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James Const. Co. v. Board of Public Utilities

March 6, 1997


On appeal from the Superior Court of New Jersey, Law Division, Morris County.

Approved for Publication March 10, 1997. As Amended April 9, 1997.

Before Judges Pressler, Stern and Wecker. The opinion of the court was delivered by Stern, J.A.D.

The opinion of the court was delivered by: Stern

The opinion of the court was delivered by


Plaintiff and defendant construction companies appeal from the dismissal of a complaint challenging the constitutionality of the Underground Facility Protection Act (UFPA or Act), N.J.S.A. 48:2-73 to -91, claiming that the Act is unconstitutional both facially and as applied, that the actions taken by the Board of Public Utilities (BPU or Board) thereunder were unconstitutional, and that the subjects ruled upon by the trial Judge "exceeded the scope of relief sought by defendants" thereby potentially foreclosing plaintiffs "from litigating certain issues in administrative courts." Specifically, the construction companies assert the legal issues raised should be resolved without the need for exhaustion of administrative remedies, that the UFPA creates "its own procedure to indict violators," that "the Legislature cannot constitutionally pass a statute which allows for the imposition of criminal penalties without affording the constitutional requirements of an indictment and trial by jury," and that the Order to Show Cause issued to them presumed they "are guilty unless otherwise proved," thereby unconstitutionally requiring them "to prove their innocence in order to prevent the imposition of penalties." They also assert that penalties cannot be assessed by the Board under the UFPA.

According to the Law Division complaint, which is not contested in any material respect, on January 9, 1995, during the course of construction activities at property leased by Hertz Corporation at Newark Airport, "there occurred an interruption of electric power provided to the Airport through underground electric facilities operated by Public Service Electric & Gas Company ('PSE&G'). The Airport remained without electrical power for a period of approximately twenty-four hours." The construction companies were working at the site.

Shortly thereafter, the Board commenced an investigation regarding "any and all activities related to that event [including] all activities related to damage to an underground telecommunication facility on the Site" which it learned occurred on or about December 5, 1994. An "Order of Investigation" was issued on February 8, 1995 and served upon plaintiff, James, and two of the defendant contractors, Joseph L. Muscarelle and LindeGriffith Construction Company, advising that the BPU was going to investigate their possible violations of the UFPA.

UFPA established a "One-Call Damage Prevention System" for the protection of underground facilities, including those carrying water, sewage, telecommunications signals, cable television, oil and electricity, which are often subject to accidental damage from excavating equipment and explosives. N.J.S.A. 48:2-74, -76. UFPA requires excavators to notify the One-Call System prior to excavation, requires that excavators use reasonable care and supervision when working so as to avoid damaging underground facilities, and requires public utilities to mark the location of their underground facilities when they receive notice from the One-Call System of a planned excavation nearby to a facility. N.J.S.A. 48:2-80 to -82.

The BPU thus commenced an investigation of whether any one or more of the three contractors had failed to notify the One-Call System prior to excavating at the airport site and whether any of them violated UFPA in their operation of their heavy equipment. The BPU also investigated whether PSE&G "marked, staked, located, or otherwise provided the position of its underground facilities in accordance with the requirements of the Act ...."

On February 22, 1995, the Board issued a "Prehearing Order," informing plaintiff, the two defendant contractors and PSE&G, among other things, that a prehearing conference would be conducted on February 10, 1995, "that investigatory hearings would be conducted ... on February 22, 23 and 24, 1995," that "each witness [either designated or approved by staff] may be accompanied by counsel," and that counsel "may submit proposed questions to be asked of the witness."

Having completed its investigation, on July 21, 1995, the Board issued an "Order of Investigation and Order to Show Cause" alleging that James, Muscarelle, and Linde-Griffith violated UFPA by failing to notify the One-Call System prior to the excavations that damaged the Bell Atlantic and the PSE&G facilities, N.J.S.A. 48:2-82a; by failing to preserve after excavation the markings designating the underground facilities, N.J.S.A. 48:2-82d(4); by failing to plan the excavations and use reasonable care during the excavations so as to avoid damaging the underground facilities, N.J.S.A. 48:2-82d(2),(3), and by failing to report the damage to the facilities after it occurred, N.J.S.A. 48:2-82e. No violations were alleged against PSE&G.

The Order to Show Cause was made returnable before an Administrative Law Judge for determination as to "why the Board should not invoke civil penalties and other relief against ... Muscarelle, Linde-Griffith, and James" under N.J.S.A. 48:2-86, 48:2-88 "and such other sections of Title 48 of the Revised Statutes of New Jersey as may be applicable," together with costs of the investigation and proceedings. The cited sections deal with "civil penalties" and injunctions. *fn1 The hearings have been scheduled to commence this spring.

Plaintiff filed its complaint in lieu of prerogative writs in the Law Division in September 1995. The construction company defendants, by cross-claims, joined plaintiff's demand for, among other relief, a declaration that UFPA is unconstitutional, that the BPU was acting arbitrarily and in ...

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