                                 [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


MADAME JUSTICE TODD                               DECIDED: DECEMBER 15, 2014
      While the majority has presented a thoughtful and reasonable legal analysis, I

must respectfully dissent because the majority’s affirmance of the Superior Court’s

decision is based on an issue outside of the scope of our grant of review.

      The majority finds that Appellant — Duquesne Light — has a duty to take

reasonable measures to avoid harm to one of its customers prior to restoring power,

when it has actual or constructive knowledge of a danger created by an overvoltage

triggered by downed power lines, and that this duty could entail warning the customer of

the dangerous situation prior to restoring power to the customer’s premises.              I

acknowledge that the Superior Court found Duquesne Light to have such a duty to warn

under the particular circumstances of this case — in addition to a duty to inspect the

premises of Appellee (“Hirsch Funeral Home”) — prior to reconnecting power.
      However, I deem it inappropriate to opine on the duty to warn at present, as we

have not had the benefit of briefing from the parties with respect thereto — a situation

which, in my view, is the probable result of the manner in which our Court structured the

order granting allowance of appeal. Our Court granted allowance of appeal to address

three specific questions, as stated by Duquesne Light:

             1. Whether 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?

             2. Whether the Superior Court overlooked the deleterious
             effects of its ruling upon public health and safety, in that by
             requiring utilities to inspect customers' premises before
             restoring power, the new duty created by the Superior
             Court will delay utilities' efforts to restore power after storms
             and other outages?

             3. Whether the Superior Court overlooked undisputed facts
             of record that undermine the rationale of its decision?
Alderwoods (Pennsylvania), Inc. v. Duquesne Light Co., 66 A.3d 763-64 (Pa. 2013)

(order) (emphasis added).

      The plain import of this order granting allowance of appeal was to inform the

parties that our Court would be considering only the portion of the Superior Court

decision in which it found Duquesne Light to have a duty to inspect its electrical

equipment inside of the funeral home, prior to reconnecting power, because that

equipment sustained potential damage due to the downed power lines. Thus, our order

did not indicate that we would consider the secondary aspect of the Superior Court’s

holding that Duquesne Light had, in the alternative, a duty to warn Hirsch of the danger

presented by its reconnection of electrical service to Hirsch’s damaged electrical

system. Consequently, I do not fault Duquesne Light for what the majority characterizes




                             [J-78-2013] [MO: Saylor, J.] - 2
as a failure to adequately acknowledge this second basis of the Superior Court holding,

and to address it in its brief. See Majority Opinion at 1 (“It is material to bear in mind

from the outset, however, that [Duquesne Light’s] portrayal of the issues fails to

adequately address the Superior Court’s formulation of electric-company duties, in the

alternative, to . . . at a minimum, to warn a customer, under the facts alleged.”

(emphasis original)); id. at 19 (observing that Duquesne Light “fails to deal squarely

with” the issue of its duty to warn); id. at 25 (“Since Duquesne Light has failed to

adequately confront the common law duties invoked by Hirs[c]h or the warnings

dynamic tempering the Superior Court’s ruling, we have little basis to assess whether

the electric company might be accorded immunity from such duties, or whether a

requirement to warn might be unreasonable.”).          Instead, I view such “failures” as

reasonably attributable to the narrow parameters of our order granting allowance of

appeal which did not encompass a duty to warn.1

       Nevertheless, I consider the question of whether Duquesne Light had a duty to

warn under these circumstances to be an important one and worthy of our review. For

that reason, I would permit additional briefing by the parties on the failure to warn issue.

This course of action would be consistent with our Court’s long-standing adherence to

the fundamental principle that every party to a matter must be given the full and fair

opportunity to brief the issues that a court will ultimately be addressing. See, e.g.,

Cranberry Twp. v. Builders Ass'n of Metropolitan Pittsburgh, 621 A.2d 563, 565 (Pa.

1993) (holding that it was error for the Commonwealth Court to deny reargument and

1
  In its responsive brief, Hirsch referred to the Superior Court’s finding of a duty to warn,
and Duquesne Light acknowledged this in its reply brief. However, given the limited
scope of our order granting allocatur, which did not obligate the parties to speak to this
question, such cursory and superficial treatment does not, in my view, constitute the
meaningful developed advocacy normally required by our Court when considering an
issue on which we have expressly granted review.



                              [J-78-2013] [MO: Saylor, J.] - 3
rebriefing where the parties “never had an opportunity to address the matters upon

which the court based its decision”).2

       Accordingly, I must dissent.




2
    Although the majority suggests its course of action is consistent with the well-
established legal principle that an appellate court may affirm a lower court ruling on any
grounds, See Majority Opinion at 22 n.15, I note that this jurisprudential maxim applies
only when the specific issue on which we are affirming is properly before our Court. As
a general matter, our Court does not ordinarily opine to issues which are outside our
grant of allowance of appeal, and not fairly subsumed therein. See, e.g., Six L’s
Packing Co. v. W.C.A.B., 44 A.3d 1148, 1151 n.3 (Pa. 2012) (refusing to consider
aspect of ruling of WCJ which was beyond the scope of the grant of allocatur);
Commonwealth v. Watts, 23 A.3d 980, 982 n.2 (Pa. 2011) (refusing to consider
arguments relating to alleged errors in a prior decision of our Court, as they were not
matters on which we granted allowance of appeal), Malt Beverages Dist. Ass’n. v.
Pa.L.C.B., 974 A.2d 1144, 1152 n.14 (Pa. 2009) (refusing to consider arguments
relating to factual considerations and the application of administrative agency rules
which were outside of the scope of grant of allowance of appeal). We may do so, of
course, where, as here, the issue is of substantial societal importance and there are
vital interests of public safety at stake, but, in such circumstances, I deem it appropriate
to direct additional briefing in order to permit the parties to be heard on the issue. The
question of whether Duquesne Light had a duty to warn the owners of the funeral home
is, in my view, separate from the question of whether they had a duty to physically
inspect the electrical equipment therein. Indeed, the question of whether Duquesne
Light had a duty to warn under these circumstances was not specifically argued in the
lower courts, and the prospect of the existence of such a duty was first broached in a
brief paragraph in the Superior Court’s opinion. Inasmuch as the competing views of
the parties on this question have not been fully explored, either in the proceedings
below or at present, I deem it beneficial, and in furtherance of the interests of
fundamental fairness, to allow the parties the opportunity to provide a fuller, more
developed exploration of this issue before our Court through additional briefing.



                             [J-78-2013] [MO: Saylor, J.] - 4
