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;

NOT FOR PUBLICATION WITHOUT THE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.
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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 reconnection as long as the re-connection is not materially different than the 

existing condition." Plaintiff "does not object to paying the actual cost of reconnection," 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 MartMorristown 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.