### [J-128-2016] IN THESUPREME COURT OF 

### PENNSYLVANIA MIDDLE DISTRICT SAYLOR, C.J., BAER,TODD, DONOHUE, DOUGHERTY,WECHT, MUNDY,

### JJ.
METROPOLITAN EDISON 

### COMPANY, : No. 58 MAP 2016

v. 

### CITY OF READING,

### Appellant

Appellee : 

### Appeal fromthe Orderof the

: 

### Commonwealth Courtdated October

: 15, 2015 at No. 2188 CD2014

: Reversingthe

### Judgment Entered in the

: Berks 

### CountyCourtof 

### Common Pleas,

: Civil Division, 

### dated November 17,

: 2014, exited 

### November 19, 2014, at No.

: 

### 10-21418

: 

### ARGUED: December 7, 2016
OPINION


### JUSTICE DONOHUE DECIDED: 

### June20, 2017 In this appeal, we are required to 

### construe the 

### language of the utility service facilities exception ("Utility Exception") to 

### governmental immunity contained in the Political 

### Subdivision Tort ClaimsAct ("Tort ClaimsAct"), 42 Pa.C.S. § 8542(b)(5). The Commonwealth Court concluded that where a 

### dangerous condition of the

### facilities of a utility system is created by the negligent action or inaction of a local 

### agency or its 

### employees, the Utility Exception does not apply. 

### Because the Commonwealth Court misconstrued boththe Utility Exception andthe 

### gravamen of the lawsuit in 

### question,we reverse. Metropolitan Edison 

### Company ("Met-Ed") 

### provides electricity serviceto 

### residents of the City of Reading ("City") and 

### surrounding areas within Berks County. As part of Met

### -Ed's electric utilitysystem, electrical wires are buried 

### underground, alongwith 

### otherprivate and municipal utilities, within the City's 

### right-of-way.' N.T., 

### 5/19/14, at 17. The wires are 

### encased in 

### sections of 

### terra cotta piping which are 

### cemented together, or 

### Schedule 40 PVC conduit, depending on the age of the 

### installation. Id. at 16-18. The 

### wires and

### their protective encasement are known as 

### "conduit banks." Id. at 16. In 

### July 2009, 

### workers from the City's 

### sewer department excavated a site in the 

### vicinity ofthe 200 block of North 5th 

### Street togain 

### access tothe City's sewer main. As a resultof the

### excavation, a portion of Met-Ed's

### adjacent conduit bankwas exposed. The City's laborers noticed that a section of 

### concrete had fallen off Met

### -Ed's conduit bank and into the 

### excavation trench. Id. at 142-43. Met-Ed

### was notified on 

### July 8, 2009 that this 

### incident occurred. On the same day, Met-Ed 

### retained Homan Excavating, Inc. ("Homan") to 

### stabilize and repair the conduit bank.2 Homan observed that the "dirt conditions" in the hole 

### were "extremely poor", 

### meaningthat "the dirt was loose and not 

### verytight, unstable." Id. at28. Homan did not

### observe any shoring in the hole, such as 

### hydraulicjacks, plywood, or metal plates, to

### stabilize thesides ofthe 

### excavation hole as itwas beingdug. Id. at 24, 30-31. Homan patched the bottom andthe exposed sideof the 

### conduit bankwith new 

### concrete and 

### completed its repairs on 

### July 10, 2009. Id. at 195. At this point, the 

### conduit bank was secure because it was resting on, and 

### supported by, earth. Id. at51, 92, 95, 195. The City resumed its 

### excavationwork. On July 15, 2009, Homan received a call from the City raising 

### some concerns about erosion. Homan returned to the site and

1 From the 

### shallowest to the 

### deepest depth, 

### underground utilities are buried in the 

### following order: (1) natural gas; (2) 

### electric and 

### data utilities, such as 

### telephone and cable; (3)

### watersupply mains; (4) storm 

### sewers; (5)

### sewer mains and lateral lines. N.T., 5/19/14, at 18-19. 

### The utilities are not 

### stacked directly on top of each 

### other in 

### vertical alignment, but are instead staggered horizontally. Id. at 19-20.

2 Met-Ed 

### does not 

### assert a claim 

### againstthe City for the collapse ofthe first section of 

### concrete. Id. at 211.



### [J-128-2016] - 2found that the excavation hole was 

### deeper and the 

### walls were falling in, but Met

### -Ed's conduit bankwas still intact. Id. at 38-39, 44, 100-03. Homan noted that 

### therewas no shoring in place to 

### prevent thewalls from 

### collapsing and 

### displacing the dirt underneath the 

### conduit bank. Id. at42. Homan informed the 

### City's officialsthat theexcavation hole had to be 

### backfilled and 

### stabilized as soon as 

### possible to 

### provide sufficient support for theconduit bank. Id. The City 

### continued excavating, further widening and 

### deepening the hole. 

