                                  [J-78-2013]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               WESTERN DISTRICT


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.                               :   ARGUED: October 15, 2013
                                                :
                                                :
DUQUESNE LIGHT COMPANY,                         :
                                                :
                      Appellant                 :


                                  DISSENTING OPINION


MR. JUSTICE EAKIN                                     DECEMBER 15, 2014
       As I find the duty created by the Superior Court contravenes precedent from this

Court — a duty that is unsupported by the allegations in appellee’s complaint — I cannot

join the majority in affirming that decision.

       It has long been the law in Pennsylvania that an electric service provider is neither

obligated to inspect its customers’ equipment nor liable for damages relating thereto.

See Milton Weaving Co. v. Northumberland County Gas & Electric Co., 96 A. 135, 136-37

(Pa. 1915); see also Adams v. United Light, Heat & Power Co., 69 Pa. Super. 478

(1918).1 Thus, while an electric utility must inspect its own equipment for defects or

1 Interestingly, the majority suggests Adams supports its holding — despite the fact that
Adams reaffirmed Milton — because the court commented in dictum that it “may be” that
(continuedG)
damage, its obligations end at the “service point,” i.e., where the lines connect to the

customer’s wiring system.

       Notwithstanding this well-established rule, the Superior Court found Duquesne

Light had a duty to warn appellee of a possible dangerous condition with appellee’s

equipment. The majority affirms the Superior Court’s holding, despite reaffirming that

“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.” Id., at 17

(citation omitted).   Apparently, the majority finds the service-point rule inapplicable

based on the allegation that Duquesne Light had constructive knowledge of an

unreasonable risk of harm. See id., at 18. However, if an electric service provider’s

obligations end at the service point, then Duquesne Light owed appellee no duty to intuit

hazards manifesting on appellee’s side of that point. Whether couched as a duty to

inspect, as appellee alleges, or the Superior Court’s admittedly more “modest” duty to

warn, any basis for liability stemming from the customer’s own equipment runs afoul of

the bright-line rule established by Milton.



(Gcontinued)
an electric company should be liable if it furnishes electricity with knowledge of a defect in
the wiring of a building. Majority Slip Op., at 18 n.11. The majority appears to couch
this comment as a declaration by the Superior Court that its opinion (and, somehow,
“implicitly,” this Court’s opinion in Milton) should not be read to preclude liability stemming
from the “duty in issue” — presumably, the duty at issue in this case. However, we are
not dealing here with the duty that accompanies actual knowledge of a defect in the
customer’s equipment — appellee did not plead actual knowledge in either complaint,
and I have found no evidence of such knowledge in the record. Rather, appellee’s claim
is that Duquesne Light knew of a risk of harm that could be posed by reenergizing the
system if an overcurrent condition had caused appellee’s electric panel to fail, i.e., it
should have known of a dangerous condition inside the building. Respectfully, this case
is far removed from the scenario the Adams court conjectured “may” give rise to liability.



                              [J-78-2013] [MO: Saylor, J.] - 2
        To its credit, the Superior Court attempted to limit its holding to the peculiar facts of

this case. Not only did it conduct an Althaus2 analysis specific to these two parties, but

within that analysis, it made clear that “[t]he consequences of imposing a duty upon

Duquesne Light to inspect, or at a minimum, to warn a customer, under the facts alleged,

does not place an undue burden upon Duquesne Light[,]” noting the funeral home was

“‘the only building     attached to the broken pole.’” Alderwoods (Pennsylvania), Inc. v.

Duquesne Light Company, 52 A.3d 347, 355 (Pa. Super. 2012) (emphasis in original).

The majority, however, broadens the scope of the intermediate appellate court’s holding

to include all electric service providers. See Majority Slip Op., at 25 (imposing duty on

electric service providers to take reasonable measures to avert harm where they have

actual or constructive knowledge of dangerous condition impacting customer’s electrical

system caused by fallen power lines near property). There is also the problem that this

new duty is not confined to single-pole situations, but applies when entire blocks of

customers await return of service. I find this new duty not only unwise and generally

unworkable, but also unwarranted, given appellee’s failure to plead facts to support the

newly created “failure to warn” theory, discussed infra.

        The majority holds that electric service providers must “take reasonable measures

to avert harm” when they have reason to know of a dangerous condition affecting the

customer’s electrical system. Id. While the majority appears to limit this obligation to a

duty to warn, see id., at 17-18, it fails to outline the peripheries of this new duty. To be

sure, “reasonableness” is the standard by which allegedly negligent actions are judged,

but it remains a duty ill-defined as it relates to the myriad situations electric service

companies will face.



2   Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000).



                               [J-78-2013] [MO: Saylor, J.] - 3
       Some situations provide actual knowledge of a problem, but others do not. How

is an electric company to know what are “reasonable measures to avert harm” when the

problem is on property it does not control? The majority suggests Duquesne Light

should have notified appellee so appellee could summon its own electrician, which is fine

as far as it goes — but after it does so, must the company delay returning service to

others until the customer finds and hires an electrician? Must the utility wait even longer

while the electrician conducts the inspection before it reenergizes the system? The

majority appears to assume every customer will receive the warning and immediately

respond, but the delays inherent in these situations, shared by all affected customers,

should not be exacerbated by placing the problems of each landowner in the lap of the

utility. What if an affected customer cannot be reached at all? At what point is it

reasonable for the utility to restore power to all despite the flaws in a customer’s own

equipment?

