Metropolitan Edison, Aplt. v. City of Reading

[J-128-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

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

METROPOLITAN EDISON COMPANY, : No. 58 MAP 2016

Appellant : Appeal from the Order of the

: Commonwealth Court dated October

: 15, 2015 at No. 2188 CD 2014

v. : Reversing the Judgment Entered in the

: Berks County Court of Common Pleas,

: Civil Division, dated November 17,

CITY OF READING, : 2014, exited November 19, 2014, at No.

: 10-21418

Appellee

: ARGUED: December 7, 2016

OPINION

JUSTICE DONOHUE DECIDED: June 20, 2017

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.' N.T., 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

1 From the shallowest to the deepest depth, underground utilities are buried in the

following order: (1) natural gas; (2) electric and data utilities, such as telephone and

cable; (3) water supply mains; (4) storm sewers; (5) sewer mains and lateral lines. N.T.,

5/19/14, at 18-19. The utilities are not stacked directly on top of each other in vertical

alignment, but are instead staggered horizontally. Id. at 19-20.

2 Met -Ed does not assert a claim against the City for the collapse of the first section of

concrete. Id. at 211.

[J-128-2016] - 2

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].

* * *

3 The parties stipulated that after July 20, 2009, Met -Ed incurred $53,000 in expenses

to investigate the damage and make repairs to its underground conduit bank at the site.

[J-128-2016] - 3

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.

* * *

[J-128-2016] - 4

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, VII 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.

[J-128-2016] - 5

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. Id.

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. Id. 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. Id. 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

[J-128-2016] - 6

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 Utility

Exception does not apply. Id.

We granted allocatur to consider the following question presented by Met -Ed:

Did the Commonwealth Court err in holding that the City of

Reading was immune from liability for property damage

caused by [the City's] negligent conduct despite the Utility

Service Facilities exception to governmental immunity

contained within the Tort Claims Act, 42 Pa.C.S. §

8542(b)(5)?

Metro. Edison Co. v. City of Reading, 138 A.3d 608 (Pa. 2016) (per curiam).4

Met -Ed asserts that the Commonwealth Court erred in concluding that the Utility

Exception did not apply. It submits that a local agency such as the City is not entitled to

immunity where there is a dangerous condition of the facility and located within its utility

4 Whether the City is immune under the Tort Claims Act is a pure question of law. Our

standard of review is de novo, and our scope of review is plenary. Christy v. Cranberry

Volunteer Ambulance Corps, Inc., 856 A.2d 43, 46 (Pa. 2004). This is also our standard

and scope of review for statutory interpretation. Bowling v. Office of Open Records, 75

A.3d 453, 466 (Pa. 2013)

[J-128-2016] - 7

right-of-way, if the plaintiff shows that the dangerous condition created a reasonably

foreseeable risk and that the agency had notice of the dangerous condition. Met-Ed's

Brief at 20. Met -Ed argues that the evidence introduced at trial established that the

loose and unstable soil and dirt in the excavation hole "constituted a 'dangerous

condition' of [the City's] sanitary sewer utility service facilities." Id. Met -Ed argues that

this "dangerous condition' derived from, originated or had as its source the physical

condition, i.e., the loose and unstable soil, rocks, etc., of [the City's] sanitary sewer

utility service facility in the form of the strip of land located within the sanitary sewer's

right of way." Id. Met -Ed contends that the City was negligent in failing to take

appropriate steps to ensure adequate soil support existed for Met -Ed's conduit bank

and allowing the dangerous condition to exist. Id. at 21. Met-Ed asserts that the

evidence established that the City had actual notice of the dangerous condition, but

failed "to take any active or prophylactic measures whatsoever to protect against the

dangerous condition, such as installing shoring devices to prevent erosion of the

unstable soil supporting Met -Ed's conduit bank." Id.

Met -Ed further contends that the Commonwealth Court erred in finding that the

Utility Exception does not apply because the City's employees created the dangerous

condition. Met -Ed submits that the Commonwealth Court's conclusion conflicts with its

previous holdings in Miller and DeTurk v. South Lebanon Township, 542 A.2d 213 (Pa.

Commw. 1988), which establish that a local agency's affirmative conduct can create the

dangerous condition of its facilities necessary to bring the local agency's negligent

conduct within the Utility Exception. Met -Ed's Brief at 27. Met -Ed argues that the

Commonwealth Court's reliance on Reading Water Authority was misplaced because

the proximate cause of the damages in that case was not a defect in the utility service

facility or the strip of land contained within the water authority's right-of-way. Id. at 40.

