June 25, 2013
JENNIFER CHICKARA, as Administratrix ad Prosequendum of the Estate of JAMES CHICKARA, deceased, Plaintiff-Respondent,
JERSEY CENTRAL POWER & LIGHT a/k/a GPU ENERGY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 11, 2013.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1551-12.
Stephen A. Rudolph argued the cause for appellant (Rudolph & Kayal, attorneys; Mr. Rudolph, on the brief).
Scott M. McPherson argued the cause for respondent (Escandon, Fernicola, Anderson & Covelli, attorneys; Robert M. Anderson, of counsel; Mr. McPherson, on the brief).
Before Judges Fisher and Grall.
Plaintiff Jennifer Chickara, personal representative of the Estate of James Chickara, commenced this action for damages against defendant Jersey Central Power & Light, alleging defendant's negligence in terminating electric service to decedent's home. Plaintiff alleged that decedent, who suffered from congestive pulmonary obstructive disease and a heart condition, required use of an electrical breathing device. He died a few days after the power was turned off.
Characterizing the allegations of plaintiff's complaint as a billing dispute, defendant moved for dismissal or a transfer to the Board of Public Utilities. Judge Jamie S. Perri denied the motion without prejudice; we granted leave to appeal and now affirm.
To be sure, the BPU extensively regulates power companies and has jurisdiction over many types of disputes between power companies and their customers. See N.J.S.A. 48:2-13(d) (declaring that "all services necessary for the transmission and distribution of electricity and gas, including but not limited to safety, reliability, meter reading and billing, shall remain the jurisdiction of the Board of Public Utilities"). As our Supreme Court has observed, the Legislature intended that the BPU have "the widest range of regulatory power over public utilities." Deptford v. Woodbury Terrace Sewerage Corp., 54 N.J. 418, 424 (1969); see also Atlantic Coast Elec. Ry. Co. v. Bd. of Pub. Util. Comm'rs, 92 N.J.L. 168, 173 (E. & A. 1918), app. dismissed, 254 U.S. 660, 41 S.Ct. 10, 65 L.Ed. 462 (1920); In re Centex Homes, LLC, 411 N.J.Super. 244, 254 (App. Div. 2009). Guided by this understanding of the BPU's jurisdiction, any dispute about whether decedent owed defendant $30, 331 and whether defendant was entitled to terminate services as a result, would appear to fall within the BPU's primary jurisdiction. Plaintiff argues, however, that questions regarding whether defendant was negligent in terminating services and whether that negligence was a proximate cause of decedent's death, fall outside the scope of the BPU's jurisdiction.
Judge Perri denied the motion to dismiss or transfer this matter to the BPU, but without prejudice, properly holding that because some aspect of the suit may fall within the BPU's primary jurisdiction does not necessarily mean that the BPU possesses exclusive jurisdiction over all issues. In Muise v. GPU, Inc., 332 N.J.Super. 140, 165 (App. Div. 2000), we determined that "certain questions about the provision of safe and adequate electric service" fell within "the Board's exclusive jurisdiction" but "customer damage claims against defendants for the negligent failure to provide such service" did not. As we explained:
The Board's findings about whether defendants satisfied the regulations and complied with its orders could be probative of whether they had been negligent, but not determinative of the issue Because the Board's findings would not control the Board did not have exclusive "primary" jurisdiction over these damage claims Indeed the Board lacked authority to consider the remedy of damages at all
Relying on Muise in denying the motion it is clear Judge Perri did not finally resolve whether the BPU has jurisdiction to determine any aspect of this suit Instead she recognized that this jurisdictional question could not be decided absent further "development of the record" We find no abuse of discretion in the disposition of defendant's motion Because the judge has not foreclosed the possibility that some issue or issues relevant to this lawsuit may fall within the BPU's primary jurisdiction and that she will again consider whether any such issues should be referred to the BPU we affirm her disposition of the motion to dismiss or transfer