Se. Reprographics, Inc. v. Bureau of Prof'l & Occupational Affairs

139 A.3d 323
CourtCommonwealth Court of Pennsylvania
DecidedMay 24, 2016
DocketNo. 2235 C.D. 2014
StatusPublished
Cited by2 cases

This text of 139 A.3d 323 (Se. Reprographics, Inc. v. Bureau of Prof'l & Occupational Affairs) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Se. Reprographics, Inc. v. Bureau of Prof'l & Occupational Affairs, 139 A.3d 323 (Pa. Ct. App. 2016).

Opinion

OPINION BY Judge BONNIE BRIGANCE LEADBETTER.

Southeastern Reprographics, Inc., now known as The Davey Resource Group (DRG), petitions for review of the order of The State Registration Board for Professional Engineers, Land Surveyors and Geologists (Board), which concluded that DRG offered to perform and performed professional services without proper licensure in violation of the Engineer, Land Surveyor and Geologist Registration Law (Law),3 63 P.S. §§ 148 -158.2.4 The primary issue raised on appeal is whether DRG offered to perform and performed an "engineering land survey" when it used various tools, including, inter alia, maps and mobile GPS/GIS equipment, to locate and identify a customer's physical assets for a non-engineering purpose; this is an issue of first impression. After review, we reverse.

The Board's undisputed findings along with the record reveal that in 2006, Central Electric Cooperative, Inc. (CEC), a rural electric distribution cooperative, contracted with DRG to provide a GIS electric system field inventory in order to create a GIS database.5 See CEC's Request for Proposal, Section 3, Reproduced Record (R.R.) at 211a. Accordingly, DRG personnel were required to "go out in the field" and locate every piece of electric equipment that CEC owned, such as transmission poles, distribution poles, security and street light poles, pad-mounted equipment, regulators and meters.6 CEC's assets *326were located in an area that spanned six or seven counties, included over 100 square miles of land, and involved 3,200 miles of electrical lines and 100,000 point locations requiring inventory. Using maps and mapping grade GPS/GIS technology, DRG's field staff geographically located CEC's assets to sub-meter accuracy, took an inventory of all equipment at each location and identified and tagged the equipment.7 Id. at 213a, 214a. Based on this evidence, the Board found that DRG's field staff, unlicensed under the Law, used GPS/GIS equipment, mathematical calculations and other tools to search, identify and locate the x-y coordinates of CEC's assets on the Earth's surface.8 Board's Final Adjudication and Order (November 14, 2014) (Board's decision), Finding of Fact (F.F.) No. 12. DRG then transferred the collection of x-y coordinates for the located assets to CEC electronically to be plotted on a base map. Id., F.F. Nos. 13, 25. The Board also found that in 2007, DRG represented on its website that it has provided mapping and field inventory services to utility companies on a national basis for over twenty years and that it can provide "GPS surveying for the development of accurate base maps locating fixed objects on the surface of the earth to within a margin of error of one or less meters after post processing." Id., F.F. No. 15.

Although not determinative of our analysis or legal conclusion, we note that the record which developed before the Board focused on DRG's use of GPS technology to locate the assets when performing the field inventory, multiple expert opinions regarding how GPS works, the use of GPS technology in the practice of land surveying and whether the use of GPS in these circumstances constituted the performance of an engineering land survey under the Law. See generally Board's discussion at 14-17, 18-21. The Board ultimately concluded that by performing the actions described, DRG "engag[ed] in activity of determining by measurement methods the position of fixed objects on the [E]arth's surface [through the use of Global Positioning System and Geospatial Information Systems],"9 which constitutes an "engineering *327land survey" under the Law and, therefore, DRG violated the Law when it engaged in the practice of land surveying without the necessary license. Board's decision at 13, 18. In addition, the Board concluded that DRG violated the Law by offering to practice land surveying without employing a licensed professional land surveyor.10

The Board also determined that DRG performed a geodetic survey with the GPS equipment, again violating the Law due to its lack of licensed personnel:11

The field survey work for this project and violation involves the collection of raw GPS data and post processing the raw data. This survey project covers a very huge land mass area containing large amounts of survey data. The job ... is enormous ... requiring millions of measurements to be post processed to create a land base map, utilizing sophisticated post processing software to complete statistical math calculations to determine final point positions. [DRG] did survey a land mass. Testimony provided, suggest [sic] that [CEC] and DRG were not concerned about ownership or jurisdiction, however; this GPS survey is concerned with the electrical facilities within the confines of lands for which [CEC] has either a right-of-way interest to lands owned by others or facilities within lands owned by [CEC]. GPS measurements and calculations take into consideration the curvature of the [E]arth. All geo-referenced point grid systems are referenced to distances north and south of the equator [latitude of zero degrees] and also distances east or west of Greenwich, England [the mean meridian; longitude of zero degrees]. Latitudes and Longitudes are lines of arc which follow the curvature of the [E]arth. [DRG] did use GPS survey equipment and [it] did utilize the Pennsylvania State Plane Coordinate System. According to testimony given by Mr. Renning[, Vice President and General Manager] of DRG, they relied on the HARN [High Accuracy Reference Network].... [DRG] did perform every aspect of the definition of a Geodetic Survey with GPS survey equipment from the HARN monuments and relying on and perpetuating the published data of those monuments along 3,200 miles of facility and survey lengths taking into consideration the curvature of the [E]arth with their measurements to acquire their GPS data to establish [its] land base mapping project for [CEC]
*328and now having the public be the ultimate user of the data collected and post processed.

Board's decision at 19-20.

Prior to turning to the arguments raised on appeal, it is helpful to reference the relevant statutory provisions. Section 2 of the Law (Definitions) provides in relevant part:

(a)(1) "Practice of Engineering " shall mean the application of the mathematical and physical sciences for the design of public or private buildings, structures, machines, equipment, processes, works or engineering systems, and the consultation, investigation, evaluation, engineering surveys, construction management, planning and inspection in connection therewith, the performance of the foregoing acts and services being prohibited to persons who are not licensed under this act as professional engineers unless exempt under other provisions of this act.
(2) The term "Practice of Engineering " shall also mean and include related acts and services that may be performed by other qualified persons,

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Bluebook (online)
139 A.3d 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/se-reprographics-inc-v-bureau-of-profl-occupational-affairs-pacommwct-2016.