will not be considered “irreparable” harm under the Crowe

Standard and the Court should deny Plaintiffs Order to Show Cause and temporary restraints.

III. WHEN VIEWING THE INTERESTS OF BOTH PARTIES’ PLAINTIFFS

WILL NOT SUFFER GREATER HARM THEN THE COMMISSION AND
PLAINTIFFS FAIL TO DEMONSTRATE THE PUBLIC INTEREST WILL
NOT BE HARMED

The Order to Show Cause with temporary restraints must be denied because when balancing

the interests of both parties, Plaintiffs cannot show that they will suffer greater hardship then the

Commission, nor have Plaintiffs provided any evidence that the public interest will not be harmed.

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Plaintiffs must demonstrate, “the harm to the movant, if the relief is not granted, outweighs the

harm to the opponent if it does” Sherman v. Sherman, 330 N.J. Super. 638, 642, 750 A.2d (Ch.

Div. 1999). In addition, Plaintiff must show, “the inconvenience or loss to the opposing party will

be minimal if the relief is obtained” Zoning Bd. of Adj of Sparta Twp. v. Serv. Elec. Cable T.V of

NJ, Inc., 198 N.J. Super. 370, 379, 487 A.2d (App. Div. 1985).

The Court is asked to look upon Plaintiffs’ claims in this regard with a jaundiced eye given

that Plaintiffs have rejected all efforts to renegotiate their contracts and seek payment by Defendant

to Plaintiffs for costs not actually incurred by the Plaintiffs. They seek nothing less than a windfall

at a time when pandemic conditions are straining state and local budgets to their limits. Should the

relief Plaintiffs seek be granted, Defendant will suffer substantial, immediate and irreparable harm.

Under N.J.S.A. 18A:7F-9(e)(4), “Any portion of those payments not used to meet the payroll and

fixed costs shall be returned to the school district.” Thus, if Plaintiffs request for 100% payment

of the contract is granted, Defendant will be forced to pay out significant sums of money which

they are not entitled to receive payment from school districts for, nor are Plaintiffs entitled to

receive payment for. Despite clear statutory authority requiring the renegotiation the contract to

be limited to fixed costs and payroll obligations, Plaintiffs seek upfront payment for 100% of the

contract price, a sum of $2,125,249.80 without providing any of the statutorily required supporting

documentation. Plaintiffs self-imposed harms, if any, pale in comparison to the significant harm

Defendant will incur should the relief be granted.

Further, Plaintiffs have not addressed the issue that the public interest would be harmed should

Defendant, an Educational Services Commission that provides services to school districts and

school children throughout the state, be forced to pay a sum over two million dollars. This would

surely have a negative impact on Defendants ability to fulfill its educational purposes to the

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districts it supports. The statutory authority regulating this dispute N.J.S.A. 18A:7F-9(e)(4)

requires that Educational Service Commissions continue to make payments to contracted service

providers for fixed costs, payroll obligations, absent any business interruption insurance. Yet

despite this clear statutory guidance and a failure to negotiate in good faith, Plaintiffs seek payment

in full, for services not rendered, in direct conflict with the statutory guidance. When balancing

the interests of both parties and considering the public interest at stake, the Court should deny

Plaintiffs Order to Show Cause with temporary restraints.

CONCLUSION

For the reasons set forth above, Defendant, Monmouth Ocean Educational Services

Commission, respectfully request this Honorable Court deny Plaintiff’s Order to Show Cause and

request for emergent relief in its entirety with prejudice.

Respectfully submitted,

FLORIO, PERRUCCI, STEINHARDT

CAPPELLI TIPTON & TAYLOR, LLC

___/S/ Susan A. Lawless______________

Susan A. Lawless, Esquire

Dated: November 2, 2020

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