Wilson v. PECO Energy Co. , 2012 Pa. Super. 279 ( 2012 )

OPINION BY

MUNDY, J.:

Appellant, Delissa Wilson, appeals from the November 1, 2010 order granting summary judgment in favor of Appellee, PECO Energy Company (PECO).¹ Because we find issues of material fact exist which preclude the entry of summary judgment, we reverse and remand for proceedings consistent with this opinion.

The relevant facts and procedural history of this case, as summarized by a prior panel of this Court, are as follows.

In November 2005, a vehicle driven by Mark Chiapetta (“Chiapetta”) struck [Appellant] at the intersection of Trooper Road and Betzwood Drive in West Norriton, Montgomery County, as she attempted to reach a SEPTA¹ bus stop. [Appellant] subsequently filed two lawsuits, both sounding in negligence. [Appellant] first filed suit against Chiapetta, the Pennsylvania Department of Transportation (“PENNDOT”), and West Norriton Township. [Appellant] then filed a separate suit against PECO and its corporate parent Exelon Corporation (“Exelon”). PECO owned and maintained the streetlight at the intersection in question, and [Appellant] alleged that the streetlight did not adequately illuminate the entire roadway.

On June 5, 2008, the trial court entered an order consolidating the two cases “for all purposes including discovery and trial.” On December 8, 2008, PECO filed a motion for leave to join SEPTA as an additional defendant, which the trial court granted on January 21, 2009. On March 20, 2009, SEPTA filed an answer and new matter to PECO’s joinder complaint, and on April 25, 2009 PECO filed a reply to new matter. On March 16, 2010, SEPTA filed a motion to amend its answer and new matter, which the trial court subsequently granted.

On June 4, 2010, PECO filed a motion for summary judgment seeking the dismissal of all claims in [Appellant’s] complaint. Ater oral argument, on November 1, 2010, the trial court granted summary judgment in favor of PECO. [Appellant] filed a Notice of Appeal later that same day. In accordance with the trial court’s order to do so, on November 16, 2010 [Appellant] filed a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal. On December 16, 2010, all parties agreed to a stipulation of dismissal of Exelon. On December 23, 2010, the trial court filed a Pa.R.A.P. 1925(a) written opinion in support of its grant of summary judgment in favor of PECO.

¹ Southeastern Pennsylvania Transportation Authority (“SEPTA”).

Wilson, D. v. PECO, 34 A.3d 231 (Pa.Super.2011) (unpublished memorandum) (footnote in original).

Thereafter, on September 19, 2011, this Court determined that “[t]he trial court’s November 1, 2010 order ... did not dispose of all claims against all parties,” as SEPTA was still a party to this litigation, and quashed Appellant’s appeal as interlocutory. Id. On November 18, 2011, the trial court granted SEPTA’s “Revised Motion for Judgment on the Pleadings,” and dismissed all claims against it. This timely appeal followed on December 16, 2011.² Pursuant to the trial court’s directive, Appellant filed a timely concise statement of matters complained of on appeal in accordance with Pa.R.A.P. 1925(b) on December 28, 2011. In lieu of filing a formal Rule 1925(a) opinion, the trial court indicated on January 6, 2012 that it was relying on its reasoning as set forth in its prior December 22, 2010 opinion.³

On appeal, Appellant raises the following issues for our review.

1. Did the [t]rial [c]ourt err in finding that Appellee PECO’s duty to “maintain” the streetlights in West Norriton Township was satisfied by providing electricity and changing light bulbs every four years?

2. Did the [t]rial [c]ourt err in finding that Appellee PECO was entitled to Judgment as a Matter of Law where the undisputed facts are:

A. PECO owned the streetlights at this intersection;

B. PECO assumed the duty to “maintain” the streetlights at this intersection;

C. The streetlight at this intersection was an “old regular house type bulb, that was installed when the roadway was two lanes” and “did little or nothing to light the area;”

D. The streetlight at this intersection did not provide adequate lighting at the scene of this accident because it was “antiquated” and was placed at this location in July of 1970, when the roadway was a two-lane roadway;

E. The streetlight in question was on an arm that extended just over the curb lane and not toward the middle of the highway, and it did not “handle the complete roadway” at this location;

F. PECO failed to update or modernize this streetlight for 30 years, even though the road doubled in width and the traffic volume increased and pedestrians regularly crossed at this intersection;

G. PECO failed to update and modernize street lighting on this roadway with new technology lights that would have made the intersection safe for the activities for which it was regularly used;

H. The streetlights at this intersection on the evening of the accident were not safe for pedestrians attempting to cross Trooper Road.

