J-S32029-16
2016 PA Super 146
NATIONWIDE MUTUAL FIRE INSURANCE IN THE SUPERIOR COURT OF
COMPANY A/S/O RONALD STRUNK PENNSYLVANIA
Appellant
v.
MODERN GAS
Appellee No. 2953 EDA 2015
Appeal from the Order August 19, 2015
In the Court of Common Pleas of Monroe County
Civil Division at No(s): No. 5667-CV-2011
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
OPINION BY MUNDY, J.: FILED JULY 08, 2016
Appellant, Nationwide Mutual Fire Insurance Company a/s/o Ronald
Strunk (Nationwide), appeals from the August 19, 2015 order granting
summary judgment against it on its breach of contract and negligence
claims. After careful review, we reverse.
The facts and procedural history of this case are as follows.
Nationwide provided a fire and commercial general liability insurance policy
to Strunk. Nationwide’s Complaint, 7/29/11, at ¶ 2. The policy insured
Strunk’s commercial real estate building. Id. at ¶ 4. Strunk leased the first
floor of the building to Mike Coppola, who operated his restaurant, Coppola’s
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*
Retired Senior Judge assigned to the Superior Court.
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Pizzeria, in the space. Id. The pizzeria contained two pizza ovens, which
ran on liquid propane.
On August 31, 2009, Modern Gas serviced the pizza ovens because the
oven did not turn on when the pilot was lit. Id. at ¶ 5. An invoice from that
date indicates that Modern Gas cleaned the pilot and adjusted the
thermocouple. Nationwide’s Memorandum of Law in Opposition to Modern
Gas’s Motion for Summary Judgment, 8/14/15, at Exhibit D. The next day,
Modern Gas returned because a “fire ball came out of oven.” Id. Modern
Gas “vacuume [sic] oven and clean burners.” Id. The invoice indicated
“[t]here was a leak @ ¾ union. I fixe [sic] it.” Id.
On September 28, 2009, a fire started in the pizzeria, caused by a
malfunction of the gas pizza ovens. Nationwide’s Complaint, 7/29/11, at
¶ 6. The fire caused damages in the amount of $158,811.03. Id. at ¶ 8.
Pursuant to the insurance policy, Nationwide covered the loss and paid those
damages to Strunk. Id. at ¶ 9.
On July 29, 2011, Nationwide brought this subrogation action against
Modern Gas, seeking to recover the $158,811.03 that it paid to Strunk. Id.
at ¶ 9. Nationwide’s complaint contained two counts, one for breach of
contract, and one for negligence. Relevant to this appeal, the complaint
averred that Modern Gas was negligent in various ways, including failing to
inspect the oven, improperly repairing the oven, and failing to perform a
leak test after it completed the repairs. Id. at ¶ 16.
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Nationwide retained an expert, Michael Zazula, an engineering
consultant at IEI Consulting, Inc. In October and December of 2009, and
March and April of 2015, Zazula examined the pizza ovens and their
components four times to determine the cause of the fire. In his April 22,
2015 report, prepared following his inspections, Zazula explained that, in
December 2009, he examined the oven and “determined the pilot valve for
the top oven was open, allowing [gas to] flow through the pilot, regardless
of whether or not there was a flame present on the thermocouple.” Zazula
Report, 4/22/15, at 4.1 Zazula further noted that “[t]his condition would
reveal itself as a leak within the oven, near the pilot, when a leak test was
conducted.” Id. On April 16, 2015, Zazula conducted radiograph testing to
determine the cause of the leak in the pilot valve. Id. at 5. “The
radiographs clearly revealed the valve was disassembled and a screw was
inserted into the pilot valve to forcibly keep the valve open to allow gas
flow.” Id. Zazula concluded, “to a reasonable degree of engineering and
scientific certainty,” that “Modern [Gas]’s failure to properly conduct a leak
test, consistent with the [National Fire Protection Association (NFPA)] 54
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1
We note that the expert report does not contain pagination. For ease of
review, we have assigned each page a corresponding page number.
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standard,[2] is the primary cause of the incident[.]” Id. at 6. Further,
Zazula opined that “[h]ad Modern [Gas] complied and followed the NFPA 54
standard they would have detected the leak from the pilot valve and would
have averted this incident.” Id. at 6.
On July 16, 2015, Modern Gas filed a motion for summary judgment.
On August 14, 2015, Nationwide filed its response. On August 19, 2015, the
trial court entered an order, accompanied by a memorandum opinion,
granting Modern Gas’s motion for summary judgment on both the breach of
contract count and the negligence count. On September 16, 2015,
Nationwide filed a timely notice of appeal.3
On appeal, Nationwide presents the following issue for our review.
