*1 204 followed This for employment.”
portunity at page supra, Cadillac Co., Liberatori v. Scott Smith settled case is Scipani “The where we 124, said, the virtual acquired It has of the Commonwealth. law 1945 When enactment. legislative force a touching without amended §306(b) legislatures 1949 re- effect, Scipani case they, the foundation interpretation clause and quoted enacted Construction Statutory this Court. placed upon PS 46 L. §§52(4), 73, P. 1019, Act May 28, below of the court As Judge 573 ... §§552, Milner formula rule another question ‘The whether said: one more result than just a fairer or achieve would amend- (b) section under prescribed to determine legislature for the is matter ment ” this court.’ province not within affirmed. Judgment Appellants.
Evans v. Moffat et al., *2 J., 1980. Before Rhodes, P. March Argued *3 and Montgomery, Watkins, Wright, Ervin, Woodside, absent). J., JJ. (Gunther, W. Scanlon, him James with Mullinix, TV.
Edward Bernard G. J. Hayden Oliver, Machie, D. Matthew Schnader, Schnader, Harrison, A. William Segal, for Lewis, appellants. & Segal him John R. for with Lenahan, T. Lato, Raymond appellees. May Opinion J., by 1960: 4, Ervin, plaintiffs sought damages for
The
in these
cases
25$
respective
injury
by
to their
caused
noxious
homes
smelling gases emanating
foul
refuse
from mine
Company, co-
created and
Moffat
a
maintained
Coal
partnership (hereinafter
“Moffat”),
vi
called
plaintiffs’ properties.
cinity
consoli
of
cases were
The
a
dated for trial in the
without
which sat
below,
express
jury
agreement
under
of
an
submission
provisions
in accordance with the
Act
counsel,
April
§688
P. L.
as
12 PS
22, 1874,
109,
amended,
seq.
companion
had
et
A
v.
Waschak
case,
Moffat,
judge
jury
re
been tried earlier
a
before
and had
plaintiffs.
appealed and
sulted in verdict for
Moffat
unanimously
we
see Waschak v.
affirmed,
Moffat,
Superior
Supreme
Pa.
Ct.
“So far as the decision in any the Waschak case has on the de- bearing it instant is at most stare actions, cisis as to the Restate- §822(d) applicability Torts. It does ment, adjudication not constitute an the facts at issue in each are for the which, case, as the deter- below, resolve as well as fact-finder, mine what are matters of as distin- fact preliminarily from guished matters of law.”
Upon return of the cases to the court below, made further unreason- invasion was findings able as well as intentional for the and found verdicts were reduced to total amount plaintiffs, and final thereon. were entered |58,700.00, judgments appeals These then followed.
The law has been Supreme defined our clearly for trial of case Court these cases. In Waschak decided that Torts, Court of the Restatement, §822 is applicable. This section question makes material of whether the invasion is intentional. Section Re- 822, is as follows: “General Rule. statement, Torts, non-tres- actor is liable in an action for for a damages private invasion of another’s interest passory use and land enjoyment if, privileges other has
“(a) rights property to the use or respect interfered enjoyment with; the invasion is “(b) substantial; in- the actor’s conduct is a “(c) legal cause vasion and; the invasion is either
“(d) intentional (i) unreasonable; un- unintentional (ii) otherwise actionable reck- der the rules governing liability negligent, less or ultrahazardous conduct.” ap- In the Waschak case the did not of “intentional” §825, the definition as found in ply Torts. In a later Burr v. Adam Restatement, case, 386 Pa. 2d A. 416, 403, Eidemiller, Inc., *6 adopt forth Court did the Restatement definition set two in which invasion into divides intentional §825, “(a) purpose of classes: where the actor acts for the (b) causing is or that it where the actor knows it; (cid:127)resulting substantially his or from certain to result (b) conduct.” concerned. It is with that we are here trespass It that clear in nuisance is, therefore, applied. §§822 are be Restatement, Torts, 825, supported findings judge’s by The trial testi of fact, mony by force and sustained the court in have the banc, jury’s disturbed and effect a verdict and will appeal: Reilly Magee, 310; v. 272 Pa. 116 A. 406, By-Product Allegheny Hillman and v. Coke Co. J. H. Fidelity Pa. 118 A. Title and 900; Sons 275 191, Co., Trust v. A. Arnstein 398; 327 Pa. 194 Garrett, 305, Co. Metropolitan A. 491; v. Ins. 329 Pa. 196 158, Co., Life A. 2d 372; v. Pa. 105 Scott- 378 6, 7, 8, Malli, Croft Superior Rajeski, Inc. v. 166 Pa. Smith Cadillac Co., Supe Pa. 70 2d Schlein v. 186 454; A. Gross, Ct. 116, A. rior Ct. 2d 329. question only these cases is whether real in supported findings evidence. are
