Whether a company that collected field information about an electrical utility’s facilities was practicing surveying. Southeastern Reprographics, Inc., v. Bureau of Professional and Occupational Affairs. Commonwealth Court of Pennsylvania (2015), by Hugh Anderson

The Central Electric Cooperative (CEC), a rural electric distribution company, contracted with Davey Resource Group (DRG) to conduct a field inventory of all CEC equipment, including transmission, distribution, and light poles, equipment, regulators, and meters. These CEC assets were spread out over several Pennsylvania counties. DRG used maps and mapping-grade GPS and GIS technology to locate, identify, inventory, and tag all the equipment, and transferred digital location data to CEC for CEC’s use in mapping and tracking its assets. The Pennsylvania Registration Board for Professional Engineers, Land Surveyors and Geologists found that this work was an “engineering land survey” and therefore the practice of land surveying without a license.

On appeal, DRG presented detailed analysis of various  statutory definitions of the practice of engineering (surveying is considered a subset of engineering in Pennsylvania), of surveying, and of “engineering land surveys.” DRG argued that by definition surveying is fundamentally associated with property boundaries, and that its work did not include any reference to or determination of boundaries or land ownership. DRG also argued that the legal definition of engineering expressly involves design of structures, equipment, and systems, and that the field inventory project was not in support of or related to any design work. DRG also contended that requiring licensure for using commonly available technology such as GPS to create an inventory was unduly restrictive, and could establish an unreasonable precedent that would affect many everyday activities that involve establishing locations by GPS.

Decision: The Commonwealth Court ruled that DRG had not violated the Pennsylvania professional licensing laws when it conducted the field inventory. The most significant element of the court’s decision was its conclusion that the field inventory could not be categorized as an “engineering land survey” because engineering activities are by definition in support of a design.

The reported decision includes a well stated dissent that contends that the majority should have focused on the definition of “engineering land survey” as written, without reaching back to the definition of engineering to supplement the survey definition. The dissent also noted the importance of supporting the conclusions of the Board, which has substantial technical expertise and is alert to the critical importance of protecting the public interest—for example, by requiring professional location of dangerous facilities such as electrical transformers.

Comment: EJCDC  publishes various contract documents for professional services, including engineering, surveying, geotechnical, and other specific categories. These contracts expressly require professional licensing.

The Pennsylvania case raises an interesting question as to the consequences of lack of licensure. Suppose the Board’s view that licensing was required to conduct the field inventory had prevailed. Would the owner (the electric utility) be able to turn the illegally gathered data over to a licensed surveyor for validation—or would the licensed surveyor need to re-conduct the entire inventory, by repeating the field work conducted by the unlicensed firm?