Ruzzi v. Butler Petroleum Co.

LARSEN, Justice,

concurring.

I join in the result of the majority, and I agree with the majority’s disposition of the issue involving the expert witness’ testimony. I, however, disagree with the majority’s rationale regarding the indemnification issue and, in support thereof, adopt the Superior Court Memorandum opinion (Cavanaugh, Tamilia, and Hoffman, JJ.) which is attached hereto.

APPENDIX

Gary Ruzzi and Sharon Ruzzi, his Wife v. Butler Petroleum Company, Appellant v. George Shockey and Edmund Zinsser No. 00139 Pittsburgh, 1988 Appeal from the Judgment entered in the Court of Common Pleas of Butler County, Civil Division, No. C.P. 87-1685 Book 191, Page 343 Gary Ruzzi and Sharon Ruzzi, his Wife v. Butler Petroleum Company, v. George Shockey and Edmund Zinsser Appeal of: George Shockey No. 00169 Pittsburgh, 1988 Appeal from the Judgment entered in the Court of Common Pleas of Butler County, Civil Division, No. C.P. 87-1685 Book 191, Page 343

Before: CAVANAUGH, TAMILIA, and HOFFMAN, JJ.

MEMORANDUM:

*16Filed: November 9, 1988

This action in trespass resulted from the consolidation of three cases in the trial court. The cases were tried in Allegheny County with judgment then transferred to Butler County. The facts are not in dispute. Additional defendant-appellee Zinsser was in the process of opening a new gas station on property he had leased and had entered into an agreement for renovations with defendant-appellant, Butler Petroleum Company (“Butler”). Butler was to provide fuel tanks, pumps, a new sign and was to make other exterior renovations and repairs in exchange for the Zinssers’ promise to purchase oil and gas from Butler for a specified period of time.

As part of the renovations, Butler arranged for additional defendant-appellant Shockey to pick up and deliver two used fuel tanks to the Zinssers’ gas station. Butler also arranged for the installation of the new sign by AMG Sign Company, plaintiff-appellee Ruzzi’s employer.

Upon delivering the 8,000 gallon tanks to Zinssers’ station, Shockey noticed one tank had a four to six inch hole on the top. He notified Butler’s general manager, stating repairs would have to be made and the tank drained of fuel before installation.

When Ruzzi and a co-worker arrived to install the new sign, the tanks were sitting a few feet away from the sign post where Ruzzi had to work and unknown to him, they contained 50 to 100 gallons of gasoline. Ruzzi noticed the tanks but did not see the hole or smell gasoline. As he was working above the tanks installing the new sign, he had difficulty removing the old sign and found it necessary to use a acetylene torch. The heat of the torch, a spark or a piece of hot metal caused the fumes coming from the defective tank to ignite, triggering an explosion and knocking Ruzzi from the ladder on which he was standing. He sustained injuries to his back and other parts of his body.

Ruzzi and his wife sued for the personal injuries he suffered and after a jury trial a molded verdict was entered *17in favor of Ruzzis as against Butler and Shockey (Butler was found to be 84 per cent negligent and Shockey was found to be 16 per cent negligent) and exonerating the Zinssers. The trial court also awarded delay damages against Butler and Shockey. Post-trial motions were denied and judgment was entered in favor of the Ruzzis and against Butler and the Shockeys and in favor of the Zinssers as against all parties. These timely appeals followed the entry of judgment.

Butler first charges as error the failure of the trial court to permit Butler to pursue its action for indemnity from the Zinssers. The indemnification clause included in the agreement between the parties stated as follows:

[The Zinssers] ... exonerate, discharge, and agree to protect and save harmless and indemnify [Butler Petroleum] ... from any and all liability for claims for loss, damage, injury or other casualty to persons or property ... caused or occasioned by any leakage, fire, explosion or other casualty occurring through any imperfection in, injury or damage to, or by reason of the installation, use, operation and/or repair of the said equipment or of the premises.

Butler argues this clause was enforceable as a matter of law and should have been upheld by the trial court regardless of Butler’s own negligence since the language of the clause clearly provides for this result. In the alternative, it contends the issue of whether or not the indemnity clause was enforceable should have been submitted to the jury.