trial court’s Finding “The as follows: No. 53 of the below is plaintiffs’ interests intentional was invasion of the resulting knew the invasion was the defendants that substantially con- their certain result from and was persisted yet establish- conduct in such duct, ing This in residential locations.” refuse new findings preceded by showed finding detailed which property original un- entered lessee that when breaker a there was existence lease, der the 1937 operations previous resulting from refuse bank adjacent that this to the breaker; Coal Co. Alden Glen burning no evidence but there is then bank was atmosphere; pollution damage had caused dump adjoining the started refuse the lessee dump, Main that this called the burning new bank dump, Street length, is 1,100 feet in width 650 feet in approximately height this feet in and that dump burning started burn in 1944 at and was dump- dump trial; Main when.the Street took fire, operations ing were transferred to a location on Wash- ington westerly Street at the end' of Church Street in the rear dump, of Union called Street, Washington along length Street is 800 feet in bank, the court in the rear of Union 750 feet in width Street, along Washington height and and 50 feet Street, dump populous that this built-up, is located in a sec- Borough Washington tion of the Taylor, Street, *7 occupied by Church Street being and Union Street dump Washington that homes; in June 1948 the Street oxidizing giving sulphide hydrogen was and off fumes, being prevalent the dump; odors several blocks from the that in the fall Washington while the Street giving sulphide hydrogen bank was off its in fumes quantity disagreeable and the noticeable odors were for several Moffat built a silt dam rear blocks, in the McKinley of the Public School on North Street Main covering and used this refuse and a the of dirt walls of being the silt this location a dam, also Taylor; residential section of the dam measured to 500 feet in width length, and 400 to 700 feet in the being height; walls 25 feet in that in 1949 when Moffat Washington was convinced there was fire in the Street using Moffat ceased bank, breaker material in con- the struction of the silt that dam dam; the walls of silt gave also oxidized soon after its construction off and sulphide hydrogen complaint quantity; fumes in that burgess Taylor they made was to Moffat and began Washington then to cover the Street bank with dirt but the fumes that Moffat continued; on March 9, operations dumping 1949 transferred its Fourth Taylor, being Street in Fourth Street a continuation Washington being Street and in a residential section borough; May Fourth
of the that in or June dump dump being burning, 500 feet Street was this a length, height, with 500 feet in width and 40 feet in ramp long same 350 feet and 300 feet made wide, put on covering having refuse no been dirt material, quantity dump given this off it in and fumes sulphur being Street Fourth that when dioxide; dump longer Moffat burning and could no used, operations dumping be- a site transferred its new dump Washington Street this and the bank, tween location, neigh- general using that in the same are now generate give off that all of these borhood; vapors hydro- gases as noxious identified fumes, sulphur gen sulphide, monoxide, and carbon dioxide pollute Borough permeate air which sulphide from Taylor; hydrogen been released has Washington Street bank and the silt dam; sulphur giving hydrogen sulphide, generation off of continuously monoxide has existed and carbon dioxide early part June of 1947 or at least as the latter since dump Street Fourth a burns as the that when 1948; sulphur dump converted dump burning, is is pres- sulphur sulphur dioxide in the dioxide; sulphurous forms first moisture acid, ence of sulphuric bleaching agent, to form later it is oxidized *8 sulphur strong very dioxide that a acid; is acid, heavy hu- as air and the twice as when more than is droplets high in the air midity it forms small is right direc- sulphurous the wind in the acid and with Borough of the air descends on acid-laden this tion poisonous gas sulphur very a Taylor; dioxide is that fumigation and formerly commonly to kill rats used in coughing; produces choking effect and a it has that gas sulphide very a odoriferous with hydrogen is that eggs is of rotten and that odor characteristic the high is gas poisonous concentrations which in very a concentrations instantly that lower fatal and