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

WESTERN DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFER Y, STEVENS, JJ.

ALDERWOODS (PENNSYLVANIA), INC., A WHOLLY OWNED SUBSIDIARY OF SERVICE CORPORATION INTERNATIONAL, T/A BURTON L. HIRSCH FUNERAL HOME, Appellee

v.

DUQUESNE LIGHT COMPANY, Appellant : : : : : : : : : : : : : : : No. 12 WAP 2013 Appeal from the Order of the Superior Court entered July 27, 2012 at No. 1967 WDA 2010, reversing the Order of the Court of Common Pleas of Allegheny County entered December 13, 2010 at No. GD-09-14720 and remanding.

ARGUED: October 15, 2013

OPINION

MR. JUSTICE SAYLOR DECIDED: DECEMBER 15, 2014

The main and controlling issue accepted for review, as fr amed by the appellant, is “[w]hether the Superior Court erred in imposing up on electric utilities a burdensome and unprecedented duty to enter customers’ premises and i nspect customers’ electrical facilities before restoring power after an outage?” A lderwoods (Pa.), Inc. v. Duquesne Light Co., 620 Pa. 214, 66 A.3d 763 (2013) (per curi am). It is material to bear in mind from the outset, however, that the appellant’s portr ayal of the issues fails to adequately address the Superior Court’s formulation of electric-com pany duties, in the alternative, “to inspect, or at a minimum, to warn a customer, under the facts alleged[.]”[J-78-2013] - 2

Alderwoods (Pa.), Inc. v. Duquesne Light Co., 52 A.3d 347, 355 (Pa. Super. 2012) (emphasis adjusted)).

I. Background Appellant, Duquesne Light Company (“Duquesne Light” o r “Duquesne”), is a Pennsylvania public utility engaged in the business of t ransmitting and distributing electric power in the city of Pittsburgh. Appellee, Al derwoods (Pennsylvania), Inc., trading as Burton L. Hirsch Funeral Home (“Hirsch”), cond ucted business at 2704 Murray Avenue in Pittsburgh. The electric company prov ided service to Hirsch at this

location. On Friday, January 9, 2009, after business hours, an uni dentified motor vehicle crashed into and felled a utility pole carrying electri c lines owned and operated by Duquesne Light. Several wires were connected to Hirsh’s business premises, and at least one was stripped from the service point, i.e., the attachment point to the building’s electrical system located on the structure. In addition t o the funeral home, a number of other local buildings lost power as a result of the inci dent, although no structure other than Hirsh’s was connected directly to the downed pole. Upon receiving word of the outage, Duquesne Light dispatched a line crew to make repairs. Over a period of several hours (about t welve, in Hirsch’s estimation), linemen replaced the pole, installed new transformers , and restored power to the buildings. Finishing with the locked, unoccupied funer al home, crew members climbed onto the roof to connect the new external wiring to the building’s electrical system at the service point. Soon after the wires were connected and energized, a f ire broke out at the location of an electrical panel box located in the basem ent of the premises and owned by Hirsch. The blaze spread, and the funeral home wa s destroyed.[J-78-2013] - 3

Hirsch commenced a civil action against Duquesne Light, i ncluding two negligence counts, denominated “ordinary negligence” an d “highest degree of care” attendant to the supply of electricity. 1 According to Hirsh’s pleadings, the electric company’s employees “incorrectly and improperly” reconnect ed the funeral home to the transmission and distribution system. Amended Complaint at ¶11. Hirsh contended that this triggered an electrical arc and catastrophic fai lure at the electrical panel box inside the funeral home, resulting in the fire. See id. at ¶12. The amended complaint also charged the utility with nonfeasance for not exami ning the funeral home’s electrical system or contacting Hirsh to request access for inspection pri or to restoring power, and, more generally, for failing to do those things n ecessary to maintain safety and preserve the business premises. See id. at ¶14. In an answer with new matter, Duquesne denied a numbe r of the material allegations of the complaint and asserted that the fire was a result of the malfeasance of the unknown third-party motorist and/or defective ele ctrical wiring or equipment owned and maintained by Hirsch. The electric company also ind icated that it bore no duty to inspect the funeral home’s -- or any other customer’s -- privately-owned electrical equipment or system before restoring power after an o utage. See Answer and New Matter to Amended Complaint at ¶43. In discovery, Hirsch tendered the report of an electrical engineer, Richard W. Wunderley, P.E., who had been retained to render an opinion concerning Duquesne Light’s role in the events giving rise to the funeral h ome’s destruction. In his analysis, the engineer initially dismissed the hypothesis that the electric company’s line crew had misconnected wires when restoring power. See Engineer’s Report, EFI Global, dated

1 Although Hirsch included other counts in its pleadings, o ur treatment in the present appeal is limited to this negligence-based aspect of the litigation.[J-78-2013] - 4

August 23, 2010, at 6 (“The improper connection hypoth esis at the single phase mast

head was eliminated after the evidence examination an d further discovery information was received.”). Mr. Wunderley advanced another theor y, however. He posited that, during the downing of the utility pole, a primary l ine consisting of wires (or conductors) carrying high-voltage electricity from a substation had contacted stepped-down secondary lines transmitting lower-voltage current to t he funeral home, causing an “over voltage/over current condition” in the electrical system interior to the funeral home and touching off a short-circuit. Id. at 6. The engineer indicated that Duquesne Light’s subsequent reenergizing of the damaged electrical system heated the metal panel box to an extreme temperature, igniting the attached woo d backing. See id. at 2, 6. According to Mr. Wunderley, “[i]nspection of the electr ic panels and Duquesne Light metering equipment in the funeral home prior to reenergizing the single phase service would have revealed the electrical damage caused by the contact between the primary and secondary conductors at the pole[.]” Id. at 7. Furthermore, Mr. Wunderley asserted that the extensive damage to the utility pole and lines at the crash site afforded Duquesne’s line crew ample notice of a substantial likeli hood that the high-voltage primary conductors contacted the lower-voltage secondary l ines. See id. at 7 (“The potential for damage inside the funeral home due to the physical damage to the service connections and probable contact between the 4000 volt primary and secondary conductors was a compelling reason and cause to inspect the metering equipment in the funeral home prior to reenergizing the single ph ase service.” (emphasis added)); Engineer’s Supplemental Report, EFI Global, dated Au gust 31, 2010, at 3 (referencing the conditions outside Hirsch’s premises as presenting “strong /compelling evidence . . . that should have caused Duquesne Light to inspect the electrical system in the funeral home prior to reenergizing the electric service.” (emp hasis added)). Moreover, had an[J-78-2013] - 5

