ALDERWOODS (PENNSYLVANIA), INC., a Wholly Owned Subsidiary of Service Corporation International, t/a Burton L. Hirsch Funeral Home, Appellee, v. DUQUESNE LIGHT COMPANY, Appellant.
No. 12 WAP 2013.
Supreme Court of Pennsylvania.
Argued Oct. 15, 2013. Decided Dec. 15, 2014.
106 A.3d 27
Robert C. Heim, Esq., Philadelphia, Dechert LLP, for Energy Association of Pennsylvania.
Bohdan R. Pankiw, Esq., Harrisburg, Kenneth Riley Stark II, Esq., PA Public Utility Commission, Patricia Timmerman Wiedt, Esq., Robert Frank Young, Esq., for Pennsylvania Public Utility Commission.
Elisa Talora Wiygul, Esq., Dechert LLP, Philadelphia, for Energy Association of Pennsylvania.
Alan J. Charkey, Esq., White and Williams, L.L.P., Peter T. Parashes, Esq., Philadelphia, for Alderwoods (Pennsylvania), Inc.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
Justice SAYLOR.
The main and controlling issue accepted for review, as framed by the appellant, is “[w]hether the Superior Court erred in imposing upon electric utilities a burdensome and unprecedented duty to enter customers’ premises and inspect customers’ electrical facilities before restoring power after an outage?” Alderwoods (Pa.), Inc. v. Duquesne Light Co., 620 Pa. 214, 66 A.3d 763 (2013) (per curiam). It is material to bear in mind from the outset, however, that the appellant‘s portrayal of the issues fails to adequately address the Superior Court‘s formulation of electric-company duties, in the аlternative, “to inspect, or at a minimum, to warn a customer, under the facts alleged[.]” Alderwoods (Pa.), Inc. v. Duquesne Light Co., 52 A.3d 347, 355 (Pa.Super.2012) (emphasis adjusted).
I. Background
Appellant, Duquesne Light Company (“Duquesne Light” or “Duquesne“), is a Pennsylvania public utility engaged in the business of transmitting and distributing electric power in the city of Pittsburgh. Appellee, Alderwoods (Pennsylvania), Inc., trading as Burton L. Hirsch Funeral Home (“Hirsch“), conducted business at 2704 Murray Avenue in Pittsburgh. The electric company provided service to Hirsch at this location.
On Friday, January 9, 2009, after business hours, an unidentified motor vehicle crashed into and felled a utility pole carrying electric lines owned and operated by Duquesne Light. Several wires were connected to Hirsch‘s business premises, and at least one was stripped from the service point, i.e., the attachment point to the building‘s electrical system located on the structure. In addition to the funeral home, a number of other local buildings lost power as a result of the incident, although no structure other than Hirsch‘s was connected directly to the downed pole.
Upon receiving word of the outage, Duquesne Light dispatched a line crew to make repairs. Over a period of several
Soon after the wires wеre connected and energized, a fire broke out at the location of an electrical panel box located in the basement of the premises and owned by Hirsch. The blaze spread, and the funeral home was destroyed.
Hirsch commenced a civil action against Duquesne Light, including two negligence counts, denominated “ordinary negligence” and “highest degree of care” attendant to the supply of electricity.1 According to Hirsch‘s pleadings, the electric company‘s employees “incorrectly and improperly” reconnected the funeral home to the transmission and distribution system. Amended Complaint at ¶ 11. Hirsch contended that this triggered an electrical arc and catastrophic failure at the electrical panel box inside the funeral home, resulting in the fire. See id. at ¶ 12. The amended complaint also charged the utility with nonfeasance for not examining the funeral home‘s electrical system or contacting Hirsch to request access for inspection prior to restoring power, and, more generally, for failing to do those things necessary to maintain safety and preserve the business premises. See id. at ¶ 14.
In an answer with new matter, Duquesne denied a number of the material allegations of the complaint and asserted that the fire was a result of the malfeasance of the unknown third-party motorist and/or defective electrical wiring or equipment owned and maintained by Hirsch. The electric company also indicated that it bore no duty to inspect the funeral home‘s—or any other customer‘s—privately-owned electrical equipment or system before restoring power after an outage. See Answer and New Matter to Amended Complaint at ¶ 43.
