J-S32029-16


                                  2016 PA Super 146

NATIONWIDE MUTUAL FIRE INSURANCE                  IN THE SUPERIOR COURT OF
COMPANY A/S/O RONALD STRUNK                             PENNSYLVANIA

                            Appellant

                       v.

MODERN GAS

                            Appellee                  No. 2953 EDA 2015


                     Appeal from the Order August 19, 2015
                In the Court of Common Pleas of Monroe County
                    Civil Division at No(s): No. 5667-CV-2011

BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

OPINION BY MUNDY, J.:                                  FILED JULY 08, 2016

        Appellant, Nationwide Mutual Fire Insurance Company a/s/o Ronald

Strunk (Nationwide), appeals from the August 19, 2015 order granting

summary judgment against it on its breach of contract and negligence

claims. After careful review, we reverse.

        The facts and procedural history of this case are as follows.

Nationwide provided a fire and commercial general liability insurance policy

to Strunk.     Nationwide’s Complaint, 7/29/11, at ¶ 2.    The policy insured

Strunk’s commercial real estate building. Id. at ¶ 4. Strunk leased the first

floor of the building to Mike Coppola, who operated his restaurant, Coppola’s


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S32029-16


Pizzeria, in the space. Id. The pizzeria contained two pizza ovens, which

ran on liquid propane.

      On August 31, 2009, Modern Gas serviced the pizza ovens because the

oven did not turn on when the pilot was lit. Id. at ¶ 5. An invoice from that

date indicates that Modern Gas cleaned the pilot and adjusted the

thermocouple.   Nationwide’s Memorandum of Law in Opposition to Modern

Gas’s Motion for Summary Judgment, 8/14/15, at Exhibit D. The next day,

Modern Gas returned because a “fire ball came out of oven.” Id. Modern

Gas “vacuume [sic] oven and clean burners.”        Id.   The invoice indicated

“[t]here was a leak @ ¾ union. I fixe [sic] it.” Id.

      On September 28, 2009, a fire started in the pizzeria, caused by a

malfunction of the gas pizza ovens.     Nationwide’s Complaint, 7/29/11, at

¶ 6. The fire caused damages in the amount of $158,811.03. Id. at ¶ 8.

Pursuant to the insurance policy, Nationwide covered the loss and paid those

damages to Strunk. Id. at ¶ 9.

      On July 29, 2011, Nationwide brought this subrogation action against

Modern Gas, seeking to recover the $158,811.03 that it paid to Strunk. Id.

at ¶ 9.   Nationwide’s complaint contained two counts, one for breach of

contract, and one for negligence.     Relevant to this appeal, the complaint

averred that Modern Gas was negligent in various ways, including failing to

inspect the oven, improperly repairing the oven, and failing to perform a

leak test after it completed the repairs. Id. at ¶ 16.


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         Nationwide retained an expert, Michael Zazula, an engineering

consultant at IEI Consulting, Inc.         In October and December of 2009, and

March and April of 2015, Zazula examined the pizza ovens and their

components four times to determine the cause of the fire. In his April 22,

2015 report, prepared following his inspections, Zazula explained that, in

December 2009, he examined the oven and “determined the pilot valve for

the top oven was open, allowing [gas to] flow through the pilot, regardless

of whether or not there was a flame present on the thermocouple.” Zazula

Report, 4/22/15, at 4.1        Zazula further noted that “[t]his condition would

reveal itself as a leak within the oven, near the pilot, when a leak test was

conducted.” Id. On April 16, 2015, Zazula conducted radiograph testing to

determine the cause of the leak in the pilot valve.            Id. at 5.   “The

radiographs clearly revealed the valve was disassembled and a screw was

inserted into the pilot valve to forcibly keep the valve open to allow gas

flow.”    Id.   Zazula concluded, “to a reasonable degree of engineering and

scientific certainty,” that “Modern [Gas]’s failure to properly conduct a leak

test, consistent with the [National Fire Protection Association (NFPA)] 54




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1
  We note that the expert report does not contain pagination. For ease of
review, we have assigned each page a corresponding page number.



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standard,[2] is the primary cause of the incident[.]”     Id. at 6.   Further,

Zazula opined that “[h]ad Modern [Gas] complied and followed the NFPA 54

standard they would have detected the leak from the pilot valve and would

have averted this incident.” Id. at 6.

       On July 16, 2015, Modern Gas filed a motion for summary judgment.

On August 14, 2015, Nationwide filed its response. On August 19, 2015, the

trial court entered an order, accompanied by a memorandum opinion,

granting Modern Gas’s motion for summary judgment on both the breach of

contract count and the negligence count.          On September 16, 2015,

Nationwide filed a timely notice of appeal.3

       On appeal, Nationwide presents the following issue for our review.

              1. Did the [t]rial [c]ourt err as a matter of law or
                 abuse its discretion in granting summary
                 judgment and finding that Nationwide Mutual Fire
                 Insurance could not prove its negligence claim?

