Yorty v. PJM Interconnection, L.L.C.
| Decision Date | 02 October 2013 |
| Citation | 79 A.3d 655,2013 PA Super 265 |
| Parties | Marlin YORTY and Nora McCormish v. PJM INTERCONNECTION, L.L.C., Appellant. |
| Court | Pennsylvania Superior Court |
OPINION TEXT STARTS HERE
Carl A. Solano, Philadelphia, for appellant.
Howard J. Bashman, Willow Grove, for appellees.
BEFORE: FORD ELLIOTT, P.J.E., MUNDY and FITZGERALD,* JJ.
OPINION BY FORD ELLIOTT, P.J.E.:
Appellant, PJM Interconnection, LLC (“PJM”), appeals the denial of its motion for summary judgment below. Finding that the trial court erred in not granting summary judgment, we reverse.
Since our decision goes against their favor, and because this is a summary judgment matter, we will accept the statement of facts presented by appellees:
In December 2009, plaintiff Marlin Yorty and his wife, Nora McCormish, filed suit in the Court of Common Pleas of Philadelphia County against 22 defendants. R.60a. Plaintiffs' complaint asserted two claims. Yorty asserted a claim sounding in negligence—and specifically alleged gross negligence—against the defendants (R.74a–78a), and McCormish asserted a claim for loss of consortium (R.78a).
Defendant PJM Interconnection, L.L.C. is a regional transmission organization [RTO] whose duties include coordinating the flow of electricity on the interstate electrical transmission grid owned and operated by local electric utilities. R.207a. In its role as a regional transmission organization, PJM monitors the transmission grid and notifies local utilities of problems with the grid that the local utility is then required to investigate and remedy. R.208a. As its full name indicates, PJM is organized as a private limited liability corporation.
When a repair that PJM requires a local utility to perform necessitates taking power lines out of service, PJM is responsible for ensuring that the remaining facilities and power lines remaining in service are sufficient to carry power to customers without interruption. R.208a. PJM performs this role with regard to the high voltage power lines located throughout Pennsylvania and in all or parts of 12 other states plus the District of Columbia. R.207a–08a.
Plaintiff Marlin Yorty worked as an electrician for PPL Electric Utilities Corp. at PPL's Juniata Substation in Perry County, Pennsylvania. R.72a. PPL's electricity transmission facilities include a portion of the Juniata–Conemaugh 500kV (500000 Volt) transmission line that transmits electricity between PPL's Juniata Substation and the Conemaugh switching station owned by two other power companies. R.210a.
In 2006, PJM informed PPL that a potential future grid reliability problem existed on PPL's Juniata–Conemaugh 500kV transmission line. R.212a. PPL then investigated the problem and devised a solution. Id. On June 13, 2008, PPL asked PJM for permission to take the Juniata–Conemaugh 500kV transmission line out of service on September 30, 2008 to replace the wavetrap on that line. Id. In response to that request, PJM studied whether this particular power outage would affect the delivery of power to other customers. R.212a–13a.
On the morning of September 30, 2008, PJM completed its final outage studies for PPL's request and granted PPL permission to remove the Juniata–Conemaugh 500kV transmission line from service so that the repairs could be performed. R.213a. According to plaintiffs complaint, PJM knew that a separate 500000 Volt transmission line, known as the Keystone–Juniata 500kV transmission line, runs parallel within 100 feet of the Juniata–Conemaugh 500kV transmission line for approximately 118 miles, including at the location of the intended PPL repairs. R.2157a. PJM further knew that when the Juniata–Conemaugh 500kV transmission line was de-energized for repairs, that line was vulnerable to induced voltage from the nearby energized Keystone–Juniata 500kV transmission line. Id.
Yorty was working in close proximity to the de-energized Juniata–Conemaugh 500kV transmission line on September 30, 2008 when induced power from the nearby parallel Keystone–Juniata 500kV transmission line caused the Juniata–Conemaugh 500kV transmission line to re-energize, inflicting the severe injuries that give rise to Yorty's suit. R.2138a–39a.
Appellees' brief at 3–5.