### The City never installed shoring to 

### support the 

### walls and 

### took no 

### measures to 

### prevent rain 

### water from 

### entering. Id. at 212, 219. Over the weekend, the area experienced heavy rainfall, causingthe eartharound and 

### underneath theconduit bankto washaway. Id. at 211. On 

### July 20, 2009, Met-Ed

### was notified by the City

### thatthe 

### conduit bank had 

### fully collapsed and was laying at the bottom of the excavation hole. Id. at 44-45, 179. Homan 

### conducted an 

### extensive repair of 

### approximatelyfiftyfeet of 

### conduit bank, which involved the removal of the collapsed portions and installation of a new a

### conduit bank. Id. at49, 54. Met-Ed filed a single-count complaint, alleging negligence 

### against the City and seeking $53,000 in damages.3 Met-Ed averred in 

### relevant part: 10. The [City's] 

### excavation activity created a 

### dangerous condition derivedfrom, originating with, or having its

### sources in the [City's] realty. 11. The [City's] 

### excavation activity created, 

### amounted to or 

### otherwise constituted a 

### defect of the sewer line, street, 

### and/or real estate controlled by [the City].

* * *

3 

### The parties stipulated that after July 20, 2009, Met-Ed 

### incurred $53,000 in 

### expenses to 

### investigatethe

### damage and make repairs to its 

### underground conduit bankatthe site.



### [J-128-2016] - 315. [T]he excavation activity 

### created a 

### dangerous condition by 

### removing the dirt, stone, rock, earth and 

### other materialwhichwassupporting the Met-Ed [conduit] banks.

18. The City

... by and 

### through its agents, employees or 

### servants, appreciated and 

### understood the 

### dangerous condition caused by the 

### excavation activitywhich createdthe hole. 19. The City

... then 

### orally promised to 

### backfill the excavation 

### work immediately to relieve 

### pressure from the [conduit] bank, and 

### restore the 

### proper support to the Met-Ed 

### facilities, and/or otherwise abate this dangerous condition caused bythe [City]. 20. Despite the oral 

### promises and 

### representations made bythe City

... the 

### excavation workwas not 

### backfilled or 

### otherwise repaired in a 

### timely manner. To the contrary, the excavation 

### work remained untouched for nearly two weeks 

### thereby continuing the dangerous condition of the utility lines. 21. Likewise, the City

... did not 

### timely restore proper physical support throughthe 

### placement ofdirt, stone, rock, earth or 

### other material to the Med-Ed facilities, and/or abate the 

### dangerouscondition.

* * * 30. [The City] had a 

### duty to perform its 

### excavation activities in a 

### manner that would not create a 

### dangerous condition by 

### removing the dirt, stone, rock, earth and 

### other materialwhichwassupporting the [conduit] bank.

* * * 36. [The City] 

### breached its 

### duty to [Met-Ed] by failing to perform its 

### excavation activities in a 

### manner that would not 

### create a

### dangerous condition by 

### removing thedirt stone, rock, earth and 

### other material which was 

### supporting the [conduit] bank.

* * *



### [J-128-2016] - 442. [The City's] excavation activity occurred in a public street or 

### right-of-way pursuant to an 

### agreement, contract or 

### other form of 

### authority or right which had not expired or been 

### otherwise terminated. Amended Complaint, 12/17/2010, VII 10-11, 15, 18-21, 30, 36,42. At the 

### conclusion of 

### discovery, the City moved for summary judgment, contending that it was immune from liability under the 

### Tort Claims Act, which 

### provides that "no local 

### agency shall be liable 

### for any 

### damages on 

### account of any injury to a person or 

### property." 42 Pa.C.S. § 8541. In response, Met-Ed 

### argued that it set forth a claim for 

### recovery under the Utility Exception in section 8542(b)(5) of the 

### Tort Claims Act, which provides: (b) 

### Acts 

### which may 

### impose 

### liability.--The following acts by a local 

### agency orany of its 

### employees may 

### result in the imposition of liability on a local

### agency: (5) 

### Utilityservice 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 orcould 

### reasonably be 

### charged with notice under the 

### circumstance of the 

### dangerous condition at a

### sufficient time priorto the eventto have taken 

### measures to 

### protect against the dangerous condition. 42 Pa.C.S. § 

### 8542(b)(5). Based upon the 

### evidenceof record and theabove

### -referenced statutory requirements, the trial 

### court concluded that the record raised 

### questions of 

### fact concerning 

### whether the City was 

### immune from suit, and 

### denied the City's 

### summary judgment motion. Following a non-jury trial, the trial court entered a

### verdict for Met-Ed. In 

### support of its 

### decision, thetrial 

### court relied on Miller v. Pa. Dep't of

### Transp., 690 A.2d 818 (Pa. 

### [J-128-2016] - 5

### Commw. 1997), which held that a 

### dangerous condition resulting from negligent excavation activities that caused injuries could serve as the basis for application ofthe Utility Exception. Trial CourtOpinion, 1/20/2015, at 5. 

