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KEEFER v. LOMBARDI (01/14/54)

January 14, 1954

KEEFER
v.
LOMBARDI, APPELLANT



Appeals, Nos. 247, 248 and 249, Jan. T., 1953, from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1951, No. 3826, in case of John R. Keefer et al., etc., v. Joseph Lombardi et al., trading as Joseph Lombardi & Sons. Judgment affirmed; reargument refused February 26, 1954.

COUNSEL

Horace N. Lombardi, with him Anthony J, Smith and Marvin D. Weintraub, for appellants.

Abe J. Goldin, with him W. Glenn George, M. Stuart Goldin and Goldin & Goldin, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 376 Pa. Page 368]

OPINION BY MR. JUSTICE MUSMANNO

On May 11, 1949, the defendants, as independent contractors, entered into a contract with the City of Philadelphia to construct a storm relief sewer in and about Wingohocking Street between 3rd and 9th Streets in Philadelphia. It was anticipated and planned that this job would necessitate the use of explosives and other blasting instrumentalities. It was also foreseen that, regardless of the care with which such dangerous properties would be used, the possibility always loomed of damage to private property in the area. The contract between the defendants and the City of Philadelphia provided, inter alia, "It is understood and agreed that the party of the second part shall be deemed and considered an independent contractor in respect to the work covered by this agreement, and shall assume all risks and responsibility for casualties of every description in connection with the work, except that he shall not be held liable or responsible for delays or damage to work caused by acts of God, acts of public enemy, acts of government, quarantine restrictions, general strikes throughout the trade, or freight embargoes not caused or participated in by the Contractor. Party of the second part shall have charge and control of the entire work until completion and acceptance of the same by party of the first part. Party of the second part shall be alone liable and responsible for, and shall pay, any and all loss and damage sustained by any person or party either during the performance

[ 376 Pa. Page 369]

    may occur either during the performance or subsequent to the completion of the work.... or sustained as a result or consequence thereof, irrespective of whether or not such injuries or damage be due to negligence or to the inherent nature of the work..."

In Del Pizzo v. Middle West Construction Co., 146 Pa. Superior Ct. 345, the plaintiffs brought actions in trespass to recover for damages sustained as the result of blasting performed by the defendant in the execution of a contract with the municipality. At the trial, the plaintiff did not prove any negligence on the part of the defendant but the verdict he obtained was affirmed because of the terms of the contract existing between the defendant and the municipality. "Defendant's contract with the city provided that '... the contractor shall be held responsible for, and shall make good any damage caused' by blasting. It is established by the decisions of this court in Postal Telegraph Co. v. Keystone State Construction Co., 63 Pa. Superior Ct. 486, and Hirsh v. McGovern, Inc., 100 Pa. Superior Ct. 1, that a contractor performing municipal work is not liable, without proof of negligence, in an action of trespass for damage caused by the concussion and vibrations of a blasting operation '... if the injuries were the direct, immediate and necessary or unavoidable consequences of the act of eminent domain, no matter how carefully performed, the remedy is against the municipality, ordinarily by proceedings before a board of viewers.' Hirsh v. McGovern, supra. But, the contractor is liable where, as here, he has voluntarily assumed the liability." (Emphasis supplied)

In so holding, the Superior Court followed this Court's decision in Baier et ux. v. Glen Alden Coal Co., 332 Pa. 561. There, the plaintiffs instituted action of trespass to recover damages caused through the use of dynamite by the defendant's contractor when he drilled

[ 376 Pa. Page 371]

    a hole in the sidewalk fronting the plaintiff's house. Permission for the drilling had been granted to the defendant by resolution of the city council which provided that the work could only be done "'with the understanding that the [defendant]... shall be liable for all damages to persons and property during the time said drill holes are being put down.... '" The defendant's attempt to escape liability on the ground that it had hired an independent contractor to do the work failed: "... the municipal legislation imposed a strict or absolute liability on defendant to pay all damages resulting from the exercise of the privilege granted by the city. The work could only be done (in the words of the resolution of city council) 'with the understanding that the [defendant]... shall be liable for all damages to persons and property during the time said drill holes are being put down....' By going ahead, defendant assumed that obligation... Liability to them (plaintiffs) could not be evaded by employing a contractor, whatever ...


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