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HANDFINGER ET AL. v. PHILADELPHIA GAS WORKS (07/02/70)

decided: July 2, 1970.

HANDFINGER ET AL., APPELLANTS,
v.
PHILADELPHIA GAS WORKS



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1964, No. 1872, in case of Faye Handfinger, a minor, by her father and natural guardian, Harry Handfinger et al. v. Philadelphia Gas Works and United Gas Improvement Company.

COUNSEL

Arnold M. Kessler, with him Bernstein, Bernstein, Harrison & Kessler, for appellants.

Richard J. Gordon, with him Dilworth, Paxson, Kalish, Kohn & Levy, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones.

Author: Jones

[ 439 Pa. Page 132]

Faye Handfinger and her father initiated a trespass action against Philadelphia Gas Works and United Gas Improvement Company in the Court of Common Pleas of Philadelphia County.*fn1 After a non-jury trial which resulted in a verdict for the plaintiffs, UGI filed alternative motions for judgment non obstante veredicto, for a new trial, or for a remittitur. The court en banc, the trial judge dissenting, set aside the verdict and entered judgment for the defendants n.o.v. The plaintiffs have appealed from the entry of that judgment.

On an appeal from the entry of a judgment n.o.v., all of the evidence and the reasonable inferences therefrom must be viewed in the light most favorable to the verdict-winner. E.g., Axilbund v. McAllister, 407 Pa. 46, 180 A.2d 244 (1962). If the plaintiffs have produced sufficient evidence on the basis of which the factfinder could have reasonably inferred the facts necessary to establish UGI's liability, then the judgment n.o.v. was improperly entered. E.g., Brandon v. Peoples Nat. Gas Co., 417 Pa. 128, 207 A.2d 843 (1965). See Act of April 22, 1905, P. L. 286, § 1, as amended, 12 P.S. § 681.

In 1963, UGI undertook the conversion of approximately 1,640,000 gas appliances in Philadelphia. The conversion was necessary in order to permit the appliances which had been designed for the use of a mixed gas to operate with a straight natural gas, the natural gas having a higher BTU rating. On May 27, 1963, a representative of UGI visited the Handfinger residence and, allegedly, converted a gas stove, including an oven

[ 439 Pa. Page 133]

    and a range with six burners, and a gas heater. Natural gas was first supplied to the Handfinger residence on or about June 24, 1963.

Shortly thereafter, Faye Handfinger's mother telephoned UGI to complain that "when I would turn the jets on, I would have to wait a while, and then all of a sudden you would hear a pop and the flame would go on." Mrs. Handfinger made similar complaints, in September and October of 1963, to UGI servicemen who had been sent to adjust the gas heater. In each instance, she was assured that what she had described was a normal characteristic of natural gas and that she should not be concerned.

On February 3, 1964, Faye Handfinger was badly burned when her clothing was ignited by a flame from one of the top burners on the gas stove. Faye, who was then twelve years old, was the only person present at the time of the accident. She testified that five or six seconds after she had turned on the front middle burner of the range, she heard a "pop" and flames shot out approximately two feet from the burner to ignite her clothing. The next day, in response to a call, a UGI serviceman adjusted the range to the satisfaction of Mrs. Handfinger.

The plaintiffs' theory of liability was based upon the testimony of one expert witness who stated that, given the facts essentially as outlined above, the flare-up occurred either because the burner had not been converted for the use of natural gas, or because the conversion had not been properly done. The central factual issue in dispute at trial was whether the range ...


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