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Muise v. GPU

March 7, 2007

MADELINE MUISE, INDIVIDUALLY AND AS OWNER AND OPERATOR OF MEDIATION AND THERAPY ASSOCIATES, ON BEHALF OF HERSELF AND ALL OTHER INDIVIDUALS AND BUSINESS ENTITIES SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
v.
GPU, INC., ITS SUBSIDIARIES, AGENTS, SERVANTS AND/OR EMPLOYEES, DEFENDANT, AND JERSEY CENTRAL POWER & LIGHT COMPANY, F/D/B/A GPU ENERGY, ITS AGENTS, SERVANTS AND/OR EMPLOYEES, DEFENDANT-RESPONDENT.
GEORGE J. TZANNETAKIS AND PAULA R. ZACCONE-TZANNETAKIS, HUSBAND AND WIFE, ANNE JACOUBS, GERALD HOY AND KATHLEEN HOY, HUSBAND AND WIFE, LLOYD VACCARELLI AND DOROTHY VACCARELLI, HUSBAND AND WIFE, FRANK CRACOLICI, MARMOL, INC., D/B/A UMBERTO RESTAURANT, WARREN ABRAHAMSEN, D/B/A/ FAIRWINDS CATERING, C.K. SEAFOOD, INC., D/B/A/ BAYSHORE FISHERY, CHARLES KURICA, JR. AND JANICE KURICA, HUSBAND AND WIFE, FOREIGN CARS OF MONMOUTH, INC., RAD ENTERPRISES, INC., D/B/A/ KRAUSZER CONVENIENCE STORE, AND FAIR HAVEN HARDWARE, INC., ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
GPU, INC., AND ITS SUBSIDIARY COMPANIES, GPU GENERATION, INC., AND GPU SERVICE, INC., DEFENDANTS, AND JERSEY CENTRAL POWER & LIGHT COMPANY, F/D/B/A GPU ENERGY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3587-99.

The opinion of the court was delivered by: Lintner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 5, 2007

Before Judges Lintner, Seltzer and C.L. Miniman.

This appeal is from an order entered on July 10, 2006, decertifying plaintiffs' class consisting of electrical consumers who experienced electrical outages during the week of July 4, 1999, as a direct result of alleged negligence in delaying the replacement of two transformer banks at the Red Bank substation (Red Bank class). This represents the third time that this matter has been before an appellate panel.

In our first decision, we concluded that the Law Division judge properly retained jurisdiction over these claims. Muise v. GPU, Inc. (Muise I), 332 N.J. Super. 140, 146 (App. Div. 2000). In our second decision, we affirmed the decertification of the overall class, however, we remanded for certification of the limited Red Bank class. Muise v. GPU, Inc. (Muise II), 371 N.J. Super. 13, 64 (App. Div. 2004).

We now reverse the decertification of the Red Bank class and we remand to afford plaintiffs sufficient time to establish individual proof of damages causally related to the outages sustained as a result of the transformer failures at defendants' Red Bank substation as previously directed by our opinion in Muise II.

We recite the underlying procedural history and facts as set forth in our opinion in Muise II.

Plaintiffs are residential and business customers of defendants GPU, Inc., and related affiliates (GPU or the utility), providers of electrical service. On July 20, 1999 the Tzannetakis plaintiffs filed a class action complaint . . . alleging damages resulting from power failures in July 1999. On July 22, 1999 Muise filed a class action complaint in the same court against the same defendants, with similar allegations.

On August 4, 1999 Muise filed a motion for class certification. In September 1999 the Tzannetakis plaintiffs also moved for class certification. On October 8 consolidation was ordered. In an October 12, 1999 hearing Judge Chaiet granted plaintiffs' motions for class certification and denied defendants' motion to dismiss in favor of deferring to the primary jurisdiction of the Board of Public Utilities (the Board).

On January 11, 2000 we granted defendants' motion for leave to appeal from the denial of their motion to dismiss, "in order to determine the proper forum for [plaintiffs'] claims." [Muise I, supra, 332 N.J. Super. at 148]. Defendants did not seek leave to appeal from the class certification because they wanted to develop the factual record. We concluded that the Law Division judge properly retained jurisdiction, rather than deferring to the Board. Id. at 146. . . .

At a hearing on May 24, 2001 Judge Uhrmacher denied defendants' motion to decertify the class. On January 28, 2002 she heard arguments on defendants' motion for partial summary judgment. In an opinion issued on August 14, 2002 Judge Uhrmacher granted defendants' motion for partial summary judgment, dismissing with prejudice plaintiffs' claims for fraud, negligent misrepresentation, violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and strict product liability.

On November 8, 2002 defendants filed a renewed motion to decertify the class. On December 17, 2002 plaintiffs filed a notice of motion for a declaration of ...


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