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GEORGE v. GENERAL PUB. UTILS. CORP.

October 16, 1995

CURTIS M. GEORGE; SAMETTE B. GEORGE, his wife, plaintiff
v.
GENERAL PUBLIC UTILITIES CORP.; METROPOLITAN EDISON COMPANY; JERSEY CENTRAL POWER & LIGHT CO.; PENNSYLVANIA ELECTRIC COMPANY; BABCOCK & WILCOX COMPANY; J. RAY MCDERMOTT & COMPANY; BURNS & ROE, INC., defendant



The opinion of the court was delivered by: RAMBO

 I. Background

 The parties agree upon many of the facts pertinent to resolution of the pending motion for summary judgment. The main source of controversy appears to be the nature of the relationship between Catalytic and GPU Nuclear, and the status of Catalytic employees performing work at TMI. The court, however, is in the undesirable position of having to merely surmise the nature of the disputed facts from Plaintiffs' brief, as Plaintiffs failed to file a counter statement of material facts as required by Middle District Local Rules 7.4 and 7.8. Accordingly, as stated in Rule 7.8, the court is bound to adopt Defendant's undisputed statement of material facts. *fn1"

 On March 28, 1979, a "nuclear incident" occurred at the Three Mile Island Unit 2 nuclear reactor. *fn2" Following the incident, GPU Nuclear *fn3" began clean-up and decontamination efforts on the Unit 2 reactor. The decontamination effort began in 1980, shortly after the incident, and continued for approximately thirteen years. (Def.'s Reply Brief at 7.) To facilitate the decontamination effort, GPU Nuclear subcontracted with Catalytic, Inc. ("Catalytic"), a labor broker, who supplied workers to GPU Nuclear for the TMI-2 clean-up. (Def. Stmt. of Mat. Facts PP 1, 5.) Mr. George was employed by Catalytic, and working at TMI, at the time of the incident which gave rise to the captioned action.

 Although Catalytic supplied workers for projects at TMI, GPU Nuclear exercised control over all workers supplied by Catalytic, and supervised all projects. GPU Nuclear had the right to hire and fire Catalytic employees, and to originate work assignments for TMI projects. (Def. Stmt. of Mat. Facts PP 2.b. and 2.d.) Further, prior to gaining clearance to work at TMI, GPU Nuclear required that all potential employees obtain a GPU Nuclear security clearance, and successfully complete a training course. (Id. P 2.c.) While working at TMI, all Catalytic employees were subject to the rules, regulations, and disciplinary procedures of GPU Nuclear. (Id. PP 2.e., 2.f., 2.g., 2.j.) All tools and equipment necessary to perform the decontamination work at TMI were supplied by GPU Nuclear. (Id. P 2.h.) Finally, GPU Nuclear paid Catalytic for each laborer's hourly labor rate and the cost of each laborer's workmen's compensation insurance. (Id. P 2.i.)

 On September 25, 1989, Mr. George was assigned with two other laborers to decontaminate the TMI-2 "flush/burn" facility. (See George Depo. at 114.) The "flush/burn" facility is a room in the TMI-2 reactor building utilized during the defueling and cleanup of the damaged nuclear reactor to decontaminate equipment and tools. (Conjar Depo. at 22-24; Def.'s Brief in Support at 10-11.) Persons assigned to work in the "flush/burn" facility were instructed as to procedures to follow if they encountered radioactive fuel debris, as the likelihood of such an encounter was increased due to the work regularly performed in the "flush/burn" facility. (George Depo. at 136-38; Def. Brief in Support at 11.) Mr. George was instructed as to these procedures. (George Depo. at 131-32.)

 Prior to sending the decontamination crew into the "flush/burn" facility on September 25, Edward Conjar, a senior health physics technician for GPU Nuclear, surveyed the room for fuel debris and other "hot" items. (See Conjar Depo. at 47; George Depo. at 141; GPU Nuclear "Dose Assessment Report for Two Decontamination Laborers Involved With Handling Fuel Debris During a TMI-2 Incident on September 25, 1989," P 3.3 (January 26, 1990) (hereinafter "TMI-2 Dose Report").) As the survey revealed no highly radioactive materials, Mr. George and his partner, Mr. Murphy, entered the facility to begin their decontamination work. (See Conjar Depo. at 33-35; TMI-2 Dose Report P 3.3.) While decontaminating, Mr. George encountered a small object wrapped in a teri towel. (George Depo. at 154-61.) According to Mr. George, the object resembled a " 'candy kiss' " -- a reference to the manner in which the object was wrapped in the towel. (TMI-2 Dose Report P 3.4 (quoting Mr. George).)

