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September 21, 1977

N. C. DIRENZI, INC., et al., Defendants, v. CITY OF PHILADELPHIA et al., Third-party Defendants

The opinion of the court was delivered by: HIGGINBOTHAM, JR.

 A. LEON HIGGINBOTHAM, Jr., District Judge.


 This is a diversity action in which plaintiff, Western Union Telegraph Company, brought suit against N. C. Direnzi, Inc. *fn1" and George K. Heebner, Inc., alleging negligence in the performance of excavation work in Philadelphia. Plaintiff claims that, as a result of the defendants' failure to locate the Western Union cables within the excavation site, the cables were severed and plaintiff suffered damages in the amount of $34,218.22 which corresponds to the costs of labor and materials necessary to make the required repairs to its cable system and restore the transmission of service.

 N. C. Direnzi, Inc. filed a third party complaint against the City of Philadelphia (hereinafter the City), the American Telephone and Telegraph Co. (hereinafter A.T.&T.), the Philadelphia Electric Company (hereinafter P.E.), the Ballinger Co. and John deMoll. In a third party complaint, Direnzi claimed that the third party defendants each acted negligently by failing to inform Direnzi of the Western Union Telegraph Co. cables located within the excavation site. *fn2"

 Motions for summary judgments were filed by George K. Heebner, Inc., the Ballinger Company and John deMoll, the City and P.E.

 On August 25, 1977, I received a letter from Robert R. Reeder, counsel for co-defendant George K. Heebner, Inc., stating:

On June 30, 1977 various Motions for Summary Judgment were presented to the court on oral argument. Counsel for all parties were present and contested the granting of the Motions for Summary Judgment which were filed by the City of Philadelphia and Philadelphia Electric. However, similar Motions filed on behalf of George K. Heebner, John DeMoll and the Ballinger Company were expressly not contested by counsel in this matter.
. . .
I am hand delivering this date, a copy of this letter to all counsel and am requesting that they contact your Honor by 10:00 A.M. on August 26, 1977 if my statement is not correct. . . .

 No objections were made; therefore, I granted the Motions for Summary Judgment made by George K. Heebner, Inc. and the Ballinger Co. and John deMoll on August 29, 1977. Those summary judgment motions remaining for disposition are those of the City and P.E.

 Pursuant to the reasons stated below, the motion for summary judgment is granted as to P.E.; the motion for summary judgment of the City is denied.


 In recognition of the well-settled doctrine that summary judgment is usually inappropriate in negligence cases, see e.g., Pirocchi v. Liberty Mutual Insurance Co., 365 F. Supp. 277, 282 (E.D.Pa.1973); 6 Moore, Federal Practice 5b-946 (2d ed. 1976), the facts of this case have been closely scrutinized with a perspective initially favorable toward denying the motions for summary judgment.

  In Pennsylvania tort law, before an action based on negligence can be maintained there must exist a "state of facts" which impose a legal duty. Boyce v. U.S. Steel Corp., 446 Pa. 226, 285 A.2d 459 (1971); Neyman v. Soutter, 205 Pa.Super. 8, 205 A.2d 685, aff'd, 417 Pa. 634, 209 A.2d 430 (1964). "Obviously, no negligence claim can be based upon a state of facts on which the law does not impose a duty upon the defendant in favor of the plaintiff." Boyce v. U.S. Steel Corp., 446 Pa. at 230, 285 A.2d at 461. Where there is no legal duty summary judgment is appropriate.

 While the defendant may not initially owe the plaintiff any legal duty, by gratuitous acts, it may nevertheless incur tort liability. Under Pennsylvania law:

. . . a person who makes an engagement, even though gratuitous, and actually enters upon its performance, will incur tort liability if his negligence thereafter causes another to suffer damages. Pascarella v. Kelley, 378 Pa. 18, 105 A.2d 70 (1954). Rehder v. Miller, 35 Pa.Super. 344 (1908).

 Pirocchi v. Liberty Mutual Insurance Co., supra at 281.

 The defendant corporation, Direnzi, does not base its claim against the third party defendants on the theory that they had a duty to initially inform the corporate representatives of the existence of lines within the excavation site and I cannot find any basis for a finding of such duty. Instead, it apparently maintains that the parties affirmatively acquired a legal duty while performing a gratuitous service. Direnzi maintains in its brief that:

. . . the City provided DeRenzi with the "Before You Dig" card which included a number to call to contact the City of Philadelphia. This card did not advise contracting Western Union. The City, however, did have specific knowledge of the exact location of Western Union lines on Second Street as disclosed by the map produced at the DiRenzi deposition which was identified as a record of the City of Philadelphia. The issue is then whether the City of Philadelphia was negligent in failing to alert DiRenzi of the ...

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