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

NOT FOR PUBLICATION WITHOUT THE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,
v.
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.
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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
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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.
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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
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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,
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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
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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
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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
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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
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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.
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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)).
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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.
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