Engle v. West Penn Power Co.

• Decision Date: 04 November 1991
• Citation: 598 A.2d 290,409 Pa.Super. 462
• Parties: John H. ENGLE, William R. Engle, William C. Engle, t/d/b/a Engle's Holiday Harbor, a Partnership, and as Representative of a Class, Appellants, v. WEST PENN POWER COMPANY, a Corporation. John H. ENGLE, William R. Engle, William C. Engle, t/d/b/a Engle's Holiday Harbor, A Partnership, and as Representative of a Class v. WEST PENN POWER COMPANY, a Corporation, Appellant.
• Court: Pennsylvania Superior Court

Page 290

598 A.2d 290

409 Pa.Super. 462

John H. ENGLE, William R. Engle, William C. Engle, t/d/b/a

Engle's Holiday Harbor, a Partnership, and as Representative of a Class, Appellants, v. WEST PENN POWER COMPANY, a Corporation.

John H. ENGLE, William R. Engle, William C. Engle, t/d/b/a

Engle's Holiday Harbor, A Partnership, and as Representative of a Class v. WEST PENN POWER COMPANY, a Corporation, Appellant.

Superior Court of Pennsylvania.

Argued April 23, 1991.

Filed Sept. 9, 1991.

Reargument Denied Nov. 4, 1991.

Brian W. Ashbaugh, Pittsburgh, for appellant (at 1558) and appellee (at 1449).

C. James Zeszutek, Pittsburgh, for appellant (at 1449) and appellee (at 1558).

Before ROWLEY, President Judge, and CAVANAUGH and HESTER, JJ.

ROWLEY, President Judge:

This action has its origin in the "Election Day Flood" of November 3-6, 1985. Appellants John H. Engle, William R. Engle, and William C. Engle, t/d/b/a Engle's Holiday Harbor, a partnership, brought the action against West Penn Power Company ("West Penn"), owner and operator of the Lake Lynn Dam on the Cheat River in West Virginia, in an attempt to recover for property damage incurred in the flood. The Engles were certified as representatives of a class consisting of all persons or entities who suffered property damage in Pennsylvania between November 3 and 6, 1985, as a result of West Penn's actions "in obstructing and/or releasing improperly flood waters from the Lake Lynn Dam and/or failing to adequately notify such individuals or entities."

In their appeal, docketed in this Court at No. 1449 Pittsburgh 1990, from the judgment entered on the jury's verdict in favor of West Penn, the Engles contend that the trial court erred in admitting evidence of damages incurred by persons located upstream of the Lake Lynn Dam. In its cross-appeal, docketed in this Court at No. 1558 Pittsburgh 1990, West Penn contends that 1) the trial court erred in permitting trial to proceed on a failure to warn theory, and 2) the trial court lacked subject matter jurisdiction, inasmuch as the Federal Power Act places the present action within the exclusive jurisdiction of the federal district courts. For the reasons set forth below, we affirm the judgment entered in favor of West Penn.

An understanding of the Lake Lynn Dam's location and function is essential to our review. The Cheat River flows north through West Virginia and joins the Monongahela River at Point Marion, Pennsylvania, just north of the Pennsylvania-West Virginia border. The Lake Lynn Dam is located on the Cheat River in West Virginia, several miles south, or upstream, of the point at which the Cheat joins the Monongahela. The Monongahela flows north from Point Marion past Greene and Washington counties to the west and Fayette and Westmoreland counties to the east, eventually combining with the Allegheny River to form the Ohio River at Pittsburgh in Allegheny County. The marina owned by the Engles, the lead plaintiffs in this action, is located in Washington County at the confluence of Ten Mile Creek and the Monongahela River. All of the members of the plaintiff class are persons or entities located north, or downstream, of Lake Lynn Dam; most of the class members are residents of or entities located in Washington County.

The Lake Lynn Dam is a hydroelectric dam. As Dr. James Romualdi, an expert witness for West Penn, explained at trial, it is a "run of the river dam" (N.T. at 669) rather than a flood control dam. Hydroelectric projects such as the Lake Lynn Dam are federally licensed and regulated. As this Court has explained,

Congress created the Federal Power Commission (now the Federal Energy Regulatory Commission [FERC] ) to carry out the task of establishing federal regulations over most wholesale transactions of electric and gas utilities engaged in interstate commerce. See Federal Power Act of 1935 (Title II of the Public Utility Act of 1935), 49 Stat. 838-863....

Engle v. West Penn Power Company, 366 Pa.Super. 104, 112, 530 A.2d 913, 917 (1987), alloc. denied, 518 Pa. 626, 541 A.2d 1137 (1988), cert. denied, 488 U.S. 965, 109 S.Ct. 489, 102 L.Ed.2d 527 (1988) ("Engle I ") (citations omitted). Among the regulations issued by the FERC was a requirement, now codified at 18 C.F.R. § 12.20 (1982), that an emergency action plan be prepared for facilities such as the Lake Lynn Dam. As will be discussed in Section I, infra, the adequacy of the warning plan for the Lake Lynn Dam became a central issue in this case.

