J. A16023/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

CAROL MEERHOFF, INDIVIDUALLY,   :               IN THE SUPERIOR COURT OF
AND AS ADMINISTRATRIX OF THE    :                     PENNSYLVANIA
ESTATE OF JEREMY MEERHOFF,      :
DECEASED, AND STEVEN LITTLE,    :
AN ADULT INDIVIDUAL             :
                                :
                    Appellants  :
                                :
                v.              :
                                :
DALE McCRAY; JAMES McCRAY;      :
McCRAY ALUMINUM AND             :
BUILDER’S SUPPLY COMPANY, INC.; :
THE NORTHWESTERN RURAL          :
ELECTRIC CORPORATION AND        :
OHIO CORPORATION,               :
PENNSYLVANIA ELECTRIC COMPANY   :                    No. 1392 WDA 2016
T/D/B/A PENELEC, A WHOLLY OWNED :
SUBSIDIARY OF FIRST ENERGY      :


               Appeal from the Order Entered August 19, 2016,
                 in the Court of Common Pleas of Erie County
                  Civil Division at No. Docket No. 11079-2015


BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED: SEPTEMBER 29, 2017

      Appellants Carol Meerhoff, individually, and as Administratrix of the

Estate of Jeremy Meerhoff (“Mr. Meerhoff”), deceased, and Steven Little

(“Mr. Little”), plaintiffs in the court below, appeal the order entered August 19,




* Retired Senior Judge assigned to the Superior Court.
J. A16023/17

2016, granting summary judgment in favor of defendants/appellees.1          We

affirm.

      In the early morning hours of October 29, 2012, Mr. Meerhoff was killed

and Mr. Little was seriously injured in a devastating fire that consumed Donald

McCray’s 100-year-old farmhouse in Spartansburg. Mr. Little is Mr. McCray’s

grandson and had permission to use the residence; however, Mr. McCray was

not home at the time and was unaware that Mr. Little would be staying in the

farmhouse that night.

      Earlier that evening, Mr. Meerhoff and Mr. Little, both of whom had been

drinking heavily, drove recklessly around the property in Mr. McCray’s pickup

truck, damaging power lines and farm equipment. The cause of the fire was

never determined; however, appellants alleged, inter alia, that Mr. McCray

and McCray Aluminum were negligent for failing to install smoke detectors

and/or carbon monoxide (“CO”) monitors.

      The trial court determined that since Mr. McCray’s farmhouse was a

private, non-commercial residence, he had no legal duty to install and

maintain smoke detectors or CO monitors.         Appellants also alleged that

Pennsylvania Electric Co. (“Penelec”) was negligent for failing to properly mark

a guy wire on the property; however, the trial court determined that


1 Donald E. McCray died on May 4, 2017. On July 10, 2017, Dale McCray and
James McCray, Donald E. McCray’s sons and co-executors of his estate, made
application pursuant to Pa.R.A.P. 502(a) to substitute themselves for Donald
E. McCray as party-defendants/appellees. The application was granted on
August 30, 2017. The caption has been amended accordingly.

                                     -2-
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(a) appellants failed to demonstrate that the cause of the fire was electrical,

and (b) any negligence on the part of Penelec was far exceeded by

Mr. Meerhoff’s and Mr. Little’s wanton misconduct in driving drunk around the

property the night of the incident, damaging structures and electrical wires

including the guy wire which was attached to a yard pole.

      The trial court has set forth the history of this case as follows:

                   The instant matter is before the Pennsylvania
            Superior Court on the appeal of Carol Meerhoff,
            individually and as Administratrix of the Estate of
            Jeremy Meerhoff, deceased, and Steven Little, an
            adult individual (both hereafter referred to as
            “Appellant[s]”), from this Trial Court’s Opinion and
            Order dated August 19th, 2016. By said Opinion and
            Order dated August 19th, 2016, this Trial Court
            granted the individual Motions for Summary Judgment
            of Donald McCray, McCray Aluminum and Builder’s
            Supply Company, Inc., and Pennsylvania Electric
            Company, t/d/b/a Penelec, a wholly owned subsidiary
            of First Energy (hereafter referred to as “Appellees”)
            as this Trial Court concluded: (1) Appellants failed to
            demonstrate successfully a cause of action for
            negligence against Appellees Donald McCray, McCray
            Aluminum [] and [] Penelec []; (2) Within the ten [10]
            day time period allotted after the undersigned judge
            found Plaintiff[s’] proposed expert, James L. Glancey,
            Ph.D., unqualified as an [sic] relevant expert in this
            case by Order dated July 14th, 2016, Appellants failed
            to produce a new expert qualified to demonstrate
            (a) whether Appellee Donald McCray’s private,
            non-commercial residence was equipped with smoke
            detectors, and (b) whether the fire occurring at
            Appellee Donald McCray’s private, non-commercial
            residence was electrical in nature; (3) Appellants
            failed to adhere to the time restraints for filing
            responses to Appellee McCray Aluminum[]’s First Set
            of Requests for Admissions, pursuant to Pennsylvania
            Rule of Civil Procedure 4014(b), thereby admitting the
            allegations contained therein; (4) Appellants failed to


