COUNTY OF CUMBERLAND VS. ATLANTIC CITY ELECTRIC COMPANY(C-70-15, ATLANTIC COUNTY AND STATEWIDE)
A-4553-15T4
| N.J. Super. Ct. App. Div. | Jun 28, 2017Background
- ACE (a public utility owned by Pepco) maintained high-voltage lines and guy-wire in the public right-of-way along Fayette Street adjacent to the Cumberland County courthouse.
- County contracted with Duall to restore the courthouse façade; OSHA and the New Jersey High Voltage Proximity Act (NJHVPA) prohibit work within certain distances of energized high-voltage lines without precautionary actions.
- County and Duall asked ACE to de-energize or relocate the lines so façade work could proceed; ACE agreed but demanded payment for the relocation work.
- ACE de-energized and relocated the lines (cost $31,688.88) and later removed an obstructive guy-wire (cost $6,171.88); ACE sought payment from County/Duall and filed third-party claims when County refused.
- Trial court held ACE liable for relocation costs under common law (public-utility duty when public welfare requires relocation) and dismissed ACE’s third-party claim against Duall.
- On appeal, the Appellate Division reversed, holding the NJHVPA requires the contractor (Duall) to pay for the precautionary de-energizing/relocation and remanded for resolution of Duall’s indemnity claim against the County.
Issues
| Issue | Plaintiff's Argument (County) | Defendant's Argument (ACE) | Held |
|---|---|---|---|
| Who bears cost to de-energize/relocate high-voltage lines for courthouse façade work? | County: common-law public-utility duty applies when facilities are in public right-of-way for a public project; ACE must pay. | ACE: NJHVPA requires the contractor/employer who must take precautionary action to notify owner and pay costs; Duall must pay. | Held for ACE: NJHVPA applies; contractor (Duall) must bear cost of required precautionary action (de-energize/relocate). |
| Who bears cost to remove a guy-wire installed during relocation that later impeded construction? | County: same public-duty argument; costs belong to ACE. | ACE: removal was related to contractor’s work and was a contractor/owner responsibility under NJHVPA and related obligations. | Held for ACE: removal cost falls on contractor (Duall) as part of precautionary actions; remanded to decide Duall’s indemnity claim against County. |
| Applicability of Port of New York Authority / Pine Belt precedent | County: those precedents support shifting relocation costs to utilities for public projects. | ACE: those cases are limited to road-widening/highway projects and don’t control here. | Held: Port and Pine Belt are inapplicable; they are limited to roadway projects, not contractor safety relocations for building work. |
| Whether NJHVPA exempts public building projects or lines in public ROW | County: NJHVPA should not apply to relocation for public buildings; public benefit makes it a public-project relocation. | ACE: NJHVPA has clear, unambiguous obligations placing cost on employer/contractor regardless of public building context. | Held: NJHVPA applies without exemption; contractor must pay even though project benefits public. |
Key Cases Cited
- Port of New York Authority v. Hackensack Water Co., 41 N.J. 90 (1963) (utility relocation costs in public way allocated to utilities when project benefits the public)
- Pine Belt Chevrolet v. Jersey Central Power & Light Co., 132 N.J. 564 (1993) (common-law rule and statutory scheme regarding allocation of utility relocation costs for highway projects)