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Newton v. Public Service Electric & Gas Co.


January 23, 2009


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

Per curiam.


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 February 26, 2007 and affirmed the ALJ's order to deny plaintiffs' recusal request.

Plaintiffs filed motions in the Superior Court contemporaneously with the OAL proceeding. Plaintiffs requested the Chancery Division reconsider its order transferring the matter to the BPU. On April 18, 2007, the judge denied the motion. Plaintiffs' appeal stems from this determination.

Thereafter, on June 26, 2007, the BPU ordered a full review of the parties' submissions and the hearing transcripts and scheduled a hearing to review the ALJ's January 9, 2007 order.

The record does not reveal the result of this review. However, the OAL scheduled the matter for a peremptory hearing before the ALJ on September 18, 2007. On that date, plaintiff Andrea Newton appeared and presented a doctor's note verifying plaintiff Mark Newton's illness and inability to be present. The ALJ instructed Mrs. Newton to proceed. She declined and left the hearing room. The ALJ reconsidered his denial of plaintiffs' adjournment request and rescheduled the matter for October 2, 2007. On that date, plaintiffs did not appear.

The ALJ rendered a written order on defendant's motion to dismiss. The ALJ dismissed the matter with prejudice, stating:

Since the [plaintiffs] have frivolously delayed the proceeding for over a year, have failed to appear at three peremptory hearing dates, have not made a single payment on their bill, have shown no reason why the discontinuance of their service is prohibited and because I find no genuine issue as to any material fact[,] I CONCLUDE that the [plaintiffs'] actions warrant dismissal of this matter.

Plaintiffs pursued available administrative relief by filing exceptions to the ALJ's determination. Plaintiffs stated they could not attend the hearing because they were ill and, they did not respond to defendant's motion for dismissal because they never received a copy.

The matter before us is plaintiffs' appeal from Judge Weeks's order denying the motion for the Superior Court to resume primary jurisdiction over the diversion of service dispute. Plaintiffs argue the court erred in transferring a matter initiated in the Chancery Division to the administrative agency.

A trial court may defer its "original jurisdiction" to an administrative agency when necessary for "'the resolution of threshold issues, usually of a factual nature, which are placed within the special competence of the administrative body.'" Unalachtigo Band of the Nanticoke-Lenni Lenape Nation v. State, 375 N.J. Super. 330, 345 (App. Div.) (quoting Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 56 (2d Cir. 1994)), certif. denied, 184 N.J. 210 (2005). This principle, known as the doctrine of primary jurisdiction, recognizes both the administrative agency and the courts have subject matter jurisdiction, but for policy reasons, the agency should exercise its jurisdiction first. Borough of Haledon v. Borough of N. Haledon, 358 N.J. Super. 289, 301-02 (App. Div. 2003).

The purpose of the primary jurisdiction doctrine is to create a workable relationship between the agency and courts whereby a court can benefit from the special knowledge the agency possesses of the issues. MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1105 (3d Cir. 1995), cert. denied, 519 U.S. 815, 117 S.Ct. 64, 136 L.Ed. 2d 25 (1996).

Additionally, application of the principle preserves uniformity in interpretation and application of agency regulations. Muise v. GPU, Inc., 332 N.J. Super. 140, 160 (App. Div. 2000); Campione v. Adamar of N.J., Inc., 155 N.J. 245, 264 (1998).

Thus, the Superior Court should refer an issue to an administrative agency if "'the matter involves technical or policy considerations[,] which are beyond the court's ordinary competence and within the agency's field of expertise.'" Global Naps, Inc. v. Bell Atl.-N.J., Inc., 287 F. Supp. 2d 532, 549 (D.N.J. 2003) (quoting MCI Commc'ns Corp. v. Am. Tel. & Tel. Co., 496 F.2d 214, 220 (3d Cir. 1974)). Pure questions of law are not within the special expertise of the agency, making a grant of primary jurisdiction to the agency in such an instance inappropriate. Bay Point Yacht Harbour v. Jersey Cent. Power & Light Co., 251 N.J. Super. 453, 456 (App. Div. 1991); Farmingdale Realty Co. v. Borough of Farmingdale, 55 N.J. 103, 112 (1969).

