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THEODORE EDWARD DE SALLE v. PENN CENTRAL TRANSPORTATION COMPANY AND ROY H. LAMBERSON (02/22/79)

decided: February 22, 1979.

THEODORE EDWARD DE SALLE
v.
PENN CENTRAL TRANSPORTATION COMPANY AND ROY H. LAMBERSON, APPELLANTS



No. 763 April Term, 1977, Appeal from the Order and Judgment of the Court of Common Pleas of Allegheny County, Civil Division at No. 3700 October Term, 1973.

COUNSEL

Aloysius F. Mahler, Pittsburgh, for appellants.

John J. Ross, Aliquippa, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J. concurs in the result. Jacobs, former President Judge, Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 263 Pa. Super. Page 488]

This appeal arises from the lower court's denial of appellants' motion for judgment non obstante veredicto or alternatively, a new trial. We hold that judgment n. o. v. should have properly been entered in favor of appellants and, therefore, reverse the judgment of the lower court.

On appeal from a denial of judgment n. o. v., we are constrained to view the evidence in the light most favorable to the appellee, allowing him the benefit of every fact and every reasonable inference of fact arising therefrom, and resolving any conflict of evidence in his favor. Jones v. Three Rivers Management Corp., 251 Pa. Super. 82, 380 A.2d 387 (1977), reversed on other grounds, 483 Pa. 75, 394 A.2d 546 (1978); Hargrove v. Frommeyer & Co., 229 Pa. Super. 298, 323 A.2d 300 (1974). Examining the record in this light, the following facts were adduced at trial.

On the afternoon of April 8, 1972, appellee reported for work in his capacity as flagman at appellant Penn Central's railroad yard, where he had been employed for the previous thirty-five years. At sometime prior to 5:45 p. m., both appellee and Wilbert Elwood, the conductor and supervisor of the train crew, boarded a caboose located on the camp track. Appellee did not, however, actually observe Elwood enter the caboose, which was approximately 23 feet by 9 feet. Subsequently, the caboose was moved to a position approximately 30-40 feet from a sealed freight car on a parallel track which had been loaded with bacon.

While appellee was seated at his desk in the caboose, he heard a pounding at the door, and after opening it, admitted appellant Ray Lamberson and James Bickar. Both Lamberson and Bickar were railroad policemen employed by appellant Penn Central Transportation Company. Lamberson

[ 263 Pa. Super. Page 489]

    asked appellee if he had seen anything unusual, and upon receiving a negative reply, requested and received permission to search the caboose. When queried as to the reason for the search, Lamberson responded that someone had broken into cars on a nearby track. After a fruitless search of appellee's suitcase and personal effects, appellant investigated the remainder of the caboose and discovered forty-eight pounds of bacon hidden in a cupboard. The bacon corresponded to a carton which had been found missing from another freight car. Both appellee and Elwood denied any knowledge of either the existence of the bacon or how it appeared in the caboose. They further stated to Lamberson that no one had entered the caboose since they themselves boarded in the late afternoon.

After eliciting this information from the two men, Lamberson instructed Bickar to remain in the caboose while he spoke with the general yardmaster. The latter explained to Lamberson that Elwood and appellee had entered the caboose some one-half mile from their present location. Returning to the caboose with the trainmaster, Lamberson again asked appellee and Elwood if they knew how the bacon had gotten into the caboose. When both responded once more that they knew nothing of the bacon, Lamberson arrested Elwood and appellee, removed them from the caboose, and escorted them to the administrative building of the railroad yard where appellee was interrogated. Subsequently, Elwood and appellee were taken before a justice of the peace and criminal charges were initiated against both for larceny,*fn1 burglary,*fn2 and receiving stolen goods.*fn3 Appellee was immediately suspended from his position and later dismissed.

At trial following a grand jury indictment, Elwood admitted bringing the bacon onto the caboose, although he contended that he merely ...


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