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FADY ET UX. v. DANIELSON CONSTRUCTION COMPANY (03/27/73)

decided: March 27, 1973.

FADY ET UX., APPELLANTS,
v.
DANIELSON CONSTRUCTION COMPANY



Appeal from order of Court of Common Pleas of Westmoreland County, Jan. T., 1970, No. 303, in case of William E. Fady, Jr. and Erma B. Fady v. Danielson Construction Company, a corporation, and Hodge Construction Company and Bisch Industries, Inc.

COUNSEL

Irving M. Green, with him Louis H. Ceraso, for appellants.

Joseph A. Hudock, with him Pershing, Hudock & Driscoll, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, and Packel, JJ. (Cercone, J., absent.) Opinion by Spaulding, J. Watkins, J., dissents.

Author: Spaulding

[ 224 Pa. Super. Page 34]

William E. Fady, Jr. and Emma B. Fady, his wife, appeal from an order of a court en banc of the Court of Common Pleas of Westmoreland County refusing to remove a compulsory non-suit in their action against appellees.

Appellants brought this suit against appellee Danielson Construction Company for blasting damage to a commercial building housing their furniture business and to their adjacent dwelling house. Danielson joined appellees Hodge Construction Company and Bisch Industries, Inc., as additional defendants. The action was tried before Judge Richard E. McCormick and a jury. Appellants presented their case, which consisted solely of appellant William Fady's testimony and the testimony of George Ed, a contractor, who afforded evidence on the issue of damages and the cost of repairs. Prior to his testifying, no objection was made to Ed's qualifications. When, however, cross-examination revealed several errors in his calculations and repair estimate, the trial court granted appellees' motion that Ed's testimony be stricken in its entirety. Additionally, on its own motion, the court struck the contractor's written proposal, which was a detailed enumeration of the damage to be repaired and the specific charge for each portion of the proposed work. After Ed's testimony, the only evidence as to damages, was stricken, the trial court granted appellees' motion for compulsory non-suit. On January 19, 1972, the court en banc affirmed this action, citing Krasowski v. White Star Lines, 307 Pa. 470, 162 A. 200 (1932), as requiring proof of damages to sustain a verdict. Appellants here challenge the striking of Ed's testimony.

[ 224 Pa. Super. Page 35]

"On this review we adhere to the rule that on an appeal from a refusal to take off a compulsory non-suit we must view the evidence and all reasonable inferences arising therefrom in the light most favorable to the plaintiffs (appellants): Auel v. White, 389 Pa. 208, 210, 132 A.2d 350; Layman v. Gearhart, 389 Pa. 187, 190, 191, 132 A.2d 228; Seng v. American Stores Co., 384 Pa. 338 121 A.2d 123; Finnin v. Neubert, 378 Pa. 40, 41, 42, 105 A.2d 77." Lopez v. Gukenback, 391 Pa. 359, 361, 137 A.2d 771 (1958). Accord, Taylor v. Phila. Parking Authority, 398 Pa. 9, 156 A.2d 525 (1959).

The crux of this case is whether one major error in Ed's calculations as to the repairs necessary and other inconsistencies and vagueness in several less vital areas of his testimony were so substantial as to justify the court en banc's conclusion that: "His testimony was not qualified, incompentent, confused and almost fraudulent, and was entirely meaningless to the jury." While Ed's testimony was far from overwhelming, after a careful review in the light most favorable to appellants, we hold that it was qualified, despite errors and inconsistencies, and should have been submitted to the jury for their judgment as to its credibility and persuasiveness.

Initially, it is necessary to reiterate that Ed was not called for the more usual purpose of an expert testifying to the causal connection between negligence and damages.*fn1 Appellants relied solely on appellant William

[ 224 Pa. Super. Page 36]

Fady's testimony in this regard. Rather, as stated in appellants' offer of proof when Ed was called, his testimony was offered as "a contractor [who made] estimates of repairs to the damages that have already been testified to . . ., and who has submitted a proposal to Mr. Fady for the repair of these damages . . .; and also that he had been on the premises prior to the time of the blasting. . . ." (R. 102a) Appellees made no objection to Ed's qualifications prior to his testifying, but made such an objection, at side bar, only after the witness was dismissed. Ed's testimony opened with his stating that he was a contractor and carpenter, had once been involved in ...


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