Pennsylvania Power & Light Co. v. Gulf Oil Corp.

• Decision Date: 14 January 1980
• Citation: 411 A.2d 1203,10 A.L.R.4th 1025,270 Pa.Super. 514
• Parties: , 10 A.L.R.4th 1025 PENNSYLVANIA POWER & LIGHT COMPANY, v. GULF OIL CORPORATION, Scallop Nuclear Inc. and General Atomic Company, Appellants.
• Court: Pennsylvania Superior Court

Page 1203

411 A.2d 1203

270 Pa.Super. 514, 10 A.L.R.4th 1025

PENNSYLVANIA POWER & LIGHT COMPANY, v. GULF OIL CORPORATION, Scallop Nuclear Inc. and General Atomic Company, Appellants.

Superior Court of Pennsylvania.

Argued March 23, 1979.

Filed Sept. 28, 1979.

Petition for Allowance of Appeal Denied Jan. 14, 1980.

Gordon W. Gerber, Philadelphia, for appellants.

K. Robert Conrad, Philadelphia, for appellee.

Before CERCONE, President Judge, and PRICE, VAN der VOORT, SPAETH, HESTER and WIEAND, JJ.

SPAETH, Judge:

On November 6, 1974, Pennsylvania Power & Light Company (PP&L) started the present action in assumpsit against General Atomic Company (GAC) and GAC's partners, Gulf Oil Corporation and Scallop Nuclear, Inc. The complaint was filed in Lehigh County and alleged that in the fall of 1973, PP&L had entered into a contract with Gulf United Nuclear Fuel Corporation, a predecessor of GAC, for the delivery of uranium and fuel fabrication devices, and for various services, to PP&L's nuclear power plants, and that in 1974 GAC had repudiated this contract, causing damages in excess of $10,000. PP&L requested a trial by jury. GAC filed an answer to the complaint, in which it denied the existence of any contract, raised other defenses, and pleaded various counterclaims. GAC also filed an application for change of venue, alleging, inter alia, ¹ that it could not obtain a fair trial because a large number of the inhabitants of Lehigh county were customers of PP&L and therefore had an interest in the case adverse to GAC. On March 30, 1976, the lower court denied this application. PP&L subsequently answered interrogatories propounded by GAC, in which it estimated its damages to be from $88,642,525.60 to $114,471,031.60 or more. ² On December 15, 1977, GAC petitioned the lower court to reconsider its order of March 30, 1976, denying GAC's application for change of venue. ³ On January 4, 1978, PP&L filed an answer to GAC's petition for reconsideration, ⁴ and after depositions ⁵ and oral argument, the lower court, by order of June 21, 1978, denied the petition for reconsideration. On October 4, 1978, at GAC's request, the lower court certified its order of June 21 for interlocutory appeal, ⁶ and on December 27, 1978, this court permitted the appeal. ⁷

In support of its argument that it cannot obtain a fair trial in Lehigh County, GAC cites the deposition testimony of George Vanderslice, PP&L's Vice President and Comptroller, and William O'Hara, a former Commissioner of the Pennsylvania Public Utility Commission (PUC). Both men testified that the PUC would have to rule on how a recovery of damages as large as the one sought by PP&L should be treated. They testified that they did not know how the PUC would in fact rule. Mr. Vanderslice testified, however, that it was doubtful that the PUC would permit PP&L to distribute any of the damages to its shareholders, and he admitted that the tendency of any PUC ruling would be to reduce the electric bills to PP&L's customers. Mr. O'Hara also testified that the damages would not go to the shareholders. He suggested three different ways in which the PUC might rule: either (1) reduce the rate base of PP&L's Susquehanna nuclear plant; or (2) allow a reimbursement under the fuel adjustment clause; or (3) permit PP&L to retain the damages recovered for additional capital investments. All of these possible rulings would result in lower electric bills to PP&L customers, but this benefit, according to Mr. O'Hara, could be spread over a period of several years. ⁸ Based upon this testimony, and using population and PP&L customer figures, GAC calculates that 98.5% of the residents of Lehigh County are customers of PP&L, and that each could receive a benefit of as much as $289.86. ⁹

Citing the deposition testimony of Dr. Burton Cohen, a witness expert in psychiatry, GAC argues that the possibility of such a benefit would color the jurors' perception of the evidence and prejudice them against GAC. ¹⁰

PP&L disputes GAC's argument on several grounds. It disagrees with GAC's calculation that 98.5% of the residents of Lehigh County are customers of PP& L. PP&L argues instead that only 44.9% of the residents are its customers. PP& L also argues that the possibility of any customer receiving any benefit is speculative, as no one can foresee the future actions of the PUC, and that even if the PUC were to rule in such a way that any recovery would benefit the customers and not the shareholders of PP&L, the immediate impact upon any individual juror would be negligible, as any such benefit would likely be spread over a period of several years. PP&L also argues that the jury could not be prejudiced against GAC and in favor of PP&L as there is no evidence that the people of Lehigh County believe ¹¹ that a recovery for PP&L would represent a benefit to PP&L's customers. ¹²

The issue may be framed in two arguments: (1) that Pennsylvania law entitles GAC to a change of venue; ¹³ and (2) that by forcing it to stand trial before a Lehigh County jury, the lower court has violated GAC's right to due process of law as guaranteed by the fourteenth amendment of the United States Constitution.

