HELLENIC GYRO & PITA, LLC VS. GLOUCESTER COUNTY UTILITIES AUTHORITY (L-0380-18, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-5654-17T1
HELLENIC GYRO & PITA, LLC,
Plaintiff-Appellant,
v.
GLOUCESTER COUNTY
UTILITIES AUTHORITY and
MONROE MUNICIPAL
UTILITIES AUTHORITY,
Defendants-Respondents.
________________________________
Argued March 12, 2019 – Decided July 10, 2019
Before Judges Hoffman, Suter and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Docket No. L-0380-18.
David W. Field argued the cause for appellant
(Lowenstein Sandler, LLP, attorneys; David W. Field,
of counsel and on the briefs; Michael A. Kaplan and
Eric R. Suggs, on the briefs).
Walter F. Kawalec, III, argued the cause for respondent
Gloucester County Utilities Authority (Marshall
Dennehey Warner Coleman & Goggin, attorneys;
Walter F. Kawalec, III, and Matthew J. Behr, on the
brief).
John J. Armano, Jr., argued the cause for respondent
Monroe Municipal Utilities Authority (Trimble &
Armano, attorneys; John J. Armano, Jr., on the brief).
PER CURIAM
Plaintiff Hellenic Gyro and Pita, LLC appeals from two Law Division
orders dismissing its complaint against defendants, the Gloucester County
Utilities Authority (GCUA) and the Monroe Municipal Utilities Authority
(MMUA), pursuant to Rule 4:6-2(e), for failure to state a claim upon which relief
can be granted. Plaintiff also appeals from a subsequent order denying its
motion to modify the dismissal from with prejudice to without prejudice. For
the reasons that follow, we affirm, but add clarification regarding the scope of
the trial court's dismissal with prejudice.
Plaintiff owns a 93,000 square foot commercial building that is currently
unoccupied in Monroe Township. Plaintiff incurs ongoing service fees owed to
the township for the building's connection to the county's sewer line. Apparently
tired of paying these fees, plaintiff's complaint states it informed the MMUA
and the GCUA in January and February 2018 of its intent to disconnect from the
sewer line. However, plaintiff has never done so – it contacted defendants in an
attempt "to ensure that [p]laintiff would not be charged a second connection fee
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when it ultimately re-connects to the [s]ewer [l]ine." See Airwick Indus. v.
Carlstadt Sewerage Auth., 57 N.J. 107, 122 (1970) (holding that utilities
authorities may "include as part of the connection fee a sum of money which
will represent a fair contribution by the connecting party toward the debt service
charges theretofore met by others," and may also "prescribe a schedule of
connection fees escalating with the passage of time").
According to plaintiff's complaint, the MMUA "responded that it believes
. . . it will charge [p]laintiff a re-connection fee." In fact, the response actually
stated, "With regard to your reconnection fee question, the MMUA cannot offer
any written assurance with regard to a potential charge at some point in the
future. Any such potential fee will undoubtedly be dependent on the facts and
circumstances at the time." Plaintiff then filed its complaint seeking a
declaratory judgment "ordering that the [GCUA] and the [MMUA] cannot
charge [p]laintiff a re-connection fee greater than the actual costs of re-
connection as long as the re-connection is not materially different than the
existing condition." Plaintiff "does not object to paying the actual cost of re-
connection," but contends that any fee greater than the actual cost "is contrary
to the New Jersey Sewerage Authorities Law," N.J.S.A. 40:14A-1 to -45.
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Defendants filed motions to dismiss pursuant to Rule 4:6-2(e), contending
that plaintiff's declaratory judgment claim is not ripe for judicial determination.
After oral argument, Judge Jean B. McMaster granted defendants' motions.
Since it remains undisputed that plaintiff never disconnected its sewer line, and
it remains unknown if and when plaintiff would seek to reconnect the line, the
judge found plaintiff's complaint "not ripe for adjudication because the relief
that's being sought is based . . . on future, contingent, [and] uncertain factors
that cannot be determined with any certainty at this time." Judge McMaster then
denied plaintiff's motion seeking to amend her with prejudice dismissal orders
to without prejudice.
