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GITHENS v. WILDSTEIN (05/13/71)

decided: May 13, 1971.

GITHENS, REXSAMER & CO., INC., APPELLANT,
v.
WILDSTEIN



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1960, No. 135, in case of Githens, Rexsamer & Co., Inc. v. Harold Wildstein, Manuel Wildstein and Hannah Blitzstein, t/a M. Wildstein & Sons.

COUNSEL

Theodore W. Flowers, with him White & Williams, for appellant.

Harry A. Short, Jr., with him Liebert, Harvey, Herting, Short & Lavin, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen took no part in the decision of this case.

Author: Bell

[ 443 Pa. Page 481]

Plaintiff-appellant, Githens, Rexamer & Co., Inc., instituted an action in trespass for property damage resulting from a fire which had its origin on the premises

[ 443 Pa. Page 482]

    of defendant-appellees, Harold Wildstein, Manuel Wildstein and Hannah Blitzstein, t/a M. Wildstein & Sons.*fn*

Plaintiff was the owner of the premises 242-44 North Delaware Avenue, Philadelphia. Defendants were the owners of the adjoining premises, a five-story building, at 246-52 North Delaware Avenue. On June 18, 1959, a fire broke out on defendants' premises, ultimately resulting in the fire companies which answered the alarm tearing holes in the roof of plaintiff's building and spraying water thereon. Plaintiff chose to first submit to the Court the issue of liability and withheld its testimony on damages until defendants' motion for non-suit was ruled upon. Defendants' motion for a non-suit was granted which the Court en banc refused to remove, and this appeal followed.

Plaintiff offered no evidence as to the cause of the fire or any causative negligence, but alleged liability solely on the basis of a violation of the Fire Code. To establish liability, plaintiff offered evidence to prove (1) that defendants stored empty boxes within two feet of its third floor ceiling, in violation of a municipal ordinance,*fn** Section 5-3102(4) of the Fire Code of

[ 443 Pa. Page 483]

    the City of Philadelphia; (2) that these empty boxes caused the fire of unknown origin to spread to the upper floors of plaintiff's building; (3) that the fire would not have spread had the boxes not been so stored; and (4) that the spread of the fire to the upper floors made it necessary for the fire companies to ventilate plaintiff's property, causing damage to the roof of its premises, as well as water damage to the material contained therein.

Appellant asserts that a possessor of land has a duty to maintain his property in such a manner as to prevent the spread of fire to adjoining premises. Plaintiff has cited, and we have found, no Pennsylvania case establishing this principle. Plaintiff relies upon Boyle v. South Pittsburgh Water Company, 414 Pa. 199, 199 A.2d 875, and Malter v. South Pittsburgh Water Company and Whitehall Borough, 414 Pa. 231, 198 A.2d 850. In those cases, this Court held that a property owner stated a valid cause of action against a water company for its failure to have its hydrants in proper working order where (it was alleged) this failure made it impossible for the fire company to extinguish the fire in time to avoid total destruction of the premises. These cases are clearly ...


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