COUNTY OF CUMBERLAND VS. ATLANTIC CITY ELECTRIC COMPANY(C-70-15, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 28, 2017
• Docket: A-4553-15T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4553-15T4

COUNTY OF CUMBERLAND,

Plaintiff-Respondent,

v.

ATLANTIC CITY ELECTRIC COMPANY, PEPCO HOLDINGS, INC. d/b/a ATLANTIC ELECTRIC, INC.,

Defendants/Third-Party Plaintiffs-Appellants,

DUALL BUILDING RESTORATION, INC.,

Third-Party Defendant- Respondent. ___________________________________

Submitted June 6, 2017 – Decided June 28, 2017

Before Judges Yannotti and Sapp-Peterson.

On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. C-70-15.

Wendy Stark, General Counsel of Pepco Holdings, Inc., attorney for appellants (Renee E. Suglia, Assistant General Counsel, on the brief). Theodore E. Baker, Cumberland County Counsel, attorney for respondent County of Cumberland (Mr. Baker, on the brief).

Del Duca Lewis, LLC, attorneys for respondent Duall Building Restoration, Inc. (Joshua L. Broderson, on the brief).

Gluck Walrath, LLP, attorneys for amicus curiae County of Monmouth (Andrew Bayer, of counsel and on the brief; David A. Clark and Michael C. Bachmann, on the brief).

Chasan Leyner & Lamparello, attorneys for amicus curiae County of Hudson, join in the brief of amicus curiae County of Monmouth.

PER CURIAM

Atlantic City Electric Company (ACE) and Pepco Holdings, Inc.

(Pepco) appeal from an order entered by the Chancery Division,

Atlantic County, on May 10, 2016, which determined that ACE was

responsible for the cost of relocating high-voltage power lines

and a guy-wire in connection with construction work on the façade

of the Cumberland County (County) courthouse.1 We reverse and

remand the matter to the trial court for further proceedings.

The material facts are not in dispute. ACE is a public

utility, organized and existing under New Jersey law. ACE owns and

maintains high-voltage power lines on County Road 650, also known

as Fayette Street, in the City of Bridgeton, Cumberland County.

1 Pepco is the owner of ACE. Except as otherwise indicated, ACE refers to ACE and Pepco, collectively.

2 A-4553-15T4 In 2015, the County entered into a contract with Duall Building

Restoration, Inc. to perform construction work on the façade of

the courthouse facing Fayette Street. Before beginning the work,

the County and Duall contacted ACE and requested that ACE de-

energize or move the high-voltage power lines located on Fayette

Street adjacent to the worksite.

The parties agree that a regulation of the Occupational Safety

and Health Administration (OSHA), 29 C.F.R. 1926.416, and the New

Jersey High Voltage Proximity Act (NJHVPA), N.J.S.A. 34:6-47.1 to

-47.9, preclude contractors from allowing their workers to perform

work within certain distances of high-voltage power lines. ACE

agreed to de-energize and move the lines or just de-energize the

lines, provided the County agreed to pay the cost of doing so.

On September 3, 2015, the County filed a complaint in the Law

Division, Cumberland County, against ACE. The County sought an

order requiring ACE to relocate the power lines on Fayette Street

at its own cost and expense. It also sought an injunction barring

ACE from demanding payment from the County before beginning work

to relocate the power lines.

On September 4, 2015, the Law Division judge entered an order

compelling ACE to show cause as to why it should not be required

to move the power lines at its own expense and cost. On September

15, 2015, the judge ordered ACE to relocate the power lines along

3 A-4553-15T4 Fayette Street so that the County could begin work on the

courthouse façade. The order also required the County to make

funds available for the estimated cost of relocating the power

lines in the event that the court finds that the County is

responsible to pay that cost. Jurisdiction over the matter was

then transferred to the Chancery Division, Atlantic County.

On November 17, 2015, ACE filed an answer, counterclaim, and

third-party claim against "John Doe" contractors. ACE asserted

that it de-energized and relocated the power lines on September

24, 2015, at a cost of $31,688.88. Later, ACE moved another guy-

wire from the vicinity in which the construction work was being

performed, at a cost of $6171.88. ACE denied that it was

responsible for these costs. ACE claimed that either the County

or the "John Doe" contractors were responsible.

Thereafter, ACE amended its third-party claim to name Duall

as a third-party defendant. Duall filed an answer to the third-

party complaint, denying liability. It also asserted a cross-claim

against the County. Duall claimed that if found to be liable, it

was entitled to indemnification by the County.

On April 29, 2016, the Chancery Division judge heard oral

argument on the issue of which party is responsible for the cost

of relocating the power lines. ACE argued that the County and

Duall are responsible for the cost of moving the power lines.

4 A-4553-15T4 ACE's counsel noted that the County had provided ACE an easement,

which allowed ACE to provide electric service to the courthouse,

which is in close proximity to the street. ACE has utility poles

for its power lines in a narrow, grassy strip within the adjacent

public right-of-way. ACE acknowledged that the power lines are

within the easement area and the public right-of-way. The power

lines provide electricity not just to the courthouse, but also to

ACE's other customers in the area.

