Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

PENNSYLVANIA POWER & LIGHT COMPANY v. GULF OIL CORPORATION (09/28/79)

SUPERIOR COURT OF PENNSYLVANIA


filed: September 28, 1979.

PENNSYLVANIA POWER & LIGHT COMPANY,
v.
GULF OIL CORPORATION, SCALLOP NUCLEAR INC. AND GENERAL ATOMIC COMPANY, APPELLANTS

No. 3051 October Term, 1978, Appeal From Paragraph 5 of the Order Dated June 21, 1978 of the Court of Common Pleas of Lehigh County, January Term, 1975, No. 453.

COUNSEL

Gordon W. Gerber, Philadelphia, for appellants.

K. Robert Conrad, Philadelphia, for appellee.

Cercone, President Judge, and Price, Van der Voort, Spaeth, Hester and Wieand, JJ. Van der Voort, J., concurs in the result. Wieand, J., did not participate in the consideration or decision in this case.

Author: Spaeth

[ 270 Pa. Super. Page 520]

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

[ 270 Pa. Super. Page 521]

    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,*fn1 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.*fn2 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.*fn3 On January 4, 1978, PP&L filed an answer to GAC's petition for reconsideration,*fn4 and after depositions*fn5 and oral argument, the

[ 270 Pa. Super. Page 522]

    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,*fn6 and on December 27, 1978, this court permitted the appeal.*fn7

In support of its argument that it cannot obtain a fair trial in Lehigh County, GAC cites the deposition testimony

[ 270 Pa. Super. Page 523]

    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.*fn8 Based upon this testimony, and using population and

[ 270 Pa. Super. Page 524]

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.*fn9

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.*fn10

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

[ 270 Pa. Super. Page 525]

    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*fn11 that a recovery for PP&L would represent a benefit to PP&L's customers.*fn12

[ 270 Pa. Super. Page 526]

The issue may be framed in two arguments: (1) that Pennsylvania law entitles GAC to a change of venue;*fn13 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.

1

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).*fn14 The statute by which the legislature conferred such power in a civil case*fn15 is the Act of March 30, 1875, P.L. 35, §§ 1-3, as amended, Act of March 18, 1909,

[ 270 Pa. Super. Page 527]

P.L. 37, § 1, 12 P.S. §§ 111-113 (1953).*fn16 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.

[ 270 Pa. Super. Page 528]

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.

[ 270 Pa. Super. Page 529]

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 & Pittsburgh 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 & Pittsburgh Ry. Co., supra; Manu-mine Research and Development Co. v. Pennsylvania Turnpike Commission, 79 Dauph. 341 (1964); Durham Terrace, Inc. v. Page 529} WKAP, Inc., 26 Leh.L.J. 452 (1956).*fn17 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 & Pittsburgh 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 & Pittsburgh 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 . . .

[ 270 Pa. Super. Page 530]

    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. 1076 (1906); Willoughby v. Buffalo, Rochester & Pittsburgh Ry. Co., supra 203 Pa. at 188, 52 A. at 246 (discussing proof necessary under the Act before the 1909 amendments). In reviewing the application, the lower court is not "compelled to accept as conclusive the [application and] affidavits . . . [alone] but may direct testimony be taken to enable it to ascertain the facts" and to make the required findings. Brittain v. Monroe County, supra 214 Pa. at 650, 63 A. at 1077. Where the facts as found by the lower court are supported by the record, the decision of the lower court shall be respected on appeal. Everson v. Sun Co., supra.*fn18

The number of inhabitants with an interest adverse to the applicant is significant in determining whether venue should be changed because if only a small percentage of the people of a county can be said to have an adverse interest, the applicant may still obtain an impartial jury by using his challenges to eliminate the interested members of the panel of veniremen. By requiring that the adverse interest be held by "a large number of the inhabitants," the legislature