inspection been undertaken prior to restoration of powe r, the engineer stated, the damage to the electrical panel would have been discover ed and the fire averted. See Engineer’s Report, EFI Global, dated August 23, 2010, at 7-8 (“Because Duquesne Light failed to inspect the electrical system, . . . the above events/conditions resulted in a catastrophic failure and fire.”). At the close of discovery, Duquesne Light pursued summary judgment. The electric company rested its motion squarely on the premise that “[t]he only basis asserted for liability is that before restoring power, the Duquesne Light crew should

have entered the locked Funeral Home in the middle of the night, gone to the basement, and inspected the customer’s electrical panel.” Brief in Support of Summary Judgment at 4 (emphasis added). The company then set about discl aiming any such duty, on the part of an electric service provider, to affirmatively i nspect privately-owned equipment and/or systems prior to restoring power after an outage

. 2 Early on in its supporting brief, Duquesne Light obse rved the axiom that duty is an essential element of a negligence claim. See, e.g., Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 552, 756 A.2d 1166, 1168 (2000). The electric company’s essential position was that the service point establishes a firm lin e of demarcation between the responsibilities of an electric service provider and the cu stomer -- if a failure occurs on

2 In its motion, Duquesne Light also noted that Hirsch’s p leadings were premised upon the assertion that the utility’s line crew performed i ts work incorrectly on the outside of the building; whereas, Hirsh’s expert had subsequently co nceded that this simply was not the case. See Motion for Summary Judgment in Alde rwoods at ¶¶15-16. Appeal was not allowed, however, to consider the appropriaten ess of summary judgment relative to variances between Hirsch’s pleadings and prof fers. See Alderwoods (Pa.), Inc. v. Duquesne Light Co., 620 Pa. 214, 66 A.3d 763 (2013) (per curiam) (centering the allowance of appeal on the presence or absence of a re levant duty on Duquesne Light’s part). Accordingly, we offer no assessment of the suffici ency of Hirsch’s pleadings in laying a sufficient factual foundation for Mr. Wunderl ey’s opinion.[J-78-2013] - 6

the utility’s side, it may bear responsibility, and cert ainly the company has the obligation to make reasonable inspections of its own equipment up t o the service point. But if any failure occurs on the customer side, Duquesne asserted, i t can be the customer’s -- and only the customer’s -- responsibility, and under no circum stances is an electric service provider obliged to inspect private electrical systems i nternal to serviced premises. In support of this position, Duquesne Light relied prom inently upon Milton Weaving Co. v. Northumberland County Gas & Electric Co ., 251 Pa. 79, 83, 96 A. 135, 136 (1915) (following “the view that [an electric ser vice provider] is not bound to inspect such appliances [owned and maintained by its customers] an d is not generally liable for injuries or damages caused by reason of defect therein”) ; and Adams v. United Light, Heat & Power Co., 69 Pa. Super. 478, 1918 WL 2272 ( 1918) (applying the general rule articulated in Milton in support of a determination t hat an electric service provider had no duty associated with personal injury caused by a defect ive electrical extension cord inside a customer’s premises). 3 The electric company asserted that these cases and others in their line exemplified, in the application, a bright-line allocation of responsibility from the service point between an electric service provid er and any customer.

3 Duquesne Light also quoted an opinion of the Pennsylv ania Public Utility Commission (the “PUC” or the “Commission”), as follows:

Traditionally, utilities, the [PUC], and the Courts h ave recognized that the ownership and maintenance responsibility of an electric utility ends at the point of delivery to the customer. . . . From that point on, the custome r owns and assumes the responsibility for the maintenance and security of the internal wiring.

Brief in Support of Summary Judgment at 6 (quoting Hineline v. Metro. Edison Co., No. C-902777, 1990 Pa. PUC LEXIS 156, at *6 (Pa. PUC O ct. 5, 1990)).[J-78-2013] - 7

Further, Duquesne Light presented policy arguments sup porting this demarcation, including the following:

It makes perfect sense for tort law to impose a duty up on a utility to install, inspect and maintain its own equipm ent in a safe condition. It makes no sense to extend the utility ’s duty to the customer’s equipment. If Duquesne Light were to be required to enter the Funeral Home and inspect electri cal facilities before restoring power, which items of equip ment should it inspect? The panel box only? What about fu ses and circuit breakers? Should Duquesne Light take the cove r off the panel box and check the connections in the back? What about the wires carrying power throughout the building? What about the toaster in the kitchen? O nce the line of demarcation between the utility’s equipment a nd the customer’s equipment is crossed, there is no logical limit t o the utility’s potential responsibility. Sensibly, Penn sylvania law has never imposed such unlimited liability on an electrical utility.

