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Jersey Central Power & Light Company and Pennsylvania Power Company v. Renee Lempke


April 4, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-45-11.

Per curiam.


Argued March 6, 2012

Before Judges Reisner and Accurso.

Plaintiffs Jersey Central Power & Light Company (JCP&L) and Pennsylvania Power Company (Penn Power) appeal from the grant of a motion to dismiss their complaint against defendant Renee Lempke. Plaintiffs filed their action in the Chancery Division seeking to enjoin defendant from continuing to prosecute a suit against them in the Philadelphia Court of Common Pleas. Judge Deanne Wilson dismissed the complaint under principles of comity. We affirm.

Both this action and the Pennsylvania action arise out of the accidental death of defendant's husband, Robert Lempke. Defendant's husband was employed as a utility worker by JCP&L. He was killed in the course of his employment when he came in contact with an energized downed power-line while working in an emergency relief effort to restore power in Western Pennsylvania following a severe storm in September 2008. JCP&L and Penn Power contend that Mr. Lempke was performing work for Penn Power as a "borrowed employee" of JCP&L at the time of his death.

Following Mr. Lempke's fatal accident, JCP&L began paying workers' compensation benefits to his widow, defendant Renee Lempke and to his remaining dependents, including his former wife. Sometime thereafter, defendant filed a dependency claim petition for enhanced benefits with the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation. In her petition, defendant sought to terminate the benefits being paid to Mr. Lempke's first wife. JCP&L answered the claim petition on October 15, 2009. In the course of the workers' compensation action, Renee Lempke and JCP&L stipulated that the decedent, Robert Lempke, was employed by JCP&L and suffered a fatal injury in the course and scope of his employment.*fn1 Defendant was ultimately successful in obtaining enhanced compensation benefits pursuant to an award entered on November 15, 2010.

While her workers' compensation action was pending in New Jersey, defendant filed a writ to commence suit against JCP&L and others in the Court of Common Pleas of Philadelphia County on December 30, 2009. In her subsequently filed complaint, first and second amended complaints and in her answers to interrogatories, defendant has consistently averred that her late husband was employed by JCP&L and working in the scope of his employment at the time of his death. In her third amended complaint, however, filed on August 11, 2010, defendant claimed that "[w]hile initially it appeared that Mr. Lempke worked for JCP&L at the time [of the accident], documents reveal that he may have been employed by First Energy. Investigation is ongoing as to his legal employer."

JCP&L filed preliminary objections in the nature of a motion to dismiss the third amended complaint on the basis of the exclusivity provision of Pennsylvania's Workers' Compensation Act. The court overruled JCP&L's preliminary objections and directed it to file an answer. JCP&L answered the third amended complaint and subsequently moved for summary judgment contending that it was entitled to judgment as a matter of law under the Pennsylvania Workers' Compensation Act. The Pennsylvania court denied JCP&L's motion for summary judgment on June 8, 2010. A motion for reconsideration was likewise denied.

Apparently frustrated in its efforts to get the Pennsylvania suit dismissed, JCP&L, along with Penn Power, instituted this action in March 2011 to enjoin defendant from maintaining the Pennsylvania suit against them and from domesticating or otherwise enforcing any judgment against them obtained in Pennsylvania or elsewhere arising out of Mr. Lempke's fatal accident. Defendant made a motion to dismiss, which Judge Wilson granted under principles of comity and which plaintiffs now appeal.

On appeal, plaintiffs contend that the motion judge misapplied the "first-filed" rule and inappropriately allowed defendant to evade the workers' compensation bar. Plaintiffs contend that defendant's New Jersey workers' compensation petition was the first-filed action and thus an anti-suit injunction is necessary to vindicate the exclusivity provision of New Jersey's workers' compensation law and spare them from being forced to defend the second-filed Pennsylvania action. Defendant counters that the Pennsylvania action was the first-filed suit and because, as Judge Wilson properly found, plaintiffs will have the opportunity for adequate relief in the Pennsylvania action, comity demands the dismissal of the after-filed New Jersey suit.

We review a trial court's determination to grant a comity stay or dismissal under an abuse of discretion standard. Sensient Colors Inc. v. Allstate Ins. Co., 193 N.J. 373, 390 (2008). The power to impose an anti-suit injunction to bar a litigant from prosecuting a suit pending in another state is "a delicate one" that should be conscientiously exercised only when the "true interests of justice so require." Trustees of Princeton Univ. v. Trust Co. of N.J., 22 N.J. 587, 598 (1956). Upon a careful review of the entire record, we are satisfied that Judge Wilson did not abuse her discretion in declining to enter such an injunction here.

"New Jersey has long adhered to 'the general rule that the court which first acquires jurisdiction has precedence in the absence of special equities.'" Sensient Colors, supra, 193 N.J. at 386 (quoting Yancoskie v. Del. River Port Auth., 78 N.J. 321, 324 (1978)). Here, the motion judge determined that the Pennsylvania action was first-filed because the New Jersey workers' compensation proceeding was an administrative action in which the negligence claims defendant is pursuing in Pennsylvania were not cognizable.

