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PRINTED TERRY FINISHING COMPANY v. CITY LEBANON AND PITOMETER ASSOCIATES (03/31/77)

decided: March 31, 1977.

PRINTED TERRY FINISHING COMPANY, INC.
v.
CITY OF LEBANON AND PITOMETER ASSOCIATES, INC. APPEAL OF PITOMETER ASSOCIATES, INC. PRINTED TERRY FINISHING COMPANY, INC., APPELLANT, V. CITY OF LEBANON AND PITOMETER ASSOCIATES, INC.



Appeals from the Order dated August 12, 1975, of the Court of Common Pleas of Lebanon County, Pennsylvania, Civil Division-Law, at No. 35 December Term, 1970. No. 34 October Term, 1976. No. 16 October Term, 1976.

COUNSEL

George E. Christianson, Lebanon, with him Lewis, Brubaker, Whitman & Christianson, Lebanon, for appellant at No. 34.

Stephen A. Cozen, Philadelphia, and Bernard A. Buzgon, Lebanon, for appellant at No. 16 and appellee at No. 34.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Price

[ 247 Pa. Super. Page 280]

We are confronted here with consolidated appeals of unusual complexity and length. On April 30, 1970, a fire substantially destroyed the building and machinery used by Printed Terry Finishing Company, Inc. (Printed Terry) to emboss colored designs on terry cloth towels. Eight months later, Printed Terry filed a complaint in trespass charging

[ 247 Pa. Super. Page 281]

    the City of Lebanon (City) and Pitometer Associates, Inc. (Pitometer) with negligently causing the fire which ravaged its factory. A trial, bifurcated as to liability and damages, resulted in a jury verdict in favor of Printed Terry and against both defendants*fn1 in the amount of $534,249.28. On August 12, 1975, the court below denied Pitometer's motion for judgment n. o. v. or a new trial as to liability, but granted Pitometer's motion for a new trial limited to damages on the basis of alleged misconduct by record counsel for Printed Terry. In view of its determination to grant a new trial as to damages, the court below failed to consider Printed Terry's motion to mold, modify and amend the jury's verdict on damages. Both Printed Terry and Pitometer contest the propriety of the order entered by the court below.

Pitometer's Motion for Judgment N.O.V.

It is fundamental that in evaluating the merits of a motion for judgment n. o. v., the testimony must be read in a light most favorable to the verdict winner. E. g., Bailey v. Gibbs, 414 Pa. 238, 199 A.2d 460 (1964); Rodgers v. Sun Oil Co., 406 Pa. 277, 177 A.2d 491 (1962). All unfavorable evidence and the inferences deducible therefrom, if depending solely on oral evidence, must be rejected. E.g., Rodgers v. Sun Oil Co., supra; Karan v. Pennsylvania Power & Light Co., 205 Pa. Super. 318, 208 A.2d 876 (1965).

On April 30, 1970, at approximately 5:40 p. m., employees noticed a small fire above the Number Two dryer in Printed Terry's plant located at Sixteenth and Willow Streets in the City of Lebanon. An employee attempted to reach the fire with a portable fire extinguisher, but failed. He did manage, however, to turn off electrical power to the dryer. All employees then fled from the building which was quickly surrounded by fire fighters. Although heavy smoke snaked skyward, no flames were initially visible from outside the

[ 247 Pa. Super. Page 282]

    building. Anxious firemen hastily attached hoses to hydrants and thrust forward, but their hoses failed to yield the expected burst of water. Instead, only a small amount of water dribbled forth, splashing the sidewalk but falling far short of the high, heated roof. Frustrated firemen loudly clamored for water. At about 6:05 p. m., an employee of the City Bureau of Water, fortuitously aware*fn2 of the fire at the Printed Terry plant, opened a number of valves in the water district north of the plant. These valves had recently been closed in connection with a study of the City water system then being conducted by Pitometer. Firemen soon experienced increased water pressure, but by then, the small fire had become a conflagration.

The Printed Terry plant was not solely dependent upon firemen to prevent a fiery demise. In 1965, a "dry pipe" sprinkler system had been installed in the Printed Terry building. This system was connected to an eight-inch City water main on Sixteenth Street adjacent to the west side of the Printed Terry building. The Printed Terry "dry pipe" system contained pressurized air in its pipes, and operated in the following manner: If a sprinkler head in the Printed Terry plant encountered temperature of a certain degree, the sprinkler head would melt, thus reducing the air pressure within the pipes. Water from the City water system would then enter the sprinkler system and extinguish the fire.

The Printed Terry system was also equipped with two different automatic alarm devices. One device would transmit a signal to the Civil Defense Office in the City if some element of the system began to function abnormally. The second alarm device would sound a warning in the plant when water began to flow through the pipes. Thus, if a fire occurred, the first device would activate as air pressure lowered, indicating some trouble within the system, and the

[ 247 Pa. Super. Page 283]

    second device would sound an alarm as water entered the system.

The record shows that the Printed Terry sprinkler system had recently been examined and found to be functioning properly. Specifically, an inspection of the entire sprinkler system during the first two weeks of April of 1970 had confirmed that proper air pressure existed in all pipes. This inspection further demonstrated that the sprinkler head most distant from the water inlet valve would receive water within thirty seconds after the system activated. Moreover, on April 28, 1970, only two days prior to the fire, the installers of the sprinkler system, the Capitol Radio Company, discovered, after testing, no defect in the operation of the two alarm devices. Although a signal was transmitted to the City Civil Defense Office when the fire broke out at the plant, witnesses testified that no alarm ever sounded throughout the building. Moreover, no water was seen coming from the sprinkler heads.

David J. Kinash, the Director of Water and Sewers for the City testified that prior to 1970 the City water system was losing a great deal of water each day. As a result, on March 16, 1970, the City engaged Pitometer, an engineering concern specializing in the study of municipal water systems, to conduct a "Pitometer Water Waste Survey" of the City water system. Under the terms of the survey, Pitometer, aided by a small instrument known as a pitometer, was to determine the efficiency and total consumption of the system, divide the distribution system into districts and determine the water flow into each district, locate all underground leaks of a certain size, investigate all large industrial consumers to detect unauthorized water use "through fire lines or otherwise," test all commercial and industrial meters four inches or larger in diameter, and provide the City with a detailed report of the survey at its completion. The City, on the other hand, was to "furnish and set corporation cocks at the points designated by [Pitometer] engineers, supply competent labor for operating valves and repairing leaks, construct and furnish transportation, including driver, necessary

[ 247 Pa. Super. Page 284]

    for properly conducting the Survey." (R. 1170a-1171a) According to Pitometer, a further benefit to be derived from the survey would be the increased fire protection in the areas adjacent to defective valves which would either be opened or repaired during the survey.

As contracted, Pitometer proceeded with its plan to divide the City water system into various districts so that the flow of water through each district could be determined. On April 29, 1970, after discussion with several Bureau of Water employees, Pitometer decided to isolate District One by turning off numerous water valves in that district. This action resulted in a substantial diminution in the amount of water flowing into the district, immediately south of District One, in which the Printed Terry plant was located. Despite receiving reports of low water pressure in the Printed Terry district, Pitometer and the City employees again turned off the valves in District One on April 30, 1970, the day of the fire at the Printed Terry plant.*fn3

Virgil Ferguson, a district manager for Pitometer, admitted that a water waste engineer should know for fire protection purposes precisely how the water pressure within a distribution district would be affected by the isolation of an adjacent district. However, Thomas K. Beane, the Pitometer field engineer who conducted the survey, testified that prior to the isolation of District One he never suggested to City officials that a determination be made of the water pressure contained within, or running to, the Printed Terry district. Similarly, Beane failed to suggest to City officials that the effect of isolating one district upon the water pressure in an adjacent district be measured. Beane further testified that he failed to notify the City Fire Department that the level of water pressure in the Printed Terry district would be greatly reduced by the isolation of District One. Beane also failed to suggest that contingency plans be established in case of fire in the Printed Terry district.

[ 247 Pa. Super. Page 285]

Printed Terry presented two witnesses to testify as experts. The first expert witness, Alfred Ellis Baccini, testified, in response to a hypothetical question, that the fire would have been extinguished in its incipient stage, if the Printed Terry sprinkler system had been supplied with the proper water pressure level. He also testified that Pitometer had not followed good fire protection practices during the course of its survey because it had allowed the water valves in District One to be closed without establishing contingency plans in case of a fire. The second expert witness, Horton Blackwell Rucker, testified that Pitometer failed to observe good engineering practices by not measuring what effect the isolation of District One would have on the water pressure within that district or within adjacent districts. Moreover, he testified that he had observed Pitometer conduct previous water system surveys in which the appellant had always determined what effect the survey would have on the safety of the property and the lives of customers in the areas to be surveyed and had always arranged for provisional crews to be present in the case of emergencies in critical areas.

