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(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6097-10T4
MARK NEWTON,
Plaintiff-Appellant,
v.
PUBLIC SERVICE ELECTRIC &
GAS CO.,
Defendant-Respondent.
February 6, 2013
Submitted January 9, 2013 - Decided
Before Judges Ashrafi and Lisa.
On  appeal  from  Superior  Court  of  New  Jersey,  Law  Division, Essex  County,
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Docket No. L- 3657-11.
Mark Newton, appellant pro se.
Law Offices of William E. Frese, attorneys for respondent  (Suzanne    M. Klar and
Ana Linda Day, on the brief).
PER CURIAM
Appellant, Mark Newton, appeals from the Law  Division order of July  22,  2011 dismissing his   complaint
against Public Service Electric and Gas Company (PSE&G) for failure to state a claim upon which relief can
be granted, R.  4:6-2(e), based upon lack of subject matter jurisdiction, R.  4:6-2(a). For the reasons that
follow, we affirm.
Appellant has engaged in multiple proceedings, both in the law courts and before the New Jersey Board of
Public  Utilities                                                                                                  (BPU), regarding the propriety  of bills he  has received for providing  electric    service   at   his
residence and related issues. A panel of this court adjudicated issues similar to those presented here in a
January  23,  2009 opinion involving disputes between appellant and PSE&G dating back    to 2004   regarding
his electric service charges at 77 Saint Paul Avenue, Newark. Newton v. Pub. Serv. Elec. & Gas Co., No. A-
5624-06, slip op. at 2 (App. Div. Jan. 23, 2009).
In that case, the asserted claims were premised on a theory that electrical meters designated    to monitor
electrical usage at appellants' residence were altered to divert service to one area and designate usage by
another. Id. at 10. After a thorough analysis of the doctrine of primary jurisdiction, we concluded that the
Chancery Division did not err in transferring the litigation to the BPU, which possessed primary jurisdiction.
Id. at  11. Stated broadly, this was because "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." Id. at  8-9.  (internal quotation marks and citations
omitted).
The situation in the matter now before us is similar. The dispute revolves around appellant's residence   at
80 Saint Paul Avenue, Newark. Appellant's contention, as set forth in his appellate brief, is that "[w]ithin the
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period of October 2009 - January 2010, the electrical wires regarding the premises of 78 Saint Paul Avenue,
and 80 Saint Paul Avenue, Newark, New Jersey, were commingled, exposed, and otherwise inappropriately
ran [sic], to each premises, as well as the electrical pole on the Avenue."
By way of background, on January  14,  2011, plaintiff filed a complaint in    the    Chancery Division regarding
this  dispute,  in which he  sought injunctive and  other  relief. That  action was ultimately dismissed  by  an
order of April 25, 2011, which specified that the dismissal was without prejudice to appellant's right to file
an  action before  the BPU. Appellant had  availed  himself  of that  right. On  March  11,  2011, he  filed an
extensive  petition with the BPU involving  the same subject matter. The matter was   deemed   a   contested
case and transferred to the Office of Administrative Law (OAL) on June 29, 2011. As of the briefing in the
case before us, that matter remained pending.
On May 2, 2011, appellant filed the Law Division complaint in the case that is now before us. The forty-five
page complaint contains forty counts. Each count relies upon the following critical allegation   in Paragraph
Two of the First Count:
At  the  time  of  the  commencement  of  the  contract                                                             [between  appellant and
PSE&G] in October 2009, the electrical wires regarding the premises of 78 Saint
Paul  Avenue,  and                                                                                                  80  Saint  Paul  Avenue  were  commingled,  exposed,  and
otherwise inappropriately ran [sic], to each premises, as well as to the electrical
pole on the Avenue, which pole was maintained by [PSE&G].
In lieu of filing a responsive pleading, PSE&G filed a motion to dismiss pursuant to Rule 4:6-2. The motion
was accompanied by a statement of material facts, which we set forth in its entirety:
As derived from the Complaint, the plaintiff is a customer of    defendant PSE&G.
PSE&G's [sic] complaint alleges issues rela[t]ing to PSE&G's billing investigation,
meter reading and  meter replacement  practices.  Plaintiff has filed a   Complaint
with the [BPU] asserting what appears to be, identical allegations. A copy of that
Complaint is attached hereto as Exhibit A.
PSE&G  also submitted a letter brief arguing that  jurisdiction was properly before  the BPU, in which an
action initiated by appellant regarding the same subject matter was then pending. PSE&G also attached to
its motion a copy of the earlier opinion of this court involving appellant, which we have referenced.
Appellant  was  served  with  the  moving  papers  and  he  filed  opposition.  Neither  party  requested  oral
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argument. On  July  22,  2011, the trial court  issued  an  order dismissing the complaint.  Endorsed at the
bottom of the order was the handwritten notation, "COURT LACKS JURISDICTION."
