The opinion of the court was delivered by: Judge Caputo
Presently before the Court is the Motion for Summary Judgment of Defendant Sullivan County Electric Cooperative ("Sullivan County"). (Doc. 107.) For the reasons provided below, Defendants' motion will be denied. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1332.
Plaintiff Debra Ann Woodruff ("Woodruff") is a resident of New York, as was her decedent, Jonathan Alan Woodruff. (Compl., Doc. 1 ¶¶ 1-2.) The Defendants in this suit are the following entities: Commonwealth Telephone Enterprises ("CTE") is a telecommunications company; Commonwealth Telephone Company ("CT") is one of CTE's primary operating segments and is a local exchange carrier in rural Pensylvania; Epix Internet Services ("Epix") is a support business under CTE providing rural dial-up internet services; Commonwealth Communications ("CC") is a subsidiary of CTE and a provider of telecommunications equipment and facilities management services; Sullivan County Rural Electric Cooperative owned electric distribution poles used by the other Defendants in the process of running communications wires; and Defendant Henkels & McCoy is a subcontractor hired by the other Defendants to complete the running of telecommunications wire. (Id. ¶¶ 8-14.)
According to Plaintiff, Jonathan Woodruff was killed while repairing telecommunications lines from the elevated bucket of his truck on September 26, 2005. (Doc. 115, ¶ 1.) Plaintiff's decedent was allegedly electrocuted when electricity from the wires or pole arced while he was working approximately six (6) to nine (9) feet below the energized power lines owned by Defendant Sullivan County. (Id.)
On September 27, 2005, the Sullivan County Coroner, Wendy Hastings ("Hastings"), signed a Death Certificate that said the injury occurred when Jonathan Woodruff "came in contact" with the power lines. (Doc. 114, Ex. C-3.) An amended Death Certificate was issued by Hastings on November 4, 2005, stating that the injury occurred when the line "arced." (Doc. 114, Ex. C-2.) In her deposition, Hastings explained that she made this change after Plaintiff's counsel alerted her to a discrepancy between the first Death Certificate and the Narrative from her field report, which stated that decedent's "injuries do not appear consistent with direct contact with the approximate 440 volt power line, but burn pattern... suggest (sic) an arcing event." (Doc. 114, Ex. C-1; Hastings Dep. 17:4-17:15, Mar. 24, 2009.) According to Hastings, the funeral home that removed decedent's body typed the first Death Certificate, and Hastings signed that Death Certificate without noticing the discrepancy with her Field Report. (Hastings Dep. 17:16-18:22.)
Plaintiff brought this suit against all Defendants for common law negligence (Counts I and II), wrongful death pursuant to 42 Pa. Cons. Stat. Ann. § 8301 and Pa. R. Civ. P. No. 2202(a) (Count IV) against all Defendants, and a Survival Action pursuant to 20 Pa. Cons. Stat. Ann. § 3373 and 42 Pa. Cons. Stat. Ann. § 8302 for damages suffered by decedent, Plaintiff, and decedent's children as a result of the Defendants' alleged negligence (Count III) against all Defendants except Defendant CC. (Id. ¶¶ 34-60.) Defendants CTE, CT, Epix, CC, and Henkels & McCoy filed motions to dismiss these claims, or in the alternative, to dismiss the claims against them for punitive damages. (Docs. 12 & 20.) This Court granted the motion to dismiss claims for punitive damages, but denied the motion on all other claims. (Doc. 43.)
On July 8, 2009, Plaintiff submitted an Expert's Disclosure pursuant to Rule 26(a)(2) from electrical engineer Leonard Allan Greene. (Doc. 97.) In that statement, Mr. Greene stated that "proximate contact with high voltage lines occurred upon completion of telephone line splices located within ten feet of hazardous high voltage lines." (Id. at ¶ 7.) Mr. Greene also believed that "obstructive vegetation required close approach to hazardous high voltage lines" while decedent was working. (Id. at ¶ 8.)
Defendant Sullivan County then moved for summary judgment on July 16, 2009. (Doc. 107.) In its Brief in Support, Sullivan County argued that Plaintiff's expert had improperly posited a new "obstructive vegetation" theory of liability. (Doc. 108.) Sullivan County further argued that Mr. Greene's "proximate contact" theory was inherently inconsistent with the "seemingly abandoned theory" of an arcing power line. (Doc. 108.) Finally, Defendant contends that this Court should grant its summary judgment motion because Mr. Greene failed to address causation in his statement. (Doc. 108.) All current motions have been fully briefed and are now ripe for disposition.
Summary judgment is appropriate if "the pleadings, depositions, 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). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. ...