Pitometer asserts, inter alia, that the instant case should have been withdrawn from the jury because no liability exists at law on the part of the City for failure to provide Printed Terry with water pressure sufficient to fight fires. If the City has no actionable duty to provide Printed Terry with adequate water pressure, then certainly, the appellant concludes, Printed Terry may not maintain a valid cause of action against it, the appellant, for fire damages caused by low water pressure. We find no merit in the appellant's argument.

Pitometer bases its argument that a municipality owes no legal duty to provide sufficient water to fight fires upon the divisiveness of opinion apparent among the justices participating in the Pennsylvania Supreme Court case of Doyle v. South Pittsburgh Water Co., 414 Pa. 199, 199 A.2d 875 (1964). In Doyle, and its companion case, Malter v. South Pittsburgh Water Co., 414 Pa. 231, 198 A.2d 850

[ 247 Pa. Super. Page 286]

(1964),*fn4 the court held that "a property owner stated a valid cause of action against a water company [and a municipality] for its failure to have its hydrants in proper working order where [it was alleged] this failure made it impossible for the fire company to extinguish the fire in time to avoid total destruction of the premises." Githens, Rexsamer & Co. v. Wildstein, 443 Pa. 480, 483, 277 A.2d 157, 158 (1971). Although the court in Doyle clearly establishes a legal duty on the part of a municipality to maintain its water system in "proper working order," Githens, Rexsamer & Co. v. Wildstein, supra 443 Pa. at 483, 277 A.2d at 158, the appellant urges us to rule that such a duty does not exist under the law of this Commonwealth, contending that the Doyle opinion failed to achieve binding precedential effect because it was joined by less than a majority of those justices participating in the decision. The appellant therefore exhorts that our determination of the instant issue is to be controlled by two cases decided prior to Doyle, Grant v. Erie, 69 Pa. 420, 8 A. 272 (1871), and Thompson v. Springfield Water Co., 215 Pa. 275, 64 A. 521 (1906), in which the court held that the failure to supply water for fire protection purposes is not in itself actionable. After careful review and reflection, we hold that the existing law of this Commonwealth recognizes that a municipality has a legal duty to maintain the proper functioning of its water system. Moreover, even if we were to find ourselves not bound by the opinion of the court in Doyle, we find the rationale of that opinion to be persuasive in the instant situation.

In Doyle, the plaintiffs alleged in their complaint that the fire which had destroyed their home could have been averted if fire hydrants near the scene would have yielded a stream of water to firemen. Specifically, the complaint averred that the defendant was negligent by allowing the water in crucial hydrants to freeze; by failing to inspect the hydrants; by failing to maintain sufficient water in the hydrants;

[ 247 Pa. Super. Page 287]

    by failing to replace or repair inoperative valves; and inter alia, by failing to notify the Pittsburgh Fire Department that the hydrants were inoperative. The lead opinion, written by Justice Musmanno and joined by Justice O'Brien, held that the complaint stated a valid cause of action. Justice Roberts wrote a concurring opinion, joined by Justice Eagen, in which he agreed that the complaint stated a good cause of action because it alleged negligence "in the failure to inspect the hydrants and to replace or repair inoperative valves and in allowing the water in the hydrants to freeze." Doyle, supra 414 Pa. at 220, 199 A.2d at 885. Justice Jones wrote a dissenting opinion which was joined by Justice Cohen.

"Whatever the effects of an opinion supported by less than a majority of those justices participating may be, there can be no doubt that when a majority of those justices participating join in the opinion, it becomes binding precedent on the courts of Pennsylvania." Commonwealth v. Mason, 456 Pa. 602, 604, 322 A.2d 357, 358 (1974); see Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971). In Doyle, it is clear that a majority of the justices joined in the opinion that the complaint stated a valid cause of action in so far as it alleged negligent failure on the part of the water company to maintain its system in "proper working condition." Githens, Rexsamer & Co. v. Wildstein, supra 443 Pa. at 483, 277 A.2d at 158. In the instant case, the complaint averred, inter alia, that the City failed to maintain its system in adequate operating condition. If proven, this allegation of negligence exemplifies the type of conduct for which liability could be imposed under the Doyle precept. We believe therefore that this case is distinguishable from the Grant and Thompson cases in the same respect as the Doyle case. As Justice Musmanno explained in Doyle :

"[I]n the Thompson case, the Court proceeded on the theory that undertaking the task of supplying water to the plaintiff, as in Grant v. Erie, supra, was discretionary with the municipality and that therefore it could not be ...


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