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ROGER O'MALLEY v. PEERLESS PETROLEUM (12/29/80)

filed: December 29, 1980.

ROGER O'MALLEY
v.
PEERLESS PETROLEUM, INC., MICHAEL PREGNAR, BRINTON J. RICHARDS AND THE SEWER AUTHORITY OF THE CITY OF SCRANTON V. DOLEN MORROW AND ROSE MORROW, HIS WIFE, LEONARD BERGAMINO AND FRANK SANTARSIERO, INDIVIDUALLY AND D/B/A SANTARSIERO & SONS PLUMBING & HEATING CO. APPEAL OF THE SEWER AUTHORITY OF THE CITY OF SCRANTON. ROGER O'MALLEY V. PEERLESS PETROLEUM INC., MICHAEL PREGNAR, BRINTON J. RICHARDS AND THE SEWER AUTHORITY OF THE CITY OF SCRANTON V. DOLEN AND ROSE MORROW, LEONARD BERGAMINO, FRANK SANTARSIERO, INDIVIDUALLY AND T/A SANTARSIERO SONS PLUMBING AND HEATING CO. APPEAL OF PEERLESS PETROLEUM INC.



No. 2654 October, 1978, No. 2658 October, 1978 Appeal from the Order of the Court of Common Pleas of Lackawanna County, Civil Division, at No. 48 September Term, 1975.

COUNSEL

Michael J. Donahue, Scranton, for appellant at Nos. 2654 and 2658.

Robert W. Munley, Scranton, for O'Malley, appellee.

Joseph P. Lenahan, Scranton, for Peerless Petroleum at No. 2654 and for Pregnar, at No. 2658.

Cody H. Brooks, Scranton, for Richards, at No. 2654 and Sewer Co., at No. 2658.

Cercone, President Judge, and Watkins, and Hoffman, JJ.

Author: Cercone

[ 283 Pa. Super. Page 277]

The instant appeals come to us from the Court of Common Pleas of Lackawanna County. The original defendants, Peerless Petroleum, Inc., (hereinafter, Peerless) and the Scranton Sewer Authority (hereinafter, Sewer Authority), joined several additional defendants, among them Frank Santarsiero, Sr. d/b/a Santarsiero and Sons Plumbing & Heating Company (hereinafter, Santarsiero & Sons). The Sewer Authority also filed a cross-claim against Peerless, seeking indemnity in the event that it should be held liable as against the plaintiff-appellee, O'Malley. Trial began November 9, 1977 before President Judge Conaboy and lasted eleven working days. The jury was charged as to the defendants' negligence, the plaintiff's lost wages, his loss of future earnings, his past medical expenses, and the cost of future cosmetic surgery. Judge Conaboy did not charge the jury as to the plaintiff's possible contributory negligence, nor did he submit to them the Sewer Authority's cross-claim against Peerless. He also directed a verdict in favor of Santarsiero & Sons. After four and one-half hours of deliberation, the jury returned a verdict for O'Malley in the amount of $400,000 against Peerless and the Sewer Authority, jointly and severally. The Sewer Authority moved alternatively for judgment n. o. v. or for a new trial. Peerless also moved for a new trial. All post-trial motions were denied by the court en banc, from which denial Peerless and the Sewer Authority bring their appeals.

On June 5, 1973, while in the process of connecting a sewer line from the house of Dolen and Rose Morrow to a lateral sewer line owned by the Sewer Authority, Roger O'Malley, an apprentice plumber with his stepfather's plumbing concern, Santarsiero & Sons, was transformed for a brief excruciating moment into a human torch by the explosion of gasoline fumes which had collected in the main

[ 283 Pa. Super. Page 278]

    sewer line and the trench in which he was working. As a result of the explosion, the plaintiff suffered severe burns of the arms, upper torso and head, including the reduction in the size of his ears by one-third.

