Opinion
DOCKET NO. A-6097-10T4
02-06-2013
MARK NEWTON, Plaintiff-Appellant, v. PUBLIC SERVICE ELECTRIC & GAS CO., Defendant-Respondent.
Mark Newton, appellant pro se. Law Offices of William E. Frese, attorneys for respondent (Suzanne M. Klar and Ana Linda Day, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Lisa.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3657-11.
Mark Newton, appellant pro se.
Law Offices of William E. Frese, attorneys for respondent (Suzanne M. Klar and Ana Linda Day, on the brief). PER CURIAM
Appellant, Mark Newton, appeals from the Law Division order of July 22, 2011 dismissing his complaint against Public Service Electric and Gas Company (PSE&G) for failure to state a claim upon which relief can be granted, R. 4:6-2(e), based upon lack of subject matter jurisdiction, R. 4:6-2(a). For the reasons that follow, we affirm.
Appellant has engaged in multiple proceedings, both in the law courts and before the New Jersey Board of Public Utilities (BPU), regarding the propriety of bills he has received for providing electric service at his residence and related issues. A panel of this court adjudicated issues similar to those presented here in a January 23, 2009 opinion involving disputes between appellant and PSE&G dating back to 2004 regarding his electric service charges at 77 Saint Paul Avenue, Newark. Newton v. Pub. Serv. Elec. & Gas Co., No. A-5624-06, slip op. at 2 (App. Div. Jan. 23, 2009).
In that case, the asserted claims were premised on a theory that electrical meters designated to monitor electrical usage at appellants' residence were altered to divert service to one area and designate usage by another. Id. at 10. After a thorough analysis of the doctrine of primary jurisdiction, we concluded that the Chancery Division did not err in transferring the litigation to the BPU, which possessed primary jurisdiction. Id. at 11. Stated broadly, this was because "the Superior Court should refer an issue to an administrative agency if the matter involves technical or policy considerations[,] which are beyond the court's ordinary competence and within the agency's field of expertise." Id. at 8-9. (internal quotation marks and citations omitted).
The situation in the matter now before us is similar. The dispute revolves around appellant's residence at 80 Saint Paul Avenue, Newark. Appellant's contention, as set forth in his appellate brief, is that "[w]ithin the period of October 2009 - January 2010, the electrical wires regarding the premises of 78 Saint Paul Avenue, and 80 Saint Paul Avenue, Newark, New Jersey, were commingled, exposed, and otherwise inappropriately ran [sic], to each premises, as well as the electrical pole on the Avenue."
By way of background, on January 14, 2011, plaintiff filed a complaint in the Chancery Division regarding this dispute, in which he sought injunctive and other relief. That action was ultimately dismissed by an order of April 25, 2011, which specified that the dismissal was without prejudice to appellant's right to file an action before the BPU. Appellant had availed himself of that right. On March 11, 2011, he filed an extensive petition with the BPU involving the same subject matter. The matter was deemed a contested case and transferred to the Office of Administrative Law (OAL) on June 29, 2011. As of the briefing in the case before us, that matter remained pending.
On May 2, 2011, appellant filed the Law Division complaint in the case that is now before us. The forty-five page complaint contains forty counts. Each count relies upon the following critical allegation in Paragraph Two of the First Count:
At the time of the commencement of the contract [between appellant and PSE&G] in October 2009, the electrical wires regarding the premises of 78 Saint Paul Avenue, and 80 Saint Paul Avenue were commingled, exposed, and otherwise inappropriately ran [sic], to each premises, as well as to the electrical pole on the Avenue, which pole was maintained by [PSE&G].
In lieu of filing a responsive pleading, PSE&G filed a motion to dismiss pursuant to Rule 4:6-2. The motion was accompanied by a statement of material facts, which we set forth in its entirety:
As derived from the Complaint, the plaintiff is a customer of defendant PSE&G. PSE&G's [sic] complaint alleges issues rela[t]ing to PSE&G's billing investigation, meter reading and meter replacement practices. Plaintiff has filed a Complaint with the [BPU] asserting what appears to be, identical allegations. A copy of that Complaint is attached hereto as Exhibit A.PSE&G also submitted a letter brief arguing that jurisdiction was properly before the BPU, in which an action initiated by appellant regarding the same subject matter was then pending. PSE&G also attached to its motion a copy of the earlier opinion of this court involving appellant, which we have referenced.
Appellant was served with the moving papers and he filed opposition. Neither party requested oral argument. On July 22, 2011, the trial court issued an order dismissing the complaint. Endorsed at the bottom of the order was the handwritten notation, "COURT LACKS JURISDICTION."