According to Mr. Wunderley, “[i]nspection of the electric panels and Duquesne Light metering equipment in the funeral home prior to reenergizing the single phase service would have revealed the electrical damage caused by the contact between the primary and secondary conductors at the pole[.]” Id. at 7. Furthermore, Mr. Wunderley asserted that the extensive damage to the utility pole and lines at the crash site afforded Duquesne‘s line crew ample notice of a substantial likelihood that the high-voltage primary conductors contacted the lower-voltage secondary lines. See id. at 7 (“The potential for damage inside the funeral home due to the physical damage to the service connections and probable contact between the 4000 volt primary and secondary conductors was a compelling reason and cause to inspect the metering equipment in the funeral home prior to reenergizing the single phase service.” (emphasis added)); Engineer‘s Supplemental
At the close of discovery, Duquesne Light pursued summary judgment. The electric company rested its motion squarely on the premise that “[t]he only basis asserted for liability is that before restoring power, the Duquesne Light crew should have entered the locked Funeral Home in the middle of the night, gone to the basement, and inspected the customer‘s electrical panel.” Brief in Support of Summary Judgment at 4 (emphasis added). The company then set about disclaiming any such duty, on the part of an electric service provider, to affirmatively inspect privately-owned equipment and/or systems prior to restoring power after an outage.2
Early on in its supporting brief, Duquesne Light observed the axiom that duty is an essential element of a negligence claim. See, e.g., Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 552, 756 A.2d 1166, 1168 (2000). The electric company‘s
In support of this position, Duquesne Light relied prominently upon Milton Weaving Co. v. Northumberland County Gas & Electric Co., 251 Pa. 79, 83, 96 A. 135, 136 (1915) (following “the view that [an electric service provider] is not bound to inspect such appliances [owned and maintained by its customers] and is not generally liable for injuries or damages caused by reason of defect therein“); and Adams v. United Light, Heat & Power Co., 69 Pa.Super. 478, 1918 WL 2272 (1918) (applying the general rule articulated in Milton in support of a determination that an electric service provider had no duty associated with personal injury caused by a defective electrical extension cord inside a customer‘s premises).3 The electric company asserted that these cases and others in their line exemplified, in the application, a bright-line allocation of responsibility from the service point between an electric service provider and any customer.
Further, Duquesne Light presented policy arguments supporting this demarcation, including the following:
It makes perfect sense for tort law to impose a duty upon a utility to install, inspect and maintain its own equipment in a safe condition. It makes no sense to extend the utility‘s duty to the customer‘s equipment. If Duquesne Light werе to be required to enter the Funeral Home and inspect electrical facilities before restoring power, which items of equipment should it inspect? The panel box only? What about fuses and circuit breakers? Should Duquesne Light take the cover off the panel box and check the connections in the back? What about the wires carrying power throughout the building? What about the toaster in the kitchen? Once the line of demarcation between the utility‘s equipment and the customer‘s equipment is crossed, there is no logical limit to the utility‘s potential responsibility. Sensibly, Pennsylvania law has never imposed such unlimited liability on an electrical utility.
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It would be impractical to require Duquesne Light, or any other utility, to enter and inspect. . . . Such a requirement would complicate and delay power restoration after storms and other outages. A number of [local] customers, not just the Funeral Home, were affected by the motor vehicle accident. Duquesne Light did not inspect those customers’ electrical infrastructure prior to reapplying power, nor was the Company under any legal duty to do so.
Brief in Support of Summary Judgment at 5–7.
In response to the summary judgment motion, Hirsch relied on general negligence principles as establishing a duty to avert harm when one engages in conduct which foreseeably creates an unreasonable risk to others. See Memorandum of Law in Opposition to Summary Judgment at 15 (quoting Commerce Bank/Pa. v. First Union Nat‘l Bank, 911 A.2d 133, 139 (Pa.Super.2006)). See generally Restatement (Second) of Torts § 302 cmt. а (1965) (“In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act.“). To evidence notice, on Duquesne Light‘s part, of a dangerous condition
As to duty, Hirsch eschewed Duquesne Light‘s vision of a rigid line of demarcation between the responsibilities of an electric company and the customer. According to Hirsch, none of the cases relied upon by the electric company involved circumstances in which an electric service provider should have foreseen the sequence of events causing harm. In light of the circumstances known to the utility‘s line crew when members restored power to the funeral home, Hirsch argued that damage to the building‘s electrical system was eminently foreseeable to them. Along these lines, the funeral business owner stressed that Duquesne was a litigant in a prior case involving a line-crossing, overvoltage scenario. See Wivagg v. Duquesne Light Co., 73 Pa. D. & C.2d 694 (C.P. Allegheny 1975). In response to Duquesne‘s protestations about entering customer premises, Hirsch highlighted a passage from the “Duquesne Light Schedule of Rates and Service Installation Rules” indicating that utility representatives have a right of access to customer premises to read meters, for inspection and repairs, and for any other purposes incident to service. See, e.g., Appendix to Response in Opposition to Motion for Summary Judgment at Ex. I, Supplement No. 10, Second Revised Page No. 24.
