Duquesne Light Company v. Westinghouse Electric Corporation

The plaintiffs appeal from judgments entered against them on all counts of their complaint. The district court granted the defendant summary judgment on certain of the plaintiffs' counts and dismissed others by granting defendant's motion made pursuant to Fed.R.Civ.P. 50(a) at the close of plaintiffs' case. On the one remaining claim, the jury returned a verdict in favor of the defendant. Because we find no merit in the myriad of issues the plaintiffs raise, we will affirm the judgment and orders of the district court.

The plaintiffs--Duquesne Light Company, The Cleveland Electric Illuminating Company, The Toledo Edison Company, Ohio Edison Company, and the Pennsylvania Power Company--together constructed and own the Beaver Valley Nuclear Power Station, a two-unit nuclear energy generating facility located near Pittsburgh, Pennsylvania. Duquesne points out that it had primary responsibility for supervising the construction of the plant, and it now "operates the plant on behalf of the co-owners." Br. at 5 n. 2. We therefore will refer to the plaintiffs singularly as Duquesne.

In the 1960's, Duquesne issued a request for proposals and bid specifications for equipment to be used at the plant. Westinghouse submitted a proposal, and, after negotiations, entered into a contract with Duquesne under which it agreed to supply Nuclear Steam Supply Systems (NSSS) for the Beaver Valley units. It is beyond doubt that during these negotiations the parties had sophisticated technical, commercial, and legal advice. The parties executed the contracts for the units respectively on October 3, 1967, and January 5, 1972. Each NSSS contains a nuclear reactor, three steam generators, and a number of other components that together convert heat from nuclear fission into steam. The steam generators for the first unit were installed in 1972; those for the second unit were installed in 1981. The units began commercial operations in, respectively, April 1977 and November 1987. Duquesne contends that when it negotiated the contracts, it sought steam generators that would last approximately 40 years and it points to facts that tend to support that contention. For instance the method of installing the NSSS equipment makes removing or replacing the steam generators extremely difficult.

In the 1980s, Duquesne discovered corrosion and cracking in the generators' "U"-shaped Inconel-made tubes through which radioactive water is pumped from the reactor vessel to the steam generators. Such corrosion and cracking affect both the plant's power output and safety. Duquesne engaged experts to examine the rapid deterioration who concluded, among other things, that the tube material--Inconel 600--made the equipment unusually susceptible to corrosion. Duquesne ultimately determined that it would have to replace the steam generators.

On April 30, 1991, Duquesne filed this action against Westinghouse alleging breach of contract, breach of warranty, breach of the Uniform Commercial Code duty of good faith, fraud, negligent misrepresentation, and violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1962(b) and (c). On December 1, 1993, Westinghouse filed a motion for summary judgment on all counts of the complaint. The district court referred the motion to a magistrate judge who issued a thorough and detailed report and recommendation on July 18, 1994. In an order dated August 29, 1994, the district court adopted (with modifications) the magistrate judge's report and recommendation, and granted Westinghouse summary judgment on Duquesne's negligent misrepresentation claim and on its claim under 18 U.S.C. Sec. 1962(b). The court denied the motion in all other respects,1 and rejected Westinghouse's argument that the various statutes of limitations and repose precluded Duquesne's claims.

The case proceeded to trial on September 12, 1994. At the close of Duquesne's case Westinghouse moved for judgment as a matter of law, and on October 24 the district court in a bench opinion granted that motion in most respects. It dismissed Duquesne's claims of breach of contract, breach of warranty, breach of the duty of good faith and fair dealing, and violations of RICO. It also dismissed Duquesne's claim for punitive damages. The court permitted Duquesne's fraud claim, however, to go to the jury. On December 6, 1994, the jury returned a verdict in favor of Westinghouse on that claim. The court entered judgment on December 7, and Duquesne timely filed a notice of appeal.2 We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. Because of the RICO claim, the district court exercised subject matter jurisdiction under 18 U.S.C. Sec. 1964(c) and 28 U.S.C. Sec. 1331, and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. Sec. 1367(a).3

