Appeals, Nos. 36 to 60, inclusive, from orders of Court of Common Pleas of Lackawanna County, May T., 1951, Nos. 152 to 164, 166 to 174, and 837, and Sept. T., 1951, Nos. 443 and 486, in cases of Margaret Sultzer Evans et al. v. Robert Y. Moffat et al. Orders affirmed.
Bernard G. Segal, with him Edward W. Mullinix, James W. Scanlon, Matthew D. Mackie, J. Hayden Oliver, Wm. A. Schnader, and Schnader, Harrison, Segal & Lewis, for appellants.
Raymond T. Law, with him John R. Lenahan, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
The twenty-five separate actions in trespass here involved were instituted by the respective plaintiffs to recover damages for injury to their several properties allegedly caused by noxious fumes emanating from mine refuse dumps created and maintained by the defendant, Moffat Coal Company, a co-partnership, on land leased from Glen Alden Coal Company in the vicinity
of the plaintiffs' properties. The cases were consolidated for trial to the court below, sitting without a jury, under an express agreement of submission by counsel for the parties in accordance with the provisions of the Act of April 22, 1874, P.L. 109, as amended, 12 PS § 688 et seq. All that these appeals bring up for review is the action of the court below in opening judgments in favor of the defendants and permitting the plaintiffs to file exceptions to the trial court's findings, conclusions and judgment nisi.
A companion case in the same court (Waschak v. Moffat, infra) had been tried earlier to a judge and jury and had resulted in a money verdict in favor of the plaintiffs, against the defendants. Upon overruling Moffat Coal Company's after-verdict motions, the court entered judgment against that company on the verdict but entered judgment n.o.v. in favor of Glen Alden Coal Company, the co-defendant. No appeal was taken from the judgment for Glen Alden Coal Company which consequently became final.
Moffat Coal Company appealed the judgment against it ($1,250.) and the Superior Court unanimously affirmed: see 173 Pa. Superior Ct. 209, 96 A.2d 163. An allocatur was granted, and, after argument of the appeal, a majority of this court reversed and entered judgment n.o.v. for the appellant defendants: see Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310. In so doing, this court cited as pertinent authority the rule relative to liability in the case of a private nuisance as contained in the Restatement, Torts, § 822(d), and held, as a matter of law, that "the invasion of the plaintiffs' land was clearly not intentional" and that, "even if it were, ... it was not unreasonable". Actually, the case had not been tried on the basis of the indicia of responsibility as specified in the Restatement. In fact, the point had not been argued or even
raised in the trial court at any time and was first injected into the case by the defendants on their appeal to the Superior Court which court, upon consideration, rejected the rule as of no applicability to the proven facts of the case.
After the record in the Waschak case had been remanded to the court below, the defendants were permitted to file in the instant actions amended answers to the complaints, raising the affirmative defense of res judicata on the basis of this court's decision in the Waschak case. At the subsequent trial of these cases to the court without a jury, the testimony in the Waschak case was, by pre-trial agreement and order, submitted to the trial judge as testimony on the question of the defendants' liability.
In passing upon the evidence applicable to the cases involved in these appeals, the learned trial judge found that the plaintiffs' properties had been substantially interfered with by the defendants and that the invasion of the plaintiffs' property rights was intentional. The court was of the further opinion that this was an ultimate inference of fact supported by the basic findings as to the defendants' knowledge of the attendant physical conditions relative to the dumps and their likely deleterious effects. In support of the view that the finding of intentional invasion was a conclusion of fact, the trial judge cited and quoted from Restatement, Torts, § 825(b), as follows: "An invasion of another's interest in the use and enjoyment of land is intentional when the actor ... (b) knows that it is resulting or is substantially certain to result from his conduct." However, the court was also of the opinion that the decision in the Waschak case was res judicata of the issues involved in the instant cases. Thereupon, the court entered judgments nisi on February 6, 1956, in favor of the defendants and against the plaintiffs
and included also a compulsory non-suit as to the co-defendant ...