Finally, Hirsch invoked a series of factors delineated in this Court‘s seminal decision in Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000), relevant to whether the
Upon consideration of the litigants’ submissions, the common pleas court awarded summary judgment in Duquesne Light‘s favor. See Alderwoods (Pa.), Inc. v. Duquesne Light Co., No. G.D. 09-14720, slip op., 2011 WL 8614889 (C.P. Allegheny March 8, 2011). In a brief opinion, the court credited the utility‘s theory that, while an electric company has a duty to maintain its own equipment and conduct reasonable inspections of its own facilities, it has no duty to inspect equipment owned by its customers. In this regard, the common pleas court found the Superior Court‘s decision in Adams to be controlling and the PUC‘s remarks in Hineline to be persuasive. See id. at 4-6; see also supra note 3.
On appeal, the Superior Court reversed in the relevant regard. See Alderwoods, 52 A.3d 347. After setting forth the standards governing an award of summary judgment
The Superior Court, however, shied from recognizing such duty in terms of one to inspect customer equipment, which was the subject of the underlying summary judgment proceedings. Rather, the intermediate court repeatedly noted that the formulation of duty in the complaint included a catch-all, namely, an obligation “to do those things which were necessary to preserve Hirsch‘s property and render [the funeral home] safe in the process of reconnecting [it] to the high-voltage line[.]” Alderwoods, 52 A.3d at 355 (quoting Amended
II. Arguments
In its main brief, Duquesne Light concentrates closely on the position that electric service providers have no obligation to inspect privately-owned electrical equipment and systems internal to customer premises, as a corollary to the service-point rule. Consistent with this focus, the electric company portrays the Superior Court‘s opinion only as holding that the utility “had a duty to enter and inspect,” Brief for Appellant at 7, despite that the intermediate court actually framed the duty in the alternative to encompass a more modest option to warn. See Alderwoods, 52 A.3d at 355.8
Having so framed the issue, Duquesne Light advances its argumentation in much the same fashion as it has from the outset in its summary judgment motion and supporting brief. In this vein, the company remonstrates that there simply is no
Duquesne Light explains that, on an annual basis, it must contend with many service outages precipitated by unpredictably inclement weather and other causes, requiring its personnel to work overtime, borrow workers from other companies, and strive to restore power for the public benefit as quickly as possible. The electric company reiterates that the imposition of a burden to inspect customer equipment would require the involvement of licensed electricians and an expenditure of untold man-hours. Moreover, according to the utility, the duty recognized by the Superior Court is untenably indefinite in terms of what it is that an electric service provider needs to inspect, so that company personnel will be faced with the “impossible quandary” in determining how far they should go to examine customer electrical equipment and systems. Brief for Appellant at 8. Duquesne also emphasizes that inspections internal to private customer premises will engender substantial delays in restoration of power after outages. See id. at 22 (“If electric customers are suddenly required to endure longer power outages than before, this should be determined by the Public Utility Commission, not the Superior Court.“).
As to Althaus, Duquesne Light posits that “[i]n announcing this summary of the factors comprising legal duty, surely this Court did not intend to wipe the slate clean of prior precedents and erase long-standing principles of Pennsylvania tort law.” Brief for Appellant at 15. In the event this Court might deem the Althaus factors relevant, the electric company discusses these, again weaving in the concerns with increased costs, delays, and uncertainties. Furthermore, the utility
The PUC has filed an amicus brief supporting Duquеsne Light‘s position. Like the electric company, the Commission couches the duty recognized by the Superior Court as one on the part of an electric service provider to “inspect customer equipment after storms and outages,” thus also disregarding the warning aspect of the intermediate court‘s determination. Amicus Brief for the PUC at 4. As to the asserted duty to inspect, the Commission supports the utility‘s position that its imposition is unprecedented and burdensome and urges this Court to reaffirm the longstanding service-point rule allocating ownership and maintenance responsibility for electrical systems in two directions from the point of delivery.
