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decided: March 24, 1972.


Appeal from judgment of Court of Common Pleas of Delaware County, No. 5225 of 1969, in case of Jean Raibley v. Marvin E. Kanze, Inc.


Joel Friedman, for appellant.

James A. McGoldrick, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J.

Author: Cercone

[ 221 Pa. Super. Page 235]

Plaintiff appeals from the refusal of the court below to take off a non-suit entered after a determination that the evidence presented was insufficient to establish a cause of action. The sole question before us is whether the entry of the compulsory non-suit was proper.

On September 27, 1968 plaintiff entered into a contract with defendant for replacement of an oil heating system in her home with a gas heating and air-conditioning system. Pursuant to the contract, defendant on October 25, 1968 arrived at plaintiff's house to commence the work estimated to take several days to complete. Prior to the beginning of work plaintiff called her oil supplier (Humble Oil Company) to cancel her orders and stop all oil deliveries to her home. At trial plaintiff testified that in order "to make double sure" of the oil cancellation she later sent a confirming letter to Humble, which Humble re-confirmed by phone. Before the work began, plaintiff told defendant that she had cancelled oil deliveries to her home. On this first day at work, defendant's employees disconnected the oil tank, ran a line from their truck outside and

[ 221 Pa. Super. Page 236]

    pumped all the oil out of the tank. In addition, they removed the old oil heating equipment, installed and connected the new gas heating system, and worked to put it in operable condition so that plaintiff could have heat. One day being insufficient to complete the job, defendant had scheduled the return of his workmen for the following morning to continue the work, which would include removal of the oil-fill pipes that led to the outside of the house. Early the next day the plaintiff's basement was found flooded with oil. Someone had delivered oil to plaintiff's house and poured it into the outside oil-fill pipe. Since the tank had been disconnected from the oil-fill pipe, the oil flooded plaintiff's basement. The deliverer of the oil was never identified.

Although plaintiff offered testimony that it was customary to remove or plug the outside oil-fill pipe after disconnecting the tank,*fn1 further testimony revealed that defendant was fully aware of this custom and did intend to remove the pipe. Defendant, however, had worked late into the evening and did not have the time to remove the oil-fill pipe, which was embedded into the cellar wall. Defendant's workmen told plaintiff they would remove the fill pipe upon their return on the following morning, and when they returned the next morning the mysterious delivery of oil and subsequent flooding had occurred.

Plaintiff testified that after much investigation she had been unable to tell what oil company had made

[ 221 Pa. Super. Page 237]

    the unauthorized delivery. There was no indication that it had been delivered by Humble Oil Company.*fn2 There was also evidence that the outside cap of the intake pipe had a distinctive design of Humble Oil Company on it in order to prevent unauthorized or mistaken deliveries by other companies. The use of such designs or identifiable caps was a widespread custom in the industry so that no driver would usually or normally make a delivery to a place not bearing his company's cap. Since defendant knew of the Humble oil cap on the outside of the intake pipe and was further aware of the custom in the industry pertaining to the presence of such a cap, and coupled with the additional assurance of plaintiff's cancellation of further deliveries, we fail to see wherein defendant acted unreasonably when his crew left work late in the evening to return the next morning in order to complete their work.

Confronted with the knowledge of the above facts and information, defendant's conduct was completely reasonable under the circumstances. Vicarious liability should not be visited upon the defendant as a result of the unforeseeable negligence of a third person, simply because the identity of that person is unknown to the plaintiff. Accordingly, it is clear that the plaintiff did not establish a claim against the defendant with the requisite quantum of evidence from which a jury could reasonably conclude that the defendant acted negligently.

It is clear in this case that plaintiff has failed to establish her claim by a fair preponderance of the evidence.

[ 221 Pa. Super. Page 238]

    that the defendant's negligence was the proximate cause of the accident because such evidence outweighs. . . an inference that the defendant was not negligent or that his negligence was not the proximate cause of the accident", supra, p. 62. (Emphasis supplied.)

Applying these authorities and for the above reasons discussed, the judgment of the lower court in refusing to take off the non-suit is affirmed.


Judgment affirmed.

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