Nationwide’s Brief at 3.4



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2
  NFPA 54, section 8.1.5.3 states “[w]here leakage or other defects are
located, the affected portion of the piping system shall be repaired or
replaced and retested.” Zazula Report, 4/22/15, at 2.
3
  Nationwide and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.      Specifically, the trial court’s Rule 1925(a)
statement refers us to its August 19, 2015 memorandum.
4
  Nationwide does not argue that the trial court erred in granting summary
judgment on its breach of contract claim.



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      The   following   standard   and   scope   of   review   applies   to   our

consideration of this issue.

                  As has been oft declared by [our Supreme]
            Court, “summary judgment is appropriate only in
            those cases where the record clearly demonstrates
            that there is no genuine issue of material fact and
            that the moving party is entitled to judgment as a
            matter of law.” Atcovitz v. Gulph Mills Tennis
            Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002); Pa.
            R.C.P. No. 1035.2(1). When considering a motion
            for summary judgment, the trial court must take all
            facts of record and reasonable inferences therefrom
            in a light most favorable to the non-moving party.
            Toy v. Metropolitan Life Ins. Co., 928 A.2d 186,
            195 (Pa. 2007). In so doing, the trial court must
            resolve all doubts as to the existence of a genuine
            issue of material fact against the moving party, and,
            thus, may only grant summary judgment “where the
            right to such judgment is clear and free from all
            doubt.” Id. On appellate review, then,

                  an appellate court may reverse a grant of
                  summary judgment if there has been an error
                  of law or an abuse of discretion. But the issue
                  as to whether there are no genuine issues as
                  to any material fact presents a question of law,
                  and therefore, on that question our standard of
                  review is de novo. This means we need not
                  defer to the determinations made by the lower
                  tribunals.

            Weaver v. Lancaster Newspapers, Inc., 926 A.2d
            899, 902-03 (Pa. 2007) (internal citations omitted).
            To the extent that this Court must resolve a question
            of law, we shall review the grant of summary
            judgment in the context of the entire record. Id. at
            903.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (parallel

citations omitted).


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           Thus, our responsibility as an appellate court is to
           determine whether the record either establishes that
           the material facts are undisputed or contains
           insufficient evidence of facts to make out a prima
           facie cause of action, such that there is no issue to
           be decided by the fact-finder. If there is evidence
           that would allow a fact-finder to render a verdict in
           favor of the non-moving party, then summary
           judgment should be denied.

Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1223 (Pa. Super. 2012) (citations

omitted), appeal denied, 65 A.3d 412 (Pa. 2013), quoting Reeser v. NGK

N. Am., Inc., 14 A.3d 896, 898 (Pa. Super. 2011) (citations omitted).

     In order to hold a defendant liable for negligence, the plaintiff must

prove the following four elements: (1) a legally recognized duty that the

defendant conform to a standard of care; (2) the defendant breached that

duty; (3) causation between the conduct and the resulting injury; and (4)

actual damage to the plaintiff.   Ramalingam v. Keller Williams Realty

Group, 121 A.3d 1034, 1042 (Pa. Super. 2015).

     The issue in this case is whether Nationwide presented sufficient

evidence to allow the fact-finder to conclude that Modern Gas’s negligence

was the proximate cause of the fire. This Court has explained the principles

guiding our review of a trial court’s decision to grant summary judgment on

proximate cause as follows.

           It is the function of the court to determine the
           questions of causation in cases in which a jury could
           not reasonably differ. RESTATEMENT (SECOND) OF TORTS
           § 434(1)(c). As Dean Prosser explains:




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                  If the facts bearing upon the issue of causation
                  in fact are not in dispute and reasonable
                  persons could not differ about the application
                  of the legal concept of causation in fact, the
                  court determines that issue. But if reasonable
                  persons might differ, either because relevant
                  facts are in dispute or because application of a
                  legal concept (such as a “substantial factor”
                  formulation) is an evaluative determination as
                  to which reasonable persons might differ, the
                  issue is submitted to the jury with appropriate
                  instructions on the law ….

            Prosser, The Law of Torts § 45 (5th ed. 1984).

            The focus of our inquiry is therefore whether the
            court was correct in finding as a matter of law that
            legal causation was not present. Where relevant
            facts are not in dispute and the remoteness of the
            causal connection between the negligence of the
            original actor and the injury is so clear, the issue
            becomes one of law. Clevenstein v. Rizzuto, 266
            A.2d 623 (Pa. 1970). Summary judgment is proper
            where facts are undisputed and only one conclusion
            may reasonably be drawn from them. Gans v.
            Mundy, 762 F.2d 338 (3d Cir. 1985) and Colloi v.
            Philadelphia Electric Co., 481 A.2d 616 (Pa.
            Super. 1984).