We disagree with Butler’s contentions. “Under Pennsylvania law, indemnity is disallowed if the indemnitee is actively negligent.” DiPietro v. City of Philadelphia, 344 Pa.Super. 191, 496 A.2d 407 (1985). The jury found Butler was 84 per cent negligent which means it is not entitled to indemnity regardless of whether the language of the clause provides for such a result. Further, we find no error on the part of the trial court in not submitting the indemnification issue to the jury. “It is the role of the court to decide *18whether, as a matter of law, written contract terms are clear or ambiguous.” Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878 (1986). “The task of interpreting a contract is generally performed by a court rather than a jury.” Standard Venetian Blind Co. v. American Empire Insurance, 503 Pa. 300, 469 A.2d 563 (1983). The court determined the indemnification clause was not clear and did not entitle Butler to be indemnified against its own negligence. Although we are not bound by the trial court’s conclusions of law, 2401 Penn Avenue Corp. v. Federation of Jewish Agencies of Philadelphia, 507 Pa. 166, 489 A.2d 733 (1985), we nonetheless agree with the trial court in its determination of this issue.

The next argument of Butler, which is also raised by Shockey, is the court erred in admitting the testimony of Mr. Jarrell as an expert for the Ruzzis since he was not qualified, his opinions were not supported by the facts and were beyond the scope of his report. Jarrell was called to testify regarding Mr. Ruzzi’s loss of earning capacity. As correctly noted by the Ruzzis, the testimony of an expert is not necessary for the determination of lost earning capacity. Mecca v. Lukasik, 366 Pa.Super. 149, 530 A.2d 1334 (1987).

“The Pennsylvania standard of qualification for an expert witness is a liberal one. ‘If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he may testify, and the weight to be given to his evidence is for the jury.’ Kuisis v. Baldwin-Lima Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974).” Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 597-8, 437 A.2d 1198, 1201 (1981) (plurality opinion).
Although the witness must demonstrate some special knowledge or skill, there is no requirement that a witness acquire that knowledge as a result of formal schooling; *19expertise acquired by experience is expertise nonetheless. (Citations omitted.)

McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 608, 533 A.2d 436, 440 (1987).

Moreover, it is within the trial court’s discretion to determine whether a witness is qualified to testify as an expert. Beary v. Container General Corp., 368 Pa.Super. 61, 533 A.2d 716 (1987). The trial court found Jarrell’s background and experience was sufficient to allow his testimony regarding loss of earning capacity. We find this was not an abuse of the court’s discretion.

Additionally, Butler and Shockey argue Mr. Jarrell’s testimony that Ruzzi suffered a diminished earning capacity of 17 per cent lacked an adequate foundation, was speculative and should not have been admitted.

The trial court found the testimony of Mr. Jarrell was not speculative but was based upon his experience and the evidence submitted by the physician regarding Ruzzi’s physical limitations. Again, an expert is not only someone with educational qualifications but can be a person with a vast amount of experience in a certain field.

When a witness is offered as an expert, the first question the trial court should ask is whether the subject on which the witness will express an opinion is so distinctively related to some science, business or occupation as to be beyond the knowledge of the average layman and if answered in the affirmative, the next question the court should ask is whether the witness has sufficient skill, knowledge or expertise in that field as to make it appear that his opinion will probably aid the trier in his search for truth.

Beary, supra, 368 Pa.Superior Ct. at 74, 533 A.2d at 722 (quoting Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 35, 485 A.2d 408, 415 (1984), appeal dismissed 508 Pa. 643, 500 A.2d 428).

We agree with the trial court that Jarrell has sufficient expertise in the field of job placement and is knowledgeable *20of the relevant statistics that his testimony would aid the jury.

In conjunction with the above argument, Butler and Shockey claim this testimony was precluded because it went beyond the pre-trial expert report which is prohibited by Allegheny County Local Rule 212. After reviewing the pretrial report, we find Mr. Jarrell’s testimony consisted of a reasonable explanation of his report which contained language dealing directly with Ruzzi’s diminished earning capacity, therefore it was properly admitted.

