Printed Terry Finishing Co., Inc. v. City of Lebanon
| Decision Date | 14 July 1977 |
| Parties | PRINTED TERRY FINISHING COMPANY, INC. v. CITY OF LEBANON and Pitometer Associates, Inc. Appeal of PITOMETER ASSOCIATES, INC. PRINTED TERRY FINISHING COMPANY, INC., Appellant, v. CITY OF LEBANON and Pitometer Associates, Inc. |
| Court | Pennsylvania Superior Court |
George E. Christianson, Lebanon, with him Lewis, Brubaker, Whitman & Christianson, Lebanon, for appellant at No. 34.
Stephen A. Cozen, Philadelphia, and Bernard A. Buzgon, Lebanon, for appellant at No. 16 and appellee at No. 34.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
We are confronted here with consolidated appeals of unusual complexity and length. On April 30, 1970, a fire substantially destroyed the building and machinery used by Printed Terry Finishing Company, Inc. (Printed Terry) to emboss colored designs on terry cloth towels. Eight months later, Printed Terry filed a complaint in trespass charging the City of Lebanon (City) and Pitometer Associates, Inc. (Pitometer) with negligently causing the fire which ravaged its factory. A trial, bifurcated as to liability and damages, resulted in a jury verdict in favor of Printed Terry and against both defendants 1 in the amount of $534,249.28. On August 12, 1975, the court below denied Pitometer's motion for judgment n.o.v. or a new trial as to liability, but granted Pitometer's motion for a new trial limited to damages on the basis of alleged misconduct by record counsel for Printed Terry. In view of its determination to grant a new trial as to damages, the court below failed to consider Printed Terry's motion to mold, modify and amend the jury's verdict on damages. Both Printed Terry and Pitometer contest the propriety of the order entered by the court below.
Pitometer's Motion for Judgment N.O.V.
It is fundamental that in evaluating the merits of a motion for judgment n.o.v., the testimony must be read in a light most favorable to the verdict winner. E.g., Bailey v. Gibbs, 414 Pa. 238, 199 A.2d 460 (1964); Rodgers v. Sun Oil Co., 406 Pa. 277, 177 A.2d 491 (1962). All unfavorable evidence and the inferences deducible therefrom, if depending solely on oral evidence, must be rejected. E.g., Rodgers v. Sun Oil Co., supra; Karan v. Pennsylvania Power & Light Co., 205 Pa.Super. 318, 208 A.2d 876 (1965).
On April 30, 1970, at approximately 5:40 p.m., employees noticed a small fire above the Number Two dryer in Printed Terry's plant located at Sixteenth and Willow Streets in the City of Lebanon. An employee attempted to reach the fire with a portable fire extinguisher, but failed. He did manage, however to turn off electrical power to the dryer. All employees then fled from the building which was quickly surrounded by fire fighters. Although heavy smoke snaked skyward, no flames were initially visible from outside the building. Anxious firemen hastily attached hoses to hydrants and thrust forward, but their hoses failed to yield the expected burst of water. Instead, only a small amount of water dribbled forth, splashing the sidewalk but falling far short of the high, heated roof. Frustrated firemen loudly clamored for water. At about 6:05 p.m., an employee of the City Bureau of Water, fortuitously aware 2 of the fire at the Printed Terry plant, opened a number of valves in the water district north of the plant. These valves had recently been closed in connection with a study of the City water system then being conducted by Pitometer. Firemen soon experienced increased water presure, but by then, the small fire had become a conflagration.
The Printed Terry plant was not solely dependent upon firemen to prevent a fiery demise. In 1965, a 'dry pipe' sprinkler system had been installed in the Printed Terry building. This system was connected to an eight-inch City water main on Sixteenth Street adjacent to the west side of the Printed Terry building. The Printed Terry 'dry pipe' system contained pressurized air in its pipes, and operated in the following manner: If a sprinkler head in the Printed Terry plant encountered temperature of a certain degree, the sprinkler head would melt, thus reducing the air pressure within the pipes. Water from the City water system would than enter the sprinkler system and extinguish the fire.
The Printed Terry system was also equipped with two different automatic alarm devices. One device would transmit a signal to the Civil Defense Office in the City if some element of the system began to function abnormally. The second alarm device would sound a warning in the plant when water began to flow through the pipes. Thus, if a fire occurred, the first device would activate as air pressure lowered, indicating some trouble within the system, and the second device would sound an alarm as water entered the system.
