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DEFRANK v. SULLIVAN TRAIL COAL CO. (04/24/67)

decided: April 24, 1967.

DEFRANK, APPELLANT,
v.
SULLIVAN TRAIL COAL CO.



Appeal from judgment of Court of Common Pleas of Luzerne County, Oct. T., 1962, No. 1639, in case of August DeFrank and Clara DeFrank, his wife, and August DeFrank, trading as Hazleton Sanitary Wipers v. Sullivan Trail Coal Co.

COUNSEL

George I. Puhak and Andrew I. Puhak, with them Eugene Chovanes, for appellants.

J. Earl Langan, with him Saverio Rosato, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell, Mr. Justice Jones and Mr. Justice Eagen dissent.

Author: O'brien

[ 425 Pa. Page 513]

This is an appeal by the plaintiffs, from judgment of compulsory non-suit. Plaintiffs, August DeFrank and Clara DeFrank, his wife, own two buildings in the

[ 425 Pa. Page 514]

City of Hazleton, Pennsylvania, one of which was damaged by fire on February 24, 1962. The buildings were occupied by the Hazleton Sanitary Wipers, a trade name of August DeFrank's business, whose merchandise and equipment was destroyed.

The appellee, Sullivan Trail Coal Co., was engaged in strip mining coal in the westerly section of the City of Hazleton, and in the course of its work, used explosives. Shortly before 1:00 o'clock in the afternoon, a fire was discovered on the second floor of the two story building. Appellants sued appellee in trespass, alleging that an explosion, set off by defendant, shook the ground, causing a short circuit in the electrical terminal box, in the building on the second floor, from which the arcing electrical current started the fire. The trial judge, at the conclusion of plaintiffs' case, on motion by defendant, granted a compulsory non-suit. Later, after argument before the court en banc, the plaintiffs' rule to remove judgment of compulsory non-suit was discharged. This appeal followed.

We must be guided in our review by the rule that: "In considering the appeal from the refusal of the court below to take off the non-suit, appellant must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in his favor [citing cases]." Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 219 A.2d 676 (1966).

The factual determination to be resolved was who or what caused the fire, Mr. DeFrank's contention being that the blasting of the appellee in its coal mining operation caused the building to shake and short circuit the terminal box. He testified that at about 10:30 that morning, while sorting and grading rags in the performance of his work, a blast was set off that shook the building. At the time the fire broke out, however, no one was in the two story building, Mr. DeFrank

[ 425 Pa. Page 515]

    having left that building to go to the one story building housing the boiler room for the purpose of preparing the furnace for the weekend. He testified that: "I went downstairs. I checked all my doors which takes about five minutes to do it slowly and safely. So I came out of the big building. I looked at my watch again about quarter of one. And between the two buildings there's a driveway, and I got almost a little over the half-way mark, -- that was about quarter of one -- they put this other shot which vibrated me and I almost dropped the clock out of my hand, and I almost went over. So I kept going down. It took me a little time to straighten up so I took a little time and I went down into my laundry. I put thirteen shovels of buckwheat coal into my hopper, that is for the furnace. After I got done with that I came out. I grabbed the barrel, and I had my ...


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