ANTHONY M. SURA v. JERSEY CENTRAL POWER & LIGHT

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(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4445-07T24445-07T2

ANTHONY M. SURA,

Plaintiff-Appellant,

v.

JERSEY CENTRAL

POWER & LIGHT,

a FirstEnergy Company,

Defendant-Respondent.

_______________________________

 

Argued May 12, 2009 - Decided

Before Judges Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3492-07.

Anthony M. Sura, appellant, argued the cause pro se.

Michael J. Lynch argued the cause for respondent (Monte & Rudolph, attorneys; Stephen A. Rudolph, on the brief).

PER CURIAM

Plaintiff Anthony M. Sura appeals from the January 4, 2008 order of the Law Division that dismissed his complaint and transferred the matter to the New Jersey Board of Public Utilities (BPU). Plaintiff also appeals from the March 28, 2008 order denying his motion for reconsideration. We affirm and remand for further proceedings consistent with this opinion.

Plaintiff is a residential electrical customer of defendant Jersey Central Power & Light (JCP&L), a subsidiary of FirstEnergy Corp., having resided in two different residences in Lakewood since September 2000. Over the years, plaintiff disputed many of defendant's electrical charges, some of which resulted in defendant terminating or threatening to terminate electrical service because of plaintiff's non-payment.

On October 19, 2007, plaintiff filed a pro se complaint in the Law Division, alleging consumer fraud, attempted extortion, attempted theft, extortion, theft, child endangerment, harassment and intentional infliction of emotional distress. Contrary to Rule 4:5-2, the complaint did not "contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief."

On December 5, 2007, in lieu of either filing an answer or a motion seeking to dismiss the complaint for "failure to state a claim upon which relief can be granted," R. 4:6-2(e), defendant sought to dismiss the complaint and transfer the matter to the BPU, contending that the BPU has primary jurisdiction to resolve all disputes concerning electric service, billing, and non-payment issues, citing N.J.S.A. 48:2-13.

On January 4, 2008, the trial court entered an order, supported by an oral decision, granting defendant's motion. In granting the motion, the court reasoned:

The point in the brief filed by counsel for the defendant moving party focuses upon the fact that the primary dispute between the parties is one arising out of issues associated with the billing, the manner in which the billing occurred, and what the plaintiff contends is an inaccurate bill, failure by the defendant to adhere to his objections and wishes whether through inappropriate shutoffs, requiring a security deposit, not allowing an accurate meter reading, and the like.

The plaintiff has couched this dispute in terms of stealing. He uses the word in oral argument, as well, that the defendant had stolen from him and committed acts of extortion and harassment.

This [c]ourt[,] while recognizing that the plaintiff is representing himself as a pro se litigant, which is indeed his right, must look at the actual substance of the language utilized by the plaintiff and focus on the issue in dispute and the issues which are illuminated further in the exhibits attached to the moving papers and indeed are referred to in oral argument by both sides on today's date including in particular the plaintiff. This [c]ourt notes that the BPU is an administrative agency assigned by [s]tatute with specialized expertise in the area of billing disputes, and the BPU under [N.J.S.A.] 48:2-13 is empowered as follows.

"The Board shall have general supervision, regulation of, and jurisdiction and control over all public utilities and their property, property rights, equipment, facilities, franchises so far as may be necessary for the purpose of carrying out the provisions of this Title."

[T]his [c]ourt . . . finds [that the BPU] must have jurisdiction over this dispute, as the dispute is clearly one between the parties, not of an act, for example, hypothetically, if an employee arguably of the defendant utility might have entered someone's property unlawfully and committed a more traditional act of theft, per se, taking of someone's money, someone's wallet, all [of] the traditional, for want of a better term, almost law school-like examples that would be appropriately heard in different forums. That would be one fact scenario that is clearly not the case in this instance.

On March 28, 2008, the trial court entered an order denying plaintiff's motion for reconsideration.

Plaintiff's sole argument is that he is entitled to a reversal and reinstatement of his complaint in the Law Division, citing N.J.S.A. 2A:53A-21, the statute imposing civil liability for bias crimes. "A person, acting with purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, who engages in conduct that is an offense under the provisions of the 'New Jersey Code of Criminal Justice,' Title 2C of the New Jersey Statutes, commits a civil offense." N.J.S.A. 2A-53A-21a. We have considered plaintiff's argument in light of the record and applicable law and are satisfied that it is without sufficient merit to warrant discussion in a written opinion. We affirm substantially for the reasons expressed by the trial court in its oral decision of January 4, 2008. Nevertheless, we add the following comment.

The January 4, 2008 order dismissed plaintiff's complaint with prejudice and directed that the matter be transferred to the jurisdiction of the BPU. Because this matter was not adjudicated on its merits, the order of January 4, 2008, must be amended to reflect that the complaint is dismissed without prejudice.

We were informed at oral argument that: BPU has not conducted any proceedings in this matter; and the parties are unaware whether BPU received copies of plaintiff's complaint and the order of January 4, 2008. Accordingly, we affirm and remand to the trial court to enter an amended order dismissing the complaint without prejudice and transferring the matter to the jurisdiction of the BPU. The trial court shall also direct the Clerk of the Civil Division to forward copies of the complaint and the order of June 4, 2008, as amended, to the BPU.

Affirmed and remanded for further proceedings consistent with this opinion.

Improperly pleaded in the complaint as JCP&L, First Energy Corporation.

(continued)

(continued)

6

A-4445-07T2

June 8, 2009

 


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