NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3569-23
JOSEPH M. KEHOE,
Plaintiff-Appellant,
v.
PSE&G,
Defendant-Respondent. _________________________
Submitted February 24, 2026 – Decided August 3, 2026
Before Judges DeAlmeida and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. DC-012506- 23.
Joseph M. Kehoe, self-represented appellant.
PSEG Services Corporation, attorneys for respondent (Anthony J. Corino, of counsel and on the brief).
Plaintiff Joseph M. Kehoe appeals from three Law Division orders: (1)
the April 1, 2024 order dismissing his amended complaint against defendant Public Service Electric and Gas Company, improperly pled as PSE&G, pursuant
to Rule 4:6-2(e), without prejudice for failure to state a claim upon which relief
can be granted, and dismissing as moot his motion for reconsideration of a prior
order, and his motion to hold defendant in contempt; (2) the May 31, 2024 order
denying his motion for reconsideration of the April 1, 2024 order; and (3) the
May 31, 2024 order dismissing his amended complaint pursuant to Rule 4:6-
2(e), with prejudice for failure to state a claim upon which relief can be granted.
We affirm the orders, except for the provision in the May 31, 2024 order
dismissing the amended complaint with prejudice. We remand for entry of an
order dismissing the amended complaint without prejudice to refiling after
plaintiff exhausts his administrative remedies before the Board of Public
Utilities (BPU).
I.
Plaintiff owned residential property in New Brunswick. Defendant was a
public utility that provided gas service to the property.
On June 20, 2023, defendant shut off gas service to plaintiff's property to
install a new meter on the exterior of the residence. Defendant did not restore
gas service after installation of the new equipment.
A-3569-23 2 On July 25, 2023, plaintiff noticed gas service at the property was
disconnected. He contacted defendant to request gas service be restored.
On July 26, 2023, and October 19, 2023, defendant's technicians
attempted to restore gas service to plaintiff's property. On each occasion,
plaintiff refused to permit the technicians to enter his residence. He believed
entry into the residence was unnecessary because the gas meter was on the
exterior of the home. According to defendant, for safety reasons, its technicians
could not restore gas service without access to the residence because they must
ensure appliances are safely reconnected to the gas supply, relight pilot lights,
and perform a dial test.
In addition, according to defendant, while its technicians were at
plaintiff's property, they noticed old gas piping on the front porch of the
residence. The piping raised suspicion plaintiff had undertaken renovations and
replaced gas piping in the home. According to defendant, before gas service
could be restored it was necessary for its technicians to enter the home to
determine if renovations had taken place and, if so, whether the new gas piping
required testing by a licensed plumber and inspection by the municipal building
inspector. Because plaintiff refused to permit the technicians to enter the
property, gas service was not restored.
A-3569-23 3 On November 15, 2023, plaintiff filed a complaint and order to show cause
in the Special Civil Part. He alleged: (1) defendant had a duty, pursuant to
N.J.A.C. 14:3-3.1(a), to provide him with gas service; (2) access to the interior
of his home by defendant's technicians was not required to restore gas service
to the property; and (3) defendant willfully and maliciously refused to provide
plaintiff gas service. Plaintiff sought $20,000 in compensatory and punitive
damages, as well as injunctive relief requiring defendant to restore gas service
to his property.
On December 15, 2023, the court issued an order to show cause granting
preliminary injunctive relief directing defendant to "[r]estore [p]laintiff's gas
service forthwith" and setting the matter for a hearing on December 21, 2023.
On December 21, 2023, the court held a hearing with only plaintiff in
attendance. The court stated its attempts to serve the complaint and order to
show cause on defendant were unsuccessful. After an exchange with plaintiff,
the court entered an order providing: "PSE&G is ORDERED forthwith to
restore [p]laintiff['s] . . . gas service . . . ."
Also on December 21, 2023, without knowledge of the court's orders,
defendant's technicians again attempted to restore gas service to plaintiff's
A-3569-23 4 property. Plaintiff again refused to permit the technicians to enter the residence.
As a result, gas service was not restored to the property.
