Southeastern Reprographics, Inc., Now Known as The Davey Resource Group v. BPOA, The State Registration Board for Professional Engineers, Land Surveyors and Geologists

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Southeastern Reprographics, Inc., :
Now Known as The Davey Resource :
Group, :
Petitioner :
:
v. : No. 2235 C.D. 2014
: Argued: November 18, 2015
Bureau of Professional and :
Occupational Affairs, The State :
Registration Board for Professional :
Engineers, Land Surveyors and :
Geologists, :
Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge2
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge

OPINION BY
JUDGE LEADBETTER FILED: May 24, 2016

Southeastern Reprographics, Inc., now known as The Davey Resource
Group (DRG), petitions for review of the order of The State Registration Board for

1
This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
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-

3
The Act of May 23, 1945, P.L. 913, as amended.
4
The Board also imposed a civil penalty in the amount of $2,000 for the violation and
ordered DRG to cease and desist from the practice of land surveying until it has a licensed
Professional Land Surveyor in responsible charge and is practicing in accordance with the
licensure requirements of the Law. By order dated January 15, 2015, this Court granted DRG’s
application for supersedeas.
5
“GIS,” is the acronym for Geographic Information System, which has been defined in the
context of science as: “[a] computer application used to store, view, and analyze geographical
information, especially maps;” and in the context of technology as: “[a] computer system for
capturing, storing, checking, integrating, manipulating, analyzing and displaying data related to
positions on the Earth’s surface[; it is typically] used for handling maps of one kind or another.”
www.dictionary.com/browse/geographic-information-system?s+t.

2
mounted equipment, regulators and meters.6 CEC’s assets were 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

6
Notes of Testimony (N.T.) of Fred E. Terwilliger, CEC Director of Engineering and
Operations, Reproduced Record (R.R.) at 408a. See also CEC’s Request for Proposal, Section 3,
Task II (listing items to be inventoried), R.R. at 213a.
7
The Global Positioning System, also known as “GPS,” is a constellation of Earth-orbiting
satellites, which, in very simple terms, emit signals that hand-held GPS receivers analyze and
measure in an elaborate process to calculate a three dimension position on the Earth’s surface.
See generally http://electronics.howstuffworks.com/gadgets/travel/gps.htm/printable and
http://www.faa.gov/about/office_org/headquarters_offices/ato/service_units/navservices/gnss/gp
s/howitworks/ (both websites last visited April 4, 2016). As the former article notes, “[f]or less
than $100, you can get a pocket-sized [GPS] gadget that will tell you exactly where you are on
Earth at any moment. As long as you have a GPS receiver and a clear view of the sky, you’ll
never be lost again.” According to the Board, while there are hundreds of different GPS
receivers available on the market, only certain receivers are suitable for GPS surveying. Unlike
GPS receivers used primarily for recreational uses, GPS receivers used for surveying purposes
are capable of accuracies of sub-meter to sub-centimeter, capable of differential GPS, real-time
GPS, static GPS and other hybrid techniques and often provide post-processing and network
adjustment software. Board’s decision at 13 n.7.
8
The mathematical calculations noted by the Board appear to be those performed
automatically by the GPS unit or the post-processing software, which further refines or corrects a
field position from within 10-20 meters of the object’s exact location to within one meter of that
location.

3
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 land 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

9
In general, “[g]eospatial technology refers to equipment used in visualization,
measurement, and analysis of earth’s features, typically involving such systems as GPS (global
positioning systems), GIS (geographical information systems), and RS (remote sensing).” See
http://www.usnews.com/science/articles/2011/05/11/geospatial-technology-as-a-core-tool (last
visited April 4, 2016).

