Appeal, No. 188, March T., 1963, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1962, No. 3376, in case of Joseph H. Malter and Elsie Lee Malter, his wife, v. South Pittsburgh Water Company and Borough of Whitehall. Judgment reversed; reargument refused May 12, 1964.
H. N. Rosenberg, with him Rosenberg & Rosenberg, for appellants.
James F. Manley, with him Burns & Manley, for appellees.
D. H. Trushel, with him Dickie, McCamey, Chilcote & Robinson, for appellee.
Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Joseph H. Malter and Elsie Lee Malter, his wife, owned a house in Whitehall, Allegheny County, which no longer exists because it met destruction by flames which consumed it on March 9, 1960. The owners placed the blame for their loss on the Borough of Whitehall and the South Pittsburgh Water Company, which, according to the complaint in trespass filed against them, maintained and operated the water system in that borough. The plaintiffs aver that if the fire hydrants serving their house had not been allowed to become "rusted, decayed and clogged," if the defendants had maintained a good, safe and proper water system, if they had properly inspected, cleaned and serviced the fire hydrants and their water mains, the fire would not have destroyed their property. The defendants filed preliminary objections stating that the complaint did not state a cause of action upon which relief could be granted. The Court of Common Pleas of Allegheny County, in which the suit was filed, sustained the objections and dismissed the complaint.
We have this day filed an opinion in the case of Doyle v. South Pittsburgh Water Company, 414 Pa. 199, wherein some of the questions involved in the instant litigation are discussed. This case, like the Doyle case, is clearly to be distinguished from those cases where the courts have held that a mere failure to supply water does not constitute a breach of duty owing to injured parties by the water company or the municipality. The rule in controversy here is the one
appertaining to the duty requiring reasonable care in the maintenance of a water system.
In the Boyle case the plaintiffs did not join the municipality as a party defendant. The plaintiffs here have charged Whitehall Borough with the same negligence attributed to the South Pittsburgh Water Company. It would appear therefore that the charge of control and negligence against the Borough is intended as an allegation that the water company acted as the Borough's servant in which event we have issues before us not present in the Doyle case.
Is the defendant water company immune from liability for its negligence on the ground that the alleged negligence occurred during the course of performance of a governmental function in behalf of the Whitehall Borough, as the Borough's servant? Was the Borough engaged in a ...