*1 оf sentencing such clarification redounds terms obtain merger. A.2d TECHNOLOGIES, INC., Appellant
EXCAVATION
v. PENNSYLVANIA, Appellee. COLUMBIA GAS COMPANY OF Supreme Pennsylvania. Court of Argued Sept. 2008. Decided Dec. 2009. *2 Nicolls, Mitsos, Clark, Jr., & Balph, Flannery L. Phillip Fluke, Clark, P.C., Castle, Reed Thorp Allan L. & New L.L.P., Excavation Inc. Armstrong, Technologies, McKeon, Watt, Tieder, Fitzgerald, Hoffar & Kevin John L.L.P., Pennsylvania Utility Harrisburg, for Amicus Curiae Association, et al. Contractors Reis, Co., Warmbrodt, Weitman, Weinberg & C.
James Jr., Reed L.P.A., McGough, Thomаs Pittsburgh, Walter Smith, L.L.P., of Company Pennsylvania. Gas for Columbia Clark, Pennsylvania, Association of Energy
Donna M. J. Pennsylvania. Association Energy Amicus Curiae BAER, C.J., SAYLOR, EAKIN, CASTILLE, BEFORE: GREENSPAN, McCAFFERY, JJ.
OPINION EAKIN. Justice performing
Before excavation work for a waterline exten- sion project, appellant requested appellee mark the locations of gas lines around the work sites to the pursuant One Call (Act).1 Act marked Appellee improperly some lines and failed result, tо mark others. As a struck various appellant gas lines, work, its hampered resulting economic damages $74,502.06; appellant did not any physical injury sustain property damage.
Appellant sued on a theory negligent misrepre- (Second) Torts,2 sentation under 552 of the Restatement claiming appellee failed to comply with its statutory duties the Act. Appellee preliminary objections filed in the demurrer, nature of а arguing the economic loss doctrine *3 precluded liability.3 The trial court objections; sustained the 10, 1974, 852, amended, 177(5)(i) 1. Act of § December P.L. 73 P.S. (requiring facility position upon owner mark of lines request). 552, 2. Section Negligently Supplied titled “Information for the Guid- Others,” provides: ance of who, (1) business, profession One in the employment, course of his any interest, or in other pecuniary transaction in which he has a supplies transaсtions, guidance false information for the of in others their business subject liability pecuniary is for loss caused to them information, by justifiable upon their reliance if he fails to competence exercise obtaining reasonable care or in or communicat- ing the information. (2) (3), Except as stated in liability Subsection stated in Subsec- (1) tion is limited to loss suffered (a) by person group persons or one of a limited for whose guidance supply benefit and he intends to the information or knows it; recipient supply that the intends to (b) through upon reliance it in a transaction that he intends the information recipient to influence or knows that the so intends or substantially in a similar transaction. (3) liability public The duty give one who is under a information by any persons extends to loss suffered of the class of for created, duty any whose benefit the in of the in transactions which protect it is intended to them. (Second) (1977). § Restatement of Torts 552 provides, 3. The economic loss doctrine “no cause of action exists negligence solely damages that results in unaccompanied by economic appellant appealed. affirmed, the economic loss Superior recognizing
The
Court
actions for
generally precludes recovery
negligence
dоctrine
The
an
injuries
solely
excep
which are
economic.
court noted
552,
§
negligent misrepresentation
tion for claims of
which allows such claims to evade dismissal even if
assert
they
economic losses. Excavation
Inc. v.
purely
Technologies,
111,
936 A.2d
115-16
Company
Pennsylvania,
Columbia Gas
(
(en
)
Contractors,
banc
uper.2007)
(citing Bilt-Rite
Pa.S
Studio,
(2005)
Inc. v. Architectural
581 Pa.
We whether *4 (Second) § 552 of the Restatement of Torts imposes liability a economic losses to contractor caused when a gas utility fails to mark or marks the location company improperly gas and, thus, pure question lines. This is a of law our review is Bilt-Rite, at 274. plenary.
