*1 Appellant. Evans v.
Argued January J., Before C. Jones, Jones JJ. Cohen, Chidsey, Bell, Musmanno, *2 Segal, Bernard G. him Edward with W. Mullinix, Hayden James W. Matthew Scanlon, D. J. Maclcie, A.Wm. and Schnader, Oliver, Sehnader, Harrison, appellants. Segal for & Lewis, Raymond him T. John R. with Law, for Lenahan, appellees.
Opinion by Mr. Chief Justice Jones, April 1957: twenty-five separate trespass
The actions in here by respective plaintiffs instituted involved were to damages injury properties recover their several by allegedly emanating noxious fumes caused from dumps created and mine refuse maintained de- Company, co-partnership, Moffat Coal a on fendant, Company Alden from Glen Coal in land leased vi- con- The cases were plaintiffs’ properties. cinity solidаted without sitting for trial to the court below, a of submission under an jury, express agreement the provi- counsel for the in accordance with L. amend- of the Act of P. April sions appeals bring PS et these seq. All ed, §688 below in up open- for review the action of the court per- in of the defendants judgments favor ing trial plaintiffs exceptions file mitting nisi. court’s conclusions findings, judgment A companion case in the same court (Wasohdk had been earlier to a infra) judge tried and had resulted verdict favor jury money the defendants. Upon overruling plaintiffs, against Moffat Coal after-verdict the court Company’s motions, *3 entered that on the verdict judgment against company entered n.o.v. in favor of Glen Alden judgment but appeal the co-defendant. No was taken Company, Coal Alden from the for Glen Coal judgment Company became final. consequently the appealed
Moffat Coal Company
judgment
and the
Court unanimous
Superior
against
($1,250.)
see 173 Pa.
Ct.
96 A. 2d
Superior
affirmed:
ly
An allocatur was
after
argument
granted, and,
of this court reversed and entered
majority
appеal,
n.o.v. for the
defendants:
see Was
appellant
judgment
After the record in the Waschalc case had been re- per- manded to the court the defendants below, mitted to file in the instant actions amended answers complaints, raising the affirmative defense of judicata res on the basis of this court’s decision in the subsequent Waschalc case. At the trial of these cases jury, testimony to the court without a in the Was- pre-trial agreement chalc case was, sub- order, judge testimony question mitted to the trial on the liability. of the defendants’ upon passing applicable In the evidence to the cases appeals, judge involved these the learned trial found plaintiffs’ properties substantially had been interfered with the defendants and that the inva- plaintiffs’ property rights sion of the was intentional. opinion The court ofwas the further that this was an supported by ultimate inference of fact the basic find- ings knowledge as to the defendants’ of the attendant physical dumps conditions relative to the and their likely support deleterious effects. In of the viеw that finding of intentional invasion was a conclusion judge quoted the trial fact, cited and from Restate- §825(b), ment, Torts, as follows: “An invasion of an- *4 other’s enjoyment interest in the use and of land is (b) intentional when the actor ... knows that it is resulting substantially or is certain to result from his conduct.” opinion the court However, was also of the that the decision in judicata the Waschalc case was res of issues the involved in the Thereupon, instant cases. judgments the court entered February nisi on against in favor of plaintiffs the defendants and the
563 compulsory and included also a the co- nonsuit as to Company. defendant Glen Alden Coal February just days entry On after of 29, 1956— judgment by the nisi—the defendants their local coun- praecipes causing judgments sel filed final to be en- by prothonotary tered the in favor of the defendants against plaintiffs. and the days (viz., 1956), plain-
Three later March the petitioned open judgments tiffs the court to the permit exceptions adjudica- them to file to the court’s judgments February copy tions and nisi of 6th, proposed exceptions being as an attached, еxhibit, plaintiffs’ petitions open. granted to the The court petitions argument, rules on the after were made which, judgments opened accordingly absolute. The were plaintiffs permitted exceptions to file their adjudications judgments It is that action nisi. subject the court below which is the matter of the de- present appeals. fendants’ Pennsylvania
In reliаnce on Rule 1048 of the Rules (381 appellants xxix), Procedure Civil con- judgments timely tend that were entered and, opened should not therefore, have been because further proceedings in these cases would be futile. With that agree we are unable to contention, either as to its premise or its conclusion.
Section of the Act of under which the cases by agreement submitted for the jury, expressly trial court’s decision without a allowed days thirty filing after notice of the decision for the exceptions findings to the court’s and conclusions. is true that Rule 1048 of the Pa. R. It C. P., jury trespass pre- to trial without relates actions, (d) twenty days filing subsection scribes exceptions the court’s decision and that subsection suspended supra (f) Act of section cit. *5 provision exceptions),
(i.e., thirty-day insofar 1048 be- as it inconsistent Rule 1048. Rule was with upon promulgation April 26, came its on 1955, effective applicable pending expressly ac- made to all was tions instant suits the Rule But, which the then were. notably applicable agreements not to extant made pursuance expressly of submission executed in suprа. reasonably Act of Nor can the Rules be 1874, having construed as so intended. adopted,
At the time Rule 1048 was the executed agreements for the submission of these cases for trial jury already the court without were on file and plainly parties they evidenced the intent of the that thirty days should' have after the court’s decision with- exceptions. agreemеnts in which to file These were changed by any parties. never action of the Had the parties, any subsequent of them, intended, adoption filing excep- of Rule the time for thirty twenty days, tions should be shortened from they expressly should have so indicated some af- correctly firmative act. The learned court below con- parties from premises cluded the conduct of the in the they that their intent continued to be that should have thirty days filing exceptions for the to the court’s judgments pre- decision. The were, entered therefore, maturely.
