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decided: March 16, 1979.


No. 935 April Term, 1977, Appeal from the Order Entered July 7, 1977, of the Court of Common Pleas of Butler County, Pa., Civil Division - Law, at A.D. No. C.P. 77-1185


Lee A. Montgomery, Butler, for appellants.

Lee C. McCandless, Butler, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, and Price and Hoffman, JJ., did not participate in the consideration or decision in this case.

Author: Spaeth

[ 264 Pa. Super. Page 371]

This is an appeal from an order denying appellants' motion for a new trial. Appellants were plaintiffs below, and appellee was defendant. Appellants argue that the trial judge erred in permitting appellee's expert witnesses to testify despite appellee's failure to give notice that they would testify, as required by a pre-trial conference order.

In 1973 appellants constructed a one story ranch type home in Butler County, Pennsylvania. John L. Brooks, an electrical contractor, installed an electric baseboard heating system designed and manufactured by appellee. On January 10, 1976, the house caught fire and was destroyed.

On August 6, 1976, appellants filed a complaint in trespass against appellee for the damages suffered as a result of the fire. The complaint was in three counts: Count I alleged that the heating system was defective and that appellee was strictly liable for the damages sustained as a result of this defect. Count II alleged that appellee was negligent in designing certain parts of the heating system, in using inferior materials, and in failing to adequately warn potential

[ 264 Pa. Super. Page 372]

    users of the fire hazards posed by the system. Count III alleged breach of express and implied warranties of the fitness of the unit. The damages demanded were $29,500.00.

On March 29, 1977, a pre-trial conference was held in the chambers of President Judge KIESTER. After preparing a statement containing a summary of appellants' theories of liability, the President Judge issued an order permitting an amendment to the demand for damages, and also providing that:

Plaintiff will make available to defendant a copy of the report of plaintiff's expert witness, together with the evidence that serves as the basis of the witnesses [ sic ] opinion as to the cause of the fire. Defendant will furnish plaintiff a copy of any oral or written report and opinion of its expert or experts. This should be done at least 10 days in advance of trial. Defendant will also furnish plaintiff with a list of all defense witnesses and any physical evidence that may be offered.

Reproduced Record at 8a.

Appellants amended their demand for damages to allege total damages of $53,086.14. Appellants claim that appellee did not provide any notice of expected testimony by expert witnesses, as required by the pre-trial order. No such notice is contained in the record.

The trial judge ordered a bifurcated trial. The jury was selected, and on May 19, 1977, the trial on liability began.

Appellants presented a video-tape deposition of an expert witness, Dr. Terry Hockenberry, a consulting engineer with a doctoral degree in electrical engineering. Dr. Hockenberry testified as follows. He examined appellants' home after the fire. By use of the "low point of the fire" method, he was convinced that the fire originated in the baseboard heating system in the master bedroom. He considered but ruled out other potential sources of the fire, including the wiring in the crawl space behind the wall of the bedroom. Having satisfied himself that the heater was the source of the fire, he examined it. He found it lying in the snow outside the house, where the firemen had thrown it during

[ 264 Pa. Super. Page 373]

    the fire. He compared the damaged unit with another similar unit found in another bedroom of the house, which had not been damaged by the fire. After partially disassembling the fire-damaged unit, he decided that the damages sustained by it demonstrated that the right end of the unit had reached a very high temperature, and that this was evidence of a malfunction in the system. He explained:

Q Now, Doctor, from your examination of that unit that you removed from the Gill property after the fire, can you tell us the nature of the malfunction that you have indicated occurred?

A Yes, what happened to this baseboard heater was that a fault condition developed where the heating element wire contacted the metal ground, electrical ground of the baseboard heater. The, let me describe just briefly how this heating unit is made. The unit is eight feet long and over most of those eight feet there is a tube made out of aluminum which is filled with a material which is insulating and then inside that is the actual heating element wire. On the outside of this aluminum tube are little fins that are about two inches square which are just slid over the tube and spaced about a quarter inch apart or a half inch apart over the entire section of the heating element of the unit. These little square fins are the heat radiators of the baseboard heating unit, and they radiate the heat which comes from the heating element inside this tube and they want, they radiate the heat to the outside. What occurred in this particular baseboard heater was at a point about a foot from the right end the element wire inside the unit contacted the aluminum tube which was immediately surrounding it and caused an electrical fault which resulted in this section at the right end of the baseboard heater it became extremely hot and started to melt the aluminum tube and the fins on that end and as shown in photograph twenty-two and probably other photographs where this heating element comes is supposed to be horizontal, toward

[ 264 Pa. Super. Page 374]

    the right end it dips down and is a distinct dip shown in photograph twenty-two where this heating element had become extremely hot as a result of this fault condition.

N.T. 33-34.

Dr. Hockenberry further testified that although the unit contained a thermostat, which should have shut down the system in the event of overheating, the contact of the wire in this case happened so suddenly, and the high temperature was reached so quickly, that the thermostat's reaction was too late to prevent the fire, which was caused when the extreme heat from the unit came in contact with ...

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