Vertis Group, Inc. v. Pennsylvania Public Utility Commission

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. I do not agree that the Court of Common Pleas of Allegheny County (trial court) properly bifurcated the civil action brought against Du-quesne Light Company (Duquesne Light) by The Yertis Group, Inc., Crain/Hallas Corporation, and Lawrence Crain, Joyce Hallas Crain, Mark Crain and Brian Crain, individuals and successors-in-interest to Crain/Hallas Corporation (collectively, Vertís Group). In addition, unlike the majority, I would hold that the Public Utility Commission (PUC) exceeded its jurisdiction by deciding common law liability issues set forth in the Vertís Group’s complaint.

I. Bifurcation of All Liability Issues

The Vertís Group filed a five-count civil complaint against Duquesne Light, alleging: (1) breach of contract; (2) breach of implied warranties; (3) breach of express warranties; (4) negligence; and (5) strict liability. (R.R. at 299a-303a.) The Vertís Group alleged that its computer network, and its business, was harmed by Duquesne Light’s failure to supply electrical power within the legal voltage range and at acceptable harmonic levels and by Duquesne Light’s failure to correct the situation when notified of the problems. (See Complaint, ¶¶ 28, 33, 38, 44, 52.) The trial court bifurcated the case and transferred the matter to the PUC “for a determination of all liability issues.” (R.R. at 353a, emphasis added.)

Under the doctrine of primary jurisdiction, (1) where the subject matter of a case is within an agency’s jurisdiction and (2) where the case is a complex matter requiring special competence, with which the judge or jury would not or could not be familiar, the proper procedure is for the court to refer the matter, or a specific issue, to the appropriate agency.1 Elkin v. Bell Telephone Company, 491 Pa. 123, 420 A.2d 371 (1980). For the reasons that follow, I conclude that the trial court erred in applying the doctrine of primary jurisdiction here.

A. Subject Matter Jurisdiction

First, the trial court erred in applying the doctrine of primary jurisdiction in this case because the PUC does not have subject matter jurisdiction over a public utility’s liability in common law actions.

The PUC is a creature of statute and, as such, has only those powers which are expressly conferred upon it by the legislature and those powers which arise by necessary implication. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977). Under section 701 of the Public *401Utility Code (Code), when a person files a complaint with the PUC against a public utility, the PUC may determine only whether the public utility is in violation “of any law which the [PUC] has jurisdiction to administer, or of any regulation or order of the [PUC].” Section 701 of Code, 66 Pa.C.S. § 701. A common law action filed against a public utility is “in addition to” any action the PUC might take against the public utility under the Code. Section 103(c) of the Code, 66 Pa.C.S. § 103(c).

Here, after the trial court transferred the Yertis Group’s complaint to the PUC, the Vertís Group filed an amended complaint with the PUC alleging that Du-quesne Light violated section 1501 of the Code, 66 Pa.C.S. § 1501. Section 1501 requires that public utilities furnish adequate, efficient, safe and reasonable service and that public utilities make such changes in their service as shall be necessary for the accommodation of its patrons.2 That would have been an appropriate issue for consideration by the PUC, but that issue was not part of the original complaint pending before the trial court. To the extent that the Vertís Group’s trial court complaint implies a violation of section 1501 of the Code, the trial court should have transferred the case to the PUC solely to address that specific issue.3

B. Complexity

Second, the trial court erred in applying the doctrine of primary jurisdiction because the case before the trial court was not a complex matter requiring special competence.

The issues facing the trial court were whether Duquesne Light failed to provide the Vertís Group with electricity within the required voltage range and harmonic levels and whether this failure damaged the computer network which the Vertís Group used to conduct its business. I submit that these issues are no more complex than many others which come before the courts, and, with the assistance of expert testimony, there was no reason why a jury could not have become familiar with legal voltage ranges, acceptable harmonic levels and the effect of abnormal voltage fluctuations on computer networks. Cf. Schriner v. Pennsylvania Power and Light Company, 348 Pa.Super. 177, 501 A.2d 1128 (1985) (stating that there is no reason why a jury could not become familiar with the problem of stray voltage injuries to dairy cattle).