Appellant’s Brief at 4. For the purposes of our review, we have elected to address Appellant’s claims simultaneously.

In reviewing a trial court’s grant of summary judgment, we are guided by the following scope and standard of review.

Our scope of review of a trial court’s order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or abused its discretion.

Summary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmov-ing party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment.

Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa.Super.2012) (citations omitted).

A plaintiff who brings an action sounding in negligence must establish the following four elements: “1. [a] duty or obligation recognized by law[,] 2.[a] breach of the duty[,] 3. [clausal connection between the actor’s breach of the duty and the resulting injury[, and] 4. [ajctual loss or damage suffered by complainant.” Cooper v. Frankford Health Care System, Inc., 960 A.2d 134, 140 n. 2 (Pa.Super.2008) (citation omitted), appeal denied, 601 Pa. 679, 970 A.2d 431 (2009). The plaintiff has the burden of proving all of the above elements. Feeney v. Disston Manor Personal Care Home, Inc., 849 A.2d 590, 594 (Pa.Super.2004), appeal denied, 581 Pa. 691, 864 A.2d 529 (2004).

Additionally, Pennsylvania has adopted section 323 of the Restatement (Second) of Torts, which provides as follows.

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement (Second) of Torts § 323. See Unglo v. Zubik, 29 A.3d 810, 813 (Pa.Super.2011) (stating, “[s]ection 323 [of the Restatement (Second) of Torts] has been adopted as the law in Pennsylvania[ ]”) (citations omitted).

Herein, Appellant contends that PECO had a duty to “maintain” the streetlight in question that extended beyond “providing electricity and changing light bulbs every four years.” Appellant’s Brief at 4, 11. Appellant avers PECO is responsible for using reasonable care in its maintenance including updating the light fixture and its brightness. Id. at 11-13. PECO, in turn, concedes that they own the streetlight in question and have the duty to maintain it, but aver that changing the light every four years and providing electricity discharged its obligation. See PECO’s Brief at 11-20. The trial court concluded that, “[PECO] is entitled to summary judgment as a matter of law” because Appellant failed to prove that PECO had a duty to “updat[e] and moderniz[e] streetlights with new technology lights to ensure the safety of pedestrians who cross the roadway.” Trial Court Opinion, 12/22/10, at 3.

Upon careful review of the evidence, viewed in the light most favorable to Appellant as the non-moving party, we are compelled to disagree with the trial court’s conclusions. Our review of the pleadings, depositions, and exhibits in this matter reveals that there is a genuine issue of material fact with regard to PECO’s duty to “properly maintain” the streetlight in question. Contrary to the trial court’s determination, there exists a genuine issue of material fact with regard to whether PECO undertook its duty with reasonable care. Likewise, there are facts upon which a jury could conclude that PECO’s duty extended beyond merely providing electrical service and hiring another company⁴ to change the light bulbs every four years. Id.; see also Deposition of Marie M. Hoey, 7/16/09, at 8, 50-51.

As noted, “[o]ne who undertakes” a duty, like PECO in the instant matter, “is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care ...” Restatement (Seoond) of Torts § 323. This Court has long recognized that the determination of whether a defendant exercised reasonable care in the performance of a duty under section 323 is a question for the jury. See e.g. Feeney, supra at 596 (stating, “[a] jury would certainly be free to find that defendants’ failure to [supervise the decedent and monitor his whereabouts] does not constitute reasonable care[]”); Filter v. McCabe, 733 A.2d 1274, 1277 (Pa.Super.1999) (holding, a claim under section 323 that the defendant was negligent in caring for the plaintiff after his fall “was for a jury to determine factually” and it was for a jury to determine whether “there is liability on the part of [the defendant]”), appeal denied, 563 Pa. 645, 758 A.2d 1200 (2000).

