JCP&L wins ruling in Rockaway case against another utility

TRENTON – The state Supreme Court ruled Thursday that a statute that prevented a jury trial from taking place in a utilities’ dispute is flawed constitutionally.

The court overturned a lower court ruling that had prevented Jersey Central Power & Light from pursuing at trial damages it said were owed it by Melcar Utility Co.

The damages were in connection with underground work Melcar did in 2007 in Rockaway.  While Melcar was performing excavations and laying cables for Verizon, lines belonging to JCP&L were damaged.

Before a trial was to start, Melcar won a motion for dismissal on the grounds that the law compelled parties to submit their claims to the Office of Dispute Settlement if the money involved was less than $25,000.

JCP&L appealed, arguing that if that statute made turning to ODS mandatory then the statute was unconstitutional.

The court in its decision Thursday said that “N.J.S.A. 48:2-80(d), on its face, provides no right to a trial by jury.  It is unusual in that it is binding on litigants who are effectively suing in negligence under a statutory standard of care for a claim rooted in common-law negligence causing damage to property.  The Court has no recourse except to declare the statute as written to be constitutionally flawed.”

The court remanded the case for further proceedings. The decision was unanimous by justices Rabner, LaVecchia, Albin, Hoens and Patterson.

Recognizing the potential hazards posed by underground facilities, the Legislature had enacted the UFPA, the Underground Facility Protection Act.  The statute created a so-called “One-Call Damage Prevention System,” which was designed to serve as a central repository for the receipt of notices of intent to excavate, from which the notices are forwarded to the appropriate utility.

Of particular significance, the statute imposes liability on the excavator for any negligent damage to an operator’s underground facility.  But the court has now declared that statute unconstitutional.

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