What we have thus concluded as the intent of the
imputes
conforms with what the law
in the cir
County
In
Building
cumstances.
Beaver
& Loan As
sociation
Winowich,
187 A.
(later
Justice)
Mr. Justice
Chief
said that “In
Stern
determining
obligation
what constitutes the
of a con
principle
firmly
no
is more
tract,
established than that
place
laws which
force at the time and
making
obliga
the contract enter into its
expressly incorporated
tion
with
same effect as if
foregoing
[citing
statement
The
cases].”
in its terms
*6
proposition
support
quoted
that
the
in
оf
later
agreement
parties
ar
to
the
into the
“When
entered
of
they
Act
the Arbitration
became bound
bitrate
supplied
‘power
substi
very
to
that
act
the
1927,
upon
happening
the
of
the
another arbitrator’
tute
happened
contingency
Dams
see J. M.
here”:
Company
Township,
139-140,
v. Shaler
Company
Again,
v.
Porter
in Fischer &
So up except appellants’ brought peals for review for the argument decision in Wasсhak v. su- that the pra, and that it would rules these cases therefore be proceed ap- gesture them. to further with Since futile pressed vigorously pellants have this contention—de- part greater voting it of brief in their this court necessary that treat —it becomes we with it lest an pass should be inference incorrect drawn we in silence. over in the Wasсhak case is
The decision no means judicata of issues the cases now before us. res requisites if not of one, more, At least the doc- Specifically, patent is a is absent. there trine want identity parties plaintiff in the Waschak and other Siegfried Boyd, cases. In 237 Pa. 85 A. 55, 59, plainly it was declared that, order to make a mat —“In adjndicata ter res therе must be a concurrence following (1) four Identity thing conditions: in the (2) identity (3) sued for; of the cause of iden action; persons tity (4) and of iden action; tity persons quality against in the for or whom foregoing category the claim is made . . .” The of the re quirements judicata quoted for res has since been approval many cited with times. See Commonwealth Kelly, ex rеl. v. 287 Pa. 134 A. 139, 144, Wood 514; Pennsylvania burn v. Railroad Co., *7 144 Leechburg Borough A. Allegheny 93; West v. Township School 300 Pa. A. Directors, 73, 78, 150 88; Thommen v. Aldine Trust 302 Pa. Co., 153 409, 416, A. Bennett v. 750; 325 Pa. Erwin, 330, 189 A. 675; Long Daylor, v. 327 Pa. 194 A. 484, 489, 495; Ameri Surety Company can New York v. 345 Pa. Dickson, Secretary 28 A. 2d Banking 328, 332, 316; Cordon, Sterling Company, 350 Pa. 38 277, 285, Hartford A. 2d 229; Jones v. Pa. 354 A. Costlow, 47 245, 252, Building 2d Fisher 259; Permit Case, Pittsburgh 49 A. 2d In Burke v. Corp., Limestone recently 100 A. 2d we summa judicata rized the doctrine of res аs “A follows: final judgment upon compe valid the merits a court of jurisdiction any tent bars future suit between the same parties privies, or their on the same cause of action. Identity thing sued for, causes of action, quality to the capacity and of the action, or parties suing applica is essential sued, to the [citing Building tion of the doctrine Fisher Permit supra].” Case, any far as in
So the decision the Waschak case has bearing on the instant it is at actions, most stare de- §822(d) applicability Bestate- cisis as to the of tbe adjudication of It not constitute an Torts. does ment, facts at issue in each are for tbe court case, tbe which, to as deter- as tbe resolve well below, fact-finder, preliminаrily fact as distin- mine what are matters of guished from matters of law. respective opening judgments
Tbe
orders
the several
are
affirmed and tbe records remanded
court
proceedings.
below for further
Concurring
Opinion
Mb.
Justice
Bell:
opening
purely
I
technical
concur,
reasons,
disagree
judgment,
vigorously
ma-
tbe
tbe
but
with
jority opinion.
In
this Court
view of tbe faсt
open-
has affirmed
action of tbe lower Court
tbe
ing
unnecessary
judgment,
entirely
under-
tbe
mine tbe case
of Waschak v.