We begin with Duquesne's attack on the jury verdict, since the jury's findings impact on our analysis of the other claims. Duquesne's primary argument challenging the verdict involves the district court's allocation of trial time. During a pretrial conference, the parties and the court agreed to limit each side's time to 140 hours, to include the sum of that party's case, its cross-examination of the opposing party's witnesses, and its opening and closing arguments. App. 87. But on the 12th day of trial the court, frustrated with what it perceived as duplication of evidence, and concerned that the complicated technical testimony was confusing the jury, concluded that "all the business I have given you about 141 hours is off now." App. 823.4 The court ruled that each side would receive 22 days to present its case. And since Duquesne already had used up 11 days, the court allowed it only an additional 11. App. 827-28. Furthermore, a "day" did not necessarily entail an entire day. Rather, as long as some testimony was heard on a given day, it counted as a full day. Duquesne argues that because it had budgeted its trial time during the first 11 days based on the 140 hour schedule, "[t]he district court's unilateral change in the basic trial rules caused irreparable prejudice" to its case. Br. at 34. We review a district court's decisions in its management of a trial for abuse of discretion. See Reed v. Philadelphia, Bethlehem & New England R.R. Co., 939 F.2d 128, 133 (3d Cir.1991) ("In matters of trial procedure such as that involved here, the trial judge is entrusted with wide discretion because he [or she] is in a far better position than we to appraise the effect" of a particular procedure on the parties.).

Although the procedural rules governing federal civil litigation do not explicitly authorize a district court to set time limits for a trial, a district court has inherent power "to control cases before it," provided it exercises the power " 'in a manner that is in harmony with the Federal Rules of Civil Procedure.' " G. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 652 (7th Cir.1989) (en banc) (quoting Landau & Cleary, Ltd. v. Hribar Trucking, Inc., 867 F.2d 996, 1002 (7th Cir.1989)). The rules repeatedly embody the principle that trials should be both fair and efficient. Thus, the Federal Rules of Civil Procedure "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P. 1. Similarly, the Federal Rules of Evidence "shall be construed to secure ... elimination of unjustifiable expense and delay." Fed.R.Evid. 102. More particularly, Fed.R.Evid. 403 allows judges to exclude even relevant evidence because of "considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Numerous courts have inferred from these provisions a court's authority to set time limits. See, e.g., MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081, 1171 (7th Cir.) (setting a period of time for the trial is "not, per se, an abuse of discretion"), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983); Harris v. Marsh, 679 F.Supp. 1204, 1235 & n. 42 (E.D.N.C.1987) (allowing each side a total block of hours for direct and cross examination), rev'd in part on other grounds, 914 F.2d 525 (4th Cir.1990), cert. denied, 499 U.S. 959, 111 S.Ct. 1580, 113 L.Ed.2d 645 (1991); United States v. Reaves, 636 F.Supp. 1575, 1580 (E.D.Ky.1986); SCM Corp. v. Xerox Corp., 77 F.R.D. 10, 13 (D.Conn.1977). We similarly believe that courts have discretion to impose limits on a party's trial presentation without the necessity of ruling specifically on "each particular item of evidence offered." SCM Corp., Id. at 13. After all, " 'it has never been supposed that a party has an absolute right to force upon an unwilling tribunal an unending and superfluous mass of testimony limited only by [its] own judgment and whim.' " MCI Communications, 708 F.2d at 1171 (quoting 6 Wigmore, Evidence Sec. 1907 (Chadbourne Rev.1976)). Indeed, some district judges have found that the imposition of time limits increases the efficiency of the trial from everybody's perspective. As one court has explained:

'It requires counsel to exercise a discipline of economy choosing between what is important and what is less so. It reduces the incidence of the judge interfering in strategic decisions. It gives a cleaner, crisper, better-tried case. It gives a much lower cost to the clients. Finally, it will save months of our lives.'

United States v. Reaves, 636 F.Supp. at 1580 (quoting Leval, From the Bench, Litigation, at 8 (1985)).

