ROBERT CAPPICCILLE JOYCE CAPPICCILLE MARK THOGODE CAROL THOGODE MICHAEL RONCINSKE MARIE RONCINSKE JAMES PETERS ANN PETERS LARRY HANNIS CAROL HANNIS TRACY MUSTACHIO TIMOTHY MUSTACHIO JOSEPH SABELLA MICHELLE SABELLA JARROD HAMILTON TARA HAMILTON KENNETH WISE NANCY WISE ROBERT BIGOTT LYNN BIGOTT DANIEL JANSEN PAMELA JANSEN JOCK WAPLE REBECCA WAPLE INGRUM JEFFERSON CRYSTAL JEFFERSON RICHARD KREPPEL PATRICIA KREPPEL WILHELM ELFERS HILDE ELFERS JOSEPH DOYLE VIRGINIA DOYLE BRIAN FINNEGAN JANET FINNEGAN ANTHONY GASPERINO CAROLYN GASPERINO JACK IZZO VERONICA IZZO NATHANIEL SAJDAK MEREDITH SAJDAK v. SUBURBAN PROPANE SUBURBAN PROPANE PARTNERS FINBAR DOYLE

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Superior Court of New Jersey, Appellate Division.

ROBERT CAPPICCILLE and JOYCE CAPPICCILLE, MARK THOGODE and CAROL THOGODE, MICHAEL RONCINSKE and MARIE RONCINSKE, JAMES PETERS and ANN PETERS, LARRY HANNIS and CAROL HANNIS, TRACY MUSTACHIO and TIMOTHY MUSTACHIO, JOSEPH SABELLA and MICHELLE SABELLA, JARROD HAMILTON and TARA HAMILTON, KENNETH WISE and NANCY WISE, ROBERT BIGOTT and LYNN BIGOTT, DANIEL JANSEN and PAMELA JANSEN, JOCK WAPLE and REBECCA WAPLE, INGRUM JEFFERSON and CRYSTAL JEFFERSON, RICHARD KREPPEL and PATRICIA KREPPEL, WILHELM ELFERS and HILDE ELFERS, JOSEPH DOYLE and VIRGINIA DOYLE, BRIAN FINNEGAN and JANET FINNEGAN, ANTHONY GASPERINO and CAROLYN GASPERINO, JACK IZZO and VERONICA IZZO, NATHANIEL SAJDAK and MEREDITH SAJDAK, Plaintiffs–Respondents, v. SUBURBAN PROPANE, L.P. and SUBURBAN PROPANE PARTNERS, L.P., individually and trading as Suburban Energy Services, and FINBAR M. DOYLE, Defendants–Appellants.

DOCKET NO. A–4217–12T3

-- December 05, 2013

Before Judges Espinosa, Koblitz, and O'Connor. Michael D. Sirota argued the cause for appellants (Cole, Schotz, Meisel, Forman & Leonard, P.A. and Proskauer Rose LLP, attorneys;  Mr. Sirota and Robert J. Cleary, of counsel and on the brief).   John V. McDermott, Jr., argued the cause for respondents.

Defendants Suburban Propane, L.P. (Suburban) and Finbar M. Doyle, moved for partial summary judgment seeking the dismissal of some of the plaintiffs' claims, on the ground the court lacked subject matter jurisdiction.   The trial court denied the motion and ordered defendants to obtain certain relief from the United States Bankruptcy Court for the Northern District of New York (Bankruptcy Court).   We granted defendants' motion for leave to appeal from the court's rulings.   We reverse.

Plaintiffs are homeowners, all of whom have propane storage tanks which were installed by Agway Energy Products, LLC, (Agway Energy) at the time their respective homes were constructed.   Plaintiffs contend they acquired ownership of the tanks when they took title to their homes.   Defendants maintain Agway Energy transferred ownership of the tanks to them after they were installed.

Specifically, Agway, Inc., the parent company of Agway Energy, filed a voluntary petition for relief pursuant to Chapter 11 of the Bankruptcy Code. See 11 U.S.C.A. §§ 1101–1174.   Thereafter, with the approval of the Bankruptcy Court, Agway Energy and two other subsidiaries of Agway, Inc. entered into an agreement to sell some of their assets to Suburban.   Defendants assert these assets included the tanks.

On December 19, 2003, the Bankruptcy Court entered an order indicating the sale of the assets vested in Suburban all rights, title and interest in the transferred assets.   The order also noted that the Bankruptcy Court retained exclusive jurisdiction to “enforce and implement the terms ․ [and] resolve any dispute(s) concerning, this Order [and] the agreement ․ and the rights and duties of the parties ․ including, but not limited to, all issues and disputes arising in connection with the relief authorized herein, inclusive of those concerning the transfer of the Purchased Assets.”

