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EVANS v. MOFFAT ET AL. (05/04/60)

May 4, 1960


Appeals, Nos. 15 to 39, inclusive, Feb. T., 1960, from judgments 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. Judgments affirmed.


Edward W. Mullinix, with him James W. Scanlon, Matthew D. Mackie, J. Hayden Oliver, Bernard G. Segal, William A. Schnader, and Schnader, Harrison, Segal & Lewis, for appellants.

Raymond T. Law, with him John R. Lenahan, for appellees.

Before Rhodes, P.j., Wright, Woodside, Ervin, Watkins, and Montgomery, JJ. (gunther, J., absent).

Author: Ervin

[ 192 Pa. Super. Page 207]


The plaintiffs in these 25 cases sought damages for injury to their respective homes caused by noxious and foul smelling gases emanating from mine refuse dumps created and maintained by Moffat Coal Company, a co-partnership (hereinafter called "Moffat"), in the vicinity of plaintiffs' properties. The cases were consolidated for trial in the court below, which sat without a jury under an express agreement of submission by counsel, in accordance with the provisions of the Act of April 22, 1874, P.L. 109, as amended, 12 PS § 688 et seq. A companion case, Waschak v. Moffat, had been tried earlier before a judge and jury and had resulted in a verdict for plaintiffs. Moffat appealed and we unanimously affirmed, see Waschak v. Moffat, 173 Pa. Superior Ct. 209, 96 A.2d 163. The Supreme Court reversed and entered judgment n.o.v. for Moffat, see Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310. At that time these 25 cases were pending in the court below and when the Supreme Court clarified the law, the plaintiffs filed amended requests for findings of fact and conclusions of law in accordance with the new rule of liability as contained in § 822 of the Restatement, Torts, which the Supreme Court had adopted. The Waschak case had been tried in the court below on the theory of absolute liability. The Supreme Court, however, held that § 822 of the Restatement, Torts, was applicable and it then found that the invasion was not intentional nor unreasonable. The defendant in the present cases then filed amended answers to the complaints raising the affirmative defense of res judicata on the basis of the Waschak decision. The testimony in the Waschak case was by pre-trial agreement and order admitted into evidence in the present cases as testimony on the question of defendant's liability. In addition to this, the trial court took 295 pages of oral testimony of the plaintiffs and their witnesses. The

[ 192 Pa. Super. Page 208]

    trial court made findings of fact from the evidence, all of which supported liability, and then held that the Supreme Court's opinion in the Waschak case required it to enter judgment for Moffat on the ground that the Supreme Court had said that the gas invasion of plaintiffs' properties, even if intentional, was not unreasonable. Counsel for Moffat, on the 23rd day following the judgment nisi, filed a praecipe with the prothonotary for judgment for failure to file exceptions within 20 days. The court below, on plaintiffs' petition, then opened the judgments and permitted the filing of plaintiffs' exceptions to the earlier entry of judgment nisi for Moffat. Moffat then appealed this action of the court below in these 25 cases to the Supreme Court, see Evans v. Moffat, 388 Pa. 559, 131 A.2d 141. The Supreme Court held that the judgment was properly opened. In that appeal Moffat's counsel argued that it would be useless to remand the case for further proceedings because the Waschak decision made such action futile. In the opinion written by Chief Justice JONES this argument was answered, at pages 565, 566, in the following language: "So much would suffice for answer to what these appeals brought up for review except for the appellants' argument that the decision in Waschak v. Moffat, supra, rules these cases and that it would therefore be a futile gesture to proceed further with them. Since appellants have vigorously pressed this contention - devoting to it the greater part of their brief in this court - it becomes necessary that we treat with it lest an incorrect inference should be drawn were we to pass over it in silence.

"The decision in the Waschak case is by no means res judicata of the issues in the cases now before us. At least one, if not more, of the requisites of the doctrine is absent. Specifically, there is a patent want of identity of parties plaintiff in the Waschak and other cases....

[ 192 Pa. Super. Page 209]

"So far as the decision in the Waschak case has any bearing on the instant actions, it is at most stare decisis as to the applicability of § 822(d) of the Restatement, Torts. It does not constitute an adjudication of the facts at issue which, in each case, are for the court below, as the fact-finder, to resolve as well as determine preliminarily what are matters of fact as distinguished from matters of law."

Upon the return of the cases to the court below, it made further findings that the invasion was unreasonable as well as intentional and found verdicts for the plaintiffs, which were reduced to the total amount of $58,700.00, and final judgments were entered thereon. These appeals then followed.

The law has been clearly defined by our Supreme Court for the trial of these cases. In the Waschak case that Court decided that § 822 of the Restatement, Torts, is applicable. This section makes material the question of whether the invasion is intentional. Section 822, Restatement, Torts, is as follows: "General Rule. The actor is liable in an action for damages for a non-trespassory invasion of another's interest in the private use and enjoyment of land if,

"(a) the other has property rights and privileges in respect to the use or enjoyment interfered with; and

"(b) the invasion is substantial; and

"(c) the actor's conduct is a legal cause of the invasion; and

"(d) the invasion is either

(i) intentional and unreasonable; or

(ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct."

