Provenza v. Wilson Specialties, Inc.

59 Pa. D. & C.2d 686, 1972 Pa. Dist. & Cnty. Dec. LEXIS 329
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedSeptember 11, 1972
Docketno. 1068
StatusPublished

This text of 59 Pa. D. & C.2d 686 (Provenza v. Wilson Specialties, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Provenza v. Wilson Specialties, Inc., 59 Pa. D. & C.2d 686, 1972 Pa. Dist. & Cnty. Dec. LEXIS 329 (Pa. Super. Ct. 1972).

Opinion

DOYLE, J.,

FINDINGS OF FACT

After hearing on June 5 and 6, 1972, we find that some time during 1959 plaintiffs purchased the lot and dwelling house located at 309 Pennsylvania Avenue, Borough of Oakmont (Oakmont), Allegheny [687]*687County, Pa., and have occupied the same since that time. The corporate defendant (Wilson) at that time, and for at least 15 years prior thereto, owned and operated a mill at 709 Cedar Way, adjoining plaintiffs’ land, for manufacturing wood products, in the course of which business it operated electrically-powered saws and other wood cutting machines. Both plaintiffs’ and defendant Wilson’s lands are located within a district which is zoned “industrial” by the borough as set forth in zoning ordinances of 1949 and 1952 which were received in evidence. In 1966, new managers assumed control of Wilson and installed additional electrically powered equipment for cutting wood. A sawdust and woodchip collector was installed at about the same time but much sawdust and many wood chips had previously fallen onto plaintiffs’ rear lawn and even infiltrated plaintiffs’ dwelling house.

After exchanges of vulgarities between one of the plaintiffs and one or both of the individual defendants, and subsequent to various other actions which merely exacerbated an already abrasive relationship between the litigants, plaintiffs complained to the borough, the County Health Department, various justices of the peace and finally to the court in the instant litigation which was commenced on July 30, 1971.

At a pretrial conference on February 25, 1972, counsel for the parties stipulated in a filed writing that the sawdust emission problem had been solved except for small amounts emitted during loading operations, which matter has since been rectified and is not now an issue. The only matters requiring decision are whether: (1) Defendants should be required to minimize noises caused by electric motors which operate the dust collector and the fan on a cyclone blower; (2) plaintiffs should be awarded compensatory damages [688]*688for the cost of medical treatment, pain, suffering and inconvenience, and injury to their real and personal property; (3) plaintiffs should be awarded exemplary damages.

At trial, all parties admitted, which was confirmed by the uncontradicted testimony of defendants’ engineer expert Vlastmir Djordjevic, that defendants’ plant has been sealed since December of 1970 and that no sawdust or wood chips are emitted from the plant and that Wilson is operating within the “Rules and Regulations of the Allegheny County Department of Health, Article XVII, Air Pollution Control” issued on January 1, 1970.

Plaintiffs admit that the sawdust and wood chips inflicted no permanent damage to their land, dwelling house and personal property but assert that they were greatly inconvenienced by said emissions; operation of their lawn mower was more difficult, a children’s portable swimming pool could not be used at all times during the summer months, plaintiffs had to close most of the windows in their house, roof gutters were partially plugged and personal clothing could not be hung outside to dry.

The testimony disclosed that Wilson, during all of the time complained of by defendants, was installing expensive equipment to alleviate the conditions complained of, after engaging engineering talent to test and design such equipment. It is uncontradicted that Wilson has spent $133,498.82 to improve the plant which employs 19 production workers.

Weighed on the scale requiring us to balance equities, plaintiffs’ damages from sawdust emissions are subject to the rule de minimis non curat lex and are not recoverable, even if some criteria had been entered on the record to guide the trier of fact.

At argument after testimony had been concluded, [689]*689plaintiffs’ counsel suggested that $50 per day from 1966 to 1971 would be an appropriate amount of damages and he impliedly waived any right to exemplary damages. But there exists no record support for the award of any damages. Neither a jury nor a chancellor in equity may speculate on money damages.

No physicians testified as to asserted medical damages. Even were we to consider their reports filed with plaintiffs’ pretrial statements, those reports do not contain the quality of testimony necessary to sustain an award of money damages. The report of Dr. Joseph A. Zahorchak states that minor plaintiff Mary Ann’s allergy is “probably made worse by the sawdust”; Dr. Bruce B. MacMillan states that he “cannot say in all honesty that minor plaintiff Matthew’s . . . was a problem of sawdust allergy”; and as to Mary Ann, Dr. MacMillan states “For me to say, however, that the sawdust was specifically capable, in this instance, of causing all or some of the symptoms would be conjecture.” That type of “testimony” will not sustain an award of damages.

The assertion that exemplary damages should be awarded is without merit and was not pressed by counsel at posttrial argument.

REMAINING ISSUE

Thus, there remains for resolution only the issue: Should defendant Wilson be required to shield motors on a dust collector and a cyclone blower to minimize noise emissions?

Kenneth C. Lawson, an electrical engineer, testified regarding sound levels and sound frequencies and opined that equipment was available to “dampen” noise created by wood chips striking plates on the collecting bin and that he believes the noise from the power saws could be reduced by installing special saws [690]*690with “damping” devices. On cross-examination, he admitted he had never been on defendants’ premises and was not sure how the sound levels compared with noises emitted by passenger busses, railroad locomotives, highway trucks, fire engines or drop forges (all used at nearby locations) and that he did not know the cost of installing “damping” devices.

Wife-plaintiff testified that the plant operation, approximately eight hours per day, was exceedingly noisy and that she could hear the noise even when her house was entirely closed. The individual defendants who manage the plant and occupy offices within it were not disturbed by noise from its operation; nor was John H. McMahon, for seven years manager of the nearby Oakmont Water Authority facility, offended by the noise or other noise produced by a metal stamping mill which uses saws and presses in this “industrial” zoned area.

DISCUSSION

Plaintiffs cite the following cases in support of their position:

Gavigan v. Atlantic Refining Co., 186 Pa. 604 (1898), a trespass action for damages caused by oil seeping from defendant’s plant onto plaintiff’s land, allowed damages but the activity was held not to be a nuisance. Defendant’s plant was constructed after plaintiffs had purchased their dwelling house. The case is not apposite to the present noise-emission complaint.

Farver v. American Car & Foundry Co., 24 Pa., Superior Ct. 579 (1904), allowed damages in a trespass action where smoke, gas and sulphurous fumes caused discomfort to nearby dwelling house occupants. But, as in Gavigan, supra, no noise emission was involved.

McCune v. Pittsburgh & Baltimore Coal Co., 238 [691]*691Pa. 83 (1913), involved stream pollution by acid mine drainage and is inapposite here.

McClafferty v. Beckmann Bros., 80 Pitts. L. J.

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59 Pa. D. & C.2d 686, 1972 Pa. Dist. & Cnty. Dec. LEXIS 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/provenza-v-wilson-specialties-inc-pactcomplallegh-1972.