4
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-

10
In concluding DRG violated the Law, the Board referenced Sections 2(d) (“Practice of
Land Surveying” defined), (j)(ii) (“Engineering Land Surveys” defined), 3(a) (Practice of
engineering, land surveying or geology without a license and registration prohibited), and 6
(Practice of engineering, land surveying and geology by firms and corporations), as amended, 63
P.S. §§ 149(d), (j)(ii), 150(a) and 153.
11
Geodetic surveys are “surveys of land masses, with or without regard for ownership of
jurisdiction, and take into consideration the curvature of the [E]arth. Such surveys are conducted
mainly by means of the Global Positioning System, and are apt to employ the Pennsylvania State
Plane Coordinate or Latitude/Longitude Systems.” Board’s decision at 19 [quoting the Manual of
Practice for Professional Land Surveyors in the Commonwealth of PA (Manual of Practice),
adopted by the Pennsylvania Society of Land Surveyors on July 10, 1998, Section 9.1(a)(2)],
R.R. at 540a. According to the Manual of Practice, geodetic surveying “is used in land
surveying either to make ties to geodetic monuments or to establish control points for large
projects.” Id., commentary to Section 9.1(a)(1)(B), R.R. at 621a.

5
 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] and 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.

6
 (2) The term “Practice of Engineering” shall also
mean and include related acts and services that may be
performed by other qualified persons, including but not
limited to, municipal planning, incidental landscape
architecture, teaching, construction, maintenance and
research but licensure under this act to engage in or
perform any such related acts and services shall not be
required.
....
(4) The “Practice of Engineering” shall not preclude
the practice of the sciences which shall include but not be
limited to: soil sciences, geology, physics and chemistry.
....
(d) “Practice of Land Surveying” means the practice
of that branch of the profession of engineering which
involves the location, relocation, establishment,
reestablishment or retracement of any property line or
boundary of any parcel of land or any road right-of-way,
easement or alignment; the use of principles of land
surveying, determination of the position of any
monument or reference point which marks a property
line boundary, or corner setting, resetting or replacing
any such monument or individual point including the
writing of deed descriptions; procuring or offering to
procure land surveying work for himself or others;
managing or conducting as managers, proprietors or
agent any place of business from which land surveying
work is solicited, performed, or practiced; the
performance of the foregoing acts and services being
prohibited to persons who are not granted certificates of
registration under this act a professional land surveyor
unless exempt under other provisions of this act.

(e) “Professional Engineer” means an individual
licensed and registered under the laws of this
Commonwealth to engage in the practice of engineering.
A professional engineer may not practice land surveying
unless licensed and registered as a professional land
surveyor as defined and set forth in this act; however, a
professional engineer may perform engineering land
surveys.

7
 (f) “Professional Land Surveyor” means an individual
licensed and registered under the laws of this
Commonwealth to engage in the practice of land
surveying. A professional land surveyor may perform
engineering land surveys but may not practice any other
branch of engineering.
....
(j) “Engineering Land Surveys” means surveys for:
(i) the development of any tract of land including the
incidental design of related improvements, such as line
and grade extension of roads, sewers and grading but not
requiring independent engineering judgment: Provided,
however, That tract perimeter surveys shall be the
function of the Professional Land Surveyor; (ii) the
determination of the configuration or contour of the
[E]arth’s surface, or the position of fixed objects thereon
or related thereto by means of measuring lines and
angles and applying the principles of mathematics,
photogrammetry or other measurement methods; (iii)
geodetic survey, underground survey and hydrographic
survey; (iv) storm water management surveys and
sedimentation and erosion control surveys; (v) the
determination of the quantities of materials; (vi) tests for
water percolation in soils; and (vii) the preparation of
plans and specifications and estimates of proposed work
and attendant costs as described in this subsection.

63 P.S. § 149 (emphasis supplied). The Law proscribes the practice of engineering
and land surveying without registration and licensure. Section 3 of Law states:

(a) In order to safeguard life, health or property and to
promote the general welfare, it is unlawful for any person
to practice or to offer to practice engineering in this
Commonwealth, unless he is licensed and registered
under the laws of this Commonwealth as a professional
engineer, for any person to practice or to offer to practice
land surveying, unless he is licensed and registered under
the laws of this Commonwealth as a professional land
surveyor or for any person to practice or to offer to
practice geology unless he is licensed and registered

8
 under the laws of this Commonwealth as a professional
geologist. Individuals licensed as professional engineers,
professional land surveyors or registered landscape
architects may perform geological work which is
incidental to their engineering, surveying or landscape
architecture without being licensed as professional a
geologist.