We have recently had occasion to consider whether the first-filed rule applies only to lawsuits or whether other forms of dispute resolution might qualify as first-filed actions under the general rule of comity. In CTC Demolition Co. v. GMH AETC Management, 424 N.J. Super. 1 (App. Div. 2012), we observed that "[a]lthough the creation of the first-filed rule may have presupposed that the interplay of its principles would relate solely to which of two lawsuits should proceed to disposition, the proliferation of mediation and arbitration as an alternate but highly-favored method for resolving disputes since the first-filed rule's development, suggests the legitimacy of [the] argument that [the] demand for mediation should be treated like the filing of a complaint." Id. at 7. In CTC, we found no principled reason to treat a contractually required demand for mediation or arbitration any differently than a complaint filed in a civil court for purposes of the first-filed rule. Id. at


We are not, however, aware of any case that has treated a workers' compensation proceeding as a first-filed action under a comity analysis. Nor have we any need to consider whether there is some circumstance in which it may be appropriate as we are satisfied that Judge Wilson was correct that defendant's dependency petition cannot be considered the first-filed action here. As we understand the record, the sole issue before the workers' compensation court was whether Robert Lempke's first wife was entitled to dependency benefits pursuant to N.J.S.A. 34:15-13. The compensation case was resolved in defendant's favor on November 15, 2010. JCP&L never raised the issue that Robert Lempke was on loan to Penn Power in the compensation court. Further, there is no indication in our record that Penn Power intervened or was joined in the workers' compensation proceeding. Accordingly, it does not appear as if the compensation proceeding encompassed the "borrowed employee" issues that the parties appear to be poised to litigate in Pennsylvania and that plaintiffs subsequently tried to raise in the Chancery Division. See Walrond v. County of Somerset, 382 N.J. Super. 227, 234-36 (App. Div. 2006) (explaining the borrowed employee doctrine).

Defendant Lempke filed her writ to commence suit in the Philadelphia Court of Common Pleas in December 2009. The Pennsylvania action is a multi-count negligence and products liability action against the several electric companies that participated in the Pennsylvania storm-relief effort and the manufacturers and sellers of the boots Robert Lempke was wearing when he was electrocuted. As even this abbreviated summary of the New Jersey and Pennsylvania actions makes plain, the two actions are completely different, and there is little if any overlap in issues between them. Thus the usual premise for an anti-suit injunction - that a later-filed suit was commenced that included substantially the same parties, claims and issues - is missing here. See Continental Ins. Co. v. Honeywell Int'l, Inc., 406 N.J. Super. 156, 177 (App. Div. 2009) (although suit was first filed in New Jersey, the legal claims in question were first filed in other states, and thus premise for anti-suit injunction did not exist when injunctive relief was sought in New Jersey action). Accordingly, we agree with Judge Wilson that the New Jersey workers' compensation proceedings cannot be considered the first-filed action on the facts presented.

Further, plaintiffs appear not to have objected to being among the defendants targeted in the Pennsylvania action until after Lempke filed her third amended complaint in August 2010. It was in response to that pleading that JCP&L filed preliminary objections in the nature of a motion to dismiss and a subsequent motion for summary judgment on the basis of the exclusivity bar. Only after those motions were denied did plaintiffs file their Chancery action seeking to enjoin Lempke from continuing her negligence action against them in Pennsylvania in alleged violation of New Jersey's workers' compensation bar. For a New Jersey court now to take up the very same issue that the utilities have pressed unsuccessfully in Pennsylvania would compel the sort of "collateral second-guessing" our Supreme Court has condemned as anathema to principles of comity and federalism. See Simmermon v. Dryvit Sys., Inc., 196 N.J. 316, 331-32 (2008)(principles of comity and federalism counsel that a sister state court, not a New Jersey court, should entertain challenges to fairness or adequacy of one of its judgments).

While we are mindful of New Jersey's strong public policy mandating that workers' compensation is the exclusive remedy for an injured employee against an employer for injuries arising out of the course of employment, N.J.S.A. 34:15-8; see, e.g., Kristiansen v. Morgan, 153 N.J. 298, 311-12 (1998), JCP&L and Penn Power have conceded in the Pennsylvania action that Pennsylvania law is to the same effect. See 77 Pa. Stat. Ann. § 481; Wagner v. Natural Indem. Co., 422 A.2d 1061, 1065 (Pa. 1980). Further, plaintiffs have not set forth any reason why they would be precluded from asserting their "borrowed employee" defense in the Pennsylvania action, and we are aware of none. Sensient Colors, supra, 193 N.J. at 392 (party contending it cannot receive a fair hearing in courts of another jurisdiction is in best position to advance that argument).

The days are long since past when our courts would refuse to turn away New Jersey litigants out of distrust of the rulings of a sister state. See Cogen Technologies N.J. Venture v. Boyce Eng'g Int'l Inc., 241 N.J. Super. 268, 272-73 (App. Div.), certif. denied, 122 N.J. 358 (1990) (citing Kerr v. Willetts, 48 N.J.L. 78 (Sup. Ct. 1886)). The Pennsylvania action continues in discovery. As we are confident that the courts of Pennsylvania can sort out the status of Robert Lempke's employment at the time of his death among the several interrelated electric company defendants and that an injunction is not necessary to preserve our court's prior jurisdiction over this particular controversy, because the issue was not litigated in the compensation proceeding, we affirm the judgment. See Trustees of Princeton Univ. supra, 22 N.J. at 598 (power to enjoin generally limited to where necessary to preserve court's jurisdiction over particular controversy and avoid spectacle of unseemly race to potentially conflicting judicial determinations).


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