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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF PENNSYLVANIASTATE FARM FIRE AND CASUALTY CO,A/S/O DONALD BOLLENDORF, andALLSTATE INSURANCE CO.,A/S/O QUADRI ADESEUN,Plaintiffs,::::::v.::PPL ELECTRIC UTILITIES,:Defendant / Third-Party Plaintiff,::v.::QUADRI ADESEUN,:Third-Party Defendant.:No. 5:16-cv-2703OPINIONPPL’s Motion for Summary Judgment, ECF No. 46 – Denied in PartAdeseun’s Motion for Summary Judgment, ECF No. 49 – DeniedJoseph F. Leeson, Jr.United States District JudgeI.June 9, 2017INTRODUCTIONPlaintiffs State Farm Fire and Casualty Company, as subrogee of Donald Bollendorf, andAllstate Insurance Company, as subrogee of Quadri Adeseun, filed a complaint againstDefendant PPL Electric Utilities. The Complaint alleges that PPL was negligent and in breach ofcontract by failing to inspect and maintain the service entrance cable on Adeseun’s property,which was installed by a privately-contracted electrician hired by Adeseun, the improperinstallation of which caused a fire that damaged Adeseun’s home and spread to the neighboringproperty of Bollendorf. PPL filed a third-party complaint against Adeseun for contribution orindemnity, for his actions in either retaining the electrician that performed work improperly or in1

not properly maintaining the service entrance cable after it was installed. PPL and Adeseun havefiled motions for summary judgment. Since that time, Plaintiffs have agreed to voluntarilydismiss the breach of contract claim. PPL’s request for summary judgment on the insurers’negligence claim is denied because whether PPL had constructive knowledge of a dangerouscondition impacting Adeseun’s electrical system, so as to impose a duty to take reasonablemeasures to avert harm, and what those reasonable measures, if any, should have been arequestions for a jury. Adeseun’s summary judgment motion, which is based on substantiallysimilar arguments, is also denied.II.BACKGROUNDA.Undisputed Facts1Adeseun purchased a home located at 305 Pine Street in Steelton Borough, Pennsylvania,in July 2007. He subsequently decided to upgrade the electrical service and hired Jose Bautistato complete a portion of the project. Bautista agreed to install a new, 200-amp service entrancecable and run the cable from the PPL service drop line near the weatherhead to the meter base,and from the meter base to the panel box inside the home. A PPL service drop line is theelectrical wire that runs from a PPL utility pole to the point of service at the home. At the pointof service is a weatherhead, which is a small box where the PPL line is connected to theresident’s service entrance cable. The resident leaves the end of his service entrance cablehanging out of the weatherhead for PPL to make the connection to the service drop line. Theelectric meter is the property of PPL, but the service entrance cable that runs from the meter tothe weatherhead is the property of the resident.1These facts are substantially taken directly from the parties’ submissions, which containcitations to the record. See PPL’s Stmt Facts, ECF No. 47; Pls.’ Resp. PPL Stmt Facts, ECF No.54; PPL’s Reply, ECF No. 57.2

When a Steelton Borough resident wishes to upgrade the electrical service at his home,he must first contact PPL to obtain a job number, then get a permit from the Borough thatdescribes the scope of work to be performed. Once the permit is issued, the resident may beginwork, subject to the Borough’s inspection requirements. The Borough requires three inspections:rough inspection, service inspection, and final inspection.Around September 2009,2 Adeseun contacted PPL and obtained a job number for theproject. In response, a PPL distribution service representative went to the property to measurethe service drop and to identify the meter location. During a second visit to the property, thePPL representative and Adeseun discussed the location of the meter.3An inspection hold was placed on PPL’s work order, meaning that PPL would take nofurther action at the property until a local inspector contacted PPL to certify that Adeseun’s workhad been completed and PPL could return to connect the PPL service drop line to the newlyinstalled service entrance cable. But that never occurred, and PPL took no further action on thework order. Additionally, Adeseun never contacted the Borough to arrange a final inspection.Instead, Bautista replaced the service entrance cable with the 200-amp line and connectedthe cable to PPL’s service drop on his own, without PPL’s authority and contrary to PPL’sconnection rules. Bautista was not certified to make this connection. Bautista used “bugconnectors” to unite the upgraded service entrance cable and PPL’s service drop line, which arenot the type of connectors that PPL uses. Bautista also did not route the new service entrancecable through a conduit where the cable passed through a hole cut in part of the home’s roof to2See Berdanier Dep. 41:3-43:11, Ex. D, ECF No. 54-4.There is a factual dispute as to whether Adeseun knew it was possible to move thelocation of the meter to the back of his home.33

