Dissenting Opinion
Montgomery, J.I would adhere to and not disregard the previous opinion filed in this case on June 27,1955, by this present court en banc rather than join in the majority opinion now being filed after reargu*420ment to supersede it. In the earlier opinion, reference was made to the case of White Oak Borough Authority Appeal, 372 Pa. 424, wherein it was stated that: “Where a municipality operates a water system it is, ad hoc, a private business corporation.” As the complaint and amended complaints are drawn, there is no mention made of any community emergency, fire hazard or other situation requiring the exercise of its police or other governmental power by the City of Mc-Keesport. The substance of the complaint is that a certain group of people in the City of McKeesport had been dependent on a spring as the source of their water supply inasmuch as the city had refused to extend the water lines of its water department so as to accommodate the homes occupied by plaintiffs; however, on several occasions when the spring went dry, the city did furnish a supply by pumping water into the spring and on the present occasion, the supply had been replenished by means of the facilities of the city fire department. It could have done so by tank trucks or other means but it chose to do so in the manner just mentioned. This appears to be the only fact in plaintiff’s allegations that contains any implication that the city was performing a governmental function, and I do not deem it sufficient to justify, at this stage of the proceedings, judgments in favor of defendant.
The objections to the pleadings previously sustained and mentioned in the prior opinion have been overcome, in my opinion, by the additional allegations contained in the supplemental amended complaint in which defendant is charged with supplying to plaintiffs contaminated water knowing it was to be used for drinking purposes. This may be difficult of proof but nevertheless, I think plaintiffs should have their opportunity in court to prove it.
I would, therefore, discharge all preliminary objections.