almost exposure poisoning cause chronic and continuous very low head- concentrations causes malaise, nausea, aches in some the and, shortness of that cases, breath; generation gases of these two from Moffat’s Taylor pollution is continuous that and the sources are people active and are near to and the homes the particularly permeate plaintiffs; gases to these that the borough the entire vary and their with concentrations atmospheric conditions and are move- affected surrounding ment of the presence air and the or absence fog, wind and moisture, that when air rain; greater still concentrations become since pollution sources of are homes; active and near the sulphide hydrogen atmosphere that the Tay- lor reacts paint with the basic lead carbonate in the plaintiffs’ forming sulphide, dark lead homes, gray or black chalking metallic and and the substance, qualities paint destroyed; decorative of the that are hydrogen sulphide plaintiffs’ only discolors the homes but tarnishes their hardware, silverware and gets clothing into bedclothing, their tarnishes and stains their bathroom consid- and causes fixtures, erably more household work for the women of the gases permeate plaintiffs’ that households; causing occupants experience houses, headaches, passages nausea and irritation of the nasal sleep plain- this condition interferes with the very tiffs and the members of their households, materially diminishes the usefulness of their homes places in which to live and which to entertain their friends and relatives; Moffat knew or have should constructing Washington known when bank Street ignite give products it could oxidize, off component combustion of the materials in bank; that Moffat knew should have known when con- structing the silt dam with the same discarded breaker ignite that the material walls of the dam could oxidize, *9 component give products and off of combustion of the have materials in the that Moffat knew or should dam; dump constructing with known when the Fourth Street ig- breaker materials that could oxidize, discarded it give products com- nite off combustion of and ponent dump; materials knew that Moffat products of should have of the known nature vari- oxidization or combustion of materials in the dumps, ous dams effects and of the harmful banks, persons high probability of property and atmospheric products by means the circulation of such operator experience, could a coal Moffat that as burning expected history the familiar know industry avail- culm banks in the anthracite had personnel to such able the technical services and obtain deposit knowledge; selecting for that in the sites gave of breaker refuse Moffat no consideration to probable accumulating the effect on the pollution in refuse the sites the air selected; at that dumps Taylor indefinitely will will continue since these plaintiffs’ years; es- injury real that burn pollution permanent; tate the air caused composed Taylor by Moffat created in are only cleaning originating from the of coal not of refuse County parts Taylor in other of Lackawanna but Taylor. remote from findings intention
We have checked these as to supported against they record and believe are Agnes Waschak testified credible evidence. bought property June Main she her Street when at had constructed the silt dam and Moffat Washington dump giving off Street that time prevalent at later the were months fumes fumes. Six a residential sec- The silt dam was also in home. her gave Henry fumes. Ott too off the noxious tion early in fumes 1947. noticed
215 dump Washington after the Street Furthermore, gases, giving Moffat and the silt dam were off their operations dumping Street, transferred Fourth its gave dump and also residential section. This burned sulphur gas dangerous than off a more dioxide, sulphide hydrogen other offensive released charged dumps. argues Moffat it shouldn’t now dump give gas, because notice that this would off with gas gave deadly actually it off a different and more gave dumps! They off than its other residential area dump the hydrogen sulphide, Fourth Street on the but sulphur sulphide ignited hydrogen result was and the responsibility be- Moffat to avoid and seeks dioxide, cause of this. sulphide gas hydrogen concentrations of
