Birt v. Firstenergy Corp.

• Decision Date: 24 January 2006
• Citation: 891 A.2d 1281
• Parties: Rodney S. BIRT and Robin Birt, Appellants v. FIRSTENERGY CORP., GPU, Inc. d/b/a GPU Energy, and Pennsylvania Electric Company d/b/a Penelec, Appellees.
• Court: Pennsylvania Superior Court

Page 1281

891 A.2d 1281

Rodney S. BIRT and Robin Birt, Appellants v. FIRSTENERGY CORP., GPU, Inc. d/b/a GPU Energy, and Pennsylvania Electric Company d/b/a Penelec, Appellees.

Superior Court of Pennsylvania.

Argued September 16, 2005.

Filed January 24, 2006.

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Paul V. Webb, Lakewood, NY, for appellants.

Mark E. Mioduszewski, Erie, for GPU, Firstenergy and Pennsylvania Elec., appellees.

Robert J. Behling, Pittsburgh, for Heil & Andrews, participating party.

Before: JOYCE, ORIE MELVIN and TODD, JJ.

ORIE MELVIN, J.:

¶ 1 In this personal injury action, Appellants Rodney and Robin Birt appeal from the judgment entered in favor of Firstenergy Corp., GPU, Inc. d/b/a GPU Energy, and Pennsylvania Electric Company d/b/a Penelec (hereafter collectively "Penelec"), following a jury verdict in its favor, as well as summary judgment previously entered in favor of Heil & Andrews, Inc. (hereafter Heil). We affirm.

¶ 2 The facts and procedural history may be summarized as follows. In September 2000, Heil was acting as general contractor for the construction of a house on property situate in Warren County. On September 12, 2000, Heil contacted J. Steven Nelson Excavating (hereafter Nelson) to excavate the foundation, and representatives from both companies met at the site. Work began immediately despite the existence of two power lines over the property which were interfering with the arm of a piece of excavation equipment.

¶ 3 On September 14, 2000, Mr. Birt, who was employed by Nelson, suggested that he tie the lower power line to the higher one so that both would be out of the way of the excavation equipment. Mr. Birt was then lifted up in the bucket of the excavator to the lower power line and had attached a cord to it when he was struck by 7200 volts of electricity and fell to the ground 17 feet below. He suffered severe burns and other injuries as a result.

¶ 4 Appellants filed the instant lawsuit against Penelec (as owner and operator of the power lines) and Heil, as well as the property owners, asserting claims of negligence against each. Discovery ensued which revealed, among other things, that a representative of Heil had notified the Pennsylvania "One Call" system of the scheduled excavation in early July 2000 and that Penelec was among those utilities contacted about the work. The property owners subsequently entered into an agreement with Penelec dated July 28, 2000, for relocation of the power lines, for which Penelec was paid approximately $3000. Although the relocation agreement did not include a specific time for performance, it indicated an expiration date of September 28, 2000.

¶ 5 After the suit was commenced, Heil joined Nelson as an additional defendant. In February 2004, the trial court granted summary judgment in favor of Nelson and the homeowners, and all claims were discontinued against them. The trial court subsequently granted summary judgment in favor of Heil in accordance with the general rule that a contractor is not liable for injuries which result from work entrusted to a subcontractor. Leonard v. Commonwealth of Pennsylvania, Department of Transportation, 565 Pa. 101, 105, 771 A.2d 1238, 1240 (2001). The case proceeded to a jury trial against Penelec only, and the jury returned a verdict finding that Penelec was not negligent. Post-trial motions were denied, and this appeal followed wherein Appellants claim that they are entitled to judgment notwithstanding the verdict and/or a new trial because: (1) the verdict in favor of Penelec is against the weight of the evidence; (2) the trial court committed several errors in its evidentiary rulings and the charge to the jury; and (3) Heil was not entitled to summary judgment. We address these contentions in this order.

¶ 6 At the outset, we note our standard of review of a trial court's denial of a motion for judgment notwithstanding the verdict and a new trial. "[T]he standard of review for an order `granting or denying judgment notwithstanding the verdict ... [is] whether there was sufficient competent evidence to sustain the verdict.'" Brown v. Progressive Insurance Co., 860 A.2d 493, 497 (Pa.Super.2004) (quoting The Birth Center v. The St. Paul Cos., 567 Pa. 386, 397, 787 A.2d 376, 383 (2001)), appeal denied, 582 Pa. 714, 872 A.2d 1197 (2005).

