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EDWIN MOORE v. PAVEX (08/11/86)

filed: August 11, 1986.

EDWIN MOORE, D/B/A MARABELLA'S, STEVE'S AND JOHN'S, INC. D/B/A CONTINENTAL BURGERS AND PICADELI CIRCUS, INC., INDIVIDUALLY AND ON BEHALF OF A CLASS OF PLAINTIFFS SIMILARLY SITUATED, APPELLANTS,
v.
PAVEX, INC., HERRE BROS., INC. AND CONSOLIDATED RAIL CORPORATION. COUNTY OF DAUPHIN; WILLIAM NICHOLS AND GEORGE NICHOLS T/A THE COLONNADE RESTAURANT; SAMUEL GRACI T/A CONSTRUCTION COLLABORATIVE; ROBERT SALIGMAN T/A CYNWYD INVESTMENT; AMMOUN C. SCHNEIDER AND DANIEL J. RICHARDS A PARTNERSHIP, T/A THE BREAD BASKET, APPELLANTS, V. PAVEX, INC., HERRE BROS., INC. AND CONSOLIDATED RAIL CORPORATION



Appeal from the Order entered in the Court of Common Pleas of Dauphin County, Civil Division, Nos. 2843, 2844 S 1984

COUNSEL

Laurence S. Berman, Philadelphia, for appellants.

Kenneth I. Levin, Philadelphia, for Consolidated Rail, appellee.

Cirillo, President Judge, and Tamilia and Hester, JJ.

Author: Tamilia

[ 356 Pa. Super. Page 52]

This is an appeal from an Order entered by the Dauphin County Court of Common Pleas sustaining defendant/appellees' preliminary objections to plaintiff/appellants' consolidated amended class action complaint, thereby dismissing appellants' action.

Appellants' complaint is based on the September 11, 1984 rupture of a 42-inch water line, serving the City of Harrisburg and the Borough of Penbrook, by construction workers using a jackhammer. Appellants seek damages because of losses they sustained as a result of the interruption of water service. Appellants are Dauphin County and individuals and corporations doing business in the City of Harrisburg. Appellees, Pavex, Inc. and Herre Bros., Inc. are contractors that were engaged in excavation, drilling etc., and appellee Conrail is the owner of the land where the complained of activities occurred. Appellants alleged they suffered a variety of harms from appellees' negligence ranging from "individual and familial suffering" and "loss of wages" to "sums expended for bottled water or other replacement water" and "operating losses". (Appellants' Consolidated Amended Class Action Complaint, pp. 12, 13)

The lower court sustained appellees' preliminary objections on the basis that appellants failed to state a cause of action upon which relief could be granted.

[ 356 Pa. Super. Page 53]

Appellants allege on appeal that under the circumstances of this case, they are entitled to recover their respective economic losses in tort because allegations of tortious activities which produce economic loss and a serious risk of a health and safety hazard state a cause of action for recovery of economic harm in tort. Appellants further contend that the "bright line rule" stated in Robins Dry Dock and Page 53} Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927) is inapplicable where tortious conduct of defendants causes economic harm and a serious risk of a health and safety hazard, and also where the economic harms were foreseeable, not insured and not protected against by contractual provision.

Appellant relied heavily on Industrial Uniform Rental Co., Inc. v. International Harvester Co., 317 Pa. Super. 65, 463 A.2d 1085 (1983) on the theory that a party should be able to recover in tort, if unable to do so in assumpsit, when he alleges conditions "potentially dangerous to persons or property," (appellants' brief at 13) even when physical injury has not yet occurred. Lastly, appellants aver the law of private nuisance supports their recovery for economic harm.

There does not appear to be any Pennsylvania authority which clearly addresses these contentions. Nevertheless, the lower court held there could be no recovery for economic loss by the plaintiffs in this case who did not suffer physical harm to property in which they had a proprietary interest.

Appellants and appellees have also filed supplemental briefs in order to discuss the applicability of these recent decisions; Aikens v. Baltimore and Ohio Railroad Co., 348 Pa. Super. 17, 501 A.2d 277 (1985); Johnson v. General Motors Corp., 349 Pa. Super. 147, 502 A.2d ...


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