* * *

It would be impractical to require Duquesne Light, o r any other utility, to enter and inspect . . .. Such a req uirement would complicate and delay power restoration after stor ms and other outages. A number of [local] customers, not just the Funeral Home, were affected by the motor vehicle accident. Duquesne Light did not inspect those customers’ electrical infrastructure prior to reapplying power, n or was the Company under any legal duty to do so. Brief in Support of Summary Judgment at 5-7. In response to the summary judgment motion, Hirsch relie d on general negligence principles as establishing a duty to avert har m when one engages in conduct which foreseeably creates an unreasonable risk to others. See Memorandum of Law in Opposition to Summary Judgment at 15 (quoting Commerce Bank/Pa. v. First Union Nat’l Bank, 911 A.2d 133, 139 (Pa. Super. 2006)). S ee generally Restatement (Second) of Torts §302 cmt. a (1965) (“In general, any one who does an affirmative act[J-78-2013] - 8

is under a duty to others to exercise the care of a reaso nable man to protect them against an unreasonable risk of harm to them arising out of the act.”). To evidence notice, on Duquesne Light’s part, of a dangerous condit ion within the funeral home, Hirsch referenced the circumstances which, in Mr. Wunderley’ s opinion, generated a “compelling reason” to inspect the meters inside the pre mises. Engineer’s Report, EFI Global, dated August 23, 2010, at 7. These included the downed, broken high-voltage lines with which the electric company’s work crew was confro nted, as well as a tripped circuit breaker at a substation connected to the pole’s tr ansformer, indicative of a power surge. See Response in Opposition to Motion for Summar y Judgment at ¶¶5, 11 (citing Deposition of Joseph G. Frankhauser dated March 31, 2010 , at 27, and Deposition of Donald Lewis dated April 29, 2010, at 20-25, 53-56)

. As to duty, Hirsch eschewed Duquesne Light’s vision of a rigid line of demarcation between the responsibilities of an electric co mpany and the customer. According to Hirsch, none of the cases relied upon by the electric company involved circumstances in which an electric service provider should ha ve foreseen the sequence of events causing harm. In light of the circumstances know n to the utility’s line crew when members restored power to the funeral home, Hirsch argued that damage to the building’s electrical system was eminently foreseeable to t hem. Along these lines, the funeral business owner stressed that Duquesne was a litiga nt in a prior case involving a line-crossing, overvoltage scenario. See Wivagg v. Duqu esne Light Co., 73 Pa. D.&C.2d 694 (C.P. Allegheny 1975). In response to Duquesne’s protestations about entering customer premises, Hirsch highlighted a passage f rom the “Duquesne Light

Schedule of Rates and Service Installation Rules” indicat ing that utility representatives have a right of access to customer premises to read meter s, for inspection and repairs, and for any other purposes incident to service. See, e. g., Appendix to Response in[J-78-2013] - 9

Opposition to Motion for Summary Judgment at Ex. I, S upplement No. 10, Second Revised Page No. 24. Finally, Hirsch invoked a series of factors delineated i n this Court’s seminal

decision in Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A. 2d 1166 (2000), relevant to whether the common law should impose duti es not previously recognized. 4 These factors are: “(1) the relationship between the p arties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.” Id. at 553, 756 A.2d at 1169. In this regard, Hirsh highlighted that it and Duquesne Lighting maint ained a business relationship beneficial to both parties, acknowledged the high social utility of electric service, stressed its proffer that the risk of an overvoltage scenar io is foreseeable (including the expert report of Mr. Wunderley), alluded to the cat astrophic consequences of an uncontrolled fire, indicated that the burden of condu cting an electrical inspection is modest in comparison to the harm, and urged that the o verall public interest in terms of the preservation of lives and property would be advan ced by recognition of an affirmative duty to inspect. See Memorandum of Law i n Opposition to Motion for Summary Judgment at 17-21. Upon consideration of the litigants’ submissions, the comm on pleas court awarded summary judgment in Duquesne Light’s favor. S ee Alderwoods (Pa.), Inc. v. Duquesne Light Co., No. G.D. 09-14720, slip op. (C.P. Allegheny March 8, 2011). In a brief opinion, the court credited the utility’s theory that, while an electric company has a

4 In the negligence arena, in the absence of a relevan t statute, the determination whether to impose affirmative common-law duties as a p redicate to civil liability is a matter of law. See Seebold v. Prison Health Servs., Inc., 618 Pa. 632, 650, 57 A.3d 1232, 1243 (2012).[J-78-2013] - 10

duty to maintain its own equipment and conduct reason able inspections of its own facilities, it has no duty to inspect equipment owned by its customers. In this regard, the common pleas court found the Superior Court’s decision i n Adams to be controlling and the PUC’s remarks in Hineline to be persuasive. See id. at 4-6; see also supra note 3. On appeal, the Superior Court reversed in the releva nt regard. See Alderwoods, 52 A.3d 347. After setting forth the standards gover ning an award of summary judgment and ensuing appellate review, 5 the court undertook an Althaus analysis on terms similar to those advocated by Hirsch in opposition to summary judgment. The intermediate court, in essence, concluded that Hirsch esta blished a prima facie case that Duquesne Light was on constructive notice of the da mage to the funeral home’s electrical system and of the attendant risk of fire. See id. at 355. In such circumstances, the court reasoned, an electric company bears a duty to take

reasonable measures to avert the harm. See id. at 35 7. 6

5 A court of original jurisdiction may grant summary jud gment only when the moving party demonstrates that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See, e.g. , Smith v. Twp. of Richmond, ___ Pa. ___, ___, 82 A.3d 407, 414-15 (2013). The appellat e court views the record in the light most favorable to the non-moving party and considers wh ether an error of law or abuse of discretion has occurred. See, e.g., id. at 415.

Parenthetically, the questions of whether there are ma terial facts in issue and whether the moving party is entitled to summary judgment are matters of law. Accord Pyeritz v. Commonwealth, 613 Pa. 80, 88, 32 A.3d 687, 692 (201 1) (delineating the applicable review standard only in terms of the legal-error compo nent). The abuse-of-discretion aspect has relevance only with regard to matters which l ie within the discretion of the court of original jurisdiction, such as a subsidiary eviden tiary ruling associated with the award.