(b) A person shall be construed to practice or offer to
practice engineering, land surveying or geology who
practices any branch of the profession of engineering,
land surveying or geology; or who, by verbal claim, sign,
advertisement, letterhead, card, or in any other way
represents himself to be an engineer, land surveyor or
geologist, or through the use of some other title implies
that he is an engineer, land surveyor or geologist or that
he is registered under this act; or who holds himself out
as able to perform, or who does perform any engineering,
land surveying or geological service or work or any other
service designated by the practitioner or recognized as
engineering, land surveying or geology.

63 P.S. § 150.
On appeal,12 DRG argues that the Board’s conclusion that it
performed an engineering land survey and, therefore, engaged in the unlicensed
practice of land surveying is contrary to the clear language of the Law, the statute’s
legislative purpose and intent and leads to an absurd result. In support, DRG
essentially argues that finding the geographic location of physical assets with GPS
technology and then identifying the nature of the assets (i.e., a field inventory) in
order to create a digital database or map of the assets does not constitute the
practice of land surveying, which, as defined, solely concerns the location or
establishment of property or boundary lines. DRG maintains that the contract with

12
The Pennsylvania Society of Land Surveyors has filed a brief as amicus curiae.

9
CEC did not require: the determination or identification of property or boundary
lines or the location of other interests in land,13 the determination of the location of
monuments or reference points in connection with establishing or locating
boundary lines, or writing deed descriptions, all activities statutorily ascribed to the
professional land surveyor and requiring licensure under the Law. See Section 2(d)
of the Law. Accordingly, DRG maintains that since the field inventory of CEC’s
assets did not relate to nor involve the location or establishment of a property or
boundary line, it did not perform a land survey under the Law.
Similarly, looking to the statutory definition of the practice of
engineering and the industry understanding of the purpose of land surveys and
engineering land surveys, DRG argues that the Board erred in concluding that it
performed an engineering land survey. Specifically, DRG notes that as defined,
the practice of engineering involves the design of structures, equipment, works and

13
The Board found that DRG used “PennDOT maps and data and other such resources,
including the historical data base of [CEC], to locate rights-of-ways and [assets] within the
rights-of-way all on the surface of the [E]arth.” Board’s decision, F.F. No. 11 (citing paragraph
16 of the Order to Show Cause). DRG has preserved a record challenge to the finding that it
located CEC’s rights-of-way. The Board does not address the argument in its brief, focusing
instead, on whether its determination that DRG practiced land surveying “through the use of
GPS and equipment and finding or locating fixed points identifying telephone poles and other
assets on the surface of the [E]arth for its client,” is a reasonable construction of the Law. Brief
of Respondent, Summary of Argument, at 7. See also Respondent’s Brief at 12 (stating: “The
finding or locating fixed points on the surface of the [E]arth is, inter alia, a primary function of
the practice of land surveying.” [citing Section 2(j)(ii)]; and at 13 (stating: “In determining the
position of fixed objects on the [E]arth’s surface, [DRG] via GPS measured lines and angles and
applied mathematics in performing an engineering land survey as defined in [Section 2(j)(ii)].”).
Recognizing that the record is quite voluminous and that the Board has not defended its finding,
we note that a cursory review of the record supports DRG’s contention that the objected to
finding is not supported by substantial evidence of record. To the contrary, witnesses for both
CEC and DRG testified that locating property lines was not part of the job. See generally N.T.
of Fred Terwilliger, R.R. at 408a; N.T. of Brent Repenning, DRG Vice President and General
Manager, R.R. at 951a.