[J-128-2016] - 8

Lastly, Met -Ed contends that the Commonwealth Court's decision renders

illusory multiple exceptions to governmental immunity because any time a court can

trace the creation of a dangerous condition to a local agency's negligent act or

omission, the local agency will be immune from liability. Id. at 44. Met -Ed argues that

nearly every aspect of the existence of a utility service facility (or of a local agency's

street or sidewalk) can ultimately be traced back to some form of negligent action or

omission of the local agency or its employees. Id. Under the Commonwealth Court's

decision, no liability will ever attach for any dangerous conditions whose existence can

be traced back to those actions or omission. Id.

The City argues, conversely, that the Commonwealth Court properly construed

Met -Ed's negligence claim as originating or deriving from the City's negligent excavation

activity; not from the loose and unstable soil and dirt in the excavation hole. City's Brief

at 10. The City reasons that its negligent excavation activity was the root cause of the

collapse because, without the City's negligence, the conduit bank would have never

been exposed and the lack of support underneath the conduit bank would never have

become relevant. Id. The City contends that the Commonwealth Court's decision was

consistent with Reading Water Authority, which held that for the Utility Exception to

apply, the dangerous condition alleged must have derived or originated from, or had as

its source the local agency's realty. Id. at 11.

The City next contends, to the extent that the unstable soil in the excavation hole

caused the conduit bank to collapse, there was no evidence to establish that the City

was responsible for putting the allegedly unstable fill beneath the conduit bank or that

the City negligently chose to use the wrong fill. Id. at 13. The City asserts that it should

not be held responsible for the loose and unstable soil and dirt in the excavation hole

without evidence that it was the one responsible for its placement there. Id. at 13. The

[J-128-2016] - 9

City claims that under Met -Ed's logic, regardless of what entity puts the unstable fill in

the excavation area, it becomes the City's fill because it is located in the City's right-of-

way. Id.

The issues presented here require us to apply principles of statutory

interpretation to "ascertain and effectuate the intention of the legislature" with respect to

the proper application of the Utility Exception. 1 Pa.C.S. § 1921(a); Allstate Life Ins. Co.

v. Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012). The best indication of the General

Assembly's intent is the plain language of the statute. See, e.g., Bayada Nurses v.

Dept. of Labor and Indus., 8 A.3d 866, 880 (Pa. 2010). "When the words of a statute

are clear and free from all ambiguity, they are presumed to be the best indication of

legislative intent." Chanceford Aviation v. Chanceford Twp. Bd. of Supervisors, 923

A.2d 1099, 1104 (Pa. 2007). A statute should be construed, to the extent possible, to

give effect to all of its provisions, and thus, "it is axiomatic that in determining legislative

intent, all sections of a statute must be read together and in conjunction with each other,

and construed with reference to the entire statute." Hoffman Min. v. Zoning Hearing

Bd., 32 A.3d 587, 592 (Pa. 2011). The General Assembly intended to exempt local

agencies from immunity only in specifically defined situations, White v. Sch. Dist. of

Philadelphia, 718 A.2d 778 (Pa. 1998), and thus we must narrowly construe and strictly

interpret the exceptions in section 8542.

The relevant statutory language is as follows:

(a) Liability imposed. --A local agency shall be liable for

damages on account of an injury to a person or property

within the limits set forth in this subchapter if both of the

following conditions are satisfied and the injury occurs as a

result of one of the acts set forth in subsection (b):

(1) The damages would be recoverable under

common law or a statute creating a cause of

action if the injury were caused by a person not

[J-128-2016] - 10

having available a defense under section 8541

(relating to governmental immunity generally)

or section 8546 (relating to defense of official

immunity); and

(2) The injury was caused by the negligent acts

of the local agency or an employee thereof

acting within the scope of his office or duties

with respect to one of the categories listed in

subsection (b). As used in this paragraph,

"negligent acts" shall not include acts or

conduct which constitutes a crime, actual

fraud, actual malice or willful misconduct.

(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.

* * *

(c) Limited definition. --As used in this section the amount

of time reasonably required to take protective measures,

including inspections required by law, shall be determined

with reference to the actual equipment, personnel and

facilities available to the local agency and the competing

demands therefor.

42 Pa.C.S. § 8542(a), (b)(5), (c).

[J-128-2016] - 11

We begin with section 8542(a), which provides that a local agency may be liable

for damages to a person or property if (1) the damages would be recoverable under

common law or a statute creating a cause of action if the injury were caused by a

person not having available an immunity defense; (2) the injury was caused by the

negligent acts of the local agency or its employee; and (3) the negligent acts causing

the injury are of the sort set forth in section 8542(b). 42 Pa.C.S. § 8542(a); Falor v. Sw.

