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

• Decision Date: 15 December 2014
• Docket Number: No. 12 WAP 2013.,12 WAP 2013.
• Court: Pennsylvania Supreme Court
• Parties: ALDERWOODS (PENNSYLVANIA), INC., a Wholly Owned Subsidiary of Service Corporation International, t/a Burton L. Hirsch Funeral Home, Appellee, v. DUQUESNE LIGHT COMPANY, Appellant.

106 A.3d 27

ALDERWOODS (PENNSYLVANIA), INC., a Wholly Owned Subsidiary of Service Corporation International, t/a Burton L. Hirsch Funeral Home, Appellee

v.DUQUESNE LIGHT COMPANY, Appellant.

No. 12 WAP 2013.

Supreme Court of Pennsylvania.

Argued Oct. 15, 2013.

Decided Dec. 15, 2014.

Erin Megan Beckner, Esq., Gary P. Hunt, Esq., Richard B. Tucker III, Esq., Pittsburgh, Bradley S. Tupi, Esq., Tucker Arensberg, P.C., for Duquesne Light Company.

Robert C. Heim, Esq., Philadelphia, Dechert LLP, for Energy Association of Pennsylvania.

Bohdan R. Pankiw, Esq., Harrisburg, Kenneth Riley Stark II, Esq., PA Public Utility Commission, Patricia Timmerman Wiedt, Esq., Robert Frank Young, Esq., for Pennsylvania Public Utility Commission.

Elisa Talora Wiygul, Esq., Dechert LLP, Philadelphia, for Energy Association of Pennsylvania.

Alan J. Charkey, Esq., White and Williams, L.L.P., Peter T. Parashes, Esq., Philadelphia, for Alderwoods (Pennsylvania), Inc.

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

OPINION

Justice SAYLOR.

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 Hirsch's business premises, and at least one was stripped from the service point, i.e., the attachment point to the building's electrical system located on the structure. In addition to the funeral home, a number of other local buildings lost power as a result of the incident, although no structure other than Hirsch's was connected directly to the downed pole.

Upon receiving word of the outage, Duquesne Light dispatched a line crew to make repairs. Over a period of several hours (about twelve, in Hirsch's estimation), linemen replaced the pole, installed new transformers, and restored power to the buildings. Finishing with the locked, unoccupied funeral home, crew members climbed onto the roof to connect the new external wiring to the building's electrical system at the service point.

Soon after the wires were connected and energized, a fire broke out at the location of an electrical panel box located in the basement of the premises and owned by Hirsch. The blaze spread, and the funeral home was destroyed.

Hirsch commenced a civil action against Duquesne Light, including two negligence counts, denominated “ordinary negligence” and “highest degree of care” attendant to the supply of electricity.¹ According to Hirsch's pleadings, the electric company's employees “incorrectly and improperly” reconnected the funeral home to the transmission and distribution system. Amended Complaint at ¶ 11. Hirsch contended that this triggered an electrical arc and catastrophic failure at the electrical panel box inside the funeral home, resulting in the fire. See id. at ¶ 12. The amended complaint also charged the utility with nonfeasance for not examining the funeral home's electrical system or contacting Hirsch to request access for inspection prior to restoring power, and, more generally, for failing to do those things necessary to maintain safety and preserve the business premises. See id. at ¶ 14.

In an answer with new matter, Duquesne denied a number of the material allegations of the complaint and asserted that the fire was a result of the malfeasance of the unknown third-party motorist and/or defective electrical wiring or equipment owned and maintained by Hirsch. The electric company also indicated that it bore no duty to inspect the funeral home's—or any other customer's—privately-owned electrical equipment or system before restoring power after an outage. See Answer and New Matter to Amended Complaint at ¶ 43.

In discovery, Hirsch tendered the report of an electrical engineer, Richard W. Wunderley, P.E., who had been retained to render an opinion concerning Duquesne Light's role in the events giving rise to the funeral home's destruction. In his analysis, the engineer initially dismissed the hypothesis that the electric company's line crew had misconnected wires when restoring power. See Engineer's Report, EFI Global, dated August 23, 2010, at 6 (“The improper connection hypothesis at the single phase mast head was eliminated after the evidence examination and further discovery information was received.”). Mr. Wunderley advanced another theory, however. He posited that, during the downing of the utility pole, a primary line consisting of wires (or conductors) carrying high-voltage electricity from a substation had contacted stepped-down secondary lines transmitting lower-voltage current to the funeral home, causing an “over voltage/over current condition” in the electrical system interior to the funeral home and touching off a short-circuit. Id. at 6. The engineer indicated that Duquesne Light's subsequent reenergizing of the damaged electrical system heated the metal panel box to an extreme temperature, igniting the attached wood backing. See id. at 2, 6.

According to Mr. Wunderley, “[i]nspection of the electric panels and Duquesne Light metering equipment in the funeral home prior to reenergizing the single phase service would have revealed the electrical damage caused by the contact between the primary and secondary conductors at the pole[.]” Id. at 7. Furthermore, Mr. Wunderley asserted that the extensive damage to the utility pole and lines at the crash site afforded Duquesne's line crew ample notice of a substantial likelihood that the high-voltage primary conductors contacted the lower-voltage secondary lines. See id. at 7 (“The potential for damage inside the funeral home due to the physical damage to the service connections and probable contact between the 4000 volt primary and secondary conductors was a compelling reason and cause to inspect the metering equipment in the funeral home prior to reenergizing the single phase service.” (emphasis added)); Engineer's Supplemental Report, EFI Global, dated August 31, 2010, at 3 (referencing the conditions outside Hirsch's premises as presenting “strong/compelling evidence ... that should have caused Duquesne Light to inspect the electrical system in the funeral home prior to reenergizing the electric service.” (emphasis added)). Moreover, had an inspection been undertaken prior to restoration of power, the engineer stated, the damage to the electrical panel would have been discovered and the fire averted. See Engineer's Report, EFI Global, dated August 23, 2010, at 7–8 (“Because Duquesne Light failed to inspect the electrical system, ... the above events/conditions resulted in a catastrophic failure and fire.”).

At the close of discovery, Duquesne Light pursued summary judgment. The electric company rested its motion squarely on the premise that “[t]he only basis asserted for liability is that before restoring power, the Duquesne Light crew should have entered the locked Funeral Home in the middle of the night, gone to the basement, and inspected the customer's electrical panel.” Brief in Support of Summary Judgment at 4 (emphasis added). The company then set about disclaiming any such duty, on the part of an electric service provider, to affirmatively inspect privately-owned equipment and/or systems prior to restoring power after an outage.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 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...