December 15, 2014
ALDERWOODS (PENNSYLVANIA), INC., A WHOLLY OWNED SUBSIDIARY OF SERVICE CORPORATION INTERNATIONAL, T/A BURTON L. HIRSCH FUNERAL HOME, Appellee
DUQUESNE LIGHT COMPANY, Appellant
Argued October 15, 2013
As Amended December 14, 2014.
Appeal from the Order of the Superior Court entered July 27, 2012 at No. 1967 WDA 2010, reversing the Order of the Court of Common Pleas of Allegheny County entered December 13, 2010 at No. GD-09-14720 and remanding. Appeal allowed May 14, 2013 at 483 WAL 2012. Trial Court Judge: Paul F. Lutty, Jr., Christine Donohue, Robert E. Colville, JJ.
For Duquesne Light Company, APPELLANT: Erin Megan Beckner, Esq., Tucker Arensberg, P.C.; Gary P. Hunt, Esq., Tucker Arensberg, P.C.; Richard B. Tucker III, Esq., Tucker Arensberg, P.C.; Bradley S. Tupi, Esq., Tucker Arensberg, P.C.
For Energy Association of Pennsylvania, APPELLANT AMICUS CURIAE: Robert C. Heim, Esq., Dechert LLP; Elisa Talora Wiygul, Esq., Dechert LLP
For Pennsylvania Public Utility Commission, APPELLANT AMICUS CURIAE: Bohdan R. Pankiw, Esq.; Kenneth Riley Stark II, Esq., PA Public Utility Commission; Patricia Timrnerman Wiedt, Esq.; Robert Frank Young, Esq.
For Alderwoods (Pennsylvania), Inc., APPELLEE: Alan J. Charkey, Esq., White and Williams, L.L.P.; Peter T. Parashes, Esq. White and Williams, L.L.P.
BEFORE: MR. JUSTICE SAYLOR. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. Former Justice McCaffery did not participate in the decision of this case. Mr. Chief Justice Castille and Messrs. Justice Baer and Stevens join the opinion. Mr. Justice Eakin files a dissenting opinion. Madame Justice Todd files a dissenting opinion.
MR. SAYLOR, JUSTICE
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 alternative, " to inspect, or at a minimum, to warn a customer, under the facts alleged[.]" Alderwoods (Pa.), Inc. v. Duquesne Light Co., 2012 PA Super 153, 52 A.3d 347, 355 (Pa. Super. 2012) (emphasis adjusted)).
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 hours (about twelve, in Hirsch's estimation), linemen replaced the pole, installed new transformers, and restored power to the buildings. Finishing with the locked, unoccupied funeral home, crew members climbed onto the roof to connect the new external wiring to the building's electrical system at the service point.
Soon after the wires were 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. 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.
In discovery, Hirsch tendered the report of an electrical engineer, Richard W. Wunderley, P.E., who had been retained to render an opinion concerning Duquesne Light's role in the events giving rise to the funeral home's destruction. In his analysis, the engineer initially dismissed the hypothesis that the electric company's line crew had misconnected wires when restoring power. See Engineer's Report, EFI Global, dated August 23, 2010, at 6 (" The improper connection hypothesis at the single phase mast head was eliminated after the evidence examination and further discovery information was received." ). Mr. Wunderley advanced another theory, however. He posited that, during the downing of the utility pole, a primary line consisting of wires (or conductors) carrying high-voltage electricity from a substation had contacted stepped-down secondary lines transmitting lower-voltage current to the funeral home, causing an " over voltage/over current condition" in the electrical system interior to the funeral home and touching off a short-circuit. Id. at 6. The engineer indicated that Duquesne Light's subsequent reenergizing of the damaged electrical system heated the metal panel box to an extreme temperature, igniting the attached wood backing. See id. at 2, 6.
