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Greely v. West Penn Power Co. and West Penn Power Co.

Superior Court of Pennsylvania

February 13, 2017

TAMMY GREELY, ADMINISTRATRIX OF THE ESTATE OF RALPH GREELY, DECEASED Appellant
v.
WEST PENN POWER COMPANY AND WEST PENN POWER COMPANY D/B/A ALLEGHENY POWER Appellee

         Appeal from the Order entered November 9, 2015 In the Court of Common Pleas of Westmoreland County Civil Division at No: 8428 OF 2010.

          BEFORE: LAZARUS, STABILE, and STRASSBURGER, [*] JJ.

          OPINION

          STABILE, J.

         Tammy Greely ("Appellant"), Administratrix of the Estate of Ralph Greely ("Greely"), appeals from the November 9, 2015 order entered in the Court of Common Pleas of Westmoreland County, making final that court's January 15, 2015 grant of summary judgment in favor of Appellees West Penn Power Company, d/b/a Allegheny Power, and West Penn Power Company (collectively "West Penn"). Appellant contends the trial court erred in its conclusion that West Penn did not owe a duty of care to Greely and in failing to view facts in a light most favorable to Appellant as the non-moving party. We agree. Therefore, we reverse and remand.

         As explained by the trial court, this action arises out of the electrocution death of Greely, a telecommunications cable installer and employee of U.S. Utility Contractor Company, Inc. ("U.S. Utility"). U.S. Utility was a subcontractor for Verizon Pennsylvania, Inc. ("Verizon"), which was hired by the Pennsylvania Turnpike Commission ("PTC") for a construction project involving State Route 43 in Uniontown, Pennsylvania. Greely was in the process of installing a telecommunications cable across a line of utility poles owned by West Penn when the cable bounced into, or came close to, West Penn's energized electrical conductor. When this occurred, electricity arced from the electrical line to the messenger cable, killing Greely. Trial Court Opinion ("T.C.O."), 1/15/15, at 2-3.

         Appellant initiated an action against West Penn and Verizon for negligence, claiming inter alia that West Penn was negligent for failing to de-energize the power lines at the work site, failing to insure that the cables would be attached to the pole at sufficient distance from the power lines, failing to provide adequate space on its poles for safe attachment of the Verizon cable, failing to take protective measures, and failing to provide a safe work place for Greely. T.C.O., 1/15/15, at 4 (citing Appellant's Amended Complaint at ¶ 35). Following discovery, West Penn filed a motion for summary judgment, contending the evidence failed to support the existence of any duty of care owed by West Penn to Greely. The trial court agreed and granted West Penn's motion, dismissing with prejudice Appellant's Amended Complaint against West Penn. T.C.O., 1/15/15, at 11. On February 10, 2015, the trial court denied Appellant's petition for reconsideration.

         Verizon subsequently filed a motion for summary judgment. Verizon and Appellant entered into a settlement agreement approved by the trial court in its order dated November 9, 2015. With all claims against all parties resolved, Appellant filed this timely appeal challenging the trial court's grant of summary judgment in favor of West Penn. The trial court did not order the filing of a Rule 1925(b) statement of errors complained of on appeal. In compliance with Rule 1925(a), the trial court issued an order on December 3, 2015, indicating that the reasons for its January 15, February 10, and November 9, 2015 orders were detailed in its January 15, 2015 opinion.

         Appellant presents eight issues for this Court's consideration:

1. Where Pennsylvania law imposes a duty of care on suppliers of electricity to use the highest degree of care practicable to avoid injury to all individuals lawfully in proximity of its electrical wires including when a supplier has knowledge of the dangerous conditions therein, did the [t]rial [c]ourt err as a matter of law when it held that [] West Penn did not owe any duty to [Greely], a telecommunications worker lawfully in proximity of a known dangerous condition, West Penn's electric wires stretching between two unusually distant and elevated telephone poles?
2. Where Pennsylvania law imposes a duty of care on suppliers of electricity to use the highest degree of care practicable to avoid injury to all individuals lawfully in proximity of its electrical wires including telecommunications workers, did the [t]rial [c]ourt err as a matter of law when it concluded [] West Penn did not owe any duty to [Greely], a telecommunications worker[] lawfully in proximity of West Penn's electrical wires?
3. Where the Pennsylvania Superior Court in Densler v. Metropolitan Edison Co., [] 345 A.2d 758 (Pa. Super. 1975), reaffirmed the duty of care of suppliers of electricity to use the highest degree of care practicable to avoid injury to all individuals lawfully in proximity of its electrical wires including telecommunications workers, did the [t]rial [c]ourt err as a matter of law when it distinguished Densler because [] West Penn and [Greely] had no contractual relationship even though [Greely], a telecommunications worker, was lawfully in proximity of West Penn's wires?
4. Where the Pennsylvania Superior Court in Densler v. Metropolitan Edison Co., [] 345 A.2d 758 (Pa Super. 1975), reaffirmed the duty of care of suppliers of electricity to use the highest degree of care practicable to avoid injury to all individuals lawfully in proximity of its electrical wires including telecommunications workers, did the [t]rial [c]ourt err as a matter of law when it distinguished Densler because Appellant alleged [] West Penn's negligence arose from a different breach of industry standards?
5. Where Pennsylvania law imposes a duty of care upon a supplier of electricity to use the highest degree of care practicable to avoid injury to all individuals lawfully in proximity of its electrical wires, did the [t]rial [c]ourt err as a matter of law in examining whether a duty was owed under Althaus v. Cohen, [] 756 A.2d 1166 (Pa. 2000)?
6. Where Pennsylvania law requires on a motion for summary judgment all facts to be viewed in a light most favorable to the non-moving party and the benefit of all factual inferences to be granted to the non-moving party, did the [t]rial [c]ourt err in applying Althaus v. Cohen, [] 756 A.2d 1166 (Pa. 2000)[, ] by accepting [] West Penn's disputed factual contentions?
7. Where Pennsylvania law imposes a duty of care upon a supplier of electricity to use the highest degree of care practicable to avoid injury to all individuals lawfully in proximity of its electrical wires, did the [t]rial [c]ourt err as a matter of law in relying upon Indiana law which limits the duty of care owed by a supplier of electricity to utility employees to exercise reasonable care to avoid malfunction of equipment?
8. Where Pennsylvania law requires on a motion for summary judgment all facts to be viewed in a light most favorable to the non-moving party and the benefit of all factual inferences to be granted to the non-moving party, did the [t]rial [c]ourt err as a matter of law in accepting [] West Penn's disputed factual contentions and finding that, ...

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