Opinion
DOCKET NO. A-4147-12T2
04-01-2015
MARK NEWTON, Plaintiff-Appellant, v. PUBLIC SERVICE ELECTRIC & GAS CO., Defendant-Respondent.
Mark Newton, appellant, argued the cause pro se. Suzanne M. Klar argued the cause for respondent (Law Offices of William E. Frese, attorneys; Ms. Klar and Ana Linda Day, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2192-12. Mark Newton, appellant, argued the cause pro se. Suzanne M. Klar argued the cause for respondent (Law Offices of William E. Frese, attorneys; Ms. Klar and Ana Linda Day, on the brief). PER CURIAM
Plaintiff Mark Newton appeals from the April 5, 2013 order of the Law Division denying his application to vacate the dismissal of complaints L-003657-11, L-008572-11, and L-002192- 12 against defendant Public Service Electric & Gas Co. (PSE&G) and restore the complaints to the trial calendar. We affirm for reasons we have previously expressed in unpublished decisions concerning litigation between plaintiff and PSE&G. Newton v. Pub. Serv. Elec. & Gas Co., No. A-6097-10 (App. Div. Feb. 6, 2013); Newton v. Pub. Serv. Elec. & Gas Co., No. A-5624-06 (App. Div. Jan. 23, 2009).
Plaintiff and his wife originally began litigation against PSE&G in 2005 concerning problems with utility service at their then-home at 77 Saint Paul Avenue. The issues are detailed in our 2009 decision. Newton v. Pub. Serv. Elec. & Gas Co., supra, slip op. at 1-8. We also determined in that decision, after a thorough analysis, that primary jurisdiction resided in the Board of Public Utilities (BPU). Id. at 12.
In 2013, we affirmed plaintiff's appeal of the Law Division order of July 22, 2011, dismissing complaint L-003657-11 for lack of subject matter jurisdiction. This complaint involves utility service at plaintiff's home on 80 Saint Paul Avenue. It is one of the three complaints plaintiff sought to have reinstated, all of which involve his disputes with PSE&G at his 80 Saint Paul Avenue residence. As of our 2013 decision, plaintiff's matter was pending before the BPU.
Before plaintiff sought reinstatement of his Law Division complaints, the BPU dismissed his filing for lack of prosecution. The BPU stated in its decision that after plaintiff's motion to consolidate the matter in the Superior Court was denied:
The Law Division judge was apparently unaware of this dismissal when he denied plaintiff's application, as the judge wrote on the order that the allegations "are" all before the BPU.
An evidentiary hearing was scheduled July 16, 2012. [Plaintiff] requested an adjournment because his wife was in the hospital. [Administrative Law Judge (ALJ)] Moss granted [plaintiff]'s request for an adjournment. The hearing was rescheduled for September 17, 2012. [Plaintiff] requested a second adjournment because of a religious holiday. ALJ Moss granted the adjournment and rescheduled the matter for September 19, 2012, with no further adjournments.
On September 19, 2012, [plaintiff] failed to appear. However, an hour and twenty minutes after the hearing was scheduled to begin, [plaintiff]'s son appeared and represented that a shooting had occurred at [plaintiff]'s residence and that [plaintiff] could not appear for medical reasons. [Plaintiff]'s son produced a police report, a copy of a photo of a window with a hole, and a document, dated September 18, 2012, that [plaintiff]'s son represented was from a medical provider and stating [plaintiff] could not work for two days.
On September 24, 2012, ALJ Moss also received a letter from [plaintiff]. The letter represented that [plaintiff]'s neighbors were attempting to kill him and
one of his family members. The letter continued to explain that following a shooting at his residence on September 5, 2012, [plaintiff] was injured. [Plaintiff] claims that following the shooting he has been in extreme pain which worsened thirteen days later on September 18, 2012, causing him to seek emergency medical attention. [Plaintiff] also stated that he was taking pain medicine which cause disorientation and fatigue, but that he hoped to be recovered in thirty days.The opinion goes on to relate the reasons why the ALJ found this letter inconsistent with the documentation provided and therefore incredible, and found plaintiff's failure to appear lacked good cause. The BPU adopted the ALJ's decision to dismiss the action for lack of prosecution, pursuant to N.J.A.C. 1:1-14.4. Plaintiff did not appeal.