1. Did the [t]rial [c]ourt err as a matter of law or
abuse its discretion in granting summary
judgment and finding that Nationwide Mutual Fire
Insurance could not prove its negligence claim?
Nationwide’s Brief at 3.4
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2
NFPA 54, section 8.1.5.3 states “[w]here leakage or other defects are
located, the affected portion of the piping system shall be repaired or
replaced and retested.” Zazula Report, 4/22/15, at 2.
3
Nationwide and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. Specifically, the trial court’s Rule 1925(a)
statement refers us to its August 19, 2015 memorandum.
4
Nationwide does not argue that the trial court erred in granting summary
judgment on its breach of contract claim.
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The following standard and scope of review applies to our
consideration of this issue.
As has been oft declared by [our Supreme]
Court, “summary judgment is appropriate only in
those cases where the record clearly demonstrates
that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a
matter of law.” Atcovitz v. Gulph Mills Tennis
Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002); Pa.
R.C.P. No. 1035.2(1). When considering a motion
for summary judgment, the trial court must take all
facts of record and reasonable inferences therefrom
in a light most favorable to the non-moving party.
Toy v. Metropolitan Life Ins. Co., 928 A.2d 186,
195 (Pa. 2007). In so doing, the trial court must
resolve all doubts as to the existence of a genuine
issue of material fact against the moving party, and,
thus, may only grant summary judgment “where the
right to such judgment is clear and free from all
doubt.” Id. On appellate review, then,
an appellate court may reverse a grant of
summary judgment if there has been an error
of law or an abuse of discretion. But the issue
as to whether there are no genuine issues as
to any material fact presents a question of law,
and therefore, on that question our standard of
review is de novo. This means we need not
defer to the determinations made by the lower
tribunals.
Weaver v. Lancaster Newspapers, Inc., 926 A.2d
899, 902-03 (Pa. 2007) (internal citations omitted).
To the extent that this Court must resolve a question
of law, we shall review the grant of summary
judgment in the context of the entire record. Id. at
903.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (parallel
citations omitted).
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Thus, our responsibility as an appellate court is to
determine whether the record either establishes that
the material facts are undisputed or contains
insufficient evidence of facts to make out a prima
facie cause of action, such that there is no issue to
be decided by the fact-finder. If there is evidence
that would allow a fact-finder to render a verdict in
favor of the non-moving party, then summary
judgment should be denied.
Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1223 (Pa. Super. 2012) (citations
omitted), appeal denied, 65 A.3d 412 (Pa. 2013), quoting Reeser v. NGK
N. Am., Inc., 14 A.3d 896, 898 (Pa. Super. 2011) (citations omitted).
In order to hold a defendant liable for negligence, the plaintiff must
prove the following four elements: (1) a legally recognized duty that the
defendant conform to a standard of care; (2) the defendant breached that
duty; (3) causation between the conduct and the resulting injury; and (4)
actual damage to the plaintiff. Ramalingam v. Keller Williams Realty
Group, 121 A.3d 1034, 1042 (Pa. Super. 2015).
The issue in this case is whether Nationwide presented sufficient
evidence to allow the fact-finder to conclude that Modern Gas’s negligence
was the proximate cause of the fire. This Court has explained the principles
guiding our review of a trial court’s decision to grant summary judgment on
proximate cause as follows.
It is the function of the court to determine the
questions of causation in cases in which a jury could
not reasonably differ. RESTATEMENT (SECOND) OF TORTS
§ 434(1)(c). As Dean Prosser explains:
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If the facts bearing upon the issue of causation
in fact are not in dispute and reasonable
persons could not differ about the application
of the legal concept of causation in fact, the
court determines that issue. But if reasonable
persons might differ, either because relevant
facts are in dispute or because application of a
legal concept (such as a “substantial factor”
formulation) is an evaluative determination as
to which reasonable persons might differ, the
issue is submitted to the jury with appropriate
instructions on the law ….
Prosser, The Law of Torts § 45 (5th ed. 1984).
The focus of our inquiry is therefore whether the
court was correct in finding as a matter of law that
legal causation was not present. Where relevant
facts are not in dispute and the remoteness of the
causal connection between the negligence of the
original actor and the injury is so clear, the issue
becomes one of law. Clevenstein v. Rizzuto, 266
A.2d 623 (Pa. 1970). Summary judgment is proper
where facts are undisputed and only one conclusion
may reasonably be drawn from them. Gans v.
Mundy, 762 F.2d 338 (3d Cir. 1985) and Colloi v.
Philadelphia Electric Co., 481 A.2d 616 (Pa.
Super. 1984).
Askew By Askew v. Zeller, 521 A.2d 459, 463 (Pa. Super. 1987) (parallel
citations omitted); accord Summers, supra at 1164 (collecting cases
holding proximate cause is a jury question when reasonable minds may
differ).