Further, objections “the standard of review for preliminary limited; in the nаture of a demurrer is the question present- physical injury property damage.” Copper Adams v. Beach Town Communities, L.P., 301, (Pa.Super.2003). home 816 A.2d 305 whether, averred, the demurrer is on the facts the law by
ed a certainty recovery possible. with that no Where says sustained, to whether a demurrer should be doubt exists as in overruling this doubt should be resolved favor of it.” omitted). (citations Id. appellee should be liable for
Appellant argues economic 552(1) (2), § that like the asserting losses under architec Bilt-Rite, in appellee enjoys tural firm an economic benefit from accurate information about the location providing of its case, lines. 552 to this to Applying according will serve the overall appellant, public by discouraging interest negligence among underground utility Alternatively, owners. 552(3) maintains appellant appellee should be liable under because is under a public duty information lines; about the location of its underground when appellee supplies inaccurate or no information in to a response request Act, under the it violates that duty.
Appellee argues utility companies not be equated should design professionals with who are hired to prepare plans, drawings, specifications pecuniary gain. It asserts only Bilt-Rite carved out a exception narrow to the economic loss doctrine for In design professionals. response appel- alternative argument, appellee lant’s this urges Court should impose liability not because it would be con- trary legislative intent. it apparent
We find
our
did not
legislature
utility
intend
companies to be liable for economic
harm caused
an
Act,
inaccurate
under the
response
because it did not provide
cause of action for
private
economic losses.
generally
See
§ 176
seq.
P.S.
et
The economic loss doctrine was well-
enacted,
established
tort law when the Act was
and when
the Act was amended in 1986. See Aikens v. Baltimore and
277,
Railroad Company,
Pa.Super.
Ohio
501 A.2d
278-
(roots
of economic loss doctrine
recognized
first
Flint,
Dry
Repair Company
Robins
Dock and
v.
275 U.S.
(1927)).
48 S.Ct.
A.2d must assume under- laws, it stands on which enacts and when legal landscape abrogated, they common law rulе is not must assume it persists). from Bilt-Rite and, matter factually distinguishable
This Bilt-Rite, 552(1) thus, § In a apply. and do not school firm into a contract for the district and architectural entered design typical public contracting, of new school. As is school district bids from contractors and included the solicited plans, drawings, specifications firm’s and the bid docu- information, ments. Based on this a contractor submitted a bid, construction, accepted. During which was the contractor discovered the firm’s were specifications wrong, caused cost overruns. The contractor sued the firm for large negli- gent misrepresentation. The trial court found no privity existed between the architect and the contractor and dis- Bilt-Rite, missed the claim. at 272-73. The Superior Court affirmed. reversed, holding privity
We was not a prerequisite an action maintaining and since there is no “the economic loss rule privity requirement, apply does not claims of negligent misrepresentation sounding under Section Id., 552(1) (2)’s 552.” at 288. In adopting formulation law, we noted part Pennsylvania adoption such “would tort, not the common law supplant Pennsylvania version of rather, clarify but would serve to the elements of the tort as in the they apply supplying those business information to Id., others for at 280. pecuniary gain.” Here, Superior properly Court found instant claim 552(1) (2). specifically, does not sound under More Superior aptly explained: in Bilt-Rite to those
A of the facts comparison presented in the instant reveals that 552 is alleged complaint Section dispute. [Appellant’s] complaint to the current
inapplicable the parameters fails to state a claim within of Section *6 (2) is not a defendant who is akin to [appellee] and because the architect in Bilt-Rite who a informa- professional was The between utilities and con- provider. relationship tion bears no to the discussed relationships tractors resemblance Bilt-Rite. As in out: [appellee] points years plans
Architects have months or to detailed prepare and have detailed information about drawings, typically services, project, get paid for their and decide what projects they to take and with whom and for whom will contrast, work. utilities are law to By compelled just respond requests working days to all within two requests without remuneration. And the are not few and far between....