### Thetrial court found 

### thatthe City breached its 

### duty to Met-Ed by 

### performing its 

### excavation activities in a 

### manner that created a 

### dangerous condition by 

### removing the dirt, stone, rock and 

### other material without providing proper support or 

### shoring. Id. at 6. 

### The trial court 

### further foundthat the City had 

### sufficient advance notice of this 

### dangerous condition to 

### permit it to take 

### timely action to install shoring or 

### otherwise stabilize the dirt, rocks and soil located underneath Met

### -Ed's conduit bank prior to its 

### collapse, and 

### that the City had 

### breached its 

### duty byfailing to 

### takethesteps necessaryto 

### protectagainst the dangerous condition ofthe

### facilities, ofwhich it had notice, prior tothe 

### collapseof Met-Ed's 

### conduit bank. Id. The City 

### appealed to the 

### Commonwealth Court, challenging the trial 

### court's conclusion thatthe Utility Exception applied. In a 

### published opinion,theCommonwealth Court reversed, agreeing with the City that it was immune from liability. Metropolitan Edison Co. v. City of Reading, 125 A.3d 499, 503 (Pa. 

### Commw. 2015). The Commonwealth Court concluded that the 

### dangerous condition that resulted in Met-Ed's damages did not 

### originate from the 

### City's sewer system facilities. Id. Instead, the 

### intermediate appellate court concluded thatthe

### dangerous condition originatedfrom the City's 

### negligent excavation ofthe material that was 

### supporting the 

### conduit bank. Id. In this respect, the 

### Commonwealth Court found that the case was 

### analogous to Metro. Edison Co. v. Reading 

### AreaWater Auth., 937A.2d 1173(Pa. Commw. 

### 2007) ("Reading Water Authority"), where local 

### waterauthority employeesstruck an 

### underground electric

[J-128-2016] - 6line with a boring machine. The 

### Commonwealth Court explained its 

### reliance on Reading 

### WaterAuthority, as

### follows: Here, the trial 

### court noted 

### that the 

### dangerous condition was `the 

### unstable condition[] of the dirt and soil located underneath Met

### -Ed's [conduit] bank.' The dangerous condition, however, did not 

### originate from [the City's] 

### facilities. Rather, the 

### dangerous condition derivedfrom the 

### conduct of [the City's] 

### employees during the excavation. Specifically, [the City's] 

### employees removed thesoil beneath the [conduit] bank, did not use 

### support orshoring to 

### stabilize the [conduit] bank, and did not 

### promptly backfill the excavation hole. In this respect, the instant matter is 

### analogous to 

### [Reading

### WaterAuthority],whereinthe

### conduct of the 

### water authority's employees created the 

### dangerous condition. Metro Edison, 125 A.3d at 503. In the 

### Commonwealth Court'sview, if a local

### agency or its 

### employees create a 

### dangerous condition of a utility service facility, the Utility Exception does not apply. Id. We granted allocatur to 

### considerthe

### following question presented by Met-Ed: Did the 

### Commonwealth Court err in holding 

### thatthe City of Reading was 

### immune from 

### liability for property damage caused by [the City's] negligent 

### conduct despite the Utility Service Facilities 

### exception to 

### governmental immunity contained within the Tort Claims Act, 42 Pa.C.S. § 

### 8542(b)(5)? Metro. Edison Co. v. Cityof Reading, 138A.3d 608 (Pa. 2016) (percuriam).4 Met-Ed 

### asserts that the Commonwealth Court erred in 

### concluding that the Utility Exception did notapply. It

### submits that a local 

### agency such astheCity is not 

### entitled to 

### immunitywherethere is a

### dangerouscondition ofthe 

### facility and located within its utility

4 

### Whetherthe City is 

### immune undertheTort Claims Act is a pure 

### question of law. Our standard of review is de novo, and our scope of review is plenary. Christy v. 

### Cranberry VolunteerAmbulanceCorps, Inc., 856A.2d 43, 46 (Pa. 2004). This is alsoour 

### standard and 

### scope of review for 

### statutory interpretation. Bowling v. 