6 Citing Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995), the Superior Court also correctly explained that there was no substantive diffe rence between Hirsch’s “ordinary negligence” and “highest degree of care” negligence cou nts, since the care to be exercised in any given case is proportionate to the serio usness of the consequences. (continuedR)[J-78-2013] - 11

The Superior Court, however, shied from recognizing su ch duty in terms of one to inspect customer equipment, which was the subject of the underlying summary judgment proceedings. Rather, the intermediate court repeatedly noted that the formulation of duty in the complaint included a catch- all, namely, an obligation “to do those things which were necessary to preserve Hirsch’s proper ty and render [the funeral home] safe in the process of reconnecting [it] to the high-voltage line[.]” Alderwoods, 52 A.3d at 355 (quoting Amended Complaint at ¶18). The court then formulate d the relevant duty in terms of an obligation “to warn the single affected customer (Hirsch), and to inspect at least its own equipment prior to rest oring electrical service.” Id. (also describing Duquesne Light’s obligation as “to inspect, or at a minimum, to warn a customer, under the facts alleged” (emphasis adjusted)). This reference in respect to Duquesne Light’s “own equipment” was to the utility-ow ned electric meters in the

basement of the funeral home. 7

II. Arguments In its main brief, Duquesne Light concentrates closely on the position that electric service providers have no obligation to inspect privatel y-owned electrical equipment and systems internal to customer premises, as a corollary to th e service-point rule. Consistent with this focus, the electric company portrays th e Superior Court’s opinion

(Rcontinued) See id. at 605, 654 A.2d at 539. In this regard, th e intermediate court observed that electricity is universally recognized to be a dangerous in strumentality, thus implicating a high degree of care on a utility’s part, see Alderwoo ds, 52 A.3d at 356-57, at least within the sphere of conventional duties.

7 Although the meters apparently did not manifest any d amage which would suggest an electrical surge, the Superior Court appears to have re lied upon Hirsch’s proffer that the meters were close to the relevant electrical panel, so t hat inspection of the former would have revealed the damage to the latter. See id.[J-78-2013] - 12

only as holding that the utility “had a duty to ente r and inspect,” Brief for Appellant at 7, despite that the intermediate court actually framed th e duty in the alternative to encompass a more modest option to warn. See Alderwoods , 52 A.3d at 355. 8 Having so framed the issue, Duquesne Light advances its a rgumentation in much the same fashion as it has from the outset in its summary judgment motion and supporting brief. In this vein, the company remonstra tes that there simply is no judicial precedent to support an affirmative duty to inspect. According to the utility, the intermediate court “sidestepp[ed] a century of preceden t” by discarding the essential service-point rule. Brief for Appellant at 7-10 (citi ng, inter alia, Milton, 251 Pa. 79 , 96 A. 135, and Adams, 69 Pa. Super. 478, 1918 WL 2272); acco rd Brief for Amicus Energy Association of Pennsylvania at 3-4 (contending that servi ce-point demarcation “provides a considered, bright-line rule that has shaped utility companies’ and consumers’ conduct for generations” and advocating its continued lo ngevity). Duquesne Light explains that, on an annual basis, it mu st contend with many service outages precipitated by unpredictably inclement w eather and other causes, requiring its personnel to work overtime, borrow worker s from other companies, and strive to restore power for the public benefit as quickly as possible. The electric company reiterates that the imposition of a burden to inspect customer equipment

8 Duquesne does recognize that the Superior Court seems to have contemplated a duty to inspect the company’s own meters located within the f uneral home, as opposed to inspection of customer equipment or systems, but the electr ic company contends that its work crew simply had no reason to inspect the meters. See Brief for Appellant at 13 (asserting that the report submitted by the electrical e ngineer retained by Hirsch “gave no reason to inspect the meters, identified no malfunct ion in the meters, and offered no opinion that the meters had anything to do with the fire”). According to the utility, the intermediate court thus “transformed Duquesne Light’s r ight to inspect its own equipment into a duty to inspect the customer’s equipm ent.” Id. at 14 (emphasis in original).[J-78-2013] - 13

would require the involvement of licensed electricians a nd an expenditure of untold man-hours. Moreover, according to the utility, the du ty recognized by the Superior Court is untenably indefinite in terms of what it is t hat an electric service provider needs to inspect, so that company personnel will be faced wit h the “impossible quandary” in determining how far they should go to examine custome r electrical equipment and systems. Brief for Appellant at 8. Duquesne also empha sizes that inspections internal to private customer premises will engender substantial de lays in restoration of power after outages. See id. at 22 (“If electric customers are suddenly required to endure longer power outages than before, this should be deter mined by the Public Utility Commission, not the Superior Court.”). As to Althaus, Duquesne Light posits that “[i]n announci ng this summary of the factors comprising legal duty, surely this Court did not intend to wipe the slate clean of prior precedents and erase long-standing principles of Pe nnsylvania tort law.” Brief for Appellant at 15. In the event this Court might deem the Althaus factors relevant, the electric company discusses these, again weaving in the concer ns with increased costs, delays, and uncertainties. Furthermore, the utility h ighlights the social utility of electrical distribution, downplays the foreseeability of damage t o a structure’s internal electrical system resulting from a downed utility pole, and charact erizes the consequences of a duty in the present case as tantamount to making electric service providers insurers of the safety of private electrical systems and equipment. The PUC has filed an amicus brief supporting Duquesne L ight’s position. Like the electric company, the Commission couches the duty recogn ized by the Superior Court as one on the part of an electric service provide r to “inspect customer equipment after storms and outages,” thus also disregarding the war ning aspect of the intermediate

court’s determination. Amicus Brief for the PUC at 4. As to the asserted duty to[J-78-2013] - 14