Lower exposure to poisoning, cause chronic and continuous and very nausea low concentrations causes malaise, breath. shortness headaches. In some cases causes generated gas eggs. This It has the odor of rotten Washington dump, Street Main Moffat’s Street dump Main- on North of the silt dam and walls keep plaintiffs win- their are unable Street. The night, open day be- in summer, or doors even dows atmosphere. gas presence in the of this cause of the apologies sleep necessitates their It interferes with offensive homes because of its in their to visitors paint homes. on disgusting their It blackens the odor. dump Washington and silt Street Moffat’s After ob- giving off their Main Street were on North dam sulphide March Moffat on hydrogen fumes, noxious operations dumping new lo- to a its transferred neighbor- residential in a also Street, on Fourth cation gave dump sul- off Admittedly burned this hood. argues that there is Moffat phur but fumes dioxide any gases dioxide, sulphur caused evidence no damage. presence
Sulphur moisture forms dioxide in the sulphurous Later first acid. it is oxidized further sulphuric depending form acid on wind direction and, sulphuric humidity, droplets descend these acid people Taylor. Dr. on the The defendant’s witness, gas with William testified that this when mixed Pearce, atmosphere peeling off moisture in would cause a paint property. Many paint peeling consolidated cases have testified to the only many on their houses of them testified not *11 eggs, as to the odor of rotten obnoxious which is sulphide sulphur hydrogen but also to the odor odor, sulphur ir- which is the dioxide and testified it odor, their cough, ritated throats and made them and these sulphur argument, are the effects of dioxide. Moffat’s sulphur extremely dangerous gas, that this therefore, any entirely did cause harm without dioxide, is There foundation. was evidence Fourth dump giving highly Street off and was this destructive dangerous gas quantity according in di- to wind and, humidity, people Taylor rection and in breath- were sulphuric ing containing dump air acid. This was the Moffat in established a residential March, section in when all giving the other their were off hydrogen sulphide gas. foul Samples testimony given in the case Waschak are as follows:
Burton lumber WatJcins, lives in dealer, Clarlts Sum- place mit Taylor: but has a business is odor very strong; he continuous, carries the odors on home light his it makes him gone clothes; he has headed, evenings feeling “punch home a little drunk.” Zang, Taylor Otto druggist: John heavy, The odor is eggs, smells like usually rotten night is at its worst morning, and damp is worse and weather, is all over makes town; him sick to give stomach and persistent up at wakes him relieve; hard headache, night; obliged keep and he is closed sum- windows keep mer and winter to the odor out.
Clyde Taylor burgess, that the testified Hendershot, period prevalent day night, odor is at for a times; night couple years present day of a both periodically; its at and now comes that when it was get sleep height night his couldn’t and had to wife at protest up public and sit in a that there were chair; meetings burgess are which he as the odors attended; stronger dump at same at the at his home but dump. that she
Gretchen school testified Houser, teacher, days years; rainy the odor for about two observed eggs; at at all times like rotten was much worse, they night usually frequently it is worse and have airtight sleep get up close the in an windows gave headache the odors her a summer; even room, foggy day particularly rainy on a it is bad or a “when point just right day if direction to the wind cough a terrible it at me. I and have headache, get morning morning I after awake with a headache.” *12 Pip Taylor Wesley pen, testified Rev. G. minister, of odor around the center section that he noticed the night, stronger evening, Taylor; it is late in the and at morning, early sum- in rather than winter and days; rainy three-fourths lives on humid he also mer, gets his silt dam and the odors at a mile from the of very has obnoxious odor and it is a his wife home; complained from it. of headaches present al- testified: The odor is
Theresa Waschah nights night every some than and is worse most nights up catch she has to sit in bed to some others; get around at out of bed and times walk her breath, morning head- in the has a catch her she breath, to keeps feelings; closed at nauseated windows ache and all times of morn- because tlie noticed tlie odor odor; the ing previous evening the of and the liad head- trial; a ache from it. Stephen his
Rev. Waschak testified: He had visited recuperate family intending at home to from a heart stayed but a sul less than and when the tack, month, phur present heavy feeling odor he a the was had in rasping chest and condition in the throat.
