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New Jersey State League of Master Plumbers, Inc. v. New Jersey Natural Gas Co.

September 24, 2010

NEW JERSEY STATE LEAGUE OF MASTER PLUMBERS, INC., AND GARY ITALIANO, NEW JERSEY LICENSED PLUMBER, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY NATURAL GAS COMPANY AND ITS AFFILIATE NEW JERSEY RESOURCES CORPORATION; NJR HOLDINGS CORPORATION; NJR HOME SERVICES COMPANY; NJR PLUMBING SERVICES, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2103-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 14, 2010

Before Judges Carchman and Waugh.

Plaintiffs New Jersey State League of Master Plumbers, Inc. (League), and Gary Italiano appeal the dismissal with prejudice of their suit against defendants New Jersey Resources Corporation (NJR), and its subsidiary or related entities New Jersey Natural Gas Company (NJNGC), NJR Holdings Corporation, NJR Home Services Company, and NJR Plumbing Services, Inc. We affirm.

I.

We discern the following factual and procedural background from the record.

The League is a non-profit trade association made up of master plumbers licensed in New Jersey pursuant to the State Plumbing License Law of 1968 (Plumbing Law), N.J.S.A. 45:14C-1 to -33. Italiano, who resides in Ocean County, is a member of the League and a licensed master plumber in New Jersey.

NJR is a publicly traded corporation that provides natural gas in certain areas of New Jersey through its subsidiary NJNGC, which is regulated by the New Jersey Board of Public Utilities (BPU). NJR and NJNGC provide plumbing related services to their natural gas customers and others through the affiliated defendant entities. The League contends that defendants' advertising and billing practices with respect to those activities were criticized in an audit report submitted to the BPU. It further contends that the BPU ordered one or more of them to take certain corrective action as a result of the audit report.

In June 2009, the League and Italiano filed a complaint in the Law Division against NJR, NJNGC, and their related companies. The complaint alleges that defendants have (1) engaged in unauthorized plumbing activities in violation of the Plumbing Law; (2) circulated improper plumbing advertisements in violation of N.J.S.A. 45:14C-2(h) and -12.3 and their implementing regulations; and (3) violated the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -184. Plaintiffs seek injunctive relief and damages, as well as counsel fees.

In July 2009, defendants filed a motion to dismiss pursuant to Rule 4:6-2(e), arguing that the League and Italiano lacked standing to sue and that, in any event, they failed to state a claim upon which relief could be granted. Plaintiffs opposed the motion, which was argued on September 25, 2009.

The judge explained his reasons for granting the motion in a letter opinion dated September 28, 2009. With respect to the first two counts, he determined that, although the League and Italiano would probably have standing, there is no private cause of action to enforce the provisions of the Plumbing Law, because the Legislature conferred enforcement power solely on the State Board of Examiners of Master Plumbers (Board), the Director of the Division of Consumer Affairs, and the Attorney General. See N.J.S.A. 45:1-25. He also concluded that plaintiffs could not sue under the CFA because they could not demonstrate an "ascertainable loss." See N.J.S.A. 56:8-19. Consequently, he dismissed the complaint with prejudice in an order of the same date.*fn1 This appeal followed.

II.

On appeal, the League and Italiano argue that (1) they have standing; (2) that there is a private cause of action under the legislative scheme creating the professional and occupational licensing laws; (3) they have suffered an ascertainable loss; and (4) they should have been permitted to amend the CFA count to clarify their claim to an ascertainable loss and "issues of third-party beneficiaries." Defendants argue, in response, that the motion ...


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