[ 270 Pa. Super. Page 531]

    made plain that venue should be changed only in a case where the percentage of adversely interested inhabitants is so great that even by using his challenges, the applicant will be unable to obtain an impartial jury. Thus in Everson v. Sun Co., supra, the Supreme Court, in affirming the lower court's denial of an application for a change of venue, stated:

The purpose of the act of 1875 must be kept in view in ascertaining what constitutes in contemplation of the statute a large number of the inhabitants of a county. The legislative intent was to secure to the litigant a jury which would afford him an opportunity to have a fair and impartial trial; and when that cannot be obtained in the county in which the action is pending by reason of the number of the inhabitants throughout the county having an interest adverse to him in the question involved, then there is in contemplation of the act "a large number of the inhabitants" having an adverse interest, which requires the court to change the venue. The fact which authorizes a change of venue under paragraph five of section one of the act is that "a large number of the inhabitants of the county," and not of a particular locality in the county, is interested in the controverted question in the cause. The question involved in the present suit arises out of an alleged cause of action which, if it exists at all, exists only in one locality in Delaware county, and affects only those who reside or have property interests in that particular locality. A jury is drawn from the body of the whole county, and where, as here, the persons interested in the question involved in the cause at issue are confined to a particular locality and the number is relatively very small in comparison with the population of the whole county, there is no sufficient ground to send the cause to another county for trial. By exercising their right to challenge, the parties can secure a jury which will not be prejudiced on account of the number of people who are interested in the result of the cause. The number of people interested in a pending action may be a large proportion of the population of the community in which the cause of action

[ 270 Pa. Super. Page 532]

    arose, but it may be a very small proportion of the whole county. It is apparent, we think, that taking into consideration the population of Delaware county and the number of inhabitants in the community who are alleged to be affected by defendant's works, a jury can be obtained from the panel, taken from the whole county, which will have no interest in the cause and which will be strictly impartial.

215 Pa. at 233-34, 64 A. at 365-366. See Presbyterian Church v. Philadelphia, Bristol & Trenton Street Ry. Co., 217 Pa. 399, 400, 66 A. 652 (1907) (lower court did not err in denying application for change of venue where interest in case was confined to portion of borough and population of borough was less than one-tenth of population of county).

Proof that 98.5% of the possible veniremen in Lehigh County have an interest adverse to GAC would certainly satisfy the "large number of inhabitants" requirement, as in that case only 3 out of every 200 veniremen would be unchallenged. PP&L argues, however, that only 44.9% of the possible veniremen of Lehigh County are its customers, and that very few, if any, of that number would have an interest adverse to GAC.

GAC's 98.5% figure is apparently based upon a calculation using the number of PP&L customers as compared to the number of households in Lehigh County and the population of the households. PP&L's 44.9% figure is apparently based upon a calculation of customers in which the definition of "customer" is limited to each meter or billing name and does not include the other members of the billed customer's household.*fn19 Thus GAC defines "customer" broadly, as anyone who receives the benefit of electricity supplied by PP&L, while PP&L defines "customer" narrowly, as anyone

[ 270 Pa. Super. Page 533]

    who is billed for electricity. In the context of determining the number of inhabitants who have an interest adverse to GAC, however, neither figure is very helpful. GAC's 98.5% figure seems too broad as it would apparently include tenants in a multi-family single meter house where the landlord pays the bill sent by PP&L. These tenants do not pay PP&L, but pay for electricity as part of their rent. Thus they would receive no benefit if their landlord's future electric bills were reduced.*fn20 PP&L's 44.9% figure seems too limited as it would apparently exclude the spouse and other related members of the billed customer's household, although these persons might benefit if the billed customer's electric bills were reduced.