                                      -3-
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          produce sufficient evidence to “pierce the corporate
          veil” in order to hold Appellee McCray Aluminum []
          liable for Jeremy Meerhoff and Steven Little’s injuries;
          and (5) Appellants failed to demonstrate successfully
          the “negligence” of the Appellees was greater than the
          “wanton comparative negligence” of Jeremy Meerhoff
          and Steven Little, thereby barring Appellants’
          recovery.

          Procedural History

                 Appellants filed a Motion to Transfer Venue on
          April 1st, 2015, which was granted and the instant civil
          action was transferred to Erie County, Pennsylvania.

                Appellants filed a Praecipe for Writ of Summons
          and a Praecipe for Issuance for Rule to File Complaint
          on April 1st, 2015. Appellants filed a Complaint in Civil
          Action on April 1st, 2015. Appellee [] Penelec filed an
          Answer, New Matter and Cross-Claims on April 23rd,
          2015. Appellee McCray Aluminum [] filed an Answer,
          New Matter and Cross-Claim on May 22nd, 2015.
          Appellee Donald McCray filed an Answer, New Matter
          and Cross-Claim on May 26th, 2015.

                 By Stipulation on May 11th, 2015, all allegations
          against Appellee Donald McCray and McCray
          Aluminum [] for recklessness and punitive damages
          were withdrawn. By Stipulation on May 15th, 2015,
          First Energy Corporation was dismissed from the
          instant civil action. By Stipulation on December 21st,
          2015, Northwestern Rural Electric Cooperative
          Association, Inc. was also dismissed from the instant
          civil action.

                 Appellee [] Penelec filed a Motion to Strike
          Report of James L. Glancey on May 16 th, 2016.
          Appellants filed a Response to Defendant Penelec’s
          Motion on May 31st, 2016. Following a hearing on
          June 30th, 2016, this Trial Court rescheduled the
          hearing on Appellees’ Motions for Summary
          Judgment, originally scheduled for August 15th, 2016,
          to July 26th, 2016, by agreement of all counsel in order
          to expedite the hearing on Appellees’ Motions for


                                    -4-
J. A16023/17

            Summary Judgment, and this Trial Court deferred
            ruling on Appellee [] Penelec’s Motion to Strike Report
            of James L. Glancey.

                   Appellants presented a Motion for Clarification
            to this Trial Court in Motion Court on July 14th, 2016.
            At that hearing, this Trial Court, having heard
            argument and after reviewing relevant evidence,
            granted Appellee [] Penelec’s Motion to Strike Report
            of James L. Glancey and denied Appellants’ Motion for
            Clarification.

                   Appellee [] Penelec filed its Motion for Summary
            Judgment and a Brief in Support on June 2nd, 2016.
            Defendant McCray Aluminum [] filed its Motion for
            Summary Judgment and a Brief in Support on June
            7th, 2016. Defendant Donald McCray filed his Motion
            for Summary Judgment and a Brief in Support on June
            17th, 2016.      Following the hearing on Appellees’
            Motions for Summary Judgment on July 26th, 2016,
            and by Opinion and Order dated August 19th, 2016,
            this Trial Court granted Appellee[s’] individual Motions
            for Summary Judgment and dismissed Appellants’ civil
            action against the Appellees with prejudice.

                  Appellants filed a Notice of Appeal to the
            Pennsylvania Superior Court on September 15th,
            2016. This Trial Court filed its [Pa.R.A.P.] 1925(b)
            Order on September 19th, 2016. Appellants filed their
            Concise Statement of Errors Complained of on Appeal
            on October 10th, 2016.

Trial court opinion, 11/1/16 at 1-4.

