The opinion of the court was delivered by PRESSLER, J.A.D.
Plaintiff Henry J. Daaleman individually and as representative of the class of retail consumers
We concur completely with the trial judge's well-reasoned conclusion that the breadth of the PUC's statutorily accorded regulatory control over public utilities virtually mandates adjudication of the merits of the complaint here by that agency rather than by the court. We do not, however, agree that that result necessarily requires the corollary conclusion that the Consumer Fraud Act is ipso facto inapplicable to public utilities. Our disagreement is based on the fact that there is nothing in either the express provisions of the act or in its underlying salutary policy which evidences a legislative intention that utilities be summarily excluded from its remedial purpose and concept. To the contrary, the definitional section of the act appears to be inclusive of such enterprises. Thus, N.J.S.A. 56:8-1(c) defines merchandise as any "objects, wares, goods, commodities or services," and N.J.S.A. 56:8-1(d) defines persons subject to the act as, among others, any business entity without exception. We can perceive no discernible basis for construing the act as not having been intended to apply either to this or any other regulated industry, profession or other business. Indeed, in this age
Our conclusion that the Consumer Fraud Act confers jurisdiction upon the court to entertain the complaint here does not, however, mean that it either must do so or should do so. To the contrary, we are persuaded by the considerations outlined by the trial judge that he quite properly referred adjudication of its merits to the PUC. Our disagreement is only with respect to the basis upon which he did so. By holding that the Consumer Fraud Act does not apply to public utilities, his dismissal of the complaint rested upon the doctrine of exhaustion of administrative remedy. That doctrine is applicable where the claim is cognizable in the first instance by an administrative agency and the court's role is essentially one of reviewing the agency's action only after the administrative process has run its course. We are satisfied, however, because of what we perceive to be concurrent jurisdiction, that deference to the agency must be based upon the primary jurisdiction doctrine, namely, the doctrine that "where a claim is originally cognizable in the courts, and * * * enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body * * * the judicial process is suspended pending referral of such issues to the administrative body for its views." United States v. Western P.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). See also, In re Hoboken Teachers' Ass'n, 147 N.J.Super. 240, 246-248 (App. Div. 1977). And see generally, 3 Davis, Administrative Law, §§ 19.01, 19.08, at 1-6, 47-52 (1958).
The distinction is not merely semantical. Under the exhaustion doctrine the agency's jurisdiction to grant the final remedy is complete and the court's function is one of review only — it undertakes no original trial jurisdiction. Thus, where that is the applicable doctrine, dismissal of the action by the court is appropriate. Where the doctrine of
Applying these principles here we are satisfied that the determination of the merits of the fraud allegations as well as the granting of much of the specific relief demanded must be deferred to the PUC in first instance.
While we anticipate no serious problem in respect of an award of counsel fees, and recognize further that provision for such an award is a significant impetus to the prosecution of public interest litigation, we do appreciate that an award of treble damages might well be counterproductive
Accordingly, the judgment below must be modified. We remand to the trial court for entry of an order consistent with this opinion.