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PENNSYLVANIA LIQUOR CONTROL BOARD v. CITY PHILADELPHIA (03/12/75)

decided: March 12, 1975.

PENNSYLVANIA LIQUOR CONTROL BOARD, PLAINTIFF,
v.
CITY OF PHILADELPHIA, DEFENDANT



Original jurisdiction in case of Pennsylvania Liquor Control Board v. City of Philadelphia.

COUNSEL

J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Israel Packel, Attorney General, for plaintiff.

James M. Penny, Jr., Assistant City Solicitor, with him Claudia Kapustin, Assistant City Solicitor, Augustus L. Pasquarella, Assistant City Solicitor, Raymond Kitty, Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Rogers and Blatt. Judge Mencer did not participate. Opinion by Judge Blatt.

Author: Blatt

[ 17 Pa. Commw. Page 629]

On June 13, 1967, the basement of Pennsylvania Liquor Store No. 5126 located at 1801 West Girard Avenue in Philadelphia was flooded as the result of a water main break. A large quantity of liquor was destroyed along with paper bags and fuel which were stored on the premises, resulting in a loss estimated at $24,813.37.

On March 26, 1973 the Pennsylvania Liquor Control Board (LCB) filed a complaint in trespass in this Court against the City of Philadelphia (City) asserting that the flooding was due to the City's negligence and seeking recovery for the damages. The City filed an answer denying all averments of the complaint, and, on May 14, 1974 attorneys for both parties filed a stipulation of facts, among which was the following:

"7. The City of Philadelphia had no notice, express or implied, of the conditions which caused the break in the water main."

On August 16, 1974 the City filed a motion for summary judgment under Pa. R.C.P. No. 1035, and this motion was submitted to this Court for consideration on briefs on December 2, 1974.

The liability of a water distributor in Pennsylvania for damages which result from water escaping from a

[ 17 Pa. Commw. Page 630]

    broken main is determined generally by the rules governing negligence. Morgan v. Duquesne Borough, 29 Pa. Superior Ct. 100 (1905); See Philadelphia Ritz Carlton Co. v. Philadelphia, 282 Pa. 301, 127 A.843 (1925). The plaintiff may, for instance, recover if damages have resulted from the defendant's faulty or negligent construction of the line, from the defendant's failure to repair a leaking line after actual or constructive notice, or from the defendant's failure to conduct reasonably careful inspections from time to time. Morgan, supra.

The City argues here that Stipulation No. 7 forecloses the LCB from recovery in this case because, without actual or implied ...


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