### Office of Open Records, 75 A.3d 453, 466 (Pa. 2013)



### [J-128-2016] - 7

### right-of-way, if the plaintiff shows 

### that the 

### dangerous condition created a 

### reasonably foreseeable riskand 

### thatthe 

### agency had notice of the 

### dangerous condition. Met-Ed's Brief at 20. Met-Ed argues that the 

### evidence introduced at trial 

### established that the loose and unstable soil and 

### dirt in the 

### excavation hole 

### "constituted a 

### 'dangerous condition' of [the City's] sanitary sewer utility service 

### facilities." Id. Met-Ed 

### arguesthat this "dangerous condition' derived from, originated or had as its 

### source the physical condition, i.e., the loose and 

### unstable soil, rocks, etc., of [the City's] 

### sanitary sewer utility service 

### facility in the form of the strip of land located within the sanitary 

### sewer's right of way." Id. Met-Ed 

### contends that the City was 

### negligent in 

### failing to take 

### appropriate steps to 

### ensure adequate soil 

### support existed for Met

### -Ed's conduit bank and 

### allowing the dangerous condition to exist. Id. at 21. Met-Ed 

### asserts that the evidence established that the City had actual notice of the 

### dangerous condition, but failed "to 

### take any active or 

### prophylactic measures whatsoever to 

### protect against the dangerous condition, such as installing shoring devices to 

### prevent erosion of the unstable soil 

### supporting Met

### -Ed'sconduit bank." Id. Met-Ed 

### further contends that the 

### Commonwealth Court erred in 

### finding that the Utility Exception does not apply because the City's 

### employees created the 

### dangerous condition. Met-Ed 

### submits that the Commonwealth Court's conclusion conflicts with its 

### previous holdings in Miller and DeTurk v. South Lebanon 

### Township, 542 A.2d 213 (Pa. 

### Commw. 1988), which 

### establish that a local

### agency's affirmative conduct can 

### create the 

### dangerous condition of its 

### facilities necessary to bring the local 

### agency's negligent conduct within the Utility Exception. Met-Ed's Brief at 27. Met-Ed 

### argues that the Commonwealth Court's reliance on Reading 

### Water Authority was misplaced because the proximate cause of the 

### damages in 

### that casewas not a

### defect in the utility 

### service facility orthe strip of land 

### containedwithin the

### waterauthority's right-of-way. Id. at40.



### [J-128-2016] - 8Lastly, Met-Ed 

### contends that the 

### Commonwealth Court's decision renders illusory multiple exceptions to 

### governmental immunity because any time a 

### court can 

### trace the 

### creation of a 

### dangerous condition to a local 

### agency's negligent act or 

### omission, the local 

### agencywill be 

### immunefrom liability. Id. at 44. Met-Ed 

### arguesthat nearly every aspect of the 

### existence of a utility service 

### facility (or of a local 

### agency's street or 

### sidewalk) can 

### ultimately be 

### traced back to 

### some form of 

### negligent action or 

### omission of the local 

### agency or its 

### employees. Id. Under the Commonwealth 

### Court's decision, no 

### liabilitywill 

### ever attachfor anydangerous conditions whose existence can be

### traced backto 

### thoseactions or

### omission. Id. The City argues, 

### conversely, that the 

### Commonwealth Court properly construed Met

### -Ed's negligence claim as 

### originating or

### derivingfrom the City's 

### negligent excavation activity; not from the loose and unstable soil and 

### dirt in the excavation hole. City's Brief at 10. The City 

### reasonsthat its 

### negligent excavation activitywas the root cause ofthe collapse because, 

### without the City's negligence, the 

### conduit bank would have never been 

### exposed and the lack of 

### support underneath the 

### conduit bankwould never have become relevant. Id. 

### The City 

### contends thatthe 

### Commonwealth Court's decision was consistent with Reading 

### Water Authority, which held that for the Utility Exception to apply, the 

### dangerouscondition alleged must havederived or

### originated from, or had as its 

### sourcethe local

### agency's realty. Id. at 11. The City next contends, tothe extent 

### thatthe 

### unstable soil in the excavation hole caused the 

### conduit bank to 

### collapse, there was no 

### evidence to 

### establish that the City was responsible for putting the allegedly unstable fill beneath the 

### conduit bank or that the City negligently chose to usethewrong fill. Id. at 13. The City

### assertsthat it

### should not be held 

### responsible for the loose and 

### unstable soil and dirt in the 

### excavation hole 

### without evidence that it

### wasthe one responsible for its 

### placementthere. Id. at 13. The



### [J-128-2016] - 9City claims 

### that under Met

### -Ed's logic, 

### regardless ofwhat entity puts the 

### unstable fill in the 

### excavation area, it 

### becomes the City's fill 

### because it is located in the City's 

### right-ofway. Id. The issues presented here require us to 

### apply principles of 

### statutory interpretationto 

### "ascertain and 

### effectuate the 

### intention ofthe legislature" with 

### respectto the proper application ofthe Utility Exception. 1 Pa.C.S. § 1921(a);

### Allstate Life Ins. Co.

v. 

### Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012). The best indication of the General 

### Assembly's intent is the plain 

### language of the statute. See, e.g., 

### Bayada Nurses v. Dept. of Labor and Indus., 8 A.3d 866, 880 (Pa. 2010). "When the 

### words of a 

### statute
are 

### clear and 

### free from all 

### ambiguity, they are 

### presumed to be the best indication of 

### legislative intent." 

### Chanceford Aviation v. 

### Chanceford Twp. Bd. of 

### Supervisors, 923 A.2d 1099, 1104 (Pa. 2007). A 

### statute should be 

### construed, to the 

### extent possible, to give 

### effect to all of its 

### provisions, andthus, "it is 

### axiomaticthat in 

### determining legislative intent, all 

### sections of a

### statutemust be read

### together and in 

### conjunction with each other, and 

### construed with 

### reference to the entire statute." Hoffman Min. v. Zoning Hearing Bd., 32 A.3d 587, 592 (Pa. 2011). The General 

### Assembly intended to 

### exempt local 

### agencies from immunity only in 

### specifically defined situations, White v. Sch. Dist. of 

### Philadelphia, 718A.2d 778 (Pa. 1998), andthus we must 

### narrowly construe and 

### strictly interprettheexceptions in section 8542. The relevant statutory language isas

### follows: (a) 

### Liability imposed.--A local 

### agency shall be liable 

### for damages on 

### account of an 

### injury to a person or 

### property within the limits set forth in this 

### subchapter if both of the following 

### conditions are 

### satisfied and the injury occurs as a resultofone oftheactsset forth in 

### subsection (b): (1) The 

### damages would be 

### recoverable under common law or a 

### statute creating a 

### cause of action ifthe injurywere caused by a person not 

### [J-128-2016] - 10having 

### available a 

### defense undersection 8541 (relating to 

### governmental immunity generally) or section 8546 (relating to 

### defense of official immunity); and (2)

### The injurywas caused bythe negligent acts of the local 

### agency or an 

### employee thereof acting within the scope of his office or 

### duties with 

### respect to one of the 

### categories listed in 

### subsection (b). As used in this paragraph, 

### "negligent acts" shall not include acts or 

### conduct which constitutes a crime, actual fraud, actual malice or

### willful misconduct. (b)

### Acts

### which may 

### impose

### liability.--Thefollowing 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 

### circumstance of the 

### dangerous condition at a 

### sufficient time prior to the 

### event to have taken 

### measures to 

### protectagainst the 

### dangerouscondition. * * * (c) 

### Limited 

### definition.--As used in this section the 

### amount of 

### time reasonably required to 

### take protective measures, including inspections required by law, shall be 

### determined with 

### reference to the actual 

### equipment, personnel and 

### facilities available to the local 

### agency and the 

### competing demands therefor.
42 Pa.C.S. § 

### 8542(a), (b)(5), (c).



### [J-128-2016] - 11We beginwith section 8542(a), which provides that a local 

### agency may be liable for 

### damages to a person or 

### property if (1) the 

### damages would be 

### recoverable under common law or a 

### statute creating a cause of action if the injury were caused by a person not having 

### available an 

### immunity defense; (2) the injury was caused by the negligent acts of the local 

### agency or its 

### employee; and (3) the negligent acts causing the injury are ofthe sort setforth in section 8542(b). 42 Pa.C.S. § 

### 8542(a); Falorv. Sw. 

### PennsylvaniaWaterAuth., 102A.3d 

### 584,586-87 (Pa. Commw. 2014). Section 8542(b) lists eight negligent acts by a local 

### agency or its 

### employees that may result in liability. 42 Pa.C.S. § 8542(b). Of the eight, 

### four subsections identify particular negligent acts 

### that may result in liability, including the 

### negligent "operation of any motorvehicle," and the negligent "care, 

### custody or control" of personal 

### property ofothers, real 

### property in the possession ofthe local agency, and 

### animals in the possession orcontrol ofthe local agency. 42 Pa.C.S. §

### 8542(b)(1), (2), (3)and (8). The remaining 

### four subsections in 

### 8542(b) waive governmental immunity where injury results from "a 

### dangerous condition of" trees, 

### traffic controls and 

### street lighting; utility 

### service facilities; and 

### sidewalks. 42 Pa.C.S. § 

### 8542(b)(4)-(7). These four subsections, unlike their 

### counterparts, do not 

### expressly articulate specific conductthat forms the basis for a 

### negligent act 

### triggering an 

### exception from immunity. Instead, 

### thesefour subsections referto 

### "dangerous conditions of" types of property owned by, or in the possession or control of, a local agency. Id. The 

### existence of a 

### dangerous condition, in and of itself, is not a 

### negligent act. Each of 

### these four subsections, however, contains identical language that permits an 

### inference to the 

### negligent act 

### designated byeach 

### subsection. Specifically, after identifyingthe 

### dangerousconditionat issue, each 

### subsection provides as

### follows: 

### ...except thatthe 

### claimant to 

### recover mustestablish that the dangerous condition created a 

### reasonably foreseeable risk 

### [J-128-2016] - 12of the kind of injury which was incurred and 

### that the local 

### agency had actual notice or could 

### reasonably be 

### charged with notice 

### under the 

### circumstance of the 

### dangerous condition at a 

### sufficient time prior to the 

### event to have taken 

### measuresto 

### protect againstthedangerous condition. Id. Section 8542(c) then 

### demarcates the 

### amount of time that must 

### reasonably be 

### afforded to local 

### agencies to 

### remediate against the 

### specified dangerous condition. 