A Pennsylvania woman may take her claim against PECO Energy Co. to trial, the state Superior Court has ruled, in a case where the plaintiff is alleging the electricity provider did not adequately maintain a streetlight at the scene of a vehicle-pedestrian accident in which she was injured.

In overturning a trial judge who had dismissed PECO on summary judgment, the split three-judge panel decided there were genuine issues of material fact regarding PECO’s maintenance of the West Norriton, Pa., light fixture, which the record suggests was outdated, improperly maintained, unadjusted when the road widened from two to four lanes and inadequate in terms of lighting.

The majority also concluded there were genuine issues of fact regarding whose duty it was to determine the light’s brightness — PECO or the township — after the two apparently assigned the duty to maintain — and therefore blame — on each other at depositions.

“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,” Judge Sallie Updyke Mundy wrote for the majority. “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.”

The ruling in Wilson v. PECO first came as an unpublished memorandum decision in September, according to the docket, but was published as citable law December 20 after plaintiff Delissa Wilson moved for publication.

Her attorney, Dale G. Larrimore of Larrimore & Farnish in Philadelphia, said there had been no appellate authority in Pennsylvania on the issue of liability where the energy company undertakes a duty to maintain a streetlight, though there were some trial court opinions.

“My position is if they undertake the duty and do so negligently, they can be liable,” Larrimore said. “The jury will have to determine [who was liable]; West Norriton and PECO are going to try to lay the blame on each other.”

The crux of the issue on appeal dealt with the extent to which PECO had a duty to maintain the light fixture. The energy provider acknowledged ownership of the light and conceded its duty, but maintained that changing the light bulb every four years and providing electricity were sufficient for it to meet its obligation.

Wilson argued 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,’” the opinion said.

A PECO account manager, Marie M. Hoey, testified at a deposition that the fixture was installed in 1970 and that PECO had not replaced the luminaire in 35 years of maintenance. At some point after its installation, the highway widened from two to four lanes and the light was not adjusted to illuminate the entire street.

A police officer who responded to the accident and who was deposed described the light in his accident report as an “‘antiquated’” and “‘old, regular type light [that] was installed when the roadway was two lanes.’” The officer also testified that the light in question was one of few that had not been updated from standard light bulbs to fluorescent ones.

Depositions also left unsettled the question of who was responsible for the brightness of the light. Hoey said the township instructs PECO on lighting levels, while a township official said such was the sole responsibility of PECO.

According to the opinion, Wilson was hit by a vehicle in 2005 while she was on foot trying to get to a SEPTA bus stop. Wilson sued the driver, Mark Chiapetta, PENNDOT and West Norriton Township. She then brought a separate action against PECO and Exelon Corp., PECO’s corporate parent, also sounding in negligence. (Exelon has been dismissed from the lawsuit.) PECO subsequently moved to join SEPTA as an additional defendant, but the court dismissed all claims against the transit authority in November 2011.

A Montgomery County Court of Common Pleas judge granted summary judgment in favor of PECO in 2010.

In a dissenting opinion, Judge James J. Fitzgerald said he would affirm that decision, holding that Wilson had not established PECO’s performance of its duty was a proximate cause of her injuries under Section 323 of the Restatement (Second) of Torts.

He said the plaintiff had not identified genuine issues of material fact regarding PECO’s knowledge of a duty to, as Wilson pled, “‘update and modernize’” the streetlight at issue.

He said the record showed the township, not PECO, decides how bright the lights are.

Ben Present can be contacted at 215-557-2315 or bpresent@alm. Follow him on Twitter @BPresentTLI.

(Copies of the 22-page opinion in Wilson v. PECO Energy, PICS No. 12-2411, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •