DAVID ZUKOWSKI VS. SUSSEX RURAL ELECTRIC COOPERATIVE, INC. (L-0100-14, SUSSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0291-16T1
DAVID ZUKOWSKI,
Plaintiff-Appellant,
v.
SUSSEX RURAL ELECTRIC
COOPERATIVE, INC. and
CHARLES THOMAS TATE,
Defendants-Respondents.
_________________________________
Submitted March 13, 2018 – Decided July 25, 2018
Before Judges Fasciale, Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Sussex County, Docket No. L-
0100-14.
David Zukowski, appellant pro se.
Ruprecht Hart Weeks & Ricciardulli, LLP,
attorneys for respondents (Thomas C. Hart, of
counsel; Michael F. Georgi, on the brief).
PER CURIAM
Plaintiff David Zukowski refused to apply for a new service
account with defendant Sussex Rural Electric Cooperative, Inc.
(Sussex Rural) for electrical service to a rental property (the
property) he owned; thereby causing Sussex Rural to disconnect the
property's electric meter to discontinue service. When Sussex
Rural later realized that electricity was being used at the
property, that its disconnection device had been broken, and that
a padlock had been placed on the meter, Charles Thomas Tate, an
employee of Sussex Rural, removed the padlock and filed a municipal
court complaint against Zukowski. Sometime thereafter, Zukowski
was charged with the indictable offenses of resisting arrest,
eluding, and hindering apprehension of prosecution, arising from
the State Police's effort to execute a warrant for his arrest for
missing his municipal court trial date.
Prior to his conviction by a different municipal court for
the resisting arrest charge that was downgraded to a disorderly
persons offense, Zukowski filed a Law Division complaint against
Sussex Rural and Tate (collectively defendants) for the removal
of his padlock. Zukowski appeals the orders of Judge Robert M.
Hanna granting summary judgment to defendants dismissing his
complaint with prejudice, and denying his motion to vacate the
summary judgment dismissal.1 We affirm substantially for the
1
Plaintiff's Notice of Appeal seeks review only of the judge's
order denying his motion to vacate dismissal, and not the order
granting entry of summary judgment. We could, therefore, limit
our review to that order alone. See W.H. Indus., Inc. v. Fundicao
Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008);
Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-
2 A-0291-16T1
reasons set forth by the trial judge in his written decisions
accompanying his orders.
We briefly summarize the relevant facts. Zukowski's wife
went to Sussex Rural's office to pay an electric bill and was
informed that the property's tenant had closed the property's
electric account, and that, in accordance with its standard
practices, Zukowski needed to execute a new service account for
electric service to transfer the account back to his name in order
for the utility to bill him for electricity to the property. After
Zukowski refused to do so, Sussex Rural issued a disconnect order,
resulting in the sealing of a "disconnect collar" on the property's
electrical meter to cut off service.
When Sussex Rural's monitoring devices indicated electrical
use at the property, Tate's investigation discovered that the
disconnect collar had been removed. A few days later, Sussex
Rural issued a service order to disconnect electricity to the
property, and contacted the New Jersey State Police to observe the
disconnection process because Zukowski acted belligerently towards
the utility's employees during previous work at the property.
62 (App. Div. 2002). We choose to overlook that technical error
and consider the merits of defendant's appeal because his Case
Information Statement mentions he is appealing the summary
judgment order, and the substantive issues in the case and the
basis for the summary judgment dismissal and the motion to vacate
the same. See Fusco, 349 N.J. Super. at 461.
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Before disconnecting service at the utility pole and removing
Sussex Rural's electric meter, Tate had to cut a padlock placed
on the meter, which prevented access to it. Sussex Rural also
faxed a letter to Zukowski advising that if the disconnect collar
was returned, no formal complaint would be filed against him.2
The State Police declined Zukowski's request to file a
criminal complaint against defendants for trespassing and theft
for removing the padlock he placed on the electric meter;
determining his concern was a civil court matter. Later, on behalf
of Sussex Rural, Tate filed a municipal court complaint for theft
of services, theft of property, and criminal mischief, against
Zukowski because Zukowski failed to return the disconnect collar.
After a mistrial3 and numerous venue changes, Zukowski's case
was set for trial on July 23, 2012, but he failed to appear and a
warrant was issued for his arrest. A little over a year later,
state troopers sought to execute the arrest warrant. When Zukowski
struck one of the troopers in the head, attempted to kick him, and
unsuccessfully tried to flee to avoid arrest, Zukowski was charged
with the indictable offenses of resisting arrest, eluding, and
2
Sussex Rural notified Zukowski by fax because in the past, he
did not respond to letters it sent via regular and certified mail
and he advised that he was not to be contacted by telephone.
3
Declared because the municipal prosecutor was related to one of
Sussex Rural's employees.