On January 14, 2024, plaintiff filed an amended complaint in the Law
Division. In addition to describing the three failed attempts to restore gas
service at the property, plaintiff alleged defendant charged him a monthly fee
for gas service, despite gas service having not been restored for more than six
months. Plaintiff alleged: (1) breach of statutory duty; (2) negligent
misrepresentation; (3) fraudulent misrepresentation; (4) breach of contract; (5)
"intentional breach of contract[;]" (6) "continuing intentional breach of
contract[;]" (7) fraud; (8) negligent infliction of emotional distress; and (9)
intentional infliction of emotional distress. In addition to injunctive relief,
plaintiff sought $50,000 in compensatory damages and $250,000 in punitive
damages.
On January 16, 2024, plaintiff filed a motion to enforce litigant's rights
seeking to enforce the December 21, 2023 order. Defendant opposed the motion
and cross-moved to vacate the December 21, 2023 order.
On February 14, 2024, defendant moved, pursuant to Rule 4:6-2(e), to
dismiss the amended complaint for failure to state a claim upon which relief can
be granted. Plaintiff opposed the motion.
A-3569-23 5 On March 8, 2024, the court issued a written decision granting in part
plaintiff's motion to enforce litigant's rights. The court found the defendant's
tariff with the BPU contains numerous terms and conditions detailing
defendant's authority to ensure gas service is supplied in a safe manner. The
court noted Section 10 of the tariff provides defendant:
shall have the right of reasonable and safe access to customer's premises, and to all property furnished by [defendant], at all reasonable times for the purposes of inspection of customer's premises incident to the rendering of service, reading meters or inspecting, testing, or repairing its facilities used in connection with supplying the service, or for the removal of its property.
The court also examined three BPU regulations. First, the court
considered N.J.A.C. 14:3-3A.1(a)(1), which provides, "The utility shall have the
right to suspend or curtail or discontinue service . . . [f]or the purpose of making
permanent or temporary repairs, changes or improvements in any part of its
system." Second, the court reviewed N.J.A.C. 14:3-3A.1(a)(5)(i), which
authorizes defendant "to suspend or curtail or discontinue service . . . [f]or . . .
acts or omissions on the part of the customer[,]" including " [r]efusal of
reasonable access to the customer's premises in accordance with N.J.A.C. 14:3-
3.6." Third, the court considered N.J.A.C. 14:3-3.6(a), which provides:
A-3569-23 6 The utility or its designated contractor shall have the right of reasonable access to the customer's premises, and to all property on the customer's premises, which is furnished by the utility, at all reasonable times for the purpose of inspection of customer's premises incident to the rendering of service including reading meters; [or] inspecting, testing, [and] repairing, . . . of its facilities used in connection with supplying the service ....
The court concluded plaintiff was entitled to restoration of gas service and
defendant was authorized to enter plaintiff's residence to ensure gas service was
restored safely. The court issued a March 8, 2024 order directing defendant: (1)
shall contact plaintiff to arrange for a date and time to restore plaintiff's gas
service at plaintiff's property; and (2) "shall be permitted to access only the areas
of the premises, exterior or interior, that are necessary to safely restore service
and only for the time necessary to do so."
On a date not specified in the record, plaintiff moved to: (1) "enter
judgment," which the court treated as a motion to hold defendant in contempt
for evading service of the December 21, 2023 order; and (2) exclude from the
record part of the certification defendant submitted in support of its motion to
vacate the December 21, 2023 order, which the court treated as a motion for
reconsideration of the March 8, 2024 order.
A-3569-23 7 On April 1, 2024, the court issued a written decision dismissing the
amended complaint pursuant to Rule 4:6-2(e) without prejudice to plaintiff
filing a petition with the BPU to interpret defendant's tariff and the agency's
regulations. The court concluded under N.J.S.A. 48:2-13(d), the BPU has
primary jurisdiction over "all services necessary for the transmission and
distribution of . . . gas, including but not limited to safety, reliability , [and]
metering . . . ." The court determined plaintiff's tort and breach of contract
claims, as well as his primary argument with respect to whether defendant is
authorized to enter his residence to restore gas service, are "based on the safe
restoration of gas and the corresponding issues, which fall squarely within" the
BPU's primary jurisdiction. In addition, the court found plaintiff failed to
exhaust available administrative remedies prior to seeking judicial relief by not
seeking a determination from the BPU with respect to defendant's right of access
to his home. The court rejected plaintiff's argument exhaustion of administrative
remedies would be futile because he sought monetary damages, had suffered
irreparable injury, and stated claims requiring interpretation of statutes.