The PUC also offers a detailed overview of its regulatory responsibilities relative to electric service providers and its efforts to ensure speedy and efficient restoration of power after outages, in furtherance of the public interest. See, e.g., id. at 16 (“[I]mposing a duty on the electric utility to inspect customer wiring/equipment prior to service restoration after an outage is not only . . . cost prohibitive and not in the public interest, but also is beyond the utility‘s jurisdiction and responsibility.“). Additionally, the Commission offers its own Althaus assessment, again emphasizing factors such as the public interest in prompt, efficient, safe, and affordable restoration of power in the wake of an outage. Finally, the PUC suggests that the imposition of duties upon utilities should be left to its regulatory province and not to the field of the common law. See id. at 27 (“[T]he Superior Court intruded on the PUC‘s statutory duty to regulate service duties of public utilities.“).
The Energy Association of Pennsylvania also filed an amicus brief supporting Duquesne. Like the electric company and its regulator, the Energy Association discusses the Supe-
In addition to reinforcing the legal arguments presented by Duquesne Light, the Energy Association observes that power outages themselves, especially prolonged ones, create their own dangers. See id. at 7 (discussing such risks as encompassing “downed, live wires to fires caused by candles, to hypothermia in the winter and heat stroke in the summer,” as well as potential spoilage of refrigerated medication and idling of powered essential medical equipment, such as respirators). The Association envisions that imposing a duty to inspect on electric service providers would cause untenable delays in power restoration and result in enormous costs to Pennsylvania utility companies and consumers. See id. at 12.
For Hirsch‘s part, it did not escape its attention that the Superior Court envisioned a “duty . . . to inspect, or at a minimum, to warn[.]” Brief for Appellee at 4 (quoting Alderwoods, 52 A.3d at 355). In sharp contract to Duquesne Light‘s presentation and those of its amici, Hirsch returns regularly to the warnings issue throughout its brief.9
In terms of the duty to inspect, Hirsch takes issue with Duquesne Light‘s portrayal of the precedent as establishing that under no circumstances does a utility have such an obligation. According to the funeral business owner, the decisions simply did not contemplate scenarios involving utilities with actual or constructive notice of a dangerous condition on the customer side of a service point. See Brief for Appellee at 14 (“Implicit in each case is the notion of foreseeability—that an electric utility can be under no duty to inspect a customer‘s faulty equipment when the utility has no reason to anticipate the fault.“). In this regard, Hirsch invokes the axiom that the holding of a judicial decision is to be read against the factual circumstances under review. See id. at 16 (quoting City of Pittsburgh v. WCAB (Robinson), 620 Pa. 345, 365, 67 A.3d 1194, 1206 (2013)). Further, it maintains that electric service providers, like all others, are subjeсt to the duty of care not to harm others by their affirmative conduct, where such injury is reasonably foreseeable. See id. at 17-18 (citing Seebold, 618 Pa. at 654, 57 A.3d at 1246, and quoting Mirnek v. W. Penn Power Co., 279 Pa. 188, 191, 123 A. 769, 770 (1924), for the proposition that electric companies “are bound to anticipate . . . such combinations of circumstances and accidents and injuries therefrom as they may reasonably forecast as likely to happen“).
Respecting Duquesne Light‘s and its amici‘s policy concerns about potential delay, expense, and hardship to utilities and the public at large, Hirsch regards them as “severely overblown.” Brief for Appellee at 12; see also id. at 39 (positing that, particularly in light of the potential for fires to spread to other properties, “[t]he consequences of a fire caused by failing to inspect, or to warn of, a building with a suspected electrical fault dwarf those of delaying the restoration of service“). Against the present circumstances, the funeral business owner notes that an inspection would have encompassed only Hirsch‘s premises, since it was the sole
Finally, responding to the position of Duquesne Light and its amici that there were no circumstances suggesting an unreasonable risk of harm to the funeral home when the work crew restored power, Hirsch relies on, inter alia, Mr. Wunderley‘s position to the opposite effect, based primarily on the condition of fallen and damaged lines at the crash site. See Brief for Appellee at 9, 53-54. Furthermore, the funeral business owner cites Summers v. Certainteed Corp., 606 Pa. 294, 309, 997 A.2d 1152, 1161 (2010), as exemplifying the consideration to be given to expert opinion proffers in summary judgment inquiries. See id. at 309, 997 A.2d at 1161 (“It has long been Pennsylvania law that, while conclusions recorded by experts may be disputed, the credibility and weight attributed to those conclusions are not proper considerations at summary judgment; rather, such determinations reside in the sole province of the trier of fact, here, a jury.“).