Askew By Askew v. Zeller, 521 A.2d 459, 463 (Pa. Super. 1987) (parallel

citations omitted); accord Summers, supra at 1164 (collecting cases

holding proximate cause is a jury question when reasonable minds may

differ).

      Nationwide contends that the trial court disregarded its expert’s report

concluding that the report of the fireball that precipitated the September 1,

2009 service call was consistent with the presence of a screw holding the

pilot valve in the oven open. Nationwide’s Brief at 17. Further, Nationwide’s

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expert concluded that the explosion was caused, in part, by Modern Gas’s

negligence in not performing a leak test after servicing the oven on

September 1, 2009 repairs. Id. at 18.

      Here, the trial court granted summary judgment in favor of Modern

Gas because it reasoned that Nationwide did not establish that Modern Gas’s

failure to conduct a leak test was the proximate cause of the explosion and

fire. Trial Court Opinion, 8/19/15, at 4. The trial court found “[t]here was

no evidence presented upon which a jury could find that the screw was in

the valve when the September 1 servicing was completed[]” because the fire

did not occur until September 28. Id. Instead, the trial court posited that

“[i]f the valve was tampered with after the service call, Modern Gas’s failure

to perform the gas line test discussed by [Nationwide]’s expert would not

have mattered.” Id. at 4-5.

      In reaching its conclusion, the trial court refused to defer to the expert

report of Zazula, presented by the non-moving party.

                  It has long been Pennsylvania law that, while
            conclusions recorded by experts may be disputed,
            the credibility and weight attributed to those
            conclusions are not proper considerations at
            summary judgment; rather, such determinations
            reside in the sole province of the trier of fact, here, a
            jury. Miller v. Brass Rail Tavern, Inc., 664 A.2d
            525, 528 (Pa. 1995); In re Estate of Hunter, 205
            A.2d 97, 102 (Pa. 1964) (“The credibility of
            witnesses, professional or lay, and the weight to be
            given to their testimony is strictly within the proper
            province of the trier of fact.”). Accordingly, trial
            judges are required “to pay deference to the
            conclusions of those who are in the best position to

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           evaluate the merits of scientific theory and technique
           when ruling on the admissibility of scientific proof.”
           Grady v. Frito–Lay, Inc., 839 A.2d 1038, 1045
           (Pa. 2003) (citing Frye v. United States, 293 F.
           1013 (D.C. Cir. 1923)).

                 At the summary judgment stage, a trial court
           is required to take all facts of record, and all
           reasonable inferences therefrom, in a light most
           favorable to the non-moving party. Toy, [supra].
           This clearly includes all expert testimony and reports
           submitted by the non-moving party or provided
           during discovery; and, so long as the conclusions
           contained within those reports are sufficiently
           supported, the trial judge cannot sua sponte assail
           them in an order and opinion granting summary
           judgment. Contrarily, the trial judge must defer to
           those conclusions, see Grady; Frye, and should
           those conclusions be disputed, resolution of that
           dispute must be left to the trier of fact. Miller,
           [supra].

Summers, supra at 1161 (parallel citations omitted).

     Here, the trial court erred in assessing the credibility of the expert

report and concluding it carried no weight.    The trial court found that a

reasonable jury could not conclude the screw was present in the pilot valve

at the time of Modern Gas’s service call on September 1, 2009 because of

the time that elapsed between that date and the September 28, 2009

explosion. Trial Court Opinion, 8/19/15, at 5. The trial court reasoned that

the remoteness in time negated the possibility that the screw was in the

pilot valve the entire time. Id. The trial court improperly usurped the role

of the jury by evaluating the evidence to decide the motion for summary

judgment. See Summers, supra; Askew, supra.


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        Viewed in the light most favorable to Nationwide, the non-moving

party, Zazula’s expert report would permit a reasonable jury to conclude

that the screw was present on September 1, 2009, and Modern Gas’s

negligence was the proximate cause of the fire.        In his report, Zazula

detailed how he discovered the screw that was holding the pilot valve open,

allowing gas to freely flow out.      Zazula Report, 4/22/15, at 4-5.      He

explained that was consistent with the fireball that Coppola reported on

September 1. Id. at 5. Zazula plainly stated that “[h]ad a leak test been

properly conducted by Modern during their September 1, 2009 service call

when they discovered a leak in the top oven, they would have determined

this leak as well.” Id. Further, the report concludes that “Modern’s failure

to properly conduct a leak test … is the primary cause of the incident.” Id.

at 6.    Zazula’s report concludes that the screw was in the pilot valve on

September 1 and the open pilot valve caused the September 28 explosion.

Accordingly, there is evidence in the record that would allow a jury to render

a verdict in favor of Nationwide, and the trial court erred in concluding that

the jury could not find proximate causation as a matter of law.           See

Summers, supra; Babb, supra.

        For these reasons, we conclude that the trial court erred in granting

summary judgment. Consequently, we reverse the August 19, 2015 order

granting summary judgment and remand for further proceedings consistent

with this opinion.


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     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2016




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