42 Pa.C.S. § 

### 8542(c). This language in 

### sections 8542(b)(4)-(7) and (c) 

### implicitly identifies the 

### negligent acts 

### triggering these four exceptions: where a local 

### agency has notice of (or can 

### reasonably be

### charged with notice of) a 

### dangerouscondition of 

### property itowns (or is in the possession or control of), and 

### wherethere is a 

### foreseeable risk of the kind of injury that later in 

### fact occurs, the local 

### agency is 

### negligent if it fails to 

### take the 

### necessary remedial measures to 

### protect against the dangerous condition that eventually results in injury and damages.5 42 Pa.C.S. § 

### 8542(b)(4)-(7). In 

### determining whether the notice period in 

### advance of the injury was a 

### sufficient amount of 

### time forthe local 

### agency to have 

### remediated the 

### dangerous condition, consideration must be given to the 

### equipment, personnel and 

### facilities then 

### available to the local 

### agency as well as the 

### competing demands therefor. 42 Pa.C.S. §

### 8542(c).

5 

### We note 

### that damages resulting from the 

### failure of a 

### property owner, who knows or 

### should knowof a

### dangerous conditionof his 

### propertyandwho failsto 

### exercise due care to 

### prevent a 

### foreseeable harm from said 

### dangerous condition, have long been 

### recoverable under the common law of this 

### Commonwealth. See, e.g., 

### Fitzpatrick v. Penfield, 109 A. 653, 657 (Pa. 1920); Bowman v. 

### ColumbiaTel. Co., 179 A.2d 197, 201 (Pa. 1962).



### [J-128-2016] - 13Based upon this review ofthe relevant 

### statutory language,we may 

### thusprecisely list the 

### requirements for an 

### exception from 

### governmental immunity under the Utility Exception in 

### subsection 8542(b)(5).

a 

### dangerous condition of a utility service facility owned by the local

### agency and locatedwithin rights-of-way; the 

### dangerous condition created a

### foreseeable risk of 

### injury ofthe kind of injurythat later occurred; the local 

### agency had notice of the 

### dangerous condition or could 

### reasonably be

### chargedwith notice; 

### despite said notice, the local agency, with the means and 

### personnel to do so under the 

### circumstances presented, failed to take necessary and 

### appropriate remedial measures to protect 

### against injury resulting from the 

### dangerous condition; and the 

### failure to 

### remediate the 

### dangerous condition was a 

### proximatecause ofthe injury and resulting damages.
In the 

### present case, the trial 

### court did not err in 

### entering a 

### verdict for Met-Ed. The trial court identified a 

### dangerous condition ofthe City's

### facilities and located within its right ofway,6 namely, 

### unstable dirt and soil in the excavation hole resulting in a lack

6 In Miller,the 

### Commonwealth Court ruled thatthe Utility Exception applies "notonly to the 

### water pipes but also to the strip of land 

### that the 

### [a]uthority disturbed to repair its 

### water pipe." Miller, 690A.2d at 820. In Miller, the plaintiffs asserted thatthe phrase "of the 

### facilities" refers not only to the 

### water pipe but 

### encompasses the repairs as well, including the trench. Id. The Miller 

### court relied on 

### County of

### Allegheny v. 

### Dominijanni, 531 

### A.2d 562 (Pa. Commw. 1987), 

### which held that the phrase "located within rights-of- ways" in the Utility Exception "refers to the strip of land on 

### which the local 

### agency has 

### constructed its utilityservice facilities." Id. at 565. 

### The Millercourt concluded, based on Dominijanni, that the phrase "ofthe

### facilities...and located within rights ofway" 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, 690

### A.2d at820. In its 

### appellate brieffiled with this Court, theCity asks usto 

### overrule Miller on this point. It is not 

### entirely clear, however, 

### why the City 

### wants us to do so. The City does not 

### (continued...) [J-128-2016] - 14of 

### ground support for Met

### -Ed's conduit bank. Trial Court Opinion, 1/20/2015, at 5-6. The trial 

### court further found that the City had notice of the 

### dangerous condition and 

### understood the risk of 

### collapse of the 

### conduit bank. Id. at 6. Finally, the trial 

### court determined that the City had 

### breached its 

### duty to Met-Ed by failing to 

### take necessary remedial measures to 

### protect against the 

### dangerous condition of the 

### facilities in 

### advance ofthe 

### subsequentcollapseofthe

### conduit bank. Id. The 

### Commonwealth Court erred in 

### reversing the trial 

### court's decision. The 

### Commonwealth Court regarded thecause of the 

### collapseto bethe 

### direct negligenceof the City's 

### employees (not any 

### dangerous condition of the utility 

### service facilities) because the City's employees created the 

### dangerous condition during 

### their excavation activities. By 

### focusing on the 

### cause ofthe 

### dangerous condition, i.e., the 

### negligent excavation, 

### ratherthan on 

### the cause

### ofthe 

### collapse, i.e., the

### failure to 

### remediatethe 

### dangerous condition, the 

### Commonwealth Court misconstrued the Utility Exception and the 

### gravamen of Met

### -Ed's 

### complaint.' Contrary to the 

### Commonwealth Court's
(...

