Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1970, No. 2095, in case of Moss Rose Manufacturing Company v. Howard S. Foster and L. W. Foster Sportswear Co., Inc. and Palethorpe Real Estate Corporation.
Erwin Lodge, Bernard Glassman, and Lodge, Carter, Stern & Glassman, for appellants.
Leonard B. Rosenthal, Maurice J. Klein, and Abrahams & Loewenstein, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J.
[ 226 Pa. Super. Page 449]
This is an appeal from a judgment in favor of the plaintiff-appellee for property damage caused by water seepage from appellants' underground cistern.
On November 28, 1969, the appellee was the owner of a manufacturing company which was located at Allegheny
[ 226 Pa. Super. Page 450]
Avenue and Hancock Street in Philadelphia. Adjacent to his business was the manufacturing company owned and operated by the appellants. In fact, the north wall of the appellee's plant and the south wall of the appellants' plant was a party wall. Appellants maintained a large underground cistern below the basement of their premises. This cistern was approximately 50 feet in diameter and 20 feet in depth, in which about 125,000 gallons of water was stored as a fire preventive measure. The top of this cistern, which was installed in the early 1900s, came to about two feet below the basement floor. On the aforementioned date, water from the cistern overflowed into the exposed soil and by percolation followed a downward course under the party wall and, then seeking its own level, seeped into the basement of the Moss Rose Manufacturing Company, causing considerable property damage to appellee's premises and contents.
Originally, the case was heard by arbitrators, who found in favor of the appellee in the amount of $6,720.00 plus interest. An appeal was taken to the Common Pleas Court of Philadelphia, where the Honorable Robert V. Bolger, sitting without a jury, heard the matter de novo. At the conclusion of the trial, Judge Bolger found for the appellee against Harold S. Foster individually and L. S. Foster Sportswear Co., Inc., in the amount of $6,720.68 plus interest from November 25, 1969, the date of the incident. Exceptions were taken and argued the same date, and an Adjudication dismissing these exceptions was filed on March 5, 1973. This appeal has followed.
In its Adjudication, the trial court predicated liability on negligence principles in failure to reasonably maintain the cistern; on an absolute liability theory of a landowner; and, on the doctrine of exclusive control. Appellants contend that there was insufficient evidence to support a negligence finding. They also dispute the
[ 226 Pa. Super. Page 451]
applicability of either absolute liability or the doctrine of exclusive control. While the latter theories may be questionable under the circumstances of the case, we find that there is ample evidence to support the trial court's determination of negligence. The appellee called the defendants' maintenance man to testify as to his examination of the cistern after the flooding. The maintenance man testified that the cause of the flooding could be attributed to a defective foot brake. When it was properly functioning, this foot brake would automatically shut off the water flow at a ...