Between November 3 and 6, 1985, heavy rainfall caused extensive flooding of the Monongahela. In their two-count class action complaint, filed in the Court of Common Pleas of Washington County on November 21, 1985, appellants alleged that their boating and marina business suffered extensive damage as a result of West Penn's negligence in operating the dam (Count I) or as a result of West Penn's maintenance of a dangerous instrumentality, i.e., the dam (Count II).

In response, West Penn removed appellants' action to the United States District Court for the Western District of Pennsylvania, asserting that the Federal Power Act, 16 U.S.C. §§ 803(c) and 825p, conferred exclusive jurisdiction over appellants' claims on the federal district courts. ¹ The Engles then moved to remand the case to the state court. In an order entered March 13, 1986, the federal district court granted the motion to remand, noting in an accompanying opinion that because no federal claims appeared on the face of the Engles' complaint and there was no basis for concluding that the Engles had sought by "artful pleading" to avoid stating a federal claim, West Penn had failed to carry its burden of establishing federal jurisdiction. The court explained that "[w]hen a plaintiff presents a state law claim and a defendant counters by arguing that federal law preempts the state law on which plaintiff relies, the federal claim appears by way of defense and does not provide an adequate basis for removal." Engle v. West Penn Power Company, Civil Action No. 85-2924, slip op. at 4 (W.D.Pa. Mar. 13, 1986). The Court added, however, that "[i]n remanding the case, this Court has made no determination on the merits of defendant's contention that plaintiffs' claims are within the exclusive jurisdiction of the federal courts and are, therefore, totally preempted by federal law. Defendant is free to raise these questions in the state court." Id. at 7 n. 3.

After the case was remanded to the Court of Common Pleas, West Penn filed preliminary objections in which it renewed its claim that the Court of Common Pleas lacked subject matter jurisdiction over the Engles' action. By order and opinion dated August 4, 1986, the trial court dismissed with prejudice West Penn's preliminary objection as to subject matter jurisdiction. At West Penn's request the trial court certified the interlocutory order pursuant to 42 Pa.C.S. § 702(b), and West Penn then obtained this Court's permission to appeal from the order. In its appeal to this Court, West Penn restated its contention that the action was within the exclusive jurisdiction of the federal courts. This Court held, however, that the courts of this Commonwealth have jurisdiction to hear and decide the claims formulated by appellants, Engle I, supra, and the case proceeded in the Court of Common Pleas.

In an order entered October 3, 1988, and amended October 27, 1988, the trial court certified the following plaintiff class:

All individuals or entities who suffered property damage in Pennsylvania between November 3 and November 6, 1985, as the result of the actions of West Penn Power Company, in obstructing and/or releasing improperly flood waters from the Lake Lynn Dam and/or failing to adequately notify such individuals or entities.

In the same order, the trial court stated that the class action would be limited to the following issues:

1. Whether the defendant, West Penn Power Company, during November 1985 was negligent in obstructing and or [sic] releasing improperly flood waters from the Lake Lynn Dam during November 3-6, 1985 and/or in failing to adequately notify the individuals or entities who suffered property damages.

2. Whether the negligent actions, if any, of the West Penn Power Company during the aforesaid period was a proximate cause of property damages suffered by the plaintiffs.

3. Whether the maintenance and operation of the hydro-electric project known as the Lake Lynn Dam, by its [sic] defendant West Penn Power Company, was an abnormally dangerous activity of the defendant, and whether the maintenance of such alleged dangerous instrumentality by the defendant Power Company was a proximate cause of any harm to the plaintiffs.

On September 7, 1988, West Penn filed motions for judgment on the pleadings and for summary judgment. In an order entered August 7, 1989, the trial court denied the motion for judgment on the pleadings and for summary judgment on Count I of the amended complaint, but granted summary judgment in favor of West Penn on Count II, which stated a claim of strict liability resulting from the maintenance of an abnormally dangerous instrumentality.

The case went to trial before a jury in September 1989. At the close of appellants' case West Penn presented a motion for a compulsory nonsuit, contending, inter alia, that 1) the plaintiffs had failed to present evidence on the issue of the alleged improper release of water from the dam and 2) they had not included in their complaint a cause of action based on West Penn's alleged failure to warn and had failed to establish that West Penn had a duty to warn. After appellants' counsel conceded that they had not presented sufficient evidence concerning the alleged improper release of water, the court entered a compulsory nonsuit on that issue and ruled that "the case will continue only on the issue of the alleged failure to warn" (N.T. at 286). ² The jury's verdict was that West Penn was negligent but that West Penn's...