III. Discussion
At the outset, we agree with the legal position of Duquesne Light and its amici that, under Pennsylvania law, maintenance and inspection responsibilities generally are divided at the service point, such that an electric service provider does not have a freestanding duty to inspect customer-owned electrical equipment and services on the premises’ side. Accord Milton, 251 Pa. at 83, 96 A. at 136. As amply reflected above, however, the Superior Court simply did not recognize such a freestanding obligation. Rather, the obligation envisioned by the intermediate court expressly encompassed an alternative entailing the more modest avenue of warning a customer proximate to downed lines prior to restoring power after an outаge, where the utility has actual or constructive
Part of the conceptual difficulty in this case lies in the litigants’ very different approaches to the legal issues presented. As noted, Duquesne Light prefers to confine the discussion as closely as possible to the service-point rule; whereas, in Hirsch‘s estimation, the dispute more appropriately centers upon application of the common-law duty to take reasonable measures to avert harm occasioned by one‘s own conduct, in the face of actual or constructive knowledge of a danger. As the funeral business owner observes, the obligation it relies upon is reflected, in general terms, in Section 302 of the Restatement Second of Torts and the associated commentary. See Restatement (Second) of Torts § 302 cmt. a.
In this regard, we find that the service-point rule has its limits and does not wholly supplant the salient common-law duty. As Hirsch develops amply, the service-point principle evolved in scenarios in which the courts were not focused on the presence of actual or constructive knowledge, on the part of utilities engaged in affirmative activities proximate to customer premises, of an unreasonable risk of harm arising from their conduct.11 Indeed, although Duquesne Light would
clearly like to enjoy immunity from tort liability per a broad-scale application of the service-point rule, the electric company has itself refrained from stating, outright, that it is exempt from the application of the general tort-law duty to take reasonable measures to avert an unreasonable risk of harm to others occasioned by its own conduct.12
Duquesne Light‘s treatment of the underlying duty dovetails with its approach to the warning aspect—quite simply, the electric company fails to deal squarely with either. Based on such a deficient presentation, we have no intention of exempting a company administering in a dangerous commodity from well-recognized duties of care, in the face of actual or constructive knowledge of a danger.13 Moreover, the undertaking of reasonable efforts to avert harm prior to restoring power—at least some form of warning as envisioned by the Superior Court—represents a relatively modest measure in
the face of an unreasonable risk of which a utility knows or should be aware.We acknowledge the large-scale, indispensable public benefit administered by electric service providers, as well as the many challenges they face which are inherent in the daunting task of maintaining twenty-four-hour service over a large geographic area. In light of this value and responsibility and scale, it may well be that, upon a full and developed consideration of the landscape of the mixed policy considerations involved, such comрanies should enjoy some degree relief from exposure to the expense and uncertainties inherent in tort litigation and attendant jury determinations (by a preponderance of the evidence) concerning whether they have met their duties at common law in discrete scenarios as they may arise. We have recently explained, however, that such matters of immunity generally are best decided by the political branch, since the General Assembly is better positioned to make informed policymaking judgments reflecting an appropriate balancing among the respective interests involved. See Lance v. Wyeth, 624 Pa. 231, 265, 85 A.3d 434, 454 (2014) (“[B]ecause the Legislature possesses superior policymaking tools and resources and serves as the political branch, we [have taken] the position . . . that we would not direct the substantive common law away from well-established general norms in the absence of some clear predominance of policy justifications.“); see also Seebold, 618 Pa. at 653, 57 A.3d at 1245. Moreover, we have reaffirmed that the treatment of these sorts of policy arguments should be on a developed record, including empirical information, which would support an informed, legislative-type judgment—subject, of course, to constitutional limitations. See Lance, 624 Pa. at 264-65, 85 A.3d at 454.