The Pennsylvania Constitution provides that "(t)he power to change venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law." Pa.Const. art. 3, § 23. This provision did not affect the Supreme Court's inherent power to grant a change of venue, but gave the legislature the right, by statute, to confer such power upon the trial courts. Apex Hosiery Co. v. Philadelphia County, 331 Pa. 177, 200 A. 598 (1938); Commonwealth v. Sacarakis, 196 Pa.Super. 455, 175 A.2d 127 (1961). ¹⁴ The statute by which the legislature conferred such power in a civil case ¹⁵ is the Act of March 30, 1875, P.L. 35, §§ 1-3, as amended, Act of March 18, 1909, P.L. 37, § 1, 12 P.S. §§ 111-113 (1953). ¹⁶ Pertinent to GAC's application for a change of venue in this case is the fifth subsection of section 1 and subsections I and III of section 3 of the Act. The fifth subsection of section 1 provides:

Changes of venue shall be made in any civil cause, in law or in equity, depending in any of the courts of this Commonwealth, in the cases following; namely

Fifth. Whenever a large number of the inhabitants of the county, in which cause is pending, have an interest in the question involved therein, adverse to the applicant, and it shall appear to the court that he cannot have a fair and impartial trial.

12 P.S. § 111.

Subsections I and III of section 3 provide:

Changes of venue may be made in any civil cause in law or equity depending in any of the courts of this commonwealth in cases following, to wit:

I. Whenever it shall appear to the satisfaction of the court in which such cause is depending, that any party to such cause hath an undue influence over the minds of the inhabitants of the said county, or that they are prejudiced against the applicant, so that a fair and impartial trial cannot be had.

III. Whenever it shall be made to appear to the court that a fair and impartial trial cannot be had in the county in which any such cause is depending.

Applications for change of venue under the provisions of this section shall be made to the court in term time in the manner provided in the second section of this act, and notice of the same having been given to the opposite party or his attorney, the court shall proceed to hear the parties by counsel, and affidavits if necessary, and may refuse or award such change of venue, as in its discretion it shall see fit.

12 P.S. § 113.

A change of venue under the fifth subsection of section 1 is mandatory. Everson v. Sun Co., 215 Pa. 231, 64 A. 365 (1906); Little v. Wyoming County, 214 Pa. 596, 63 A. 1039 (1906); Willoughby v. Buffalo, Rochester & Pittsburg Ry. Co., 203 Pa. 243, 52 A. 188 (1902). If the lower court "is satisfied of the truth of the facts alleged" in the application, 12 P.S. § 112, the change of venue "shall be made . . . (if) it shall appear to the court that the applicant cannot have a fair and impartial trial." 12 P.S. § 111 (emphasis added). See Everson v. Sun Co., supra; Willoughby v. Buffalo, Rochester & Pittsburg Ry. Co., supra; Manu-mine Research and Development Co. v. Pennsylvania Turnpike Commission, 79 Dauph. 341 (1964); Durham Terrace, Inc. v. WKAP, Inc., 26 Leh.L.J. 452 (1956). ¹⁷ A change of venue under section 3 is not mandatory, however, as the lower court "may refuse or award such change of venue, as in its discretion it shall see fit." 12 P.S. § 113 (emphasis added). See Little v. Wyoming County, supra; Willoughby v. Buffalo, Rochester & Pittsburg Ry. Co., supra. Thus, while the facts alleged in support of GAC's application raise arguments under both sections 1 and 3, the crucial question is whether GAC has proved that venue should be changed under section 1, for if it has, the lower court had no choice but to grant the application.

A change of venue "is not granted lightly or without real necessity," Pennsylvania R.R. Co. v. City of Reading, 254 Pa. 110, 117, 98 A. 791, 793 (1916) (opinion of lower court affirmed per curiam ); see Slushy v. Reliance Ins. Co., 74 D. & C.2d 624, 65 Luz.L.Reg. 71 (1974), and the applicant bears the burden of proving that the change of venue is necessary. Burns v. Pennsylvania R.R. Co., 222 Pa. 406, 408, 71 A. 1054, 1055 (1909); Willoughby v. Buffalo, Rochester & Pittsburg Ry. Co., supra 203 Pa. at 248, 52 A. at 189. Therefore, in order to have an application for change of venue under the fifth subsection of section 1 granted, the applicant must prove and the court must find that "a large number of the inhabitants of the county . . . have an interest . . . adverse to the applicant, and . . . that (the applicant) cannot have a fair and impartial trial." See Eyre v. Berry, 260 Pa. 518, 520, 103 A. 920 (1918); see also Brittain v. Monroe County, 214 Pa. 648, 63 A....