ACE further argued that the County and Duall are responsible

for the expense of removing the guy-wire that ACE installed to

keep the utility poles from falling over when it moved the power

lines. ACE asserted that initially, ACE and the County had agreed

upon the work that was required to relocate the power lines, and

ACE performed that work.

Several days later, the County called ACE back to remove the

guy-wire because the wire was impeding the movement of machinery

and equipment around the work site. ACE argued that the County and

Duall are responsible for this additional cost because they failed

to identify the need to remove the guy-wire before ACE moved the

power lines.

The judge placed his decision on the record. He concluded

that ACE was responsible for the cost of moving the high-voltage

power lines and the guy-wire. The judge found that under the common

5 A-4553-15T4 law, a public utility is responsible for the cost of relocating

its facilities in order to accommodate a public project. The judge

noted that under the NJHVPA, workers may not perform construction

work within six feet of a high-voltage power line.

The judge concluded, however, that when the public welfare

requires relocation of power lines, the common law relieves the

property owners of financial responsibility for the relocation.

The judge stated that this result was "a quid pro quo" for the

public utility's use of the public right-of-way.

The judge entered an order dated May 10, 2016, which stated

that ACE is responsible for the cost of relocating the high-voltage

power lines and any related costs. The order also dismissed ACE's

third-party claim against Duall.

ACE's appeal followed. We thereafter granted the County of

Monmouth and the County of Hudson leave to participate in the

appeal as amici curiae.

On appeal, ACE argues that the NJHVPA applies in this matter

and requires Duall, the County's contractor, to bear the expense

of relocating the power lines and guy-wire. The NJHVPA provides

in pertinent part that

[n]o employer or supervising agent of an employer shall require or permit an employee to participate in the operation, erection, transportation, handling, or storage of any tools, machinery, equipment, supplies,

6 A-4553-15T4 materials, or apparatus . . . to come within [six] feet of a high-voltage line[,] or to participate in any activity which would cause the employee to come within [six] feet of a high-voltage line[,] unless precautionary action has been taken to protect against the danger from contact with such high-voltage line, either by de-energizing such high- voltage line and grounding it where necessary, or other effective methods or devices which have been approved in advance . . . .

[N.J.S.A. 34:6-47.2.]

In addition, N.J.S.A. 34:6-47.5 states that the employer,

contractor, or other responsible person who is required to take

"precautionary action" under N.J.S.A. 34:6-47.2, must promptly

notify "the owner or person in charge of the high-voltage line of

the intended activity." The statute also states that the employer,

contractor, or other responsible person must pay the cost of "the

precautionary action required . . . before proceeding with such

activity." N.J.S.A. 34:6-47.5.

Here, it is undisputed that the façade of the County's

courthouse is in close proximity to ACE's high-voltage power lines.

Under N.J.S.A. 34:6-47.2, Duall could not permit its employees to

perform any activity that would cause them to come within six feet

of the power lines unless "precautionary action" is taken to

protect the workers from coming within contact with the lines. The

parties agree that the lines had to be de-energized and then moved

7 A-4553-15T4 to protect the workers and to provide uninterrupted power to the

courthouse and ACE's other customers in the area.

Furthermore, N.J.S.A. 34:6-47.5 expressly provides that the

employer, contractor, or other persons required to take

"precautionary action" must bear the cost of such "precautionary

action." In this matter, Duall was the party responsible for taking

the "precautionary action," and N.J.S.A. 34:6-47.5 clearly and

unambiguously requires that it bear the expense of doing so.

The trial court found, however, that ACE had a duty under the

common law to relocate the high-voltage power lines in the public

right-of-way because the relocation of those lines was necessary

so that work could proceed on the courthouse project. In support

of that conclusion, the trial court relied upon Port of New York

Authority v. Hackensack Water Co., 41 N.J. 90 (1963), and Pine

Belt Chevrolet v. Jersey Central Power & Light Co., 132 N.J. 564

(1993). Those cases do not apply here.

In Port of New York Authority, the Court addressed the

question of whether a public utility is responsible for the cost

of relocating its facilities in the public right-of-way in order

to accommodate a public project. In that case, the Port Authority

undertook improvements to certain of its properties, and the work

required relocation of facilities of utility companies that were

8 A-4553-15T4 located in the public streets. Port of N.Y. Auth., supra, 41 N.J.

at 93.

The Court held that the utilities are responsible for the

relocation costs because the utilities have been permitted to

locate their facilities in the public right-of-way "as a use

ancillary to the principal and primary use of the way by the

public." Id. at 96. The Court stated that a utility's interest in

the public way is subordinate to that of the public; therefore

"the utility runs the risk that the public welfare may require

changes in the road which will call for relocation of its

facilities." Id. at 96-97.

The Court added that it was not significant that, in addition

to its franchise rights, the utility may have the consent of the

owner of the "underlying fee" to use of the property. Id. at 99.

The Court stated that "when the public claims its paramount right

in the public easement, the utility cannot resist that right on

the basis of the subordinate grant from the abutting owner." Ibid.

The Court addressed a similar issue in Pine Belt Chevrolet.

