Schriner v. Pennsylvania Power & Light Co.

Decision Date06 December 1985
Parties, Prod.Liab.Rep. (CCH) P 10,811 Steven SCHRINER and Terry Schriner, His Wife, t/a Schriner Farms v. PENNSYLVANIA POWER & LIGHT COMPANY, Ray D. Shenk, t/a Shenk's Farm Service, Individually and as Agent for Dairy Equipment Company and Dairy Equipment Company t/a Boumatic. Appeal of PENNSYLVANIA POWER & LIGHT COMPANY, Pennsylvania Public Utility Commission, Amicus Curiae. 879 Phila. 1984.
CourtPennsylvania Superior Court

Patrick J. O'Connor, Philadelphia, for appellant.

John R. Bonner, Williamsport, for Schriner, appellees.

Kevin E. Osborne, Harrisburg, for Shenk, appellee.

Richard J. Mills, Pittsburgh, for Dairy Equip., appellee.

Before SPAETH, President Judge, and JOHNSON and SHOYER *, JJ.

JOHNSON, Judge:

In this appeal, an electric power company asks us to decide whether the Pennsylvania Public Utility Commission (PUC), rather than the court of common pleas, has primary jurisdiction over a suit alleging injury to dairy cattle as a result of "stray voltage" from milking equipment electrified by the power company. The company would also have us determine whether the doctrine of strict liability in tort may be applied against a Pennsylvania public utility. The appeal is from an interlocutory order which denied the preliminary objections of Appellant, Pennsylvania Power & Light Company (PP & L). The PUC has filed a brief, as amicus curiae, claiming that it has initial and primary jurisdiction. We granted Appellant's petition for permission to appeal.

We conclude that the trial court was correct in its conclusion that jurisdiction of this matter properly lies with the court of common pleas. We also conclude that the doctrine of strict liability may, under proper circumstances, be applied against a Pennsylvania public utility. Accordingly, we affirm the holding of the court below and remand for further proceedings not inconsistent with the views set forth herein.

Appellees Steven and Terry Schriner (the Schriners) seek damages for the loss of their dairy cattle which, as a result of a mastitis infection, either died or had to be destroyed. The Schriners allege that this infection occurred as a result of "stray voltage" from milking equipment which had been manufactured by Appellee Dairy Equipment Company t/a Boumatic, sold and installed by Appellee Ray D. Shenk t/a Shenk's Farm Service, and electrified by PP & L.

The first of the two controlling questions of law certified to this Court for review concerns whether the Pennsylvania Public Utility Commission, and not the court, has primary jurisdiction over the subject matter of this litigation. We think not.

It was recently stated by our supreme court that "[c]ourts should not be too hasty in referring a matter to an agency, or to develop a 'dependence' on the agencies whenever a controversy remotely involves some issue falling arguably within the domain of the agency's 'expertise.' " Elkin v. Bell Telephone Company of Pennsylvania, 491 Pa. 123, 134, 420 A.2d 371, 377 (1980). With this caveat in mind, we proceed to address PP & L's first issue.

The Public Utility Code, Act of July 1, 1978, P.L. 598, No. 116, § 1, 66 Pa.C.S. § 101 et seq., placed a broad range of subject matter under the control of the PUC making that agency responsible for ensuring the adequacy, efficiency, safety and reasonableness of public utility services, facilities and/or rates. See 66 Pa.C.S. § 1501; Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977). In addition, there are benefits to be derived from making use of the special experience and expertise of the PUC in complex areas with which judges and juries have little familiarity. See Elkin v. Bell Telephone Company of Pennsylvania, supra. Therefore, where the subject matter is within an agency's jurisdiction and where it is a complex matter requiring special competence, with which the judge or jury would not or could not be familiar, the proper procedure is for the court to refer the matter to the appropriate agency. Id. 491 Pa. at 134, 420 A.2d at 377.

The first question we must ask, then, is whether the instant lawsuit involves the reasonableness, adequacy or sufficiency of Appellant PP & L's operation of its transmission lines, thereby bringing this case within the primary jurisdiction of the PUC. Appellant relies heavily upon Elkin in making its argument that primary jurisdiction of this issue rests with the PUC. In Elkin, however, plaintiff stood in the position of a consumer of the particular utility involved, alleging that the insufficiency of telephone services provided to plaintiff led to various damages. Thus, the question upon which liability attached was the reasonableness, adequacy and sufficiency of the telephone service being furnished to a known customer.