The lower court made no finding as to which figure was correct. See Presbyterian Church v. Philadelphia, Bristol & Trenton Street Ry. Co., supra (number of inhabitants is question of fact to be resolved by trial judge). Such a finding would probably be impossible without an examination of data concerning types of housing, and we cannot make it. Its absence, however, is not crucial, for our concern is not to determine the number of veniremen who are PP&L customers, however "customer" may be defined, but the number of veniremen who have an interest adverse to GAC. The fact that a person is a customer of PP&L does not by itself mean that he has an interest adverse to GAC. Cf. Eyre v. Berry, supra (fact that majority of inhabitants are Republicans does not mean that defendant cannot obtain fair trial in libel action brought by Republican official).*fn21 Thus even if GAC's 98.5% figure is accepted as correct, we

[ 270 Pa. Super. Page 534]

    still must determine how many of those customers have an interest adverse to GAC.

GAC's argument is that all of the 98.5% have an interest adverse to it. However, we find this argument deficient in several respects.

Fundamental to the notion of interest as argued by GAC is the assumption that PP&L will pass any recovery back through to its customers either by reimbursement or reduced electric rates. This assumption is questionable, for its correctness depends upon a future decision by a third party, the PUC, which decision no one can predict with any certainty. Thus there can be no present benefit to PP&L customers but only the possibility of a future benefit. As such the customers' interest is speculative. See Brittain v. Monroe County, supra (interest of taxpayers speculative); see also Virginia Electric & Power Co. v. Sun Shipbuilding & Dry Dock Co., 389 F.Supp. 568 (E.D.Va.1975) (possible interest in award contingent on future decision by state regulatory commission is speculative).

Another questionable assumption in GAC's argument is that the benefit to PP&L customers would be substantial.*fn22 While GAC has argued that the benefit to each customer would be between $43.43 and $289.86, to take PP&L's low figures and GAC's high figures, see note 9 supra, the deposition testimony of Mr. O'Hara predicted that if the PUC did indeed rule that the recovery could go to PP&L

[ 270 Pa. Super. Page 535]

    customers, any such benefit could be spread over a period of years. Thus GAC's proof did not demonstrate that a venireman will immediately get a sum certain but only that a venireman who remains a PP&L customer may over a period of years receive some benefits in the form of reduced electric rates. This interest, unlike the interest of an employee or shareholder of a corporation,*fn23 is much like the interest of taxpayers whose taxes might be affected by their judgment as jurors in a case involving the county: "too shadowy, indirect, remote and contingent to be within the rule that a man cannot be a judge in his own case." Brittain v. Monroe County, supra, 214 Pa. at 651, 63 A. at 1077; see Pennsylvania R.R. Co. v. City of Reading, supra, 254 Pa. at 117, 98 A. at 793 (interest under Act of 1875 does not mean interest of a taxpayer).*fn24

[ 270 Pa. Super. Page 536]

Considering both the speculative nature of the benefit and the fact that its immediate impact may be insignificant, we must agree with PP&L that GAC's argument that the veniremen have an interest adverse to it is tenuous. In In re Virginia Electric & Power Co., 539 A.2d 357 (4th Cir. 1976), the United States Court of Appeals for the Fourth Circuit was confronted with a situation similar to that with which we are confronted. The question was whether the district judge should have recused himself in a case where the electric utility (VEPCO) that served him was claiming $152,000,000 in damages, recovery of which could result in a refund of between $70 and $100 to the judge. In holding that recusal was not required, the Fourth Circuit compared the interest of the judge to a mere bare expectancy and stated:

We are inclined to agree with the district court that $70 to $100 cash in hand is not de minimis. But when the possibility of recovering that amount is spread over the next 40 years, is dependent upon VEPCO winning the lawsuit and the full amount claimed, collecting the judgment, and the Virginia State Corporation Commission requiring VEPCO to return increased fuel costs to its customers, we doubt that anyone other than Jimmy the Greek would offer anything for the judge's chance. A reasonable man would doubtless prefer a $2 ticket at Churchill Downs on the first Saturday in May.