inspect, the Commission supports the utility’s position tha t its imposition is unprecedented and burdensome and urges this Court to reaffirm the longstanding service-point rule allocating ownership and maintenance responsibility for electrical systems in two directions from the point of delivery. The PUC also offers a detailed overview of its regulat ory responsibilities relative to electric service providers and its efforts to ensure speed y and efficient restoration of power after outages, in furtherance of the public int erest. See, e.g., id. at 16 (“[I]mposing a duty on the electric utility to inspect c ustomer wiring/equipment prior to service restoration after an outage is not only . . . co st prohibitive and not in the public interest, but also is beyond the utility’s jurisdiction a nd responsibility.”). Additionally, the Commission offers its own Althaus assessment, again empha sizing factors such as the public interest in prompt, efficient, safe, and afforda ble restoration of power in the wake of an outage. Finally, the PUC suggests that the imposi tion of duties upon utilities should be left to its regulatory province and not to th e field of the common law. See id. at 27 (“[T]he Superior Court intruded on the PUC’s st atutory duty to regulate service duties of public utilities.”). The Energy Association of Pennsylvania also filed an ami cus brief supporting Duquesne. Like the electric company and its regulator, t he Energy Association discusses the Superior Court’s determination solely in ter ms of a duty to inspect, to the

exclusion of the court’s alternative formulation of a d uty to warn. In substantial tension with the opinion expressed in Mr. Wunderley’s report, the Association’s position is also premised on the notion that, at the time the line cre w restored power to the funeral home, its members had no reason to believe there was a dangerous condition inside the premises. See, e.g., Brief for Amicus Energy Ass’n o f Pa. at 2 (“This Court should reverse the Superior Court and clarify that Appellant Duquesne had no duty to inspect[J-78-2013] - 15

inside Appellee’s locked and unoccupied facility, after hours and in the absence of any indication of heightened fire danger, before restorin g power.” (emphasis added)). In addition to reinforcing the legal arguments present ed by Duquesne Light, the Energy Association observes that power outages themselves, especially prolonged ones, create their own dangers. See id. at 7 (discussing such risks as encompassing “downed, live wires to fires caused by candles, to hypoth ermia in the winter and heat stroke in the summer,” as well as potential spoilage of r efrigerated medication and idling of powered essential medical equipment, such as respirat ors). The Association envisions that imposing a duty to inspect on electric ser vice providers would cause untenable delays in power restoration and result in en ormous costs to Pennsylvania utility companies and consumers. See id. at 12. For Hirsch’s part, it did not escape its attention that the Superior Court envisioned a “duty . . . to inspect, or at a minimum, to warn[.]” Brief for Appellee at 4 (quoting Alderwoods, 52 A.3d at 355). In sharp contra ct to Duquesne Light’s presentation and those of its amici, Hirsch returns regul arly to the warnings issue throughout its brief. 9 In terms of the duty to inspect, Hirsch takes issue with Du quesne Light’s portrayal of the precedent as establishing that under n o circumstances does a utility

9 See also id. at 10 (“It is important to note that in its Opinion, the Superior Court found a duty to inspect or a duty to warn the customer.” (e mphasis in original)); id. at 14 (“At a minimum, the duty involves merely warning customers of possible overvoltage damage rather than inspecting.”); id. at 22-23 (“Duquesne Li ght and its amici neglect to report that under the circumstances of this case, the [Superior Court’s] opinion requires inspections or warnings to the customers.” (emphasis in orig inal)); id. at 29 (“In the alternative, much as the power industry does after floo ding events, Duquesne Light could simply have contacted Hirsch to warn that Duquesne Light suspected overvoltage damage and would not restore service to the building u ntil the building’s equipment was inspected by a third party.”).[J-78-2013] - 16

have such an obligation. According to the funeral busin ess owner, the decisions simply did not contemplate scenarios involving utilities with actual or constructive notice of a dangerous condition on the customer side of a service po int. See Brief for Appellee at 14 (“Implicit in each case is the notion of foreseeabili ty – that an electric utility can be under no duty to inspect a customer’s faulty equipment when the utility has no reason to anticipate the fault.”). In this regard, Hirsch invokes the axiom that the holding of a judicial decision is to be read against the factual circumst ances under review. See id. at 16 (quoting City of Pittsburgh v. WCAB (Robinson), 62 0 Pa. 345, 365, 67 A.3d 1194, 1206 (2013)). Further, it maintains that electric servi ce providers, like all others, are subject to the duty of care not to harm others by their affirmative conduct, where such injury is reasonably foreseeable. See id. at 17-18 ( citing Seebold, 618 Pa. at 654, 57 A.3d at 1246, and quoting Mirnek v. W. Penn Power Co ., 279 Pa. 188, 191, 123 A. 769, 770 (1924), for the proposition that electric companies “are bound to anticipate . . . such combinations of circumstances and accidents and injuries there from as they may reasonably forecast as likely to happen”). Respecting Duquesne Light’s and its amici’s policy concerns a bout potential delay, expense, and hardship to utilities and the publ ic at large, Hirsch regards them as “severely overblown.” Brief for Appellee at 12; see also id. at 39 (positing that, particularly in light of the potential for fires to sp read to other properties, “[t]he consequences of a fire caused by failing to inspect, or to warn of, a building with a suspected electrical fault dwarf those of delaying the r estoration of service”). Against the present circumstances, the funeral business owner notes that an inspection would have encompassed only Hirsch’s premises, since it was the sole building serviced directly by the demised utility pole and the only str ucture to have sustained direct damage, in the form of detached service lines. Further , Hirsch presents a discussion of[J-78-2013] - 17

the Althaus factors along the lines of its submission to the common pleas court, as discussed previously. Finally, responding to the position of Duquesne Light and its amici that there were no circumstances suggesting an unreasonable risk of ha rm to the funeral home when the work crew restored power, Hirsh relies on, inte r alia, Mr. Wunderley’s position to the opposite effect, based primarily on the conditio n of fallen and damaged lines at the crash site. See Brief for Appellee at 9, 53-54. Furthermore, the funeral business owner cites Summers v. Certainteed Corp., 606 Pa. 294 , 997 A.2d 1152 (2010), as exemplifying the consideration to be given to expert opinion proffers in summary judgment inquiries. See id. at 309, 997 A.2d at 116 1 (“It has long been Pennsylvania law that, while conclusions recorded by experts may be di sputed, the credibility and weight attributed to those conclusions are not proper con siderations at summary judgment; rather, such determinations reside in the sol e province of the trier of fact, here, a jury.”).