10
systems and the various related responsibilities and tasks necessary to such design.
(Emphasis added to highlight focus of argument). See Section 2(a)(1). In addition,
the industry view, which is reflected in the Manual of Practice for Professional
Land Surveyors in the Commonwealth of Pennsylvania (Manual of Practice),
mirrors the statutory characterization of the practice, demonstrating that land
surveying establishes boundaries and provides descriptions of land, and
engineering land surveys encompass “all the engineering entailed in the
development of land; topographic surveying, complete engineering design (street
and utility extensions, storm water management facilities, soil tests, and
sedimentation and erosion control plans), construction stake-out and as-built plans.
. . .” Manual of Practice, Commentary to Section 1, R.R. at 600a. Therefore, DRG
maintains that the engineering land surveys regulated or encompassed under the
Law are those that are performed in connection with or related to building
construction and land development. According to DRG, it is undisputed that the
field inventory at issue was not performed in connection with building construction
or land development and, therefore, cannot constitute an engineering land survey
under the Law.14 We agree.
Because the issue before this Court presents a question of statutory
construction, it raises a pure question of law subject to our plenary review. Holland
v. Marcy, 883 A.2d 449, 455 (Pa. 2005). When called upon to interpret statutory
language or a statutory scheme, our goal is to ascertain legislative intent. Id. In
determining legislative intent, the principles of statutory construction require that

14
DRG also argues that the Board erred in finding that it performed a “geodetic survey”
because that charge was not encompassed in the Commonwealth’s Notice and Order to Show
Cause.

11
sections of a statute be read together and construed with reference to the entire
statute in order to give effect to all related provisions. Id. See also Fletcher v. Pa.
Prop. & Cas. Ins. Guar. Ass’n, 985 A.2d 678, 684 (Pa. 2009); Sections 1921 and
1922 of the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1921, 1922. In
addition, “[w]hen the words of a statute are clear and free from all ambiguity, the
letter of it is not to be disregarded under the pretext of pursuing its spirit.”
Holland, 883 A.2d at 455 [quoting 1 Pa. C.S. § 1921(b)]. Generally, the Court will
only consider legislative history and other indicia of legislative intent when the
statutory language is unclear and ambiguous. Id. [citing 1 Pa. C.S. § 1921(c)].
Finally, we must avoid a construction that would lead to an absurd result. Id. at
456 [citing 1 Pa. C.S. § 1922(1)].
In order to determine whether DRG’s field inventory, which involved
locating fixed assets with the use of various tools, including GPS, constitutes “the
determination of the configuration or contour of the [E]arth’s surface, or the
position of fixed objects thereon or related thereto by means of measuring lines and
angles and applying the principles of mathematics, photogrammetry or other
measurement methods” under the Law, we must construe the overall statutory
scheme rather than simply focusing on the referenced, isolated language in a
vacuum; otherwise, our construction will fail to give effect to the clear language of
the Law, its purpose and intent, and will lead to an absurd result. The Law
regulates the professions of engineering, land surveying and geology by, inter alia,
defining the nature of the practice in the Commonwealth, establishing educational,
work experience and examination requirements for licensure, mandating
continuing education coursework and professional practice standards. This
oversight and regulation is designed to “safeguard life, health or property and to

12
promote the general welfare.” Section 3(a) of the Law. The scope of professionals
falling under Board regulation is expressly limited by the Law’s definitions of the
relevant practice areas. Thus, as noted above, the “practice of engineering” is
limited to the application of the mathematical and physical sciences for the design
of projects involving buildings, structures, machines, equipment and engineering
systems and the consultation, investigation, evaluation, engineering surveys,
construction management and inspection services performed in connection
therewith. See Section 2(a)(1). Notably, within the context of the practice of
engineering, “inspection,” is defined as “the acts and services performed . . . .
during the construction, development, production or functioning of the things
designed . . . .” Section 2(b) of the Law (emphasis added).15
While “engineering surveys” are not defined, nor referenced in any
other provision of the Law, we construe that broad designation to include
“engineering land surveys,” which are expressly defined and regulated under the
Law. A professional engineer may not practice land surveying unless specifically
licensed as a professional land surveyor but may perform engineering land surveys
as a licensed professional engineer. Section 2(e). Thus, the function and focus of
licensed professional engineers is design – design of buildings, structures, roads,
machines and equipment – and the related steps and processes necessary to such
projects. See also Rosen v. Bur. of Prof’l & Occupational Affairs, State Architects
Licensure Bd., 763 A.2d 962 (Pa. Cmwlth. 2000) (discussing, inter alia, the
practice of engineering). Obviously, some, but not all, design projects will entail

15
The “practice of engineering” also includes “related acts and services” that may be
performed by other qualified persons, such as municipal planning, incidental landscape
architecture and construction, but licensure is not required to provide such related services.
Section 2(a)(1)(2) (emphasis added).

