Alderwoods (Pennsylvania), Inc. v. Duquesne Light Co.

[J-78-2013]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

ALDERWOODS (PENNSYLVANIA), INC., : No. 12 WAP 2013

A WHOLLY OWNED SUBSIDIARY OF :

SERVICE CORPORATION : Appeal from the Order of the Superior

INTERNATIONAL, T/A BURTON L. : Court entered July 27, 2012 at No. 1967

HIRSCH FUNERAL HOME, : WDA 2010, reversing the Order of the

: Court of Common Pleas of Allegheny

Appellee : County entered December 13, 2010 at No.

: GD-09-14720 and remanding.

:

v. :

:

:

DUQUESNE LIGHT COMPANY, :

:

Appellant :

ARGUED: October 15, 2013

OPINION

MR. JUSTICE SAYLOR DECIDED: DECEMBER 15, 2014

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., 52 A.3d 347, 355 (Pa. Super. 2012)

(emphasis adjusted)).

I. Background

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 Hirsh’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 Hirsh’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.

[J-78-2013] - 2

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.1 According to Hirsh’s pleadings, the electric

company’s employees “incorrectly and improperly” reconnected the funeral home to the

transmission and distribution system. Amended Complaint at ¶11. Hirsh 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 Hirsh 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

1

Although Hirsch included other counts in its pleadings, our treatment in the present

appeal is limited to this negligence-based aspect of the litigation.

[J-78-2013] - 3

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

[J-78-2013] - 4

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.2

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

2

In its motion, Duquesne Light also noted that Hirsch’s pleadings were premised upon

the assertion that the utility’s line crew performed its work incorrectly on the outside of

the building; whereas, Hirsh’s expert had subsequently conceded that this simply was

not the case. See Motion for Summary Judgment in Alderwoods at ¶¶15-16. Appeal

was not allowed, however, to consider the appropriateness of summary judgment

relative to variances between Hirsch’s pleadings and proffers. See Alderwoods (Pa.),

Inc. v. Duquesne Light Co., 620 Pa. 214, 66 A.3d 763 (2013) (per curiam) (centering the

allowance of appeal on the presence or absence of a relevant duty on Duquesne Light’s

part). Accordingly, we offer no assessment of the sufficiency of Hirsch’s pleadings in

laying a sufficient factual foundation for Mr. Wunderley’s opinion.

[J-78-2013] - 5

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 Co., 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).3 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.

3

Duquesne Light also quoted an opinion of the Pennsylvania Public Utility Commission

(the “PUC” or the “Commission”), as follows:

Traditionally, utilities, the [PUC], and the Courts have

recognized that the ownership and maintenance

responsibility of an electric utility ends at the point of delivery

to the customer. . . . From that point on, the customer owns

and assumes the responsibility for the maintenance and

security of the internal wiring.

Brief in Support of Summary Judgment at 6 (quoting Hineline v. Metro. Edison Co., No.

C-902777, 1990 Pa. PUC LEXIS 156, at *6 (Pa. PUC Oct. 5, 1990)).

[J-78-2013] - 6

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, 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

[J-78-2013] - 7

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

[J-78-2013] - 8

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.4

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,

Hirsh 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

4

In the negligence arena, in the absence of a relevant statute, the determination

whether to impose affirmative common-law duties as a predicate to civil liability is a

matter of law. See Seebold v. Prison Health Servs., Inc., 618 Pa. 632, 650, 57 A.3d

1232, 1243 (2012).

[J-78-2013] - 9

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,

52 A.3d 347. After setting forth the standards governing an award of summary

judgment and ensuing appellate review,5 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 357.6

5

A court of original jurisdiction may grant summary judgment only when the moving

party demonstrates that there are no genuine issues of material fact and that it is

entitled to judgment as a matter of law. See, e.g., Smith v. Twp. of Richmond, ___ Pa.

___, ___, 82 A.3d 407, 414-15 (2013). The appellate court views the record in the light

most favorable to the non-moving party and considers whether an error of law or abuse

of discretion has occurred. See, e.g., id. at 415.

Parenthetically, the questions of whether there are material facts in issue and whether

the moving party is entitled to summary judgment are matters of law. Accord Pyeritz v.

