Utility Exception to governmental immunity under Political Subdivision Tort Claims Act applies to dangerous conditions caused by work performed on facilities of local agency and created by agency’s negligent actions/inaction.

The plaintiff, an electrical service provider, brought an action in negligence against the City of Reading to recover damages and costs it incurred in making repairs to its equipment, which it claimed were caused by the city’s negligence.

The city’s sewer workers were excavating part of a city street to make repairs to the sewer main. Part of Met-Ed’s conduit banks buried within the city street became exposed, and the city’s employees noted that part of the concrete encasement surrounding the wires had become damaged. They notified Met-Ed, who sent a contractor to perform repairs. During these repairs, it was noted that the excavated hole was unstable, with no shoring to prevent it from caving-in or collapsing. Met-Ed’s contractor advised the city workers that the hole needed to be backfilled as soon as possible or the conduit bank would be unsupported and collapse. The city continued to further excavate the hole and did not take any measures to either shore up the excavated areas or prevent rainwater from entering the excavated areas. Heavy rains caused the earth supporting the conduit bank to be washed away, resulting in the total collapse of an extensive portion of the electrical conduit and the need for extensive repairs.

Met-Ed sued the city on the theory that it was negligent in the manner in which it performed the excavations, which caused damages to Met-Ed’s property. Following discovery, the city moved for summary judgment under the Political Subdivision Tort Claims Act (PSTCA). Met-Ed responded by arguing that the utility service exception applied because the excavation constituted a “[d]angerous condition of the facilities of [the city’s] sewer…systems owned by the local agency and located within rights-of-way…” The trial court denied the motion, and the case proceeded to a non-jury trial in which the trial court found in favor of Met-Ed. On appeal, the Commonwealth Court reversed and determined that the city was immune from liability under the PSTCA as the “dangerous condition” that caused the damages was not the sewer system but, rather, the negligent excavation activities.

In reversing the Commonwealth Court, the Pennsylvania Supreme Court examined the language of the PSTCA. Contrary to the Commonwealth Court’s construction, the Supreme Court held that the fact that the city’s employees created the dangerous condition by negligent excavation does not render the Utility Exception inapplicable. “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 necessary to trigger the Utility Exception is the failure of a local agency to remediate a dangerous condition of which it has notice.” The court held that under the Utility Exception, the focus must be on whether the injuries alleged were caused by a dangerous condition that derived from, originated from, or had its source in the local agency’s utility service facility and located within its right-of-way, not on the “genesis of the dangerous condition.”

The troubling aspect of this decision, as pointed out in a dissenting opinion by Justice Saylor, is that the language of the PSTCA is supposed to be construed strictly given the legislature’s intent to provide immunity to political subdivisions and their agencies. Equating the excavated hole as part of the city’s sewer system, the Supreme Court has watered down that rule of construction, which will certainly be used by plaintiffs’ counsel in advocating for further expansion of the scope of the “exceptions” to immunity.

^{Case Law Alerts, 4th Quarter, October 2017}

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