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CHARLES A. BUTLER AND BETH BUTLER v. CITY PITTSBURGH (02/12/88)

decided: February 12, 1988.

CHARLES A. BUTLER AND BETH BUTLER, HIS WIFE
v.
CITY OF PITTSBURGH, MARCO SCORATOW AND BETTY SCORATOW, HIS WIFE, AND FREDA MORGAN. CHARLES BUTLER, APPELLANT



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Charles A. Butler and Beth Butler, his wife v. City of Pittsburgh, Urban Redevelopment Authority of Pittsburgh, Marco Scoratow and Betty Scoratow, his wife; Freda Morgan; and John Sobocinski, an individual trading as Sobocinski Roofing, No. GD 83-16981.

COUNSEL

Allan M. Cox, with him, John A. Caputo, John A. Caputo & Associates, for appellant.

Zan Ivan Hodzic, Assistant City Solicitor, for appellee, City of Pittsburgh.

Judges Barry and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 113 Pa. Commw. Page 407]

Charles A. Butler (Butler)*fn1 has appealed from a trial court's denial of his motion to remove the compulsory non-suit entered in favor of the City of Pittsburgh (City).*fn2

[ 113 Pa. Commw. Page 408]

In reviewing an appeal from a compulsory non-suit, an appellant must be given the benefit of all favorable testimony, together with all reasonable inferences of fact arising therefrom, and all conflicts in the evidence are to be resolved in his favor. Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289 (1963); Stevens v. Department of Transportation, 89 Pa. Commonwealth Ct. 309, 492 A.2d 490 (1985).

With the foregoing in mind, the following is a summary of the evidence. Butler was employed by a contractor hired by the City to demolish a residence which the City had condemned at 2153 Webster Avenue. That structure was a three-story frame dwelling situated between two other residences, with 2155 Webster, another three-story frame house, being located to the right of 2153 as viewed from the street. Because of the proximity of the houses and water damage to 2153, 2153 was demolished using hand tools only. While the walls of 2153 and 2155 were very close together, they did not share a party wall. During the demolition of 2153, no tools or equipment used to raze 2153 came into contact with 2155. The house at 2155 was occupied at the time of demolition by Freda Morgan, whose complaints to the City had prompted the demolition of 2153.

On October 8, 1981, after the house at 2153 had been demolished and the debris removed, Butler and several co-workers were working to level the site. While the foreman operated a highlift nearby, Butler was raking and spreading topsoil approximately three to five feet from the left wall of 2155 when he was struck by falling bricks. Although no one saw the bricks fall from the chimney at 2155, there were bricks missing therefrom after the accident and it is not disputed that the bricks which injured Butler fell from that chimney. Freda Morgan, who was in her home at 2155 on that morning, testified that vibrations from the highlift shook her residence.

[ 113 Pa. Commw. Page 409]

On the City's motion, the trial court granted a compulsory non-suit at the close of Butler's case, basing its decision upon Butler's failure to identify a duty owed to him by the City, and for his lack of evidence regarding the existence of a dangerous condition prior to the accident itself. Butler takes issue with these conclusions, contending that there was sufficient evidence to go to the jury on the issue of whether a dangerous condition existed and that the trial court erred in excluding certain testimony of his expert witness, a civil engineer.

We have carefully examined the record, the theories advanced by Butler and the authorities he cites and must agree with the trial court that he failed to establish a duty on the part of the City. Butler argues first that §§ 341A and 343 of the Restatement (Second) of Torts (1982) (Restatement) subject a "possessor of land"*fn3 to liability for physical harm relating to dangerous activities (§ 341A) or conditions on the land (§ 343). Secondly, he contends that various sections of the Pittsburgh Code (Code) relating to condemnation procedures require the City ...


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