13
an engineering land survey, which could include determination of the configuration
or contour of the Earth’s surface, or the position of fixed objects.
Land surveying is defined as a “branch” of engineering, which
involves the location and establishment of property lines or the boundary of any
parcel of land, or any road right-of-way, easement or alignment, the determination
of the position of monuments and reference points that mark a property line
boundary or corner setting, resetting or replacing any monument or individual
point, and writing deed descriptions.16 As a branch17 of the profession of
engineering, the practice of land surveying cannot be viewed as an entirely
separate field.18 Pursuant to the Law, the skills and training of a professional land
surveyor enable that professional to perform an engineering land survey. 19 See
Section 2(f).
As the statutory scheme makes clear, licensure under the Law permits
the professional to perform a particular type of service requiring a specific skillset.
Determining whether certain acts constitute an engineering land survey for
purposes of the Law requires both ascertainment of whether the specific act
constitutes one of the enumerated types of engineering land surveys and whether
the action is performed in the context of or in connection with an engineering
design project. Considering both are required by the plain language of the Law, an

16
The practice of land surveying is also defined to include the very vague and ambiguous
“use of principles of land surveying.” See Section 2(d).
17
See generally www.dictionary.com/browse/branch (defining “branch” as, inter alia, “any
member or part of a body or system; a section or subdivision: the various branches of learning”).
18
Indeed, a common pathway to licensure as a professional engineer or land surveyor is a
four-year engineering degree (civil engineering required for a land surveying license).
19
While beyond the expertise of the Court, an engineering land survey may, in some
instances, actually duplicate the functions of a land survey, such as determining the position of a
monument.

14
engineering land survey is performed “in connection [with]” the engineering
design project. See Section 2(a)(1). Further, considering both factors gives effect
to the entire regulatory scheme and avoids an absurd result.
Otherwise, as argued before the Board, the use of GPS by a taxi driver
to locate the address of a particular building would constitute an engineering land
survey. In reaching this conclusion, we note that while the tools used to perform a
service can be relevant in determining or identifying the nature of the service
performed, the tool cannot be the determinative factor; technology, its availability
and adaptability to other jobs contexts, will always change. As one authority,
Phillip Davis, Director of the National Geospatial Technology Center, has noted:

[The use of geospatial technology] is well-known in the
military and in homeland security, but its influence is
pervasive everywhere, even in areas with a lower public
profile, such as land use, flood plain mapping and
environmental protection.

“You have people who work in surveying, who map out
where a shopping center or street is going to be, and
those involved in your local country property appraisals. .
. . It’s also used in law enforcement to locate crimes and
for fire response and in disaster management – before,
during and after. It is used to locate water resources, or
in public health to track the spread of disease. It’s used
by the guys who drive around for Google Earth. It’s very
high impact.”
http://www.usnews.com/science/articles/2011/05/11/geospatial-technology-as-a-
core-tool (last visited April 4, 2016).
Applying the above analysis, we conclude that the Board erred in
concluding that DRG engaged in the practice of land surveying by performing an
engineering land survey. DRG’s field inventory was not performed in connection

15
with the design of any of the items listed in Section 2(a)(1), nor performed in
connection with a land survey as defined in Section 2(d). Rather, DRG was simply
locating, inventorying and documenting CEC’s equipment. We also conclude that
DRG did not violate the Law by offering to perform a service requiring licensure
under the Law.
Our conclusion today is also consistent with prior decisions of this
court. Although not directly on point, in Garcia v. Bureau of Professional &
Occupational Affairs, 804 A.2d 732 (Pa. Cmwlth. 2002), we concluded that an
unlicensed contractor did not violate the Law by using the title “project engineer.”
In doing so, we noted in relevant part:

[The] mere use of the word “engineer” in a title does not
constitute a per se violation of the Law. To the contrary,
we must determine whether Garcia’s use of the project
engineer title actually constitutes an unauthorized offer to
engage in the practice of engineering; to that end, we
must consider what type of services Garcia actually
meant to offer. … Here, the record established that
Garcia only offered to provide construction management
services; indeed, [Garcia’s employer] does not provide
engineering services.