The court also determined defendant's motion to vacate the December 21,
2023 order, plaintiff's motion to hold defendant in contempt, and plaintiff's
motion to exclude a portion of defendant's certification were moot, given its
A-3569-23 8 decision to dismiss the amended complaint to permit plaintiff to pursue
administrative relief before the BPU. An April 1, 2024 order memorialized the
court's decision dismissing the amended complaint without prejudice.
On May 16, 2024, plaintiff moved for reconsideration of the April 1, 2024
order. He argued he exhausted his administrative remedies by attempting to file
a petition with the BPU on January 29, 2024, and February 23, 2024. He claimed
the agency rejected his petitions. In support of his motion, plaintiff submitted
what appeared to be a printout from the website of the customer assistance
division of the BPU, which contained hearsay statements of BPU employees
about an informal complaint the agency received from plaintiff. Defendant
cross-moved to dismiss the amended complaint with prejudice, arguing an
absence of jurisdiction in the Law Division warrants that relief.
On May 31, 2024, the court issued a written decision denying plaintiff's
motion. The court found the documents submitted by plaintiff were insufficient
to establish he exhausted administrative remedies before the BPU. In addition,
the court summarily concluded dismissal of the amended complaint with
prejudice was warranted.
A-3569-23 9 On May 31, 2024, the court entered an order denying plaintiff's motion
for reconsideration of the April 1, 2024 order 1 and a separate order granting
defendant's motion to dismiss the amended complaint with prejudice. This
appeal followed.
Plaintiff argues the motion court erroneously dismissed his amended
complaint with prejudice because: (1) he exhausted his administrative remedies
at the BPU prior to dismissal of the amended complaint; (2) his claims for
monetary damages are outside the jurisdiction of the BPU; (3) the amended
complaint raised questions of law and statutory interpretation outside the
agency's expertise; (4) further attempts at exhausting administrative remedies
would be futile; (5) he suffered irreparable harm; and (6) in the alternative, the
court should have dismissed his claims without prejudice.2
1 The order indicates plaintiff moved for reconsideration, but states "[d]efendant's motion is hereby DENIED . . . ." This appears to be a typographical error. 2 Plaintiff also argues the court made a procedural error in not docketing his amended complaint. This argument is based on a deficiency notice plaintiff received from the court advising him to file a motion for leave to amend his complaint. Plaintiff notes defendant addressed the amended complaint in its motion to dismiss and states he raised the argument "only should it be relevant in [d]efendant's answer." Defendant did not raise the issue in its brief, and the record establishes the motion court considered the amended complaint before granting the motion to dismiss. We, therefore, need not address plaintiff's argument. A-3569-23 10 II.
We apply a de novo standard of review to a trial court's order dismissing
claims under Rule 4:6-2(e). See Stop & Shop Supermarket Co. v. Cnty. of
Bergen, 450 N.J. Super. 286, 290 (App. Div. 2017) (quoting Teamsters Loc. 97
v. State, 434 N.J. Super. 393, 413 (App. Div. 2014)). Under the rule, we owe
no deference to the motion judge's conclusions. Rezem Fam. Assocs. v.
Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011).
Our "inquiry is limited to examining the legal sufficiency of the facts
alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Elecs.
Corp., 116 N.J. 739, 746 (1989) (citing Rieder v. Dep't of Transp., 221 N.J.
Super. 547, 552 (App. Div. 1987)). However, "[t]he complaint must be searched
thoroughly 'and with liberality to ascertain whether the fundament of a cause of
action may be gleaned even from an obscure statement of claim, opportunity
being given to amend if necessary.'" Baskin v. P.C. Richard & Son, LLC, 246
N.J. 157, 171 (2021) (quoting Printing Mart, 116 N.J. at 746). "A pleading
should be dismissed if it states no basis for relief and discovery would not
provide one." Rezem Fam. Assocs., 423 N.J. Super. at 113 (citing Camden Cnty.
Energy Recovery Assoc. v. N.J. Dep't of Env't Prot., 320 N.J. Super. 59, 64
(App. Div. 1999), aff'd, 170 N.J. 246 (2001)).
A-3569-23 11 "The Superior Court shall have original general jurisdiction throughout
the State in all causes." N.J. Const. art. VI, § 3, ¶ 2. At the same time, "[e]ach
administrative agency is vested with authority to adjudicate legal rights and
duties of specific parties arising under the rules and regulations promulgated by
the agency." D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1,
16 (App. Div. 2008).
