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NATIONAL CASH REGISTER COMPANY v. HAAK (03/31/75)

decided: March 31, 1975.

THE NATIONAL CASH REGISTER COMPANY, APPELLANT,
v.
HAAK, ET AL.



Appeal from order of Court of Common Pleas of Lancaster County, March T., 1971, No. 112, in case of The National Cash Register Company v. Eva L. Haak, Executrix and S. Dale Kaufman, Individually and as Partners, trading and doing business as Haak and Kaufman.

COUNSEL

John Paul Kershner, with him Christopher W. Mattson, and Barley, Snyder, Cooper & Mueller, for appellant.

Robert L. Brabson, with him Windolph, Burkholder & Hartman, for appellee, Eva L. Haak, Executrix.

Alfred C. Alspach, with him Alspach & Ryder, for appellee, S. Dale Kaufman.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 233 Pa. Super. Page 564]

This is an appeal from the denial of appellant's motion to take off a compulsory non-suit. In reviewing the record in such a case we must give appellant the benefit of all favorable evidence and reasonable inferences of fact. Shirley v. Clark, 441 Pa. 508, 271 A.2d 868 (1970); Murray v. Siegal, 413 Pa. 23, 195 A.2d 790 (1963). So viewed, the evidence is as follows.

In April of 1966, appellant, a manufacturing corporation, and appellees, a partnership of professional architects, entered into a contract by which appellees agreed

[ 233 Pa. Super. Page 565]

    to provide architectural services for the design and construction of a manufacturing plant in Lancaster County. Pursuant to the contract, appellees submitted plans and specifications for the plant and appurtenant facilities, including a surface water disposal system. After some modifications, these were accepted by appellant. Prior to the submission of the plans and specifications, test borings had been made to determine the sub-surface condition of the site. The results of these tests revealed that the site was limestone and contained subterranean cavities. After obtaining these results, appellees ordered another set of test borings, and the results of these were substantially the same.

The approved plans called for a surface water disposal system consisting of clusters of dry wells*fn1 to which water was directed via underground pipes. Construction began in early 1967. However, in the spring of that year a large sinkhole*fn2 appeared to the rear of the building under construction. This sinkhole was repaired by excavating all the soil around it to locate the points where water and soil were flowing into the limestone, these points then being plugged with concrete. Construction was completed in the spring of 1968. At that time no more sinkholes had appeared.

Sinkholes did begin to appear again in September, 1968, after the plant was occupied. These sinkholes were generally located adjacent to the dry wells, and some were quite severe. On the advice of appellees the major ones were repaired as the first one had been. When sinkholes continued to appear, appellant hired the engineering firm of Gannett, Fleming, Corddry and Carpenter,

[ 233 Pa. Super. Page 566]

Inc. Gannett-Fleming submitted a report stating that the dry wells were causing and aggravating the sinkhole activity, that this activity would become progressively worse, that the integrity of the building was threatened, and that the only practical remedy was to abandon the dry well system and design and install a new system that would remove the surface water by diverting it to ponds from which it would be pumped off the premises. Since the building was threatened, and since none of the engineers consulted by appellant recommended continued use of the dry wells, this new system was, despite considerable expense, installed.

Appellant commenced this action in trespass against appellees in March, 1971. Appellant alleged inter alia that appellees were negligent in deciding to use dry wells, and that appellant "relied on [appellees'] professional skill and judgment to design a system that was fit for the disposal of surface waters in a manner which would not endanger the lives and safety of persons and property." The case proceeded to trial, at which the facts as stated here were adduced. The controversy on this appeal centers around the adequacy of the testimony of the four expert witnesses called by appellant.

Charles W. Pickering was admitted as an expert in "civil engineering in hydraulics" (the court's characterization) or as a "civil engineer familiar with hydraulics" (defense counsel's characterization). He was employed by Gannett-Fleming and was the one who had examined the site for that firm and had recommended the removal of the dry wells and the installation of the new system. His opinion on the cause of the sinkhole activity was unequivocal:

"It is my opinion that the Surface Water System as was installed on the NCR site has accelerated the formation of sinkhole activity on the site.

"[I]f the present system were to be continued in use, . . . the formation of ...


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