Id. at 724 (citation omitted; first emphasis added, second emphasis in original). See
also Sanville v. Commonwealth, Bureau of Prof’l & Occupational Affairs, 752
A.2d 942 (Pa. Cmwlth. 2000) (concluding solicitation letter that noted unlicensed
contractor’s experience in the design business and involvement with engineering
and installation estimates was not an offer to engage in the practice of
engineering). Thus, in order to determine whether an authorized offer of services
under the Law occurred in the aforesaid two cases, we examined whether
engineering services were offered or intended to be offered. Applying that same

16
approach here, it is clear that DRG did not offer, intend to offer, nor engage in the
practice of engineering or the practice of land surveying.20 Accordingly, the order
of the Board must be reversed.

_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge

20
Because we discern no ambiguity in the language of the Law, there is no need to consider
or defer to the expertise of the agency charged with its enforcement. However, if an ambiguity is
present, an agency’s interpretation is entitled to deference unless “[the] agency’s interpretation . .
. is erroneous or frustrates legislative intent.” Packer v. Bureau of Prof’l & Occupational Affairs,
Dep’t of State, State Bd. of Nursing, 99 A.3d 965, 969 (Pa. Cmwlth. 2014), appeal denied, 109
A.3d 680 (Pa. 2015) (internal quotations omitted).

17
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Southeastern Reprographics, Inc., :
Now Known as The Davey Resource :
Group, :
Petitioner :
:
v. : No. 2235 C.D. 2014
:
Bureau of Professional and :
Occupational Affairs, The State :
Registration Board for Professional :
Engineers, Land Surveyors and :
Geologists, :
Respondent :

ORDER

AND NOW, this 24th day of May, 2016, the order of The State
Registration Board for Professional Engineers, Land Surveyors and Geologists, in
the above-captioned matter is hereby REVERSED.

_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Southeastern Reprographics, Inc., :
Now Known as The Davey Resource :
Group, :
Petitioner :
: No. 2235 C.D. 2014
v. :
: Argued: November 18, 2015
Bureau of Professional and :
Occupational Affairs, The State :
Registration Board for Professional :
Engineers, Land Surveyors and :
Geologists, :
Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge

DISSENTING OPINION BY
JUDGE McCULLOUGH FILED: May 24, 2016

The Majority provides thoughtful and reasoned discourse with respect
to the issue presented, but, possessing a different viewpoint, I respectfully dissent.
In my view, the Majority conflates the terms “professional land surveyor” and an
“engineer” set forth in the Engineer, Land Surveyor and Geologist Registration
Law (Law)1 and redefines what an “engineering land survey” is by transposing

1
The Act of May 23, 1945, P.L. 913, as amended, 63 P.S. §§148–158.2.
onto it the statutory definition and concepts of the “practice of engineering.” (See
Maj. slip op. at 13-14.)
In 2006, Central Electric Cooperative, Inc. (CEC), a rural electric
distribution cooperative, contracted with Southeastern Reprographics, Inc., now
known as The Davey Resource Group (DRG), to “go out in the field” and locate
electric equipment that CEC owned, including transmission poles, distribution
poles, security and street light poles, pad-mounted equipment, regulators and
meters. As the Majority notes, this was a tremendous task in terms of both
physical locale (100 square miles of land area) and the amount of equipment to be
located (100,000 different location points). Using maps, mapping grade GPS/GIS
technology, and mathematical calculations, DRG’s field staff geographically
located CEC’s assets/equipment to sub-meter accuracy and transposed them onto a
base map. On its website, DRG represented that it has provided mapping and field
inventory services to utility companies on a national basis for over twenty years
and that it can locate assets/equipment within a minimal margin of error. Id. at 2-
3.
Section 2 of the Law contains the relevant statutory terms. 63 P.S.
§149. In pertinent part, the Law states that the “Practice of Engineering” includes
“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 references “engineering surveys.” 63 P.S. §149(a)(1).
On the other hand, the Law describes the “Practice of Land Surveying,” 63 P.S.
§149(4)(d), and provides that “Engineering Land Surveys” include “the
determination of the configuration or contour of the earth’s surface, or the position
of fixed objects thereon or related thereto by means of measuring lines and angles