However, because by their very nature such procedures can result in courts dispensing with the general practice to evaluate each piece of offered evidence individually, district courts should not exercise this discretion as a matter of course. As one court has put it, witnesses should not be excluded "on the basis of mere numbers." MCI Communications, 708 F.2d at 1171. Rather, a district court should impose time limits only when necessary, after making an informed analysis based on a review of the parties' proposed witness lists and proffered testimony, as well as their estimates of trial time. And, the court must ensure that it allocates trial time evenhandedly. But still the courts need not allow parties excessive time so as to turn a trial into a circus. After all, a court's resources are finite and a court must dispose of much litigation. In short, the litigants in a particular case do not own the court.

The district court's action in this case differs from that taken in the cases we cite above because here the court granted each party a specific allotment of time, but halfway through Duquesne's case rescinded some of the grant. As a general matter, "it is the task of counsel, not the Court, to make the selection of materials most appropriate for introduction into evidence." SCM Corp., 77 F.R.D. at 12-13. Thus, while courts certainly should have flexibility in reassessing imposed time limits, they ordinarily should allow a party to fill its allotment with whatever evidence that party deems appropriate, subject, of course, to rules of admissibility independent of the overall time limitation for the case being tried. As a corollary, an allocation of trial time relied upon by the parties should not be taken away easily and without warning.

SCM Corp. provides a good illustration of when mid-trial imposition of time limits is appropriate. There, the court "repeatedly brought to the attention of plaintiff's counsel a concern that the pace of the trial seemed unlikely to comport with the original estimates." 77 F.R.D. at 13. The court sought witness lists, requested plaintiff's counsel to re-estimate the time he needed, "cautioned counsel that some more rigorous action would have to be taken to keep the trial within manageable limits and urged a reconsideration of the amount of material to be introduced and the presentation of a less ambitious schedule." Id. at 13. When the court's numerous efforts proved unavailing, it sua sponte imposed constraints upon the parties' trial time. But even then the court allotted plaintiff "50% more than the top range of counsel's [original] estimate." Id. at 15. In other words, while the court issued a time constraint order mid-trial, it still allowed the parties the only allocation of time upon which they reasonably could have relied.

Here, however, the district court neither requested nor reviewed any proffered materials prior to issuing its mid-trial order. While Westinghouse contends that the court repeatedly warned Duquesne of its cumulative presentation, it refers us only to a series of isolated instances over 11 days of testimony in which the court sustained objections because testimony was repetitive or because a question was asked and answered. See, e.g., app. 401 ("We have been through that before and we are not going to go through it again."); app. 649-50 ("We have been over this a number of times."); app. 666 ("We have been over this with another witness. We are not going to repeat it again."); app. 705-06 (sustaining "asked and answered" objection); app. 727 ("We have been over this."); app. 762 ("You have already asked him that."); app. 782 (sustaining "asked and answered" objection); id. at 794 (same). Thus, unlike in SCM Corp., the court here gave Duquesne little indication of the consequences of its trial behavior.

Further still, the method by which the district court calculated a party's time is puzzling. Westinghouse's cross-examination of Duquesne's witnesses counted against Duquesne's time, and vice versa. Therefore, Duquesne contends that the court's order, rather than promoting efficiency at trial, made it difficult for the parties to "control the clock and accurately budget their time." Br. at 34 n. 28. Finally, Duquesne almost certainly planned its trial strategy based on the initial 140 hour allotment, and when the court took its action well into its case, Duquesne had little opportunity to reassess its plans. Westinghouse, on the other hand, had a full 11 days, i.e., the balance of time remaining after the court modified the time allocation on Duquesne's case, to reassess its initial budget and modify its trial strategy accordingly.

Nevertheless despite our concern about the district court's action, we will not reverse because we are unable to conclude that its ruling had any impact on the outcome of the case. In the first place, Duquesne in its brief speaks of prejudice in vague and general terms, and therefore fails to delineate how the district court's decision adversely affected its case. Moreover, our independent review of Duquesne's motion for reconsideration of the altered trial schedule filed the day after the court's scheduling ruling as well as the offer of proof Duquesne made at the close of its case leave us unconvinced that its proposed testimony would have added much to what it introduced during its allotted time. Finally, the fact that Duquesne seems to use the district court's order to attack only the jury verdict but not the claims upon which the court granted Westinghouse judgment as a matter of law, makes us wary of accepting Duquesne's argument.5 Therefore, we do not believe the district court's action constitutes reversible error, and we decline to reverse on this ground.

Next, Duquesne challenges the district court's jury instructions. We recently explained that:

Generally, '[t]he standard of review for the district court's ruling on points for charge is ... abuse of discretion.' Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 922 (3d Cir.1986). Where, as here, a party contends that the charge as given states an incorrect legal standard, 'we will review the charge as a whole in the light of the evidence to determine if it fairly and adequately submitted the issues to the jury and we will reverse if the instructions were capable of confusing and thereby misleading the jury.' Griffiths v. CIGNA Corp., 988 F.2d 457, 462 (3d Cir.) (citing Limbach Co. v. Sheet Metal Workers Int'l Ass'n, 949 F.2d 1241, 1259 n. 15 (3d Cir.1991) (in banc)), cert. denied, --- U.S. ----, 114 S.Ct. 186, 126 L.Ed.2d 145 (1993).

Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1273 (3d Cir.1995).

First, Duquesne contends that the district court erred in denying its request to charge the jury that nondisclosures can constitute fraud. In this ruling, the court relied on Restatement (Second) of Torts Sec. 551 which it determined constitutes Pennsylvania law on the issue. Section 551 of the Restatement provides that liability may be imposed on a party to a business transaction only when it has a duty to speak. That duty, according to the Restatement, exists only in limited circumstances, including (1) when there is a fiduciary, or confidential, relationship between the parties; (2) when disclosure is necessary to prevent an ambiguous or partial statement from being misleading; (3) where subsequently acquired knowledge makes a previous representation false; (4) where the undisclosed fact is basic to the transaction. Restatement (Second) of Torts Sec. 551(2).

The threshold inquiry on this point is whether Pennsylvania has adopted section 551. In Neuman v. Corn Exchange Nat. Bank & Trust Co., the Pennsylvania Supreme Court held that "[t]he deliberate nondisclosure of a material fact amounts to culpable misrepresentation no less than does an intentional affirmation of a material falsity." 356 Pa. 442, 51 A.2d 759, 764 (1947). Although the court did not delineate the elements of the tort, it specifically cited to Restatement section 551. Id. Numerous intermediate appellate courts in Pennsylvania have followed Neuman 's lead and held, following the principles in the Restatement, that to be liable for material nondisclosures, a party must have a duty to speak. In the oft-cited Smith v. Renaut, 387 Pa.Super. 299, 564 A.2d 188 (1989), the Pennsylvania Superior Court began its analysis by noting that " 'fraud consists in anything calculated to deceive, whether ... it be ... by speech or silence.... It is any artifice by which a person is deceived to his disadvantage.' " Id. at 192 (quoting McClellan's Estate, 365 Pa. 401, 75 A.2d 595 (1950)). But, the court continued, "[w]hile a concealment may constitute fraud, mere silence is not sufficient in the absence of a duty to speak." Id. In that case, the court held that "a seller has an affirmative duty to disclose a known termite infestation." Id. at 192 (citing Quashnock v. Frost, 299 Pa.Super. 9, 445 A.2d 121, 124 (1982) (in banc)). Similarly, in Wilson v. Donegal Mut. Ins. Co., 410 Pa.Super. 31, 598 A.2d 1310, 1315-16 (1991), the court held that "[c]oncealment can be a sufficient basis for finding that a party engaged in fraudulent conduct, ... however, mere silence is not sufficient in the absence of a duty to speak." See also Quashnock v. Frost, 445 A.2d at 130 (Spaeth, J., concurring) (relying on section 551). In Estate of Evasew v. Evasew, 526 Pa. 98, 584 A.2d 910 (1990), the Supreme Court of Pennsylvania explicitly approved the duty to speak prerequisite, holding that "an omission is actionable as fraud only where there is an independent duty to disclose the omitted information." Id. at 913 (relying on City of Harrisburg v. Bradford Trust Co., 621 F.Supp. 463 (M.D.Pa.1985)).6

