Property Owner’s Claims Against Professional Engineer Reinstated Where Contractor Placed Water Line Outside of Utility Easement

Merlini v. Gallitzin Water Auth., 934 A. 2d 100 (Pa. Super. Ct. 2007)

In this case, the Superior Court of Pennsylvania held that a professional engineer can be either “ordinarily negligent” or “professionally negligent” in the performance of his consulting engineering tasks, or both.  He can be accountable in damages for mere negligence under common law theories of trespass, even if a plaintiff is not suing him for professional negligence.

This odd outcome is the result of an engineer directing a contractor to install a water line, without right-of-way, easement or permission, in the wrong place on the property owner’s property, that is, in a location outside of the recorded easement.  When the property owner filed a complaint in the court, but did not file the technically required certificate of merit of professional negligence required by the Pennsylvania Rules of Court, the property owner’s complaint was dismissed.  The property owner appealed, and the Superior Court had to determine whether the property owner’s complaint was asserting ordinary negligence or “professional negligence.”

The property owner claimed simply that neither the authority, nor the contractor, nor the engineer had the right to authorize entry upon the owner’s property for the laying of a water line where they had no legal permission.  The professional engineer defended himself by saying that he was acting as a professional engineer at all times.  He was professionally designing the placement of the water line within the existing easement; he was professionally directing the contractor where exactly to install the pipe with reference to his professionally designed plans.

The Superior Court held that the determining of the positions of the rights-of-way and/or easements applicable to the water line project and the breach of that duty by placing the lines in the wrong place were acts of ordinary negligence, not professional negligence.  The duty to avoid the wrong placement was owed to the property owner, and was not professional in nature.

The real lesson of this case is that an action which may be a professional act to one set of parties (e.g., acts to consult with the authority and the contractor) may create an entirely different set of duties to a third party property owner.

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