J-A23030-16

                                  2017 PA Super 33



TAMMY GREELY, ADMINISTRATRIX OF                      IN THE SUPERIOR COURT OF
THE ESTATE OF RALPH GREELY,                                PENNSYLVANIA
DECEASED

                            Appellant

                       v.

WEST PENN POWER COMPANY AND
WEST PENN POWER COMPANY D/B/A
ALLEGHENY POWER

                            Appellee                    No. 1910 WDA 2015


               Appeal from the Order entered November 9, 2015
            In the Court of Common Pleas of Westmoreland County
                       Civil Division at No: 8428 OF 2010


BEFORE: LAZARUS, STABILE, and STRASSBURGER,* JJ.

OPINION BY STABILE, J.:                              FILED FEBRUARY 13, 2017

        Tammy Greely (“Appellant”), Administratrix of the Estate of Ralph

Greely (“Greely”), appeals from the November 9, 2015 order entered in the

Court of Common Pleas of Westmoreland County, making final that court’s

January 15, 2015 grant of summary judgment in favor of Appellees West

Penn Power Company, d/b/a Allegheny Power, and West Penn Power

Company (collectively “West Penn”). Appellant contends the trial court erred

in its conclusion that West Penn did not owe a duty of care to Greely and in

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A23030-16


failing to view facts in a light most favorable to Appellant as the non-moving

party. We agree. Therefore, we reverse and remand.

      As explained by the trial court, this action arises out of the

electrocution death of Greely, a telecommunications cable installer and

employee of U.S. Utility Contractor Company, Inc. (“U.S. Utility”).       U.S.

Utility was a subcontractor for Verizon Pennsylvania, Inc. (“Verizon”), which

was hired by the Pennsylvania Turnpike Commission (“PTC”) for a

construction project involving State Route 43 in Uniontown, Pennsylvania.

Greely was in the process of installing a telecommunications cable across a

line of utility poles owned by West Penn when the cable bounced into, or

came close to, West Penn’s energized electrical conductor.         When this

occurred, electricity arced from the electrical line to the messenger cable,

killing Greely. Trial Court Opinion (“T.C.O.”), 1/15/15, at 2-3.

      Appellant initiated an action against West Penn and Verizon for

negligence, claiming inter alia that West Penn was negligent for failing to de-

energize the power lines at the work site, failing to insure that the cables

would be attached to the pole at sufficient distance from the power lines,

failing to provide adequate space on its poles for safe attachment of the

Verizon cable, failing to take protective measures, and failing to provide a

safe work place for Greely.       T.C.O., 1/15/15, at 4 (citing Appellant’s

Amended Complaint at ¶ 35). Following discovery, West Penn filed a motion

for summary judgment, contending the evidence failed to support the


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existence of any duty of care owed by West Penn to Greely. The trial court

agreed   and    granted   West   Penn’s   motion,   dismissing   with   prejudice

Appellant’s Amended Complaint against West Penn. T.C.O., 1/15/15, at 11.

On February 10, 2015, the trial court denied Appellant’s petition for

reconsideration.

     Verizon subsequently filed a motion for summary judgment. Verizon

and Appellant entered into a settlement agreement approved by the trial

court in its order dated November 9, 2015.          With all claims against all

parties resolved, Appellant filed this timely appeal challenging the trial

court’s grant of summary judgment in favor of West Penn. The trial court

did not order the filing of a Rule 1925(b) statement of errors complained of

on appeal. In compliance with Rule 1925(a), the trial court issued an order

on December 3, 2015, indicating that the reasons for its January 15,

February 10, and November 9, 2015 orders were detailed in its January 15,

2015 opinion.

     Appellant presents eight issues for this Court’s consideration:

     1. Where Pennsylvania law imposes a duty of care on suppliers
        of electricity to use the highest degree of care practicable to
        avoid injury to all individuals lawfully in proximity of its
        electrical wires including when a supplier has knowledge of
        the dangerous conditions therein, did the [t]rial [c]ourt err as
        a matter of law when it held that [] West Penn did not owe
        any duty to [Greely], a telecommunications worker lawfully in
        proximity of a known dangerous condition, West Penn’s
        electric wires stretching between two unusually distant and
        elevated telephone poles?




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J-A23030-16


     2. Where Pennsylvania law imposes a duty of care on suppliers
        of electricity to use the highest degree of care practicable to
        avoid injury to all individuals lawfully in proximity of its
        electrical wires including telecommunications workers, did the
        [t]rial [c]ourt err as a matter of law when it concluded []
        West Penn did not owe any duty to [Greely], a
        telecommunications worker[] lawfully in proximity of West
        Penn’s electrical wires?

     3. Where the Pennsylvania Superior Court in Densler v.
        Metropolitan Edison Co., [] 345 A.2d 758 (Pa. Super.
        1975), reaffirmed the duty of care of suppliers of electricity to
        use the highest degree of care practicable to avoid injury to
        all individuals lawfully in proximity of its electrical wires
        including telecommunications workers, did the [t]rial [c]ourt
        err as a matter of law when it distinguished Densler because
        [] West Penn and [Greely] had no contractual relationship
        even though [Greely], a telecommunications worker, was
        lawfully in proximity of West Penn’s wires?

     4. Where the Pennsylvania Superior Court in Densler v.
        Metropolitan Edison Co., [] 345 A.2d 758 (Pa Super.
        1975), reaffirmed the duty of care of suppliers of electricity to
        use the highest degree of care practicable to avoid injury to
        all individuals lawfully in proximity of its electrical wires
        including telecommunications workers, did the [t]rial [c]ourt
        err as a matter of law when it distinguished Densler because
        Appellant alleged [] West Penn’s negligence arose from a
        different breach of industry standards?

     5. Where Pennsylvania law imposes a duty of care upon a
        supplier of electricity to use the highest degree of care
        practicable to avoid injury to all individuals lawfully in
        proximity of its electrical wires, did the [t]rial [c]ourt err as a
        matter of law in examining whether a duty was owed under
        Althaus v. Cohen, [] 756 A.2d 1166 (Pa. 2000)?

     6. Where Pennsylvania law requires on a motion for summary
        judgment all facts to be viewed in a light most favorable to
        the non-moving party and the benefit of all factual inferences
        to be granted to the non-moving party, did the [t]rial [c]ourt
        err in applying Althaus v. Cohen, [] 756 A.2d 1166 (Pa.
        2000)[,] by accepting [] West Penn’s disputed factual
        contentions?

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J-A23030-16



       7. Where Pennsylvania law imposes a duty of care upon a
          supplier of electricity to use the highest degree of care
          practicable to avoid injury to all individuals lawfully in
          proximity of its electrical wires, did the [t]rial [c]ourt err as a
          matter of law in relying upon Indiana law which limits the
          duty of care owed by a supplier of electricity to utility
          employees to exercise reasonable care to avoid malfunction of
          equipment?

       8. Where Pennsylvania law requires on a motion for summary
          judgment all facts to be viewed in a light most favorable to
          the non-moving party and the benefit of all factual inferences
          to be granted to the non-moving party, did the [t]rial [c]ourt
          err as a matter of law in accepting [] West Penn’s disputed
          factual contentions and finding that, even if []West Penn
          owed [Greely] a duty of care [] West Penn did not breach that
          duty?

Appellant’s Brief at 4-6.1        Although Appellant asks us to consider eight

separate issues, those issues can be condensed into two claims of trial court

error: failure to recognize a duty of care owed by West Penn to Greely and

failure to view all facts in a light most favorable to Appellant as the non-

moving party.

       In Wright v. Eastman, 63 A.3d 281 (Pa. Super. 2013), this Court

explained:

       Our standard of review of a trial court order granting summary
       judgment is well-settled:

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1
   Appellant lists eight questions for our review. However, Appellant’s
argument is divided into five sections that do not correspond to the
statement of questions presented. We remind Appellant’s counsel that
Pa.R.A.P. 2119(a) directs that “[t]he argument shall be divided into as many
parts as there are questions to be argued . . . .”



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       A reviewing court may disturb the order of the trial court
       only where it is established that the court committed an
       error of law or abused its discretion. Capek v. Devito,
       [564 Pa. 267], 767 A.2d 1047, 1048, n. 1 (Pa. 2001). As
       with all questions of law, our review is plenary. Phillips v.
       A–Best Prods. Co., 542 Pa. 124, 665 A.2d 1167, 1170
       (1995).

       In evaluating the trial court’s decision to enter summary
       judgment, we focus on the legal standard articulated in the
       summary judgment rule. Pa.R.C.P. 1035.2. The rule
       states that where there is no genuine issue of material fact
       and the moving party is entitled to relief as a matter of
       law, summary judgment may be entered. Where the non-
       moving party bears the burden of proof on an issue, he
       may not merely rely on his pleadings or answers in order
       to survive summary judgment. “Failure of a non-moving
       party to adduce sufficient evidence on an issue essential to
       his case and on which it bears the burden of proof ...
       establishes the entitlement of the moving party to
       judgment as a matter of law.” Young v. PennDOT, 560
       Pa. 373, 744 A.2d 1276, 1277 (2000).         Lastly, we will
       view the record in the light most favorable to the non-
       moving party, and all doubts as to the existence of a
       genuine issue of material fact must be resolved against the
       moving party. Pennsylvania State Univ. v. County of
       Centre, 532 Pa. 142, 615 A.2d 303, 304 (1992).

     Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571,
     777 A.2d 418, 429 (2001) (citations modified). When “it is not
     inconceivable that a reasonable mind could reach the conclusion
     that the defendant breached its [duty],” a claimant may not be
     denied submission of that question to a jury. Cox v. Equitable
     Gas Co., 227 Pa. Super. 153, 324 A.2d 516, 518 (1974).
     Moreover:

       [T]he issue as to whether there are no genuine issues as
       to any material fact presents a question of law, and
       therefore, on that question our standard of review is de
       novo. This means we need not defer to the determinations
       made by the lower tribunals. To the extent that this Court
       must resolve a question of law, we shall review the grant
       of summary judgment in the context of the entire record.


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J-A23030-16


       Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152,
       1159 (2010) (citations omitted).

Id. at 284.

       Appellant argues that the trial court erred by failing to recognize a

duty of care owed by West Penn to Greely. Appellant asserts that the courts

of this Commonwealth have long recognized the high duty of care an

electrical supplier owes to anyone who may be lawfully within proximity to

its wires. Appellant’s Brief at 27-35 (quoting and citing, inter alia, Bailey v.

Pennsylvania Electric Co., 598 A.2d 41 (Pa. Super. 1991), appeal denied,

627 A.2d 177 (Pa. 1993); Stark v. Lehigh Foundries, Inc., 130 A.2d 123

(Pa. 1957); MacDougall v. Pennsylvania Light & Power Co., 166 A. 589,

591 (Pa. 1933); Fitzgerald v. Edison Electric Illuminating Co., 50 A.

161,   161-62      (Pa.   1901).).       Appellant   also   relies   on   Densler   v.

Metropolitan Edison Co., 345 A.3d 758, 762 (Pa. Super. 1975), in which

this Court expressly determined that “[t]he class of persons ‘lawfully in

proximity’ to the wires . . . includes maintenance employees who work on or

around the utility poles.” Appellant’s Brief at 34.

       Rather than accept the recognized high duty of care owed by electric

suppliers, the trial court embarked upon an analysis under Althaus ex rel.

Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000),2 to determine whether West

____________________________________________


2
  The five-part test under Althaus considers the relationship between the
parties; the social utility of the actor’s conduct; the nature of the risk
(Footnote Continued Next Page)


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J-A23030-16


Penn owed a duty of care to Appellant. The trial court determined that there

were no genuine issues of material fact and that Appellant “cannot, as a

matter of law, establish a duty of care on the part of West Penn under the

facts of this case.” T.C.O., 1/15/15, at 5.          The trial court agreed with West

Penn that the extent of the duty owed by an electrical supplier “is dictated

by the facts of each individual case” and that Densler, which involved

injuries   to   an     employee      of   the     power   company’s   licensee,   was

distinguishable from the instant case. Id. However, as our Supreme Court

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

106 A.3d 27 (Pa. 2014):

      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.

Id. at 40-41.

      Alderwoods came to our Court on appeal from the trial court’s grant

of summary judgment.            After conducting an Althaus analysis, the panel

determined the appellant offered evidence that established a duty on the

                       _______________________
(Footnote Continued)

imposed and foreseeability of the harm incurred; consequences of imposing
a duty upon the actor; and the overall public interest in the proposed
solution. Althaus, 756 A.2d at 1169.



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J-A23030-16


part of the utility, a breach of that duty, and resultant damages. Therefore,

we reversed the grant of summary judgment in favor of Duquesne Light and

against the owner of a funeral home destroyed by a fire after utility workers

reconnected external wires to the building following a power outage.

Alderwoods (Pennsylvania), Inc. v. Duquesne Light Co., 52 A.3d 347

(Pa. Super. 2012). Our Supreme Court affirmed, holding this Court did not

err in finding that a duty existed on the part of the utility company, but

noting that the Althaus assessment was unnecessary.               Alderwoods, 106

A.3d at 42-43.

