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EDWARD B. WERNER AND SCARLETT O. WERNER v. QUALITY SERVICE OIL COMPANY (12/28/84)

decided: December 28, 1984.

EDWARD B. WERNER AND SCARLETT O. WERNER, HUSBAND AND WIFE AND GLADYS WERNER, EXECUTRIX OF THE ESTATE OF STANLEY G. WERNER, APPELLANTS,
v.
QUALITY SERVICE OIL COMPANY, INC. AND EDWARD B. WERNER AND SCARLETT O. WERNER, HUSBAND AND WIFE, APPELLEES



No. 2431 Philadelphia, 1982, Appeal from Judgment of the Court of Common Pleas, Civil Division, of Northampton County, No. 1980-C-7805.

COUNSEL

Armin Feldman, Palmerton, for appellants.

April Cordts, Allentown, for appellees.

Cavanaugh, Wieand and Cirillo, JJ.

Author: Wieand

[ 337 Pa. Super. Page 267]

Edward B. Werner and his father, Stanley G. Werner, owned a mobile home as tenants in common. The mobile home was occupied by Edward Werner and Scarlett Werner, husband and wife, who owned the contents of the home as tenants by the entireties. On December 29, 1978, the mobile home and its contents were destroyed by fire. On the prior day, December 28, 1978, a Coleman furnace which

[ 337 Pa. Super. Page 268]

    heated the mobile home had been serviced by Quality Service Oil Co., Inc. (Quality). In an action by Edward and Scarlett Werner and by the executrix of Stanley Werner's estate, in which it was alleged that Quality had negligently serviced the heater, a jury found causal negligence and apportioned it as follows: Quality -- 30%; Edward Werner -- 45%; Scarlett Werner -- 25%. The jury also found, apparently because of a misunderstanding regarding its duties, that no damages had been sustained. Post-verdict motions were dismissed, and judgment was entered on the verdict. This appeal followed.

Although appellants argue that the jury's findings were contrary to the weight of the evidence, they have failed to provide us with a transcript of all the evidence. Only appellant's testimony has been transcribed; the testimony of Quality's witnesses was not transcribed and is not available for review.

From the record available to us, it appears that on the day preceding the fire, the furnace did not function properly. When Edward Werner discovered a puddle of oil at the base of the burner, he called Quality, which promptly sent a repairman. While the repairman was working, Edward observed that fuel oil appeared to be leaking in the interior of the furnace. After the repairman had departed, the furnace appeared to function properly. For sleeping purposes that night, the thermostat was turned down to 60 degrees F. Although Edward heard the furnace running during the night, the mobile home was cold when he arose about 5:00 a.m. Not only was the furnace not operating properly, but oil had again accumulated at the base of the burner. Therefore, Edward turned off the thermostat, cleaned up the oil, and again called Quality. Scarlett, who worked nights, returned home about 7:30 a.m. Edward instructed her not to turn on the furnace until Quality's repairman arrived. Scarlett told Edward that it was too cold in the trailer and turned on the furnace. She left shortly thereafter to go to

[ 337 Pa. Super. Page 269]

    the store. A short time later, Edward observed smoke emanating from the air vents and again turned off the furnace. Then he saw flames coming from the base of the furnace. As he attempted to extinguish the flames, he discovered fire under the floor of the mobile home. The ensuing fire destroyed the home and all its contents. The trial court found that the jury's findings were not contrary to the weight of the evidence. We find no reason to disagree.

It is also contended that the trial court erred in five instances in which it declined to read to the jury points for charge which appellants had submitted. The refusal to give a proper instruction requested by a party is ground for a new trial only if the substance thereof has not otherwise been covered by the trial court's general charge. Butler v. DeLuca, 329 Pa. Super. 383, 390, 478 A.2d 840, 844 (1984). In this case the duty of care owed by Quality's employees was adequately covered by the court's instructions to the jury. Therefore, the ...


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