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 Report, EFI Global, dated August 31, 2010, at 3 (referencing the conditions outside Hirsch's premises as presenting " strong/compelling evidence . . . that should have caused Duquesne Light to inspect the electrical system in the funeral home prior to reenergizing the electric service." (emphasis added)). Moreover, had an inspection been undertaken prior to restoration of power, the engineer stated, the damage to the electrical panel would have been discovered and the fire averted. See Engineer's Report, EFI Global, dated August 23, 2010, at 7-8 (" Because Duquesne Light failed to inspect the electrical system, . . . the above events/conditions resulted in a catastrophic failure and fire." ).
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.
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 essential position was that the service point establishes a firm line of demarcation between the responsibilities of an electric service provider and the customer -- if a failure occurs on the utility's side, it may bear responsibility, and certainly the company has the obligation to make reasonable inspections of its own equipment up to the service point. But if any failure occurs on the customer side, Duquesne asserted, it can be the customer's -- and only the customer's -- responsibility, and under no circumstances is an electric service provider obliged to inspect private electrical systems internal to serviced premises.
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
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). 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 were 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.
* * *
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, 2006 PA Super 305, 911 A.2d 133, 139 (Pa. Super. 2006)). See generally Restatement (Second) of Torts § 302 cmt. a (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 within the funeral home, Hirsch referenced the circumstances which, in Mr. Wunderley's opinion, generated a " compelling reason" to inspect
the meters inside the premises. Engineer's Report, EFI Global, dated August 23, 2010, at 7. These included the downed, broken high-voltage lines with which the electric company's work crew was confronted, as well as a tripped circuit breaker at a substation connected to the pole's transformer, indicative of a power surge. See Response in Opposition to Motion for Summary Judgment at ¶ ¶ 5, 11 (citing Deposition of Joseph G. Frankhauser dated March 31, 2010, at 27, and Deposition of Donald Lewis dated April 29, 2010, at 20-25, 53-56).
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 common law should impose duties not previously recognized. These factors are: " (1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution." Id. at 553, 756 A.2d at 1169. In this regard, Hirsch highlighted that it and Duquesne Lighting maintained a business relationship beneficial to both parties, acknowledged the high social utility of electric service, stressed its proffer that the risk of an overvoltage scenario is foreseeable (including the expert report of Mr. Wunderley), alluded to the catastrophic consequences of an uncontrolled fire, indicated that the burden of conducting an electrical inspection is modest in comparison to the harm, and urged that the overall public interest in terms of the preservation of lives and property would be advanced by recognition of an affirmative duty to inspect. See Memorandum of Law in Opposition to Motion for Summary Judgment at 17-21.
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. (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, 2012 PA Super 153, 52 A.3d 347. After setting forth the standards governing an award of summary judgment and ensuing appellate review, the court undertook an Althaus analysis on terms similar to those advocated by Hirsch in opposition to summary judgment. The intermediate court, in essence, concluded that Hirsch established a prima facie case that Duquesne Light was on constructive notice of the damage to the funeral home's electrical system and of the attendant risk of fire.
See id. at 355. In such circumstances, the court reasoned, an electric company bears a duty to take reasonable measures to avert the harm. See id. at 357.
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 Complaint at ¶ 18). The court then formulated the relevant duty in terms of an obligation " to warn the single affected customer (Hirsch), and to inspect at least its own equipment prior to restoring electrical service." Id. (also describing Duquesne Light's obligation as " to inspect, or at a minimum, to warn a customer, under the facts alleged" (emphasis adjusted)). This reference in respect to Duquesne Light's " own equipment" was to the utility-owned electric meters in the basement of the funeral home.
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.
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 judicial precedent to support an affirmative duty to inspect. According to the utility, the intermediate court " sidestepp[ed] a century of precedent" by discarding the essential service-point rule. Brief for Appellant at 7-10 (citing, inter alia, Milton, 251 Pa. 79, 96 A. 135, and Adams, 69 Pa.Super. 478, 1918 WL 2272); accord Brief for Amicus Energy Association of Pennsylvania at 3-4 (contending that service-point demarcation " provides a considered, bright-line rule that has shaped utility companies' and consumers' conduct for generations" and advocating its continued longevity).
