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MAZZA v. BERLANTI CONSTRUCTION COMPANY (11/10/65)

decided: November 10, 1965.

MAZZA
v.
BERLANTI CONSTRUCTION COMPANY, INC., APPELLANT



Appeal from judgment of Court of Common Pleas of Delaware County, No. 3186 of 1964, in case of Josephine Mazza et al. v. Berlanti Construction Company, Inc.

COUNSEL

William D. March, for appellant.

Edwin E. Lippincott, II, with him Lippincott & Donaldson, for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J.

Author: Wright

[ 206 Pa. Super. Page 507]

On March 24, 1964, Josephine, Mary and Carmela Mazza filed a complaint in trespass against Berlanti Construction Company, Inc., hereinafter referred to as Berlanti, to recover damages to their premises resulting from blasting. Berlanti did not answer the complaint, but did file interrogatories which were answered by the plaintiffs. Following a two-day trial, at which the late Judge William R. Toal presided, the jury returned a verdict for the plaintiffs in the sum of $6,500.00. Motions by Berlanti for a new trial and for judgment n.o.v. were dismissed by the court en banc, and judgment was entered on the verdict. This appeal followed.

The Mazza sisters are the owners of and reside in premises at the corner of Thirteenth and Potter Streets in the City of Chester, Delaware County. Their property is improved by a large dwelling house and additions thereto, including a beauty parlor. Berlanti is a corporation engaged in the business of engineering, contracting and construction, with its general office in New York City. Commencing in 1961 and continuing through April 17, 1963, Berlanti was engaged in the installation of a major sewer main on Thirteenth Street, and also in the relocation of railroad tracks of the Baltimore and Ohio Railroad. This work was being performed under contract with the Commonwealth of Pennsylvania pursuant to an overall plan for construction of the Chester Expressway.

[ 206 Pa. Super. Page 508]

The Mazza theory was that certain blasting operations conducted by Berlanti in the vicinity of their property resulted in damage to the premises. Berlanti conceded that its employes were working in the area during the period in question. The failure of Berlanti to file a responsive pleading constituted an admission of the identity of the actors and their agency: Pa. R. C. P. No. 1045(a). However, Berlanti denied that the activity of its employes caused the damage claimed, and demanded proof in this regard. The controlling issues were submitted to the jury in an impartial and comprehensive charge to which only a general exception was taken.

Appellant now argues, and this is its first contention, that the trial judge erred in adding the following explanation in connection with his affirmance of Berlanti's second point*fn1 for charge: "We will affirm that as read with this explanation: in this case if you find that the blasting caused the damage and if you find that the blasting took place at such a location that from the evidence you are convinced it was near enough and could be the proximate cause of the damage, then you would find that it was in the foreseeable orbit of harm . . . But in this particular case if the blasting caused the damage then it was done within the foreseeable orbit of harm because it was close enough to be in that area".

[ 206 Pa. Super. Page 509]

It is sufficient to point out that, as previously indicated, no specific exception was taken to the quoted language, nor was any question raised with regard thereto in the motion for a new trial. The appellate court will refuse to consider issues not properly raised in the court below: Erie Drug Company Case, 416 Pa. 41, 204 A.2d 256. A party may not sit by silent, take his chances on a verdict, and, if it is adverse, then complain of matter which, if error, could have been eradicated during the trial if brought to the court's attention properly and timely: Segriff v. Johnston, 402 Pa. 109, 166 A.2d 496. Where an injury results solely from vibration, there is liability, regardless of negligence, limited to such damages as might or ought to have been foreseen: Harclerode v. Detwiler, 61 Pa. D. & C. 541. See also Federoff v. Harrison Construction Co., 362 Pa. 181, 66 A.2d 817; Laventhol v. A. DiSandro Contracting Co., 173 Pa. Superior Ct. 522, 98 A.2d 422. Our review of the charge as a whole demonstrates its correctness and adequacy. Cf. Steinberg v. Sheridan, 416 Pa. 261, 205 A.2d 870.

Appellant's second contention is that the Mazzas did not "meet their burden of proof of establishing that the damages of which they complained were caused by the defendant's blasting". The Mazzas testified that the blasting commenced in 1961. Pasquale Fazio, an assistant construction engineer for the Pennsylvania Department of Highways and a witness for the appellant, testified as to Berlanti's 1962 blasting operations on Thirteenth Street within an area 140 feet west and 180 feet east of the intersection with Potter Street. Fazio also testified that there was blasting "in the cut where the railroad tracks were relocated" approximately 250 feet below Thirteenth ...


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