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Metropolitan Edison Co. v. City of Reading

Supreme Court of Pennsylvania

June 20, 2017

METROPOLITAN EDISON COMPANY, Appellant
v.
CITY OF READING, Appellee

          ARGUED: December 7, 2016

         Appeal from the Order of the Commonwealth Court dated October 15, 2015 at No. 2188 CD 2014 Reversing the Judgment Entered in the Berks County Court of Common Pleas, Civil Division, dated November 17, 2014, exited November 19, 2014, at No. 10-21418

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          DONOHUE, JUSTICE

         In this appeal, we are required to construe the language of the utility service facilities exception ("Utility Exception") to governmental immunity contained in the Political Subdivision Tort Claims Act ("Tort Claims Act"), 42 Pa.C.S. § 8542(b)(5). The Commonwealth Court concluded that where a dangerous condition of the facilities of a utility system is created by the negligent action or inaction of a local agency or its employees, the Utility Exception does not apply. Because the Commonwealth Court misconstrued both the Utility Exception and the gravamen of the lawsuit in question, we reverse.

         Metropolitan Edison Company ("Met-Ed") provides electricity service to residents of the City of Reading ("City") and surrounding areas within Berks County. As part of Met-Ed's electric utility system, electrical wires are buried underground, along with other private and municipal utilities, within the City's right-of-way.[1] NT., 5/19/14, at 17. The wires are encased in sections of terra cotta piping which are cemented together, or Schedule 40 PVC conduit, depending on the age of the installation, Id. at 16-18. The wires and their protective encasement are known as "conduit banks." Id. at 16.

         In July 2009, workers from the City's sewer department excavated a site in the vicinity of the 200 block of North 5th Street to gain access to the City's sewer main. As a result of the excavation, a portion of Met-Ed's adjacent conduit bank was exposed. The City's laborers noticed that a section of concrete had fallen off Met-Ed's conduit bank and into the excavation trench, Id. at 142-43. Met-Ed was notified on July 8, 2009 that this incident occurred. On the same day, Met-Ed retained Homan Excavating, Inc. ("Homan") to stabilize and repair the conduit bank.[2] Homan observed that the "dirt conditions" in the hole were "extremely poor", meaning that "the dirt was loose and not very tight, unstable." Id. at 28. Homan did not observe any shoring in the hole, such as hydraulic jacks, plywood, or metal plates, to stabilize the sides of the excavation hole as it was being dug. Id. at 24, 30-31. Homan patched the bottom and the exposed side of the conduit bank with new concrete and completed its repairs on July 10, 2009. Id. at 195. At this point, the conduit bank was secure because it was resting on, and supported by, earth, Id. at 51, 92, 95, 195.

         The City resumed its excavation work. On July 15, 2009, Homan received a call from the City raising some concerns about erosion. Homan returned to the site and found that the excavation hole was deeper and the walls were falling in, but Met-Ed's conduit bank was still intact. Id. at 38-39, 44, 100-03. Homan noted that there was no shoring in place to prevent the walls from collapsing and displacing the dirt underneath the conduit bank, Id., at 42. Homan informed the City's officials that the excavation hole had to be backfilled and stabilized as soon as possible to provide sufficient support for the conduit bank. Id

         The City continued excavating, further widening and deepening the hole. The City never installed shoring to support the walls and took no measures to prevent rain water from entering, Id. at 212, 219. Over the weekend, the area experienced heavy rainfall, causing the earth around and underneath the conduit bank to wash away. Id. at 211. On July 20, 2009, Met-Ed was notified by the City that the conduit bank had fully collapsed and was laying at the bottom of the excavation hole, Id. at 44-45, 179. Homan conducted an extensive repair of approximately fifty feet of conduit bank, which involved the removal of the collapsed portions and installation of a new a conduit bank. Id. at 49, 54.

         Met-Ed filed a single-count complaint, alleging negligence against the City and seeking $53, 000 in damages.[3] Met-Ed averred in relevant part:

10. The [City's] excavation activity created a dangerous condition derived from, originating with, or having its sources in the [City's] realty.
11. The [City's] excavation activity created, amounted to or otherwise constituted a defect of the sewer line, street, and/or real estate controlled by [the City].
* * *
15. [T]he excavation activity created a dangerous condition by removing the dirt, stone, rock, earth and other material which was supporting the Met-Ed [conduit] banks.
* * *
18. The City ... by and through its agents, employees or servants, appreciated and understood the dangerous condition caused by the excavation activity which created the hole.
19. The City ... then orally promised to back fill the excavation work immediately to relieve pressure from the [conduit] bank, and restore the proper support to the Met-Ed facilities, and/or otherwise abate this dangerous condition caused by the [City].
20. Despite the oral promises and representations made by the City ... the excavation work was not back filled or otherwise repaired in a timely manner. To the contrary, the excavation work remained untouched for nearly two weeks thereby continuing the dangerous condition of the utility lines.
21. Likewise, the City ... did not timely restore proper physical support through the placement of dirt, stone, rock, earth or other material to the Med-Ed facilities, and/or abate the dangerous condition.
* * *
30. [The City] had a duty to perform its excavation activities in a manner that would not create a dangerous condition by removing the dirt, stone, rock, earth and other material which was supporting the [conduit] bank.
* * *
36. [The City] breached its duty to [Met-Ed] by failing to perform its excavation activities in a manner that would not create a dangerous condition by removing the dirt stone, rock, earth and other material which was supporting the [conduit] bank.
* * *
42. [The City's] excavation activity occurred in a public street or right-of-way pursuant to an agreement, contract or other form of authority or right which had not expired or been otherwise terminated.

Amended Complaint, 12/17/2010, ¶¶ 10-11, 15, 18-21, 30, 36, 42.

         At the conclusion of discovery, the City moved for summary judgment, contending that it was immune from liability under the Tort Claims Act, which provides that "no local agency shall be liable for any damages on account of any injury to a person or property." 42 Pa.C.S. § 8541. In response, Met-Ed argued that it set forth a claim for recovery under the Utility Exception in section 8542(b)(5) of the Tort Claims Act, which provides:

(b) Acts which may impose liability.-The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
* * *
(5) Utility service facilities.- a dangerous condition of the facilities of steam, sewer, water, gas or electric systems owned by the local agency and located within rights-of-way, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstance of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.

42 Pa.C.S. § 8542(b)(5). Based upon the evidence of record and the above-referenced statutory requirements, the trial court concluded that the record raised questions of fact concerning whether the City was immune from suit, and denied the City's summary judgment motion.

         Following a non-jury trial, the trial court entered a verdict for Met-Ed. In support of its decision, the trial court relied on Miller v. Pa. Dep't of Transp., 690 A.2d 818 (Pa. Commw. 1997), which held that a dangerous condition resulting from negligent excavation activities that caused injuries could serve as the basis for application of the Utility Exception. Trial Court Opinion, 1/20/2015, at 5. The trial court found that the City breached its duty to Met-Ed by performing its excavation activities in a manner that created a dangerous condition by removing the dirt, stone, rock and other material without providing proper support or shoring, Id. at 6. The trial court further found that the City had sufficient advance notice of this dangerous condition to permit it to take timely action to install shoring or otherwise stabilize the dirt, rocks and soil located underneath Met-Ed's conduit bank prior to its collapse, and that the City had breached its duty by failing to take the steps necessary to protect against the dangerous condition of the facilities, of which it had notice, prior to the collapse of Met-Ed's conduit bank, ]d The City appealed to the Commonwealth Court, challenging the trial court's conclusion that the Utility Exception applied. In a published opinion, the Commonwealth Court reversed, agreeing with the City that it was immune from liability. Metropolitan Edison Co. v. City of Reading, 125 A.3d 499, 503 (Pa. Commw. 2015). The Commonwealth Court concluded that the dangerous condition that resulted in Met-Ed's damages did not originate from the City's sewer system facilities, ]d Instead, the intermediate appellate court concluded that the dangerous condition originated from the City's negligent excavation of the material that was supporting the conduit bank, ]d In this respect, the Commonwealth Court found that the case was analogous to Metro. Edison Co. v. Reading Area Water Auth., 937 A.2d 1173 (Pa. Commw. 2007) ("Reading Water Authority"), where local water authority employees struck an underground electric line with a boring machine. The Commonwealth Court explained its reliance on Reading Water Authority, as follows:

Here, the trial court noted that the dangerous condition was 'the unstable condition[] of the dirt and soil located underneath Met-Ed's [conduit] bank.' The dangerous condition, however, did not originate from [the City's] facilities. Rather, the dangerous condition derived from the conduct of [the City's] employees during the excavation. Specifically, [the City's] employees removed the soil beneath the [conduit] bank, did not use support or shoring to stabilize the [conduit] bank, and did not promptly backfill the excavation hole. In this respect, the instant matter is analogous to [Reading Water Authority], wherein the conduct of the water authority's employees created the dangerous condition.

Metro Edison, 125 A.3d at 503. In the Commonwealth Court's view, if a local agency or its employees create a dangerous condition of a utility service facility, the ...


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