No. 111 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas of Erie County, Civil Division, at No. 5430-A-1979
Richard T. Ruth, Erie, for appellants.
Dennis V. Williams, Erie, for appellee.
Brosky, Cirillo and Popovich, JJ. Cirillo, J., files a dissenting opinion.
[ 299 Pa. Super. Page 349]
Appellants, Adams, Feidler and Bojarski, appeal from the order of the trial court denying their motion to take off a compulsory non-suit. We reverse and remand for trial.
In PeAir v. Home Ass'n of Enola Legion No. 751, 287 Pa. Super. 400, 403-404, 430 A.2d 665, 666-667 (1981), we said:
A non-suit should be entered only in a clear case. McMillan v. Mountain Laurel Racing Inc., 240 Pa. Super. 248, 367 A.2d 1106 (1976); DiGiannantonio v. Pittsburgh R. Co., 402 Pa. 27, 166 A.2d 28 (1960); Dunmore v. McMillan, 396 Pa. 472, 152 A.2d 708 (1959). In describing how clear the case must be, it has been said that a non-suit can be entered
[ 299 Pa. Super. Page 350]
only when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved. Borisoff v. Penn Fruit Company, Inc., 165 Pa. Super. 572, 574, 69 A.2d 167 (1949).
Also, it has been said that a non-suit should be entered only where the facts and circumstances lead unerringly to the conclusion that the plaintiff has failed to prove his case. Korpa v. Stuyvestant Life Ins. Co., 236 Pa. Super. 581, 351 A.2d 682 (1975).
When so viewed, the evidence is as follows:
On January 27, 1979, appellant, Dolores Adams, visited appellee, Adeline Euliano's house with a possible aim of purchasing it.*fn1 A tour of the building disclosed, upon inspection, several holes in floors. Euliano explained to Adams that the holes were in one situation caused by a leaking garbage disposal or water leaks, and in another circumstance was caused by faulty wiring. A real estate appraiser who detected some of the holes was told that they were caused by a dishwasher which overflowed. Appellants purchased the house and one month after moving in they discovered, when they engaged a repairman to fix the holes in the floor, that the house was infested with termites. An exterminator was then employed to inspect the ...