Pennsylvania Water Auth., 102 A.3d 584,586-87 (Pa. Commw. 2014). Section 8542(b)

lists eight negligent acts by a local agency or its employees that may result in liability.

42 Pa.C.S. § 8542(b). Of the eight, four subsections identify particular negligent acts

that may result in liability, including the negligent "operation of any motor vehicle," and

the negligent "care, custody or control" of personal property of others, real property in

the possession of the local agency, and animals in the possession or control of the local

agency. 42 Pa.C.S. § 8542(b)(1), (2), (3) and (8).

The remaining four subsections in 8542(b) waive governmental immunity where

injury results from "a dangerous condition of" trees, traffic controls and street lighting;

utility service facilities; and sidewalks. 42 Pa.C.S. § 8542(b)(4)-(7). These four

subsections, unlike their counterparts, do not expressly articulate specific conduct that

forms the basis for a negligent act triggering an exception from immunity. Instead,

these four subsections refer to "dangerous conditions of" types of property owned by, or

in the possession or control of, a local agency. Id. The existence of a dangerous

condition, in and of itself, is not a negligent act. Each of these four subsections,

however, contains identical language that permits an inference to the negligent act

designated by each subsection. Specifically, after identifying the dangerous condition at

issue, each subsection provides as follows:

...except that the claimant to recover must establish that the

dangerous condition created a reasonably foreseeable risk

[J-128-2016] - 12

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.

Id. Section 8542(c) then demarcates the amount of time that must reasonably be

afforded to local agencies to remediate against the specified dangerous condition. 42

Pa.C.S. § 8542(c).

This language in sections 8542(b)(4)-(7) and (c) implicitly identifies the negligent

acts triggering these four exceptions: where a local agency has notice of (or can

reasonably be charged with notice of) a dangerous condition of property it owns (or is in

the possession or control of), and where there is a foreseeable risk of the kind of injury

that later in fact occurs, the local agency is negligent if it fails to take the necessary

remedial measures to protect against the dangerous condition that eventually results in

injury and damages.5 42 Pa.C.S. § 8542(b)(4)-(7). In determining whether the notice

period in advance of the injury was a sufficient amount of time for the local agency to

have remediated the dangerous condition, consideration must be given to the

equipment, personnel and facilities then available to the local agency as well as the

competing demands therefor. 42 Pa.C.S. § 8542(c).

5 We note that damages resulting from the failure of a property owner, who knows or

should know of a dangerous condition of his property and who fails to exercise due care

to prevent a foreseeable harm from said dangerous condition, have long been

recoverable under the common law of this Commonwealth. See, e.g., Fitzpatrick v.

Penfield, 109 A. 653, 657 (Pa. 1920); Bowman v. Columbia Tel. Co., 179 A.2d 197, 201

(Pa. 1962).

[J-128-2016] - 13

Based upon this review of the relevant statutory language, we may thus precisely

list the requirements for an exception from governmental immunity under the Utility

Exception in subsection 8542(b)(5).

a dangerous condition of a utility service facility owned by

the local agency and located within rights -of -way;

the dangerous condition created a foreseeable risk of injury

of the kind of injury that later occurred;

the local agency had notice of the dangerous condition or

could reasonably be charged with notice;

despite said notice, the local agency, with the means and

personnel to do so under the circumstances presented,

failed to take necessary and appropriate remedial measures

to protect against injury resulting from the dangerous

condition; and

the failure to remediate the dangerous condition was a

proximate cause of the injury and resulting damages.

In the present case, the trial court did not err in entering a verdict for Met -Ed.

The trial court identified a dangerous condition of the City's facilities and located within

its right of way,6 namely, unstable dirt and soil in the excavation hole resulting in a lack

6 InMiller, the Commonwealth Court ruled that the Utility Exception applies "not only to

the water pipes but also to the strip of land that the [a]uthority disturbed to repair its

water pipe." Miller, 690 A.2d at 820. In Miller, the plaintiffs asserted that the phrase "of

the facilities" refers not only to the water pipe but encompasses the repairs as well,

including the trench. Id. The Miller court relied on County of Allegheny v. Dominijanni,

531 A.2d 562 (Pa. Commw. 1987), which held that the phrase "located within rights -of -

ways" in the Utility Exception "refers to the strip of land on which the local agency has

constructed its utility service facilities." Id. at 565. The Miller court concluded, based on

Dominijanni, that the phrase "of the facilities... and located within rights of way" applies

"not only to the water pipes but also to the strip of land which the [water authority]

disturbed to repair its water pipe." Miller, 690 A.2d at 820.

