Rubinstein v. J. E. Kunkle Co.

• Citation: 368 A.2d 819,244 Pa.Super. 474
• Parties: Samuel H. RUBINSTEIN and Grace Rubinsten, his wife v. J. E. KUNKLE CO., Appellant, and James Fuel & Supply Co., Inc. and Sun Oil Co.
• Decision Date: 15 December 1976
• Court: Superior Court of Pennsylvania

Page 819

368 A.2d 819

244 Pa.Super. 474

Samuel H. RUBINSTEIN and Grace Rubinsten, his wife v. J. E. KUNKLE CO., Appellant and James Fuel & Supply Co., Inc. and Sun Oil Co.

Superior Court of Pennsylvania.

Argued Sept. 15, 1976.

Decided Dec. 15, 1976.

L. Carter Anderson, Philadelphia, for appellant.

Jonathan Wheeler, Philadelphia, with him Edwin L. Scherlis, Philadelphia, for appellees.

John J. Baulis, Philadelphia, for appellee, Sun Oil Co.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

HOFFMAN, Judge:

In 1964, appellant converted appellee-Rubinstein's home furnace from gas to oil heat. ¹ In 1967, the furnace failed to operate correctly, causing extensive soot damage throughout the house. Appellant contends that the evidence was insufficient to prove that it was negligent or that, if it were negligent, its negligence was the proximate cause of the damages to the plaintiff's home. Second, appellant claims that appellee-Sun Oil Company ('Sun' hereinafter), which serviced the furnace from March 1967, until the accident, should be found liable for its negligent maintenance of the furnace. ²

In 1964, appellant contracted with the plaintiffs to convert the gas burning furnace in their Bryn Mawr, Montgomery County home to an oil fired system. Appellant's service manager designed a system with two separate combustion chambers divided by a firebrick wall. Appellant subcontracted with a masonry firm to install the unit; after installation, however, appellant's service manager inspected the system and checked its operation. Appellant maintained plaintiffs' heating system until August, 1965. Plaintiffs then used the James Fuel & Supply Company, ³ from August, 1965, until March, 1967, when they contracted with Sun. During that perod of time, plaintiffs reported no malfunctioning of the system.

In December, 1967, the plaintiffs left home for a skiing vacation in the Poconos. Upon their return, they discovered the interior of their entire house covered with a film of soot and oil. As testified at trial by Mrs. Rubinstein, '. . . it was so thick that as you walked on the floor you left footprints, and if you put something down where there had been something on the table and you picked it up you would have a ring, everything was just greasy.

'Q. . . .--when you say 'greasy,'--

'A. Oily. The oil had permeated the entire house.

'Q. . . . did you walk through every room?

'A. Yes. Well, I though first it was just on the first floor. Then we went through the first, to the second, third, and I opened doors and I was amazed to find my linens all covered with oil. Up on the third floor in the storage cedar closet, the closet I couldn't imagine how it got in there, but it was all covered with oil.'

As as result, the plaintiffs had to discard almost all of their furniture and personal belongings and no renovate and redecorate their home.

The plaintiffs filed an action in trespass against appellant, James Fuel & Supply Co., and Sun, on April 1, 1969. Prior to trial, Sun and plaintiffs entered into a joint-tortfeasor settlement. At trial, Sun pleaded a release in which the plaintiffs reserved their rights against the other defendants, and agreed to a pro rate reduction of their damages should the factfinder hold both Sun and appellant liable. The parties waived a jury trial and trial commenced on June 3, 1975. The lower court found only appellant liable in the amount of $67,704.75. Appellant's exceptions were denied on December 31, 1975. This appeal followed.

I.

Appellant challenged the sufficiency of the evidence to prove its negligence and to prove proximate cause.

A. Negligence

The gravamen of the plaintiffs' complaint was that the appellant negligently designed the furnace. The appellant argues that '(t)he only evidence of the original condition of the furnace is the testimony of Louis Battista, who was Kunkel's service manager at the relevant time. . . . Mr. Battista did not know of his own information whether a complete partition had been constructed pursuant to his directions. . . .

'We know that by the time of the accident the Minneapolis-Honeywell controls had been replaced by White-Rogers controls . . . but we have no other information about any other changes or modifications. . . . We know that the partition, at the time of the accident, was not a complete one, but plaintiffs' expert conceded that it might have been altered since it left the control of (appellant).' There was ample testimony by plaintiffs' expert concerning the inadequate structure of the fire wall which would support a finding of negligence. Therefore, the only issue is whether evidence was sufficient to prove the unchanged condition of the furnace, from the time it was installed by appellant until the time of the accident.