reach the point of service on the roof.4 On February 22, 2015, a fire erupted at the propertywhich damaged Adeseun’s home, as well as the neighboring property of Bollendorf. Accordingto Plaintiffs’ experts, the service entrance cable was compromised at the point where it passedthrough the roof, and that caused the fire. 5 One expert opined that had the cable been runthrough conduit at that location, the fire would not have occurred.6It is noted that, for reasons apparently unrelated to the work order, PPL replaced themeter at Adeseun’s property in November 2012, and had its contractor inspect the meter inOctober 2014.B.Summary Judgment Motions1.PPL’s Motion for Summary JudgmentPPL filed a motion for summary judgment, asserting that Adeseun’s actions were the solecause of the fire, that PPL had no contractual or common-law duty to inspect the work performedby Adeseun’s electrician on his property, and that the insurance companies’ negligence claim isbarred by the gist of the action doctrine because the case sounds in contract. PPL furthercontends that Allstate’s claims are subject to dismissal because it is seeking to recover forpayments it voluntarily made to Adeseun for acts that were not covered under Adeseun’s policy.Finally, PPL argues that in discovery it appeared Plaintiffs were attempting to pursue another4If the service entrance cable had been routed from a meter located in the back of thepremises, it would not have had to pass through the roof.5See Fricke Expert Report 7-9, ECF No. 54-2 (opining that the fire was caused by damageto the service entrance cable where it ran unprotected through the porch roof because severalinches of recently-fallen snow caused the roof to pinch the cable, and that the failure to protectthe service entrance cable by running it through conduit was in violation of PPL rules and theNational Electric Safety Code); Schriver Expert Report 2, ECF Nos. 47-14 to -18 (opining thatthe fire originated at the porch roof where the service entrance cable ran downward along thewall from the weatherhead to the meter base, and that the rubber sheathing around the cable hadbeen compromised by movement of the porch, most recently due to several inches of fallensnow).6See Fricke Expert Report 7-9.4

theory of liability, namely that PPL should have relocated the meter box, but that this theory wasnot pleaded in the Complaint.In response, Plaintiffs agreed to dismiss the breach of contract claim and proceed solelyon their claim of negligence. Allstate argues that it did not volunteer payment, but reimbursed itsinsured in good faith because the predominant cause of the loss was covered by the policy.Plaintiffs further contend that the complaint need only contain a short and plain statement andneed not assert every individual legal theory. Adeseun filed a response stating that heincorporates and concurs with Plaintiffs’ arguments.2.Adeseun’s Motion for Summary JudgmentIn his motion for summary judgment, Adeseun argues that only PPL can be liable forbreach of contract, not Adeseun, and that due to the gist of the action doctrine this case sounds incontract such that State Farm and Allstate cannot assert a negligence claim against PPL.Adeseun asserts that the negligence claim against PPL must be dismissed, along with the thirdparty complaint against him.III.STANDARD OF REVIEWSummary judgment is appropriate “if the movant shows that there is no genuine disputeas to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.56(a). A disputed fact is “material” if proof of its existence or nonexistence might affect theoutcome of the case under applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.242, 248 (1986). An issue of material fact is “genuine” if the evidence is such that a reasonablejury could return a verdict for the nonmoving party. Id. at 257.The party moving for summary judgment bears the burden of showing the absence of agenuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once5