In the instant case, while the Schriners have ostensibly sued from the position of consumers, the complaint contains allegations which only remotely deal with the reasonableness, adequacy, efficiency or safety of the services, facilities or rates provided by Appellant, PP & L. Among the specific allegations of negligence, the Schriners have stated that PP & L, having exclusive control of its distribution system, allowed voltage to escape therefrom in large enough quantity to adversely affect the Schriners' dairy cattle; that PP & L failed to advise the Schriners of corrective measures which could have been taken by them to eliminate the stray voltage problem; and that PP & L undertook to advise and supervise corrective measures to eliminate the problem and did so negligently, allowing the problem to continue and eventually injure the Schriners. These are traditional concepts of negligence which only tangentially address the reasonableness, adequacy and sufficiency of the electric service being provided by PP & L.

PP & L argues, further, that the problem of "stray voltage" is so complex that it requires the special expertise of the PUC. However, resolution of the Schriners' claims depends upon no rule or regulation predicated upon the peculiar expertise of the PUC, no agency policy, no question of service or facilities owed the general public, and no particular standard of safety or convenience articulated by the PUC. DeFrancesco v. Western Pennsylvania Water Company, 499 Pa. 374, 378, 453 A.2d 595, 597 (1982).

The gravamen of the Schriners' complaint is that they sustained injury due solely to the negligence of PP & L in failing to deal with the problem of stray electricity on the Schriners' farm. It is important to note that a complaint brought before the PUC, seeking damages, may not result in an award by that body, even should the PUC determine the complaint to be meritorious, as the PUC lacks authority to make such an award. See Feingold v. Bell of Pennsylvania, supra. This was the type of situation addressed by our supreme court in Elkin, supra, where it was stated:

Where ... the matter is not one peculiarly within the agency's area of expertise, but is one which the courts or jury are equally well-suited to determine, the court must not abdicate its responsibility. In such cases, it would be wasteful to employ the bifurcated procedure of referral [to the PUC], as no appreciable benefits would be forthcoming.

Elkin, supra, 491 Pa. at 134-35, 420 A.2d at 377 (footnote omitted).

Thus, we agree with the trial court that

[w]hile the expertise of a member of the PUC would be helpful, this area of litigation is no more complex than many others which come before the Court. With the assistance of expert testimony, there is no reason why a judge or jury could not become familiar with the alleged problem of stray voltage injury to dairy cattle.

Opinion, 5/31/83 at 4. And, we agree with Elkin that it would be wasteful to employ a bifurcated procedure of referral to the PUC, as that body is incapable of providing an adequate remedy should the Shriners' complaint be found to have merit. Resolving the essential question of whether PP & L failed to perform what is alleged to have been an affirmative duty requires no special knowledge or experience and falls within the scope of the ordinary business of our courts. See DeFrancesco v. Western Pennsylvania Water Company, supra, 499 Pa. at 378, 453 A.2d at 597.

The second controlling question of law certified to this Court for review concerns the applicability of the doctrine of strict liability in tort to a Pennsylvania public utility.

Our courts have long recognized that the standard of care imposed upon a supplier of electric power, particularly when that power is supplied at high voltage, is among the highest recognized in the law of negligence, Densler v. Metropolitan Edison Company, 235 Pa.Super. 585, 345 A.2d 758 (1975); and that, while a supplier of electricity must exercise the highest degree of care, it is not an insurer against injury. Skoda v. West Penn Power Company, 411 Pa. 323, 191 A.2d 822 (1963); Kintner v. Claverack Rural Electric Co-operative, Inc., 329 Pa.Super. 417, 478 A.2d 858 (1984). In Karam v. Pennsylvania Power & Light Company, 205 Pa.Super. 318, 322, 208 A.2d 876, 878 (1965), this Court unequivocally stated that "the salutary and well settled rule in this Commonwealth is that one using a dangerous agency or instrumentality is bound to exercise care commensurate with the danger. One maintaining a high voltage electric wire line is required to exercise the highest degree of care practicable." See also Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957); Bosley v. Central Vermont Public Service Corporation, 127 Vt. 581, 255 A.2d 671 (1969).

The appellate courts of this Commonwealth have not, however, directly addressed the possible application of strict liability, under the Restatement (Second) of Torts, to a supplier of electricity. But see University of Pittsburgh v. Equitable Gas Company, 5 Pa.D. & C.3d 303 (Alleg.Co.1978); Wivagg v. Duquesne Light Company, 73 Pa.D. &...

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