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 highlights the social utility of electrical distribution, downplays the foreseeability of damage to a structure's internal electrical system resulting from a downed utility pole, and characterizes the consequences of a duty in the present case as tantamount to making electric service providers insurers of the safety of private electrical systems and equipment.
The PUC has filed an amicus brief supporting Duquesne 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 Superior Court's determination solely in terms of a duty to inspect, to the exclusion of the court's alternative formulation of a duty to warn. In substantial tension with the opinion expressed in Mr. Wunderley's report, the Association's position is also premised on the notion that, at the time the line crew restored power to the funeral home, its members had no reason to believe there was a dangerous condition inside the premises. See, e.g., Brief for Amicus Energy Ass'n of Pa. at 2 (" This Court should reverse the Superior Court and clarify that Appellant Duquesne had no duty to inspect inside Appellee's locked and unoccupied facility, after hours and in the absence of any indication of heightened fire danger, before restoring power." (emphasis added)).
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.
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 subject 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 building serviced directly by the demised utility pole and the only structure to have sustained direct damage, in the form of detached service lines. Further, Hirsch presents a discussion of the Althaus factors along the lines of its submission to the common pleas court, as discussed previously.
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, 997 A.2d 1152 (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." ).
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 outage, where the utility has actual or constructive notice of a dangerous condition within the customer's premises. Alderwoods, 52 A.3d at 355.
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. 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.
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. 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 companies 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, __ Pa. __, , 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, Pa. at, 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. Accordingly, our resolution of the present appeal begins and ends with the above response to this question as framed.
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 represented a reasonable measure to avert harm in the circumstances presented, nothing appropriately raised in this appeal would prevent it from doing so.
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. Rather, to challenge the engineer's opinion, in one fashion or another, Duquesne must deal more directly with the substance of Mr. Wunderley's reports on their salient terms. Cf. PennDOT v. Patton, 546 Pa. 562, 569, 686 A.2d 1302, 1305-06 (1997) (" The question of constructive notice was a major issue in this case, and there was substantial conflicting evidence on the issue. It was therefore not a question to be decided by the court[.]" ).
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, slip op. at 3-4 (Eakin, J.). While the dissent offers various inquiries about what actions Duquesne Light might have taken which would be considered reasonable under the circumstances, see id. at 4, these are precisely the sorts of considerations relegated to juries in cases in which a common-law duty exists and there are material factual questions concerning whether such obligation has been met. See supra note 17.
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, common-law duties of care simply does not make them so. To the extent they may seek relief from such obligations and immunity from conventional tort liability outside the sphere of existing judicial decisions, their arguments are best presented to the political branch.
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.
Mr. Chief Justice Castille and Messrs. Justice Baer and Stevens join the opinion.
Madame Justice Todd files a dissenting opinion.
MR. EAKIN, JUSTICE
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 (Pa. 1915); see also Adams v. United Light, Heat & Power Co., 69 Pa.Super. 478 (1918). 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 services on the premises' side." Id., at 17 (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 18. 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 Althaus 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 minimum, to warn a customer, under the facts alleged, does not place an undue burden upon Duquesne Light[,]" noting the funeral home was " 'the only building attached to the broken pole.'" Alderwoods (Pennsylvania), Inc. v. Duquesne Light Company, 2012 PA Super 153, 52 A.3d 347, 355 (Pa. Super. 2012) (emphasis in original). The majority, however, broadens the scope of the intermediate appellate court's holding to include all electric service providers. See Majority Slip Op., at 25 (imposing duty on electric service providers to take reasonable measures to avert harm where they have actual or constructive knowledge of dangerous condition impacting customer's electrical system caused by fallen power lines near property). There is also the problem that this new duty is not confined to single-pole situations, but applies when entire blocks of customers await return of service. I find this new duty not only unwise and generally unworkable, but also unwarranted, given appellee's failure to plead facts to support the newly created " failure to warn" theory, discussed infra.
