No. 1967 Philadelphia 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, Clinton County, No. 132, July Term 1977.
Brett O. Feese, Williamsport, for appellant.
J. Michael Williamson, Lock Haven, for appellee.
Price,*fn* Wieand and Hoffman, JJ. Wieand, J., files a concurring opinion.
[ 312 Pa. Super. Page 426]
In September of 1976, Joni Marie Asper died of smoke inhalation in a fire which occurred in the apartment which her father, John Asper, rented from appellee, Ronald Wayne Haffley. As a result of her death, the administratrix of Joni's estate instituted proceedings against Mr. Haffley. In August of 1980, appellee's motion for summary judgment was granted and this appeal followed.
Mr. Haffley purchased the premises on which the fire occurred in 1972. Prior to May of 1976, appellee used the front portion of the one story building as an office in connection with his insurance business. The rear portion was used as his own residence. Appellee eventually ceased to reside on the premises and made certain alterations to the structure in anticipation of renting the rear portion of the building. The wall which separated the office from the residence was changed to eliminate two doorways which had connected the living area to the office area. Additionally, appellee installed storm windows on the inside of the windows in the living area. These storm windows could not be opened except by breaking the window panes.
In May of 1976, appellant leased the living area to John Asper, who then occupied the apartment with his four daughters, one of whom was Joni Marie Asper. In the early morning of September 8, 1976, the fire occurred in which Joni, the only person then present, perished. At the time of the fire Joni was apparently in her bedroom and would have been unable to use the exit to the outside because of the location of the fire blocking that means of escape. Evidence of bruises, abrasions and cuts on Joni's hands and arms would permit an inference that she had
[ 312 Pa. Super. Page 427]
made an unsuccessful attempt to break through the storm window in her bedroom to escape the fire.
In granting summary judgment to Mr. Haffley, the court below determined that under general principles limiting the scope of landlord liability, appellant had not alleged sufficient facts on which appellee could be held liable on a theory of negligence. The court also held that appellee could not be found strictly liable for maintaining a building in violation of the Fire and Panic Act ("Act"),*fn1 as the building in which the fire occurred was not subject to regulation under that statute. Finally, appellant was denied the opportunity to amend her complaint to incorporate a theory of strict liability under § 402A of the Restatement of Torts (Second). While we agree with the court below that in this case there can be no recovery on a theory of strict liability, we find that appellant is entitled to present her negligence claim at trial for determination by the fact finder.
STRICT LIABILITY -- THE FIRE AND PANIC ACT.
Appellant's argument for her strict liability claim under the Act is predicated on two propositions: (1) that appellee's building was a structure subject to regulation under the Act and (2) that as such his building was in violation of regulations of the Department of Labor and Industry requiring at least two exits.
Section Two of the Act*fn2 defines the classes of buildings and structures covered by the statute. Appellant argues that the building is included in both Class I and Class IV.
At the time this case arose, Class I buildings included:
Factories, power plants, mercantile buildings, hotels, office buildings, hospitals, asylums, public and private institutions, convalescent and nursing homes, schools, colleges, school and college auditoriums and gymnasiums when used for public assemblages, airports, airport buildings,
[ 312 Pa. Super. Page 428]
airplane hangars, dormitories, warehouses, garages, farm buildings, except those used to store produce prepared for market or sell farm products grown, raised or produced by the owner or tenant of the building, and all other buildings specified by the department, not enumerated in Classes II, III, IV and V, wherein ...