Nationwide contends that the trial court disregarded its expert’s report
concluding that the report of the fireball that precipitated the September 1,
2009 service call was consistent with the presence of a screw holding the
pilot valve in the oven open. Nationwide’s Brief at 17. Further, Nationwide’s
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expert concluded that the explosion was caused, in part, by Modern Gas’s
negligence in not performing a leak test after servicing the oven on
September 1, 2009 repairs. Id. at 18.
Here, the trial court granted summary judgment in favor of Modern
Gas because it reasoned that Nationwide did not establish that Modern Gas’s
failure to conduct a leak test was the proximate cause of the explosion and
fire. Trial Court Opinion, 8/19/15, at 4. The trial court found “[t]here was
no evidence presented upon which a jury could find that the screw was in
the valve when the September 1 servicing was completed[]” because the fire
did not occur until September 28. Id. Instead, the trial court posited that
“[i]f the valve was tampered with after the service call, Modern Gas’s failure
to perform the gas line test discussed by [Nationwide]’s expert would not
have mattered.” Id. at 4-5.
In reaching its conclusion, the trial court refused to defer to the expert
report of Zazula, presented by the non-moving party.
It has long been Pennsylvania law that, while
conclusions recorded by experts may be disputed,
the credibility and weight attributed to those
conclusions are not proper considerations at
summary judgment; rather, such determinations
reside in the sole province of the trier of fact, here, a
jury. Miller v. Brass Rail Tavern, Inc., 664 A.2d
525, 528 (Pa. 1995); In re Estate of Hunter, 205
A.2d 97, 102 (Pa. 1964) (“The credibility of
witnesses, professional or lay, and the weight to be
given to their testimony is strictly within the proper
province of the trier of fact.”). Accordingly, trial
judges are required “to pay deference to the
conclusions of those who are in the best position to
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evaluate the merits of scientific theory and technique
when ruling on the admissibility of scientific proof.”
Grady v. Frito–Lay, Inc., 839 A.2d 1038, 1045
(Pa. 2003) (citing Frye v. United States, 293 F.
1013 (D.C. Cir. 1923)).
At the summary judgment stage, a trial court
is required to take all facts of record, and all
reasonable inferences therefrom, in a light most
favorable to the non-moving party. Toy, [supra].
This clearly includes all expert testimony and reports
submitted by the non-moving party or provided
during discovery; and, so long as the conclusions
contained within those reports are sufficiently
supported, the trial judge cannot sua sponte assail
them in an order and opinion granting summary
judgment. Contrarily, the trial judge must defer to
those conclusions, see Grady; Frye, and should
those conclusions be disputed, resolution of that
dispute must be left to the trier of fact. Miller,
[supra].
Summers, supra at 1161 (parallel citations omitted).
Here, the trial court erred in assessing the credibility of the expert
report and concluding it carried no weight. The trial court found that a
reasonable jury could not conclude the screw was present in the pilot valve
at the time of Modern Gas’s service call on September 1, 2009 because of
the time that elapsed between that date and the September 28, 2009
explosion. Trial Court Opinion, 8/19/15, at 5. The trial court reasoned that
the remoteness in time negated the possibility that the screw was in the
pilot valve the entire time. Id. The trial court improperly usurped the role
of the jury by evaluating the evidence to decide the motion for summary
judgment. See Summers, supra; Askew, supra.
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Viewed in the light most favorable to Nationwide, the non-moving
party, Zazula’s expert report would permit a reasonable jury to conclude
that the screw was present on September 1, 2009, and Modern Gas’s
negligence was the proximate cause of the fire. In his report, Zazula
detailed how he discovered the screw that was holding the pilot valve open,
allowing gas to freely flow out. Zazula Report, 4/22/15, at 4-5. He
explained that was consistent with the fireball that Coppola reported on
September 1. Id. at 5. Zazula plainly stated that “[h]ad a leak test been
properly conducted by Modern during their September 1, 2009 service call
when they discovered a leak in the top oven, they would have determined
this leak as well.” Id. Further, the report concludes that “Modern’s failure
to properly conduct a leak test … is the primary cause of the incident.” Id.
at 6. Zazula’s report concludes that the screw was in the pilot valve on
September 1 and the open pilot valve caused the September 28 explosion.
Accordingly, there is evidence in the record that would allow a jury to render
a verdict in favor of Nationwide, and the trial court erred in concluding that
the jury could not find proximate causation as a matter of law. See
Summers, supra; Babb, supra.
For these reasons, we conclude that the trial court erred in granting
summary judgment. Consequently, we reverse the August 19, 2015 order
granting summary judgment and remand for further proceedings consistent
with this opinion.
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Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2016
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