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decided: March 23, 1984.


No. 227 PITTSBURGH, 1982, Appeal from the Judgment in the Court of Common Pleas, Civil Division, of Allegheny County, No. GD77-25675, Issue No. 108344.


Barbara Clements, Pittsburgh, for appellants.

Patrick R. Riley, Pittsburgh, for General Electric, appellee.

Michael W. Burns, Pittsburgh, for Levin Furniture, appellee.

William David Geiger, Pittsburgh, for Robertshaw, appellee.

Rowley, Wieand and Hester, JJ.

Author: Per Curiam

[ 327 Pa. Super. Page 60]

Appellants, Donald F. Swartz and Norma H. Swartz, his wife, bring this appeal from the granting of compulsory non-suits as to the three appellees.

[ 327 Pa. Super. Page 61]

Our standard of review in an appeal from a compulsory non-suit is as follows:

"On appeal from a compulsory non-suit the plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiff's favor. A compulsory non-suit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion." Paul v. Hess Bros., 226 Pa. Super. 92, 94-95, 312 A.2d 65, 66 (1973) (citations omitted). In a trespass case, a plaintiff need not exclude every other reasonable possibility that could have caused the accident. "It is not necessary, under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability." Jones v. Treegoob, 433 Pa. 224 [225], 230, 249 A.2d 352, 355 (1969). See also Cornell Drilling Company v. Ford Motor Company, 241 Pa. Super. 129, 135, 359 A.2d 822, 825 (1976).

Employing this standard, the evidence elicited at trial established the following:

On December 12, 1973, Mr. Swartz began cooking oxtail soup on the range manufactured by appellee General Electric. The range had been purchased from appellee Sam Levin Furniture on February 13, 1973, and was under a one year warranty from General Electric. Mr. Swartz started the cooking process at approximately 1:45 to 2:00 p.m. planning to permit the soup to come to a hard boil and then to simmer for an additional four to five hours or until "tender."

At approximately 2:40 p.m., the Swartzes left their home. Prior to leaving, Mr. Swartz checked the soup and found it to be simmering properly. Mr. Swartz also indicated that he had on many previous occasions left the oxtails on simmer and had left the residence.

Sometime between 3:30 to 4:00 p.m. on this day, James Fox, the Assistant Fire Chief for the New Stanton Volunteer

[ 327 Pa. Super. Page 62]

Fire Company, spotted smoke rising from the direction of the Swartzes' residence. Mr. Fox then proceeded to the residence and upon arrival, observed that the residence was engulfed in smoke.

After the fire was extinguished, Mr. Fox returned to the dwelling to make an inspection. He found the family room and the kitchen to be almost completely destroyed while the remainder of the house was charred except for the basement which had been virtually untouched.

Carl Metz, a fire investigator for the Pennsylvania State Police, also investigated the fire. Trooper Metz testified that he had been a fire investigator for approximately twenty-one years and that during this time taught at several fire schools. Upon completing his investigation, Trooper Metz made the following conclusions:

"The fire in incident is believed to have started in the first floor kitchen of the one to two story log framed house and then spread from that area to the complete first floor of the house. This house originally was a two-story log cabin-type house, and is presently a one-story frame with aluminum siding section added along with a carport. The house was heated with a fuel oil furnace which was located in the basement. A complete house and antique furniture had been recently gone over. [sic]

A check was made of the wiring and it was found to be in good condition. There was signs of shortening of wiring in the kitchen and the living room. [sic] The fuses in the fuse box were checked and found to be blown, and in the back were signs of arcing. Holes in the area of the floor above the hot water tank and burned down through the floor and not up through the floor. [sic]

Another thing was found on the electric range had been on at the time of the fire. [sic] A hole was burned through in front of the electric range down through the floor, and all the shelves burned off above the electric range were in the area of the range."

[ 327 Pa. Super. Page 63]

Appellants' final witness was Timothy Pudlo. Mr. Pudlo, an electrical nuclear and aerospace engineer, had been employed by Pittsburgh Testing Laboratories for ten years. Prior thereto, his employment record included service with Bendix Corporation as a guided missile engineer, and at Westinghouse as an aerospace and nuclear engineer. Also, during employment with Pittsburgh Laboratories, Mr. Pudlo worked as a manufactured electrical wiring inspector and in this role had examined and tested the electrical wiring in ranges so as to insure their safety. In addition, Mr. Pudlo's employment experience encompassed the investigation of fires, their origins, and causes. Mr. Pudlo is a registered engineer in Pennsylvania and Illinois, and is a member of the Institute of Electric and Electronic Engineers and the National Fire Protection Association.

Appellants' trial counsel, so as to elicit an expert opinion as to the origin of the fire, asked the following hypothetical question based upon facts adduced from the appellants' prior witnesses:

Q. Mr. Pudlo, I'm going to rephrase the hypothetical question I've asked you and change a few of the facts that I'd like you to assume. Would you please assume the following sets of facts please: The Swartz home caught on fire December 12, 1973, between 2:40 p.m. and 4:39 p.m. The Swartzes' home was a residential building of log construction with a frame addition. The frame addition contained interior wooden paneling and exterior aluminum siding. That no one was in the Swartzes' home when the fire occurred. That a pot of oxtail soup ...

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