The opinion of the court was delivered by: McLaughlin, J.
This is a section 1983 suit brought by Angelina Davis, both individually and as administratrix of her husband's estate, arising from a construction accident in which her husband, Derrick Alston, was killed. Alston, a private contractor, was installing a new water supply at a home in Philadelphia when his boring device contacted an underground power line operated by PECO Energy Company, electrocuting and killing him.
The plaintiff's section 1983 claim is based on a state-created danger theory of substantive due process. The plaintiff claims that the City of Philadelphia Water Department did not ensure compliance with the Pennsylvania One Call Statute, thus allowing Alston to dig into the electrical line.
The defendant moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. The Court will grant the defendant's motion.
I. Summary Judgment Record
The parties do not dispute the facts which give rise to this case.
A. Pennsylvania's "One Call System"
The Commonwealth of Pennsylvania has established the "One Call System" to alert utility providers when construction work is performed in Pennsylvania. Pursuant to the Underground Utility Line Protection Act (the "One Call Statute"), any person performing excavation or demolition work must "provide the One Call System with specific information to identify the site so that [utility] owners might provide indications of their lines." The One Call System alerts utility providers, who must go to the construction site and mark the locations of underground utility lines. 73 P.S. §§ 177(5), 180(2.2), 178(1.2).
B. The City of Philadelphia Water Department In June of 2008, the Deputy Commissioner of Operations
for the City of Philadelphia ("the City") Water Department was Debra McCarty. Despite McCarty's knowledge of the One Call System, the Water Department did not verify that permit applicants had complied with the One Call Statute. Pl. Ex. B ("McCarty Dep.") 6:3-11, 36:16-39:7, 39:24-40:4.
Employees of the Water Department were also aware that it was illegal to dig without notifying the One Call System.
Employees, however, did not ensure compliance with the One Call System before performing work on behalf of the City at a construction site.*fn1 McCarty Dep. 40:10-12, 41:13-42:6; Def. Exs. E ("Maisonet Dep.") 59:7-60:14; F ("Cintron Dep.") 41:17-42:2, 43:12-16.
C. Events at 4218 Parrish Street on June 3, 2008 On June 3, 2008, Alston was performing plumbing work on behalf of a private contractor at 4218 Parrish Street. The work included installation of new water service to the home. Two ditches were dug, one near the street to access the main water supply and another near the house. Copper piping was to run between the two. Maisonet Dep. 51:2-17; Def. Exs. A ("Medical Examiner's Rep.") at 1, B ("PECO Rep.") at 3; H.
The City Water Department issued a permit for the work performed at 4218 Parrish Street. On June 3, 2008, two employees policy. Water Department employees must now verify that there from the Water Department were summoned to 4218 Parrish Street to shut down the main water supply and attach a "saddle" and "ferrule" to the water main. The saddle attaches to the main water supply. The ferrule attaches to the saddle and is an on/off switch to which the copper piping running to the house is attached. The Water Department employees did not engage in any digging at the site. They installed the saddle and ferrule, and were preparing to depart when the incident occurred. McCarty Dep. 29:4-7; Maisonet Dep. 21:16-25, 23:2-4, 48:5-18, 55:12-24, 67:9-17; Cintron Dep. 14:3-9, 22:4-16, 32:14-17.
After the ferrule was attached to the main water supply, Alston entered the ditch carrying a boring device in order to tunnel an underground passage for the copper piping. Shortly after being activated, the boring device struck an underground high-voltage electrical power line operated by PECO. Alston was electrocuted and found dead inside the ditch. Maisonet Dep. 52:8-12, 67:9-22; Medical Examiner's Rep. 2; PECO Rep. 3-4.
There is no record of any call to the One Call System for work performed at 4218 Parrish Street. PECO never received notification from the One Call System and did not mark the locations of its utility lines at the 4218 Parrish Street site. The City Water Department employees did not check for compliance with the One Call System prior to issuing the permit or installing the ...