INTHE MATTER OF ALLEGED VIOLATION OF THE UNDERGROUND FACILITY PROTECTION ACT, N.J.S.A 48:2-73 ET SEQ. BY DAVID HERZOG STAR DEVELOPERS, LLC

NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
  This opinion shall not "constitute precedent or be binding upon any court."
   Although it is posted on the internet, this opinion is binding only on the
     parties in the case and its use in other cases is limited. R. 1:36-3.




                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-5449-15T1

IN THE MATTER OF ALLEGED
VIOLATION OF THE UNDERGROUND
FACILITY PROTECTION ACT, 
N.J.S.A.
48:2-73 ET SEQ. BY DAVID HERZOG,
STAR DEVELOPERS, LLC.
_____________________________________

           Argued December 4, 2017 – Decided February 21, 2018

           Before Judges Ostrer and Whipple.

           On appeal from the Board of Public Utilities,
           Docket No. GS16020164K.

           David Herzog, appellant, argued the cause pro
           se and on behalf of appellant Star Developers,
           LLC.

           Renee Greenberg, Deputy Attorney General,
           argued the cause for respondent New Jersey
           Board of Public Utilities (Christopher S.
           Porrino, Attorney General, attorney; Andrea M.
           Silkowitz, Assistant Attorney General, of
           counsel; Renee Greenberg, on the brief).

PER CURIAM

     Star Developers, LLC, and David Herzog, appeal from the final

order of the Board of Public Utilities, imposing a $6000 penalty

for violating the Underground Facility Protection Act (the Act),


N.J.S.A.   48:2-73    to   -91.     See   
N.J.S.A.    48:2-88    (authorizing
penalties for a violation).      Specifically, the Board found that

Star1 engaged in excavation before it was authorized. See 
N.J.S.A.

48:2-82(a) (stating that an excavator must notify One-Call Damage

Prevention System "not less than three business days" before

beginning work).      The excavation activity damaged a service line

of a natural gas utility.

     The Board entered its order by default, because Star failed

to respond to the Board's Notice of Probable Violation.                 See

N.J.A.C.   14:2-6.4    (describing   notice    of   probable   violation);

N.J.A.C. 14:2-6.6 (authorizing final order of penalty assessment

by default where alleged violator fails to submit timely answering

certification).    The Board found that its staff served the notice

by regular and certified mail, see N.J.A.C. 14:2-6.4(a) (requiring

service pursuant to N.J.A.C. 1:1-7); N.J.A.C. 1:1-7.1 (stating

that service shall be made by, among other methods, certified

mail, return receipt requested, or by ordinary mail).           The Board

found the certified mail was "unclaimed," and the regular mail was

not returned.

     On appeal, Star contends that it should not be penalized

because    a   third-party   contractor   it    hired   had    prematurely



1
  Unless otherwise indicated, we use "Star" to refer collectively
to David Herzog and the LLC.


                                     2                             A-5449-15T1
performed the excavation without its permission. At oral argument,

David Herzog, who appeared pro se for himself and his company,2

asserted for the first time that he never received the Notice of

Probable Violation.        We reject these arguments.

     We dispatch Star's claim it was not served.                    Service is

complete upon mailing.          N.J.A.C. 1:1-7.1(c).         There is also a

rebuttable presumption that mail properly addressed, stamped, and

posted   is    received.       SSI   Med.    Servs.   v.   HHS,   Div.   of   Med.

Assistance and Health Servs., 
146 N.J. 614, 621, 625 (1996).

     We acknowledge that the record lacks proof of the Board's

service.       The Board has included in the record a copy of an

envelope addressed by hand to Star with an "unclaimed" U.S. Postal

Service stamp; and a print-out from the Postal Service reflecting

that the piece of mail was certified and unclaimed.                      Yet, the

Board    did   not   provide    a    certification    from   an   employee     who

authenticated the document.          The Board also did not establish that

the certified mail was accompanied by a return receipt request,

nor did it prove there was an ordinary mailing, which was not

returned.



2
  Star should have retained an attorney. See R. 1:21-1(c). David
Herzog asserted in response to a clerk's office inquiry that Star
was a sole proprietorship. Perhaps, he meant that it was a single-
member LLC; but that would not relieve it of the obligation to
retain counsel.

                                         3                                A-5449-15T1
     However, "proof of service shall not be necessary unless a

question of notice arises." N.J.A.C. 1:1-7.2(b). Star was obliged

to raise the issue of lack of service before the agency.        See

Nieder v. Royal Indem. Ins. Co., 
62 N.J. 229, 234 (1973) (stating

generally "appellate courts will decline to consider questions or

issues not properly presented to the trial court" absent questions

of jurisdiction or a substantial public interest); ZRB, LLC v.

N.J. Dep't of Envir. Prot., 
403 N.J. Super. 531, 536 n.1 (App.

Div. 2008) (applying Nieder to appeals from administrative agency

orders).   Certainly, Star should have raised the service argument

before oral argument, to enable the Board an opportunity to meet

it fairly.   See Selective Ins. Co. of Am. v. Rothman, 
208 N.J.
 580, 586 (2012) (stating that referring to a question for the

first time in appellate argument is not "sufficient to require the

Appellate Division to address it").3

     Furthermore, there is sufficient record evidence to support

the Board's decision on the merits.     In re Petition of Jersey

Central Power & Light Co., 
85 N.J. 520, 527 (1981) (stating that

"the Board's rulings are entitled to presumptive validity and will


3
 We acknowledge that Star contended in its brief that David Herzog
was "shocked" to receive the Final Order of Penalty Assessment.
We note it was mailed well over a year after Star's default.
However, Star does not expressly deny receiving the Notice of
Probable Violation, let alone provide a supporting certification
to that effect.

                                 4                         A-5449-15T1
not be disturbed unless [an appellate court] find[s] a lack of

'reasonable support in the evidence'" (quoting In re New Jersey

Power & Light Co., 
9 N.J. 498, 509 (1952)).    Star does not dispute

that Rachel Herzog, on its behalf, called the One-Call office and

requested a so-called "ticket" to permit Star's excavation at the

address in question.   The operator provided her a new ticket and

made clear that excavation could begin the following week.     As is

evident from the recording of the call, which is before us, Rachel

Herzog made no mention of a third-party contractor.

     After the excavator struck the utility service line, the

Board staff wrote to Star, requesting information.     David Herzog

responded in a letter that he was on vacation out-of-state when

"the workers started to work without my consent.      We don't know

why somebody went ahead" before they were permitted to begin work.

He did not contend that the workers were employees of a contractor

other than Star.   Notably, on appeal, Star – without leave to

expand the record – has supplied an invoice from the third-party

contractor it contends was responsible.       Yet, the invoice only

itemizes work that was performed after the date permitted by the

One-Call ticket.

     Finally, in asserting that it hired someone else to excavate,

who then struck the service line, Star essentially admits that it

falsely represented to the One-Call operator that it would perform

                                5                            A-5449-15T1
the excavation.   Having done so, it was not unreasonable for the

Board to hold it responsible for violating the Act by commencing

activity prematurely.

    Affirmed.




                                6                         A-5449-15T1