       We conclude that the trial court’s Althaus assessment was likewise

unnecessary in the case before us.             As noted above, an electric supplier’s

high duty of care to persons lawfully in proximity of the electrical lines has

been recognized in this Commonwealth for well over a century. 3                 More

recently, this Court explained:

       Our courts have long recognized that the standard of care
       imposed upon a supplier of electric power, particularly when that
       power is supplied at high voltage, is among the highest
       recognized in the law of negligence, Densler v. Metropolitan
       Edison Company, 235 Pa. Super. 585, 345 A.2d 758 (1975);
       and that, while a supplier of electricity must exercise the highest
       degree of care, it is not an insurer against injury. Skoda v.
       West Penn Power Company, 411 Pa. 323, 191 A.2d 822
____________________________________________


3
  See, e.g., Bailey, supra; Stark, supra; Ashby v. Philadelphia Electric
Co., 195 A. 887, 889 (Pa. 1938); MacDougall, supra; Fitzgerald, supra.
In light of the fact the courts of this Commonwealth have recognized the
existence of a duty, we also find the trial court’s examination of, and reliance
on, Indiana law unnecessary and unwarranted.



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J-A23030-16


     (1963); Kintner v. Claverack Rural Electric Co-operative,
     Inc., 329 Pa. Super. 417, 478 A.2d 858 (1984). In Karam v.
     Pennsylvania Power & Light Company, 205 Pa. Super. 318,
     322, 208 A.2d 876, 878 (1965), this Court unequivocally stated
     that “the salutary and well settled rule in this Commonwealth is
     that one using a dangerous agency or instrumentality is bound
     to exercise care commensurate with the danger. One
     maintaining a high voltage electric wire line is required to
     exercise the highest degree of care practicable.” See also
     Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123
     (1957); Bosley v. Central Vermont Public Service
     Corporation, 127 Vt. 581, 255 A.2d 671 (1969).

Schriner v. Pennsylvania Power & Light Co., 501 A.2d 1128, 1131 (Pa.

Super. 1985). Further:

     A supplier of electric current is bound not only to know the
     extent of the danger, but to use the very highest degree of care
     practical to avoid injury to everyone who may be lawfully in
     proximity to its wires, and liable to come accidentally or
     otherwise in contact with them. That a transmission line is a
     dangerous instrumentality is recognized everywhere. No matter
     where located it is a source of grave peril and the law requires
     that the possessor of such an instrumentality exercise a high
     degree of care.

Colloi v. Philadelphia Elec. Co., 481 A.2d 616, 620 (Pa. Super. 1984)

(quoting Densler, 345 A.2d at 761) (internal citations and quotation marks

omitted). “The ‘very highest degree of care’ incumbent upon a supplier of

electric power includes, in appropriate circumstances, the duty to warn an

independent contractor of non-obvious dangers inherent in working in close

proximity with high-tension wires.” Id. (citations omitted).

     The conclusion that West Penn owed a duty to Greely is bolstered by

the fact that West Penn was aware that Verizon would be attaching its lines

to West Penn’s poles in an area where the poles were approximately 400

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J-A23030-16


feet apart on uneven terrain so that the poles were at different elevations.

According to West Penn corporate designee, David Hawk, a normal span

between poles would be 125 to 150 feet.          Deposition of David Hawk,

7/12/12, at 33. He explained:

      If we get into 200 or 300 feet, there’s an issue of sag on
      everybody’s cables, on our cables, so when you attach, you
      know, that 40 inch or 42 inch clearance, or in this case it’s over
      five feet of clearance at the pole, where you’re safe. When you
      get out to that 300, 350 foot sag, it’s not there.

Id.   Further, Greely’s co-worker, Barry Ingram, explained that due to the

distance between the poles and the difference in elevation, it was “very hard

to judge as in where the strand really is” and “you could really mess up by

looking at it from the ground to see exactly how close you were to the

power.” Deposition of Barry Ingram, 1/24/14, at 47, 72.

      In addition, representatives from West Penn and Verizon attended

utility coordination meetings, discussed Verizon’s plans to attach its lines to

West Penn’s poles, and walked the area together.         Deposition of Daniel

Wheatcroft, 9/30/13, at 15-21; Deposition of James (“Phil”) Bartolotti,

8/1/13, at 41-42    Although the agreement between those parties required

that Verizon complete a permit application before work was done, the permit

in this instance was not submitted before the work was done and, in fact,

was not submitted until some time after Greely’s death.            Wheatcroft

Deposition at 22-24. However, the fact the permit was not submitted before




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J-A23030-16


the work was done was not unusual. Id. at 23-24; Bartolotti Deposition at

130-31.

       Also supporting Appellant’s contention that West Penn owed a duty of

care is Appellant’s expert report. The August 22, 2014 report, authored by

Gregory L. Booth, P.E. (“Booth Report”), characterized the span where the

incident occurred as “peculiarly dangerous” because of the extreme distance

and substantial difference in elevation between West Penn’s poles.            Booth

Report, 8/22/14, at 8. In his report, Booth examined the roles played by

West Penn, Verizon, and U.S. Utility in the events leading to Greely’s death.