       As the majority points out, “these are precisely the sorts of considerations

relegated to juries[,]” id., at 25, and perhaps a body of law will, eventually, develop on this

new duty, as its ramifications are exposed by new cases. In the meantime, however,

these uncertainties will result in significant delays in the restoration of power because if

the electric service companies know they may be held liable for damages if they restore

power prematurely, they will delay doing so until they are sure no such damage will occur.

Depending on the severity and location of the storm that caused it, weather-related power

outages impact thousands of customers, commercial and residential alike, in both urban

and rural areas. While the outage here was relatively benign, as appellee was the only

one connected to the affected pole, the new duty created is not limited to such situations

— it must be applicable to all, and in most circumstances, a prolonged power outage

would be not only a public inconvenience, but also a major safety concern.




                              [J-78-2013] [MO: Saylor, J.] - 4
       In addition to these substantive objections, I must also disagree with the majority’s

decision on procedural grounds. As noted above, the “duty to warn” theory was not

advanced by appellee. In the Superior Court, appellee did not argue Duquesne Light

breached its duty to notify it of a potential hazard, instead arguing the trial court “should

have concluded that Duquesne [Light] was under a duty to inspect [appellee]’s electrical

apparatus before restoring power.” Appellee’s Superior Court Brief, at 41. Rather than

confine its analysis to the theories proffered by the parties, the Superior Court sua sponte

addressed a duty to warn appellee of possible dangers created by appellee’s own

equipment. In doing so, the court erred.

       “[C]ourts should not recast a pleading in a way not intended by the parties.”

Steiner v. Markel, 968 A.2d 1253, 1260 (Pa. 2009). “[W]hen a court decides issues sua

sponte, it exceeds its proper appellate function and unnecessarily disturbs the processes

of orderly judicial decisionmaking.” Id. (citation omitted). The Superior Court ran afoul

of these well-established principles of appellate review, and the majority does not account

for this error.

       Not only did the court err in addressing an issue not raised by the parties on

appeal, but it reversed the trial court, in part, based on a theory that cannot be gleaned

from appellee’s pleadings. In its amended complaint, appellee claimed Duquesne Light

was negligent for three things:

       (1) improperly reconnecting the lines between the funeral home and the

distribution system;

       (2) failing to inspect the system; and

       (3) “failing and omitting to do those things which were necessary to preserve

Hirsch’s property and render said premises safe.”




                              [J-78-2013] [MO: Saylor, J.] - 5
Amended Complaint, 5/28/10, at 4. Nowhere did appellee allege Duquesne Light was

negligent for failing to warn the funeral home employees of a dangerous condition prior to

reenergizing the system.3 Moreover, if Duquesne Light’s failure to warn appellee of a

potential hazard is the basis for its negligence claim, it must allege and prove the failure to

warn caused the harm it suffered, i.e., that had it been notified, appellee would have

inspected and remedied the defect prior to the company’s reenergizing the system.

Appellee’s pleadings contained no such allegation.4

       Both the Superior Court and the majority fail to clearly specify where they find

support in appellee’s pleadings for a cause of action against Duquesne Light for failing to

warn it of a potentially dangerous condition manifesting in its panel box. Presumably,

appellee’s “failure to warn” claim is found embedded within its catchall allegation that

Duquesne Light failed “to do those things which were necessary to preserve Hirsch’s

property and render said premises safe.” Amended Complaint, 5/28/10, at 4. Since

none of appellee’s allegations relate to Duquesne Light’s failure to warn, one must

conclude this catchall allegation constitutes the gravamen of a negligence claim and

sufficiently pleads the requisite elements of duty, breach, and causation. I know of no


3 In fact, the majority acknowledges as much. See Majority Slip Op., at 21 n.14 (“Hirsch
did not specifically focus its pleadings and submissions in the common pleas court on
warnings[.]”).

4 Appellee’s expert did opine that “[n]otification to the funeral home by Duquesne Light
would have resulted in a quick response from the funeral home employees[,]” noting the
utility had appellee’s contact information and appellee had an answering service for
after-hours calls. Engineering Report, 8/23/10, at 7. Why these statements were
included in an engineering report is unclear; moreover, power was restored at 3:00 a.m.,
and the expert makes no attempt to clarify when this “quick response” would have
occurred. In any event, the report is not part of the amended complaint, and the
statements therein were made in the context of Duquesne Light’s failure to contact
appellee to gain access so Duquesne Light could fulfill a duty to inspect, not a failure to
notify appellee of a potential hazard.



                              [J-78-2013] [MO: Saylor, J.] - 6
authority that would allow such a vague averment to serve as the factual predicate for

establishing three of the four elements required for a legitimate negligence action.5

       Accordingly, I dissent.




5 Surely, in order to present evidence on Duquesne Light’s failure to notify appellee of the
alleged danger and how appellee would have responded to such a warning, appellee
would need to amend its complaint to include factual averments pertaining to these
issues. See, e.g., Levin v. Van Horn, 194 A.2d 419, 422 (Pa. 1963) (finding general
allegation charging nursing home staff with “fail[ing] to give proper, timely and adequate
nursing care and attention” insufficient to allow evidence of a specific failure to notice
symptoms of over-medication). However, as the majority notes, “[appellee] has not
sought to amend the complaint although it has pursued a substituted theory of liability
resting on different factual premises.” Majority Slip Op., at 21 n.14. I find it troubling for
an appellate court to adopt an unpresented theory of liability and remand with implicit
instructions for the plaintiff to amend its complaint so it can pursue the theory the court
devised on its behalf.



                              [J-78-2013] [MO: Saylor, J.] - 7
