Pennsylvania Railroad Co. v. Pittsburgh

• Decision Date: 19 June 1939
• Docket Number: 81
• Citation: 335 Pa. 449,6 A.2d 907
• Parties: Pennsylvania Railroad Company v. Pittsburgh, Appellant
• Court: Pennsylvania Supreme Court

6 A.2d 907

335 Pa. 449

Pennsylvania Railroad Company v. Pittsburgh, Appellant

No. 81

Supreme Court of Pennsylvania

June 19, 1939

[Copyrighted Material Omitted]

Argued March 24, 1939.

Appeal, No. 81, March T., 1939, from judgment of C.P Allegheny Co., July T., 1923, No. 2481, in case of The Pennsylvania Railroad Company v. The City of Pittsburgh. Judgment affirmed.

Trespass. Before McNAUGHER, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned, among others, related to the refusal to enter a judgment of non pros. and to the dismissal of motions for judgment n.o.v. and new trial.

Judgment affirmed.

Anne X. Alpern, First Assistant City Solicitor, with her Wm. Alvah Stewart, City Solicitor, for appellant.

Wm. S. Moorhead, of Moorhead & Knox, with him Dalzell, McFall & Pringle, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, and STERN, JJ.

OPINION

MR. KEPHART, CHIEF JUSTICE.

Appellee brought this action of trespass for damages caused by slides of earth which covered its tracks and yards in the vicinity of 26th Street and Bigelow Boulevard, in the City of Pittsburgh. Grant, now Bigelow Boulevard, was constructed in 1898 on the face of a steep hill at the base of which appellee's tracks were located, approximately 250 feet perpendicularly below, and 450 feet surface-measurement from, the boulevard. A large ravine, known as Jones Hollow, occupied the intervening space, and the boulevard passed over it. This was done partly by cutting into the side of the hill and partly by a fill. In the original filling operations in 1898 and 1899, earth and stone slipped downward from the boulevard, spreading over properties in the Hollow. Further filling was enjoined until the land in the Hollow was purchased by the City, and a large retaining wall of masonry, 60 feet high, 15 to 22 1/2 feet thick, and 140 feet long, was erected south of appellee's property to withhold any movement of the fill. Between it and the boulevard a timber crib was built across the Hollow, and French drains were constructed by appellant near the base of the hill to take off percolating and subterranean water.

From 1900 to 1920, 75,000 cubic yards of additional fill were gradually deposited in the Hollow. Pilings were placed on Jones Avenue in 1905, but another slip occurred in that vicinity the following year. In 1919 an ordinance of the City Council authorized the widening and improvement of Bigelow Boulevard in this location. Two contracts were awarded and the work started in 1920. In the course of it, 20,000 additional cubic yards of earth were deposited on the fill in the Hollow west of Jones Avenue and the Boulevard, and 13,300 cubic yards east of that intersection. A terracotta sewer pipe located under Jones Avenue, broke, saturating the filled ground. On September 22, 1920, large cracks appeared on the surface of Jones Avenue and a portion of that street subsided. Appellant's engineers were notified, and emergency operations to divert the sewage were begun. On September 28th, the entire fill in Jones Hollow was discovered to be in motion, and cracks appeared in the masonry retaining wall. Notwithstanding the notice given appellant of the movement of the fill, the contractors continued dumping in the Hollow, pursuant to their contracts. Large quantities of earth slid over and around the retaining wall, which had been forced outward, onto the tracks and yards of appellee. Appellee's "Car Wash Building," was in the direct path of the slide and was demolished. The slide continued, until the earth at its head had reached a height of approximately 55 feet on appellee's property, covering two main passenger tracks, and several tracks in the yards. Traffic was diverted by appellee and emergency crews were rushed to the scene. Steam shovels, cranes, ditching machines, a derrick, and hundreds of trains were used to remove this great accumulation of 178,860 cubic yards of earth. The main tracks were opened December 5th. The slide temporarily stopped, but resumed motion on June 27, 1921, and again the property of appellee was covered by approximately 35,000 cubic yards of earth, the removal of which occupied appellee's emergency forces until August.

