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PASCARELLA v. KELLEY (05/24/54)

May 24, 1954

PASCARELLA
v.
KELLEY, APPELLANT



Appeal, No. 299, Jan. T., 1953, from judgments of Court of Common Pleas of McKean County, June T., 1950, No. 51, in case of James Pascarella and Anillo J. Pascarella v. C. Leo Kelley et al., trading as S. A. Whitney & Company. Judgments reversed. Trespass for property damage. Before HUBBARD, P.J. Verdict for plaintiffs and against all defendants and judgment thereon. Defendants Pugh, Whitney, and Kelley, respectively, appealed.

COUNSEL

R. T. Mutzabaugh, with him Nash & Mutzabaugh, for appellants.

Marvin D. Power, with him John A. Fitzgibbon, McDowell & McDowell, and Margiotti & Casey, for appellees.

Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.

Author: Arnold

[ 378 Pa. Page 19]

OPINION BY MR. JUSTICE ARNOLD

Defendants, S. A. Whitney & Company and Kelley, appeal from the refusal of their motions for new trial and judgment n.o.v. in a trespass action for property damage alleged to have resulted from various negligent acts of defendants. Coleman, another defendant, permitted plaintiffs to take judgment against him by default, and is not a party to this appeal.

Taking the facts in a light most favorable to the plaintiffs, as we are bound to do, the following appears: In 1947 and prior thereto plaintiffs owned and operated a hotel in the city of Bradford, the building being immediately adjacent to and supported by a bank of Tunungwant Creek. In 1947, as a flood control measure, the Commonwealth undertook the dredging and deepening of the channel of the creek. For the project the Commonwealth employed various persons in various capacities, among whom were these defendants. Kelley was hired as a foreman having general supervision and control of the operations. Coleman

[ 378 Pa. Page 20]

    owned a bulldozer and he, with his equipment, was hired to dredge and remove matter from the channel. S. A. Whitney & Company, a partnership comprised of defendants Pugh and Whitney, along with its bulldozer and other equipment, was also hired, approximately 2 weeks before Coleman left the job. Both Coleman and Whitney & Company had bulldozers operating on the project at the same time -- a period of some two weeks -- after which only Whitney & Company were on the job. The various defendants operated independently of each other insofar as responsibilities were concerned, each being independent contractors.

Sometime in the course of the operations a bulldozer had come too close to the building, and had damaged the foundation wall by driving holes into it and pulling out parts of the foundation. Immediate complaint was made to Kelley, who stated that he would have it repaired ("I will fix it up"). Some gravel was pushed up against the side of the building and nothing more was done. Plaintiffs, in reliance upon Kelley's promise and acts, and without further inquiry, assumed that it had been properly repaired. However, the following spring the foundation gave way as a result of customarily high water in the creek, resulting in severe damage to the building. Plaintiffs submitted testimony that what was done to repair was not sufficient to prevent erosion and undermining.

There was no evidence definitely or even by inference pointing to the fact that the bulldozer or equipment of S. A. Whitney & Company caused the injury to the building. In fact, the direct evidence was that it was caused by Coleman's bulldozer. The only testimony concerning Whitney & Company was that they had done some work in the creek, and in the course of their ...


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