539 F.2d at 368.

[ 270 Pa. Super. Page 537]

GAC argues, however, that it will be impossible to test the beliefs or knowledge of the Lehigh County Veniremen without specifically questioning them concerning their possible interest, thereby causing him to GAC because "[t]o even examine jurors concerning such an assumption on voir dire would raise the danger of unduly emphasizing prejudicial material." Long Island Lighting Co. v. New England Petroleum Corp., supra at 187, 362 N.Y.S.2d at 355. We recognize that sometimes, in questioning a panel of veniremen in order to determine whether there is prejudicial belief, counsel may risk sowing the seeds of the very prejudice he is asking about. Here, however, we are not persuaded that this risk is so substantial that venue must be changed. For example, it seems to us that a full explanation might be given by GAC, PP&L, or the lower court, informing the veniremen that any benefit to them is a mere possibility, depending on a ruling by the PUC, and that even if such a benefit were to be granted, it would probably be spread over a period of years. If after this explanation the court is satisfied from the veniremen's responses that they can try the case impartially, they should be permitted to sit as jurors. By combining questioning with a full explanation, GAC should be able to remove any preconception of a large benefit and replace it with knowledge that an individual's expectation of receiving anything is rather slight. Such knowledge should not in our view bar a juror from deciding the case impartially, just as a juror's knowledge that he is a taxpayer should not bar him from sitting in a case involving the taxing entity. See Pennsylvania R.R. Co. v. City of Reading, supra; Brittain v. Monroe County, supra. In making these remarks we do not presume to dictate to counsel. If the approach to voir dire that we have suggested is not satisfactory to counsel, we leave it to them and the lower court to find some means of dispelling any venireman's

[ 270 Pa. Super. Page 539]

    preconceptions, while at the same time avoiding the creation of prejudicial suspicions.*fn27

GAC further argues that its application for a change of venue should be granted to avoid the appearance of impropriety. We agree with GAC that appearance may be significant, as "'[a]ny tribunal . . . must not only be unbiased but must avoid even the appearance of bias.'" Gardner v. Repasky, 434 Pa. 126, 129, 252 A.2d 704, 706 (1969), quoting Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 150, 89 S.Ct. 337, 340, 21 L.Ed.2d 301 (1968); see Keystone Ins. Co. Appeal, 224 Pa. Super. 404, 406, 307 A.2d 55, 56 (1973); Donnon v. Downingtown Civil Service Comm., 3 Pa. Commw. 366, 368, 283 A.2d 92, 93 (1971). However, we cannot find that a trial by a Lehigh County jury in this case would appear improper. GAC's argument that it would is based upon the assumption that the PP&L customers in Lehigh County have an interest in the case adverse to GAC, and we have held this interest to be too contingent, and possibly insignificant, to "raise [GAC's] contention of bias from the realm of speculation to the realm of fact." Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734 (1950).

GAC's final argument is that the possibility and appearance of prejudice, as shown on the record, are sufficient to require that venue be changed because they outweigh the interest of PP&L in having the case tried in the forum of its choosing.*fn28 This argument also must be rejected. As plaintiff PP&L had the right "to choose the place of

[ 270 Pa. Super. Page 540]

    suit [and its] choice of a forum should not be disturbed except for weighty reasons.'" Walker v. Ohio River Co., 416 Pa. 149, 152, 205 A.2d 43, 45 (1964), quoting Plum v. Tampax, Inc., 399 Pa. 553, 561, 160 A.2d 549, 553 (1960). A change of venue may be required for such "weighty reasons" as are identified in the Act of 1875, but the question of whether an application for a change of venue should be granted is not decided by balancing the interests of the parties.*fn29 PP&L did not have to prove that its reasons for bringing the action in Lehigh County outweighed GAC's reasons for wanting the venue of the action changed; instead the burden was on GAC to prove that it was entitled to have the venue of the action changed.