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hindering apprehension of prosecution. The Sussex County
Prosecutor's Office downgraded the charges to disorderly offenses
– two counts of resisting arrest, and one count of obstructing the
administration of law – to be tried in municipal court. Although
Zukowski was found not guilty of theft of services, theft of
property, and criminal mischief – the municipal court charges
filed against him by defendants – in October 2013, it was not
until February 2015, that a different municipal court tried
Zukowski on the downgraded charges and found him guilty of one
count of disorderly offense for resisting arrest.
While the downgraded charges were pending, Zukowski filed a
complaint in the Law Division against defendants alleging
negligence, breach of contract, malicious prosecution, and
intentional infliction of emotional distress. Following
discovery, Judge Hanna granted defendants' motion for summary
judgment dismissal of Zukowski's complaint.4
In a written statement of reasons attached to the order
granting summary judgment, the judge determined that since
Zukowski refused to execute a new service agreement, Sussex Rural
had no obligation to provide electrical service to the property,
and he therefore could not sustain a negligence claim that
4
Zukowski consented to the dismissal of the intentional
infliction of emotional distress claim.
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defendants breached any alleged duty owed to Zukowski. For similar
reasons, the judge found that Zukowski's breach of contract claim
had no legal basis because his unwillingness to sign a new service
agreement did not create a contract between the parties regarding
electrical service. As to the false arrest and false imprisonment
claim, the judge dismissed it, reasoning that Zukowski's arrest
and imprisonment was not due to defendants' actions but it was his
own doing; Zukowski did not appear for trial, and when the State
Police sought to execute the resulting arrest warrant issued by
the municipal court, he resisted arrest and tried to flee. And
with respect to the malicious prosecution claim, applying our
decision in Myrick v. Resorts International Casino & Hotel, 319
N.J. Super. 556, 563 (App. Div. 1999), the judge found it was
without merit; finding that, despite the municipal court finding
Zukowski not guilty of theft of services, theft of property, and
criminal mischief, defendants had probable cause to file the
complaint against him for these allegations, and, moreover, that
Zukowski offered no proof of malice by defendants towards him to
support such claim at trial.
Zukowski filed a motion to vacate the summary judgment order
dismissing his complaint. On the order denying the motion, Judge
Hanna wrote:
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Assuming [Zukowski's] motion is timely as a
motion for reconsideration of a final order,
which must be made not later than 20 days
[under Rule 4:49-2] after its receipt,
[Zukowski] fails to show any legal error,
overlooked facts or matter on new evidence.
There is no basis for reconsideration, nor for
relief under Rule 4:50-1. [Zukowski] also
fails to raise any reason for disqualification
or recusal under Rule 1:12-1, the Code of
Judicial Conduct or [N.J.S.A.] 2A:15-49.[5]
Before us, Zukowski raises the following arguments:
[POINT I]
APPELLANT [WAS] DENIED HIS RIGHT TO A FAIR
TRIAL BY JURY.
[POINT II]
NO PROBABLE CAUSE FOR [DEFENDANTS'] CLAIM[S]
AGAINST THE APPELLANT.
[POINT III]
SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
[POINT IV]
APPELLANT [WAS] DENIED HIS RIGHT TO A FAIR AND
IMPARTIAL TRIAL.
When reviewing an order granting summary judgment, we apply
"the same standard governing the trial court." Oyola v. Xing Lan
Liu, 431 N.J. Super. 493, 497 (App. Div. 2013). A court should
5
Zukowski's motion claimed that Judge Hanna should have recused
himself based upon his former position as President of the Board
of Public Utilities (BPU). However, the BPU does not regulate
Sussex Rural.
7 A-0291-16T1
grant summary judgment when the record reveals "no genuine issue
as to any material fact" and "the moving party is entitled to a
judgment or order as a matter of law." R. 4:46-2(c). We accord
no deference to the trial judge's legal conclusions. Nicholas v.
Mynster, 213 N.J. 463, 478 (2013) (citations omitted).
Guided by these standards, we are convinced that
substantially for the reasons set forth in his statement of
reasons, Judge Hanna properly granted summary judgment dismissal
of Zukowski's complaint. Based upon the record – in which we
glean no material factual disputes – there is no legal support for
the arguments raised by Zukowski.6 There is no doubt in our minds
that Zukowski's failure to follow Sussex Rural's reasonable
request to enter into a new service agreement to receive electrical
service to the property, the removal of the disconnect seal on the
electric meter, and his ill-fated decision to resist arrest when
the State Police were executing a valid arrest warrant, created
the situation that led the municipal court prosecutions against
6
Although Zukowski's Notice of Appeal contends he is appealing
the denial of his motion to vacate summary judgment, he fails to
argue that the judge erred in not applying relief from the judgment
under Rule 4:50-1, or for that matter, erred in not granting
reconsideration under Rule 4:49-2. Accordingly, we address
neither ruling. See Pressler & Verniero, Current N.J. Court Rules,
cmt. 4 on R. 2:6-2 (2018); see also Sklodowsky v. Lushis, 417 N.J.
Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal
is deemed waived.").
8 A-0291-16T1
him. Consequently, defendants' actions did not make them liable
to Zukowski for any of the causes of actions set forth in his
lawsuit against them.
Affirmed.
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