Pa.R.A.P., Rule 313, 42 Pa.C.S.A.
Thus, to qualify as a collateral order, the order in question must meet three requirements: 1) separability from the main cause of action; 2) importance of the right to be reviewed; and 3) whether the claim will be irreparably lost if review is denied.
Instantly, our own analysis will follow almost identical lines. First, the immunity granted PJM under the Tariff is as factually distinct from the underlying negligence action as was the statute of repose from the underlying products liability action in Pridgen. To prove negligence appellees must show four elements: 1) a legal duty or obligation; 2) a breach of that duty; 3) a causal link between that breach and the injury alleged; and 4) actual damage or loss suffered by the claimant as a consequence. Wright v. Eastman, 63 A.3d 281, 284 (Pa.Super. 2013). Immunity is factually distinct from the proof of any of these elements. Immunity simply functions as an absolute defense to this cause of action regardless of the elements alleged or proven. Thus, immunity is wholly separable from the underlying negligence action which factor is confirmed by Pridgen.
Finally, appellees assert that a question of fact remains that bars review under the collateral order doctrine. Appellees argue that even if PJM is immune from ordinary negligence, its immunity does not protect against gross negligence, and PJM's gross negligence remains a question of fact. As will be shown in our analysis infra, appellees did not assert any conduct by PJM in their Complaint that could possibly be determined to be gross negligence. Thus, there is no question of fact and we may proceed with our review.
Congress' authorization to the FERC to set up a network of RTOs was extremely broad:
§ 824a. Interconnection and coordination of facilities; emergencies; transmission to foreign countries
(a) Regional districts; establishment; notice to State commissions
For the purpose of assuring an abundant supply of electric energy throughout the United States with the greatest possible economy and with regard to the proper utilization and conservation of natural resources, the Commission is empowered and directed to divide the country into regional districts for the voluntary interconnection and coordination of facilities for the generation, transmission, and sale of electric energy, and it may at any time thereafter, upon its own motion or upon application, make such modifications thereof as in its judgment will promote the public interest.
16 U.S.C.A. § 824a (in pertinent part).
Federal preemption has its origins in the Supremacy Clause of the United States Constitution. Pursuant thereto, state laws in conflict with federal laws are without effect. Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008).
Our inquiry into the scope of a statute's pre-emptive effect is guided by the rule that "'[t]he purpose of Congress is the ultimate touchstone' in every pre-emption case." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963)). Congress may indicate pre-emptive intent through a statute's express language or through its structure and purpose. See Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). If a federal law contains an express pre-emption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress' displacement of state law still remains. Pre-emptive intent may also be inferred if the scope of the statute indicates that Congress intended federal law to occupy the legislative field, or if there is an actual conflict between state and federal law. Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995).
Id., 555 U.S. at 76-77.
On the other hand, as PJM indicates, the exercise of a federal agency's delegated authority does not require express congressional authorization:
[W]e have emphasized that in a situation where state law is claimed to be pre-empted by federal regulation, a "narrow focus on Congress' intent to supersede state law [is] misdirected, " for "[a] pre-emptive regulation's force does not depend on express congressional authorization to displace state law." Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 154, 102 S.Ct. 3014, 3023, 73 L.Ed.2d 664 (1982). Instead, the correct focus is on the federal agency that seeks to displace state law and on the proper bounds of its lawful authority to undertake such action. The statutorily authorized regulations of an agency will pre-empt any state or local law that conflicts with such regulations or frustrates the purposes thereof. Beyond that, however, in proper circumstances the agency may determine that its authority is exclusive and pre-empts any state efforts to regulate in the forbidden area. [Capital Cities Cable, Inc. v.] Crisp, 467 U.S., at 700, 104 S.Ct. at 2700; De la Cuesta, supra, 458 U.S., at 152-154, 102 S.Ct., at 3022-3023. It has long been recognized that many of the responsibilities conferred on federal agencies involve a broad grant of authority to reconcile conflicting policies. Where this is true, the Court has cautioned that even in the area of pre-emption, if the agency's choice to pre-empt "represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned." United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961); see also Crisp, supra, 467 U.S., at 700, 104 S.Ct., at 2700.
City of New York v. F.C.C., 486 U.S. 57, 64 (1988).
