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Daaleman v. Elizabethtown Gas Co.

Decided: June 24, 1976.

HENRY J. DAALEMAN, INDIVIDUALLY AND AS A REPRESENTATIVE OF A CLASS OF ELIZABETHTOWN GAS COMPANY CONSUMERS, PLAINTIFFS,
v.
ELIZABETHTOWN GAS COMPANY, AND THE NEW JERSEY BOARD OF PUBLIC UTILITY COMMISSIONERS, DEFENDANTS



Di Buono, A.j.s.c.

DI Buono

In this class action composed of consumers who are supplied gas by defendant Elizabethtown Gas Company, it is alleged that Elizabethtown fraudulently manipulated the purchased gas adjustment (PGA) clause, an accounting device designed to transfer the increased costs of purchasing and storing natural and synthetic gas directly to the retail consumer. The complaint further asserts that Elizabethtown, through such manipulation, supplied false tariff submissions to the Board of Public Utilities Commissioners (P.U.C.), misstating both the cost of the gas as well as the quantity of gas purchased, in order to overstate the actual cost of gas per unit. It is contended that this deliberately inflated figure was incorporated directly into the bill charged to each consumer. The claim for relief is predicated on the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. , whereby treble damages are sought, together with attorney's fees and costs. Plaintiffs also request that Elizabethtown be permanently enjoined from including the PGA clause as an element in the billing of consumers, and finally that the court direct defendant P.U.C. to conduct a detailed review and examination of Elizabethtown's rate structure, including a complete audit of the utility's financial condition.

On motion plaintiffs demand that Elizabethtown show cause why it should not be preliminarily enjoined from incorporating a PGA rate factor in its future billing to customers. On the return date of the motion defendants moved to dismiss the complaint. The grounds urged by Elizabethtown include failure to state a claim upon which relief

can be granted under the Consumer Fraud Act, and the failure of plaintiffs to exhaust their administrative remedies before the P.U.C. Alternatively, Elizabethtown urges that the doctrine of primary jurisdiction should be applied to this case and that the court refer the complaint to the P.U.C. for further action.

The Attorney General, who represents P.U.C. in this action, takes the position that the Consumer Fraud Act does apply to the facts presented in this case. However, the Attorney General does adopt the alternate theories urged by Elizabethtown, and requests the court refer this matter to P.U.C. for further proceedings.

N.J.S.A. 56:8-2 states in pertinent part:

The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice.

The legislative intent in enacting the Consumer Fraud Act was examined in Kugler v. Romain , 58 N.J. 522 (1971). There the court stated:

The purpose to be gleaned from the statute specifically involved here * * * is that while private rights and interests were to be served, public interests of substantial consumer groups were likewise to be protected. It has been amply demonstrated that the strongest case for relief from form contract oppression and deceptive and fraudulent misrepresentations is presented by the poor, the naive and the uneducated consumers who have yielded unwittingly to such high pressure sales tactics. The Legislature has decreed that they are a class of persons to whom the courts should give special protection. [at 538]

The essence of the Consumer Fraud Act is the recognition by the Legislature that unfair commercial practices in the area of mass consumer transactions cannot be remedied

by traditional private actions. In order to adequately protect the public from such abuses the Legislature has created a public remedy in those areas where the law previously afforded only private redress. Id. at 537. Furthermore, this statute is directed at products and services sold to consumers in the popular sense. The legislative language throughout the statute and the evils sought to be eliminated point to an intent to protect the consumer in the ...


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