On June 20, 1923, appellee issued its summons in trespass, and subsequently the case was listed to be tried in 1924. When it was called, appellant requested a continuance, to which appellee agreed. It was again listed in November, 1924. The parties discussed settlement in 1925, but reached no agreement. In November of that year, the case was again called, and again placed on the deferred list at appellant's request, with the stipulation that it be put down for trial "later at some convenient time." On October 14, 1926, appellant filed its affidavit of defense with a counterclaim. Appellee promptly filed a demurrer to the counterclaim which was sustained. Nothing further was done until April 12, 1935, when the case was placed upon the trial list by appellee. During this interval there had been some negotiations between the parties regarding this case and other matters of litigation, but no attempts at settlement were made.

The case was called for trial early in 1936, but was deferred for special listing. On May 4, 1936, the case was discussed with William B. Secrist, newly appointed city solicitor, who asked time to familiarize himself with the facts. On June 22nd, he executed a stipulation for trial during the week of November 2, 1936. City Solicitor Secrist died in August. The new city solicitor, Gregory Zatkovich, appointed September 4, 1936, entered into a stipulation for an extension to January 18, 1937. On November 6, 1936, his successor filed a petition and rule for judgment of non pros. This was dismissed by the court en banc on December 27, 1937. An appeal to the Supreme Court was quashed on January 12, 1938. In February appellant petitioned the court below for reargument, which was refused.

The case was brought to trial May 2, 1938, when the court dismissed a renewed motion for non pros. The jury returned a verdict for appellee in the sum of $730,005.05, representing damages for the cost of removing the landslide from its tracks. Although additional damages in the form of detention money for the delay were asked by appellee, the jury specifically excluded this item from the verdict. Appellant moved for judgment n.o.v. and a new trial. From the refusal of these motions this appeal was taken.

The first question to be considered is the action of the court below in dismissing appellant's motion for a non pros. It is urged that the delay of more than eight years from the action on the counterclaim to the listing of the case for trial on April 12, 1935, and the subsequent delay of approximately three years before the case was heard, constitute laches on the part of appellee. The court en banc fully considered this aspect of the case and, under our decisions, the conclusion reached cannot be disturbed on this appeal.

The grant or refusal of a non pros. for delay in prosecution is entirely within the discretion of the court to which application is made. See Wingert et al. v. Anderson et al., 309 Pa. 402, 403; Potter Title & Trust Co. v. Frank et al., 298 Pa. 137, 139; Hillside Coal & Iron Co. v. Heermans, 191 Pa. 116, 121; Waring Brothers & Co. v. Pennsylvania R.R. Co., 176 Pa. 172, 176. The rule is stated in Insurance Company v. Clinger, 10 Pa.Super. 92, at page 102: "There is no fixed rule as to the length of delay that will prevent plaintiffs proceeding. It is a question of discretion controlled by the facts of the particular case and the decision of the court below will not be reversed unless there is a manifest abuse of discretion."

Furthermore, the right to a non pros. may be waived if there is conduct indicating a willingness on defendant's part to try the case on the merits notwithstanding the delay, or if he is a party to, or causes the delay. In Potter Title & Trust Co. v. Frank et al., 298 Pa. 137, it was said at page 142: "Where the defendant takes steps looking to a trial upon the merits, like filing an answer, entering a plea, or taking a rule on the plaintiff to take some action in the case, it constitutes a waiver of the laches." See also Munley v. Sugar Notch Boro., 215 Pa. 228, 230; Forrest v. Philadelphia Rapid Transit Co., 261 Pa. 383, 389; Wingert v. Anderson, 309 Pa. 402, 405; 5 Stand. Pa. Prac., pages 47 to 48. Such a waiver will more clearly appear where defendant permits plaintiff to incur the expenses of preparation for trial before making any complaint. See Forrest v. Philadelphia Rapid Transit Co., 261 Pa. 383, 389; 5 Stand. Pa. Prac., at page 48.

Here City Solicitors Secrist and Zatkovich, despite the long delay, entered into stipulations in 1936 to list the case for trial. This was conduct "looking to a trial," and constituted a waiver of whatever right the city may have had to take advantage of the delay. Appellant contends that these stipulations do not operate as a waiver because City Solicitor Secrist was deliberately misinformed by appellee as to the cause of delay, and because he and City Solicitor Zatkovich lacked authority to surrender appellant's right to a non pros. Even if misrepresentations were made to City Solicitor Secrist, there is no evidence that the stipulation was executed in reliance upon them. It is clear that the city solicitor had at his disposal all the necessary records to inform himself of the actual situation. The stipulation was not executed until more than a month after the conference with counsel for appellee. However, subsequently, City Solicitor Zatkovich executed a similar stipulation, and appellant has made no effort to show that he...