When a party raises a claim in the Law Division predicated entirely or in
part on an issue within an administrative agency's statutory authority, the court
may decline to exercise its jurisdiction on two grounds: (1) failure to exhaust
administrative remedies; or (2) the doctrine of primary jurisdiction.
When the claim itself falls within the agency's exclusive jurisdiction, it is subject to dismissal because of the failure to exhaust administrative remedies. But, when a court has jurisdiction over the claim and a pivotal aspect presents a question falling within an agency's expertise, a court will retain jurisdiction, stay the action, and allow for the agency's determination of that aspect.
[Est. of Burns v. Care One at Stanwick, LLC, 468 N.J. Super. 306, 322-23 (App. Div. 2021).]
"The obligation to exhaust 'administrative remedies before resort to the
courts is a firmly embedded judicial principle.'" Ortiz v. N.J. Dep't of Corr., 406
N.J. Super. 63, 69 (App. Div. 2009) (quoting Garrow v. Elizabeth Gen. Hosp. &
A-3569-23 12 Dispensary, 79 N.J. 549, 559 (1979)). The exhaustion doctrine "is a rule of
practice designed to allow administrative bodies to perform their statutory
functions in an orderly manner without preliminary interference from the
courts." Brunetti v. Borough of New Milford, 68 N.J. 576, 588 (1975). As the
Supreme Court explained:
We have recently noted that the doctrine of exhaustion of administrative remedies serves three primary goals: (1) the rule ensures that claims will be heard, as a preliminary matter, by a body possessing expertise in the area; (2) administrative exhaustion allows the parties to create a factual record necessary for meaningful appellate review; and (3) the agency decision may satisfy the parties and thus obviate resort to the courts.
[City of Atl. City v. Laezza, 80 N.J. 255, 265 (1979).]
On the other hand, "[t]he doctrine of primary jurisdiction is applicable
when a case is properly filed in the Superior Court but the court declines original
jurisdiction, referring specific issues to the appropriate administrative body."
Est. of Kotsovska v. Liebman, 221 N.J. 568, 588 (2015) (quoting Magic
Petroleum Corp. v. Exxon Mobil Corp., 218 N.J. 390, 405 (2014)). "Thus, 'when
enforcement of a claim requires resolution of an issue within the special
competence of an administrative agency, a court may defer to a decision of that
agency.'" Ibid. (quoting Campione v. Adamar, Inc., 155 N.J. 245, 263-64
A-3569-23 13 (1998)). A court may "defer to the jurisdiction of an administrative agency . . .
for 'the resolution of threshold issues, usually of a factual nature, which are
placed within the special competence of the administrative body.'" Unalachtigo
Band of the Nanticoke-Lenni Lenape Nation v. State, 375 N.J. Super 330, 345
(App. Div. 2005) (quoting Golden Hill Paugussett Tribe of Indians v. Weicker,
39 F.3d 51, 58-59 (2d Cir. 1994)).
Judicial deferral to an administrative agency serves two purposes: (1) "to
allow an agency to apply its expertise to questions which require interpretation
of its regulations[;]" and (2) "to preserve uniformity in the interpretation and
application of an agency's regulations." Borough of Haledon v. Borough of N.
Haledon, 358 N.J. Super. 289, 302 (App. Div. 2003). A court should defer to
an agency's primary jurisdiction if "'to deny the agency's power to resolve the
issues in question' would be inconsistent with the 'statutory scheme' which
vested the agency 'with the authority to regulate [the] industry or activity' it
oversees." Muise v. GPU, Inc., 332 N.J. Super. 140, 160 (App. Div. 2000)
(alteration in original) (quoting United States ex rel. Haskins v. Omega Inst.,
Inc., 11 F. Supp. 2d 555, 561 (D.N.J. 1998)).
"Although no formula exists to evaluate the applicability of primary
jurisdiction, . . . our courts have been guided by a four-part test . . . ." Kotsovska,
A-3569-23 14 221 N.J. at 588 (quoting Magic Petroleum, 218 N.J. at 407). The factors to be
considered are:
1) whether the matter at issue is within the conventional experience of judges; 2) whether the matter is peculiarly within the agency's discretion, or requires agency expertise; 3) whether inconsistent rulings might pose a danger of disrupting the statutory scheme; and 4) whether prior application has been made to the agency.