On appeal, appellant presents the following arguments:
POINT I
THE APPLICATION FILED IN THE LAW DIVISION BY DEFENDANT AND IT'S [sic] COUNSEL WAS PATENTLY DEFECTIVE AND AS SUCH THE LAW DIVISION COMMITTED PLAIN AND REVERSIBLE ERROR PURSUANT TO THE GRANTING OF THE RELIEF SOUGHT BY DEFENDANT AND FOR THIS REASON AS A MATTER OF LAW THE ORDER ENTERED BY THE LAW DIVISION DISMISSING PLAINTIFF'S COMPLAINT MUST BE REVERSED AND THE COMPLAINT REINSTATED.
POINT II
THE BOARD OF PUBLIC UTILITIES DOES NOT POSSESS THE STATUTORY AUTHORITY OR JURISDICTION TO RESOLVE THE CLAIMS, TRANSACTIONS AND CONDUCT COMPLAINED OF BY PLAINTIFF AND AS SUCH THE PLAINTIFF SUBMITS THAT THE LAW DIVISION COMMITTED PLAIN AND REVERSIBLE ERROR PURSUANT TO EMPLOYING THE WRONG LEGAL STANDARD WHICH WAS NO STANDARD AT ALL AND AS A MATTER OF LAW THE ORDER ENTERED BY THE LAW DIVISION DISMISSING PLAINTIFF'S COMPLAINT MUST BE REVERSED.
POINT III
THE ORDER ENTERED BY THE LAW DIVISION ON JULY 22, 2011, MUST BE REVERSED BECAUSE THE COURT BELOW FAILED TO MAKE ANY FINDINGS OF FACTS AND STATE ITS CONCLUSIONS OF LAW IN ACCORDANCE WITH R. 1:7-4.
POINT V
AS A DIRECT RESULT OF DEFENDANT'S FRIVOLOUS A[R]GUMENTS AND PROCEEDINGS PLAINTIFF-APPELLANT HAS BEEN COMPELLED TO INCUR SUBSTANTIAL EXPENSES REGARDING THE FILING OF APPLICATIONS, AND BRIEFS IN BOTH THE LAW DIVISION AND THE SUPERIOR COURT APPELLATE DIVISION INCLUSIVE OF PROSECUTION OF THE APPEAL AND HEREBY SEEKS TAXED COSTS FROM DEFENDANT.
Based upon our review of the record, the arguments of the parties, and the applicable principles of law, we conclude that appellant's arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We offer these brief comments.
PSE&G's motion was not procedurally deficient. Contrary to appellant's contention, there was no need for affidavits or other means of producing proof of facts. The moving party succinctly set forth a statement of material facts, summarizing the allegations of appellant's lengthy complaint, which was a pleading in this very action. The moving papers included a copy of appellant's BPU petition, of which the Law Division judge could properly take judicial notice. See N.J.R.E. 201(b)(4).
We also reject appellant's argument that the court erred in not conducting oral argument on the motion. Because neither party requested it, oral argument was not required. See R. 1:6-2(d). We likewise reject the notion that an evidentiary hearing was required. The facts upon which the motion was based were set forth in the moving papers and were not in dispute. Finally, the record does not support appellant's contention that he was not timely served with the moving papers. Indeed, appellant filed responding papers, and the motion order reflected that his opposition was considered.
On the substantive issue of subject matter jurisdiction, it is clear to us that primary jurisdiction lies with the BPU. We rely upon the rationale set forth in our prior opinion involving appellant, and we note, in particular, that in this case a BPU action was already pending when appellant filed his Law Division complaint. We also note on this issue that, although the order under appeal does not say so, PSE&G acknowledges throughout its appellate brief that appellant's Law Division complaint was "premature" because the "threshold issues" and "predicate questions of fact" must first be decided by the BPU "before the Appellant's requests for damages will be ripe for consideration by the Superior Court." Thus, PSE&G states in its appellate brief that
the dismissal was without prejudice to Appellant's right to file suit in the Law Division seeking damages for the causes of action [he] alleges in the Complaint after he has exhausted his administrative remedies and the underlying issues of fact, i.e. whether [PSE&G] acted properly under its Tariffs for Electric and Gas, are decided by the [BPU].
The order before us reflects only the notation that the complaint was dismissed because the court lacked jurisdiction. A more expansive statement of reasons would have been appropriate, but any error was harmless. We infer that the judge accepted the arguments in PSE&G's motion brief and the rationale expressed in our previous opinion involving appellant, which was furnished to the motion judge with the moving papers. Further, because the issue before us is a legal issue and our review is de novo, we express our agreement with the judge's conclusion regarding jurisdiction.
Finally, we reject out-of-hand appellant's "taxed costs" argument.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION