Appeal, No. 137, April T., 1956, from decree of Court of Common Pleas of Cambria County, June T., 1954, No. 336, in case of Silvester Yulis et ux. v. Borough of Ebensburg. Decree affirmed.
Clarence E. Davis, with him Lawrence L. Davis, and Davis & Davis, for appellant.
Edward F. Peduzzi, with him Myers, Taylor & Peduzzi, for appellees.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.
[ 182 Pa. Super. Page 424]
This is an appeal from the decree of the lower court dismissing defendant's motions for judgment n.o.v. and for a new trial.
The plaintiffs instituted an action in trespass against the defendant borough to collect damages caused by the faulty construction of a storm water sewer. The jury rendered a verdict in favor of the plaintiffs. The facts and inferences therefrom, considered in the light most favorable to the plaintiffs, as we are obliged to do, may be summarized as follows: Prior to 1948 the land was drained by an open ditch which had a small seven inch terra cotta pipe lying in it. In 1948 the defendant borough, with its own
[ 182 Pa. Super. Page 425]
employes, constructed a storm water sewer through land subsequently acquired by plaintiffs. The terminus of this line was at a French ditch which occupied the space of five to seven feet in length. The water was conveyed from the southern end of the French ditch by the original seven inch pipe to the main drain at the western side of State Highway Route 22. Plaintiffs purchased the property from Adolph Risaliti in 1949. During the same year, without knowledge of the existence of the storm water sewer, plaintiffs constructed a two story cement block building over said line. The plaintiffs conducted a tavern business in the first floor of this building. On May 30, 1953, during a rather heavy rainfall, the water erupted through the floor of the building, causing damage to the building and fixtures. Investigation disclosed that the water came from the French ditch which had been covered with large stones and ground. The pipe at the northern edge of the French ditch, which was exposed by excavating after the storm, was identified as a 15 inch pipe constructed by the borough. There was no pipe in the area occupied by the French ditch. The water was conveyed from the southern end of the French ditch by a seven inch pipe originally on the land. Plaintiffs contended that the borough had negligently construct the storm water sewer in that it had failed to connect the new 15 inch line with the old line. The defendant presented evidence to show that the defendant had connected the new line to another 15 inch line then existing on the land. This issue of fact was decided by the jury in favor of the plaintiffs.
Appellant argues that the construction of the storm water sewer was a governmental function and that the borough is not liable for the negligence of its employes. No cases are cited to sustain this position. It is too
[ 182 Pa. Super. Page 426]
late for us to enter the gray territory which divides the functions of a municipality between acts classified as governmental and proprietary. By a long line of decisions our courts have held that municipalities are not bound to provide sewerage for the natural flow of the surface water, although they are invested with power to construct such sewers as in the judgment of the officers exercising the corporate powers are necessary and expedient. When they do adopt a plan of sewage they are not liable to answer in an action of trespass for damages resulting from the inadequacy of the sewers constructed according to the plan to meet the purpose contemplated, although they may be called upon to answer for injuries resulting from negligence in the actual work of construction or for failure to keep the work in repair after it is completed. Cooper v. Scranton City, 21 Pa. Superior Ct. 17, 19; Fair v. City of Phila., 88 Pa. 309, 311, 312; Haus v. ...