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KIICK v. METROPOLITAN EDISON CO. (02/19/86)

February 19, 1986

KIICK, PERRI C. AND KIICK, EDWARD, APPELLEES
v.
METROPOLITAN EDISON CO., AND GENERAL PUBLIC UTILITIES CORP., AND BABCOCK AND WILCOX COMPANY, APPELLANTS, NO. 85-5351; AND SMITH, TERRY AND SMITH, MICHELLE SMAJDA, APPELLEES V. GENERAL PUBLIC UTILITIES CORP., METROPOLITAN EDISON CO., JERSEY CENTRAL POWER & LIGHT CO., PENNSYLVANIA ELECTRIC CO., BABCOCK & WILCOX COMPANY, J. RAY MCDERMOTT & CO., AND CATALYTIC, INC., APPELLANTS, NO. 85-5352



Appeals from the Interlocutory Order of the United States District Court for the Middle District of Pennsylvania, Certified: April 5, 1985, Civil No. 79-1569, Civil No. 81-0412.

Author: Seitz

Present: SEITZ, GIBBONS, Circuit Judges, and GERRY,*fn* District Judge.

Opinion OF THE COURT

SEITZ, Circuit Judge.

Defendants appeal from an interlocutory order of the district court denying defendants' motion for partial summary judgment. The district court denied the motion based on its conclusion that the Price-Anderson Act does not preclude the recovery of punitive damages under state law. The district court later amended its order, certifying a controlling question of law to this court under 28 U.S.C. § 1292(b). We granted permission to appeal.

I.

These are "public liability" actions as that phrase is used in the Price-Anderson Act, Pub. L. No. 85-256, 71 Stat. 576 (1957) (codified as amended in scattered sections of 42 U.S.C.). They arise out of the nuclear accident at Three Mile Island ("TMI") in 1979. Plaintiffs are individuals who resided in the vicinity of the TMI facility at the time of the accident. They claim to have suffered emotional distress and chromosomal injury; in addition, one plaintiff alleges that the accident caused her to suffer a stillbirth. Each plaintiff seeks both compensatory and punitive damages.

Defendants are the companies that at the time of the accident were the owners and operators of the TMI facility, together with those companies that supplied design, engineering, or maintenance services, or that were vendors of systems or equipment incorporated in the facility. Each defendant is a "person indemnified" as defined in the Price-Anderson Act, 42 U.S.C. § 2014(t), through the "financial protection" systems required by the Act, 42 U.S.C. § 2210(k).

In early pretrial order, the district court bifurcated all issues of fault from the issues of causation and compensable injury, with the latter claims to be tried first. With respect to claims for compensatory damages, defendants agreed that plaintiffs need not allege or prove the existence of liability-creating conduct; rather, for such purposes it would be assumed that liability had been established.

Before these actions came to trial, however, plaintiffs requested a conference to determine the effect of the Supreme Court's decision in Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 78 L. Ed. 2d 443, 104 S. Ct. 615 (1984), on the continued bifurcation of issues. This conference resulted in defendants' motion for partial summary judgment on the question whether state-law punitive damages awards are available in actions subject to the limitations of the Price-Anderson Act. The district court ultimately denied defendants' motion, holding that the Price-Anderson Act did not preclude such awards, provided that they were not assessed against the United States. The district court subsequently amended its order, certifying the punitive damages question to this Court. We granted defendants' petition for an interlocutory appeal.*fn1

IN retaining subject matter jurisdiction over these actions after our opinion in Stibitz v. General Pub. Utils. Corp., 746 F.2d 993 (3d Cir. 1984), cert. denied, 469 U.S. 1214, 105 S. Ct. 1187, 84 L. Ed. 2d 334 (1985), the district court relied, once again, on its prior opinion, In re Three Mile Island Litigation, 87 F.R.D. 433 (M.D. Pa. 1980). See Host Enters. v. General Pub. Utils. Corp. v. Civ. Action No. 81-0405, slip op. at 3 (M.D. Pa. Feb. 12, 1985). In so doing, the district court held that, for those actions filed prior to the Nuclear Regulatory Commission's ("N.R.C.") determination that the TMI accident did not constitute an "extraordinary nuclear occurrence," the non-frivolous allegation of such an occurrence was a proper basis for "arising under" jurisdiction, a question we expressly left open in Stibitz. See 746 F.2d at 996 n.3 ("Since the complaint in this litigation was filed well after the N.R.C.'s determination was made, we have no occasion to consider whether a non-frivolous allegation of an extraordinary nuclear occurrence is a proper basis for 'arising under' jurisdiction.").

This court raised sua sponte the issue of whether the district court's continued exercise of subject matter jurisdiction in these cases was proper. It is to this issue that we now turn.

II.

As in Stibitz, none of the parties*fn2 questions the existence of federal subject matter jurisdiction. Quite to the contrary, they assert that the district court's continued exercise of such jurisdiction was "obviously correct." They argue that such jurisdiction can be predicated on either the "arising under" language of 28 U.S.C. § 1337(a), or the direct grant of jurisdiction contained in the Price-Anderson Act itself, see 42 ...


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