In its appellate brief filed with this Court, the City asks us to overrule Miller on this point.

It is not entirely clear, however, why the City wants us to do so. The City does not

(continued...)

[J-128-2016] - 14

of ground support for Met -Ed's conduit bank. Trial Court Opinion, 1/20/2015, at 5-6.

The trial court further found that the City had notice of the dangerous condition and

understood the risk of collapse of the conduit bank. Id. at 6. Finally, the trial court

determined that the City had breached its duty to Met -Ed by failing to take necessary

remedial measures to protect against the dangerous condition of the facilities in

advance of the subsequent collapse of the conduit bank. Id.

The Commonwealth Court erred in reversing the trial court's decision. The

Commonwealth Court regarded the cause of the collapse to be the direct negligence of

the City's employees (not any dangerous condition of the utility service facilities)

because the City's employees created the dangerous condition during their excavation

activities. By focusing on the cause of the dangerous condition, i.e., the negligent

excavation, rather than on the cause of the collapse, i.e., the failure to remediate the

dangerous condition, the Commonwealth Court misconstrued the Utility Exception and

the gravamen of Met -Ed's complaint.' Contrary to the Commonwealth Court's

(... continued)

suggest here, and it did not assert below, that the excavation site was not part of its

sewer facilities located within its right-of-way. Instead, the City apparently believes that

Miller subjects a local agency to the Utility Exception for negligent excavation activities.

The City contends here, as it did before the Commonwealth Court, that "[i]n Miller, the

court held that a job site becomes a dangerous condition of the utility service facility

when negligently backfilled," and that Miller should not be interpreted "as creating a

cause of action for negligent backfilling." City's Brief at 12-13.

We do not read Miller as creating a cause of action against a local agency for negligent

backfilling of an excavation trench. The Miller court instead merely recognized that "the

common thread running throughout these exceptions is that liability depends first on the

strictly legal determination that the injury was caused by a condition of the property,

itself, which has its origin or source in the property." Miller, 690 A.2d at 820-821.

7 The City argues that in order to pierce the City's immunity, Met -Ed was required to

utilize the same alleged negligence to establish both common law negligence and the

(continued...)

[J-128-2016] - 15

construction, the fact that the City's employees created the dangerous condition by

negligent excavation does not render the Utility Exception inapplicable. As our above

analysis reflects, the originating cause of the dangerous condition, whether by the

negligence of the local agency or otherwise, is irrelevant to a proper application of the

Utility Exception. Instead, the negligent act necessary to trigger the Utility Exception is

the failure of a local agency to remediate a dangerous condition of which it has notice.

Our decision in Gall by Gall v. Allegheny County Health Department, 555 A.2d

786 (Pa. 1989), further establishes this point. In that case, the plaintiffs became ill when

they drank tap water contaminated by giardia. In their suit against the city and the local

water authority, the plaintiffs alleged that the city and water authority had "failed to

(... continued)

Utility Exception. City's Brief at 13 n.2. The City contends that Met -Ed's allegations of

common law negligence referred to the actions of the City's employees (the failure to

timely respond, failure to shore, etc.), but then relied on the unstable soil (for which Met -

Ed does not point to any negligence) to establish the Utility Exception. Id.

This argument is without merit as it misconstrues the nature of Met -Ed's claims. In

paragraphs 18-21 of its amended complaint, Met-Ed alleged that the City had actual

notice of the dangerous condition at the excavation site, orally promised to back fill the

excavation work immediately to relieve pressure on the conduit bank, but then 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."

Amended Complaint, 12/17/2010, ¶¶ 18-21.

We note that Met -Ed also alleged that the City's negligent excavation created the

dangerous condition. Id., ¶¶ 11, 15, 30, 36. Met -Ed's decision to do so may have been

based upon prior Commonwealth Court decisions suggesting that a local agency must

both create the dangerous condition and then fail to remediate it. See Miller, 690 A.2d

at 819; DeTurk, 542 A.2d at 215. As our above analysis reflects, whether the local

agency's negligence creates the dangerous condition is irrelevant for purposes of

application of the Utility Exception.