Commonwealth, 613 Pa. 80, 88, 32 A.3d 687, 692 (2011) (delineating the applicable

review standard only in terms of the legal-error component). The abuse-of-discretion

aspect has relevance only with regard to matters which lie within the discretion of the

court of original jurisdiction, such as a subsidiary evidentiary ruling associated with the

award.

6

Citing Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995), the Superior Court also

correctly explained that there was no substantive difference between Hirsch’s “ordinary

negligence” and “highest degree of care” negligence counts, since the care to be

exercised in any given case is proportionate to the seriousness of the consequences.

(continuedR)

[J-78-2013] - 10

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.7

II. Arguments

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

(Rcontinued)

See id. at 605, 654 A.2d at 539. In this regard, the intermediate court observed that

electricity is universally recognized to be a dangerous instrumentality, thus implicating a

high degree of care on a utility’s part, see Alderwoods, 52 A.3d at 356-57, at least within

the sphere of conventional duties.

7

Although the meters apparently did not manifest any damage which would suggest an

electrical surge, the Superior Court appears to have relied upon Hirsch’s proffer that the

meters were close to the relevant electrical panel, so that inspection of the former would

have revealed the damage to the latter. See id.

[J-78-2013] - 11

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 355.8

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

8

Duquesne does recognize that the Superior Court seems to have contemplated a duty

to inspect the company’s own meters located within the funeral home, as opposed to

inspection of customer equipment or systems, but the electric company contends that

its work crew simply had no reason to inspect the meters. See Brief for Appellant at 13

(asserting that the report submitted by the electrical engineer retained by Hirsch “gave

no reason to inspect the meters, identified no malfunction in the meters, and offered no

opinion that the meters had anything to do with the fire”). According to the utility, the

intermediate court thus “transformed Duquesne Light’s right to inspect its own

equipment into a duty to inspect the customer’s equipment.” Id. at 14 (emphasis in

original).

[J-78-2013] - 12

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

[J-78-2013] - 13

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

[J-78-2013] - 14

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.9

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

9

See also id. at 10 (“It is important to note that in its Opinion, the Superior Court found

a duty to inspect or a duty to warn the customer.” (emphasis in original)); id. at 14 (“At a

minimum, the duty involves merely warning customers of possible overvoltage damage

rather than inspecting.”); id. at 22-23 (“Duquesne Light and its amici neglect to report

that under the circumstances of this case, the [Superior Court’s] opinion requires

inspections or warnings to the customers.” (emphasis in original)); id. at 29 (“In the

alternative, much as the power industry does after flooding events, Duquesne Light

could simply have contacted Hirsch to warn that Duquesne Light suspected overvoltage

damage and would not restore service to the building until the building’s equipment was

inspected by a third party.”).

[J-78-2013] - 15

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

[J-78-2013] - 16

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, Hirsh 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.”).

III. Discussion

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

[J-78-2013] - 17

constructive notice of a dangerous condition within the customer’s premises.

Alderwoods, 52 A.3d at 355.10

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.11 Indeed, although Duquesne Light would clearly like to enjoy immunity from

10

The warnings option obviously mitigates the specter of broken-down doors and

unauthorized trespass alluded to in various of Duquesne’s submissions. Moreover,

whereas the PUC observes, pointedly, that “Duquesne is Hirsch's electric utility;

however, Duquesne is not Hirsch's electrician,” Brief for Amicus the PUC at 19, the

observation takes on a much different color if the electric company had actual or

constructive knowledge of an unreasonable risk to the funeral home tied to power

restoration and did not notify Hirsh so that it, in turn, could summon its electrician.

11

While Duquesne Light and the dissenting opinion authored by Mr. Justice Eakin

invoke the Milton line of decisions, they point to no statement or developed reasoning

appearing in that opinion or any other Pennsylvania case reflecting an informed, judicial

holding that the general service-point demarcation obviates the common-law duty to

take reasonable measures to avert harm to others occasioned by one’s own conduct in

(continuedR)

[J-78-2013] - 18

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.12

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,

(Rcontinued)

the face of actual or constructive knowledge of an unreasonable risk. Indeed, the

Superior Court in Adams apprehended that this question simply is not addressed

through application of the general service-point rule as articulated in Milton. See

Adams, 69 Pa. Super. at 486, 1918 WL 2272, at *4 (“It may be that an electric company

should be held responsible for injuries to third parties caused by defective wiring of a

building if it continued to furnish current after knowledge of the defect in the wiring, but

that question we are not here called upon to decide.”). In this regard, moreover, Hirsch

aptly references the principle that the holdings of the decisions must be read against

their facts. See, e.g., Maloney v. Valley Med. Facilities, Inc., 603 Pa. 399, 411, 984

A.2d 478, 485-86 (2009).