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 17-18, 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 and immediately respond, but the delays inherent in these situations, shared by all affected customers, should not be exacerbated by placing the problems of each landowner in the lap of the utility. What if an affected customer cannot be reached at all? At what point is it reasonable for the utility to restore power to all despite the flaws in a customer's own equipment?
As the majority points out, " these are precisely the sorts of considerations relegated to juries[,]" id., at 25, 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.
" [C]ourts should not recast a pleading in a way not intended by the parties." Steiner v. Markel, 600 Pa. 515, 968 A.2d 1253, 1260 (Pa. 2009). " [W]hen a court decides issues sua sponte, it exceeds its proper appellate function and unnecessarily disturbs the processes of orderly judicial decisionmaking." Id. (citation omitted). The Superior Court ran afoul of these well-established principles of appellate review, and the majority does not account for this error.
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:
(1) improperly reconnecting the lines between the funeral home and the distribution system;
(2) failing to inspect the system; and
(3) " failing and omitting to do those things which were necessary to preserve Hirsch's property and render said premises safe."
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.
Both the Superior Court and the majority fail to clearly specify where they find support in appellee's pleadings for a cause of action against Duquesne Light for failing to warn it of a potentially dangerous condition manifesting in its panel box. Presumably, appellee's " failure to warn" claim is found embedded within its catchall allegation that Duquesne Light failed " to do those things which were necessary to preserve Hirsch's property and render said premises safe." Amended Complaint, 5/28/10, at 4. Since none of appellee's allegations relate to Duquesne Light's failure to warn, one must conclude this catchall allegation constitutes the gravamen of a negligence claim and sufficiently pleads the requisite elements of duty, breach, and causation. I know of no authority that would allow such a vague averment to serve as the factual predicate for establishing three of the four elements required for a legitimate negligence action.
Accordingly, I dissent.
MADAME JUSTICE TODD
While the majority has presented a thoughtful and reasonable legal analysis, I must respectfully dissent because the majority's affirmance of the Superior Court's decision is based on an issue outside of the scope of our grant of review.
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:
1. 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?
2. 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?
3. 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, 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 found Duquesne Light to have a duty to inspect its electrical equipment inside of the funeral home, prior to reconnecting power, because that equipment sustained potential damage due to the downed power lines. Thus, our order did not indicate that we would consider the secondary aspect of the Superior Court's holding that Duquesne Light had, in the alternative, a duty to warn Hirsch of the danger presented by its reconnection of electrical service to Hirsch's damaged electrical system. Consequently, I do not fault Duquesne Light for what the majority characterizes as a failure to adequately acknowledge this second basis of the Superior Court holding, and to address it in its brief. See Majority Opinion at 1 (" It is material to bear in mind from the outset, however, that [Duquesne Light's] portrayal of the issues fails to adequately address the Superior Court's formulation of electric-company duties, in the alternative, to . . . at a minimum, to warn a customer, under the facts alleged." (emphasis original)); id. at 19 (observing that Duquesne Light " fails to deal squarely with" the issue of its duty to warn); id. at 25 (" Since Duquesne Light has failed to adequately confront the common law duties invoked by Hirs[c]h 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." ). Instead, I view such " failures" as reasonably attributable to the narrow parameters of our order granting allowance of appeal which did not encompass a duty to warn.
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 our Court's long-standing adherence to the fundamental principle that every party to a matter must be given the full and fair opportunity to brief the issues that a court will ultimately be addressing. See, e.g., Cranberry Twp. v. Builders Ass'n of Metropolitan Pittsburgh, 533 Pa. 271, 621 A.2d 563, 565 (Pa. 1993) (holding that it was error for the Commonwealth Court to deny and rebriefing where the parties " never
had an opportunity to address the matters upon which the court based its decision" ).
Accordingly, I must dissent.