### continued) suggest here, and it did not 

### assert below, 

### that the 

### excavation site 

### was not part of its 

### sewer facilities located within its 

### right-of-way. Instead, the City 

### apparently believesthat Miller subjects a local 

### agencyto the Utility Exception 

### for negligent excavation activities. The City 

### contends here, as it did before the 

### Commonwealth Court, that "[i]n Miller, the court held 

### that a 

### job site 

### becomes a 

### dangerous condition of the utility service facility when negligently backfilled," and that Miller should not be 

### interpreted "as 

### creating a 

### cause ofaction

### fornegligent backfilling." City'sBriefat 12-13. We do not read Miller as 

### creating a

### cause ofaction 

### against a local 

### agencyfor negligent backfilling of an

### excavation trench. The Miller court instead merely 

### recognized that "the common thread running

### throughouttheseexceptions is 

### that liabilitydepends first on the strictly legal 

### determination that the injury was caused by a 

### condition of the property, itself,which has its originorsource in the property." Miller, 690A.2d at 

### 820-821.

7 The City argues that in 

### order to pierce the City's immunity, Met-Ed was required to utilize the same alleged 

### negligence to 

### establish both common law 

### negligence and the 

### (continued...) [J-128-2016] - 15

### construction, the 

### fact that the City's employees created the 

### dangerous condition by 

### negligent excavation does not 

### render the Utility 

### Exception inapplicable. As our above 

### analysis reflects, the originating cause of the 

### dangerous condition, whether by the negligence of the local 

### agency or 

### otherwise, is 

### irrelevant to a 

### proper application of the Utility Exception. Instead,the 

### negligent act 

### necessaryto 

### triggerthe Utility Exception is the

### failure of a local 

### agencyto 

### remediate a

### dangerousconditionofwhich it has notice. Our decision in Gall by Gall v. 

### Allegheny County Health 

### Department, 555 A.2d 786 (Pa. 1989),

### further establishesthispoint. Inthat case, the 

### plaintiffs became illwhen they

### dranktap

### water contaminatedby 

### giardia. In 

### theirsuit

### againstthe cityand the local 

### water authority, the 

### plaintiffs alleged that the city and 

### water authority had "failed to (...

### continued) Utility Exception. City's Brief at 13 n.2. The City 

### contendsthat Met

### -Ed's allegations of 

### common law 

### negligence referred to the 

### actions of the City's employees (the 

### failure to 

### timely respond, failure to shore, etc.), but then relied on the 

### unstable soil (forwhich Met- Ed does not pointtoany negligence) to 

### establishthe Utility Exception. Id. 

### This argument is 

### without merit as it 

### misconstrues the nature of Met

### -Ed's claims. In 

### paragraphs 18-21 of its 

### amended complaint, Met-Ed alleged that the City had actual notice of the 

### dangerous condition at the excavation site, 

### orally promised to 

### back fill the 

### excavation work immediately to relieve pressure on the 

### conduit bank, butthen did not 

### "timely restore proper physical support through the placement of dirt, stone, rock, earth or 

### other material to the Med-Ed facilities, 

### and/or abate the 

### dangerous condition." Amended Complaint, 12/17/2010, ¶¶ 18-21. We note 

### that Met-Ed also alleged 

### that the City's 

### negligent excavation created the 

### dangerous condition. Id., ¶¶ 11, 15, 30, 36. Met

### -Ed's decision to do so may have been based upon prior 

### Commonwealth Courtdecisions suggesting that a local 

### agency must 

### both create the dangerous condition and then fail to 

### remediate it. 

### See Miller, 690 A.2d at 819; DeTurk, 542 A.2d at 215. As our 

### above analysis reflects, 

### whether the local 

### agency's negligence creates the 

### dangerous condition is 

### irrelevant for purposes of 

### application ofthe Utility Exception. To the 

### extentthat the trial 

### court's decision and/orthe 

### Commonwealth Court'sdecisions in Miller and DeTurk can be read to require that 

### two negligent acts are 

### required for application of the Utility Exception (the 

### first in creating the 

### dangerous condition andthe second for failingto 

### remediate it), 

### those decisions were in error.



### [J-128-2016] - 16utilize the latest 

### scientificdevelopments used to 

### treat and cure water,

... and 