Parenthetically, given that the Adams court cautioned that its opinion (and implicitly

Milton, upon which Adams relied) should not be read to insulate electric companies from

the common-law duty in issue, the dissent’s basis for citing Adams as supporting the

contrary proposition is unclear. See Dissenting Opinion, slip op. at 1-2 (Eakin, J.).

12

For example, as previously observed, when addressing Hirsch’s efforts to invoke the

common-law duty, the electric company rests its disclaimer on the position that there is

no factual basis to support its application, then transitions immediately back to its

discussion of the service-point rule. See Reply Brief for Appellant at 2-3. Nowhere in

its submissions does the utility specifically deny that an electric service provider, on

actual or constructive notice of a dangerous condition of electrical equipment inside a

customer’s premises proximate to downed wires, should refrain from restoring power, at

least pending the undertaking of reasonable efforts to notify an affected customer.

[J-78-2013] - 19

in the face of actual or constructive knowledge of a danger.13 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,

13

The PUC’s position that we should leave this matter to its regulatory province is

entirely detached from the summary judgment motion Duquesne Light filed and the

limited review which was granted by this Court. As such, in the present context, we

decline to consider the Commission’s ability to diminish general common-law duties on

the part of utilities.

[J-78-2013] - 20

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.14

14

We note that many of amici’s broader-scale policy arguments must fall by the

wayside, in light of Duquesne’s failure to pursue a full-scale public-policy assessment

from the outset. Moreover, to the degree that the Superior Court’s Althaus assessment

appears to be abstract, conclusory, and debatable, this would seem to be attributable,

at least in part, to the absence of a concrete record-based foundation to support an

informed treatment of substantially mixed public policy considerations.

Parenthetically in considering this litigation from an overview perspective, we do

recognize there are fairness concerns on both sides. For example, on the one hand,

Hirsch did not specifically focus its pleadings and submissions in the common pleas

court on warnings, and, indeed, it has not sought to amend the complaint although it

has pursued a substituted theory of liability resting on different factual premises.

Furthermore, Mr. Wunderley’s opinion about the probability of an overvoltage event is

stated in somewhat conclusory terms, with nothing empirical to bolster his assessment

as to the degree of likelihood.

On the other hand, Duquesne Light did not style its challenge as one to the sufficiency

of the complaint, nor did it lodge an attack on the validity of Mr. Wunderley’s opinion in

terms of methodology or the adequacy of the factual premises he employed.

Additionally, by virtue of its one-dimensional focus on a duty to inspect, the electric

company seems to have simply ignored the complaint’s broader assertion of 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 (citing Amended Complaint in Alderwoods at ¶18).

(continuedR)

[J-78-2013] - 21

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.15

(Rcontinued)

Contrary to the position advanced by way of dissent, our decision today is not that such

catch-all language subsumes a warning. See Dissenting Opinion, slip op. at 6-7 (Eakin,

J.). Rather, it is that Duquesne Light, as the appellant (and thus the litigant responsible

for the framing of the questions presented to this Court) has in no way fashioned its own

appeal in a manner which would allow for reasonable resolution of the issue at this time.

Accord supra note 2.

15

In dissent, Madame Justice Todd emphasizes that the issues on which appeal was

allowed do not directly encompass the warnings aspect; she attributes fault for such

circumstance to this Court; and she advocates soliciting additional briefing on the

warnings issue. See Dissenting Opinion, slip op. at 2-3 (Todd, J.).

The allocatur grant issues, however, were taken verbatim from Duquesne Light’s own

petition for allowance of appeal. See Alderwoods, 620 Pa. 214, 66 A.3d 763 (2013)

(per curiam) (“The issues, as stated by Petitioner, are . . . (emphasis added)). As we

have discussed above, Duquesne seeks a full-scale reversal of the Superior Court’s

ruling; the company obviously cannot be fairly surprised to see that this Court would

engage in some treatment of such ruling on its actual terms. Along these lines,

moreover, although we certainly would be constrained in our ability to reverse based on

decisional aspects downplayed or overlooked by an appellant, see, e.g., Konidaris v.