Agnes unbearable, Waschak testified: The odor is she is fall is bad in the and worse constant, winter; open open of can’t the windows or leave because doors sulphur complains the of her sister headaches smell; sleep company night, to can’t comes at when apologize her her home she has because of the odors; con on same sides, house has been blackened three the Taylor; be homes in bathtub dition exists on other the came the tarnished. silverware discolored, testimony foregoing there
In addition to plaintiffs gases describing foul of and their the 25 choking irritating prevalence, ef- their odors, sleep they the interference with fect throat, have produce they cause they headaches and how cause, annoy- general nuisance and nausea and discomfort, ance. findings de- is as follows: “The the court’s
No. 57 of repeated residential sites selection of Moffats’ fendants plaintiffs’ prop- proximity in close for refuse Bor- and schools churches erties and the homes, thereby Taylor un- caused ough and the harm was utility the actors’ conduct that the reasonable gravity outweighed by the harm.” Certain support findings the court also made were other finding were that 57. short, No. These, basic properties making were use *13 locality; selection the to the that suited homes was well un- neighorhoods refuse was for of residential harm suited to tlxe character of the that the locality; avoided complaixxed of the tiffs could have been plaixx expense the defendant without undue hardship residen- more from sites remote by selecting dumping no tial that defendant offered the has neighborhoods; not sites were evidence show that such dumping defendant available to that it; the evidence shows the conduct xxo harmful consideration to the effects its gave that properties would cause to the of the plaintiffs; neigh- the substantial of the air in residexxtial pollution with and offensive resulted gases borhoods noxious themselves properties in the physical only damaging but their usefulness as homes largely destroyed constitutes a welfare serious hazard to the health and of the plaintiffs. No,
In of fact the court used below finding determining rule of the in Restatement, Torts, §825, the invasion of interest plaintiffs’ in the use finding of their land intertional. In enjoyment of fact No. 57 the invasion was unreasonable, used which below the Restatement, Torts, §826 states the that “An principle ixxtexxtional invasion another’s interest in the use axxd of land is enjoyment unreasonable the rule under stated ixx unless §S22, of the actor’s conduct outweighs the utility gravity the harm.” Section 827 states series of factors to considered in harm. determining gravity deter S2S states a series of factors Section involved of the conduct in mining utility causes the in tentional invasion and indicates such an §S30 tentional invasioxx is unreasonable when harm practicable would be actor substantial ixx undue part the harm xvliole or avoid without President I-Ioban be hardship. Judge As the court question said: “There caxxbe little so well low of the harm to this plaintiff natxxre axxd to the grave companion other 24 since all cases, *14 to factors with reference exist as noted in Section 827 the extent of harm in- the the character of the harm, home the social value the law to volved, which attaches plaintiff’s ownership suitability occupancy, the of ownership locality and to home the character of the protect plaintiff anything impossibility doing to of prob- property her The real from threatened harm. outweighs utility of Moffat’s conduct lem is whether plaintiffs.” gravity of the harm to these done although to there had been fires Prior years, dumps Taylor burning located in were plaintiffs’ land there no offensive invasion of the dumps began placing the defendant its series of until plaintiffs’ locality defend- in a close to the homes. The right any Glen to land of ant had the use available dumps purpose Company for the of Alden Coal sufficiently land available at locations there was such probability of from the home areas so that the distant be damages by homes would noxious fumes to such perhaps no greatly eliminated. There is reduced or points establishment of at such that the evidence proximity would breaker in close to the other than expense hardship prohibitive resulted have carry using refuse They were trucks Moffat. dump instances in most of these to the from breaker carry the loads have cost little more and it would an been Of it would have little more distant. course, dumps as advantage to Moffat to have the economic ad- possible but mere economic as to the breaker, close causing harm vantage substantial no excuse for offers property can avoided if such harm to another’s (c) proper §828, of Comment on Clause measures. See concluded Torts. The below Restatement, plaintiffs’ en- interest in the use the invasion joyment unreasonable as well their own land was agree. that conclusion we With intentional. appellant evidence argues no that there is also The plain- repainting that the houses and cost of