985 A.2d 840 (Pa. 2009)
Excavation Technologies, Inc. was preparing to perform excavation work for a waterline extension project.1 Before beginning the work, the company requested that Columbia Gas Co. of Pennsylvania mark the locations of its gas lines around the work sites in accordance with the requirements of the One Call Act.2
Columbia Gas improperly marked some of the lines and failed to mark others entirely.3 As a result, Excavation Technologies struck various gas lines during the course of the project.4 These incidents hampered the excavation work and caused significant delays, resulting in economic damages of $74,502.06.5 Excavation Technologies did not sustain any physical injury or property damage.6
The company then filed suit against Columbia Gas on a theory of negligent misrepresentation under Section 552 of the Restatement (Second) of Torts.7 The suit alleged that the utility had failed to comply with its statutory duties under the One Call Act.8 Columbia Gas responded by filing preliminary objections in the nature of a demurrer, arguing that the economic loss doctrine barred any recovery for purely economic damages.9
The trial court sustained the preliminary objections and dismissed the action.10 Excavation Technologies appealed the dismissal to the Superior Court, which affirmed the trial court's order in an en banc decision.11 The Supreme Court of Pennsylvania subsequently granted allowance of appeal to address the legal question of whether Section 552 imposes liability in these circumstances.12
Whether § 552 of the Restatement (Second) of Torts imposes liability for economic losses to a contractor caused when a gas utility company fails to mark or improperly marks the location of gas lines?13
The economic loss doctrine precludes recovery in negligence for solely economic damages.14 Section 552 applies only to those in the business of supplying information for pecuniary gain under subsections (1) and (2).15 Pennsylvania has not adopted subsection (3).16 The One Call Act creates no private cause of action for economic losses.17
No. Columbia Gas is not subject to liability under Section 552 for the economic losses suffered by Excavation Technologies.18 The utility company does not operate in the business of supplying information for pecuniary gain because it is required by statute to respond to all marking requests without receiving compensation.19 In contrast, the architect in Bilt-Rite prepared detailed plans and specifications over an extended period for which it was paid.20 The purpose of the One Call Act is to protect against physical harm and property damage rather than economic losses, and the statute provides no private cause of action for economic damages.21
Therefore, subsections (1) and (2) of Section 552 do not apply, and subsection (3) should not be adopted to create liability here.22
Section 552 does not impose liability for the economic losses incurred by the contractor in this scenario.23
Related opinions on this issue
Justice Saylor filed a concurring opinion agreeing that subsections (1) and (2) do not apply and that subsection (3) should not be adopted.24 He stressed that facility owners have important duties under the One Call Act to mark lines accurately within tolerance zones.25 These duties foster a sense of shared responsibility with excavators for preventing damage to buried utilities.26
Nevertheless, Saylor concluded that exposing facility owners to a new class of economic-loss litigation would lead to increased rates for consumers.27 He therefore determined that any remedy for such economic losses is best left to the legislature.28