But while Pennsylvania courts have adopted the duty to speak requirement, the cases leave us uncertain of the extent to which Pennsylvania law includes the Restatement's discrete criteria for when a duty to speak arises. Furthermore, the district court incompletely analyzed the elements of section 551--looking only at whether there was a confidential relationship between the parties. Nevertheless, we conclude that Pennsylvania courts would not impose liability in the circumstances of this case. Pennsylvania courts analyzing whether there was a duty to speak rely almost exclusively on the nature of the contract between the parties and the scope of one party's reliance on the other's representations. Thus, in the termite infestation cases, see Quashnock v. Frost, 299 Pa.Super. 9, 445 A.2d 121, and Smith v. Renaut, 387 Pa.Super. 299, 564 A.2d 188, the buyer is at the whim of the seller to disclose such latent problems, which are not discoverable by other reasonable means. In those circumstances, it cannot be said fairly that by failing to disclose the seller is legitimately enhancing his or her bargain. Similarly, in Neuman, the plaintiff "justifiably" relied on a bank's representation that another party had offered a specific amount for the stock itself, see Neuman, 51 A.2d at 764; in that case, the bank was the only reasonable source of the information. Id. at 765. And in Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285 A.2d 451 (1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2459, 32 L.Ed.2d 806 (1972), the court analyzed the duty to speak under reliance principles, and held that "the jury could have concluded that [the defendant] knowingly abused [plaintiff's] confidence." Id. at 456.

None of these cases is applicable to the situation present here, where the two parties are sophisticated business entities, with equal and ample access to legal representation. "[S]uperior information and better business acumen are legitimate advantages, which lead to no liability." Restatement (Second) of Torts Sec. 551 comment k. As Westinghouse correctly points out, there is virtually no Pennsylvania case in which a defendant has been held to have a duty to speak when both the plaintiff and defendant were sophisticated business entities, entrusted with equal knowledge of the facts. We also note that while the court did not explicitly charge the jury to consider omissions, it permitted Duquesne's counsel to argue "that the misrepresentation consists of both a false statement and a partially correct statement that requires other information in order to be correct." App. 1930. This ruling was tantamount to allowing Duquesne to present its fraudulent omission claim to the jury.

Duquesne also contends that the district court's jury instructions did not permit the jury to consider Westinghouse's post-contract fraud. Duquesne relies on the district court's statement at the beginning of its charge that "[p]laintiffs allege that the defendant fraudulently induced them to enter into certain contracts by making false representations." App. 1978. However, the district court, in delineating the elements of a fraud claim, did not limit the claim temporally. Moreover, Westinghouse points out that the verdict form paralleled the substantive fraud instruction rather than the court's initial comments. Further still, the judge's preliminary instructions did include in its characterization of Duquesne's contention that Westinghouse "continued to defraud [Duquesne] by making additional misrepresentations...." App. 126. Finally, Duquesne in its closing arguments referred repeatedly to Westinghouse's post-fraud actions. Although the instructions were not absolutely clear we do not believe that the charge as a whole presents an incorrect view of the law.7

Finally, Duquesne argues that the jury verdict must be overturned because the district court made numerous evidentiary errors. In particular, it contends that the court erred in excluding two exhibits, an expert's testimony and certain rebuttal evidence. We have reviewed these claims and find no error of law or abuse of discretion in these rulings. We therefore will affirm the judgment entered on the jury verdict.

Duquesne next challenges the district court's grant of Westinghouse's motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a). We exercise plenary review over the district court's grant of a Rule 50(a) motion, see McDaniels v. Flick, 59 F.3d 446, 454 (3d Cir.1995). A district court should grant such a motion only if, viewing all the evidence in favor of the nonmoving party, no reasonable jury could find liability on a particular point. Id. (citing Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993)).

Duquesne contends that the district court erred by refusing to send its contract claim of "failure to deliver conforming goods" to the jury. The district court granted Westinghouse's motion for judgment as a matter of law on this count, concluding that "[t]he contract is unambiguous in providing that the design life of the steam generators was not a guarantee." We agree.