It is therefore material that Duquesne Light never set out, in its summary judgment effort, to establish such a record or case. Rather, its position from the outset has been premised on the assumption that the longstanding service-point rule represents the be-all-and-end-all of an electric utility‘s obligations touching upon the customer side of the service point.
As to the aspects of this litigation centered on the Althaus factors, we find these to be more relevant to the creation of new duties than to the vindication of existing ones. It is not necessary to conduct a full-blown public policy assessment in every instance in which a longstanding duty imposed on members of the public at large arises in a novel factual scenario. Common-law duties stated in general terms are framed in such fashion for the very reason that they have broad-scale application. To the extent that Hirsch wishes to pursue a theory at trial that a warning would have represent
For the sake of a rounder treatment of the arguments presented, we emphasize that Duquesne Light‘s and its amici‘s argumentation that the electric company lacked constructive notice of a dangerous condition inside the funeral home conflicts squarely with the expert opinion of Mr. Wunderley presented by Hirsch. In light of such a conflict, the utility cannot merely rest upon recitations of evidence supportive of its own position, since such differences present questions for a finder of fact and not a judge attending to a summary judgment motion. See Summers, 606 Pa. at 309-10, 997 A.2d at 1161. Furthermore, we will not consider, at a second-tier appellate-review stage, indirect attacks on Mr. Wunderley‘s opinion posed as an after-thought to Duquesne‘s advancement of its position that the service-point rule controls in all events.
Finally, responding to Justice Eakin‘s position, the dissent is grounded on the notion that the Milton decision wholly relieved electric companies from the general common-law duty to take reasonable measures to avoid harming others through one‘s own affirmative conduct undertaken with actual or constructive knowledge of an unreasonable risk. As we strongly differ with such premise, see, e.g., supra note 11, we disagree just as firmly with the dissent‘s repeated assertion that our present opinion imposes a “new duty.” Dissenting Opinion at 71-73, 106 A.3d at 44-45 (Eakin, J.).17 While the dissent
IV. Summary
Since Duquesne Light has failed to adequately confront the common-law duties invoked by Hirsch or the warnings dynamic tempering the Superior Court‘s ruling, we have little basis to assess whether the electric company might be accorded immunity from such duties, or whether a requirement to warn might be unreasonable. Against such background, we hold that the Superior Court did not err to the extent that it recognized a duty, on the part of an electric service provider, to take reasonable measures to avert harm in a scenario in which the utility has actual or constructive knowledge of a dangerous condition impacting a customer‘s electrical system, occasioned by fallen and intermixed electrical lines proximate to the customer‘s premises. Furthermore, we offer no opinion as to whether Duquesne Light had actual or constructive knowledge of an unreasonable risk in the present scenario, since the electric company‘s summary judgment effort was not staged in a fashion which would elicit an informed determination on such point.
Electric service providers are not insurers relative to the safety of their customers’ equipment, and subjugation to basic,
The order of the Superior Court is affirmed, albeit we find the intermediate court‘s Althaus assessment to have been unnecessary and express no opinion as to its sufficiency or merits.
Former Justice McCAFFERY did not participate in the decision of this case.
Chief Justice CASTILLE and Justices BAER and STEVENS join the opinion.
Justice EAKIN files a dissenting opinion.
Justice TODD files a dissenting opinion.
Justice EAKIN, dissenting.
As I find the duty created by the Superior Court contravenes precedent from this Court—a duty that is unsupported by the allegations in appellee‘s complaint—I cannot join the majority in affirming that decision.
It has long been the law in Pennsylvania that an electric service provider is neither obligated to inspect its customers’ equipment nor liable for damages relating thereto. See Milton Weaving Co. v. Northumberland County Gas & Electric Co., 251 Pa. 79, 96 A. 135, 136-37 (1915); see also Adams v. United Light, Heat & Power Co., 69 Pa.Super. 478 (1918).1
Thus, while an electric utility must inspect its own equipment for defects or damage, its obligations end at the “service point,” i.e., where the lines connect to the customer‘s wiring system.