We find that the power of the FERC to limit liability in order to control costs would very likely be sanctioned by Congress should that question be brought directly before it. We also find that the authority to limit liability in the FERC Tariffs may readily be found in Congress' directive to the FERC to set up a network of RTOs in order to supply abundant electricity with consideration for economy and conservation, and thereafter "upon its own motion or upon application, make such modifications thereof as in its judgment will promote the public interest." Clearly, the limitation on liability greatly reduces the cost of energy to the general public and is wholly consonant with the authority delegated to the FERC.
PJM's Tariff is the equivalent of a federal regulation. See California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 839 (9th Cir. 2004), cert. denied, 544 U.S. 974 (2005). As such, its limitation on liability has the force of federal law and preempts conflicting Pennsylvania law which might allow for a finding of liability for negligence under the circumstances of this case.
There is an additional basis for finding preemption. A federal agency's interpretation of its own regulation is controlling unless plainly erroneous or inconsistent with the regulation. Auer v. Robbins, 519 U.S. 452, 461 (1997); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989).
The rulings of the FERC, dated June 7, 2012 and January 8, 2013, are not plainly erroneous or inconsistent with the regulation, nor is there reason to suspect the interpretation. The FERC's interpretation of the duties and liabilities of an RTO appears completely consistent with the functions described in its enabling regulation, 18 C.F.R. § 35.34(k), and with PJM's Tariff. Thus, we also find the FERC rulings to be binding on us. Those rulings reached certain conclusions:
31. The Commission therefore finds that, under its Tariff and [Transmission Owners Agreement], PJM lacks direct, physical control over the transmission grid, particularly during construction and maintenance, and that Transmission Owners physically operate the grid in response to PJM's directions. In the context of a transmission maintenance outage, like the one at issue here, PJM instead performs a planning and scheduling function to ensure compliance with reliability standards. But once PJM has determined that a proposed schedule for maintenance is permissible to resolve a reliability problem, the responsibility for physically performing the maintenance, and ensuring safety, lies with the Transmission Owner.
32. The Commission further finds that, under its Tariff and [Transmission Owners Agreement], PJM, as an RTO, is not responsible for ensuring that maintenance procedures are implemented safely by Transmission Owner employees working on transmission facilities owned by that Transmission Owner. As cited by PJM and the PJM Transmission Owners, PJM Manual 3 assigns responsibility for compliance with the relevant OSHA regulations to the Transmission Owner. Further, as noted by PJM and several intervenors, we agree that PJM lacks the resources to supervise the work crews of all of its Transmission Owners across its entire multi-state footprint.
34. In determining the scope of section 10.2, as it relates to third parties such as employees of Transmission Owners, we first look to the language of the Tariff. Section 10.2 is a broad limitation of liability that protects PJM from liability, other than due to gross negligence or intentional misconduct, "whether based on contract, indemnification, warranty, tort, strict liability or otherwise, to any Transmission Customer, third party or other person for any damages . . . arising or resulting from any act or omission in any way associated with service under this Tariff." This provision therefore on its face would apply to a tort claim by a third party, such as [appellees], as long as the actions at issue were related to service under the PJM Tariff. As discussed above, PJM's actions in this case, consisting of identifying a reliability constraint and approving PPL's schedule for maintenance, are actions associated with service under its Tariff.
Order on Petition for Declaratory Order, 6/7/12 at paragraphs 31, 32, and 34 (footnotes omitted) (emphasis in original).
32. Second, [appellees] asks the Commission to clarify that PJM has the obligation, under its Tariff, to approve scheduled outages of transmission lines. [They] claim[ ] that this authority includes the ability to deny or reschedule any outage, or to require a Transmission Provider to implement an alternative outage schedule. Specifically, [appellees] assert[ ] that PJM might have been negligent in failing to schedule a simultaneous outage on the transmission line that was parallel to the Juniata-Conemaugh 500 kV transmission line.
35. Although PJM has responsibility for approving scheduled transmission outages and, in some instances, denying or rescheduling outages, this authority does not extend to forcing an outage on another transmission line that happens to be parallel and in close proximity to the line for which the initial outage request was filed. When a Transmission Owner submits an outage scheduling request, PJM's role under its Tariff and TOA is to consider whether the timing of that outage will impact the reliability and efficiency of the transmission system. Neither the PJM Tariff nor the TOA requires PJM to determine whether any additional transmission facilities need to be taken out of service for any reason, as the responsibility for physically performing maintenance and thus for ensuring worker safety remains with the Transmission Owner.
Order Denying Rehearing, 1/8/13 at paragraphs 32 and 35.
