IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Metropolitan Edison Company :

:

v. : No. 2188 C.D. 2014

: Argued: September 17, 2015

City of Reading, :

Appellant :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

OPINION BY JUDGE BROBSON FILED: October 15, 2015 

The City of Reading (Reading) appeals from an order of the Court of 

Common Pleas of Berks County (trial court), which held that Reading was not 

immune from liability in a suit initiated by Metropolitan Edison Company 

(Met-Ed). The trial court further held that Reading was negligent and awarded 

Met-Ed $53,000 in damages. We now reverse.

On July 7, 2009, Reading began excavating a site located on the 200 

block of North 5th Street, Reading, Pennsylvania. (Reproduced Record (R.R.)

at 416a.) The goal of the excavation was to uncover Reading’s sanitary sewer 

main in order to conduct a repair. (Id.) During the course of the excavation, 

Reading encountered an electrical duct bank1owned by Met-Ed. (Id. at 417a.) 

Reading employees observed that the duct bank was in poor condition and was 

 

1 An electrical duct bank is “a series of conduits or ducts” comprised of PVC or terra 

cotta piping, which encases underground electrical wire. (R.R. at 293a-94a.) 
2

unstable. (Id. at 296a-97a, 349a.) Specifically, part of the concrete encasing the 

duct bank had collapsed. (Id. at 332a.) Reading contacted Met-Ed’s Supervisor of 

Regional Operations, Kenneth Sweitzer, to notify Met-Ed of the condition of its 

duct bank. (Id. at 331a.) Mr. Sweitzer contacted Met-Ed’s contractor, Allen 

Homan, to inspect and repair the duct bank. (Id. at 332a.) Mr. Homan completed 

the repair of the duct bank on July 10, 2009. (Id. at 298a.) Reading resumed its 

excavation work, but, on July 15, 2009, Reading employees noticed that the duct 

bank was falling away from the wall. (Id. at 420a.) Mr. Homan returned to the site 

and found that the excavated hole was deeper and there was further erosion, but the 

repaired duct bank was still intact. (Id. at 298a-99a.) There was no shoring in 

place to prevent further erosion. (Id. at 299a.) Reading continued its excavation 

work, but, on July 20, 2009, the duct bank fully collapsed. (Id. at 352a.) 

Mr. Homan conducted an extensive repair of the duct bank, which involved the 

removal of the collapsed portions of the duct bank and the installation of a new 

duct bank. (Id. at 302a.) 

Met-Ed filed a complaint with the trial court, alleging that Reading’s 

negligence caused the collapse of the duct bank. Reading filed a motion for 

summary judgment, asserting that it was immune from liability pursuant to 

Section 8541 of what is commonly referred to as the Political Subdivision Tort 

Claims Act (Act).2 The trial court denied Reading’s motion and conducted a bench 

trial. During the bench trial, Met-Ed presented the testimony of Mr. Homan. 

Mr. Homan testified that after completing the first repair of the duct bank, he 

informed the Sewer Department Supervisor, John Farrier, that Reading’s 

 

2

42 Pa. C.S. § 8541.
3

excavation and repair needed to be completed as soon as possible, so that the hole 

could be backfilled. (Id. at 304a.) Mr. Farrier indicated that the work would be 

completed by the end of the week. (Id.) The excavated hole was not backfilled as 

of July 15, 2009, and Mr. Homan again warned Mr. Farrier that Reading’s work 

needed to be completed quickly. (Id. at 305a.) Mr. Homan indicated that if the 

hole was not promptly backfilled, “bad things” could happen. (Id.)

On October 27, 2014, the trial court issued an amended verdict in 

favor of Met-Ed and adopted Met-Ed’s proposed findings of fact and conclusions 

of law. The trial court issued an opinion on January 20, 2015, in which it 

concluded that Reading was not immune from liability. The trial court explained 

that Reading’s negligent conduct created a dangerous condition of the property. 

After Mr. Homan’s first repair of the duct bank, Reading was aware of the 

“unstable conditions of dirt and soil located underneath Met-Ed’s [duct] bank and 

the potential danger if the [duct] bank was not adequately supported.” (Trial Ct. 

Op. at 6.) Reading had sufficient notice to install shoring and correct the 

dangerous conduct before the foreseeable duct bank collapse on July 20, 2009. 

Accordingly, Reading was not immune from liability. The trial court further held 

that Reading’s actions were negligent, and it awarded Met-Ed damages in the 

amount of $53,000. Reading appealed to this Court.

The sole issue on appeal3is whether Reading was immune from 

liability in the negligence suit initiated by Met-Ed. “Generally, local agencies are 

 

3

“Our standard of review of a non-jury trial is to determine whether the findings of the 

trial court are supported by competent evidence, and whether an error of law was committed.” 

Swift v. Dep’t of Transp., 937 A.2d 1162, 1167 n.5 (Pa. Cmwlth. 2007), appeal denied, 950 A.2d 

270 (Pa. 2008).
4

immune from tort liability under Section 8541 of the . . . Act.” Gibellino v. 

Manchester Twp., 109 A.3d 336, 342 (Pa. Cmwlth. 2015). There are, however, 

exceptions to this immunity. See 42 Pa. C.S. § 8542. Section 8542(b)(5) of the 

Act, 42 Pa. C.S. § 8542(b)(5), provides:

(b) Acts which may impose liability.--The following 

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 circumstances of the dangerous condition at a 

sufficient time prior to the event to have taken 

measures to protect against the dangerous 

condition.

“Because of the clear intent to insulate government from exposure to tort liability, 

the exceptions to immunity are to be strictly construed.” Lockwood v. City of 

Pittsburgh, 751 A.2d 1136, 1139 (Pa. 2000). Under Section 8542(b)(5) of the Act, 

“liability depends first on the strictly legal determination that the injury was caused 

by a condition of the property itself, which has its origin or source in the property.” 

