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In re Complaint Petition of Five Mile Beach Electric Railway Co., Inc.

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 4, 2001

In these back-to-back appeals, consolidated for the purpose of this opinion, Five Mile Beach Electric Railway Co., Inc. (“FMB”) appeals orders of the Commissioner of the New Jersey Department of Transportation (“DOT”) dismissing its petitions and denying all relief it requested. FMB operates bus lines in Cape May County, including a trackless trolley service between Cape May City and the terminal of the Cape May-Lewes Ferry, which is operated by the Delaware River and Bay Authority (“DRBA”). In 1996, New Jersey Transit (“NJT”), acting in cooperation with the DRBA, authorized a competitor of FMB, Lion Corporation (“Lion”), to operate this same route. The subject of one of FMB’s appeals (A-4808-99T1) arises from its 1996 petition to the DOT alleging the NJT route created destructive competition, and its motion in 1999 to amend that petition to further allege that the DRBA’s refusal to allow FMB’s trolleys to stop at the ferry terminal and other conduct constituted additional acts of destructive competition by the DRBA. The subject of FMB’s other appeal (A-4916-99T1) arises from its 2000 petition to the DOT, claiming the DRBA wrongly denied FMB access to the ferry terminal. The DOT dismissed the 1996 petition and denied the motion to amend it on the ground that NJT had exclusive jurisdiction and the DOT lacked jurisdiction. The DOT dismissed the 2000 petition on the ground of res judicata. On appeal, FMB argues the DOT did have jurisdiction over these matters and should not have dismissed. We disagree and affirm.

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