      Appellants have raised the following issues for this court’s review:

            1.    Did the court err in finding that Appellee, Donald
                  McCray, does not have a legally recognized duty
                  to install smoke and/or carbon monoxide
                  detectors in his private, non-commercial
                  residence?

            2.    Did the court err in finding that Appellants
                  cannot prove Appellee, Donald McCray’s,


                                       -5-
J. A16023/17

                  private, non-commercial residence was not
                  equipped with working smoke detectors without
                  resorting to speculation?

            3.    Did the court err in finding Appellants failed to
                  adhere to the time restrain[t]s for responding to
                  Appellee McCray Aluminum[]’s First Set of
                  Requests    for    Admissions,     pursuant    to
                  Pennsylvania Rule of Civil Procedure 401[4](b)
                  as Appellee’s Requests for Admissions were
                  untimely?

            4.    Did the court err in finding Appellants did not
                  present sufficient evidence to “pierce the
                  corporate veil” in order to hold Appellee McCray
                  Aluminum [] liable for Mr. Meerhoff and
                  Mr. Little’s injuries?

            5.    Did the court err in striking Appellant[s’]
                  experts, James L. Glancey, Ph.D., P.E. and Jack
                  Vinson, Ph.D., P.E.?

            6.    Did the court err in finding Appellants have not
                  produced any relevant evidence from a qualified
                  electrical engineer to prove the fire occurring at
                  Donald McCray’s property on October 29, 2012
                  was electrical in nature?

            7.    Did the court err in finding Appellants have not
                  established a cause of action against Appellee
                  Penelec?

            8.    Did the court err in finding Mr. Meerhoff and
                  Mr. Little’s “wanton comparative negligence”
                  greatly exceeds the claims of negligence against
                  Appellee Penelec and thus bars recovery?

Appellants’ brief at 4-5.

            Summary judgment may be granted when the
            pleadings, depositions, answers to interrogatories,
            and admissions on file, together with the affidavits, if
            any, show that there is no genuine issue as to any
            material fact and that the moving party is entitled to


                                     -6-
J. A16023/17

              judgment as a matter of law. Pa.R.C.P. 1035(b),
              42 Pa.C.S.A. When considering a motion for summary
              judgment, the trial court must examine the record in
              the light most favorable to the non-moving party,
              accept as true all well-pleaded facts in the non-moving
              party’s pleadings, and give him the benefit of all
              reasonable inferences drawn therefrom. Dibble v.
              Security of America Life Ins., 404 Pa.Super. 205,
              590 A.2d 352 (1991); Lower Lake Dock Co. v.
              Messinger Bearing Corp., 395 Pa.Super. 456, 577
              A.2d 631 (1990). Summary judgment should be
              granted only in cases that are free and clear of doubt.
              Marks v. Tasman, 527 Pa. 132, 589 A.2d 205
              (1991). We will overturn a trial court’s entry of
              summary judgment only if we find an error of law or
              clear abuse of discretion. Lower Lake Dock Co.,
              supra.

DeWeese v. Anchor Hocking Consumer and Indus. Products Group,

628 A.2d 421, 422-423 (Pa.Super. 1993).

              It is well-settled that a party may not defeat a motion
              for summary judgment by relying on the allegations
              of his complaint.          Rather, he must present
              depositions, affidavits, or other acceptable documents
              that show there is a factual issue for a jury’s
              consideration. Brecher v. Cutler, 396 Pa.Super.
              211, 578 A.2d 481 (1990).

Id. at 424.

                     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. [Lackner v. Glosser, 892
              A.2d 21, 29 (Pa.Super. 2006)]; see Pa.R.C.P.
              1035.2.[Footnote 3] 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. Lackner, supra at 29[.]



                                       -7-
J. A16023/17

                 [Footnote 3] Rule 1035.2 provides:

                       After the relevant pleadings are
                       closed, but within such time as not
                       to unreasonably delay trial, any
                       party may move for summary
                       judgment in whole or in part as a
                       matter of law (1) whenever there is
                       no genuine issue of any material
                       fact as to a necessary element of
                       the cause of action or defense
                       which could be established by
                       additional discovery or expert
                       report, or

                       (2) if, after the completion of
                       discovery relevant to the motion,
                       including the production of expert
                       reports, an adverse party who will
                       bear the burden of proof at trial has
                       failed to produce evidence of facts
                       essential to the cause of action or
                       defense which in a jury trial would
                       require the issues to be submitted
                       to a jury.