Notwithstanding this well-established rule, the Superior Court found Duquesne Light had a duty to warn appellee of a possible dangerous condition with appellee‘s equipment. The majority affirms the Superior Court‘s holding, despite reaffirming that “maintenance and inspection responsibilities generally are divided at the service point, such that an electric service provider does not have a freestanding duty to inspect customer-owned electrical equipment and servicеs on the premises’ side.” Id., at 62, 106 A.3d at 38 (citation omitted). Apparently, the majority finds the service-point rule inapplicable based on the allegation that Duquesne Light had constructive knowledge of an unreasonable risk of harm. See id., at 63, 106 A.3d at 38. However, if an electric service provider‘s obligations end at the service point, then Duquesne Light owed appellee no duty to intuit hazards manifesting on appellee‘s side of that point. Whether couched as a duty to inspect, as appellee alleges, or the Superior Court‘s admittedly more “modest” duty to warn, any basis for liability stemming from the customer‘s own equipment runs afoul of the bright-line rule established by Milton.
To its credit, the Superior Court attempted to limit its holding to the peculiar facts of this case. Not only did it conduct an Althaus2 analysis specific to these two parties, but within that analysis, it made clear that “[t]he consequences of imposing a duty upon Duquesne Light to inspect, or at a
The majority holds that electric service providers must “take reasonable measures to avert harm” when they have reason to know of a dangerous condition affecting the customer‘s electrical system. Id. While the majority appears to limit this obligation to a duty to warn, see id., at 62-63, 106 A.3d at 37-38, it fails to outline the peripheries of this new duty. To be sure, “reasonableness” is the standard by which allegedly negligent actions are judged, but it remains a duty ill-defined as it relates to the myriad situations electric service companies will face.
Some situations provide actual knowledge of a problem, but others do not. How is an electric company to know what are “reasonable measures to avert harm” when the problem is on property it does not control? The majority suggests Duquesne Light should have notified appellee so appellee could summon its own electrician, which is fine as far as it goes—but after it does so, must the company delay returning service to others until the customer finds and hires an electrician? Must the utility wait even longer while the electrician conducts the inspection before it reenergizes the system? The majority appears to assume every customer will receive the warning
As the majority points out, “these are precisely the sorts of considerations relegated to juries[,]” id., at 69, 106 A.3d at 42, and perhaps a body of law will, eventually, develop on this new duty, as its ramifications are exposed by new cases. In the meantime, however, these uncertainties will result in significant delays in the restoration of power because if the electric service companies know they may be held liable for damages if they restore power prematurely, they will delay doing so until they are sure no such damage will occur. Depending on the severity and location of the storm that caused it, weather-related power outages impact thousands of customers, commercial and residential alike, in both urban and rural areas. While the outage here was relatively benign, as appellee was the only one connected to the affected pole, the new duty created is not limited to such situations—it must be applicable to all, and in most circumstances, a prolonged power outage would be not only a public inconvenience, but also a major safety concern.
In addition to these substantive objections, I must also disagree with the majority‘s decision on procedural grounds. As noted above, the “duty to warn” theory was not advanced by appellee. In the Superior Court, appellee did not argue Duquesne Light breached its duty to notify it of a potential hazard, instead arguing the trial court “should have concluded that Duquesne [Light] was under a duty to inspect [appellee]‘s electrical apparatus before restoring power.” Appellee‘s Superior Court Brief, at 41. Rather than confine its analysis to the theories proffered by the parties, the Superior Court sua sponte addressed a duty to warn appellee of possible dangers created by appellee‘s own equipment. In doing so, the court erred.
Not only did the court err in addressing an issue not raised by the parties on appeal, but it reversed the trial court, in part, based on a theory that cannot be gleaned from appellee‘s pleadings. In its amended complaint, appellee claimed Duquesne Light was negligent for three things:
- improperly reconnecting the lines between the funeral home and the distribution system;
- failing to inspect the system; and
- “failing and omitting to do those things which were necessary to preserve Hirsch‘s property and render said premises safe.”3
Amended Complaint, 5/28/10, at 4. Nowhere did appellee allege Duquesne Light was negligent for failing to warn the funeral home employees of a dangerous condition prior to reenergizing the system. Moreover, if Duquesne Light‘s failure to warn appellee of a potential hazard is the basis for its negligence claim, it must allege and prove the failure to warn caused the harm it suffered, i.e., that had it been notified, appellee would have inspected and remedied the defect prior to the company‘s reenergizing the system. Appellee‘s pleadings contained no such allegation.4
Accordingly, I dissent.
Justice TODD, dissenting.