In our 2009 review of the procedural facts underlying plaintiff's previous litigation with PSE&G, we related the following history:
[T]he [Office of Administrative Law] scheduled the matter for a peremptory hearing before the ALJ on September 18, 2007. On that date, plaintiff Andrea Newton appeared and presented a doctor's note verifying plaintiff Mark Newton's illness and inability to be present. The ALJ instructed Mrs. Newton to proceed. She declined and left the hearing room. The ALJ reconsidered his denial of plaintiffs' adjournment request and rescheduled the matter for October 2, 2007. On that date, plaintiffs did not appear.
The ALJ rendered a written order on defendant's motion to dismiss. The ALJ dismissed the matter with prejudice, stating:
"Since the plaintiffs have frivolously delayed the proceeding for over a year, have failed to appear at three peremptory hearing dates, have not made a single payment on their bill, have shown no reason why the discontinuance of their service is prohibited and because I find no genuine issue as to any material fact, I CONCLUDE that the plaintiffs' actions warrant dismissal of this matter."
[Newton v. Pub. Serv. Elec. & Gas Co., supra, slip op. at 6-7.]
Thus, the ALJ determined that plaintiff's claims should be dismissed because of his failure to prosecute diligently. We subsequently determined that plaintiff lacked any justification for proceeding with those claims in Superior Court. Similarly, here, plaintiff must pursue his remedies first before the BPU, and his lack of diligence in pursuing those remedies does not permit him to proceed to Superior Court.
Plaintiff raises the following issues on appeal:
POINT I: THE LAW DIVISION PURPOSELY EMPLOYED THE WRONG LEGAL STANDARD AND OTHERWISE COMMITTED PLAIN AND REVERSIBLE ERROR BY DISMISSING PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE ON JULY 13, 2012 BASED UPON AN ALLEGED LACK OF SUBJECT MATTER JURISDICTION AND THEN UPON PLAINTIFF'S APPLYING TO THE LAW DIVISION SEEKING RESTORATION OF THE COMPLAINTS THE LAW DIVISION DENIED THOSE APPLICATIONS BASED UPON THE PLAINLY ERRONEOUS RULING THAT THE
"ENTIRE CONTROVERSY DOCTRINE" PRECLUDED RESTORATION OF THE COMPLAINTS.
POINT II: THE APPLICATION FILED BY DEFENDANT SEEKING DISMISSAL AND FORECLOSURE OF PLAINTIFF'S COMPLAINTS BASED UPON THE "ENTIRE CONTROVERSY DOCTRINE" WAS WHOLLY VIOLATIVE OF THE DOCTRINES OF EQUITABLE ESTOPPEL PURSUANT TO "LAW OF THE CASE" BASED UPON UNCLEAN HANDS.
POINT III: THE LAW DIVISION JUDGE WHO SAT BELOW [] MANIFESTED PREJUDICE AND AVERSION WITH REGARD TO THE PLAINTIFF AND FOR THIS REASON AS A MATTER OF LAW THE ORDER DISMISSING PLAINTIFF'S COMPLAINT MUST BE REVERSED AND [THE] JUDGE [] MUST BE DISQUALIFIED FROM PRESIDING OVER THE MATTER.
The issues raised by plaintiff do not merit further discussion in a written opinion. R. 2:11-3(e)(1)(E). A litigant should not be allowed to accomplish an end-run around our jurisdictional decision by failing to prosecute the matter in the administrative forum where he has been directed in order to return to his preferred judicial forum.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION