Dissenting Opinion by
Woodside, J.:I dissent on the ground that the Supreme Court has held as a matter of law that the identical evidence of liability presented in this case was insufficient to support a finding against the defendants, and that the case so holding has not been reversed.
In 1951 twenty-six cases were brought against Bobert Y. Moffat et al. in which all of the plaintiffs claimed damages for injuries to their respective home's allegedly caused by noxious gas emanating from the mine refuse dumps maintained by the defendants.
One of the actions, Waschak v. Moffat, was used as a test case. It was tried before a jury which found for the plaintiffs. After the usual motions by the defendants were refused by a court en banc, a money judgment was entered by the court below against the defendants. This Court affirmed, but the Supreme Court reversed and entered judgment n.o.v. for the defendants. 178 Pa. Superior Ct. 209, 96 A. 2d 163 (1953) ; 379 Pa. 441, 109 A. 2d 310 (1954). The Supreme Court noted that “Twenty-five other cases are at issue awaiting the decision in this case.”
The entry of judgment n.o.v., as I understand it, was a determination by the Supreme Court that the evidence was insufficient to support a verdict for the plaintiff. The Court certainly realized it had no authority *223to “find” the facts. Tlie question before tbe Court, it decided and said, was “one of law.”
The Supreme Court decided that tbe case was not one of absolute nuisance. It decided that under tbe evidence “tbe invasion of plaintiffs’ land was clearly not intentional,” and that there was no invasion of tbe plaintiffs’ rights by tbe defendants which could be held unreasonable in a mining community.1
Prior to tbe disposition of Waschak v. Moffat on appeal, it bad been agreed that the other twenty-five cases, which are tbe subject of this appeal, would be tried by tbe court without a jury, and tbe issue of liability would be determined upon the basis of the evidence in the Waschak case.
Tbe defendants’ liability having been passed upon in tbe test case by tbe entry of judgment n.o.v. by tbe Supreme Court on tbe basis of this evidence, one would think that tbe question of the defendants’ liability was settled, and tbe law which would govern tbe remaining cases was firmly established. Not so.
After tbe Supreme Court reversed this Court in tbe Waschak case, tbe defendants in tbe companion twenty-five cases pleaded res judicata which tbe court below sustained in nisi orders. Twenty-three days later tbe defendants took judgments believing that Pa. R. C. P. 1048 gave them tbe right to do so after 20 days. Upon motion of tbe plaintiffs, tbe court below opened tbe judgments on tbe ground that tbe plaintiffs bad 30 days to take exceptions under tbe Act of April 22, 1874, P. L. 109, as amended, 12 PS §6SS et seq. Tbe defendants appealed these cases to tbe Su*224preme Court. Evans v. Moffat, 388 Pa. 559, 131 A. 2d 141 (1957). All that those appeals brought up for review, said the Supreme Court, was the action of the court below in opening judgments in favor of the defendants and permitting the plaintiffs to file exceptions to the trial court’s findings, conclusions and judgments nisi. p. 561. The Supreme Court affirmed the opening of the judgments and decided that the TF«schah decision was not res judicata of any issue in the present cases since the party plaintiffs were not the same. It did not overrule the Waschah decision, nor did it say that the doctrine of stare decisis did not apply-
The trial judge and court below then examined the identical evidence passed upon in the Waschack case, and found against the same defendants for the same acts for which the Supreme Court held the jury could not find the defendants liable. These appeals were then taken by the defendants from the judgments entered against them by the court below.
It is difficult for me to imagine a situation that calls more clearly for the application of the doctrine of stare decisis than is here presented.
The doctrine of stare decisis, winch prevails in Pennsylvania, declares that for the sake of certainty a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same. Heisler v. Thomas Colliery Co., 274 Pa. 448, 118 A. 394 (1922) ; Burtt Will, 353 Pa. 217, 231, 44 A. 2d 670 (1945). No matter how many words might be used in an effort to picture it otherwise, the simple truth is that the evidence, which the Supreme Court held insufficient to hold the defendants liable, was held by the court below to be sufficient to hold the defendants liable.
In as much as the Supreme Court did not overrule the Waschak decision, the court below and this Court *225are bound by it. Neither this Court nor the court below has the power to say that stare decisis is to be abandoned as a principle in Pennsylvania, or that it is not to be applied to these cases.
Of course, the Supreme Court has the power to overrule its decisions, but it is not for this Court to assume that it will exercise this power in any particular case. The majority of our Court may have reason to expect, from what was said in Evans v. Moffat, supra, that the Supreme Court may overrule the Waschak decision, but we should not change the law upon the assumption that the Supreme Court intends to reverse itself.
The procedure followed in these cases creates disrespect for the administration of the law. We have here an anomalous situation: Waschak and twenty-five other plaintiffs, injured by the same acts of the defendants, bring identical actions at the same time, and offer the same evidence of the defendants’ liability, on the basis of which the fact finders found against the defendants in all cases. In 1954 the Supreme Court decided that the defendants are not liable to Waschak. In 1960 the Superior Court decides that the defendants are liable to the other twenty-five.
We should strive to settle law, not unsettle it. Otherwise, as stated by the late Mr. Justice Owen J. Roberts, “law becomes not a chart to govern conduct but a game of chance . . . Counsel and parties will bring and prosecute actions in the teeth of the decisions that such actions are not maintainable on the not improbable chance that the asserted rule will be thrown overboard. Defendants will not know whether to litigate or to settle for they will have no assurance that a declared rule will be followed.” Dissent in Mahnich v. Southern S. S. Co., 321 U.S. 96, 112-113 (1944).
The judicial system was established to determine facts and apply the law to them. The facts in these *226cases are beyond serious dispute, and yet after nine years the judicial system of this Commonwealth is still struggling with the simple question: Are the defendants liable for their acts? In all walks of life, people determine facts and act upon them — promptly and irrevocably. These people lose respect for a judicial system which for nine years considers and reconsiders but does not settle.
If there is to be no finality in the courts’ decisions —if the principle of stare decisis is to have no standing in this Commonwealth, — then litigation will mount, uncertainty will rule, and delays will multiply. And with them will grow disrespect for the judiciary.
As I vieAV it, the principles governing the cases noAV before us were settled by the Supreme Court in 195á.
I would reverse.
Watkins, J., joins in this dissent.The opinion has been widely recognized and favorably commented upon. See 1936-1957 Survey of Pennsylvania Law, 19 U. Pitt. L. Rev. 184, 388 (1958) ; 1955 Annual Survey of American Law, 31 N.Y.U.L. Rev. 344, 359 (1956) ; Annot., 54 A.L.R. 2d 764 (1957). Note 16 U. Pitt. L. Rev. 384, 391 (1955).