III. Discussion At the outset, we agree with the legal position of D uquesne Light and its amici that, under Pennsylvania law, maintenance and inspecti on responsibilities generally are divided at the service point, such that an electric servi ce provider does not have a freestanding duty to inspect customer-owned electrical eq uipment and services on the premises’ side. Accord Milton, 251 Pa. at 83, 96 A. at 136 . As amply reflected above, however, the Superior Court simply did not recognize such a freestanding obligation. Rather, the obligation envisioned by the intermediat e court expressly encompassed an alternative entailing the more modest avenue of warn ing a customer proximate to downed lines prior to restoring power after an outag e, where the utility has actual or[J-78-2013] - 18

constructive notice of a dangerous condition within the c ustomer’s premises. Alderwoods, 52 A.3d at 355. 10 Part of the conceptual difficulty in this case lies in th e litigants’ very different approaches to the legal issues presented. As noted, Duqu esne Light prefers to confine the discussion as closely as possible to the service-point rul e; whereas, in Hirsch’s estimation, the dispute more appropriately centers upon application of the common-law duty to take reasonable measures to avert harm occasioned by one’s own conduct, in the face of actual or constructive knowledge of a danger. As the funeral business owner observes, the obligation it relies upon is reflec ted, in general terms, in Section

302 of the Restatement Second of Torts and the associated commentar y. See Restatement (Second) of Torts §302 cmt. a

. In this regard, we find that the service-point rule ha s its limits and does not wholly supplant the salient common-law duty. As Hirsch develop s amply, the service-point principle evolved in scenarios in which the courts were n ot focused on the presence of actual or constructive knowledge, on the part of utilit ies engaged in affirmative activities proximate to customer premises, of an unreasonable risk o f harm arising from their

conduct. 11 Indeed, although Duquesne Light would clearly like t o enjoy immunity from

10 The warnings option obviously mitigates the specter of broken-down doors and unauthorized trespass alluded to in various of Duque sne’s submissions. Moreover, whereas the PUC observes, pointedly, that “Duquesne is H irsch's electric utility; however, Duquesne is not Hirsch's electrician,” Brief for Amicus the PUC at 19, the observation takes on a much different color if the elec tric company had actual or constructive knowledge of an unreasonable risk to the fune ral home tied to power restoration and did not notify Hirsh so that it, in tu rn, could summon its electrician.

11 While Duquesne Light and the dissenting opinion auth ored by Mr. Justice Eakin invoke the Milton line of decisions, they point to no st atement or developed reasoning appearing in that opinion or any other Pennsylvania case reflecting an informed, judicial holding that the general service-point demarcation obv iates the common-law duty to take reasonable measures to avert harm to others occasione d by one’s own conduct in (continuedR)[J-78-2013] - 19

tort liability per a broad-scale application of the ser vice-point rule, the electric company has itself refrained from stating, outright, that it i s exempt from the application of the general tort-law duty to take reasonable measures to av ert an unreasonable risk of harm to others occasioned by its own conduct. 12 Duquesne Light’s treatment of the underlying duty dov etails with its approach to the warning aspect – quite simply, the electric company f ails to deal squarely with either. Based on such a deficient presentation, we ha ve no intention of exempting a company administering in a dangerous commodity from wel l-recognized duties of care,

(Rcontinued) the face of actual or constructive knowledge of an unrea sonable risk. Indeed, the Superior Court in Adams apprehended that this questio n simply is not addressed through application of the general service-point rule as articulated in Milton. See Adams, 69 Pa. Super. at 486, 1918 WL 2272, at *4 (“I t may be that an electric company should be held responsible for injuries to third parti es caused by defective wiring of a building if it continued to furnish current after know ledge of the defect in the wiring, but that question we are not here called upon to decide.”) . In this regard, moreover, Hirsch aptly references the principle that the holdings of the decisions must be read against their facts. See, e.g., Maloney v. Valley Med. Facili ties, Inc., 603 Pa. 399, 411, 984 A.2d 478, 485-86 (2009).

Parenthetically, given that the Adams court cautioned that its opinion (and implicitly Milton, upon which Adams relied) should not be read to insulate electric companies from the common-law duty in issue, the dissent’s basis for citin g Adams as supporting the contrary proposition is unclear. See Dissenting Opinion, slip op. at 1-2 (Eakin, J.).

12 For example, as previously observed, when addressing Hi rsch’s efforts to invoke the common-law duty, the electric company rests its disclaimer o n the position that there is no factual basis to support its application, then transi tions immediately back to its discussion of the service-point rule. See Reply Brief fo r Appellant at 2-3. Nowhere in its submissions does the utility specifically deny that an e lectric service provider, on actual or constructive notice of a dangerous condition of electrical equipment inside a customer’s premises proximate to downed wires, should refr ain from restoring power, at least pending the undertaking of reasonable efforts to notify an affected customer.[J-78-2013] - 20

in the face of actual or constructive knowledge of a dang er. 13 Moreover, the undertaking of reasonable efforts to avert harm prior to restoring power -- at least some form of warning as envisioned by the Superior Court - - represents a relatively modest

measure in the face of an unreasonable risk of which a utility knows or should be aware. We acknowledge the large-scale, indispensable public ben efit administered by electric service providers, as well as the many challenges t hey face which are inherent in the daunting task of maintaining twenty-four-hour service over a large geographic area. In light of this value and responsibility and sca le, it may well be that, upon a full and developed consideration of the landscape of the mi xed policy considerations involved, such companies should enjoy some degree relief from exposure to the expense and uncertainties inherent in tort litigation and attendant jury determinations (by a preponderance of the evidence) concerning whether they have met their duties at common law in discrete scenarios as they may arise. We hav e recently explained, however, that such matters of immunity generally are best decided by the political branch, since the General Assembly is better positioned to make informed policymaking judgments reflecting an appropriate balancing among th e respective interests involved. See Lance v. Wyeth, ___ Pa. ___, ___, 85 A.3d 434, 4 54 (2014) (“[B]ecause the Legislature possesses superior policymaking tools and resour ces and serves as the political branch, we [have taken] the position . . . t hat we would not direct the substantive common law away from well-established genera l norms in the absence of some clear predominance of policy justifications.”); see al so Seebold, 618 Pa. at 653,

