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HENRY ERSCHEN AND RITA ERSCHEN v. PENNSYLVANIA INDEPENDENT OIL COMPANY (10/27/78)

decided: October 27, 1978.

HENRY ERSCHEN AND RITA ERSCHEN, APPELLANTS,
v.
PENNSYLVANIA INDEPENDENT OIL COMPANY, DEFENDANT, AND CHARLES P. WIEAND, T/A CHARLES P. WIEAND, ADDITIONAL DEFENDANT



No. 979 October Term, 1977, Appeal from the Order Entered January 10, 1977 of the Court of Common Pleas of Northampton County--Civil Division--Law at No. 188 May Term, 1972.

COUNSEL

William J. McCarthy, III, Allentown, for appellants.

Robertson B. Taylor, Bethlehem, for appellee Pennsylvania Independent Oil Co.

Richard F. Stevens, Allentown, for appellee Wieand.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 259 Pa. Super. Page 475]

On September 20, 1970, appellants owned a motor transportation business which involved the taking of charter groups on excursions. In conjunction with this business, appellants owned five buses and a garage in which to store these vehicles. Appellant also owned real property on which four underground gasoline storage tanks were located. These tanks were installed by appellee, Pennsylvania Independent Oil Company. Appellee Charles P. Wieand was the individual responsible for connecting the two largest tanks.

An explosion occurred at appellant's business on September 20, 1970. Appellants sued appellees, contending that appellees were negligent in the installation of the gasoline tanks. At trial appellants called Trooper Thomas A. Marchetti to the stand to testify as an expert regarding the cause of the explosion. Appellants asked several questions of Trooper Marchetti in an effort to establish his expertise. The lower court, upon hearing Trooper Marchetti's credentials, ruled that the trooper did not qualify as an expert on explosions and held that this witness could not express an opinion as to the cause of the explosion. The witness was, however, permitted to relate to the court what he observed at the scene.

[ 259 Pa. Super. Page 476]

At the conclusion of the hearing, a compulsory non-suit was entered against appellants. Appellants take this appeal from the lower court's decision and argue that the lower court erred by not allowing Trooper Marchetti to offer his opinion as to the cause of the explosion at appellants' premises. A careful review of this case leads us to conclude that the lower court properly exercised its discretion and so we affirm.

The record discloses that on December 20, 1970, Trooper Marchetti was employed as the fire marshall for Northampton and Lehigh Counties and had been the fire marshall for about six months. As fire marshall, the trooper was responsible for the investigation of fires of undetermined origin and for inspection of gas stations for safety features. To qualify for this job, Trooper Marchetti assisted the former fire marshall, Sargent Wargo, with several investigations.

Trooper Marchetti was asked how many fires he had investigated prior to December 20, 1970; the trooper responded twenty to twenty-five. This witness was also asked what type of experience he had during his on-the-job training and he testified that he investigated fires in which the fire chief could not determine the origin. The trooper also said that he attended a two-day seminar in Hershey, Pennsylvania, concerning fire investigations. However, when Trooper Marchetti was asked if this seminar covered gas explosions, the trooper said that he couldn't recall.

Thereupon, Trooper Marchetti was asked if, during his on-the-job training, he had an opportunity to discuss gas explosions with Sgt. ...


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