Pike County Hotels Corp. v. Kiefer

SPAETH, Judge,

concurring and dissenting:

I agree with the majority’s conclusion that the first count of the amended complaint sufficiently pleads that Rinker owed a duty to appellants. Although the majority does not give its reason for this conclusion, I assume that it relies on paragraph 15 of the complaint, which pleads Rinker’s contract with Pike.

I disagree with the majority’s conclusion that the sixth count of the amended complaint does not plead that Crow-der owed a duty to appellants. The majority simply says, without explanation, that no duty is pleaded. However, I believe that paragraph 40 of the amended complaint does plead a duty — and does so as clearly as paragraph 15 does with respect to Rinker. If an electrician undertakes to do electrical work in my kitchen, which is what paragraph 40 alleges, I think he owes me a duty of care. See generally Blanchard v. Wilt, 403 Pa. 380, 169 A.2d 541 (1961) (negligent plumber); City Product Corp. v. Bennet Bros., 390 Pa. 398, 135 A.2d 924 (1957) (workers using acetylene torches); Rubinstein v. J.E. Kunkle Co., 244 Pa.Super. 474, 368 A.2d 819 (1976) (negligent furnace installers). If he violates that duty by leaving hot wires exposed, or by failing to turn off the circuits, with the result that my house burns down, which is what paragraph 41 alleges, he should pay me damages.¹ Thus, in my opinion, appellant pleaded enough facts to give rise to the legal conclusion that appellees owed appellants a duty, which they violated. That is all a pleader is supposed to do.

Accordingly, I should reverse the order of the lower court in its entirety.

PRICE, J., joins in this opinion.

1 . The majority confines its review to subparagraphs (b), (g) and (h) of paragraph 41. In testing a demurrer, we should consider the entire complaint. Even if review is limited to subparagraphs (b), (g) and (h), however, these sufficiently allege a duty on the part of Crowder.