13 The PUC’s position that we should leave this matter to its regulatory province is entirely detached from the summary judgment motion Du quesne Light filed and the limited review which was granted by this Court. As such , in the present context, we decline to consider the Commission’s ability to diminish general common-law duties on the part of utilities.[J-78-2013] - 21

57 A.3d at 1245. Moreover, we have reaffirmed that the treatment of these sorts of policy arguments should be on a developed record, includ ing empirical information, which would support an informed, legislative-type judgm ent -- subject, of course, to constitutional limitations. See Lance, ___ Pa. at ___, 85 A.3d at 454. It is therefore material that Duquesne Light never set out, in its summary judgment effort, to establish such a record or case. R ather, its position from the outset has been premised on the assumption that the longstandin g service-point rule represents the be-all-and-end-all of an electric utili ty’s obligations touching upon the customer side of the service point. Accordingly, our resol ution of the present appeal begins and ends with the above response to this question as framed. 14

14 We note that many of amici’s broader-scale policy argum ents must fall by the wayside, in light of Duquesne’s failure to pursue a ful l-scale public-policy assessment from the outset. Moreover, to the degree that the S uperior Court’s Althaus assessment appears to be abstract, conclusory, and debatable, this would seem to be attributable, at least in part, to the absence of a concrete record-ba sed foundation to support an informed treatment of substantially mixed public policy considerations.

Parenthetically in considering this litigation from an overview perspective, we do recognize there are fairness concerns on both sides. For e xample, on the one hand, Hirsch did not specifically focus its pleadings and submission s in the common pleas court on warnings, and, indeed, it has not sought to a mend the complaint although it has pursued a substituted theory of liability resting on different factual premises. Furthermore, Mr. Wunderley’s opinion about the proba bility of an overvoltage event is stated in somewhat conclusory terms, with nothing empirica l to bolster his assessment as to the degree of likelihood.

On the other hand, Duquesne Light did not style its ch allenge as one to the sufficiency of the complaint, nor did it lodge an attack on the validity of Mr. Wunderley’s opinion in terms of methodology or the adequacy of the factual pr emises he employed. Additionally, by virtue of its one-dimensional focus on a duty to inspect, the electric company seems to have simply ignored the complaint’s broa der assertion of an obligation “to do those things which were necessary to p reserve Hirsch’s property and render [the funeral home] safe in the process of reconne cting [it] to the high-voltage line.” Alderwoods, 52 A.3d at 355 (citing Amended Co mplaint in Alderwoods at ¶18). (continuedR)[J-78-2013] - 22

As to the aspects of this litigation centered on the Alt haus factors, we find these

to be more relevant to the creation of new duties tha n 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 pub lic at large arises in a novel factual scenario. Common-law duties stated in general t erms are framed in such fashion for the very reason that they have broad-scale application. To the extent that Hirsch wishes to pursue a theory at trial that a warning would have represented a reasonable measure to avert harm in the circumstances pre sented, nothing appropriately raised in this appeal would prevent it from doing so. 15

(Rcontinued)

Contrary to the position advanced by way of dissent, ou r decision today is not that such catch-all language subsumes a warning. See Dissenting Opi nion, slip op. at 6-7 (Eakin, J.). Rather, it is that Duquesne Light, as the appella nt (and thus the litigant responsible for the framing of the questions presented to this Cour t) has in no way fashioned its own appeal in a manner which would allow for reasonable r esolution of the issue at this time. Accord supra note 2.

15 In dissent, Madame Justice Todd emphasizes that the issues on which appeal was allowed do not directly encompass the warnings aspect; she attributes fault for such circumstance to this Court; and she advocates soliciting addi tional briefing on the warnings issue. See Dissenting Opinion, slip op. at 2-3 (Todd, J.).

The allocatur grant issues, however, were taken verbatim from Duquesne Light’s own petition for allowance of appeal. See Alderwoods, 62 0 Pa. 214, 66 A.3d 763 (2013) (per curiam) (“The issues, as stated by Petitioner, are . . . (emphasis added)). As we have discussed above, Duquesne seeks a full-scale reversal of the Superior Court’s ruling; the company obviously cannot be fairly surprised to see that this Court would engage in some treatment of such ruling on its actual terms. Along these lines, moreover, although we certainly would be constrained i n our ability to reverse based on decisional aspects downplayed or overlooked by an appella nt, see, e.g., Konidaris v. Portnoff Law Assocs., Ltd., 598 Pa. 55, 63-64 n.8, 953 A.2d 1231, 1235 n.8 (2008) – which is a jurisprudential limitation that Justice Todd does not discuss in her proposal – an appellate court may affirm for any reason appearin g as of record, see, e.g., (continuedR)[J-78-2013] - 23

For the sake of a rounder treatment of the arguments p resented, we emphasize that Duquesne Light’s and its amici’s argumentation tha t the electric company lacked constructive notice of a dangerous condition inside the f uneral home conflicts squarely with the expert opinion of Mr. Wunderley presented by Hirsch. In light of such a conflict, the utility cannot merely rest upon recitations of evid ence supportive of its own position, since such differences present questions for a finder of fa ct and not a judge attending to a summary judgment motion. See Summers, 606 Pa. at 3 09-10, 997 A.2d at 1161. Furthermore, we will not consider, at a second-tier app ellate-review stage, indirect attacks on Mr. Wunderley’s opinion posed as an after-th ought to Duquesne’s advancement of its position that the service-point rule controls in all events. Rather, to challenge the engineer’s opinion, in one fashion or a nother, Duquesne must deal more directly with the substance of Mr. Wunderley’s reports o n their salient terms. Cf. PennDOT v. Patton, 546 Pa. 562, 569, 686 A.2d 1302, 1305-06 (1997) (“The question of constructive notice was a major issue in this case, and t here was substantial conflicting evidence on the issue. It was therefore not a question to be decided by the court[.]”). 16

(Rcontinued) Commonwealth v. Moore, 594 Pa. 619, 638, 937 A.2d 1 062, 1073 (2007). This is precisely our approach here.