Thus, the rulings of the FERC describe PJM, as an RTO, as an entity responsible only for the scheduling of power outages and the maintenance of grid reliability. All other responsibilities, including and especially worker safety, devolve upon the Transmission Owners. The FERC rulings indicate the possibility of PJM liability only in instances of gross negligence, willful misconduct, or where PJM has gone beyond its Tariff responsibilities. (Order on Petition for Declaratory Order, 6/7/12 at paragraph 37, footnote 35 (going beyond Tariff responsibilities).) As noted, we are bound by these rulings.
Therefore, we must next examine the issues of gross negligence, willful misconduct, and whether PJM has gone beyond its Tariff responsibilities, because these areas of potential liability are all outside of PJM's Tariff's limitation of liability. We may immediately dismiss consideration of willful misconduct or whether PJM has gone beyond its Tariff responsibilities. Appellees' Complaint made no assertions in either regard.Appellees' Complaint, however, did include a catchall provision that asserted gross negligence. (Complaint, 12/21/09 at paragraph 38.) Thus, we must examine whether the Complaint properly pleaded a cause of action for gross negligence against PJM.
The Pennsylvania Mental Health Procedures Act, 50 P.S. § 7101 et seq., contains a similar limitation on liability as to treating physicians, personnel, and facilities, permitting liability only in instances of gross negligence or willful misconduct. The cases interpreting this law have essentially held that a plaintiff need only plead allegations of negligence, and it thereafter becomes a jury question whether the alleged conduct rises to the level of gross negligence; however, the court can take the decision from the jury (by summary judgment) where the facts, as pleaded, could not possibly support a finding of gross negligence. Albright v. Abington Memorial Hospital, 548 Pa. 268, 278-279, 696 A.2d 1159, 1164-1165 (1997). The court also adopted the following definition of gross negligence:
It appears that the legislature intended to require that liability be premised on facts indicating more egregiously deviant conduct than ordinary carelessness, inadvertence, laxity, or indifference. We hold that the legislature intended the term gross negligence to mean a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.
Id., 548 Pa. at 278, 696 A.2d at 1164, quoting Bloom v. DuBois Regional Medical Center, 597 A.2d 671 (Pa.Super. 1991).
Simply stated, we find that the allegations of appellees' Complaint do not adequately plead even negligence on the part of PJM, let alone gross negligence. In so finding, we are considering PJM's functions as described by the federal regulations, 18 C.F.R. § 35.34(k), as well as by the FERC rulings. PJM's responsibilities are in scheduling grid outages and maintaining grid reliability. Thus, only allegations of failures regarding scheduling or maintaining reliability could impute negligence on the part of PJM. For instance, appellees allege in their Complaint that the defendants were negligent in failing to properly ground and/or to insure that the transmission lines were properly grounded prior to authorizing the commencement of work. (Complaint, 12/21/09 at paragraph 47(j).) However, this is not within the ambit of PJM's duties, abilities, or responsibilities and cannot form the basis of a finding of negligence or gross negligence on its part. The other particular allegations of negligent acts delineated in the Complaint similarly do not describe actions within the duties, abilities, or responsibilities of PJM.
As noted, a proper allegation of negligence against PJM would need to involve a negligent failure in scheduling or maintaining reliability. For instance, had PPL filed a request to de-energize both the Juniata-Conemaugh transmission line and the Keystone-Juniata transmission line, and PJM only gave permission to de-energize the Juniata-Conemaugh line, that might form the basis of a negligence claim against PJM (which would be barred under the Tariff). Likewise, if an allegation was made that PPL specifically stated in its request that the Juniata-Conemaugh line could not be safely repaired unless the Keystone-Juniata line was also de-energized, and PJM failed to give permission to de-energize both lines, that might form the basis of a claim of gross negligence against PJM. As it stands, however, we see no allegation of negligence in the Complaint that is related to the functions of PJM. Therefore, under no circumstances could a jury find gross negligence on the part of PJM. The lower court should have granted summary judgment in favor of PJM.
In sum, we find that the limitation on liability contained in PJM's Tariff carries the full force of federal law that preempts Pennsylvania law permitting liability for negligence. We further find that we are bound by the rulings of the FERC which come to a similar conclusion.
Accordingly, having found that the trial court should have granted PJM summary judgment because it is immune from appellees' suit, we will reverse the trial court and remand with instructions to enter summary judgment in favor of PJM.
Application to quash denied. Jurisdiction relinquished.
Mundy, J. concurs in the result.