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 DefendantRespondent.

___________________________________

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).

NOT FOR PUBLICATION WITHOUT THE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.
2 A-4553-15T4

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.
3 A-4553-15T4

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 deenergize 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 
4 A-4553-15T4

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 guywire 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 thirdparty 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. 
5 A-4553-15T4

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 
6 A-4553-15T4

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, 
7 A-4553-15T4

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 highvoltage 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 
8 A-4553-15T4

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 
9 A-4553-15T4

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 
10 A-4553-15T4

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 
11 A-4553-15T4

utility facilities, which were located within the public rightof-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.
12 A-4553-15T4

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)). 
13 A-4553-15T4

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.
14 A-4553-15T4

Reversed and remanded to the trial court for further 

proceedings in conformity with this opinion. We do not retain 

jurisdiction.