In fact, given the substance of a June 13, 1995, letter from Duquesne Light to the Vertís Group, this case is quite simple. In the letter, Duquesne Light stated:

This letter documents the abnormal electrical conditions occurring at Vertís Group, Inc. in Coraopolis Borough.
This customer is experiencing 300-500V voltage transients over the nominal 120V circuit. This overvoltage is an abnormal condition and sufficient to damage *402sensitive data processing equipment such as computers, and network servers.

(R.R. at 1715a) (emphasis added). Thus, Duquesne Light admitted that the Vertís Group was experiencing 300-500V voltage transients and that this overvoltage is an abnormal electrical condition sufficient to damage computer networks. Essentially, the June 13, 1995, letter is an admission of liability by Duquesne Light. Indeed, Du-quesne Light’s own expert testified that he would not have written such a letter to a customer, and he was “amazed” that Du-quesne Light did so.4 (R.R. at 1351a.)

Because the PUC lacked jurisdiction over all liability issues presented in the common law actions and because the common law actions were not so complex as to require special competence, I would reverse the trial court’s bifurcation order.5

II. Exceeding Jurisdiction

The majority concludes that the PUC did not exceed its jurisdictional authority because a review of the PUC’s decision shows that the PUC decided only those matters expressly reserved for the PUC in the Code, i.e., whether Duquesne Light failed to provide power that was adequate, efficient, safe, reasonable and in accord with its published tariffs. (Majority op. at 17.) I disagree with this assessment of the PUC’s decision.

A. Breach of Contract

The PUC specifically addressed the Ver-tís Group’s breach of contract claim as follows:

While the Complainants go to great lengths to state their various claims in terms of contract and tort, the fact is that they have alleged no relationship with [Duquesne Light] other than that of customer and utility. That is the thrust of the AL J’s comments at page 33 of the Initial Decision regarding the failure of Complainants to plead a specific or special contractual relationship.

(PUC’s op. at 15) (emphasis added) (see also R.R. at 756a). In other words, the PUC held that the Vertís Group’s breach of contract claim must fail because the Vertís Group did not plead a specific contractual relationship with Duquesne Light. That is not true.

In Paragraph 15 of the complaint, the Vertís Group alleged that it entered into a contract with Duquesne Light in August of 1994 for electric service to the facility at 846 Fourth Avenue, Coraopolis, Pennsylvania. (R.R. at 295a.) Moreover, in Du-quesne Light’s answer to Paragraph 15, Duquesne Light admitted that it “contracted to provide [the] Vertís [Group] with electric service.” (R.R. at 312a.) Thus, contrary to the PUC’s discussion of the breach of contract issue, the parties *403never disputed the existence of a specific contractual relationship.

Unlike the majority, I conclude that the PUC considered the breach of contract issue without jurisdiction to do so. Moreover, I would hold that the PUC erred in concluding that the Vertís Group could not prevail because it failed to allege a specific contractual relationship with Duquesne Light.

B. Strict Liability

The PUC specifically addressed the Ver-tís Group’s strict liability claim as follows:

[Vertís Group has] utterly failed to show that causation of the alleged harm lies at the feet of [Duquesne Light]. That, coupled with the fact that the voltage Duquesne Light delivered to Vertís’ facility fell within the [PUC] standard, directly rebuts the Complainants’ theory that the electricity provided by [Du-quesne Light] was unreasonably dangerous so as to require a warning. Hence, we have no hesitation in finding that [Duquesne Light] had no duty to warn.[6]

(PUC’s op. at 30) (emphasis added) (citation omitted). Thus, the PUC determined that Vertís Group’s strict liability claim must fail because the Vertís Group failed to prove that the power supplied by Du-quesne Light constituted an unreasonably dangerous product that caused harm or required a warning.

As indicated above, the PUC has authority only to determine whether a public utility has violated the Code, PUC regulations or a PUC order. Thus, I conclude that the PUC exceeded its authority by addressing the Vertís Group’s strict liability claim.