### permitted 

### water retaining systems and 

### waterpiping 

### systems to 

### become contaminated by giardia." Id. at 787. The trial court sustained 

### preliminary objections filed by the city and 

### water authority, andthe 

### Commonwealth Courtaffirmed. This Court reversed, holding that the 

### plaintiffs had 

### sufficiently alleged a 

### dangerous condition of the 

### water facilities, of which the city and 

### water authority had actual notice or 

### constructive notice. Id. at 788. For this reason, we found the Utility Exception to be

### applicable. Bythe plain reading of the statute, a local 

### agencydoes not enjoy 

### governmental immunity where there is a 

### dangerous condition ofthe 

### waterfacilities located within rights of 

### way if the 

### claimant establishes "that the 

### dangerous condition created a 

### reasonably foreseeable risk

... and 

### that the local 

### agency had actual notice or could 

### reasonably be 

### charged with notice

... ofthe

### dangerouscondition." Id. Critically, in Gall by Gall this 

### Court did not even mention the lower courts' 

### findings that the 

### water contamination was caused by a series of 

### negligent acts bythe city and 

### waterauthority. Rather, we

### focused on

### whether the plaintiffs' injuries were caused by a 

### dangerous condition ofthe city's 

### water system 

### facilities, which the 

### waterauthority, after reasonable notice, failed to 

### remediate. Id. The 

### Commonwealth Court's decision to rely on its prior decision in Reading 

### Water Authority was misplaced as that case is 

### inapposite. There, a municipal 

### water authority's employees struck and 

### damaged the 

### plaintiff's underground electrical wires with a boring machine.8 Reading 

### Water Authority, 937 A.2d at 1174. The 

### plaintiff

8 

### The City's contends that it is illogicalthat it

### would be 

### immunefrom liabilityfor actually striking Met-Ed's 

### facilities as in Reading 

### Water Authority yet not 

### immune when it 

### (continued...) [J-128-2016] - 17

### brought a claim 

### against the 

### water authority, which, in turn, asserted its 

### government immunity under the 

### Tort Claims Act. Id. 

### The trial 

### court granted the 

### water authority's motion 

### forsummaryjudgment, rejectingthe plaintiff's contention that its claimsfitwithin the Utility Exception. On appeal, theCommonwealth Courtaffirmed, concluding thatthe 

### plaintiff did not 

### allege that the dangerous condition derived from the 

### water authority's water line. Id. 

### That is, its 

### complaintfailed to makeany 

### allegations regarding a

### defect of the 

### property involved. Id. Rather, the 

### plaintiffalleged that the

### waterauthority"breached its 

### duty of care under the [Tort Claims] Act because it failed to 

### exercise due care and take 

### reasonable stepsto avoid 

### damaging [the 

### plaintiff's] propertywhile excavating with

a boring machine." Id. 

### The Commonwealth Court concluded, "Clearly,the dangerous condition, as alleged, 

### originatedwith the 

### conduct of [the 

### water authority's]employees." Id.9 For the 

### foregoing reasons, the 

### Commonwealth Court erred in reversing the trial court and 

### concluding that Met-Ed failed to 

### establish a claim 

### underthe Utility 

### Exception. We find that, 

### contrary to the 

### Commonwealth Court's analysis, 

### under the Utility Exception the 

### focus must be on 

### whether the injuries alleged were caused by a 

### dangerous condition which derived from, originated from or had its 

### source in the local (...

### continued) excavates around them. City's Brief at 6. Illogical or not, the 

### distinction is based on a 

### legislativegrant of 

### immunity in the

### formersituation and not inthe latter.

9 

### Unfortunately, the Reading 

### Water Authoritycourt did not

### frame its 

### decision based on the clear 

### disqualifying circumstance that no injury was caused as a 

### result of the 

### dangerous condition ofthe

### water authority'sfacilities. Instead, the 

### courtopined thatthe 

### dangerous condition, as 

### alleged, originated with the 

### conduct of the 

### water authority's' employees. Contrary tothe 

### statement ofthe Reading

### WaterAuthoritycourt, striking an 

### electrical line with a boring 

### machine is not a 

### "dangerous condition" of anything. It is 

### negligentconduct immunized bytheTort ClaimsAct.



### [J-128-2016] - 18

### agency's utility service 

### facility and located within its 

### right-of-way, 

### not on the 

### genesis of the

### dangerous condition. It must also be

### established thatthe local

### agency had 

### sufficient advance notice, orcould 

### reasonably be

### charged with notice underthe 

### circumstances, of the 

### dangerous condition, and the 

### foreseeable risks 

### presented by 

### those dangerous conditions to 

### permit it to 

### take timely remedial measures. Here, Met

### -Ed's evidence established thatthe City had 

### sufficient advance notice of the 

### dangerouscondition of the 

### excavation site as a result of a lack of 

### adequate ground support and the 

### foreseeable risks 

### presented by

### those dangerous conditions to 

### permit itto take

### timelyaction to install shoring or 

### otherwise stabilize the dirt, rocks and soil. The Cityfailed to 

### remediate the 

### dangerouscondition, causing thecollapse resulting in Met

### -Ed's injuries. The 

### Commonwealth Court'sdecision is hereby reversed. Justices Baer,Todd, Dougherty and

### Wechtjointhe

### opinion. Justice Mundyfiles a

### concurring opinion inwhich Justice Baerjoins. ChiefJustice Saylorfiles a

### dissenting opinion.

[J-128-2016] - 19