Tbe if understand it, *8 merely adopts reiterates and all tbe contentions rejected made and which this in the Court Was- supra. chak case, majority opinion testimony “The
Tbe states: in tbe pretrial agreement case Waschak was, order, judge testimony ques- to tbe trial as on submitted tbe liability.” crystal of tbe defendants’ It is tion clear present testimony tbe and tbe cases that facts tbe in tbe Waschak case are and on such identical (which, a record—unless tbe Waschak case as shall we approved by only was this Court a months few see, illu- is no ago) plaintiffs reversed —the should have the final sions outcome of their cases when decision is rendered on the merits. The Waschak casе I of identical with and under the is, repeat, principle stare decisis is determinative unquestionably identical issues which these have raised in plaintiffs identical and the Waschak case present cases; spe- bars these cifically recovery against defendants. aas In this held Waschak v. Court Moffat, supra, land by law* of plaintiff’s matter the invasion of nor unrea and fumes not intentional was gas clearly law. The as those terms are used in the Court sonable, interest may said : “An invasion of an (pages 447-455) land If an of be intentional or unintentional. owner his act upon erects a which he factory it, operates, of intentional he fires under ignites when is, course, fumes and operate the boilers which emit smoke or Such intentional be operations noisy machinery. may a nuisance and cause to an damage adjoining come method of depending upon the lo property, operation, premises cation circumstances. surrounding conditions the harm Under caused the emis varying sion offensive odors, noises, fumes, violations, etc., operation. must be weighed against utility the invasion of And even where is un property rights and without if the negligence, intentional, activity imposed ultrahazardous there will be an absolute lia Thus in a blasting re bility damages. operation, damage was had where due covery solely Federoff and concussion: v. Harrison vibration Con 2d . . . 66 A. struction Co., use “Even the reasonableness defendants’ if hаd been the sole there consideration, their property no here. Justice recovery be Chief could Frazer, * throughout, Italics ours.
Harris v. Collieries 304 Pa. Susquehanna Co., A. from : quoting previous 558) a said case, (p. '. . . As said in Pa. Coal Co. v. 113 Pa. Sanderson, 158: “The when their plaintiffs purchased knew, they in a property, were they mining region; they in a horn of and which mining operations, [district] ’ had become rich and populous a result thereof. . . .”
“ 'Without smoke, Pittsburgh would have remained 'A ... coal very pretty village.’ mining company not responsible trespass caused to damage plain- tiff’s dust property by from smoke, gases a burn- “slate on ing dump” defendant’s the mate- property, rial been having placed on the dump the coursе of of operation defendant’s mine and the fire having origi- nated from spontaneous if is no there combustion, known method which such fires can be extin- . . . guished.’ Maxey
“Chief Justice said in Hannum v. Gruber, 31 A. 2d What is reasonable is sometimes a question of and at other law, a ques times, tion of fact.’ Under the undisputed in this case facts the question is one law. . . Superior
“The Court refused to correctly adopt doctrine of absolute nuisance. It cited the Bestate- Judge ment. said: '. . . Section 822 of the Be- Hirt sets statement, Torts, forth some of the tests for deter- from mining liability resulting a private nuisance . . .’ It is our (Italics supplied) view that Section 822 com- encompasses the prehensively entire statement of prin- and is ciples not liability restricted merely some them. We do not agree with the statement: . . . “In the rule of applying the Bestatement, Torts, it is Sec. 822 evident (d), invasion plaintiffs’ land was not intentional. clearly And even if it were, for the reasons above was not stated, unreasonable. *10 gases contrary, the the not
On since emission of was by any merely caused act of defendants and arose from customary the normal lаnd and use of their without negligence, recklessness or ultrahazardous conduct, wholly liability may and no there- unintentional, imposed upon be fore defendants. reversed and judgment “The is in here entered favor of defendants non obstante veredicto.”
The Waschalc case was reaffirmed
months
a few
ago,
on November
a unanimous
wit,
12, 1956,
court Burr v.
386 Pa.
Eidemillеr, Inc.,
416,
In Burtt
Pa.
44
A. 2d
the
Will,
Court
(page 231)
pre
said
: “The
doctrine
stare decisis still
Pennsylvania
always rigidly
... This
vails
Court has
adhered to the rule of
‘. . .
stare decisis.
The doctrine of
involving
stare decisis is not confined to cases
“rules
Kirkpatrick
property.”
See
v.
Commonwealth,
and
Commonwealth v. National
Co.,
Oil
supra,
simply
“Stare decisis
declares
Ltd.,
that,
certainty,
sake of
a conclusion
reached in one case
applied
be
should
those which
if the facts
follow,
substantially
though
parties may
even
are
same,
Colliery
different”: Heisler v. Thomas
be
Co.,
If a of this Court wish to or to principle ignore the doctrine or at will of stare decisis protest privilege, opinions I but must is their effectually as here, decisions de- which, undermine, pulverize, breathing, prior still but leave molish If we intend to no of this Court. reverse or decisions prior princi- longer deсision or established follow directly, clearly specifically, ples, should do so we instead of The latter method leaves the law indirectly. in a state of confusion. It perplexes Bench and Bar alike and it produces much irritating expensive all of which the direct litigation, method of specific reversal would completely eliminate. Appellant,
Commonwealth ex rel. Marsh, Cavell. *11 March
Submitted 1957. Before J., C. Jones, Jones and Chidsey, Musmanno, Bell, Arnold, Cohen, J J.