Herein, although PECO acknowledges a duty to “properly maintain” the streetlight in question, there exists a genuine issue of material fact with regards to whether said duty was undertaken with the reasonable care necessary to protect individuals crossing Trooper Road in the face on oncoming traffic. First, the record reveals that the streetlight in question was by all reasonable accounts, outdated, and that PECO had failed to update the light fixture for more than three decades. Marie M. Hoey, an account manager for PECO that has been employed by the company for 25 years, testified that the light fixture in question was installed on July 7, 1970, and that PECO had never replaced the lumi-naire in over 35 years of “maintenance.” Deposition of Marie M. Hoey, 7/16/09, at 5-6, 26-28. Likewise, West Norriton Police Officer Alfonso A. Fazio, who conducted the initial investigation of the accident scene, described this light in his accident report as an “antiquated” and “old, regular type light [that] was installed when the roadway was two (2) lanes.” Police Accident Report, 11/8/05, at 3, 6. Officer Fazio further noted that all of the streetlights in West Norriton Township “used to be all the regular plain light bulbs,” but that PECO “converted over to the fluorescent type or the brighter lighting type over the years ... pretty much everywhere” except the intersection in question. Deposition of Officer Alfonso A. Fazio, 7/21/08, at 27.

Second, the record indicates that the arm of the streetlight in question did not properly extend over the roadway, despite the fact that the road was widened from a school crossing to four lanes and that traffic had increased since 1970. Deposition of Marie M. Hoey, 7/16/09, at 21-22; Deposition of Officer Alfonso A. Fazio, 7/21/08, at 22, 25, 41. Specifically, Officer Fazio, testified as follows.

The street light that was in that location, which was on a pole, was extending over just the curb lane just into the center lane, not over top of the center lane, or not over to the middle of the roadway. ... It just doesn’t extend over towards the middle of the highway.

Deposition of Officer Alfonso A. Fazio, 7/21/08, at 22.

Next, the evidence establishes that the streetlight did not provide adequate lighting for the area. Our review of the police accident report reveals that after completing his investigation, Officer Fazio concluded that, “the operator of the striking vehicle[, Mark Chiáppetta,] was not able to observe the pedestrians until the distance to them was at a point where he was unable to avoid striking [Appellant].” Police Accident Report, 11/8/05, at 6. Officer Fazio further opined that the streetlight “did little or nothing to light the area,” and “did not light the roadway up very brightly” or “handle the complete roadway.” Id. at 3; Deposition of Officer Alfonso A. Fazio, 7/21/08, at 22, 25-26. Likewise, in his deposition testimony, Chiappetta notes that Trooper Road “was dark ... profoundly dark.” Deposition of Mark Chiappetta, 12/11/07, at 17.

Lastly, our review of the deposition testimony on behalf of both PECO and West Norriton Township reveals a genuine issue of material fact with regards to which entity possessed a duty to determine the brightness of the bulb in the streetlight. Marie M. Hoey testified that West Norri-ton Township was responsible for determining the “brightness of bulb, the lumen level” on the streetlight in question, and that PECO merely followed the township’s instructions. Deposition of Marie M. Hoey, 7/16/09, at 5-6, 43, 48-49. On the contrary, the testimony of Thomas F. Cin-aglia, the Director of Public Works for West Norriton Township, suggests that these lightning issues were the sole responsibility of PECO.

Q. Am I correct then that it is your understanding that PECO installed this light on pole 44219 at the intersection?

A. Correct.

Q. After PECO installed that light did West Norriton Township ever request that the type of light fixture or light bulb be changed in any way?

A. Not to my knowledge.

Q. Did West Norriton Township ever request that a brighter light bulb be placed in that light fixture?

A. Not to my recollection.

Q. Do you have any knowledge or information concerning the wattage or the lumen level of any of the lights that are on — the streetlights anywhere in West Norriton Township?