restoring their the cost have not shown tiffs real value. The market than the loss in homes less pollution of complained damage cases is the these surrounding effect not the the air the houses, paint. Painting will poisonous gases houses on the surrounding purity them. of the air not restore damage, compared *15 paint damage real trivial to the is the by foul stench, loss in value caused the i.e., painting. by properties The court be restored cannot damages set of followed the correct measure below 774, 2dA. forth in Milan v. 372 Pa. 598, Bethlehem, “ has page ‘This the court at wherein said, re- in several taken occasion to the authorities review finally accepted as cent and as a result it must be cases, jurisdiction injury real to in this where the settled damages dif- permanent, is the estate is the measure injury, or after the ference in market before and value, removing the whichever is the cost of obstruction, properties would amount’. .” To restore these lower . . require culm and then the removal of the banks sup- repainting It to of the houses. course absurd required plaintiffs pose that the would to show procedure. such The court found cost of below permanent injury correct and therefore the damage before was the difference in value measure after. dam- also total $5,700.00 The court below allowed annoy- ages, for in addition to the market value loss, conformity discomfort. This was in with Re- ance and for §929. The additional award was statement, Torts, plaintiffs personal annoyance and discomfort the merely enjoyment. The loss of use and suffered—not supports personal damages in such for evidence award plaintiffs damage. physical property addition required they nausea and headache and suffered were perform more housework and suffered irritation gases. the nose and throat membranes as a result of the We are convinced that there ivas sufficient evidence support findings by conclusions made properly court below and we believe that the law was applied findings prop- judgments to those and that were plaintiffs. erly entered for the Judgments affirmed. J.:
Dissenting Opinion Woodside, ground I dissent on has that the held as a matter of law that the identical evidence presented liability sup- in this case was insufficient to port finding against defendants, holding case so has not been reversed. against twenty-six brought
In 1951 cases were Y. Bobert Moffat et al. in which all of the damages injuries respective
claimed home's to their allegedly gas emanating caused noxious from the *16 by mine refuse maintained the defendants. One of the Waschak v. actions, was used as Moffat, jury a test case. It was tried before a found which plaintiffs. by for the After the usual de motions by money fendants were refused a court en a banc, judgment by against was entered the court below Supreme defendants. This Court but the affirmed, judgment Court reversed and entered for n.o.v. the de Superior fendants. 178 Pa. 163 Ct. 96 A. 2d 209, (1953) (1954). 379 Pa. A. ; 109 2d 310 441, Su The preme “Twenty-five noted that Court are other cases awaiting at issue the decision in this case.” entry judgment The Ias n.o.v., it, understand Supreme by was a determination Court that the evi- support plain- dence insufficient to was a verdict certainly authority tiff. The Court realized it had no
223 question “find” the facts. Tlie tbe before Court, decided was “one of law.” said, Supreme not
The Court decided that was tbe case one tbe of absolute under nuisance. It decided that clearly plaintiffs’ evidence “tbe invasion of land was there of tbe intentional,” that was no invasion plaintiffs’ rights by held tbe defendants could be community.1 mining unreasonable in a disposition Prior to tbe of Waschak v. Moffat twenty-five appeal, agreed it bad been other subject appeal, cases, which are tbe of this would by jury, tried of lia- tbe court without tbe issue bility upon the be determined basis the evi- would dence in Waschak case. upon passed having liability
Tbe defendants’ been judgment entry tbe in tbe tbe test case n.o.v. Supreme on tbe one would of this Court basis evidence, question liability think was that tbe defendants’ remaining govern and tbe law which would tbe settled, firmly cases established. Not so. tbe
After tbe reversed this Court companion twen- Waschak tbe in tbe defendants case, pleaded judicata ty-five be- court cases res which tbe Twenty-three days later in nisi low sustained orders. judgments believing Pa. tbe took defendants gave right R. C. P. 1048 them so after tbe to do Upon days. plaintiffs, below motion of tbe tbe opened ground plain- judgments tbe on tbe tbe exceptions days tiffs bad tbe Act take under April §6SS et L. P. 12 PS 1874, 109, amended, seq. appealed Su- defendants Tbe these cases to tbe opinion widely recognized favorably com has been *17 upon. Survey Pennsylvania Law, U. 1936-1957 mented See 19 (1958) ; Survey 184, American Rev. 388 Annual Pitt. L. 1955 Law, (1956) ; Annot., 764 344, 31 Rev. 54 A.L.R. N.Y.U.L. 359 2d 384, (1957). (1955). Note U. Pitt. 391 16 L. Rev.
