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ROYAL INDEM. CO. v. CITY OF ERIE

March 21, 1974

ROYAL INDEMNITY COMPANY et al.
v.
The CITY OF ERIE


Knox, District Judge.


The opinion of the court was delivered by: KNOX

In the early morning hours of July 23, 1970, a large fire occurred in the City of Erie, a third-class city under the laws of Pennsylvania, in which a large warehouse and commercial building known as the Schultz Building at 212 East Eighteenth Street, Erie, Pennsylvania, was totally destroyed, resulting in claimed losses to building, contents, and for business interruption of approximately $1,400,000. The building was owned by a realty corporation known as 212 Realty Company. The business operated on the premises was owned by the A.F. Schultz Company, a related corporation, which suffered loss of the contents and interruption of its business. The plaintiffs are insurance companies which insured these corporate entities against loss by fire.

 The fire had originally started in a building across the street on the south side of East Eighteenth Street known as the Hoffman Building. The blaze there was being actively fought by several municipal fire companies when the fire suddenly "erupted" and with great speed engulfed the whole building and immediately thereafter spread across the street to the Schultz Building on the north side of the street. The evidence indicates that strenuous efforts by the fire department were fruitless in attempting to stop this sudden burst of flame which jumped across the street. As a matter of fact, the fire hoses were burned and several pieces of fire equipment were destroyed or seriously damaged in this blaze and firemen barely escaped with their lives. The Schultz Building was protected by a fully operating sprinkler system and certain windows had been blocked up but nevertheless these precautions were inadequate to prevent the fire from jumping the street and destroying it. The suddenness and overwhelming character of the "eruption" were such as to give rise to a well founded suspicion of arson, but no arsonist has ever been brought to book.

 The plaintiffs did not contend that the City was negligent in fighting the fire. It was originally claimed that the City was negligent in not furnishing an adequate supply of water and not supplying sufficient water pressure to contain the fire but these grounds for recovery were not pressed at the trial. Instead, plaintiff relied on a claim that the Hoffman Building was unreasonably dangerous to the Schultz Building across the street, that it was a fire hazard and that the City Building Inspector should have required it to be rendered more secure or demolished it in enforcement of the Building Code of the City of Erie. It was further claimed the City should have required the removal of automobiles stored there.

 After nine days of trial (including part of a day for jury selection), the jury found for the defendant. The jury further answered certain Special Interrogatories as follows:

 
1) "Do you find that the Hoffman Building as it existed during the period September 7, 1969 to July 23, 1970 was in an unreasonably dangerous condition as a fire hazard which made it unreasonably dangerous to the Schultz Building? Answer: No."
 
4) "Do you find that the presence of any automobiles, that is, so called live autos as distinguished from burned hulks, in the Hoffman Building was a proximate cause of the spread of the fire in the Hoffman Building to the Schultz Building? Answer: No."

 The negative answers to these questions made it unnecessary for the jury to consider Interrogatory No. 2 as to the City's negligence in not removing the alleged hazard and No. 3 as to contributory negligence or assumption of the risk.

 The plaintiffs have now moved for a new trial alleging errors in selection of the jury, errors in limiting their expert testimony, errors in excluding certain building codes and certain errors with respect to the charge of the court. We will deal with the reasons presented in order.

 I. Errors with Respect to Selection of the Jury

 The case in question was a diversity action, the plaintiffs being foreign corporations without principal places of business within Pennsylvania. Hence, since the events complained of all occurred in Pennsylvania, Pennsylvania law applied to this law suit. Plaintiffs contend that City of Erie taxpayers should have been excluded from the jury.

 The Pennsylvania Statute with respect to this matter is found in 17 Purdon's Pa. Stats. 1173 (Act Apr. 16, 1840, P.L. 410) and reads as follows:

 
"No person shall be excluded from being a witness or juror in any suit, prosecution or proceeding in which any county, city, incorporated district, borough or township, is a party, or is interested, by reason of such person being, or having been an officer, rated citizen or inhabitant in such county, city, district, borough or township, or owning assessed or taxable property, or being liable to the assessment or payment of any tax therein."

 In Patterson Water Co. v. Mifflin Borough, 69 Pa. Super. 441 (1918), the citizens of the defendant borough were held to be qualified as jurors in a suit against the borough. To the same effect is Romig v. Allentown, 2 Leh. 277 (1905). See also Comm. v. ...


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