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FRANK MARLOWE AND CAROL MARLOWE v. LEHIGH TOWNSHIP (02/19/82)

decided: February 19, 1982.

FRANK MARLOWE AND CAROL MARLOWE, APPELLANTS
v.
LEHIGH TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Northampton County in case of Frank Marlowe and Carol Marlowe v. Lehigh Township, No. 354 January Term, 1978.

COUNSEL

Richard J. Orloski, Stamberg, Caplan & Calnan, for appellants.

Michael P. Shay, with him Richard E. Santee, Jr., Sigmon & Ross, P.C., for appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers. Judge Palladino did not participate in the decision in this case. Dissenting Opinion by Judge Mencer.

Author: Rogers

[ 64 Pa. Commw. Page 589]

Frank and Carol Marlowe appeal from an order of the Court of Common Pleas of Northampton County refusing to take off a compulsory non-suit entered at the close of their case in chief in an action in three counts naming as defendant the Township of Lehigh and seeking recovery of damages sustained to the Morlowes' real property and to the person of Frank Marlowe as a result of the township's alleged acts of negligence, trespass, and breach of contract.*fn1

[ 64 Pa. Commw. Page 590]

In reviewing the refusal to take off a non-suit, we must assess the evidence in the light most favorable to the appellants, resolving every conflict in their favor, and giving them the benefit of every reasonable favorable inference. Engle v. Spino, 425 Pa. 254, 256-257, 228 A.2d 745, 746 (1967); Strother v. Binkele, 256 Pa. Superior Ct. 404, 409, 389 A.2d 1186, 1188 (1978); Omrcanin v. Hassler, 8 Pa. Commonwealth Ct. 224, 225, 302 A.2d 878, 879 (1973). Viewed in this light the appellants' evidence was to the following effect.

In March, 1972, the Marlowes purchased a parcel of land in Lehigh Township on which they constructed a single family detached residence. Shortly thereafter they became aware that, as a consequence of heavy rains, a considerable volume of surface water, collected and channelled by the township's Third Street which came to a dead end at the property boundary, would occasionally flow over the property. Alarmed by the proximity to his home of the storm water flow, Mr. Marlowe approached the township supervisors and requested assistance. Specifically, Marlowe suggested that a drain be installed at the end of Third Street and that the runoff water be there collected. However, after conducting an inspection, the supervisors determined that the most feasible method of alleviating the condition complained of was simply to concentrate and redirect the flow farther from the residence by means of a storm drainage system consisting of a catch basin, a pipe running underneath Third Street, and a drain and headwall at the terminus of the pipe (the precise

[ 64 Pa. Commw. Page 591]

    nature of the latter two of these components are not altogether clear in the testimony) all to be located beyond the Marlowe property. It was then agreed that the township would perform the work necessary to accomplish this objective and that, in return, the Marlowes would convey to the township an easement for drainage purposes describing by metes and bounds that portion of their property over which the township had indicated the storm water was to flow on completion of the work. Thereafter, the drainage system described above was constructed at the direction of the township supervisors and an easement for drainage purposes encumbering the Marlowe property was duly recorded on February 20, 1973.

Throughout the next several years the Marlowes became increasingly exercised by the failure of the drainage system to direct storm water over that portion of the property described in the deed of easement and by the tendancy of the flowing water as it was in fact directed to erode their lawn and to create, as they described it, a ditch some two feet or more in width and, at least in some sections, fifteen inches or more in depth. On several occasions Mr. Marlowe attended public meetings of the township supervisors and expressed his disappointment with the failure of the system to perform as anticipated. In late March, 1976, Mr. Marlowe was showing a friend the water flowing across his lawn in the ditch of the water's creation when the ground, apparently undermined by the flow, gave way and Mr. Marlowe fell into the ditch assertedly sustaining injuries to his back and head.

In count one of their Amended Complaint the Marlowes allege that the township was negligent in that its

     construction of the catch basin . . . at Third Street and the piping of the water run-off toward the easement on the Marlowe property

[ 64 Pa. Commw. Page 592]

    was faulty and improper [and that the township thereafter] failed to make reasonable alterations or repairs of such defects.

At trial appellants called Franklin G. Trenge, a "realtor and real estate developer" with formal training in mechanical engineering, to testify as an expert concerning the design of the storm drainage system. After hearing direct and cross-examination on the matter of Mr. Trenge's expertise the trial judge ruled him unqualified as an expert on drainage system design. Appellants first argue that this ruling was erroneous.*fn2

The question of whether a particular witness qualifies as an expert is a matter for the trial judge, Abbott v. Steel City Piping Company, 437 Pa. 412, 263 A.2d 881 (1970); Griffith v. Clearfield Truck Rentals, Inc., 427 Pa. 30, 233 A.2d 896 (1967), and his decision on this matter will be reversed only for a clear abuse of discretion. Erschen v. Pennsylvania Independent Oil Company, 259 Pa. Superior Ct. 474, 477, 393 A.2d 924, 926 (1978) (authorities collected).

"An expert witness has been defined as a person who possesses knowledge not within the ordinary reach and who, because of this knowledge is specially qualified to speak upon a particular subject. Steele v. Sheppard, 411 Pa. 481, 192 A.2d 397 (1963); Simmons v. Mullen, 231 Pa. Superior Ct. 199, 331 A.2d 892 (1974)." Id. It is not necessary that an expert witness possess all of the knowledge within his special field of

[ 64 Pa. Commw. Page 593]

    endeavor. However, a witness who demonstrates by his own testimony that he has no experience or special knowledge of the matter at issue is incompetent as an expert. Steele v. Sheppard, 411 Pa. at 484, 192 A.2d at 398. On cross-examination Mr. Trenge conceded that his undergraduate training was in the field of mechanical, not civil, engineering and that his work ...


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