In the Waschak case the Supreme Court did not apply the definition of "intentional" as found in § 825, Restatement, Torts. In a later case, Burr v. Adam Eidemiller, Inc., 386 Pa. 416, 422, 126 A.2d 403, that

[ 192 Pa. Super. Page 210]

Court did adopt the Restatement definition set forth in § 825, which divides intentional invasion into two classes: "(a) where the actor acts for the purpose of causing it; or (b) where the actor knows that it is resulting or is substantially certain to result from his conduct." It is with (b) that we are here concerned. It is, therefore, clear that in trespass for nuisance the Restatement, Torts, §§ 822 and 825, are to be applied. The trial judge's findings of fact, supported by testimony and sustained by the court in banc, have the force and effect of a jury's verdict and will not be disturbed on appeal: Reilly v. Magee, 272 Pa. 406, 116 A. 310; Allegheny By-Product Coke Co. v. J. H. Hillman and Sons Co., 275 Pa. 191, 118 A. 900; Fidelity Title and Trust Co. v. Garrett, 327 Pa. 305, 194 A. 398; Arnstein v. Metropolitan Life Ins. Co., 329 Pa. 158, 196 A. 491; Croft v. Malli, 378 Pa. 6, 7, 8, 105 A.2d 372; Scott-Smith Cadillac Co., Inc. v. Rajeski, 166 Pa. Superior Ct. 116, 70 A.2d 454; Schlein v. Gross, 186 Pa. Superior Ct. 618, 142 A.2d 329.

The only real question in these cases is whether the trial court's findings are supported by the evidence. Finding No. 53 of the court below is as follows: "The invasion of the plaintiffs' interests was intentional in that the defendants knew the invasion was resulting and was substantially certain to result from their conduct, and yet persisted in such conduct by establishing new refuse dumps in residential locations." This finding was preceded by detailed findings which showed that when the original lessee entered the property under the 1937 lease, there was in existence a breaker refuse bank resulting from previous operations of the Glen Alden Coal Co. adjacent to the breaker; that this bank was burning then but there is no evidence that it had caused damage or pollution of the atmosphere; that the lessee started a refuse dump adjoining the burning bank and that this new dump, called the Main

[ 192 Pa. Super. Page 211]

Street dump, is 1,100 feet in length, 650 feet in width and approximately 40 feet in height and that this dump started to burn in 1944 and was burning at the trial; that when the Main Street dump took fire, dumping operations were transferred to a location on Washington Street at the westerly end of Church Street and in the rear of Union Street, which dump, called the Washington Street bank, is 800 feet in length along the court in the rear of Union Street, 750 feet in width along Washington Street, and 50 feet in height and that this dump is located in a built-up, populous section of the Borough of Taylor, Washington Street, Church Street and Union Street being occupied by homes; that in June 1948 the Washington Street dump was oxidizing and giving off hydrogen sulphide fumes, the odors being prevalent several blocks from the dump; that in the fall of 1948, while the Washington Street bank was giving off its hydrogen sulphide fumes in quantity and the disagreeable odors were noticeable for several blocks, Moffat built a silt dam in the rear of the McKinley Public School on North Main Street and used this refuse and a covering of dirt for the walls of the silt dam, this location also being in a residential section of Taylor; the dam measured 100 to 500 feet in width and 400 to 700 feet in length, the walls being 25 feet in height; that in 1949 when Moffat was convinced there was fire in the Washington Street bank, Moffat ceased using breaker material in the construction of the silt dam; that the walls of the silt dam also oxidized soon after its construction and gave off hydrogen sulphide fumes in quantity; that complaint was made by the burgess of Taylor to Moffat and they then began to cover the Washington Street bank with dirt but the fumes continued; that Moffat on March 9, 1949 transferred its dumping operations to Fourth Street in Taylor, Fourth Street being a continuation of Washington Street and being in a residential section

[ 192 Pa. Super. Page 212]

    of the borough; that in May or June 1951 the Fourth Street dump was burning, this dump being 500 feet in length, 500 feet in width and 40 feet in height, with a ramp 350 feet long and 300 feet wide, made of the same refuse material, no dirt covering having been put on this dump and the fumes given off by it in quantity being sulphur dioxide; that when the Fourth Street dump was burning and could no longer be used, Moffat transferred its dumping operations to a new site between this dump and the Washington Street bank, and are now using that location in the same general neighborhood; that all of these dumps generate and give off noxious fumes, gases and vapors identified as hydrogen sulphide, sulphur dioxide and carbon monoxide, which permeate and pollute the air in the Borough of Taylor; that hydrogen sulphide has been released from the Washington Street bank and the silt dam; that the generation and giving off of hydrogen sulphide, sulphur dioxide and carbon monoxide has existed continuously since the latter part of 1947 or at least as early as June 1948; that when a dump burns as the Fourth Street dump is burning, the sulphur in the dump is converted to sulphur dioxide; that sulphur dioxide in the presence of moisture forms first sulphurous acid, which is a bleaching agent, later it is oxidized to form sulphuric acid, which is a very strong acid; that sulphur dioxide is more than twice as heavy as air and when the humidity is high it forms small droplets in the air of sulphurous acid and with the wind in the right direction this acid-laden air ...

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