PAM - 2
and applying the principles of mathematics, photogrammetry or other
measurement methods . . . .” 63 P.S. §149(j)(ii) (emphasis supplied).
Crediting expert testimony, the State Registration Board for
Professional Engineers, Land Surveyors and Geologists (Board) concluded that
DRG offered to perform and performed engineering land surveys under section
2(j)(ii) without proper licensure in violation of the Law. (Board’s decision at 14-
21.) I can discern no abuse of discretion or error of law in the Board’s
determination. To me, it is readily apparent that DRG’s surveys located “fixed
objects” and used principles of mathematics “or other measurement methods” to
locate CEC’s assets/equipment. 63 P.S. §149(j)(ii).
Notably, the Board is one of technical expertise and this Court should
be wary to upset its legal determination especially where, as here, the Board’s
findings of fact are supported by substantial evidence and those findings fit
squarely within the pertinent statutory language. See Borough of Pottstown v.
Pennsylvania Municipal Retirement Board, 712 A.2d 741, 744 (Pa. 1998). In this
vein, I note that the Law is remedial legislation designed “to safeguard life, health
or property and to promote the general welfare,” section 3(a) of the Law, 63 P.S.
§150, and, therefore, must be liberally construed to achieve this object by requiring
licensure. See O'Rourke v. Commonwealth, 778 A.2d 1194, 1203 (Pa. 2001). As
the Board stated in its decision, “[w]hoever is not qualified to practice surveying
endangers the public by practicing land surveying.” (Board’s decision at 22-23.)
In this case, CEC shared DRG’s maps with PA One Call and the EMS services for
6 or 7 different counties, id. at 21, and one can only imagine the potential danger of
not properly locating electrical infrastructure such as transformers and distribution
poles.

PAM - 3
 I believe that the flaw in the Majority’s approach is that it overly
focuses on the “practice of engineering” and its embodiment of the concept of a
“design project” to conclude that an “engineering land survey” must be “performed
in the context of or in connection with an engineering design project.” (Maj. slip
op. at 14) (emphasis supplied). Indeed, an “engineering survey” for purposes of
section 2(a)(1) of the Law is completely divorced, and contains drastically
different language, from an “engineering land survey” under section 2(j) of the
Law – the latter of which has nothing to do with an engineering design project and
instead focuses solely on locating fixed objects on the earth’s surface. See 63 P.S.
§149(a)(1) (Practice of Engineering),2 and compare with 63 P.S. §149(j)(ii)
(Engineering Land Surveys).3 Essentially, the Majority’s interpretation has the
effect of rewriting the Law or at least impermissibly intermingling two distinct
subsections within the Law. The Majority’s interpretation also fails to recognize
that, by definition, a professional land surveyor is not an engineer and cannot
engage in the practice of engineering as that term is used in section 2(a)(1) of the
Law. See 63 P.S. §149(f). Consequently, there is no legal or interpretative basis
for the Majority to import section 2(a)(1) of the Law into section 2(j)(ii) of the
Law.

2
“[T]he 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 . . . .” 63 P.S. §149(a)(1) (emphasis supplied).

3
“[T]he determination of the configuration or contour of the earth’s surface, or the
position of fixed objects thereon or related thereto by means of measuring lines and angles and
applying the principles of mathematics, photogrammetry or other measurement methods . . . .”
63 P.S. §149(j)(ii).
PAM - 4
 Finally, I do not share the Majority’s concern that the Board’s
decision would lead to an absurd result in that “the use of GPS by a taxi driver to
locate the address of a particular building would constitute an engineering land
survey.” (Maj. slip op. at 15.) In such a circumstance, the taxi driver is not
creating a “survey” as that term is commonly understood and is not confirming or
representing to others that a particular address is located on a certain latitudinal and
longitudinal plane.
For these reasons, I would affirm the Board’s order concluding that
DRG offered to perform and performed professional services without proper
licensure under the Law. Hence, I respectfully dissent.

________________________________
PATRICIA A. McCULLOUGH, Judge

PAM - 5