Two months before this unfortunate incident, Leonard Bergamino had struck a gasoline pump at a Citgo service station, owned by Peerless and operated by Michael Pregnar, damaging both the pump and pipes connecting it with the subterranean storage tanks. Brinton J. Richards was called upon to repair the damage but his work was apparently inadequate and the pipes continued to leak gasoline into the ground beneath the station. Between the date of repair and June 5, 1973 approximately 12,000 gallons of gasoline leaked from the pump and pipes without detection by Peerless or Pregnar. A substantial quantity of this gasoline found its way into the sewer system by way of a crack in the sewer line at a manhole (No. 39) in the immediate vicinity of the station. During the same two-month period the Sewer Authority received reports of gasoline fumes coming from the sewer lines in that area of Scranton. It dispatched teams to investigate the reports on several occasions but each time they checked the line in question they stopped short of manhole No. 39. The Sewer Authority concluded that the gasoline was the result of periodic dumping and not of a leak into the system. On the day of the explosion there was an odor in the area where O'Malley was working, but neither he nor any of the other Santarsieros thought it anything unusual, although as plumbers they had been trained to be wary of peculiar odors because of the explosive nature of sewer gas.

I

APPEAL OF PEERLESS PETROLEUM, INC.

Peerless first assigns as error the directed verdict in favor of Santarsiero & Sons. Peerless contended that Santarsiero

[ 283 Pa. Super. Page 279]

& Sons knew or should have known of the danger of working in an area where gasoline fumes were present.*fn1 We stated the law pertaining to directed verdicts succinctly in Stephens v. Carrara, 265 Pa. Super. 102, 401 A.2d 821 (1979).

[ 283 Pa. Super. Page 280]

"In our Commonwealth, it has long been held that only in a case where the facts are all clear, and there is no room for doubt, should the case be removed from the jury's consideration, and a motion for directed verdict or binding instructions be granted. Cox v. Equitable Gas Co., 227 Pa. Super. 153, 324 A.2d 516 (1974). Thus, before granting a directed verdict, the court must accept as true all facts and proper inferences from the testimony which tend to support the contentions of the party against whom the motion has been made, and further, must reject all testimony and inferences to the contrary. Liuzzo v. McKay, 396 Pa. 183, 152 A.2d 265 (1959); Continental Supermarket Page 280} Food Service, Inc. v. Soboski, 210 Pa. Super. 304, 232 A.2d 216 (1967)."

Id., 265 Pa. Super. 105, 401 A.2d at 822.

Peerless bases its argument in part on the testimony of Rose Morrow.*fn2 Mrs. Morrow testified that she saw a man in black work-clothes get out of a Santarsiero & Sons truck and that shortly afterward she saw him holding a torch. She testified that she had not seen the man before, nor was she able to identify any of the Santarsiero workers as the man-in-black. She did not see him after the accident, and she could not testify that she saw him or anyone else carry a torch, or other lighted object, into the trench. Peerless further contends that there was an odor of gasoline in the air at the time of the explosion. Anthony Arbochus testified that he smelled gasoline shortly before the accident, but Arbochus was several houses away from the accident site when he smelled the odor, rather than in the immediate vicinity. O'Malley and the other Santarsieros testified that there was an odor present, but they testified that it smelled like sulfur or coal and not like gasoline. From their experience and training such an odor indicated no danger. Applying the test set out in Stephens, we find the evidence which tends to support Peerless' contention together with the inferences properly drawn therefrom insufficient to make out a question for the jury. We conclude that the directed verdict in favor of Santarsiero & Sons was proper.

We are next asked to consider whether it was error to allow the jury to consider O'Malley's future earnings' loss. Peerless' argument is that there was not sufficient evidence to place the issue of the loss of future earnings before the jury. We think otherwise. In order to collect for the loss of future earnings, a plaintiff must establish that his economic horizon has been shortened. Peerless cites as authoritative the case of Bochar v. J. B. Martin Motors, 374 Pa. 240, ...


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