                 Pa.R.C.P. 1035.2.

Jones v. Levin, 940 A.2d 451, 453-454 (Pa.Super. 2007).

                 To prevail in a negligence suit, the complaining
           party must prove four elements:

           1.    A duty or obligation recognized by law.

           2.    A breach of the duty.

           3.    Causal connection between the actor’s
                 breach of the duty and the resulting
                 injury.

           4.    Actual loss or      damage   suffered     by
                 complainant.



                                     -8-
J. A16023/17

              Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281,
              1286 (Pa.Super. 2005), appeal denied, 587 Pa. 731,
              901 A.2d 499 (2006) (citation omitted and emphasis
              removed).

Id. at 454.

      In their first issue on appeal, appellants argue that the trial court erred

in finding that Mr. McCray did not have a legal duty to install smoke detectors

and/or CO monitors in his private, non-commercial residence.              Appellants

argue that Mr. Meerhoff and Mr. Little had permission to be on the premises

and should be considered licensees. (Appellants’ brief at 18.) As licensees,

appellants contend that Mr. McCray had a duty to protect them from

unreasonable risks of foreseeable harm. (Id. at 19.) Appellants allege that

the presence of working smoke detectors/CO monitors would have allowed

them to escape the fire unscathed.

      Here, it is not disputed that Mr. Meerhoff and Mr. Little had permission

to use the farmhouse and were licensees.

              If a visitor to land is legally classified as a licensee,

                    A possessor of land is subject to liability
                    for physical harm caused to licensees by
                    a condition on the land if, but only if,
                    (a) the possessor knows or has reason to
                    know of the condition and should realize
                    that it involves an unreasonable risk of
                    harm to such licensees, and should expect
                    that they will not discover or realize the
                    danger, and (b) he fails to exercise
                    reasonable care to make the condition
                    safe, or to warn the licensees of the
                    condition and the risk involved, and ([c])
                    the licensees do not know or have reason


                                         -9-
J. A16023/17

                   to know of the condition and the risk
                   involved. Restatement (Second) of Torts
                   § 342.

            Liability will only be imposed if all of the criteria in
            § 342 are met. Miranda v. City of Philadelphia
            [166      Pa.Cmwlth.    181],   646    A.2d    71,   74
            (Pa.Commw[Cmwlth].Ct.1994).          As such, § 342
            initially requires that the possessor of the land have
            actual or constructive notice of the allegedly
            dangerous condition.

Alexander v. City of Meadville, 61 A.3d 218, 221-222 (Pa.Super. 2012)

(brackets in case citation in original).

      Appellants in their complaint alleged that Mr. McCray, in failing to install

smoke alarms and CO monitors, failed to comply with state, federal, county,

and local building codes, rules, and regulations. However, as the trial court

observed, “[Appellants] have failed to provide any statutory authority or case

law requiring Defendant McCray to install [smoke alarms or CO] detectors in

his private, non-commercial residence.” (Opinion and Order, 8/19/16 at 3-

4.)   As appellee Mr. McCray points out, while there are numerous state

statutes requiring smoke detectors and CO monitors in day-care facilities,

assisted-living residences, schools, new multi-unit construction, etc., there

are no statutes or regulations requiring a homeowner to install smoke

detectors or CO monitors in his private, non-commercial residence.           (Mr.

McCray’s brief at 14-15.)

      Similarly, appellants have failed to cite any authority for the proposition

that failure to install smoke alarms and/or CO detectors constituted a



                                      - 10 -
J. A16023/17

“dangerous condition” for purposes of Section 342.          In the court below,

appellants relied on Echeverria v. Holley, 142 A.3d 29 (Pa.Super. 2016),

appeal denied, 2017 WL 1078606 (Pa. 2017), and appeal denied, 2017 WL

1078750 (Pa. 2017), in which this court held that a landlord is under a duty

to maintain his rental property in a safe condition which includes the provision

of smoke detection devices. Id. at 36. We agree with the trial court that

Echeverria is distinguishable because it involved a landlord’s duty to his

tenant. (Trial court opinion, 11/1/16 at 6.) Here, Mr. McCray was the owner

of a private, non-commercial residence.       (Id.)   Mr. Meerhoff and Mr. Little

were not his tenants.     Therefore, Echeverria is not controlling.        Again,

appellants have cited no statutory or decisional authority for the proposition

that the owner of a private, non-commercial residence has a duty to install

and maintain smoke detectors or CO monitors. This is a question better left

to the legislature, and in the absence of such authority, we decline to impose

such a duty on owners of private residences.