such a showing has been made, the non-moving party must go beyond the pleadings withaffidavits, depositions, answers to interrogatories or the like in order to demonstrate specificmaterial facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324;Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that thenon-moving party “must do more than simply show that there is some metaphysical doubt as tothe material facts”). The party opposing the motion must produce evidence to show theexistence of every element essential to its case, which it bears the burden of proving at trial,because “a complete failure of proof concerning an essential element of the nonmoving party’scase necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. The court mustconsider the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550U.S. 372, 378 (2007).IV.ANALYSIS7A.PPL owed a duty of care to Adeseun and whether it breached that duty is aquestion for a jury.A “negligence claim requires the plaintiff to show that: (1) the defendant had a duty toconform to a certain standard of conduct; (2) the defendant breached that duty; (3) such breachcaused the injury in question; and (4) the plaintiff incurred actual loss or damage.” Krentz v.Consol. Rail Corp., 910 A.2d 20, 27 (Pa. 2006). Of these elements, the primary one is whetherthe defendant owed a duty to the plaintiff. Althaus v. Cohen, 756 A.2d 1166, 1168 (Pa. 2000).Both parties initially8 cited to Alderwoods (Pa.), Inc. v. Duquesne Light Co., 106 A.3d 27(Pa. 2014), to support their respective positions as to whether PPL had a common-law duty to7In light of Plaintiffs’ consent to voluntarily dismiss its breach of contract claim, Count IIis dismissed. The only remaining count is for negligence.8Despite PPL’s reliance on Alderwoods in its brief in support of the Motion for SummaryJudgment, PPL argued in its reply brief that Alderwoods is inapplicable to the facts of this case.Compare PPL’s Brief 12-14, ECF No. 46-1, with PPL’s Reply 4-9, ECF No. 57. This Court6

Adeseun regarding any dangers that may have been presented by the installation of the newservice entrance cable, which was his own property.9In Alderwoods, several businesses, including the plaintiff’s funeral home, lost powerwhen a car crashed into a utility pole carrying electric lines connected to the funeral home. Theelectric company dispatched a crew to repair the damage. Shortly after power was restored tothe affected properties, a fire erupted at the funeral home. The funeral home offered an expertopinion that when the utility pole fell, it caused a surge to the interior electrical system of thefuneral home, resulting in visible damage to an interior electrical panel, and that the fire brokeout when power was restored. The court accepted the funeral home’s proffer that had the electriccompany inspected its own meter inside the funeral home before restoring power, it would haveseen the damage to the electrical panel owned by the funeral home because they were in closeproximity. The funeral home asserted a negligence claim, alleging that the electric companybreached its duty of care when it restored electricity without first inspecting its own meter orcontacting the funeral home.concludes that although Alderwoods involved different a factual scenario, its holding isapplicable to the instant action.9Both parties also cite to Althaus and agree that an analysis of the factors set forth thereinis not necessary, although they dispute whether application of these factors would impose a duty.Althaus held:The determination of whether a duty exists in a particular case involves theweighing of several discrete factors which include: (1) the relationship betweenthe parties; (2) the social utility of the actor’s conduct; (3) the nature of the riskimposed and foreseeability of the harm incurred; (4) the consequences ofimposing a duty upon the actor; and (5) the overall public interest in the proposedsolution.Althaus, 756 A.2d at 1169. This Court agrees with the parties that it is unnecessary to conductan analysis of the Althaus factors because the duty involved is “longstanding.” See Alderwoods,106 A.3d at 40-41 (concluding that analysis of the Althaus factors is unnecessary when applyinga longstanding duty because “[c]ommon-law duties stated in general terms are framed in suchfashion for the very reason that they have broad-scale application”).7

The court recognized that “under Pennsylvania law, maintenance and inspectionresponsibilities generally are divided at the service point, such that an electric service providerdoes not have a freestanding duty to inspect customer-owned electrical equipment and serviceson the premises’ side.” Id. at 38. Regardless, the court exp