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IRVING WEITZ AND SELMA WEITZ v. RAYMOND BAURKOT (06/29/79)

decided: June 29, 1979.

IRVING WEITZ AND SELMA WEITZ, HIS WIFE, APPELLANTS,
v.
RAYMOND BAURKOT, R. B. DRAKE BUILDING REALTY CORP., J. M. NICHOLAS CORPORATION AND JOHN NICHOLAS, DEFENDANTS, AND A & D TILE & PAINT-UP, INC., G-C ELECTRIC CO., INC., BELL TELEPHONE COMPANY OF PENNSYLVANIA AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, ADDITIONAL DEFENDANTS



No. 1285 October Term, 1978, Appeal from the Order entered March 13, 1978, of the Court of Common Pleas of Northampton County, Pennsylvania, Civil Division -- Law, at No. 44 August Term, 1975.

COUNSEL

Dwight L. Danser, Easton, for appellants.

Robertson B. Taylor, Bethlehem, for appellees Raymond Baurkot and R. B. Drake Building Realty Corp.

John D. DiGiacomo, Easton, on brief for appellees J. M. Nicholas Corp. and John Nicholas.

Mark H. Scoblionko, Allentown, for appellee A & D Tile & Paint-Up, Inc.

Van der Voort, Wieand and Lipez, JJ. Lipez, J., files a dissenting opinion.

Author: Wieand

[ 267 Pa. Super. Page 472]

Appellants contend that the trial court erred in granting a compulsory non-suit on the grounds that Selma Weitz had been contributorily negligent as a matter of law. We agree and reverse.

In June, 1974, Mrs. Weitz was employed by the Northampton County Board of Assistance in office space leased from R. B. Drake Building Realty Corporation at 201 Riverside Drive, Easton. The floor of the office contained a number of holes, one of which was approximately three feet from Mrs. Weitz's desk. The Board's employees had complained frequently about the condition of the floor during the two months of their occupancy. Mrs. Weitz had also registered complaints with her immediate supervisor, with the personnel officer, and with an official of the union which represented the employees. Complaints by employees had been communicated also to Raymond Baurkot, an officer of the corporate owner, but repairs had not been made.

[ 267 Pa. Super. Page 473]

On June 24, 1974,*fn1 Mrs. Weitz rose from her desk chair and walked around her desk to retrieve some papers. As she was leaning over the desk her attention was attracted to the movement of two chairs which appeared to be sliding toward her. She testified that she was startled by the movement of the chairs, forgot about the hole, and stepped backwards. Her heel caught in the hole, and she fell, with resulting injuries.

Mrs. Weitz and her husband brought suit against Baurkot and the corporate owner of the demised premises. They also named as defendants the construction contractor, J. M. Nicholas Corporation, and its president, John Nicholas. The defendants subsequently joined as an additional defendant the tile subcontractor, A & D Tile and Paint-Up, Inc.*fn2 At trial, the learned trial judge entered a compulsory non-suit upon completion of the plaintiff's evidence because, he concluded, the wife-plaintiff had been guilty of contributory negligence by stepping into a known defect. The court en banc refused to remove the non-suit, and this appeal followed.

On appeal from the entry of a compulsory non-suit, an appellate court must "accept as true the facts presented by appellant, read the evidence in the light most favorable to the appellant and give the appellant the benefit of all reasonable inferences and deductions arising from such evidence." Norton v. City of Easton, 249 Pa. Super. 520, 523, 378 A.2d 417, 419 (1977). A compulsory non-suit is proper "only in a clear case where the facts and circumstances lead unerringly to but one conclusion." Paul v. Hess Brothers, Inc., 226 Pa. Super. 92, 94, 312 A.2d 65, ...


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