Butler’s third claim is the verdict is against the weight of the evidence because it was shown that Ruzzi was contributorily or comparatively negligent. Butler states Ruzzi’s own testimony reveals he was aware of the danger of operating a torch near gasoline tanks and he continued to operate the torch even though he was having difficulty in doing so.

The trial court found Ruzzi, as a business invitee, was not obligated to inspect the premises for hidden dangers and was not contributorily negligent since he did not see the hole in the one tank nor did he smell gasoline; in fact, Ruzzi testified the tanks appeared to be new and when he passed by them he slapped one and it sounded hollow (N.T. 5/6/87, p. 16). His co-worker and Zinsser corroborated this testimony. We find Butler has not met the standard necessary for granting a new trial, i.e. the verdict is so contrary to the evidence that it shocks one’s sense of justice. S.N.T. Industries, Inc. v. Geanopulos, 363 Pa.Super. 97, 525 A.2d 736 (1987). We believe the jury had ample evidence to find Ruzzi was not negligent.

Finally, Butler and Shockey both argue delay damages should not have been awarded without an evidentiary hearing and the grant of delay damages was made because the court overlooked the fact that no party was at fault for the delay which would have supported a denial of the request for such damages.

*21The trial court found in awarding delay damages it had followed the factors that were suggested in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), noting that nothing in the record or in the answer to the petition for damages revealed the Ruzzis were responsible for the delay.

This Court has recently addressed this issue in Ceresini v. Valley View Trailer Park, Ephrata, Inc., 380 Pa.Super. 416, 552 A.2d 258 (1988), finding Craig does not support the notion that defendants should be assessed delay damages for any delay not the fault of plaintiffs. Defendants should be assessed delay damages only when the court finds they are at “fault” which includes deliberate delay for the sake of profit. We are unable to determine, however, whether appellants are at fault for any delay because the trial court did not hold a hearing. We remand for the court to hold hearings to determine whether any prejudgment delay is attributable to appellants and for entry of judgment in accordance with those findings and this Memorandum, in light of Ceresini.

Shockey claims the trial court erred in denying his motion for a nonsuit since the record does not support a finding that he owed a duty of care to Ruzzi and without this duty an action for negligence cannot be sustained. Because Butler only requested he transport the tanks to the site, Shockey believes the care, custody and control of the tanks had passed to Butler and Zinsser. He also argues the risk of harm was not foreseeable so as to warrant the imposition of any duty on his part.

The trial court stated there was no merit in Shockey’s motion for a compulsory nonsuit finding sufficient evidence that Shockey was contributorily negligent. We agree with the trial court. Shockey delivered the tanks to the gas station where he knew major renovation work would be taking place. He knew the tanks were not empty and that one had a four to six inch hole in the top. Given the explosive propensity of gasoline and the extreme caution *22required when working around it, we find it was foreseeable an injury could occur under the circumstances. Shockey owed a duty to workers on the premises to notify them or Zinsser about the danger, especially when the tanks appeared to be new and others on the property had no reason to suspect there was gasoline inside. Although Shockey notified Butler, he breached his duty by not notifying those individuals in immediate proximity of the hazard.

Next, Shockey alleges error due to the denial of his requests for charge stating the court should have instructed the jury as to the standard of care required of Butler, Shockey and Ruzzi under the circumstances that were presented at trial. This issue has been waived, however, as it was not raised in his statement of questions. Rago v. Nace, 313 Pa.Super. 575, 460 A.2d 337 (1983).1

The Zinssers present one final argument. Because there are issues being raised in this appeal that do not directly concern them, they assert they should not be subjected to a new trial if that is the relief granted by this Court. Stokan v. Turnbull, 480 Pa. 71, 389 A.2d 90 (1978). Due to our disposition of the issues above, we need not address this contention.

Judgments affirmed except as to delay damages. The case is remanded for a hearing to determine whether any prejudgment delay is attributable to appellants and for entry of judgment in accordance with those findings. Jurisdiction relinquished.

. Shockey raises one other issue in his Statement of Questions which was not argued in the brief, therefore, it is waived. Brown v. Delaware Valley Transplant Program, 372 Pa.Super. 629, 539 A.2d 1372 (1988).