Initially, '(a)ppellate review of the record of a trial before a judge without a jury is limited to a determination of whether the findings of fact of the court below are supported by competent evidence and whether or not the lower court committed error of law.' E. I. duPont de Nemours & Co., Inc. v. Berm Studios, Inc., 211 Pa.Super. 352, 354, 236 A.2d 555, 556 (1967). See also, Trilog Associates, Inc. v. Famularo, 455 Pa. 243, 314 A.2d 287 (1973); Van Products Company v. General Welding and Fabricating Company, 419 Pa. 248, 213 A.2d 769 (1965). Further, when an appellante court reviews a claim of sufficiency of the evidence, it must view the evidence in a light most favorable to the verdict winner. Krobot v. Ganzak, 194 Pa.Super. 49, 166 A.2d 311 (1960). At the same time, a party cannot prevail if the evidence is so insubstantial that the factfinder must speculate about a factual issue. Nationwide Mutual Insurance Company v. Mazza, 233 Pa.Super. 244, 334 A.2d 697 (1975). Further, as summarized in Ritson v. Don Allen Chevrolet, 233 Pa.Super. 112, 116, 336 A.2d 359, 362 (1975), '(t)he law is clear that to introduce evidence as to the condition of a physical object "'evidence of its condition at a prior or subsequent time is admissible if accompanied by proof that it has not changed in the meanwhile."' Brandon v. Peoples Natural Gas Co., 417 Pa. 128, 133, 207 A.2d 843, 846 (1965), citing Henry, Pennsylvania Evidence, Vol. 1, § 33, p. 60 (4th ed. 1953).' Cf. Woods v. Pleasant Hills Motor Company, 454 Pa. 224, 309 A.2d 698 (1973). However, in cases in which an expert witness first examines an object of legal controversy well after its construction, the expert may be unable to rule out all possible causes of its malfunction. We have never required a standard of absolute certainty: 'The failure of an expert to rule out all possible causes of a condition is not a basis for excluding the testimony, since to require such a high agree of certainty would deny the jury copious relevant evidence. 'A precise scientist who bases his opinion on an appraisal of probabilities is nonetheless an expert. In our view his opinion deserves jury consideration.' Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 181, 242 A.2d 231, 233 (1968). Once a threshold showing is made that the condition of an object has remained the same or that an expert has some basis in fact for his opinion, the evidence is admissible; the weight of the evidence is then a matter for the jury. Griffith v. Clearfield Truck Rentals, Inc., 427 Pa. 30, 233 A.2d 896 (1967); Flavin v. Aldrich, 213 Pa.Super. 420, 250 A.2d 185 (1968).' Ritson v. Don Allen Chevrolet, supra, 233 Pa.Super. at 117, 336 A.2d at 362.

The plaintiffs' proof included testimony that 'the intermedial wall was made out of refractory brick' and was immobile because secured with cement, that 'you don't normally remove brick for normal maintenance, and put it back in again in a combustion chamber configuration,' and that the plaintiffs were never billed for alterations to the intermedial wall. That evidence is sufficient to sustain the lower court's finding that '(t)he design of the chambers was basically unchanged from the time of its installation until the time of the accident. The gap in the fire wall existed because (appellant) did not completely build up the wall when installing the system.'

B. Proximate Cause

Appellant also contends that, even if the design of the intermedial wall was inadequate, the plaintiffs failed to prove that the defect caused the accident. Rephrased, appellant claims that plaintiffs did not disprove alternative explanations of the accident.

Pennsylvania has adopted the Restatement (Second) of Torts, §§ 431 and 432 on legal cause. Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970); see also, Noon v. Knavel, 234 Pa.Super. 198, 339 A.2d 545 (1975), allocatur granted 234 Pa.Super. xxxviii. Thus, in an action in trespass, a plaintiff must prove that the defendant's conduct 'is a substantial factor in bringing about the harm, . . .' Restatement (Second) of Torts § 431(a). Further, § 432(1) provides that 'the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the action had not been negligent.' Thus, we must inquire whether the defectively constructed intermedial wall was a substantial factor in bringing about the accident in the plaintiffs' home.

The plaintiffs' expert's theory was: For some reason, the ignition in one chamber failed. A light-sensitive safety cell would normally shut off the fuel supply once the system malfunctioned. Because the intermedial wall did not properly seal the malfunctioning chamber from the other chamber, the light from the 'hot' chamber prevented the triggering of the safety device, leading to a build-up of unburned oil-vapor. Subsequently, the accumulated vapor was ignited by the heat in the other chamber (a process described as 'cross-ignition'), the heat transfer being more likely due to the poor seal of the intermedial wall. The cross-ignition then caused a series of 'puff-backs', that is, the emission...