To the extent that the trial court's decision and/or the Commonwealth Court's decisions

in Miller and DeTurk can be read to require that two negligent acts are required for

application of the Utility Exception (the first in creating the dangerous condition and the

second for failing to remediate it), those decisions were in error.

[J-128-2016] - 16

utilize the latest scientific developments used to treat and cure water, ... and permitted

water retaining systems and water piping systems to become contaminated by giardia."

Id. at 787. The trial court sustained preliminary objections filed by the city and water

authority, and the Commonwealth Court affirmed.

This Court reversed, holding that the plaintiffs had sufficiently alleged a

dangerous condition of the water facilities, of which the city and water authority had

actual notice or constructive notice. Id. at 788. For this reason, we found the Utility

Exception to be applicable.

By the plain reading of the statute, a local agency does not

enjoy governmental immunity where there is a dangerous

condition of the water facilities located within rights of way if

the claimant establishes "that the dangerous condition

created a reasonably foreseeable risk ... and that the local

agency had actual notice or could reasonably be charged

with notice ... of the dangerous condition."

Id. Critically, in Gall by Gall this Court did not even mention the lower courts' findings

that the water contamination was caused by a series of negligent acts by the city and

water authority. Rather, we focused on whether the plaintiffs' injuries were caused by a

dangerous condition of the city's water system facilities, which the water authority, after

reasonable notice, failed to remediate. Id.

The Commonwealth Court's decision to rely on its prior decision in Reading

Water Authority was misplaced as that case is inapposite. There, a municipal water

authority's employees struck and damaged the plaintiff's underground electrical wires

with a boring machine.8 Reading Water Authority, 937 A.2d at 1174. The plaintiff

8 The City's contends that it is illogical that it would be immune from liability for actually

striking Met -Ed's facilities as in Reading Water Authority yet not immune when it

(continued...)

[J-128-2016] - 17

brought a claim against the water authority, which, in turn, asserted its government

immunity under the Tort Claims Act. Id. The trial court granted the water authority's

motion for summary judgment, rejecting the plaintiff's contention that its claims fit within

the Utility Exception. On appeal, the Commonwealth Court affirmed, concluding that the

plaintiff did not allege that the dangerous condition derived from the water authority's

water line. Id. That is, its complaint failed to make any allegations regarding a defect of

the property involved. Id. Rather, the plaintiff alleged that the water authority "breached

its duty of care under the [Tort Claims] Act because it failed to exercise due care and

take reasonable steps to avoid damaging [the plaintiff's] property while excavating with

a boring machine." Id. The Commonwealth Court concluded, "Clearly, the dangerous

condition, as alleged, originated with the conduct of [the water authority's] employees."

Id.9

For the foregoing reasons, the Commonwealth Court erred in reversing the trial

court and concluding that Met -Ed failed to establish a claim under the Utility Exception.

We find that, contrary to the Commonwealth Court's analysis, under the Utility

Exception the focus must be on whether the injuries alleged were caused by a

dangerous condition which derived from, originated from or had its source in the local

(... continued)

excavates around them. City's Brief at 6. Illogical or not, the distinction is based on a

legislative grant of immunity in the former situation and not in the latter.

9 Unfortunately, the Reading Water Authority court did not frame its decision based on

the clear disqualifying circumstance that no injury was caused as a result of the

dangerous condition of the water authority's facilities. Instead, the court opined that the

dangerous condition, as alleged, originated with the conduct of the water authority's'

employees. Contrary to the statement of the Reading Water Authority court, striking an

electrical line with a boring machine is not a "dangerous condition" of anything. It is

negligent conduct immunized by the Tort Claims Act.

[J-128-2016] - 18

agency's utility service facility and located within its right-of-way, not on the genesis of

the dangerous condition. It must also be established that the local agency had sufficient

advance notice, or could reasonably be charged with notice under the circumstances, of

the dangerous condition, and the foreseeable risks presented by those dangerous

conditions to permit it to take timely remedial measures. Here, Met -Ed's evidence

established that the City had sufficient advance notice of the dangerous condition of the

excavation site as a result of a lack of adequate ground support and the foreseeable

risks presented by those dangerous conditions to permit it to take timely action to install

shoring or otherwise stabilize the dirt, rocks and soil. The City failed to remediate the

dangerous condition, causing the collapse resulting in Met -Ed's injuries.

The Commonwealth Court's decision is hereby reversed.

Justices Baer, Todd, Dougherty and Wecht join the opinion.

Justice Mundy files a concurring opinion in which Justice Baer joins.

Chief Justice Saylor files a dissenting opinion.

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