GAC has particularly urged upon us the trial court's decision in Long Island Lighting Co. v. New England Petroleum Corp., supra. In that case Long Island Lighting Company (LILCO) brought an action in Nassau County against the New England Petroleum Corporation (NEPCO) seeking $62,000,000 in damages. LILCO provided power to 95% of the residents of Nassau County. The action was a result of the scarcity of fuel caused by the Arab oil embargo. LILCO also had brought an action for $186,000,000 treble damages in federal court against several oil companies based upon the same transaction. Newspapers, including the New York Times, the Wall Street Journal, and Newsday, had reported both actions and had carried a statement by a LILCO spokesman that any recovery would result in a direct rebate to LILCO customers. The reports did not distinguish between the state and federal actions with respect to the promised rebate. Faced with these facts, the trial court granted NEPCO's application for a change of venue.

[ 270 Pa. Super. Page 541]

We find this case distinguishable in the important respects that in it there was extensive publicity about the litigation and the newspapers had carried statements that a recovery would result in a rebate to LILCO customers. Thus there was both an atmosphere of prejudice, in a general sense, and the additional specific fact that the people of Nassau County had been informed that they had an interest in the case. Here, by contrast, there has been no extensive publicity prejudicial to GAC,*fn30 nor any statement to Lehigh County residents that they can expect a rebate if PP&L wins. See County of Nassau v. Southside Hospital, 89 Misc.2d 1063, 393 N.Y.S.2d 512 (1977) (distinguishes Long Island Lighting v. New England Petroleum Corp., supra, on several grounds including that there was extensive prejudicial publicity and that the financial ramifications of the case had been widely reported).

Neither are we persuaded by GAC's citation of M & A Electric Power Cooperative v. Georger, Mo., 480 S.W.2d 868 (1972), and Ozark Border Electric Cooperative v. Stacy, 348 S.W.2d 586 (Mo.App.1961). Those cases involved the disqualification of members of cooperatives, who, under Missouri law, were treated not only as customers but also shareholders in the cooperatives having "a direct interest of a proprietary nature" in the outcome of the litigation. M & A Electric Power Cooperative v. Georger, 480 S.W.2d at 873. See Seeherman v. Wilkes Barre Co., supra.

We therefore conclude that GAC failed to meet its burden of proof, and find no error in the lower court's denial of the application for change of venue under the fifth subsection of section 1 of the Act of 1875. It follows from this conclusion that GAC has also failed to prove that the lower court abused its discretion in denying the application for change of venue under subsections I and III of section 3

[ 270 Pa. Super. Page 542]

    of the Act. As has been discussed, under subsections I and III the lower court was empowered to "refuse or award such change of venue, as in its discretion it shall see fit." It is therefore more difficult for an appellant whose application for change of venue has been denied to show error under subsections I and III of section 3 than under the fifth subsection of section 1.

2

GAC's argument that the lower court has violated its right to due process of law as guaranteed by the fourteenth amendment of the United States Constitution also fails to persuade us.

While it is settled that "[t]he constitutional standard of fairness [under the due process clause] requires that a defendant have 'a panel of impartial, indifferent jurors,'" Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975), quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961), GAC has the burden of proving that it cannot obtain such a panel in Lehigh County. See Irvin v. Dowd, supra. GAC's argument with respect to due process, like its argument with respect to change of venue under the Act of 1875, depends upon its contention that the veniremen of Lehigh County have, and believe that they have, an interest in the case adverse to GAC. We have concluded, however, that GAC has not shown such an interest. While it is true that a violation of due process may be found where the tribunal has a pecuniary interest in the outcome of the case such that unfairness by the tribunal can be assumed, see Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927),*fn31 we will not assume unfairness, and therefore will not find a violation of due process, where the only interest shown is a speculative and

[ 270 Pa. Super. Page 543]

    perhaps insignificant possibility of some future benefit.*fn32 As to GAC's concern that some of the PP&L customers believe that they will benefit, this belief, if indeed it does exist, is something that we believe can be satisfactorily discovered on voir dire.*fn33

Affirmed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.