Miller v. Dep’t of Transp., 690 A.2d 818, 820-21 (Pa. Cmwlth. 1997). The term 

right-of-way, as it relates to the exception provided in Section 8542(b)(5) of the 

Act, “include[s] the strip of land on which the local agency construct[s] its utility 

service facilities.” Id. at 820.

Reading cites Metropolitan Edison Company v. Reading Area Water

Authority, 937 A.2d 1173 (Pa. Cmwlth. 2007), in support of its contention that it is 
5

immune from liability.4 In Metropolitan Edison Company, employees of the

Reading Area Water Authority (water authority) struck and damaged a Met-Ed 

utility line during the course of an excavation. Met-Ed filed a suit against the 

water authority, alleging that the water authority failed to take reasonable steps to 

protect Met-Ed’s property pursuant to the Pennsylvania “One Call Act.”

5

 The 

water authority moved for summary judgment, asserting that it was immune from 

liability. The trial court granted the water authority’s motion, and Met-Ed 

appealed to this Court. On appeal, Met-Ed argued that “the design, construction, 

installation and maintenance of [the water authority]’s water line, in close 

proximity to Met-Ed’s utility line, constitute[d] a dangerous condition of [the water 

authority]’s water distribution system.” Metro. Ed. Co., 937 A.2d at 1175. This 

Court explained that to qualify for immunity under Section 8542(b)(5) of the Act, 

“the allegedly dangerous condition must have derived or originated from, or had its 

source as the local agency’s realty.” Id. Met-Ed failed to allege that the dangerous 

condition originated with the water line. Instead, this Court reasoned that “the 

dangerous condition, as alleged, originated with the conduct of [the water 

authority]’s employees.” Id. (emphasis added). The water authority, therefore, 

was immune from liability. Reading argues that the dangerous condition in the 

instant matter also originated with the conduct of its employees, and, thus, it is 

immune from liability. We agree.

 

4 Reading also argues that the “policy implications of a local agency being liable for its 

employees’ excavation activities require a reversal of the trial court’s ruling.” (Reading Br. at 

23.)

5 Act of December 10, 1974, P.L. 852, as amended, 73 P.S. §§ 176-86.
6

Here, the trial court noted that the dangerous condition was “the 

unstable condition[] of the dirt and soil located underneath Met-Ed’s [duct] bank.” 

(Trial Ct. Op. at 6.) The dangerous condition, however, did not originate from 

Reading’s facilities. Rather, the dangerous condition derived from the conduct of 

Reading’s employees during the excavation. Specifically, Reading’s employees

removed the soil beneath the duct bank, did not use support or shoring to stabilize 

the duct bank, and did not promptly backfill the excavated hole. In this respect, the 

instant matter is analogous to Metropolitan Edison Company, wherein the conduct 

of the water authority’s employees created the dangerous condition.6 The 

 

6 Met-Ed argues that Metropolitan Edison Company is distinguishable from the instant 

matter, because the water authority’s employees in Metropolitan Edison Company directly 

caused the damage to Met-Ed’s utility line. Specifically, Met-Ed contends that although an 

agency may not be liable for damage it causes directly, an agency may, through its negligent 

conduct, create a dangerous condition of the property that later causes damage. Met-Ed cites 

DeTurk v. South Lebanon Township, 542 A.2d 213 (Pa. Cmwlth. 1988), in support of this 

proposition. In DeTurk, South Lebanon Township and South Lebanon Township Authority 

(collectively, township) hired a contractor to assist in the construction of a water collection 

system. During the course of this construction, the contractor added a layer of asphalt to an 

adjacent alley, which raised the road surface by four inches. After the project was completed, 

the area experienced heavy rain, and the water ran off the road surface and into Glenn DeTurk’s 

(DeTurk) garage. In attempting to remove plywood sheets from his garage, DeTurk slipped and 

fell. DeTurk filed a complaint against the township for negligent construction of the water 

collection system, and the township filed a motion for summary judgment, asserting that it was 

immune from liability. The Court of Common Pleas of Lebanon County granted the township’s 

motion, explaining that there was insufficient evidence to show that the township had notice of a 

dangerous condition. DeTurk appealed to this Court, which reversed. We concluded that “the 

construction of the swale by the [t]ownship . . . place[d] them in the exception from immunity 

under Section 8542(b)(5) [of the Act].” DeTurk, 542 A.2d at 215. Further, evidence that the 

water collection system was constructed to alleviate known problems concerning water run-off 

and evidence that the contractor damaged the swale during paving was sufficient to show that the 

township had constructive notice of the dangerous condition of the water collection system.

The instant matter is distinguishable from DeTurk. In DeTurk, the dangerous condition 

derived from the road surface. As noted above, the dangerous condition here arose from 

(Footnote continued on next page...)
7

exception from immunity in Section 8542(b)(5) of the Act does not apply in this 

case, and Reading, therefore, is immune from liability.7

Accordingly, we reverse the trial court’s order.

 

 P. KEVIN BROBSON, Judge

 

(continued...)

Reading’s excavation activities at the site—namely, removal of soil from beneath Met-Ed’s duct 

bank, failure to use proper shoring to stabilize the duct bank, and failure to promptly backfill the 

excavated hole.

7 Because we reverse the trial court’s order, we need not address Reading’s additional 

argument concerning the policy implications of affirming the trial court’s order.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Metropolitan Edison Company :

:

v. : No. 2188 C.D. 2014

:

City of Reading, :

Appellant :

O R D E R

AND NOW, this 15th day of October, 2015, the order of the Court of 

Common Pleas of Berks County is hereby REVERSED.

 

 P. KEVIN BROBSON, Judge