                               [J-128-2016] [MO: Donohue, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                        MIDDLE DISTRICT


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


                                   CONCURRING OPINION


JUSTICE MUNDY                                                DECIDED: June 20, 2017
       I   join the majority opinion.    As the majority notes, Section 8542(b) of the Tort

Claims Act, provides in relevant part:


       (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 circumstances 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).
       With respect to the utility service facilities exception, would expressly adopt the
                                                                    I




following position set forth by the Commonwealth Court in Miller        v. Pa.   Dep't of Transp.,

690 A.2d 818 (Pa. Cmwlth. 1997):

       In  County of Allegheny v. Dominijanni, 109 Pa. Cmwlth. 484, 531 A.2d 562
       (1987), the Court held that the term "right-of-way," as used in this
       exception included the strip of land on which the local agency constructed
       its utility service facilities. In Dominijanni the underlying suit was based on
       the agency's negligence, inter alia, in failing to use the proper backfill
       when installing a sewer pipe, which resulted in a landslide. Consequently,
       this Court concludes that the language "of the facilities ... and located
       within rights of way" in the utilities service facilities exception 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, supra at 820.


       By expressly adopting Miller, this Court will definitively establish that the utility

service exception applies to the utiliity's property as well as to the land within its right-of-

way.

       Justice Baer joins this concurring opinion.




                             [J-128-2016] [MO: Donohue, J.]     -   2