[Ibid. (quoting Magic Petroleum, 218 N.J. at 407).]
A court's dismissal of a claim for failure to exhaust administrative
remedies will be affirmed absent an abuse of discretion. Indep. Realty Co. v.
Twp. of N. Bergen, 376 N.J. Super. 295, 303 (App. Div. 2005). We also review
a court's application of the primary jurisdiction doctrine under an abuse of
discretion standard. Kotsovska, 221 N.J. at 588.
Having reviewed the record in light of these legal principles, we find no
basis on which to reverse the dismissal of the amended complaint either for
failure to exhaust administrative remedies or under the primary jurisdiction
doctrine.
"The Legislature has endowed the BPU with broad power to regulate
public utilities . . . . [and] considerable discretion in exercising those powers."
In re Pub. Serv. Elec. & Gas Co.'s Rate Unbundling, 167 N.J. 377, 384-85 (2001)
A-3569-23 15 (alterations in original) (quoting In re Elizabethtown Water Co., 107 N.J. 440,
449-50 (1987)). The BPU "shall have general supervision and regulation of and
jurisdiction and control over all public utilities . . . and their property, property
rights, equipment, facilities and franchises so far as may be necessary for the
purpose of carrying out" its statutory authority. N.J.S.A. 48:2-13(a). The BPU's
authority includes regulation of "all services necessary for the transmission and
distribution of . . . gas, including but not limited to safety, reliability [and]
metering . . . ." N.J.S.A. 48:2-13(d).
To effectuate its authority, BPU issued a tariff to defendant to provide gas
service to customers in its service area. As noted above, the tariff provides
defendant
shall have the right of reasonable and safe access to customer's premises, and to all property furnished by [defendant], at all reasonable times for the purposes of inspection of customer's premises incident to the rendering of service, reading meters or inspecting, testing, or repairing its facilities used in connection with supplying the service, or for the removal of property.
[(Emphasis added).]
In addition, the BPU adopted regulations permitting the suspension or
curtailment of services for a customer's "[r]efusal of reasonable access to the
A-3569-23 16 customer's premises" for the purpose of supplying services. See N.J.A.C. 14:3-
3A.1(a)(5)(i) and :3-3.6.
Each claim alleged in the amended complaint is based on plaintiff's
argument reasonable access under defendant's tariff and the BPU's regulations
does not include the authority for defendant's technicians to enter his home for
safety purposes when restoring gas service. The BPU has the statutory authority
and expertise to interpret defendant's tariff and its regulations to determine if
defendant is authorized to enter plaintiff's residence to ensure the safe
restoration of gas service. The regulation of the safe provision of utility services
is squarely within the agency's expertise, and statutory authority. The agency
certainly has greater familiarity with the intricacies of providing safe restoration
of the flow of a flammable gas to residences than does the court. In addition,
the consistent interpretation and application of BPU's regulations by the agency
will bolster safety and ensure uniform compliance with residential gas
restoration practices in the State. The motion court, therefore, acted within its
discretion to dismiss the amended complaint under the primary jurisdiction
doctrine.
The record also supports the court's conclusion plaintiff failed to exhaust
administrative remedies. Pursuant to N.J.A.C. 14:1-1.5(a), "[a]ll petitions that
A-3569-23 17 seek to start a formal proceeding before the Board shall conform to N.J.A.C.
14:1-4 and 5." In addition, N.J.A.C. 14:1-1.5(b) states, "[a] formal complaint
requesting a formal hearing shall consist of a petition to the Board that meets
the applicable requirements of N.J.A.C. 14:1-4 and 5, accompanied by the
appropriate fee . . . ."
On the other hand, "[a]n informal complaint or filing, requesting Board
action without a formal Board proceeding may be made by letter, telephone call,
e-mail, fax or other writing, in accordance with N.J.A.C. 14:1-5.13." N.J.A.C.
14:1-1.5(c). An informal complaint will be assigned to an operating division of
the Board, or to its division of consumer assistance to facilitate amicable
adjustment of the dispute. N.J.A.C. 14:1-5.13(d) to (e). "Informal complaints
shall be without prejudice to the right of any party to file a petition or of the
Board to institute a formal proceeding." N.J.A.C. 14:1-5.13(g). "While
informal complaints are recommended wherever practicable as a method
designed for amicable adjustment of disputes, no mandatory or prohibitory order
will be issued on an informal complaint." N.J.A.C. 14:1-5.13(h). Importantly,
"[a] party desiring a decision or order of the Board must file a petition in
accordance with N.J.A.C. 14:1-4, 5, and 6." N.J.A.C. 14:1-5.13(i).
