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JONES ET UX. v. CROSSGATES (03/24/72)

decided: March 24, 1972.

JONES ET UX., APPELLANTS,
v.
CROSSGATES, INC.



Appeals from order of Court of Common Pleas of Washington County, March T., 1969, No. 68, and May T., 1970, Nos. 220 and 221, in case of Thomas G. Jones and Sarah E. Jones, his wife v. Crossgates, Inc. and Township of Peters.

COUNSEL

Samuel L. Rodgers, with him Rodgers and Roney, for appellants.

Robert L. Ceisler, with him Patrono, Ceisler, Edwards & Pettit, for appellees.

Robert L. Ceisler, with him Roy F. Walters, Jr., and Brandt, McManue, Brandt and Malone, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Opinion by Jacobs, J.

Author: Jacobs

[ 220 Pa. Super. Page 428]

These appeals are taken from an order sustaining preliminary objections filed by defendant, Crossgates, Inc. No further action was taken by the court below and, after analysis of the pleadings, we find the order interlocutory and quash the appeals.

Plaintiffs purchased a house and lot from Crossgate, Inc., a residential developer. The deed to the property was delivered to plaintiffs on June 10, 1966. Because of alleged defects in the construction and an

[ 220 Pa. Super. Page 429]

    unfortunate flooding of the property, occurring after plaintiffs were in possession, plaintiffs brought three suits, two in assumpsit and one in trespass. All three complaints averred that plaintiffs and Crossgates, Inc. entered into agreements of sale on or about February 6, 1966, and March 19, 1966, under which plaintiffs agreed to purchase a house being constructed by Crossgates. In the first assumpsit complaint, filed below to No. 68 March Term, 1969, plaintiffs claimed that Crossgates had impliedly warranted that the house would be reasonably fit for use as a private dwelling and that it would be constructed in a good and workmanlike manner. The complaint further alleged the existence of numerous defects in the house, constituting a breach of those warranties. In the other two complaints, plaintiffs averred that a flood of water, mud, and debris occurred on August 19, 1967, which seriously damaged their house. In the assumpsit complaint, which was filed to No. 220 May Term, 1970, the plaintiffs recited the same two implied warranties stated in the first assumpsit complaint and additionally claimed there had been an implied warranty that the house would be constructed in accordance with the applicable ordinances of the Township of Peters. The trespass complaint was filed to No. 221 May Term, 1970. The first count joined Crossgates, Inc. and the Township of Peters as defendants. It alleged negligence on the part of Crossgates in regard to drainage and construction, and negligence on the part of the township in permitting connections to the sewer system in violation of its rules and regulations, in accepting an inadequate storm-sewer system from Crossgates, in installing an improper metal grate over the sewer system, and in failing to inspect the sewer system. The second count was against Crossgates only, claiming strict liability on the part of Crossgates as a builder-vendor.

[ 220 Pa. Super. Page 430]

The township filed an answer to the last complaint. Crossgates filed preliminary objections to all three complaints and it was those objections which the court below sustained. Crossgates demurred to No. 68 March Term, 1969, on the ground "that there is no implied warranty in the sale of a dwelling house sold under the circumstances applicable in the instant case." To No. 220 May Term, 1970, Crossgates demurred on the same ground and also alleged the pendency of a prior action, to wit, No. 68 March Term, 1969. Crossgates demurred to the allegation of strict liability in No. 221 May Term, 1970, on the basis that there is no strict liability in such a situation.

In its opinion the lower court held that the theory of implied warranty of fitness for a particular purpose should not be applied to a dwelling or any other realty and that the doctrine of strict liability does not apply to the purchase of homes. The court recognized that in building contracts there is an implied agreement on the part of the seller-builder that his construction shall be done in a workmanlike manner and that defendants would be liable for ...


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