Totani v. Lansford-Coaldale Joint Water Authority
Decision Date | 08 October 1975 |
Docket Number | 41 |
Citation | 2 Pa. D. & C.3d 143 |
Parties | Totani v. Lansford-Coaldale Joint Water Authority |
Court | Pennsylvania Commonwealth Court |
June term, 1975.
Martin H. Philip and Steven J. Hartz, for plaintiff.
Murray Mackson, for defendant.
Preliminary objections to complaint.
Defendant's preliminary objections are, but not in this order, in the nature of a demurrer, motion for a more specific complaint and a motion to strike.
Plaintiff's premises, known as the Aquilla Hotel, according to her complaint in assumpsit and trespass, was completely destroyed by fire because of insufficient water and water pressure. She seeks in these actions to recover her damages.
Plaintiff brings the action in assumpsit as a third-party beneficiary of the contract between the Borough of Lansford and the authority for the supplying of water to her premises. The action in trespass is predicated on the negligent manner in which defendant carried out its duties or in failing to perform such duties to supply an adequate water supply to plaintiff's premises.
Defendant's motion, in the nature of a demurrer as to the assumpsit action, is sustained. She, as a property owner, is not party to the contract between the borough and authority. Defendant's motion in the nature of a demurrer to the trespass action is denied. In so ruling, we are guided by the statement of Justice, now Chief Justice, Jones in Doyle v. South Pittsburgh Water Co., 414 Pa. 199, 210, 199 A.2d 875, 880 (1964), viz.:
" "
Likewise, see our opinion in Rudermans v. Borough of Lansford, 3 Carbon 83, where we state:
" Defendant's act in supplying water is a proprietary function, Malter, Appellant, v. S. Pittsburgh Water Co., 414 Pa. 231, 237; and is liable in damages to one using its services for its negligence."
See also Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), where the immunity doctrine as a defense is no longer available to local government units.
Defendant's motion to strike, because of the joinder of counts in assumpsit and trespass, contrary to Pa. R.C.P. 1020(d)(1), in view of our sustaining defendant's demurrer to such assumpsit action, is now moot and requires no ruling.
Defendant charges that the complaint fails to sufficiently apprise it of the facts which it must be prepared to meet. It specifically attacks the various allegations of negligence alleged by plaintiff as being merely conclusions and not statements of facts. We disagree.
In paragraph 8, she apprises defendant that there was insufficient water pressure at the hydrants to fight the fire.
In paragraph 5, she apprises defendant that it had a duty to supply such water to the hydrants. In paragraph 9(a), she apprises defendant that because of its failure to maintain its hydrants, pipes, water mains and water system in a proper and adequate state of repair, it prevented the proper flow of water and water pressure.
In paragraph 9(b), she apprises defendant that it failed to provide sufficiently large water mains for the proper distribution of water.
In paragraph 9(d), she apprises defendant that it failed to maintain standpipes which were adequate in elevation to provide necessary supply of water.
In paragraph 9(f), she apprises defendant that it failed to correct the deficiencies complained of after having prior notice of these inadequacies.
All of these conditions she states resulted from the negligent manner in which it performed or failed to perform its duties to supply an adequate amount of water.
These allegations are factual statements that sufficiently apprise defendant of what it will be obliged...
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