The following four criteria must be weighed when determining application of the primary jurisdiction doctrine:

1) whether the matter at issue is within the conventional experience of judges; 2) whether the matter is peculiarly within the agency's discretion, or requires agency expertise; 3) whether inconsistent rulings might pose the danger of disrupting the statutory scheme; and 4) whether prior application has been made to the agency.

[Richardson v. Standard Guar. Ins. Co., 371 N.J. Super. 449, 476 (App. Div. 2004)(citing Boldt v. Correspondence Mgmt., Inc., 320 N.J. Super. 74, 85 (App. Div. 1999)).]

Finally, the invocation of the doctrine of primary jurisdiction must be made on a case-by-case basis, see United States v. W. Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed. 2d 126, (1956). The decision rests within the sound discretion of the court. Atlantic City v. Laezza, 80 N.J. 255, 265 (1979); Patrolman's Benevolent Ass'n v. Montclair, 70 N.J. 130, 136 (1976); Alliance for Disabled In Action, Inc. v. Cont'l Props., 371 N.J. Super. 398, 408 (App. Div. 2004), aff'd, 185 N.J. 339 (2005); Boldt, supra, 320 N.J. Super. at 82-85.

The BPU is charged with the "general supervision and regulation of and jurisdiction and control over all public utilities" in the State of New Jersey. N.J.S.A. 48:2-13(a). Defendant, as a gas and electricity distributor, is subject to the BPU's jurisdiction. Ibid. Moreover, "all services necessary for the transmission and distribution of electricity and gas, including but not limited to safety, reliability, metering, meter reading and billing, shall remain the jurisdiction of the Board of Public Utilities." N.J.S.A. 48:2-13(d) (emphasis added).

Plaintiffs' claims are bottomed on a theory that the electrical meters designated to monitor electrical usage located at plaintiffs' residence have been altered to divert service to one area and designate usage by another. Neither plaintiffs nor the Superior Court have the expertise to determine the accuracy of the alleged altered meters. The maintenance and supervision of the meters rests with defendant. Defendant's investigation of the metering units located in the multi-unit dwelling was critical to the disposition of plaintiffs' claims. These actions fall with the BPU's jurisdiction over billing procedures and the regulation of conditions of providing utility services, N.J.S.A. 48:2-21.

Following our review, we determine the Chancery Court's invocation of primary jurisdiction and deferral to the BPU's expertise on these issues was appropriate. Judge Weeks's denial of plaintiffs' motion for the court to resume sole jurisdiction did not exceed the scope of her reasoned discretion and will not be disturbed. See Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991) (discretionary decisions of a trial judge are not disturbed absent a clear abuse of discretion).

Plaintiffs also challenge the court's failure to join ECWA and Mizell as additional parties to the matter. Although this issue is not properly before us, Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234-35 (1973), we offer these brief comments.

It is the parties who must join litigants, not the court.

R. 4:29. Plaintiffs were ordered to add Mizell as a party and failed to do so. Further, mandatory joinder of parties for entire controversy purposes, as suggested by plaintiffs, is no longer required. Hobart Bros. Co. v. Nat'l Union Fire Ins. Co., 354 N.J. Super. 229, 242 (App. Div.), certif. denied, 175 N.J. 170 (2002).

A review of plaintiffs' complaint reveals claims, if any, against the ECWA or Mizell were not specifically pled. Only the issues of whether defendant over-billed plaintiffs and whether defendant's equipment was faulty, resulting in erroneous monthly billing statements, were presented. This does not suggest the other claims could not have been presented in the same action, but merely confirms the unequivocal fact that the claims were not included in this action.

Plaintiffs asserted claims by initiating other matters. Aside from a reference to its existence, the record contains no information on the status of the action filed against Mizell's estate. The Special Civil Part matter against defendant for violation of the no shut-off order, which was stayed pending the agency review, should proceed to determine plaintiffs' claims.

As to the administrative proceedings, plaintiffs are free to continue to pursue available administrative remedies to appeal the ALJ's decision. Plaintiffs must exhaust all available administrative review prior to seeking review by this court. Hoffman v. Garden State Farms, Inc., 76 N.J. Super. 189, 204 (Ch. Div. 1962).

We determine that plaintiffs' remaining arguments, regarding the scope of discovery and enforcement of subpoenas, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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