Of course, the goal of contract interpretation is to discover the parties' objective mutual intent. Under Pennsylvania law " '[i]t is firmly settled that the intent of the parties to a written contract is contained in the writing itself.' " Samuel Rappaport Family Partnership v. Meridian Bank, 441 Pa.Super. 194, 657 A.2d 17, 21 (1995) (quoting Krizovensky v. Krizovensky, 425 Pa.Super. 204, 624 A.2d 638, 642-43 (1993)); see also Hullett v. Towers, Perrin, Forster & Crosby, Inc., 38 F.3d 107, 111 (3d Cir.1994) ("Pennsylvania courts apply the 'plain meaning rule' of interpretation of contracts which assumes that the intent of the parties to an instrument is 'embodied in the writing itself....' ") (citation omitted). Thus, where, as here, the parties have reduced their agreement to writing, Pennsylvania courts presume that the parties' mutual intent can be ascertained by examining the writing. Only where the writing is ambiguous may the factfinder examine all the relevant extrinsic evidence to determine the parties' mutual intent. Allegheny Int'l, Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1424 (3d Cir.1994). Therefore, as a preliminary matter, courts must " 'determin[e] as a matter of law which category written contract terms fall into--clear or ambiguous.' " Id. (citation omitted). There are, as we recently noted, two kinds of ambiguity, patent ambiguity and latent ambiguity:

' "[a] patent ambiguity is that which appears on the face of the instrument, and arises from the defective, obscure, or insensible language used." Black's Law Dictionary 105 (rev. 4th ed. 1968). In contrast, a latent ambiguity arises from extraneous or collateral facts which make the meaning of a written agreement uncertain although the language thereof, on its face, appears clear and unambiguous. Easton v. Washington County Ins. Co., [391 Pa. 28] 137 A.2d 332 (1957).'

Allegheny, 40 F.3d at 1424 (quoting Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659, 663 (1982)).

Because of Pennsylvania's presumption that the writing conveys the parties' intent,

'[a] contract will be found ambiguous "if, and only if, it is reasonably or fairly susceptible of different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree on the proper construction." '

Meridian Bank, 657 A.2d at 21-22 (quoting Krizovensky, 624 A.2d at 642-43).

Pennsylvania law permits courts to examine certain forms of extrinsic evidence in determining whether a contract is ambiguous. But lest the ambiguity inquiry degenerate into an impermissible analysis of the parties' subjective intent, such an inquiry appropriately is confined to determining "the parties' linguistic reference." Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1011 n. 12 (3d Cir.1980). In other words, "extrinsic evidence may be utilized to demonstrate the existence of a latent ambiguity." Meridian Bank, 657 A.2d at 22 (citing Lohmann v. Piczon, 338 Pa.Super. 485, 487 A.2d 1386 (1985)). Thus, as we pointed out in Mellon Bank, when the contract refers to $10,000, unless we looked at extrinsic evidence we might never learn that the parties were referring to Canadian rather than American dollars. 619 F.2d at 1011 n. 12. In making the ambiguity determination, then, we " 'consider the words of the contract, the alternative meaning suggested by counsel, and the nature of the objective evidence to be offered in support of that meaning.' " Hullett, 38 F.3d at 111 (citation omitted).

The essence of Duquesne's contract claim is that Westinghouse agreed to provide steam generators that would last for 40 years. Unable to point to any provision in the contract that clearly supports this proposition, Duquesne predicates this claim largely on the following provision of the contract's technical specifications:

Consideration shall be taken of all NSSS components subject to the loss of ductility arising from integrated neutron exposure (nvt) based on a minimum station life of 42 yr operating at an 85 per cent load factor. The reactor internals shall be so designed that they may be completely removed by remote handling techniques without the use of divers.

App. 2228.8 Duquesne's reading would stretch this language to unimaginable proportions, as it would turn the 42 year station life by which certain components were to be judged into an express contractual guarantee that the steam generators themselves would last for 40 years. Contrary to Duquesne's interpretation, this provision clearly and by its very terms covers only components subject to the loss of ductility arising from n