The record shows that the Printed Terry sprinkler system had recently been examined and found to be functioning properly. Specifically, an inspection of the entire sprinkler system during the first two weeks of April of 1970 had confirmed that proper air pressure existed in all pipes. This inspection further demonstrated that the sprinkler head most distant from the water inlet valve would receive water within thirty seconds after the system activated. Moreover, on April 28, 1970, only two days prior to the fire, the installers of the sprinkler system, the Capitol Radio Company, discovered, after testing, no defect in the operation of the two alarm devices. Although a signal was transmitted to the City Civil Defense Office when the fire broke out at the plant, witnesses testified that no alarm ever sounded throughout the building. Moreover, no water was seen coming from the sprinkler heads.
David J. Kinash, the Director of Water and Sewers for the City testified that prior to 1970 the City water system was losing a great deal of water each day. As a result, on March 16, 1970, the City engaged Pitometer, an engineering concern specializing in the study of municipal water systems, to conduct a 'Pitometer Water Waste Survey' of the City water system. Under the terms of the survey, Pitometer, aided by a small instrument known as a pitometer, was to determine the efficiency and total consumption of the system, divide the distribution system into districts and determine the water flow into each district, locate all underground leaks of a certain size, investigate all large industrial consumers to detect unauthorized water use 'through fire lines or otherwise,' test all commercial and industrial meters four inches or larger in diameter, and provide the City with a detailed report of the survey at its completion. The City, on the other hand, was to 'furnish and set corporation cocks at the points designated by (Pitometer) engineers, supply competent labor for operating valves and repairing leaks, construct and furnish transportation, including driver, necessary for properly conducting the Survey.' (R. 1170a--1171a) According to Pitometer, a further benefit to be derived from the survey would be the increased fire protection in the areas adjacent to defective valves which would either be opened or repaired during the survey.
As contracted, Pitometer proceeded with its plan to divide the City water system into various districts so that the flow of water through each district could be determined. On April 29, 1970, after discussion with several Bureau of Water employees, Pitometer decided to isolate District One by turning off numerous water valves in that district. This action resulted in a substantial diminution in the amount of water flowing into the district, immediately south of District One, in which the Printed Terry plant was located. Despite receiving reports of low water pressure in the Printed Terry district, Pitometer and the City employees again turned off the valves in District One on April 30, 1970, the day of the fire at the Printed Terry plant. 3
Virgil Ferguson, a district manager for Pitometer, admitted that a water waste engineer should know for fire protection purposes precisely how the water pressure within a distribution district would be affected by the isolation of an adjacent district. However, Thomas K. Beane, the Pitometer field engineer who conducted the survey, testified that prior to the isolation of District One he never suggested to City officials that a determination be made of the water pressure contained within, or running to, the Printed Terry district. Similarly, Beane failed to suggest to City officials that the effect of isolating one district upon the water pressure in an adjacent district be measured. Beane further testified that he failed to notify the City Fire Department that the level of water pressure in the Printed Terry district would be greatly reduced by the isolation of District One. Beane also failed to suggest that contingency plans be established in case of fire in the Printed Terry district.
Printed Terry presented two witnesses to testify as experts. The first expert witness, Alfred Ellis Baccini, testified, in response to a hypothetical question, that the fire would have been extinguished in its incipient stage, if the Printed Terry sprinkler system had been supplied with the proper water pressure level. He also testified that Pitometer had not followed good fire protection practices during the course of its survey because it had allowed the water valves in District One to be closed without establishing contingency plans in case of a fire. The second expert witness, Horton Blackwell Rucker, testified that Pitometer failed to observe good engineering practices by not measuring what effect the isolation of District One would have on the water pressure within that district or within adjacent districts. Moreover, he testified that he had observed Pitometer conduct previous water system surveys in which...
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...on the record, it will, in itself, be grounds for a new trial. Colosimo, 518 A.2d at 1211 (quoting Printed Terry Finishing v. City of Lebanon, 247 Pa.Super. 277, 372 A.2d 460, 471 (1977)). We have also presumed prejudice and reversed criminal convictions because of improper contact with the......
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