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filed: September 12, 1989.


Appeal from the Order Entered April 29, 1988, in the Court of Common Pleas of York County, Civil Division, at No. 87 SU 02540-01.


Lynne Bernabei, York, for appellants (admitted pro hac vice).

Rees Griffiths, York, for Philadelphia Elec., Hilsmeier and Nelson, appellees.

Michael W. King, York, for Bartlett Nuclear, appellee.

Wieand, Popovich and Hester, JJ.

Author: Hester

[ 388 Pa. Super. Page 404]

This is an appeal from an April 29, 1988 order which granted appellees' demurrer to five counts of appellants' eight-count complaint.*fn1 George and Dawn Field (appellants) instituted this action against Philadelphia Electric Co., Bartlett Nuclear, Inc., Allen H. Hilsmeier, and C. Stuart Nelson (appellees) to recover for injuries resulting from an alleged intentional exposure to high levels of radiation and for lost wages due to alleged wrongful terminations. By its April 29, 1988 order, the trial court dismissed the counts of appellants' complaint which sought damages for intentional exposure to radiation, wrongful discharge, and intentional infliction of emotional distress, and it struck all of appellants' demands for punitive damages.

The trial court determined that: 1) the wrongful discharge claims and tort claim for intentional exposure to radiation were preempted by federal law; 2) there was no common law cause of action for intentional exposure to radiation; 3) appellants failed to state a claim under Pennsylvania law for wrongful discharge; 4) as a matter of law, there was no egregious conduct alleged in the complaint that would support a claim for intentional infliction of emotional distress; and 5) as a matter of law, punitive damages were not recoverable on the basis of the allegations in the complaint. We reverse and remand for proceedings consistent with this opinion.

[ 388 Pa. Super. Page 405]

Initially, we examine the facts upon which we base this adjudication. When preliminary objections in the nature of a demurrer are filed, we must accept as true all the well-pleaded material facts set forth in the complaint and all reasonable inferences deducible from those facts.*fn2 Dercoli v. Pennsylvania National Mutual Insurance Co., 520 Pa. 471, 554 A.2d 906 (1989). Accepting these facts and inferences, we then determine whether the pleader has failed to state a claim for which relief may be granted, and we will affirm the grant of a demurrer only if there is certainty that no recovery is possible. Creeger Brick & Building Supply Inc. v. Mid-State Bank and Trust Co., 385 Pa. Super. 30, 560 A.2d 151 (1989). All doubts are resolved in favor of the pleader.

Accordingly, for purposes of this appeal, we accept as true the following allegations, which are contained in appellants' complaint. George Field was employed by Bartlett Nuclear, Inc. ("Bartlett") and hired as an independent contractor by the Philadelphia Electric Co. ("PECO") to work at its Peach Bottom Nuclear Plant as a health physics technician. Bartlett is a corporation which provides personnel to manage operational problems at utilities which own and operate nuclear power plants. Appellee-Nelson and appellee-Hillsmeier are employed by PECO. Dawn Field was a secretary for an organization that provides services to PECO which relate to construction at PECO's Peach Bottom Nuclear Plant.

On February 6, 1985, as a result of a plant shutdown, George Field was directed by PECO personnel to enter an off-gas pipe tunnel in unit three of Peach Bottom. He observed standing water on the floor of the tunnel and

[ 388 Pa. Super. Page 406]

    radioed to PECO personnel that he thought it unsafe to remain in the water. In response, he was ordered to test for radiation, which he did. After performing the tests, he returned from the tunnel and advised PECO personnel that the standing-water problem should not be resolved while the plant was being operated since it would be dangerous to work in the tunnel while the plant was operational.

Despite these warnings from Field, who was trained and hired in the area of safety control and cleanup, on March 1, 1985, while Peach Bottom was operating, PECO ordered Field and other personnel into the tunnel to resolve the standing-water situation. While Field was in the tunnel, PECO personnel deliberately vented radioactive gases into the tunnel where they knew Field was working. This action was taken in order to keep the reactor operating. The highly radioactive steam triggered a survey meter, a device in Field's possession that measures radiation levels. Field's survey meter went off-scale in the tunnel. As this indicates levels of radiation in excess of that permitted by the Nuclear Regulatory Commission ("NRC"), the federal agency in charge of regulating nuclear energy, Field immediately directed all personnel to leave the tunnel. He was not aware why the radiation level increased at that time. Two radiation detectors, one located at the tunnel entrance and another located at the control point to the tunnel, both alarmed when Field passed through them. This also indicated radiation exposure in excess of that permitted by NRC regulations. Field then analyzed air samples at the tunnel entrance with his survey meter, and the meter once again indicated radiation levels in excess of levels permitted by NRC regulations.

Field posted warning signs to the entrances to the contaminated areas, but PECO ordered the signs removed. Later that day, Field asked that his internal exposure to radiation be determined by equipment that was unavailable to him, but PECO refused the request and refused to answer his questions regarding the incident. Field also completed an incident report and asked his supervisor to

[ 388 Pa. Super. Page 407]

    investigate his exposure level. His supervisor assured him that an investigation would occur.