A. No.

Q. One of the areas that I indicated that I would be going to ask about today in the deposition, item number 15 was the following:

Whether or not West Norriton Township had any policy procedure or general practice concerning the inspection of streetlights within the township to determine broken, missing, burnt out, too dim or no longer illuminating the area properly, and if so the details about that inspection procedure, policy or practice.

I sort of asked this before, although, not using those words and you have indicated to me that the procedure that West Norriton Township had was complaints by citizens and reports by police officers; is that correct?

A. That is correct.

Q. And there is no other policy, procedure or practice?

A. No.

Q. I think I asked you if you ever asked for advice from PECO about the brightness or the wattage of the light bulbs and you told me no.

Did PECO ever recommend to the township that any changes be made in the wattage or lumen level or brightness of the streetlights?

MR. DIANNO: Objection to the form. You may answer.

[A.] No.

Deposition of Thomas F. Cinaglia, 1/20/09, at 19, 35-36.

This Court has recognized “[t]he determination of whether an act ... constitutes negligence, of any degree, in viéw of all the evidence has always been particularly committed to determination by a jury.” Snead v. Society for Prevention of Cruelty to Animals of Pennsylvania, 929 A.2d 1169, 1183 (Pa.Super.2007) (citation omitted; emphasis added), affirmed, 604 Pa. 166, 985 A.2d 909 (2009), appeal denied, 606 Pa. 651, 992 A.2d 890 (2010). Herein, as noted, the record clearly demonstrates there are genuine issues of material fact upon which a jury could conclude that PECO failed in its duty to “maintain” the streetlight with reasonable care by merely “providing electricity and changing light bulbs every four years.” See Appellant’s Brief at 4, 11; PECO’s Brief at 11-20.⁵

Accordingly, for the foregoing reasons, we reverse the trial court’s November 1, 2010 order granting summary judgment in favor of PECO and remand for further proceedings.

Order reversed. Case remanded. Jurisdiction relinquished.

Justice JAMES FITZGERALD files a Dissenting Opinion.

1 . On April 4, 2012, counsel for West Norriton Township filed a letter in this Court indicating tiiat it is not a party in this litigation and thus, will not be filing an appellate brief in this matter.

2 . We note that Appellant's appeal is solely from the November 1, 2010 order granting PECO's motion for summary judgment, and not the November 18, 2011 order dismissing all claims against SEPTA.

3 . On March 5, 2012, this Court directed Appellant to show cause as to the basis of this Court’s jurisdiction over this matter. Superi- or Court Per Curiam Order, 3/5/12. Appellant filed a response to said order on March 9, 2012, indicating that SEPTA is no longer a party to this litigation and that this case falls within the exclusive jurisdiction of this Court. Appellant’s Statement in Support of Jurisdiction of Superior Court Over this Appeal, 3/9/12, at ¶¶ 9-20. Upon review, we agree.

4 . The record indicates that PECO contracted with MJ. Electric to replace the bulbs in the streetlights. See Deposition of Marie M. Hoey, 7/16/09, at 50.

5 . Our extensive review of the case law of this Commonwealth yields no controlling authority on the precise duties a utility company owes with regard to streetlights it owns and maintains. Furthermore, the cases relied on by the trial court, Flatley v. Upper Darby Township, 56 Pa. D. & C.2d 179 (Pa.Com.Pl.1972), and Dattner v. Lamm, 5 Pa. D. & C.2d 552 (Pa.Com.Pl.1956), are clearly distinguishable from the instant matter. See Trial Court Opinion, 12/22/10, at 4-5. Flatley and Datt-ner, unlike the case sub judice, involve situations where there were no operating streetlights and the pedestrians were on notice that there was a dangerous condition present. Additionally, these decisions are clearly not binding on this Court. See Branham v. Rohm and Haas Co., 19 A.3d 1094, 1103 (Pa.Super.2011) (stating, "common pleas court decisions are not binding on appellate courts [in this Commonwealth]”) (citations omitted), appeal denied, -Pa.-, 42 A.3d 289 (2012).