C. Negligence

Finally, the PUC addressed the Vertís Group’s claim that Duquesne Light was negligent because, having admitted in the June 18, 1995, letter that the 300-500V voltage transients were abnormal and were capable of damaging the Vertís Group’s computer network, Duquesne Light failed to offer a viable solution to correct the problem. The PUC stated:

According to the Complainants, this letter is either an admission that [Du-quesne Light] provided unsafe power which caused the harm complained of, or clear evidence that [Duquesne Light’s] power quality investigation was so flawed as to constitute a negligent undertaking. ...
[T]he letter, while possibly misguided given its eventual use in this proceeding by the Complainants, exhibited an extraordinary effort by [Duquesne Light] to provide customer assistance to the Complainants in dealing with their own customers.

(PUC’s op. at 34.) Thus, the PUC concluded that Vertís Group’s negligence *404claim must fail. However, to reiterate, the PUC has authority to address only whether Duquesne Light violated the Code, the regulations or a PUC order.

Accordingly, assuming arguendo that the bifurcation was proper, I would nevertheless reverse the PUC’s order to the extent that it addresses Duquesne Light’s common law liability.

. Once a court properly refers a matter or a specific issue to an administrative agency, the agency’s determination is binding upon the court and the parties. Elkin v. Bell Telephone Company, 491 Pa. 123, 420 A.2d 371 (1980). However, courts

should not be too hasty in referring a matter to an agency, or to develop a “dependence” on the agencies whenever a controversy remotely involves some issue falling arguably within the domain of the agency’s "expertise.” "Expertise” is no talisman dissolving a court’s jurisdiction. Accommodation of the judicial and administrative functions does not mean abdication of judicial responsibility. The figure of the so-called "expert” looms ominously over our society — too much so to permit the roles of the court and jury to be readily relinquished absent a true fostering of the purposes of the doctrine of primary jurisdiction.

Elkin, 491 Pa. at 134, 420 A.2d at 377 (emphasis in original).

. Section 1501 of the Code provides, in pertinent part, as follows:

Every public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities, and shall make all such repairs, changes, alterations, substitutions, extensions, and improvements in or to such service and facilities as shall be necessary or proper for the accommodation, convenience, and safety of its patrons, employees, and the public.

. The majority concludes that the trial court did not err in applying the doctrine of primary jurisdiction in this case because the Vertís Group’s allegations involve issues within the "exclusive province” of the PUC. (Majority op. at 13.) It is true that Duquesne Light’s compliance with section 1501 of the Code is within the exclusive jurisdiction of the PUC; however, the trial court referred all liability issues to the PUC.

. The PUC determined that the letter was not an admission of liability, believing that Du-quesne Light wrote the letter only because the Vertís Group requested it “to put off” customers who were complaining about poor service. (R.R. at 1498a.) The PUC did not utilize any special expertise in making this determination.

If the PUC is correct, then, in providing service to the Vertís Group, Duquesne Light issued false statements intended to deceive the customers of the Vertís Group. In other words, Duquesne Light committed fraud. See Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981) (stating that fraud consists of anything calculated to deceive). Unlike the PUC, I would not hold that the commission of fraud constitutes reasonable service under section 1501 of the Code.

. Because I would reverse the trial court’s bifurcation order, I would not address the remaining issues. However, because the majority affirms the bifurcation, I will assume for the sake of argument that the bifurcation was proper and address whether the PUC exceeded its jurisdiction.

. Electricity is a product for purposes of strict liability. Kaplan v. Cablevision of Pa., Inc., 448 Pa.Super. 306, 671 A.2d 716, appeal denied, 546 Pa. 645, 683 A.2d 883 (1996). In a strict products liability action, it must be shown that the product was sold in a defective condition, unreasonably dangerous to the consumer, and the defect was the proximate cause of the consumer’s injury. Walton v. Avco Corporation, 530 Pa. 568, 610 A.2d 454 (1992). The failure to warn of latent dangers in the use of a product can render a properly designed product unreasonably dangerous and defective for purposes of strict product liability. Jacobini v. V. & O. Press Company, 527 Pa. 32, 588 A.2d 476 (1991).