We must view the evidence in the light most favorable to the verdict winner. Jnov should be entered only in a clear case, where the evidence is such that no reasonable minds could disagree that the moving party is entitled to relief. Review of the denial of jnov has two parts, one factual and one legal:

Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weight accorded evidence at trial, we will not substitute our judgment for that of the finder of fact.

Brown, 860 A.2d at 497 (citations omitted). Similarly, when evaluating a claim for a new trial, we are guided by the following principles.

[W]hen analyzing a decision by a trial court to grant or deny a new trial, the proper standard of review, ultimately, is whether the trial court abused its discretion. Absent a clear abuse of discretion by the trial court, an appellate court must not interfere with the trial court's authority to grant or deny a new trial.

Blicha v. Jacks, 864 A.2d 1214, 1216-17 (Pa.Super.2004) (citations and quotation marks omitted).

¶ 7 Appellants' first contention is that the verdict in favor of Penelec is against the weight of the evidence as a matter of law, and they are therefore entitled to jnov or a new trial. "This Court's review of a weight claim is a review of the trial court's exercise of discretion, not of `the underlying question of whether we believe that the verdict is against the weight of the evidence.'" Alwine v. Sugar Creek Rest, Inc., 883 A.2d 605, 611 (Pa.Super.2005). In support of this claim, Appellants correctly point out the high standard of care imposed on Penelec.

Our courts have long recognized that the standard of care imposed upon a supplier of electric power, particularly when the power is supplied at high voltage, is among the highest recognized in the law of negligence. A supplier of electric current is bound not only to know the extent of the danger, but to use the very highest degree of care practical to avoid injury to everyone who may be lawfully in proximity to its wires, and liable to come accidentally or otherwise in contact with them. * * * * That a transmission line is a dangerous instrumentality is recognized everywhere. No matter where located it is a source of grave peril and the law requires that the possessor of such an instrumentality exercise a high degree of care.

Colloi v. Philadelphia Electric Co., 332 Pa.Super. 284, 481 A.2d 616, 620 (1984)(internal citations and quotation marks omitted).

¶ 8 Appellants rely primarily on Colloi and Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957) in support of their contention. In Colloi, a subcontractor was working to repair a leak in the water sprinkler system at a Philadelphia Electric Co. (PECO) substation. A laborer, who was excavating a concrete sidewalk with a jackhammer in order to reach a broken pipe, struck an underground power line and was severely injured. He filed suit against PECO which joined the subcontractor as an additional defendant. At trial, PECO moved for a directed verdict, and the trial court granted the motion on the basis of the independent contractor doctrine. On appeal, this Court determined that there was a prima facie case of liability against PECO, and the case was remanded for a new trial so that a jury could determine whether PECO met its high degree of care.

¶ 9 In Stark, the plaintiff was injured while working as a helper to a crane operator unloading railroad cars under some overhead power lines. The crane came close enough to the power lines to cause arcing through the crane and into the plaintiff's body as he stood nearby. A jury found in favor of the plaintiff and against the power company, as well as against the plaintiff's employer and the owner of the railroad siding where the cars were located. However, the trial court granted jnov in favor of the power company. On appeal, our Supreme Court affirmed on the basis of the trial court's opinion, quoting it at length to explain the duty which the power company owed. Since there was no reason for the power company to anticipate the use of a crane in this particular location underneath its lines, there could be no liability on its part.

¶ 10 In the case sub judice, Appellants repeatedly assert that Penelec took no steps to protect workers from the high-voltage line at this particular job site. They point to the evidence that Penelec was one of various utilities notified via the Pennsylvania One Call system¹ that construction work would take place at this location and had thereafter agreed with the homeowner to relocate the power lines. Appellants also cite to testimony regarding various precautionary measures Penelec could have taken to alert others to the danger. We cannot agree that this evidence entitles Appellants to relief.

¶ 11 In Colloi, this Court recognized the high standard of care imposed upon suppliers of electric power and determined that a jury must determine whether the power company met that high standard. That is precisely what happened in this case. Appellants' argument does no more than present for this Court the very evidence which had already been considered by a jury and resolved in favor of Penelec. As the trial court noted in its opinion explaining the denial of Appellants' post-trial motions, there was evidence presented at trial that Penelec took various practical measures to protect construction workers who find themselves in the vicinity of its power lines.² Contrary to Appellants' argument, the evidence does not show that Penelec "did nothing"³ at this location. Moreover, simply because...