A facility engage owner under the Act does not in supplying information to others for Nor do have pecuniary gain. they any other interest or to the involved in relationship parties transaction, project, here waterline extension which necessitates the excavation. Inc.,
Excavation Technologies, at 116. Because is appellee not in the providing business of information for pecuniary 552(1) gain, § do not here. apply Further, 552(3). § we decline to Ini- impose liability under 552(3) Bilt-Rite tially, § we note this did not in adopt implicated because section was not under those facts. Bilt-Rite, (“Subsection (3) at 273 n. 1 is not at issue this case and we offer any no view on whether it has place law.”). Nevertheless, Pennsylvania appellant maintains this applies subsection because was under a duty to it accurate information as to the location of its under- ground gas lines. We reasons. disagree multiple 552(3)
First, § generally applies non-governmental to the protection entities for of the particular “segments Id. review of thе Act population.” purpose Our reveals its not protect against to economic losses—the Act’s is to purpose harm to protect against physical working individuals on con- utility to property damage equip- sites and to avoid struction 178(7) (exca- structures. See 73 surrounding ment and P.S. health, life, protect against maintain harm to or duty vators (enumer- id., (same); id., also 182.2 see property); damage, ating penаlties causing property per- for violations death). injury, sonal
Further, excavators, utility. not retain the companies, end, identify location of facilities. To this duty precise utility the Act where a an excavator with provides supplies facilities, information” to locate the excavator “insufficient must include employ prudent techniques, may hand-dug holes, test to determine the location of precise 177(5)(i). id., § Because the Act does noth equipment. See ing to remove the ultimate breaches responsibility prevent *7 underground party doing digging, of facilities from the the 552(3) apply. does not
Lastly, public policy we find liabili- weighs against imposing ty recovery here. would shift the burden from Permitting excavators, position prudent who are the best to employ id., job on to techniques prevent facility sites breaches. See 177(5)(i); Co., v. Rollins Protеctive Cucchi Services Pa. (Nix, C.J., (object 575-76 concurring) A.2d to modify through tort law is behavior allocation of financial harm). risk to party positioned prevent recognize on best We breach of gas delay completing an excavator’s lines causes utility liability but if are projects, companies exposed losses, inevitably excavators’ economic such costs would be consumer; done, on to thе if this is to be the passed legisla- ture will so that say specifically. day, Until we decline to protection afford to the interests of entities heightened private themselves, fully capable protecting public’s who are at the expense.
Based on the the order of the is foregoing, Superior affirmed. relinquished.
Jurisdiction did not in the consideration or participate Justice TODD of this case. decision BAER, Justice CASTILLE аnd Justices
Chief McCAFFERY, join opinion. and GREENSPAN a concurring opinion. SAYLOR files
Justice
SAYLOR, concurring.
Justice
552(1)
I
determination that
support
majority’s
Sections
(2) of the
Restatement are not
well
applicable,
Second
as its decision to decline to
common law
expand Pennsylvania
552(3)
via the
of the
Restatement.
adoption
Section
Second
however,
depart,
majority’s reasoning
I
from
to the extent
it
downplays
obligations
facility
that
owners under the
See,
e.g., Majority Opinion
One Call Act.
at
Under Section of the owners have facility “duty” to
mark, stake, locate or otherwise position of the facility owner’s lines at eigh- the site within teen horizontally inches from the outside wall of such line in excavator, a manner so as to enable the where appropriate, to employ prudent techniques, may include hand-dug holes, test the precise position determine of the under- owner’s ground facility lines. 177(5)(i).
73 P.S. The “tolerance zones” resulting from fulfillment of the facility statutory owner’s have a obligation *8 and substantial impact responsibilities direct on the of excava- See, § tors. 73 e.g., (requiring P.S. 180 excavators working ” “[wjithin the tolerance zone “employ prudent techniques, may holes, include hand-dug test to ascertain the pre- added)). of such position (emphasis cise facilities” Like the I majority, recognize that with the compliance One Act a substantial represents imposition upon Call facility Nevertheless, owners. facility owners derive considerable benefits maintaining from often exclusive underground distri- Moreover, bution networks to serve their customers. damage prevention industry standards recommended by Com- recognize “damage pre- Alliance that universally mon Ground excerpts recog- a shared Various responsibility.”1 vention is interrelationship facility nize the critical between the owners’ respective and excavators’ duties: facility
