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STEVEN SCHRINER AND TERRY SCHRINER v. PENNSYLVANIA POWER & LIGHT COMPANY (12/06/85)

filed: December 6, 1985.

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



Appeal from the Order entered January 24, 1984, Court of Common Pleas, Lycoming County, Civil Division at No. 82-1472.

COUNSEL

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.

Spaeth, President Judge, and Johnson and Shoyer,*fn* JJ.

Author: Johnson

[ 348 Pa. Super. Page 180]

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

[ 348 Pa. Super. Page 181]

    jurisdiction over the subject matter of this litigation. We think not.

It was recently stated by our supreme court that "[c]courts 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,

[ 348 Pa. Super. Page 182]

    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 ...


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