We have also attempted to be conservative in terms of our discussion of the warnings matter. We do not foreclose the possibility that electr ic utilities might be treated differently from the wide range of entities and perso ns who are bound by the general duty not to create unreasonable risks of harm to others t hrough affirmative conduct. We merely reiterate that no legal authority has been pr esented in this appeal to suggest that electric companies, in fact, presently enjoy such an exemp tion.

16 This Court has no idea how likely it is, when mixed-vo ltage utility lines fall proximate to a structure, that a power surge may impact the build ing’s electrical system. Certainly, the probability may depend upon such factors as the posi tion of the lines on the ground (continuedR)[J-78-2013] - 24

Finally, responding to Justice Eakin’s position, the dissent is grounded on the notion that the Milton decision wholly relieved electr ic companies from the general common-law duty to take reasonable measures to avoid ha rming others through one’s

own affirmative conduct undertaken with actual or constru ctive knowledge of an unreasonable risk. As we strongly differ with such premise , see, e.g., supra note 11, we disagree just as firmly with the dissent’s repeated assert ion that our present opinion imposes a “new duty.” Dissenting Opinion, slip op. at 3-4 (Eakin, J.). 17 While the

(Rcontinued) and the general efficacy of controls interposed in the electrical infrastructure, such as control switches and circuit breakers. See, e.g., 17 A M

. J UR . P ROOF OF F ACTS 2 D §643 (2014) (explaining that “[i]n view of the great dest ructive capabilities of electricity, it is to be expected that many controls would be imposed on distr ibutors” and “[p]ole-top automatic switches and automatic circuit breakers have been in practical use since 1912”). According to Mr. Wunderley’s report, however, the engineer considers a surge to be a materially likely outcome, and Duquesne Light ’s summary judgment effort simply was not orchestrated in a fashion which would reasonably put counter-considerations into play. The result is that the electric company and its amici have been relegated to countering Mr. Wunderley’s opinion through mere denia ls in legal briefs (albeit premised in part on statements by Duquesne’s own employees).

17 This dissent also appears to regard the process of assessing t he scope of commonlaw duties as a vehicle to render case-specific pronouncem ents of discrete obligations owed solely by particular litigants and applicable only in specific cases. See Dissenting Opinion, slip op. at 3 (Eakin, J.). To the contrary, however, common-law duties generally are stated in broad terms to apply to classes o f cases, accord Seebold, 618 Pa. at 654, 57 A.3d at 1246, and ongoing expansions a nd contractions are to be carefully considered on a developed, legislative-type r ecord capable of supporting the essential policy-based judgments, see id. at 658 & n.24, 57 A.3d at 1248. The notion of an unwieldy process of perpetual, case-specific, common-law pronouncements is antithetical to the nature of the undertaking. Rathe r, generally, courts establish the landscape of common-law duties as a matter of law, and j uries decide, in individualized circumstances presented and where there are material facts in dispute, whether such duties have been breached. Accord Cabral v. Ralphs Gro cery Co., 248 P.3d 1170, 1176 (Cal. 2011) (explaining that the legal duty de termination centers on categories of negligent conduct, not the particular parties in narro wly-circumscribed sets of facts, and commenting that, “to base a duty ruling on the detail ed facts of a case risks usurping the (continuedR)[J-78-2013] - 25

dissent offers various inquiries about what actions Duques ne Light might have taken

which would be considered reasonable under the circumsta nces, see id. at 4, these are precisely the sorts of considerations relegated to juries in cases in which a common-law duty exists and there are material factual questions conce rning whether such obligation has been met. See supra note 17.

IV. Summary Since Duquesne Light has failed to adequately confront the common-law duties invoked by Hirsh or the warnings dynamic tempering the Superior Court’s ruling, we have little basis to assess whether the electric company m ight be accorded immunity from such duties, or whether a requirement to warn mig ht be unreasonable. Against such background, we hold that the Superior Court did no t err to the extent that it recognized a duty, on the part of an electric service pr ovider, to take reasonable

measures to avert harm in a scenario in which the util ity has actual or constructive knowledge of a dangerous condition impacting a customer’s electrical system, occasioned by fallen and intermixed electrical lines pro ximate to the customer’s premises. Furthermore, we offer no opinion as to whe ther Duquesne Light had actual or constructive knowledge of an unreasonable risk in the p resent scenario, since the electric company’s summary judgment effort was not staged in a fashion which would elicit an informed determination on such point. Electric service providers are not insurers relative to the safety of their customers’ equipment, and subjugation to basic, common-law duties of care simply

(Rcontinued) jury’s proper function of deciding what reasonable pru dence dictates under those particular circumstances.”).[J-78-2013] - 26

does not make them so. 18 To the extent they may seek relief from such obligat ions and immunity from conventional tort liability outside the sphere of existing judicial decisions, their arguments are best presented to the political bra nch.

The order of the Superior Court is affirmed, albeit we find the intermediate court’s Althaus assessment to have been unnecessary and express no opinion as to its sufficiency or merits.

Former Justice McCaffery did not participate in the deci sion of this case.

Mr. Chief Justice Castille and Messrs. Justice Baer and Stev ens join the opinion. Mr. Justice Eakin files a dissenting opinion. Madame Justice Todd files a dissenting opinion.

18 Rather, for better or for worse, and in the absence o f considered, affirmative immunities, utilities are merely regulated to the exp osure and uncertainty facing other entities and persons within our existing system of civil justice as it subsumes the range of common-law duties.