Appeals from the Order of the Court of Common Pleas of the 26th Judicial District, Columbia County Branch, in case of Saul Schoenenberger and Alice Schoenenberger, his wife v. Keith L. Hayman, Jr., and Kenneth Hayman, co-Partners t/a Hayman Brothers Custom Builders and Mifflin Township and Nathan Reigle, No. 2042-1977, and in case of Saul Schoenenberger and Alice Schoenenberger, his wife v. Nathan Reigle and Mifflin Township, No. 2057-1977.
Franklin E. Kepner, Jr., Kepner and Kepner, with him David C. Dickson, Jr., Beckley, Dickson and Hill, for appellant/appellee, Keith L. Hayman, Jr., Mifflin Township and Nathan Reigle.
Jack C. Younkin, for appellees/appellants, Saul Schoenenberger and Alice Schoenenberger, his wife.
Judges Craig, MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 77 Pa. Commw. Page 413]
The present action involves the appeal of the additional defendant, Mifflin Township, and the cross-appeal of the plaintiffs, Saul and Alice Schoenenberger from a decision of the Court of Common Pleas of Columbia County which dismissed the exceptions filed by the parties to that court's finding of a verdict in favor of the plaintiffs on their action for the breach of an implied warranty of habitability and fitness in the construction of their home. The defendants, Hayman Brothers Custom Builders, are not participating in the present appeal.
The factual background of this case is concisely and fairly stated in the opinion of the court of common pleas as follows:
On June 22, 1976 Saul Schoenenberger and Alice Schoenenberger, his wife, (hereinafter referred to as "Plaintiffs"), purchased from Keith L. Hayman, Jr. and Kenneth Hayman, Co-Partners T/A Hayman Brothers Custom Builders, (hereinafter referred to as "Defendants"), a new residential dwelling located in Mifflin Township, Columbia County, Pennsylvania. An on-lot sewage system had been installed on the property by the Defendants, pursuant to a sewerage permit issued by the Mifflin Township Sewage Enforcement Office, Nathan Reigle, (hereinafter referred to as "Additional Defendants").
Shortly after Plaintiffs took residence in the premises, they noted that sewage was percolating to the top of the ground in the area where the sewage system had been installed. Plaintiffs informed Defendants of the problem, and
[ 77 Pa. Commw. Page 414]
the Defendants attempted, without success, to remedy the situation by placing more fill on the drainage field.
Plaintiffs then contacted the Pennsylvania Department of Environmental Resources, (hereinafter referred to as "DER"), whose agents performed soil tests on the premises. These tests revealed that a conventional on-lot system -- of the type installed by Defendants -- would not function properly due to the soil conditions of the premises. Further, according to DER, no system of any type could be permitted on the premises under the usual regulations. However, because of the extreme hardship involved in this instance, DER indicated that it would consent to an individual residential sewage system with a stream discharge. The cost of such a system is approximately $4200.00.
Plaintiffs then instituted the present action against the Defendants. Plaintiffs rely primarily upon implied warranties of habitability and fitness, which are ...