While the majority has presented a thoughtful and reasonable legal analysis, I must respectfully dissent because the
The majority finds that Appellant—Duquesne Light—has a duty to take reasonable measures to avoid harm to one of its customers prior to restoring power, when it has actual or constructive knowledge of a danger created by an overvoltage triggered by downed power lines, and that this duty could entail warning the customer of the dangerous situation prior to restoring power to the customer‘s premises. I acknowledge that the Superior Court found Duquesne Light to have such a duty to warn under the particular circumstances of this case—in addition to a duty to inspect the premises of Appellee (“Hirsch Funeral Home“)—prior to reconnecting power.
However, I deem it inappropriate to opine on the duty to warn at present, as we have not had the benefit of briefing from the parties with respect thereto—a situation which, in my view, is the probable result of the manner in which our Court structured the order granting allowance of appeal. Our Court granted allowance of appeal to address three specific questions, as stated by Duquesne Light:
- Whether the Superior Court erred in imposing upon electric utilities a burdensome and unprecedented duty to enter customers’ premises and inspect customers’ electrical facilities before restoring power after an outage?
- Whether the Superior Court overlooked the deleterious effects of its ruling upon public health and safety, in that by requiring utilities to inspect customers’ premises before restoring power, the new duty created by the Superior Court will delay utilities’ efforts to restore power after storms and other outages?
- Whether the Superior Court overlooked undisputed facts of record that undermine the rationale of its decision?
Alderwoods (Pennsylvania), Inc. v. Duquesne Light Co., 620 Pa. 214, 66 A.3d 763-64 (2013) (order) (emphasis added). The plain import of this order granting allowance of appeal was to inform the parties that our Court would be considering only the portion of the Superior Court decision in which it
Nevertheless, I consider the question of whether Duquesne Light had a duty to warn under these circumstances to be an important one and worthy of our review. For that reason, I would permit additional briefing by the parties on the failure to warn issue. This course of action would be consistent with
Accordingly, I must dissent.
Notes
Brief in Support of Summary Judgment at 6 (quoting Hineline v. Metro. Edison Co., No. C-902777, 1990 Pa. PUC LEXIS 156, at *6 (Pa. PUC Oct. 5, 1990)). In fact, the majority acknowledges as much. See Majority Op., at 66 n. 14, 106 A.3d at 40 n. 14 (“Hirsch did not specifically focus its pleadings and submissions in the common pleas court on warnings[.]“).Traditionally, utilities, the [PUC], and the Courts have recognized that the ownership and maintenance responsibility of an electric utility ends at the point of delivery to the customer. . . . From that point on, the customer owns and assumes the responsibility for the maintenance and security of the internal wiring.
Parenthetically, the questions of whether there are material facts in issue and whether the moving party is entitled to summary judgment are matters of law. Accord Pyeritz v. Commonwealth, 613 Pa. 80, 88, 32 A.3d 687, 692 (2011) (delineating the applicable review standard only in terms of the legal-error component). The abuse-of-discretion aspect has relevance only with regard to matters which lie within the discretion of the court of original jurisdiction, such as a subsidiary evidentiary ruling associated with the award.
Surely, in order to present evidence on Duquesne Light‘s failure to notify appellee of the alleged danger and how appellee would have responded to such a warning, appellee would need to amend its complaint to include factual averments pertaining to these issues. See, e.g., Levin v. Van Horn, 412 Pa. 322, 194 A.2d 419, 422 (1963) (finding general allegation charging nursing home staff with “fail[ing] to give proper, timely and adequate nursing care and attention” insufficient to allow evidence of a specific failure to notice symptoms of over-medication). Howеver, as the majority notes, “[appellee] has not sought to amend the complaint although it has pursued a substituted theory of liability resting on different factual premises.” Majority Op., at 66 n. 14, 106 A.3d at 40 n. 14. I find it troubling for an appellate court to adopt an unpresented theory of liability and remand with implicit instructions for the plaintiff to amend its complaint so it can pursue the theory the court devised on its behalf.Parenthetically, given that the Adams court cautioned that its opinion (and implicitly Milton, upon which Adams relied) should not be read to insulate electric companies from the common-law duty in issue, the dissent‘s basis for citing Adams as supporting the contrary proposition is unclear. See Dissenting Opinion, at 70-71, 106 A.3d at 43-44 (Eakin, J.).