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BANET ET AL. v. CITY PHILADELPHIA (11/21/73)

decided: November 21, 1973.

BANET ET AL., APPELLANTS,
v.
CITY OF PHILADELPHIA



Appeals from judgments of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1965, No. 2256, June T., 1966, No. 640, and March T., 1967, No. 2717, in case of Sali Banet, Joseph Banet, Gertrude Goldstein and Alex Satinsky, Executors of the Estate of Albert Banet, Deceased, and Sali Banet, Individually and t/a Keystone Wool Pullers v. City of Philadelphia; Schneider, Bowman Company, Inc. v. Same; Franklin Featherman, Daniel J. Featherman, B.D.F. Corporation and Western Bed Company, Inc. v. Same.

COUNSEL

Edward Greer, with him S. Robert Levant, Mesirov, Gelman, Jaffe & Levin, and Richter, Syken, Ross & Levant, for appellants.

James M. Penny, Jr., Assistant City Solicitor, with him Alfeo P. Libetti, Assistant City Solicitor, John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Hoffman, J., In Support of Reversal. Cercone and Spaeth, JJ., join in this opinion in support of reversal.

Author: Per Curiam

[ 226 Pa. Super. Page 453]

The six judges who heard this appeal being equally divided, the judgments are affirmed.

Disposition

Judgments affirmed.

Opinion by Hoffman, J., In Support of Reversal:

Appellants contend that the trial court erred in refusing to charge the jury on the doctrine of exclusive control.

On April 14, 1965, a 48" water main broke at the intersection of Frankford and Torresdale Avenues in Northeast Philadelphia. The water pipe was manufactured of cast iron and laid in the ground about 1908. Appellants, who maintained business establishments in the general area, suffered extensive water damage from the resultant flood which reached a height of 8 feet. For two months prior to the break, the City had been conducting valve replacements in the main chambers. To gain access to the valves, the street surface and chamber roof were removed by the use of pneumatic tools, cranes and other heavy equipment.

Appellants produced testimony at trial establishing the fact that the damage was caused by the flooding from the broken water main. They offered proof that during the 60 years since the pipe had been installed, no inspections had been conducted in the area for corrosion or metal failure. An employee of the City confirmed that excavation and repairs were conducted at the intersection where the main broke. A consulting chemist and chemical engineer testified that a cast iron pipe manufactured some 60 years ago would necessarily have corroded to a great extent. He stated that inexpensive and simple testing procedures could measure the extent of corrosion. He further said that road traffic and the heavy repair work in the area could cause a fracture of the pipe in its corroded state.

The City denied the possibility of corrosion, and took the position that the break could not have occurred

[ 226 Pa. Super. Page 454]

    as a result of any of the hypothesized theories offered by the appellants. The pipe was not available at the time of trial, and appellee had run no tests to determine the cause of the break. The City reported that shortly after the accident, and before appellants could examine it, the broken pipe had been discarded in the water department's scrap yard. In short, the City could offer no explanation of the cause of the break, except that it was due to no fault on its part and was merely an unforeseen accident.

At the close of testimony, appellants submitted points for charge, asking the Court to instruct the jury that an inference of negligence could be made from the circumstances of the accident under the exclusive control doctrine. The trial court refused to do so, saying in its charge: "The plaintiffs here had an almost impossible burden and perhaps an unfair burden in attempting to establish just what occurred. There is one other theory of law which I refused to apply which may be of some significance. I don't know that it is, but it is the doctrine of exclusive control." The trial judge concluded that a water main case was not the kind of case to which the doctrine applied, as the issues ...


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