Appeal from judgment of Court of Common Pleas No. 1 of Philadelphia County, June T., 1966, No. 6441, in case of Patricia Kolojeski, administratrix of estate of Madeline Kolojeski, a minor, and Patricia Kolojeski and Richard Kolojeski, in their own right v. John Deisher, Inc., Nazareno Pomponi and Virginia Pomponi.
Sheldon R. Portner, with him Norman Shigon, for appellants.
William B. Freilich, with him Joseph G. Manta, James M. Marsh, and LaBrum and Doak, for appellee.
Lester J. Schaffer, with him James W. Brown, Jr., and Zink, Shinehouse & Holmes, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno joins in this dissenting opinion.
Madeline Kolojeski, a two-year old child, died, allegedly as the result of lead poisoning caused by the ingestion of lead base paint which had chipped and
peeled from the woodwork of the living room of the apartment occupied by the minor decedent and her parents. The decedent's mother, as administratrix of the decedent's estate, and the decedent's mother and father in their own right, commenced wrongful death and survival actions against appellee, John Deisher, Inc., the rental agent of the owners of the building in which the apartment was situate, and the owners themselves, Nazareno Pomponi and Virginia Pomponi. The defendants-appellees filed preliminary objections to the complaint in the nature of a demurrer. The court below sustained the demurrer and dismissed the complaint. This appeal followed.
Appellants' occupancy of the premises commenced on or about April 22, 1964, when they entered into a month to month lease with appellee, Deisher. The complaint alleges that on or about January 4, 1966, some 20 months after appellants had gone into occupancy of the premises, the minor decedent consumed pieces of paint which had peeled from the living room woodwork, thereby sustaining injuries which resulted in her death on January 6, 1966. Appellants alleged that appellees were negligent in failing to maintain the premises in proper living condition; failing to inspect the premises adequately to insure the safety of the tenants; failing to notify the tenants of the dangerous substance with which the living room woodwork had been painted; having caused the living room woodwork to be painted with a toxic substance; and failing to remove and remedy the condition of the woodwork, and permitting the paint to become decayed, chipped, and peeling. Reduced to its essentials, the complaint alleges that appellees were negligent in allowing the living room woodwork paint job to deteriorate to the point where paint peeled and fell therefrom; and in using lead base paint, which is poisonous if consumed.
We are in agreement with the court below that no cause of action has been stated.
In Lopez v. Gukenback, 391 Pa. 359, 137 A.2d 771 (1958), this court summarized the general liability of a landlord to his tenant for injuries received by the tenant on the premises. We there said: "(1) In the absence of any provision in the lease, a landlord is under no obligation to repair the leased premises, to see to it that they are fit for rental or to keep the premises in repair: [citing cases] (2) a tenant takes the premises as he finds them and the landlord is not liable for existing defects of which the tenant knows or can ascertain by a reasonable inspection: [citing cases] (3) a landlord out of possession, however, may be liable (a) where he conceals a dangerous condition of which he has knowledge and of which the tenant has no knowledge or cannot be expected to discover and (b) where he knows or should know of a dangerous condition and leases the premises for a purpose involving a 'public use' and has reason to believe the tenant will not first correct the condition: [citing cases] . . ." There is nothing in the complaint to indicate ...