Robert C. Kitchen, Philadelphia, for appellant.
Lionel B. Gumnit and Harold J. Elkman, Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.
[ 173 Pa. Super. Page 523]
Plaintiff brought action in trespass against A. DiSandro Contracting Company, Emilio Leva, and Michele P. Ventresca for damage resulting from blasting in the course of the construction of a sewer. Non-suit was entered in favor of defendants A. DiSandro Contracting Company and Emilio Leva. Judgment was taken against defendant Michele P. Ventreaca, after a finding in favor of the plaintiff by the trial judge on a case stated, and this appeal followed.
On or about September 1, 1949, the plaintiff was the owner of the premises 7101 Greene Street, Philadelphia. The defendant, as an independent contractor, was engaged in the laying of sewers for the City of Philadelphia in the vicinity of the plaintiff's premises. This work was being done in Greene Street and Mount Pleasant Road. Defendant used blasting materials in the course of his work, vibrations from which damaged the premises of the plaintiff. It was agreed that there was no negligence in the conduct of the blasting operations. Plaintiff's suit is based on the allegation of liability without fault.
The single question presented by this appeal is whether liability in trespass for consequential damage resulting from the exercise of the power of eminent domain may be imposed upon an independent contractor performing the work in the absence of negligence on his part.
[ 173 Pa. Super. Page 524]
Appellant's principal contention is that plaintiff's remedy is against the municipality by proceeding before a board of view under Article 19, Section 8, of the Constitution of Pennsylvania, P.S., which reads as follows:
'Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction. The General Assembly is hereby prohibited from depriving any person of an appeal from any preliminary assessment of damages against any such corporations or individuals made by viewers or otherwise; and the amount of such damages in all cases of appeal shall on the demand of either party be determined by a jury according to the course of the common law.'
Under this constitutional provision the absolute liability imposed was for nonnegligent injury. If the injury was caused by negligent performance of the work, the remedy was by action of trespass rather than by a proceeding before viewers. Stork v. City of Philadelphia, 195 Pa. 101, 45 A. 678, 49 L.R.A. 600; Lizza v. Uniontown City, 345 Pa. 363, 28 A.2d 916. We do not interpret the constitutional provision to prevent a trespass action against an independent contractor where liability exists regardless of negligence. Whether or not plaintiff could have proceeded by petition for viewers, his remedy in that respect is not exclusive.
In Baier v. Glen Alden Coal Co., 332 Pa. 561, 3 A.2d 349, it was held that an action in trespass was proper regardless of negligence where absolute liability had been imposed by municipal legislation. Similarly a ...