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FOLMAR ET AL. v. ELLIOT COAL MINING COMPANY (01/25/71)

decided: January 25, 1971.

FOLMAR ET AL., APPELLANTS,
v.
ELLIOT COAL MINING COMPANY, INC.



Appeals from judgment of Court of Common Pleas of Centre County, Oct. T., 1963, Nos. 415 and 416, in case of Herbert Folmar et al. v. Elliot Coal Mining Company, Inc.

COUNSEL

F. Cortez Bell, Sr., with him Bell, Silberblatt & Swoope, for appellants.

John R. Miller, with him David L. Baird, and Miller, Kistler, Lee & Campbell, and Baird, McCamley & Miller, for appellee.

Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Jones took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case.

Author: Pomeroy

[ 441 Pa. Page 593]

These are suits in trespass to recover damages for injury to plaintiffs' property allegedly caused by air pollution attributable to defendant's operation of its coal-cleaning plant.*fn1 The trial court by its verdict found for the defendant in both cases and, as provided by Pa. R. C. P. Rule 1048, supported its verdict with findings of fact and conclusions of law. Plaintiffs' exceptions

[ 441 Pa. Page 594]

    to the findings and conclusions were overruled, and these appeals followed.*fn2

The findings of fact, broadly stated, were as follows: The two appellants purchased their homes in 1931 and 1959, respectively. Both properties are located within 1500 feet of appellee's coal processing plant, which consists of crushers, conveyors, vibrating equipment, screens and picking tables. The plant has been operated by the appellee and its predecessor since 1948, and the appellants realized at the times of their respective purchases that the properties were located in an area generally used for industrial and coal mining purposes. As a result of complaints, appellee installed in 1962 an air cleaner, thermodryer and coal washing unit, and soon thereafter a dust collector and covered coal conveyor. Notwithstanding these measures, the appellee's coal cleaning operation has contributed to air pollution affecting the properties of appellants from 1962 to the time of trial.*fn3 The appellee has employed specialists in the field of fuel and combustion air pollution who have conducted numerous tests. They have recommended

[ 441 Pa. Page 595]

    the installation of a certain type of wet scrubber on the thermodryer as a means of reducing emission of dust from that source. This equipment will cost $20,000 to $30,000. The appellee has adopted the recommendation and "intends to either discontinue using the thermodryer or install the wet scrubber." "With the installation of the wet scrubber, defendant company will have done everything now known and economically feasible to eliminate any source of air pollution." The cleaning plant is an essential part of appellee's mining operations, and appellee is not in default as to compliance with any requirements of the Air Pollution Control Commission.

The trial court concluded, as a matter of law, that the invasion of appellants' properties by coal dust from appellee's plant has not been substantial,*fn4 nor was it intentional or unreasonable; neither has the ...


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