More communication between the excavatоr and the as the area of excava- operator growing necessity owner is a with new getting everyday tion is more crowded under- The ground facility owner/operator required facilities.... is 1) stakes, underground paint to mark its facilities with or 2) that the flags notify facility owner/opera- the excavator no facilities in the area of excava- underground tor has .... all tion Once the excavator has of the information area, needed for the work can then excavate with he/she safety confidence with in mind for the work crew and the public large. at Practices, 5-8, §
Common Ground Alliance Best Version 6.0 (Feb. 2009).2 Practice Description reasons, Act,
For the above I believe the One Call like the Practices, Alliance Best Common Ground fosters a sense of shared for the of utilities for responsibility protection buried nоnprofit corporation pursuant 1. Common Ground Alliance is a created Department Transportation's to the issuance of the United States report § Common Ground in 1999. Task Force See 73 P.S. 176. practices Common Ground Alliance's best recommendations are effec- tively incorporated ("Except § into One Call Act. See 73 P.S. act, provided by persons otherwise this shall use their best efforts to comply practices.”). with the Common Ground Alliance best owners, stressing responsibilities facility 2. In of excavators over information,” majority involving discusses a scenario "insufficient statute, specifically by which is covered then references Section 2 of requiring employ prudent the One Call Act as the excavator to tech- niques hand-dug prevent such as test holes to breaches Majority Opinion (citing facilities. at A.2d See аt 844 73 P.S. 177(5)(i)). 5(i) difficulty The with this assessment is that subsection appears application prudent techniques of Section to address the specified by facility within tolerance zones See 73 owners. P.S. Thus, 177(5)(i). again dependence the statute reinforces the of exca- vators, responsibilities, in the exercise of their own on the careful Indeed, facility obligations. execution of the owners' own the One Call specific рrovision Act makes for instances in which there are known facilities, locating requiring specific uncertainties in exercise prudent techniques digging proceed providing if for additional 180(15). compensation by project owners. See 73 P.S. At least *9 I regard, the at In this believe public large. the benefit of accurate information to required provide owners are to facility and to coordinate with excavаtors ability the best of their where there are uncertainties. facility for breach of a owner’s addressing
In remedies duties, strong argument I for acknowledge Appellant’s 552(3): adoption Section in narrowly apply specific tailored to
Section extends a public duty persons instances where class duty benefit the was created. an instance whose Such here. of the statutory protections exists Without One Aсt, dig perform Call contractors would have to and their any knowledge services without of what is beneath the enacted, The Act in large part, surface. One Call was protect employees poten- contractors and their from these tially dangerous excavating and fatal situations where oc- curs without information from the as proper facility owners to what was beneath the surface. If owners рlaced facility do not accurate information as to the location of facilities, could, probably their contractors and will, facilities, damage strike which would cause harm contractor, to the the contractor’s and the employees gener- public. Providing al accurate information is one of the that Act public triggers facility duties One Call responsible owners must be held for their negligent actions if, here, damages such were foreseeable.
Brief Appellant at 33-34.
Nevertheless, there are countervailing substantial consider- ations, the social including impact (including increased rates
implication, required facility the same level of caution is not where the identification, positive proceeds made a owner has and excavation areas outside the tolerance zones for marked locаtions. Notably, majority's only entailing comments address the scenario facilities, Majority Opin- "insufficient information" as to location involving ion at 985 A.2d at one not misinformation such ¶ 6, alleged Appellant's complaint. Complaint as that See R.R. at 5a (averring Appellee "supplied guidance that false information for transactions, plaintiff causing pecuniary plaintiff in its business loss to plaintiff's justifiable upon as a result rеliance the information the provided”). defendant *10 consumers) facility owners to new exposing charged Furthermore, I have otherwise ob- litigation. class of served: grounded decisions are records indi
Our common-law
advocacy by
parties shaped
vidual cases and the
adjudica
legislative process,
records.
those
Unlike
to cast a narrow focus on matters
tory process
structured
in a
directed
by litigants
highly
framed
before
legislative
fashion. The broader
tools available to the
making
policy judgments,
including
branch in
social
are
availability
comprehensive investigations,
discussed
Herdrich,
2143,
v.
211, 221-22,
Pegram
120 S.Ct.
U.S.
(2000).
Bugosh v. 277, 19, I.U.N. 601 Pa. 298 n. 971 A.2d J., joined by 1240 n. 19 (Saylor, dissenting, C.J.). Castille, balance, I support majority’s degree
On decision to the any remedy it holds that for economic loss associated with a owner’s facility locating breach its duties under the One legislative Act is best suited to consideration. Call
Ricky Appellant. Lee Supreme Pennsylvania. Court of
Argued March 2009.
Decided Dec. 2009.