On October 6, 2011, PJM filed a motion for summary judgment.1 One of the bases 2 for the motion was a contention that PJM was immune from suit pursuant to a Tariff granted by the Federal Energy Regulatory Commission (“FERC”). The relevant provision of the Tariff stated as follows:10.2 Liability: Neither the Transmission Provider, a Transmission Owner, nor a Generation Owner acting in good faith to implement or comply with the directives of the Transmission Provider shall be liable, whether based on contract, indemnification, warranty, tort, strict liability or otherwise, to any Transmission Customer, third party or other person for any damages whatsoever, including, without limitation, direct, incidental, consequential, punitive, special, exemplary, or indirect damages arising or resulting from any act or omission in any way associated with service provided under this Tariff or any Service Agreement hereunder; including, but not limited to, any act-or omission that results in an interruption, deficiency or imperfection of service, except to the extent that the damages are direct damages that arise or result from the gross negligence or intentional misconduct of the Transmission Provider, the Transmission Owner, or the Generation Owner, as the case may be.
PJM Open Access Transmission Tariff at clause 10.2.
In denying the motion for summary judgment, the trial court ruled that there was no affirmative act of Congress authorizing the FERC to grant immunity to RTOs from tort claims. Further, the court held that even if negligence claims were preempted by the Tariff, the issue of whether PJM could still be liable for gross negligence was a jury question.
Following the trial court's March 8, 2012 order, PJM filed a petition on March 12, 2012 with the FERC seeking a declaratory order as to the scope of the immunity provision in PJM's Tariff. PJM served a copy of the petition on appellees who intervened and filed a response. On March 20, 2012, PJM filed a motion for reconsideration with the trial court. On April 2, 2012, PJM filed its notice of appeal to preserve its appeal rights.3
On June 7, 2012, the FERC granted PJM's motion for a declaratory order. Therein, the FERC wholly supported PJM's position and found that the Tariff barred all liability for ordinary negligence. On July 9, 2012, appellees requested a rehearing. On January 8, 2013, the FERC denied rehearing and issued an order fully endorsing its previous order. The FERC found that PJM has no direct physical control over the transmission grid, particularly during construction and maintenance. The FERC further held that the responsibility for performing maintenance on the grid and ensuring safety belongs solely with the Transmission Owner. The FERC found that the Transmission Owners Agreement between PJM and the Transmission Owners provides that the Owners will physically operate and maintain all facilities that the Owner possesses. The FERC found that PJM's role is merely one of scheduling when lines are taken out of operation in order to insure a reliable source of energy throughout the regional grid. Moreover, the FERC specifically found that PJM had no duty (or ability) to shut down the parallel Keystone–Juniata 500kV transmission line that re-energized the line on which appellee Marlin Yorty was working.
PJM raises the following issues on appeal:
1. Did the trial court err in denying summary judgment even though PJM's tariff, which has the full force of federal law, expressly states that PJM cannot be held liable for negligence in performing its services and thereby provides PJM with immunity from suit in this negligence action?
2. Did the trial court err in denying summary judgment even though plaintiffs' claims are preempted by federal law because PJM's federal tariff sets forth the duties PJM is authorized to undertake and those duties are inconsistent with the state-law duties on which plaintiffs seek to base PJM's liability in this action?
3. Did the trial court err in denying summary judgment even though, in light of the federal regulatory scheme, Pennsylvania could not and would not impose a duty of care on federally-created regional transmission organizations like PJM to assure the safety of the employees of local public utilities who are performing work on their employers' own electrical transmission facilities?
PJM's brief at 2.
Preliminarily, we must resolve a motion to quash this appeal filed by appellees. Appellees contend that this appeal is improperly taken from an interlocutory order. Ordinarily, an order denying a motion for summary judgment is considered interlocutory and unappealable; however, our supreme court has recognized that the collateral order doctrine may provide an exception to this rule. Aubrey v. Precision Airmotive LLC, 7 A.3d 256, 261 (Pa.Super.2010), appeal denied,615 Pa. 770, 42 A.3d 289 (2012). We agree and find that it applies instantly.
Whether an order is appealable as a collateral order is a question of law; as such, our standard of review is de novo and our scope of review is plenary. Rae v. Pennsylvania Funeral Directors Association, 602 Pa. 65, 74 n. 8, 977 A.2d 1121, 1126 n. 8 (2009). Moreover, where the issue presented is a question of law as opposed to a question of fact, an appellant is entitled to review under the collateral order doctrine; however, if a question of fact is presented, appellate jurisdiction does not exist. Aubrey, 7 A.3d at 262.
The Rules of Appellate Procedure provide as follows:
Rule 313. Collateral Orders
(a) General rule. An appeal may be taken as of right from a collateral order of an administrative agency or lower court.
(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved...
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