224 preme 2d Court. Evans v. Pa. 388 131 A. 559, Moffat, (1957). appeals brought up All that those Supreme said the review, was the action of Court, opening judgments court below in favor of the de- excep- permitting plaintiffs fendants and to file findings, tions to the trial court’s conclusions judgments p. Supreme nisi. 561. The Court affirmed the opening judgments of the TF«s- decided that the judicata chah any decision was not res issue in present party cases since the were not same. It did not overrule the nor Waschah decision, say ap- did it that the doctrine of stare decisis did not ply- judge
The trial court below then examined the passed upon identical evidence case, the Waschack against and found the same defendants for the same Supreme acts for jury which the could Court held the appeals not find the defendants liable. These were judgments then taken the defendants en from the against tered them the court below. imagine
It is difficult for me to a situation application clearly calls more for the doctrine presented. of stare decisis than is here prevails doctrine of stare winch decisis, Pennsylvania, certainty declares that for the sake of applied conclusion reached in one case should be those which substantially if the facts are follow, Colliery same. Heisler v. Thomas 274 Pa. Co., (1922) A. 394 Burtt ; 353 Pa. Will, 44 A. 2d 217, 231, (1945). many might No matter how words picture simple used in an effort to otherwise, Supreme truth is that the evidence, held insufficient to hold the defendants held liable, by the court below to be sufficient to hold defend ants liable.
In as much as the Court did not overrule the Waschak the decision, below and this Court *18 are be- bound it. the court Neither this nor Court power be say to low has the that stare decisis is to principle Pennsylvania, as a or that abandoned applied is not to be to these cases. Supreme power to
Of Court has the course, overrule its Court but it is not for this decisions, particu power any assume that it will exercise this majority may lar case. The reason of our Court have expect, from what was said Evans v. su Moffat, pra, Supreme may that the Was Court overrule the upon change chak but not we should the law decision, assumption Supreme that the Court intends to re verse itself. procedure
The
these cases creates dis-
followed in
respect for the
have
administration of the law. We
twenty-five
here an anomalous situation: Waschak and
plaintiffs, injured by
other
acts of the de-
same
bring
identical actions at the same
fendants,
time,
liability,
offer the
same evidence of the defendants’
against
the basis
of which the fact
found
finders
defendants in all
In
cases.
Court
decided
to Waschak.
defendants are not liable
Superior
In 1960 the
defendants
decides that the
twenty-five.
are liable to the other
it.
We should strive to settle
not unsettle
law,
J.
as stated
the late Mr. Justice Owen
Otherwise,
govern
becomes not a
conduct
“law
chart to
Roberts,
game
parties
but a
of chance .
. Counsel and
will
.
bring
prosecute
deci
actions in the teeth of the
sions that such
actions are not maintainable on
improbable
be
chance that the asserted rule will
thrown overboard. Defendants will not know whether
litigate
they
will
to settle for
have no assurance
that a declared rule will
followed.” Dissent in Mah
(1944).
nich v. Southern S. S.
112-113
If there to be no standing principle —if have no of stare decisis litigation un- mount, will Commonwealth, in this —then multiply. And delays certainty will will rule, judiciary. disrespect grow for the them will with the cases noAV As I it, principles governing vieAV in 195á. settled by before us were I would reverse. joins in this dissent. J.,
Watkins, Appellant. v. Chisena, Commonwealth