There, certain property owners sought permits from the New Jersey

Department of Transportation (NJDOT) for access to a State highway.

Pine Belt Chevrolet, supra, 132 N.J. at 567. As a condition of

issuing the permits, the NJDOT required that the curb lines

9 A-4553-15T4 abutting the highway be set back. Ibid. The utility poles had to

be relocated behind the new curb line. Ibid.

The property owners maintained that the utility was

responsible for the cost of relocating the utility poles. Ibid.

The utility argued, however, that the NJDOT was responsible for

the costs, under N.J.S.A. 27:7-44.9. Id. at 568. The statute

requires the Commissioner of Transportation to include the cost

of relocating public utility facilities in the cost of any "highway

project," a term defined as projects "administered and contracted

for by the Commissioner." Ibid. (quoting N.J.S.A. 27:7-44.9).

The Court noted that before enactment of the statute, "the

common law assigned utility-relocation costs to the utility

company when the project necessitating the relocation benefitted

the public." Id. at 572. The Court observed that the statute was

intended to shift the costs of such utility relocations "away from

the utility company." Id. at 573-74. The Court held that the

subject costs were not covered by the statute because costs were

paid by the property owners and the statute only applies when the

NJDOT "pays for all or part . . . of the underlying highway

project." Id. at 582.

We agree with ACE that the common law principle discussed in

Port of New York Authority and Pine Belt Chevrolet is limited to

road-widening projects. Both cases dealt with the need to move

10 A-4553-15T4 utility facilities, which were located within the public right-

of-way, in order to accommodate road-widening and other

construction projects in the public streets. Neither Port of New

York Authority nor Pine Belt Chevrolet dealt with the need to move

high-voltage power lines in order to protect workers from coming

in contact with them. Moreover, the opinions in Port of New York

Authority and Pine Belt Chevrolet do not suggest that a utility

has the duty to move its power lines in order to facilitate work

on any public building.

The County argues that the NJHVPA does not apply in this

case. The County asserts that the key issue presented here is

whether ACE's facilities are in the public right-of-way and whether

or not there is a public project for a public benefit that requires

relocation of the facilities. The County contends that the need

to provide safety for the contractor's employees is merely a

"collateral benefit" resulting from the removal of the power lines.

We disagree with the County's argument. Here, the record

shows that ACE's high-voltage power lines had to be moved in order

to protect the workers from coming into contact with the lines

while they are working on the façade of the courthouse. The lines

are within the public right-of-way, but there was no work on the

roadway that required relocation of the lines.

11 A-4553-15T4 Moreover, the need to protect the workers on the courthouse

project was not a "collateral benefit." It was the reason the

high-voltage power lines had to be moved. Furthermore, the need

to move the guy-wire was directly related to the relocation of the

power lines. The guy-wire had been installed to keep the utility

poles in place when the power lines were relocated, but the line

had to be taken down because it was impeding access to the work

site by forklifts and other machinery.

The County further argues that if the cost of moving the

power lines and the guy-wire is placed on its contractor, Duall

and other contractors will pass these costs to the County and its

taxpayers through change orders or higher bid prices. The Counties

of Monmouth and Hudson also raise this concern. They argue that

the taxpayers should not be required to bear the cost of relocating

power lines for public interest projects.

We are, however, required to interpret a statute in accordance

with the Legislature's intent, and "generally, the best indicator

of that intent is the statutory language." DiProspero v. Penn, 183

N.J. 477, 492 (2005) (citing Frugis v. Bracigliano, 177 N.J. 250,

280 (2003)). We must give "the statutory words their ordinary

meaning and significance." Ibid. (citing Lane v. Holderman, 23

N.J. 304, 313 (1957)).

12 A-4553-15T4 As we have explained, NJHVPA expressly requires a contractor

to take "precautionary action" to protect its workers from coming

into contact with high-voltage power lines, and the contractor has

the responsibility to bear the cost and expense of such action.

The NJHVPA provides no exemption when the work is being performed

upon a public building, nor does it relieve the contractor of the

responsibility to pay for the "precautionary action" required if

the high-voltage power lines are within the public right-of-way.

We cannot "rewrite a plainly-written" statute or presume that

"the Legislature intended something other than that expressed by

way of the plain language." Ibid. (quoting O'Connell v. State, 171

N.J. 484, 488 (2002)). We must "construe and apply the statute as

enacted." Ibid. (quoting In re Closing of Jamesburg High School,

83 N.J. 540, 548 (1980)). We therefore conclude that the NJHVPA

applies in this instance and requires the County's contractor,

Duall, to bear the cost and expense to de-energize and move the

power lines and to remove the guy-wire.

As we noted previously, Duall filed a cross-claim against the

County, alleging that if it is found liable, the County should

indemnify it for the costs involved. Because the trial court found

that ACE was responsible for the costs, it did not address this

issue. We therefore remand the matter to the trial court to resolve

Duall's claim against the County.

13 A-4553-15T4 Reversed and remanded to the trial court for further

proceedings in conformity with this opinion. We do not retain

jurisdiction.

14 A-4553-15T4