On appeal, appellant presents the following arguments:
POINT I
THE APPLICATION FILED IN THE LAW DIVISION BY DEFENDANT AND IT'S [sic]
COUNSEL  WAS  PATENTLY  DEFECTIVE  AND  AS  SUCH  THE  LAW DIVISION
COMMITTED PLAIN AND REVERSIBLE ERROR PURSUANT TO THE GRANTING OF
THE RELIEF SOUGHT BY DEFENDANT AND FOR THIS REASON AS A MATTER OF
LAW THE  ORDER  ENTERED BY THE  LAW DIVISION  DISMISSING PLAINTIFF'S
COMPLAINT MUST BE REVERSED AND THE COMPLAINT REINSTATED.
POINT II
THE  BOARD  OF  PUBLIC  UTILITIES  DOES  NOT  POSSESS  THE  STATUTORY
AUTHORITY OR JURISDICTION TO RESOLVE THE CLAIMS, TRANSACTIONS AND
CONDUCT  COMPLAINED  OF  BY  PLAINTIFF  AND  AS  SUCH  THE  PLAINTIFF
SUBMITS  THAT  THE  LAW  DIVISION  COMMITTED  PLAIN  AND  REVERSIBLE
ERROR PURSUANT TO EMPLOYING THE WRONG LEGAL STANDARD WHICH WAS
NO STANDARD AT ALL AND  AS A MATTER OF LAW THE    ORDER    ENTERED   BY
THE LAW DIVISION DISMISSING PLAINTIFF'S COMPLAINT MUST BE REVERSED.
POINT III
THE  ORDER  ENTERED  BY  THE  LAW  DIVISION  ON  JULY  22,  2011,  MUST   BE
REVERSED BECAUSE THE COURT BELOW FAILED TO MAKE ANY FINDINGS OF
FACTS AND STATE ITS CONCLUSIONS OF LAW IN ACCORDANCE WITH R. 1:7-4.
POINT V
AS  A  DIRECT  RESULT  OF  DEFENDANT'S  FRIVOLOUS  A[R]GUMENTS  AND
PROCEEDINGS   PLAINTIFF-APPELLANT   HAS   BEEN   COMPELLED   TO  INCUR
SUBSTANTIAL  EXPENSES  REGARDING  THE  FILING  OF  APPLICATIONS, AND
BRIEFS IN BOTH THE LAW DIVISION AND THE SUPERIOR COURT APPELLATE
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DIVISION  INCLUSIVE  OF PROSECUTION OF THE  APPEAL AND  HEREBY   SEEKS
TAXED COSTS FROM DEFENDANT.
Based upon our review of the record, the arguments of the parties, and the applicable principles of law, we
conclude  that  appellant's  arguments  lack  sufficient  merit  to  warrant  extended  discussion  in  a  written
opinion. R. 2:11-3(e)(1)(E). We offer these brief comments.
PSE&G's motion was not procedurally deficient. Contrary to appellant's contention, there was no    need    for
affidavits or other means of producing proof of facts. The moving party succinctly set forth a statement of
material facts, summarizing the allegations of appellant's lengthy complaint, which was a pleading in this
very action. The moving papers included a copy of appellant's BPU petition, of which the Law Division judge
could properly take  judicial  notice. See N.J.R.E.  201(b)(4).  We also reject appellant's  argument that  the
court  erred  in  not  conducting  oral  argument  on  the  motion.  Because  neither  party requested  it, oral
argument was not required. See R. 1:6-2(d). We likewise reject the notion that an evidentiary hearing was
required. The facts upon which the motion was based were set forth in the moving papers and were not in
dispute. Finally, the record does not support appellant's contention that he was not timely served with the
moving  papers.  Indeed,  appellant  filed  responding  papers,  and  the  motion  order  reflected  that his
opposition was considered.
On the substantive issue of subject matter jurisdiction, it is clear to us that primary jurisdiction lies with the
BPU. We rely upon the rationale set forth in our prior opinion involving appellant, and we note, in particular,
that in this case a BPU action was already pending when appellant filed his Law Division complaint. We also
note on this issue that, although the order under appeal does not say so, PSE&G acknowledges throughout
its appellate brief that appellant's Law Division complaint was "premature" because the    "threshold issues"
and  "predicate questions  of fact" must first  be  decided by the BPU "before the Appellant's  requests    for
damages will be ripe for consideration by the Superior Court." Thus, PSE&G states in its appellate brief that
the dismissal  was without prejudice to  Appellant's  right to  file suit in the   Law
Division seeking damages for the causes of action  [he]    alleges in    the    Complaint
after he has exhausted his administrative remedies and the underlying issues of
fact, i.e. whether  [PSE&G] acted properly under its Tariffs for Electric and Gas,
are decided by the [BPU].
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The order before us reflects only the notation that the complaint was dismissed because the    court lacked
jurisdiction.  A  more  expansive  statement  of  reasons  would  have  been  appropriate,  but  any  error was
harmless.  We  infer  that  the  judge  accepted  the  arguments  in  PSE&G's  motion  brief  and  the  rationale
expressed in our previous opinion involving appellant, which was furnished to the motion judge with the
moving papers. Further, because the issue before us is a legal issue and our review is de novo, we express
our agreement with the judge's conclusion regarding jurisdiction.
Finally, we reject out-of-hand appellant's "taxed costs" argument.
Affirmed.
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