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SHENANDOAH BOROUGH v. PHILADELPHIA (03/19/51)

March 19, 1951

SHENANDOAH BOROUGH, APPELLANT,
v.
PHILADELPHIA



Appeals, Nos. 159 and 160, Jan. T., 1950, from judgment of Courts of Common Pleas No. 1 and No. 6, of Philadelphia County, March T., 1946, Nos. 897 and 898, respectively, in case of School District of Borough of Shenandoah et al. v. City of Philadelphia, Trustee. Judgment affirmed.

COUNSEL

John J. Gain, with him Thomas C. Egan, G. Harold Watkins, James J. Gallagher, M. V. MCGuire, Frank Toole, Frank M. Bradigan and Leonard G. Schumack, for appellants.

Joseph P. Gaffney and David Berger, for appellee.

Frank A. Gallagher, for intervenor, appellee.

Before Drew, C.j., Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Bell

[ 367 Pa. Page 181]

OPINION BY MR. JUSTICE BELL

These appeals involve the right of the court below to enter judgment n.o.v. Each plaintiff sought to recover damages in an action of trespass against the City of Philadelphia, Trustee under the Will of Stephen Girard,

[ 367 Pa. Page 182]

Deceased, sustained as a result of a subsidence affecting a nine block area over Indian Ridge Colliery in Shenandoah. The defendant owned certain mining property in Schuylkill County known as Kehley's Run Colliery, which is adjacent to the Borough of Shenandoah.

Indian Ridge Colliery had not been actively mined for many years prior to March 4, 1940 when the subsidence began. Mining was being conducted in Kehley's Run Colliery since May 3, 1938, not by defendant, but by the Morea Coal Company under an agreement of lease or sale with defendant, which agreement had been approved by the Orphans' Court of Schuylkill County. Nevertheless plaintiffs sued, not the Morea Coal Company nor the Indian Ridge Colliery, but the Girard Trust Estate. Moreover, the suits were brought on February 28, 1946, almost six years after the subsidence. The two cases were consolidated and tried together. The plaintiff Borough proved damages to street paving and municipally owned water lines and sewer lines, as well as loss of tax revenue; the School District proved the total destruction of one high school building, the cost of repair of another which was seriously damaged, and a loss of tax revenue. The jury returned a verdict for the plaintiff Borough in the sum of $431,418.57 and for the plaintiff School District in the sum of $430,721.54.The jury also specifically found (1) that the subsidence was caused by the failure of support of Kehley's Run Mine; (2) that the defendant was guilty of negligence in entering into the 1938 lease with the Morea Coal Company; and (3) that after the lease was made in 1938, the defendant was guilty of negligence in permitting the Morea Coal Company to continue with its mining operations in the Kehley's Run Mine.

The court below entered judgment n.o.v. for the defendant alleging more than a ...


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