With respect to West Penn, Booth concluded:

       West Penn neglected to abide by or enforce the provisions of the
       Agreement for joint use poles between West Penn and Verizon
       including, but not limited to, enforcing the application and
       permitting provisions. West Penn failed to meet the minimum
       standards of the [National Electrical Safety Code (“NESC”)]
       including assuring that Verizon’s facilities were being installed on
       the West Penn poles in compliance with the NESC. West Penn
       failed to stop the Verizon contractor work when it was apparent
       there was a clearance hazard and the likelihood of severe
       electrical injury or death.[4] If Verizon and West Penn had

____________________________________________


4
  James Crace, West Penn’s coordinator of lines, testified that he was at the
site of the incident and observed the U.S. Utility employees, including
Greely, attempting to connect the telecommunications cables. He saw that
Verizon’s messenger cable was too close to one of the conductors and that it
was bouncing to within six inches of West Penn’s line. Greely was in the
bucket truck, approximately 100 feet away. Crace indicated that he spoke
with a U.S. Utility worker and told him the work should stop. Crace
acknowledged that it was windy and he doubted Greely could hear him voice
concerns to the U.S. Utility worker. Crace stated that the worker with whom
he was speaking indicated that Greely “knows about that.” As Crace started
(Footnote Continued Next Page)


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J-A23030-16


      followed the provisions of their Agreement and the NESC, Mr.
      Greely would not have been electrocuted. The messenger and
      cable on the day of the incident would have been much more
      than 36 inches away from the energized power and, to a
      reasonable degree of engineering certainty, would have [been]
      over 8 feet away on that day. The violations, actions and
      inactions of Verizon and West Penn constitute negligence, a
      failure to design the joint use line properly and were a proximate
      cause of Mr. Greely’s death.

Id. at 23.

      In Wright, supra, this Court considered the role of an expert’s report

in the context of a summary judgment motion.            The Court looked to

Summers v. Certainteed Corp., 997 A.2d 1152 (Pa. 2010), in which our

Supreme Court explained the standard of review regarding consideration of

expert testimony in deciding a motion for summary judgment as follows:

      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. In re Estate of
      Hunter, 416 Pa. 127, 205 A.2d 97, 102 (1964) (“The credibility
      of witnesses, professional or lay, and the weight to be given to
      their testimony is strictly within the proper province of the trier
      of fact.”).    Accordingly, trial judges are required “to pay
      deference to the conclusions of those who are in the best
      position to evaluate the merits of scientific theory and technique
      when ruling on the admissibility of scientific proof.” Grady v.
      Frito–Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1045 (2003).

      At the summary judgment stage, a trial court is required to take
      all facts of record, and all reasonable inferences therefrom, in a
      light most favorable to the non-moving party. Toy v. Metro.
                       _______________________
(Footnote Continued)

to turn, he heard and then saw the arc. Greely then slumped in the bucket.
Deposition of James Crace, 2/12/13, at 7-21.



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J-A23030-16


      Life Ins. Co., [593 Pa. 20], 928 A.2d 186, 195 (Pa. 2007). This
      clearly includes all expert testimony and reports submitted by
      the nonmoving party or provided during discovery; and, so long
      as the conclusions contained within those reports are sufficiently
      supported, the trial judge cannot sua sponte assail them in an
      order and opinion granting summary judgment. Contrarily, the
      trial judge must defer to those conclusions, and should those
      conclusions be disputed, resolution of that dispute must be left
      to the trier of fact.

Wright, 63 A.3d at 292 (quoting Summers, 997 A.2d at 1161) (some

citations omitted).

      Here, the trial court’s opinion does not reflect any consideration of the

Booth Report.   Instead, in the course of its Althaus assessment, the trial

court concluded that “it was [Greely’s] own conduct which caused the

messenger strand to bounce in close proximity to the electrical line.” T.C.O.,

1/15/15, at 6. Not only is this an illustration of the trial court’s failure to

consider Appellant’s expert report, it is also a reflection of the trial court’s

failure to view the evidence in a light most favorable to Appellant as the

non-moving party.

      Based on our review of case law and our review of the record in the

light most favorable to Appellant, we conclude the trial court erred in its

determination that West Penn did not owe a duty of care to Greely and erred

by failing to view the evidence in a light most favorable to Appellant.

Therefore, we reverse the trial court’s order granting summary judgment in

favor of West Penn.

      Order reversed. Case remanded. Jurisdiction relinquished.


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J-A23030-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




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