This appeal followed.
I.
Rule 4:6-2(e) provides that a complaint may be dismissed for "failure to
state a claim upon which relief can be granted . . . ." That rule tests "the legal
sufficiency of the facts alleged on the face of the complaint." Printing Mart-
Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989) (citation omitted).
On a motion to dismiss, a plaintiff need not prove the case, but need only
"make allegations which, if proven, would constitute a valid cause of action."
Kieffer v. High Point Ins. Co., 422 N.J. Super. 38, 43 (App. Div. 2011) (quoting
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Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001)). On such a
motion, plaintiff is entitled to "every reasonable inference of fact." Printing
Mart, 116 N.J. at 746 (citing Indep. Dairy Workers Union v. Milk Drivers &
Dairy Emp. Local 680, 23 N.J. 85, 89 (1956)).
A reviewing court must search "the complaint in depth 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." Ibid. (quoting Di Cristofaro v. Laurel Grove Mem. Park, 43 N.J.
Super. 244, 252 (App. Div. 1957)). This review should be "at once painstaking
and undertaken with a generous and hospitable approach." Ibid.II.
Plaintiff asserts the reason it "has not disconnected [the property's sewer
line] is because its re-connection rights have not been adjudicated," and "[t]he
entire purpose of . . . the filing of this lawsuit [is] to ensure that [p]laintiff will
not have to pay a re-connection fee." Since plaintiff "is currently assessed
service fees by the [MMUA], and wishes to disconnect to avoid these fees while
the [b]uilding is unoccupied," it contends there exists "a live justiciable right
that affects [p]laintiff every day."
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The Uniform Declaratory Judgments Act (the Act), N.J.S.A. 2A:16-50 to
-62, empowers courts to declare rights, status and other legal relations in order
"to afford litigants relief from uncertainty and insecurity." Chamber of
Commerce, U.S.A. v. State, 89 N.J. 131, 140 (1982). In order to maintain a
declaratory judgment action, the plaintiff must be able to demonstrate a
justiciable controversy between adverse parties, and a sufficient interest in the
outcome of the dispute to confer standing. Bergen County v. Port of N.Y. Auth.,
32 N.J. 303, 307 (1960); In re Ass'n of Trial Lawyers of Am., 228 N.J. Super.
180, 183-84 (App. Div. 1988). Stated differently, the Act "'cannot be used to
decide or declare rights or status of parties upon a state of facts which are future,
contingent and uncertain.'" Chamber of Commerce, 89 N.J. at 140 (quoting
Lucky Calendar Co. v. Cohen, 20 N.J. 451, 454 (1956)).
While the State Constitution does not expressly limit the court's
jurisdiction to actual cases and controversies, we do not "render advisory
opinions or function in the abstract." Crescent Park Tenants Ass'n v. Realty
Equities Corp. of N.Y., 58 N.J. 98, 107 (1971) (citing N.J. Tpk. Auth. v. Parsons,
3 N.J. 235, 240 (1949)).
Based on our review of the record and the applicable law, we conclude
plaintiff's arguments lack sufficient merit to warrant extended discussion. R.
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2:11-3(e)(1)(E). Unless and until plaintiff goes forward with disconnecting, and
then reconnecting its sewer line, its challenge to the imposition of a fee related
to the eventual reconnection process will continue to involve "rights and status
of parties upon a state of facts which are future, contingent and uncertain."
Chamber of Commerce, 89 N.J. at 140. For that reason, we affirm substantially
for the reasons stated by Judge McMaster in her cogent oral opinion.
Because the parties continue to dispute the scope of Judge McMaster's
with prejudice dismissal order, we add the following clarification. The with
prejudice dismissal orders under review decided only the narrow issue presented
in plaintiff's complaint, i.e., whether plaintiff was entitled to obtain declaratory
relief regarding the imposition of a future connection fee in the event plaintiff
disconnects and then seeks to reconnect its sewer line. As a result, the orders
under review would not preclude plaintiff from challenging the imposition of an
actual connection fee in the future, or the amount thereof, should plaintiff elect
to disconnect and then seek to reconnect its sewer line.
Affirmed.
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