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Capasso v. Pucillo

Decided: January 2, 1974.

FRANK CAPASSO, T/A CAPASSO BROS. AND ROBERT LAUDATI, PLAINTIFFS,
v.
L. PUCILLO AND SONS, INC., AND THE TOWN OF BELLEVILLE, DEFENDANTS. RICHARD W. DILL AND JAMES PETROZELLO COMPANY, INC., A NEW JERSEY CORPORATION, PLAINTIFFS, V. TOWN OF BELLEVILLE AND THE BOARD OF COMMISSIONERS OF TOWN OF BELLEVILLE, AND L. PUCILLO & SONS, INC., DEFENDANTS



Kimmelman, J.s.c.

Kimmelman

[132 NJSuper Page 544] This case poses a somewhat unique problem of statutory construction involving the interplay between the public bidding statutes and the jurisdiction of the Public Utilities Commission over certain public utilities.

This formal written opinion follows up on an oral opinion delivered because of the rather urgent necessity for a determination by this court so that the parties would know where they stood -- not only as to the Town of Belleville but other municipalities as well now faced with a similar problem. The oral opinion would also enable any party feeling aggrieved to promptly lodge an appeal, so that a more definitive ruling might be obtained with some dispatch.

The facts are not disputed. It appears that in 1970 L. Pucillo & Sons (Pucillo), a scavenger, garbage collector and disposer of refuse, entered into a contract with codefendant Town of Belleville as a result of public bidding for the purpose of servicing residents of the town for the collecting and disposing of their garbage. The contract was to run for three years, 1971 through 1973. In anticipation of the expiration date the Town of Belleville on October 23, 1973 adopted a resolution authorizing the town clerk to advertise for proposals for the supplying of scavenger service for the Town, to commence January 1, 1974, under certain terms and specifications which were set forth in instructions to the bidders. The proposals were to be received and opened by the governing body on November 27, 1973 at 8:30 p.m. Apparently several prospective bidders obtained copies of the specifications and prepared for submission what they considered to be the necessary bids.

On November 27, 1973, at the meeting of the governing body -- in this instance the board of commissioners -- the mayor announced that the bids would not be received and that the bidding procedure would be dispensed with because the town had entered into a contract with Pucillo for supplying the scavenger services for a two-year period -- that is, the years 1974 and 1975 -- at the same rate as charged by Pucillo in the prior contract entered into as the result of public bidding some three years earlier.

Representatives of plaintiff James Petrozello Company were in attendance at the meeting of November 27, 1973, as were representatives of plaintiff Capasso Bros., both scavenger

companies, who had prepared bids and had them ready for submission. Their attendance was obviously a futile exercise.

On that same evening the board of commissioners of Belleville, pursuant to the mayor's announcement, adopted a resolution awarding the scavenger service contract to Pucillo, indicating that it was reached as the result of a negotiated agreement and that the contract was to be executed for the next two-year period without any increase in the cost theretofor charged the municipality by Pucillo.

By reason of the foregoing a proceeding in lieu of prerogative writs was instituted in the Law Division by Richard Dill and James Petrozello Company, contesting the award of the contract without public bidding. In addition, a Chancery Division action was started by Capasso Bros. and Robert Laudati, a local taxpayer, seeking to enjoin the operation of Pucillo scheduled to commence on January 1, 1974 under the new contract.

In view of the exigency of the situation and by agreement among counsel the matters were set down for final hearing this first court day of the new year.

Preliminarily, certain jurisdictional objections must be disposed of. In my view plaintiffs have sufficient standing to bring this action. There is no question with respect to the standing of taxpayer Laudati. It is assumed that Dill is also a taxpayer: he falls into the same category. And there is no question with respect to the standing of the two disappointed bidders, Capasso Bros. and James Petrozello Company. I do not know whether their bids would have been lower than the price to be charged by Pucillo. In affidavits supplied on behalf of both Capasso and Petrozello it is indicated that their bids would result in a lower cost to the town. In any event, the fact that they were potential bidders and their ability to bid was thwarted by the action of the board of commissioners in entering into a contract as a result of private negotiations gives them standing to contest the action.

Reference is made to the case of Band's Refuse Removal, Inc. v. Fair Lawn, 62 N.J. Super. 522, 539 (App. Div. 1960). That case does not directly hold that potential bidders have standing, but by inference from the language of Judge Goldmann it appears that a bidder or potential bidder would have standing because such a person would not be a total stranger to the contractual arrangements being contemplated by the municipality.

Likewise, I do not believe that the Public Utilities Commission has jurisdiction in this matter because there is not here presented a dispute involving the Commission, or rates set or franchise areas specified by the Commission, or involving its jurisdiction. Rather, there is here a dispute simply involving the capacity of a municipality to enter into a ...


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