In the first amended complaint plaintiffs 1 sought, among other things, a declaratory ruling that they own the tanks on their respective properties.   Defendants filed a motion for partial summary judgment seeking the dismissal of “all allegations and/or claims in the first amended complaint that plaintiffs own the subject underground propane tanks.” 2  The parties refer to such allegations and claims as the “tank ownership claims” and, for simplicity, we do as well.

In their motion, defendants contended the Bankruptcy Court has exclusive jurisdiction over the tank ownership claims;  therefore, the trial court lacked subject matter jurisdiction over and was obligated to dismiss these claims.   While defendants' motion was pending, various plaintiffs filed a motion for partial summary judgment, seeking a ruling that they own the tanks.3

On March 26, 2013 the court entered an order denying plaintiffs' motion.   In another order entered the same day the court stated it did not have subject matter jurisdiction “to determine issues relating to the Tank Ownership Claims at the present time.”   In a written opinion, the trial court acknowledged the Bankruptcy Court “specifically and expressly retained ‘exclusive jurisdiction’ over issues and disputes ‘concerning the transfer of the Purchased Assets.’ ”   Notwithstanding the court's recognition that it did not have subject matter jurisdiction over the subject claims, the court declined to grant defendants' motion for partial summary judgment.   Moreover, the trial court exercised subject matter jurisdiction over the defendants with respect to these claims.   Specifically, the court directed defendants to file an application in the Bankruptcy Court for a “ruling on the merits on the issue of tank ownership, and/or ․ [a] determination that the Bankruptcy Court declines or abstains from exercising jurisdiction.”

The trial court was required to grant defendants' motion for partial summary judgment and dismiss the tank ownership claims from the first amended complaint once it determined it did not have subject matter jurisdiction over these claims.  “It is well established ‘that a court cannot hear a case as to which it lacks subject matter jurisdiction.’ ”  Borough of Closter v. Abram Demaree Homestead, Inc., 365 N.J.Super. 338, 352 (App.Div.) certif. denied, 179 N.J. 372 (2004)(citing Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 65 (1978)).   If a court is without subject matter jurisdiction to hear a matter, then the matter must be dismissed.   R. 4:6–7;  see also Muller v. Muller, 212 N.J.Super. 665, 677 (Ch. Div.1986).   R. 4:6–7 provides in pertinent part:

Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the matter․

Any provision in an order entered without subject matter jurisdiction is void.  Ganz v. Rust, 299 N.J.Super. 324, 337 (App.Div.1997).   Lacking subject matter jurisdiction over the tank ownership claims, the court was without authority to order defendants to take any action on these particular claims, including ordering that they seek relief from the Bankruptcy Court.

Plaintiffs argue that the court did in fact have subject matter jurisdiction over the tank ownership claims and urges this court to reverse the trial court's finding on this issue.   We decline to address whether in fact the trial court does have subject matter jurisdiction, as plaintiffs did not seek leave to appeal this or any other determination of the trial court.   See R. 2:5–6.

Accordingly, we reverse the denial of defendants' motion for partial summary judgment and grant judgment in defendants' favor dismissing the tank ownership claims.   We also vacate the provisions in the March 26, 2013 orders which compel defendants to seek relief from the Bankruptcy Court.

Reversed and remanded.

FOOTNOTES

1.  FN1. The following plaintiffs are no longer parties to this action:  Mark and Carol Thogode;  Michael and Marie Roncinske;  James and Ann Peters;  Tracy and Timothy Mustachio;  Robert and Lynn Bigott;  Jock and Rebecca Waple;  Richard and Patricia Kreppel;  Wilhelm and Hilde Elfers;  Brian and Janet Finnegan;  and Anthony and Carolyn Gasperino.

2.  FN2. Specifically, defendants sought dismissal of paragraphs 24–31, 37, 38, 51–53, as well as paragraphs A and B of the wherefore clause in the first count;  paragraphs 66A and 66W, and paragraph A of the wherefore clause in the third count;  the tenth count, “to the extent any paragraphs rely on a claim that plaintiffs Jack and Veronica Izzo own the tank referenced in such count”;  and paragraphs 134 and 136 of the twelfth count, including “any other paragraphs in the twelfth count that rely on a claim that plaintiffs Nathaniel and Meredith Sajdak own the tank referenced in such count.”

3.  FN3. The plaintiffs who filed the motion are Robert and Joyce Cappiccille;  Larry and Carol Hannis;  Joseph and Michelle Sabella;  Jarrod and Tara Hamilton;  Ingrum and Crystal Jefferson;  Joseph and Virginia Doyle;  Jack and Veronica Izzo;  and Nathaniel and Meredith Sajdak.

PER CURIAM

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