NO. 4 EASTERN DISTRICT APPEAL DOCKET, 1982, APPEAL FROM JUDGMENT OF THE THE SUPERIOR COURT OF PENNSYLVANIA ENTERED OCTOBER 16, 1981 NOS. 385 and 386 PHILADELPHIA, 1980 AFFIRMING THE ORDER OF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNA., CIVIL DIVISION, NOS. 216, 217, 218 and 219, ENTERED JANUARY 16, 1980.
Richard C. Angino, Harrisburg, for appellants.
Harold S. Irwin, III, Carlisle, for Milzoco Builders et al.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, Larsen and McDermott, JJ., concur in the result.
This is an appeal by allowance from an order of the Superior Court, 291 Pa. Super. 345, 435 A.2d 1260, which affirmed an order entered by the Court of Common Pleas of Cumberland County. Common Pleas had sustained appellees Miller, Cook and Zollers' preliminary objections to appellants' fourth amended complaints.
Appellants are homeowners who reside in a development known as Monroe Acres. Appellees Miller, Cook and Zollers are respectively President, Vice-president and Secretary of Milzoco Builders, Inc., the developer of Monroe Acres. In addition, Cook and Zollers are apparently sole shareholders of Carroll Builders, Inc., the builder of a home which appellants, the Bauers, purchased in the development.*fn1 Each homeowner filed a separate complaint in trespass and assumpsit against Milzoco Builders, Inc. and Carroll Builders, Inc. and against Miller, Cook and Zollers individually and others on theories of breach of implied and express warranties, negligence, misrepresentation and strict liability seeking to recover damages for personal injuries and property damage they claim resulted from drainage problems in Monroe Acres.
The sole question presented for our decision is whether Superior Court erred in affirming the dismissal of all the actions in trespass against appellees on the ground that appellants failed to plead facts on which Miller, Cook and Zollers could be held personally liable for the alleged tortious actions and omissions of Milzoco Builders and Carroll Builders. We hold that the facts generally averred in
appellants' complaints state a cause of action in tort against appellees sufficient to withstand a demurrer and, accordingly, reverse the Superior Court.
Monroe Acres is situated on a sixty-acre tract of land which had been a farm before its purchase and development by Milzoco. A part of the development is on sloped land. Appellants' homes are located in the basin. Consequently, water and sewage generated by homes situated on higher ground drains onto appellants' properties.
Appellants say that excessive surface water run-off from higher elevations periodically floods their yards and basements, that their properties have become receptacles for chemical run-off, bacteria and slime and that their wells and septic tanks are now contaminated by sewage and toxic chemicals. They further say that these conditions have made their homes uninhabitable and have caused serious health problems for family members. Moreover, they say that appellees corporations' attempt to remedy the problem by digging drainage trenches served not only to make the flooding and sewage problems worse, but also created unsightly and dangerous ponds on their properties.
Appellees, officers of the corporate defendants, filed preliminary objections in the nature of motions to strike, motions for more specific pleadings and demurrers. The Court of Common Pleas overruled the motions to strike and for more specific pleadings but sustained the demurrers holding that the complaints did not state a cause of action against Miller, Cook and Zollers, individually and apart from their capacities as corporate officers of ...