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Newton v. Public Service Electric & Gas Co.

January 23, 2009

MARK NEWTON & ANDREA NEWTON, PLAINTIFFS-APPELLANTS,
v.
PUBLIC SERVICE ELECTRIC & GAS CO., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-174-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2008

Before Judges Parrillo, Lihotz and Messano.

Plaintiffs Andrea and Mark Newton appeal from the April 18, 2007 Chancery Division order denying their request that the Superior Court resume jurisdiction to determine a dispute with defendant Public Service Electric & Gas Co. that had been transferred to the Office of Administrative Law (AOL). We affirm.

Plaintiffs were approved to receive temporary rental assistance (TRA). They moved to an apartment assigned by the Essex County Welfare Agency (ECWA) that was approved for rent reimbursement. The property, located on the first floor of a three-floor residential building at 77 Saint Paul Avenue, Newark, was owned by Christine Mizell.

In 2004, ECWA executed a rental contract with Mizell for plaintiffs' occupancy of the premises. Plaintiffs discovered numerous problematic conditions with the premises, alleged to adversely affect their health and safety. Included among plaintiffs' concerns and relevant to this appeal were claims that "two separate junction boxes regarding the electrical circuitry" malfunctioned and "severely substandard electrical wiring in the entire premises" provided functioning electric service to only one-half the apartment and, the service provided was often interrupted.

Defendant did not remit bills to plaintiffs for the months of January through April 2004. Plaintiffs believed electric and gas utility costs were included in the TRA commitment issued from ECWA. On April 12, 2004, defendant terminated electric and gas service to plaintiffs' apartment for nonpayment. Upon investigation, it was learned the utility bills were sent to a prior tenant. A new utility account was created in plaintiffs' name and electric and gas service was restored on April 15, 2004. On behalf of plaintiffs, ECWA approved payment to defendant of all electric and gas bills from February 2004 to June 2004 and supplied a $150 security deposit.

Plaintiffs continued to maintain the bills issued by defendant improperly reflected the actual services they received. Specifically, plaintiffs observed "a major portion of the electrical service [] utilized by the [s]econd-[f]loor [t]enant" was terminated when their utility service was shutoff, suggesting faulty metering. Further, plaintiffs discovered only two of the three servicing electric meters registered electric usage. The "meter registering electric service to their apartment was spinning, and otherwise circumventing [sic] at a very rapid pace, while the electrical meter registering electrical service regarding the second floor apartment was not spinning, or circumventing [sic] at all, and the electrical meter registering electrical service regarding the third-floor [t]enants was spinning, and circumventing [sic] at a very slow pace." Plaintiffs concluded they were being billed for other tenants' electric usage. On May 3, 2004 and August 18, 2004, plaintiffs requested defendant conduct a "diversion of service" investigation.

The dispute continued. ECWA reimbursed only a portion of plaintiffs' electric and gas bills. Defendant demanded plaintiffs satisfy the outstanding balance due or service would be discontinued. In October 2004, ECWA inspected the premises and confirmed the habitability concerns previously identified by plaintiffs. ECWA stopped rental payments to Mizell pending remediation of the problems. ECWA also requested defendant investigate the utility usage issue, based on the condition of the wiring and sockets. On May 12, 2005, plaintiffs' electric and gas service was again shut-off.

On June 3, 2005, plaintiffs filed a verified complaint and an order to show cause in the Chancery Division, seeking restoration of service and restraint on future terminations pending resolution of their claims.*fn1 On the return date, the court enjoined defendant from terminating or disrupting plaintiffs' utility service. The order was not entered until May 12, 2006. The order required defendant to close plaintiffs' existing utility service account as of September 8, 2005, with payment on that obligation held pending resolution of the litigation. Defendant was ordered to open a new account for plaintiffs, and Mark Newton was ordered to amend the complaint to add Mizell. Finally, the order stated, beginning October 19, 2005, plaintiffs were to keep their bill current. The litigation was temporarily stayed when Andrea Newton filed a voluntary petition pursuant to the Bankruptcy Code. On April 2006, following entry of a Bankruptcy Court order permitting the state court litigation to continue, plaintiffs filed a second order to show cause because defendant was threatening to discontinue service since plaintiffs made no payments. Defendant's subsequent efforts to shut-off service were prevented when a temporary restraint was entered.

On June 22, 2006, the Chancery Division transferred the litigation to the Board of Public Utilities (BPU) "as a result of primary jurisdiction as to the diversion of service issue alleged by the [p]laintiffs to have occurred subsequent to October 2005." The Chancery litigation was stayed pending the BPU's determination with the condition that the injunction preventing disruption of service to plaintiffs' residence continue. On September 19, 2006, plaintiffs' service was terminated for a third time but restored the same day.*fn2

The BPU certified the matter as a contested case and transferred it to the OAL for a hearing. An order was issued by the Administrative Law Judge (ALJ) on January 9, 2007, which set the limits of discovery, ordered Mark Newton to contact his chambers to schedule defendant's inspection of the premises, required defendant to supply copies of its petition filed with the BPU, and scheduled the hearing for the peremptory date of February 6, 2007.

Plaintiffs sought recusal of the ALJ, alleging bias because the ALJ, while in private practice, represented a client against defendant, and treated plaintiffs improperly during the hearing. The ALJ denied the disqualification request. The Director of the OAL accepted the issue for interlocutory review on ...


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