 Next, Mr. George picked up the object, briefly examined it, and began to place the object in the radwaste trash bag. (George Depo. at 158-61.; TMI-2 Dose Report P 3.4.) Mr. Murphy told Mr. George not to worry about the object, and that he would take care of it. (TMI-2 Dose Report P 3.4.) It appears that Mr. George then placed the object on the edge of the grating in the mezzanine area of the room. (See George Depo. at 162-63; TMI-2 Dose report PP 3.4, 3.5.) Mr. Murphy then summoned Mr. Conjar and requested that he survey the object. (TMI-2 Dose Report PP 3.5, 3.6.) Upon conducting the survey and learning that the object was "hot," Mr. Conjar radioed his supervisor for assistance. The supervisor, inter alia, "instructed him to locate a plastic bucket, place the object in the bucket, and return it to the Reactor Vessel." (TMI-2 Dose Report P 3.6.) It is alleged that through his contact with the radioactive material, Mr. George received an extremity dose of radiation. GPU Nuclear has calculated that, based upon the amount of time that Mr. George held the object, he received one of the following approximate absorbed doses of radiation to his right hand: Minimum handling time of 5 sec = 26 rad *fn4" Assumed handling time of 7 sec = 36 rad Maximum handling time of 11 sec = 57 rad (TMI-2 Dose Report P 4.7.) Translating this information into an equivalent dose, it is estimated that Mr. George received the following exposure to radiation: Whole Body = 0.238 rem Skin = 0.291 rem Extremity = 13.291 rem.

 (TMI-2 Dose Report P 6.2.) Plaintiffs dispute GPU Nuclear's calculations as they contend the numbers are based upon mere estimates. Because the actual object that Mr. George held was thrown back into the reactor, Plaintiffs seem to contend that any dose calculations can be nothing more than speculation. (See Pl.'s Brief in Op. at 5-7.)

 The court will consider this motion under the accepted standards for the award of summary judgment under Rule 56 of the Federal Rules of Civil Procedure. In Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987), the United States Court of Appeals for the Third Circuit succinctly stated the applicable standards for summary judgment as follows:

 
summary judgment may be entered if "the pleadings, deposition[s], answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, [248,] 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Equimark Comm. Finance Co. v. C.I.T Financial Serv. Corp., 812 F.2d 141, 144 (3d Cir. 1987). If the evidence is "merely colorable" or "not significantly probative" summary judgment may be granted. Anderson, 106 S. Ct. at 2511; Equimark, 812 F.2d at 144. Where the record, taken as a whole, could not "lead a rational trier of fact to find for the nonmoving party, summary judgment is proper." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).

 Id. Once the moving party has shown an absence of evidence to support the claims of the nonmoving party, the nonmoving party must do more than simply sit back and rest on the allegations of the complaint. Specifically, the nonmoving party must "go beyond the pleadings and her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file' and designate 'specific facts showing that there is a genuine issue for trial.' " Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the nonmovant bears the burden of persuasion at trial, "the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden at trial." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987).

 III. Discussion

 The decisive issue before the court is whether the captioned action falls within the scope of the Pennsylvania Workmen's Compensation statute. See 77 P.S. § 1, et seq. (Purdon's 1992). If Plaintiffs' claim is properly characterized a workmen's compensation claim, this court cannot entertain the action. See 42 U.S.C.S. § 2014(w). Although the Price-Anderson Amendments state that federal courts may entertain public liability actions arising from nuclear incidents, the Amendments specifically prohibit federal courts from entertaining actions that are more correctly characterized workmen's compensation claims. § 2014(w) ("The term 'public liability' means any legal liability arising out of or resulting from a nuclear incident . . . except: (i) claims under State or Federal workmen's compensation acts of employees of persons indemnified who are employed at the site of and in connection with the activity where the nuclear incident occurs . . . ."). The court must now determine whether Plaintiffs' claims present a true public liability action pursuant to the Price-Anderson Amendments, or whether the action should have been brought before the Pennsylvania Workmen's Compensation Board.

 As correctly stated by Defendant, "the federal rules of decision for this case must be derived from Pennsylvania law to the extent that such state law is consistent with the Price-Anderson Act." (Def.'s Brief in Sup. at 16.) Under Pennsylvania law, an employee may not commence a common law tort action against his employer to recover for an injury obtained in the scope of employment. Rather, the Pennsylvania Workmen's Compensation Act provides the employee's exclusive remedy. 77 P.S. § 418 ("The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees . . . .") Thus, insofar as Mr. George can be classified as an employee of GPU Nuclear, his exclusive remedy is through the Workmen's Compensation Act, not through ...


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