Appeal from the Order entered on December 13, 2010 in the Court of Common Pleas of Allegheny County, Civil Division, No. GD-09-14720
The opinion of the court was delivered by: Musmanno, J
BEFORE: MUSMANNO, DONOHUE and COLVILLE*fn1 , JJ.
Alderwoods (Pennsylvania), Inc., a wholly owned subsidiary of Service Corporation International, t/a Burton L. Hirsch Funeral Home ("Hirsch"), appeals from the Order entering summary judgment against it and in favor of Duquesne Light Company ("Duquesne Light"). We reverse and remand for trial.
The trial court summarized the facts underlying the instant appeal as follows:
The facts of this matter reflect that a motor vehicle accident occurred on Forward Avenue in the Squirrel Hill section of the City of Pittsburgh on January 8, 2009. The vehicle crashed into and broke a Duquesne Light utility pole, causing interruption of electrical service to numerous customers near the intersection of Forward Avenue and Murray Avenue, including [Hirsch]. Neighboring customers to [Hirsch] were also out of power as a result of this accident.
Duquesne Light received a call that the power was out in this area around 8:30 p.m. on January 9, 2009. A Duquesne Light crew was sent out to assess the situation and to make necessary repairs in order to restore service. Service was ultimately restored to that neighborhood. The last building to have its power restored was apparently [Hirsch's funeral home]. The old utility pole was removed and a new pole installed. Replacement equipment was also installed on this pole, including a three[-]phase transformer. Duquesne Light workers also connected a tri-plex, which consists of two energized (hot) wires and a neutral wire. The neutral conductor was correctly connected first, followed by the hot conductors. The procedure went smoothly, with no cause for concern for the crew. Restoration of power at a pole in this fashion is a typical job for Duquesne Light crews.
After making the connections at the pole, the Duquesne Light crew made the connections at the [Hirsch] building, first connecting the neutral conductor and then the energized conductors. These connections were made on the roof of [Hirsch] without any difficulty. After the connections were made, power to [Hirsch] was turned on and the workers came down from the roof of the building. Shortly thereafter, a fire began inside [Hirsch]. The fire originated in the basement in the electrical panel number 1.... [Hirsch] was locked at the time of the fire.
Trial Court Opinion, 3/8/11, at 2-3.
Hirsch subsequently filed a Complaint against Duquesne Light, followed by an Amended Complaint. Hirsch's Amended Complaint averred five counts against Duquesne Light: (1) Ordinary Negligence; (2) Negligence--Breach of Duty of Highest Degree of Care; (3) Negligence--Res Ipsa Loquitor; (4) Breach of Implied Duty of Hazard-Free Service; and (5) Breach of Implied Duty of Careful Repair. Amended Complaint at ¶¶ 13-33.
At the close of discovery, Duquesne Light filed a Motion for Summary Judgment, which the trial court ultimately granted. Thereafter, Hirsch filed the instant timely appeal.
Hirsch presents eight claims for our review:
[1.] Whether [Duquesne Light] was entitled to summary judgment as to the implied warranty of hazard-free service, when under very similar circumstances, the Trial Court had previously held such a cause of action to exist[?]
[2.] Whether the Trial Court erred by failing to follow the previous decision of a colleague on the same court[?]
[3.] Whether the Trial Court erred by failing to distinguish warranty from negligence in its Opinion[?]
[4.] Whether Pennsylvania's test for the existence of a duty indicated that [Duquesne Light] owed [Hirsch] a duty[?]
[5.] Whether [Duquesne Light], having previously litigated a nearly identical set of facts, was estopped to assert that the sequence of events leading to [Hirsch's] loss was not foreseeable[?]
[6.] Whether [Duquesne Light] was under a duty to prevent the events giving rise to [Hirsch's] damages, because the events were foreseeable, thereby precluding summary judgment[?]
[7.] Whether [Duquesne Light] was subject to the highest degree of care because it was in control of an ...