A-3569-23 18 Plaintiff argues he exhausted his administrative remedies and further
attempts at seeking relief from the BPU would be futile, see Riggs v. Twp. of
Long Beach, 101 N.J. 515, 526 (1986) (dismissal for failure to exhaust
administrative remedies is not warranted where pursuing administrative
remedies would be futile). In support of his argument, plaintiff submitted a
document that appears to be a printout from the website of the BPU's customer
service division. The document was not authenticated and contains hearsay. On
those bases alone, it is insufficient to establish either futility or exhaustion of
administrative remedies.
However, even if the document is considered credible and its hearsay
statements accepted as accurate, it purports to establish: (1) plaintiff made a
"verbal" complaint to the BPU alleging defendant's demand to enter his
residence to restore gas service was "neither necessary, required or permitted
under law[;]" (2) a BPU employee told another BPU employee "both claims and
safety issue are beyond BPU jurisdiction[;]" (3) a BPU employee closed the
complaint because "[plaintiff] will be filing formal [(sic)] because he thinks it
is the only way to get case rejected and have proof that he was told he had to
file Formal Hearing [(sic)]."
A-3569-23 19 The document, at best, establishes plaintiff pursued the informal
complaint process at BPU, was advised he must file a formal petition to obtain
a final agency decision from the BPU, and stated he would file a formal petition
requesting a hearing. Plaintiff, however, produced no evidence he filed a formal
petition with the agency or obtained a final decision with respect to whether
defendant's tariff and the BPU's regulations authorize defendant to enter his
home for safety purposes when restoring gas service. As noted, the formal
complaint process is the only avenue through which to obtain a final agency
decision from the Board. N.J.A.C. 14:1-5.13(i).
Plaintiff submitted the printout of the website in support of his motion for
reconsideration of the April 1, 2024 order. Given our analysis, we see no basis
on which to conclude the motion court abused its discretion when it denied
reconsideration. See Lee v. Brown, 232 N.J. 114, 126 (2018) ("A motion for
reconsideration . . . is a matter left to the trial court's sound discretion.")
(alteration in original) (quoting Guido v. Duane Morris LLP, 202 N.J. 79, 87
(2010)). A party may move for reconsideration of a court's decision pursuant to
Rule 4:49-2, on the grounds (1) the court based its decision on "a palpably
incorrect or irrational basis," (2) the court either failed to consider or "appreciate
the significance of probative, competent evidence," or (3) the moving party is
A-3569-23 20 presenting "new or additional information . . . which it could not have provided
on the first application." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App.
Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div.
1990)). A motion for reconsideration is not an opportunity to "expand the record
and reargue a motion. . . . [It] is designed to seek review of an order based on
the evidence before the court on the initial motion, . . . not to serve as a vehicle
to introduce new evidence in order to cure an inadequacy in the motion record."
Capital Fin. Co. of Del. Valley v. Asterbadi, 398 N.J. Super. 299, 310 (App.
Div. 2008).
We part company only with the motion court's dismissal of the amended
complaint with prejudice. In the amended complaint, plaintiff alleged various
tort and breach of contract claims. Each claim was predicated on his argument
defendant's tariff and BPU's regulations do not authorize defendant to demand
access to his residence to restore gas service. It was within the motion court's
discretion to dismiss the amended complaint because the agency was the
appropriate body to determine the validity of the fundamental premise of
plaintiff's claims. However, in the event plaintiff prevails before the BPU, or
on appeal from its final agency decision, he should have the opportunity to
A-3569-23 21 renew the amended complaint to pursue his related tort and breach of contract
claims.
We, therefore, remand the matter for entry of an order dismissing the
amended complaint without prejudice to refiling after plaintiff exhausts his
administrative remedies before the BPU, including available judicial review.
We offer no opinion with respect to the outcome of any formal petition plaintiff
may file with the BPU or as to the validity of the tort and breach of contract
claims alleged in the amended complaint.
To the extent we have not specifically addressed any of plaintiff's
remaining contentions, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part and remanded in part for entry of an order consistent with
this opinion. We do not retain jurisdiction.
A-3569-23 22