Portnoff Law Assocs., Ltd., 598 Pa. 55, 63-64 n.8, 953 A.2d 1231, 1235 n.8 (2008) –

which is a jurisprudential limitation that Justice Todd does not discuss in her proposal –

an appellate court may affirm for any reason appearing as of record, see, e.g.,

(continuedR)

[J-78-2013] - 22

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[.]”).16

(Rcontinued)

Commonwealth v. Moore, 594 Pa. 619, 638, 937 A.2d 1062, 1073 (2007). This is

precisely our approach here.

We have also attempted to be conservative in terms of our discussion of the warnings

matter. We do not foreclose the possibility that electric utilities might be treated

differently from the wide range of entities and persons who are bound by the general

duty not to create unreasonable risks of harm to others through affirmative conduct. We

merely reiterate that no legal authority has been presented in this appeal to suggest that

electric companies, in fact, presently enjoy such an exemption.

16

This Court has no idea how likely it is, when mixed-voltage utility lines fall proximate

to a structure, that a power surge may impact the building’s electrical system. Certainly,

the probability may depend upon such factors as the position of the lines on the ground

(continuedR)

[J-78-2013] - 23

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.).17 While the

(Rcontinued)

and the general efficacy of controls interposed in the electrical infrastructure, such as

control switches and circuit breakers. See, e.g., 17 AM. JUR. PROOF OF FACTS 2D §643

(2014) (explaining that “[i]n view of the great destructive capabilities of electricity, it is to

be expected that many controls would be imposed on distributors” and “[p]ole-top

automatic switches and automatic circuit breakers have been in practical use since

1912”). According to Mr. Wunderley’s report, however, the engineer considers a surge

to be a materially likely outcome, and Duquesne Light’s summary judgment effort simply

was not orchestrated in a fashion which would reasonably put counter-considerations

into play. The result is that the electric company and its amici have been relegated to

countering Mr. Wunderley’s opinion through mere denials in legal briefs (albeit premised

in part on statements by Duquesne’s own employees).

17

This dissent also appears to regard the process of assessing the scope of common-

law duties as a vehicle to render case-specific pronouncements of discrete obligations

owed solely by particular litigants and applicable only in specific cases. See Dissenting

Opinion, slip op. at 3 (Eakin, J.). To the contrary, however, common-law duties

generally are stated in broad terms to apply to classes of cases, accord Seebold, 618

Pa. at 654, 57 A.3d at 1246, and ongoing expansions and contractions are to be

carefully considered on a developed, legislative-type record capable of supporting the

essential policy-based judgments, see id. at 658 & n.24, 57 A.3d at 1248. The notion of

an unwieldy process of perpetual, case-specific, common-law pronouncements is

antithetical to the nature of the undertaking. Rather, generally, courts establish the

landscape of common-law duties as a matter of law, and juries decide, in individualized

circumstances presented and where there are material facts in dispute, whether such

duties have been breached. Accord Cabral v. Ralphs Grocery Co., 248 P.3d 1170,

1176 (Cal. 2011) (explaining that the legal duty determination centers on categories of

negligent conduct, not the particular parties in narrowly-circumscribed sets of facts, and

commenting that, “to base a duty ruling on the detailed facts of a case risks usurping the

(continuedR)

[J-78-2013] - 24

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.

IV. Summary

Since Duquesne Light has failed to adequately confront the common-law duties

invoked by Hirsh 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

(Rcontinued)

jury’s proper function of deciding what reasonable prudence dictates under those

particular circumstances.”).

[J-78-2013] - 25

does not make them so.18 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.

Mr. Justice Eakin files a dissenting opinion.

Madame Justice Todd files a dissenting opinion.

18

Rather, for better or for worse, and in the absence of considered, affirmative

immunities, utilities are merely regulated to the exposure and uncertainty facing other

entities and persons within our existing system of civil justice as it subsumes the range

of common-law duties.

[J-78-2013] - 26