Appeal from the Judgment of the Court of Common Pleas, of Philadelphia County, at No. 8380 March Term, 1969. No. 969 October Term, 1976.
L. Carter Anderson, Philadelphia, for appellant.
Jonathan Wheeler, Philadelphia, with him Edwin L. Scherlis, Philadelphia, for appellees.
John J. Baulis, Philadelphia, for appellee, Sun Oil Co.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result.
[ 244 Pa. Super. Page 477]
In 1964, appellant converted appellee-Rubinstein's home furnace from gas to oil heat.*fn1 In 1967, the furnace failed to operate correctly, causing extensive soot damage throughout the house. Appellant contends that the evidence was insufficient to prove that it was negligent or that, if it were negligent, its negligence was the proximate cause of the damages to the plaintiff's home. Second, appellant claims that appellee-Sun Oil Company ("Sun" hereinafter), which serviced the furnace from March 1967, until the accident, should be found liable for its negligent maintenance of the furnace.*fn2
In 1964, appellant contracted with the plaintiffs to convert the gas burning furnace in their Bryn Mawr, Montgomery County home to an oil fired system. Appellant's service manager designed a system with two separate combustion chambers divided by a firebrick wall. Appellant subcontracted with a masonry firm to install the unit; after installation, however, appellant's service manager inspected the system and checked its operation. Appellant maintained plaintiffs' heating system until August, 1965. Plaintiffs then used the James Fuel & Supply Company,*fn3 from August, 1965, until March, 1967, when they contracted with Sun. During that period of
[ 244 Pa. Super. Page 478]
time, plaintiffs reported no malfunctioning of the system.
In December, 1967, the plaintiffs left home for a skiing vacation in the Poconos. Upon their return, they discovered the interior of their entire house covered with a film of soot and oil. As testified at trial by Mrs. Rubinstein, ". . . it was so thick that as you walked on the floor you left footprints, and if you put something down where there had been something on the table and you picked it up you would have a ring, everything was just greasy.
"Q. . . . -- when you say 'greasy,' --
"A. Oily. The oil had permeated the entire house.
"Q. . . . did you walk through every room?
"A. Yes. Well, I though first it was just on the first floor. Then we went through the first, to the second, third, and I opened doors and I was amazed to find my linens all covered with oil. Up on the third floor in the storage cedar closet, the closet I couldn't imagine how it got in there, but it was all covered with oil."
As a result, the plaintiffs had to discard almost all of their furniture and personal belongings and to renovate and redecorate their home.
The plaintiffs filed an action in trespass against appellant, James Fuel & Supply Co., and Sun, on April 1, 1969. Prior to trial, Sun and plaintiffs entered into a joint-tortfeasor settlement. At trial, Sun pleaded a release in which the plaintiffs reserved their rights against the other defendants, and agreed to a pro rata reduction of their damages should the factfinder hold both Sun and appellant liable. The parties waived a jury trial and trial commenced on June 3, 1975. The lower court found only appellant liable in the amount of $67,704.75. Appellant's exceptions were denied on December 31, 1975. This appeal followed.
[ 244 Pa. Super. Page 479]
Appellant challenged the sufficiency of the evidence to prove its negligence and to ...