WCM recently won summary judgment in the New Jersey Superior Court on behalf of Elizabethtown Gas Company in The Housing Authority of the Town of Newton v. KSM Farms v. Jack E. O’Krepky v. Elizabethtown Gas, a dispute arising from design errors and construction deficiencies. At issue was whether Elizabethtown Gas should bear the cost of a gas main extension to supply adequate pressure to the newly installed natural gas generator on the property.
Plaintiff The Housing Authority of the Town of Newton (“NHA”) owns Liberty Towers, a senior housing project in Newton, New Jersey. NHA contracted with KSM Farms/Jack E. O’Krepky, P.E. to design and install a natural gas generator at Liberty Towers. KSM Farms engineer Jack E. O’Krepky adopted the designs of a custom built natural gas generator, had it manufactured, and shipped it to Liberty Tower before checking the available on-site gas pressure.
Subsquently, O’Krepky discovered that the available gas pressure at Liberty Towers was insufficient to power the newly manufactured custom-built generator. The installation was suspended, and Liberty Towers filed suit against O’Krepky. A gas main extension was required in order to meet the pressure requirements of the generator.
O’Krepky filed a third-party complaint against Elizabethtown Gas, alleging violations of the New Jersey Administrative Code. O’Krepky argued that it is the duty of the gas utility company to furnish “safe, adequate and proper service” in a non-discriminatory manner. O’Krepky claimed that Elizabethtown Gas should bear the costs of the gas main extension under his interpretation of the New Jersey Administrative Code.
WCM moved for summary judgment against the complaint arguing that the tariffs created by the New Jersey Board of Public Utilities dictate the costs charged to the customer and who bears the cost of gas main extensions. WCM argued that O’Krepky’s interpretation of the New Jersey Administrative Code would force Elizabethtown Gas to bear the cost of increased pressure demands anytime an upgraded appliance was installed on a property.
The court agreed with WCM’s position, stating that “no statute, regulation or tariff provision supports Defendant O’Krepky’s argument that a natural gas utility must bear the costs of upgrading service to a customer installing a new appliance that requires far greater natural gas pressure than the customer’s existing appliance. To the contrary, as ETG correctly argues, the customer bears the upgrade costs.”
Paul Clark and Steve Kim of WCM represented Elizabethtown Gas. If you have any questions about this decision or its import, please call or email email Paul.