On March 4, 1985, Field discovered that the reactor operators on March 1, 1985, had deliberately ordered the radioactive steam to be bypassed from the regular system and vented into the tunnel where the operators knew Field was working. This action was taken solely to keep the reactor operational. Field asked three other PECO personnel about the level of his exposure; he was assured that the matter was being investigated, and he was ordered not to discuss the incident with anyone. He also was told that a field badge he had worn during the March 1, 1985 incident, which is an instrument used to detect radiation exposure, indicated that he had not been exposed to radiation.

On April 22, 1985, Field asked his supervisor whether the NRC should be informed about the incident and told his supervisor that he wanted to be informed about the results of the investigation being conducted by PECO. Field told his supervisor that unless he received a report, he would contact the NRC. Field's inquiries in May, June, and July, about progress on the investigation were answered with assurances that the investigation was continuing. In late July, Field was told by his supervisor that the investigation was complete and documentation regarding the event had been discarded. Field then told his supervisor that he was going to report the incident to the NRC. Field contacted his supervisor at Bartlett, who promised to investigate the matter with upper management at PECO and Bartlett.

At one point during Field's inquiries about the incident, PECO personnel made two false statements to Field. They told Field that his field badge indicated that he had not been exposed to radiation on March 1, 1985. They also told him that on March 1, 1985, his survey meter had given an incorrect reading regarding the level of radiation due to moisture in the instrument.

On August 8, 1985, Field again was ordered into the off-gas tunnel at unit three to perform work. He performed tests on the standing water which established that it

[ 388 Pa. Super. Page 408]

    contained such high levels of radiation that Field believed that he had been misinformed by PECO about the level of his exposure to radiation on March 1st. Later that day, Field demanded that water be retrieved from the tunnel for analysis.

In the meantime, on August 6 and 7, 1985, the NRC conducted an unannounced investigation of the March 1, 1985 incident, and its report was released on September 17, 1985. On September 23, 1985, Field was questioned about his role in the NRC investigation. On September 25, 1985, Field was terminated for alleged absenteeism. A subsequent NRC investigation of Field's termination lead it to conclude that Field had been terminated because he had reported his overexposure to radiation to the NRC. Subsequently, Dawn Field also was terminated for Mr. Field's activities.

The allegations of the complaint may be summarized as follows. PECO deliberately operated the Peach Bottom plant on March 1, 1985, in such a manner that Field necessarily was exposed to dangerous levels of radiation. This could have been avoided by shutting down one unit of its Peach Bottom reactor. PECO then deliberately lied to Field about his badge readings, a malfunction in his equipment on March 1, 1985, the extent of its investigations, and the extent of his exposure to radiation. PECO then deliberately exposed Field to dangerous levels of radiation again on August 8, 1985, by sending him back into the tunnel. Finally, PECO caused appellants to be fired due to the fact that Field reported the March 1, 1985 incident to the NRC.

We first address the issue of whether federal law has preempted count one of appellant's complaint, which is titled personal injury tort for intentional exposure to radiation.*fn3 The general rule of law regarding federal preemption is as follows:

The path to be followed in pre-emption cases is laid out by our cases. It is accepted that Congress has the

[ 388 Pa. Super. Page 409]

    authority, in exercising its Article I powers, to pre-empt state law. In the absence of an express statement by Congress that state law is pre-empted, there are two other bases for finding pre-emption. First, when Congress intends that federal law occupy a given field, state law in that field is pre-empted. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190, 212-213, 75 L Ed 2d 752, 103 S Ct 1713[, 1726-27] (1983). Second, even if Congress has not occupied the field, state law is nevertheless pre-empted to the extent it actually conflicts with federal law, that is, when compliance with both state and federal law is impossible, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 10 L Ed 2d 248, 83 S Ct 1210 [1217] (1963), or when the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Hines v. Davidowitz, 312 U.S. 52, 67, 85 L Ed 581, 61 S Ct 399 [404] (1941). See, e.g., Silkwood v. Kerr-McGee Corp. 464 U.S. 238, 248, 78 L Ed 2d 443, 104 S Ct 615 [621] (1984).

California v. ARC America Corp., U.S. , , 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86, 94 (1989).

In this instance, we are examining whether state tort law remedies are preempted. This is an area which is traditionally regulated by the states. Id.; Silkwood v. Kerr-McGee Corp. 464 U.S. 238, 249, 104 S.Ct. 615, 622, 78 L.Ed.2d 443 (1984). Accordingly, there is a strong presumption against finding preemption:

When Congress legislates in a field traditionally occupied by the States, "we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v Santa Fe Elevator Corp. 331 U.S. 218, 230, 91 L Ed 1447, 67 S Ct 1146 (1947).

California v. ARC America Corp., supra, U.S. at , 109 S.Ct. at 1665, 104 L.Ed.2d at 94.

[ 388 Pa. Super. Page 410]

In addition to these general federal preemption principles, we are guided by two United States Supreme Court decisions which specifically examine federal preemption in the nuclear sector. The Court's first pronouncement is contained in Pacific Gas and Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). The Court examined the Atomic Energy Act of 1954, 42 U.S.C. ยง 2011, et seq. (the "Act"), which relaxed the federal monopoly over nuclear technology and replaced it with a comprehensive system to promote private development of nuclear energy while attempting to safeguard ...

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