No. 2349 October Term, 1979, Appeal from an Order of the Court of Common Pleas, Civil Division-Trespass, of Lehigh County, No. 78-C-299.
Mark H. Scoblionko, Allentown, for appellant.
Donald Lipson, Allentown, for appellee.
Hester, Cavanaugh and Van der Voort, JJ. Cavanaugh, J., concurs in the result.
[ 286 Pa. Super. Page 86]
This is an appeal from an order of the Court of Common Pleas of Lehigh County. The procedural history and facts relevant to the issues on appeal are as follows:
Appellant is in the business of cleaning and repainting steel drums for resale to the public. There had been a series of fires originating in the automatic paint barrel booth, which appellant used to spray paint the drums. The drums were rotated and spray painted by this apparatus, and the fumes and excess spray were drawn by a fan up through a stack above the booth leading to the outside. Sometime prior to 1976, the appellant had an automatic dry chemical fire extinguishing system installed in order to control fires in the automatic paint barrel booths. This unit, which was not installed by appellee, failed to extinguish the numerous fires which occurred in the apparatus.
Appellant contacted appellee regarding its fire problem in April of 1976. Don Waggoner, an employee of appellee, inspected the existing system and recommended that an additional extinguishing tank and a number of extra discharge nozzles be installed inside the paint barrel booth stack.
Waggoner was unable to determine why the existing system had malfunctioned, but decided to add additional powder with the expectation that the increased system would control the fires.
On July 25, 1977, at approximately 7:00 p. m., appellant's building and various fixtures and machinery were damaged by a fire. Appellant contended that the fire originated in the paint barrel booth or the stack above it, then spread to the roof without being extinguished by the automatic dry chemical fire extinguishing system. Due to the fact that the fire allegedly originated in the area supposedly protected by the appellee's system, appellant was of the opinion that
[ 286 Pa. Super. Page 87]
appellee should be responsible for the damages sustained in the fire.
Appellant's theories of liability were:
(1) Strict liability, in that, (a) the extinguishing system failed to discharge its powder at the time of the fire and thus malfunctioned; (b) the system was inadequately designed since the fire was not extinguished even if appellant could not prove a specific design defect; (c) the system was inadequately designed because the appellee had chosen to use a type of powder rated for B-C types of fires when, in fact, appellee should have utilized a powder capable of extinguishing A-B-C types of fires;
(2) Negligence, in that the appellee inadequately performed its obligations under a service agreement ...