      Next, appellants argue that the trial court erred in finding that appellants

failed to prove that Mr. McCray’s farmhouse was not equipped with working

smoke detectors/CO monitors without resorting to speculation.         Appellants

claim that there was a genuine issue of material fact as to whether or not

functioning smoke detectors/CO monitors existed at the time of the fire.

(Appellants’ brief at 22.) However, as the trial court noted, the issue is moot

because we have already determined that Mr. McCray was under no legal duty



                                     - 11 -
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to install and maintain smoke detectors/CO monitors in his private, non-

commercial residence. (Opinion and Order, 8/19/16 at 5.) Whether there

were actually working smoke detectors/CO monitors in the farmhouse is

irrelevant in light of the fact that Mr. McCray had no duty to install them in

the first place.

      Appellants’ next two issues on appeal relate to their claims against

McCray Aluminum.     First, appellants complain that the trial court erred in

finding that they failed to respond to McCray Aluminum’s request for

admissions, and therefore, pursuant to Pa.R.C.P. 4014, the matters raised

therein were deemed admitted.      “. . . Pa.R.C.P. 4014(b) provides that all

matters raised in a request for admissions are deemed admitted when a party

fails to respond to the request within 30 days.” Thomas v. Elash, 781 A.2d

170, 177 (Pa.Super. 2001); Innovate, Inc. v. United Parcel Serv., Inc.,

418 A.2d 720, 723 (Pa.Super. 1980) (“A party on whom requests for

admissions of fact are served runs the risk that the facts as set forth in the

request for admissions will be conclusively binding on him if he chooses not

to file an answer to the request for admissions or file objections to the

request.”).

      Instantly, McCray Aluminum served its First Set of Requests for

Admissions on the plaintiffs on March 17, 2016, three days before expiration

of the discovery time period. Appellants failed to respond by filing answers or

objections.    Therefore, the matters in McCray Aluminum’s requests for



                                    - 12 -
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admissions were deemed admitted, including that Mr. McCray was the sole

owner of the property, that McCray Aluminum had no ownership interest in

the property, and that McCray Aluminum did not design, construct, or

maintain the farmhouse.    This was a proper basis for McCray Aluminum’s

motion for summary judgment. See Innovate, 418 A.2d at 724 (defendant

properly relied on unanswered requests for admissions of fact filed under

Pa.R.C.P. 4014 as a basis for a motion for summary judgment (citations

omitted)). While appellants complain that McCray Aluminum’s requests for

admissions were filed only 3 days before the discovery deadline, they have

waived any objection by not responding.

     In their second issue relating to McCray Aluminum, appellants argue

that the trial court should have “pierced the corporate veil” to hold

McCray Aluminum liable. Even assuming that this doctrine somehow applies

as asserted by appellants, we do not need to address this issue because we

have already determined that Mr. McCray had no duty to install smoke

detectors/CO monitors in his private, non-commercial residence.              If

Mr. McCray had no duty to do so, certainly McCray Aluminum had no duty

either. Furthermore, to the extent appellants alleged in their complaint that

McCray Aluminum was responsible for installing faulty wiring, appellants’

failure to respond to McCray Aluminum’s requests for admissions results in

those facts being admitted, including that no employee of McCray Aluminum

was involved in the design, construction, or maintenance of the farmhouse.



                                   - 13 -
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     We now turn to appellants’ issues regarding Penelec. In their fifth issue

on appeal, appellants claim that the trial court erred in striking the expert

report of James L. Glancey, Ph.D., P.E., and Jack Vinson, Ph.D., P.E.     We

disagree.

                  The admission of expert testimony is a matter
            committed to the discretion of the trial court and will
            not be disturbed absent an abuse of that discretion.
            Commonwealth v. Walker, 625 Pa. 450, 92 A.3d
            766, 772 (2014). An abuse of discretion “is not
            merely an error of judgment, but if in reaching a
            conclusion the law is overridden or misapplied, or the
            judgment exercised is manifestly unreasonable, or the
            result of partiality, prejudice, bias or ill-will, as shown
            by the evidence or the record, discretion is abused.”
            Id. at 772-73 (citation omitted).

Nobles v. Staples, Inc., 150 A.3d 110, 113 (Pa.Super. 2016).

