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JOHN H. ENGLE v. WEST PENN POWER COMPANY (08/25/87)

filed: August 25, 1987.

JOHN H. ENGLE, WILLIAM R. ENGLE, WILLIAM C. ENGLE, T/D/B/A ENGLE'S HOLIDAY HARBOR, A PARTNERSHIP AND AS REPRESENTATIVE OF A CLASS
v.
WEST PENN POWER COMPANY, A CORPORATION, APPELLANT



Appeal from the Order of the Court of Common Pleas, Civil Division, of Washington County at No. 271 November Term, 1985 A.D.

COUNSEL

Harold R. Schmidt, Pittsburgh, for appellant.

C. James Zeszutek, Pittsburgh, for appellees.

Del Sole, Popovich and Montgomery, JJ.

Author: Popovich

[ 366 Pa. Super. Page 105]

This is an appeal from an interlocutory order granted by permission by Superior Court to the appellant/defendant, West Penn Power Company. See Pa.R.App.P. 312; 42 Pa.C.S. § 702(b).

The record discloses that in November of 1985 the plaintiffs John H. Engle, William R. Engle and William C. Engle, t/d/b/a Engle's Holiday Harbor, a partnership, sought certification as representatives of a class in excess of fifty members whose property suffered damages due to the defendant's alleged negligence in the operation of its Lake

[ 366 Pa. Super. Page 106]

Lynn hydro-electric dam on the Cheat River in West Virginia.

The plaintiffs averred in their class action complaint that, inter alia, the commonality of questions of law and fact, when coupled with the complexities of the issues and the economies of scale that could be achieved by litigating the claims together, warranted that they be denominated representatives of the class action suit.

The two-count complaint sounded in negligence and alleged the defendant's maintenance of a dangerous instrumentality (the hydro-electric power dam) and the resultant imprudent release of water retained thereby, which, purportedly, was the direct and proximate cause of flooding in the area for which damages in excess of ten thousand dollars were being sought by the plaintiffs on behalf of the class once representative status was bestowed upon them.

Next of record appears preliminary objections, filed by counsel for the defendant, raising a question of jurisdiction. It was recounted therein that the dispute had been removed, by the defendant, to the United States District Court for the Western District of Pennsylvania. In a Memorandum Opinion filed by the Honorable Alan N. Bloch, the case was remanded to Common Pleas Court upon a finding that the claims of negligence and maintenance of a dangerous instrumentality were state law claims. In support thereof, Judge Bloch wrote:

Under the "well-pleaded complaint" rule, a defendant "may not remove a case to federal court unless the plaintiff's complaint establishes that the case 'arises under' federal law. Franchise Tax Board [v. Construction Laborers Vacation Trust], 463 U.S. [1] at 10 [103 S.Ct. 2841, at 2846-47, 77 L.Ed.2d 420 (1983).]"

(Memorandum Opinion at 3)

Because the face of the complaint could not be read as raising a federal question (under 28 U.S.C. § 1331) without reference to the petition seeking removal, the District Court concluded that removal was not called for and ...


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