     Pennsylvania Rule of Evidence 702 provides:

            A witness who is qualified as an expert by knowledge,
            skill, experience, training, or education may testify in
            the form of an opinion or otherwise if: (a) the expert’s
            scientific, technical, or other specialized knowledge is
            beyond that possessed by the average layperson; (b)
            the expert’s scientific, technical, or other specialized
            knowledge will help the trier of fact to understand the
            evidence or to determine a fact in issue; and (c) the
            expert’s methodology is generally accepted in the
            relevant field.

Pa.R.E. 702.

            The determination of whether a witness is a qualified
            expert involves two inquiries:

                  When a witness is offered as an expert,
                  the first question the trial court should ask
                  is whether the subject on which the
                  witness will express an opinion is so


                                      - 14 -
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                   distinctly related to some science,
                   profession, business or occupation as to
                   be beyond the ken of the average layman.
                   . . . If the subject is of this sort, the next
                   question the court should ask is whether
                   the      witness    has     sufficient    skill,
                   knowledge, or experience in that field or
                   calling as to make it appear that his
                   opinion or inference will probably aid the
                   trier in his search for truth.

Wexler v. Hecht, 847 A.2d 95, 99 (Pa.Super. 2004), affirmed, 928 A.2d

973 (Pa. 2007) (quotation marks and citations omitted; ellipsis in original).

“In other words, ‘it may appear that the scope of the witness’s experience and

education may embrace the subject in question in a general way, but the

subject may be so specialized that even so, the witness will not be qualified

to testify.’” Id., quoting Dambacher v. Mallis, 485 A.2d 408, 419 (Pa.Super.

1984), appeal dismissed, 500 A.2d 428 (Pa. 1985) (additional citations

omitted).

      Appellants sought to introduce the expert report of Dr. Glancey and

Dr. Vinson to prove that the fire was electrical in origin and that there should

have been a reflective marker on the guy cable. According to Dr. Glancey,

after the pickup truck hit the service pole, the guy cable deflected significantly,

resulting in a substantial tensile or pulling force in the service wires connecting

the pole to the transformer. Dr. Glancey opined that the dislodgment of the

transformer on Mr. McCray’s property caused an electrical surge into the

farmhouse, energizing all outlets and appliances in the house with excess

voltage and causing an electrical fire. (RR at 678-679.)


                                       - 15 -
J. A16023/17

      Neither Dr. Glancey, nor Dr. Vinson, who also signed the report, is an

electrical engineer.   Rather, they are mechanical engineers.        Mechanical

engineering is a separate and distinct discipline which involves the design,

production, and operation of machinery and equipment, e.g. for the

manufacturing industry.     There is nothing to suggest that Dr. Glancey or

Dr. Vinson have the necessary training, education, or experience to testify as

experts in the fields of electrical engineering and/or fire cause and origin. The

trial court permitted appellants ten days in which to identify a new expert in

electrical engineering and/or fire cause/origin and they failed to do so.

(Opinion and Order, 8/19/16 at 8.) The report of their other expert, Deborah

A. Waller, P.E., failed to indicate that the fire was electrical in nature. (Id.)

In fact, the state fire marshal, Pennsylvania State Trooper Dennis R.

Lindenberg, was unable to determine the cause of the fire despite a thorough

investigation. (Id.) Therefore, appellants failed to provide an expert report

from a qualified electrical engineer to prove that the cause of the fire was

electrical. (Id.)

      In addition, although not binding precedent, the trial court noted that in

a similar case from Cambria County, Dr. Glancey was precluded from

testifying as an expert witness regarding electrical distribution systems

because he did not possess the requisite knowledge, skill, training, or

experience in the field of electrical engineering. (Trial court opinion, 11/1/16

at 13.) We find that the trial court did not abuse its discretion in precluding



                                     - 16 -
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Dr. Glancey, a mechanical engineer, from offering expert testimony in the

fields of electrical engineering and/or fire cause/origin.

      Finally, appellants argue that the trial court erred in finding that the

wanton misconduct of Mr. Meerhoff and Mr. Little greatly exceeded any

possible negligence that could be attributed to Penelec, thus barring recovery.

The trial court determined that any potential recovery would be barred by

Pennsylvania’s comparative negligence statute, which provides, in relevant

part, as follows:

            (a)     General rule.--In all actions brought to recover
                    damages for negligence resulting in death or
                    injury to person or property, the fact that the
                    plaintiff may have been guilty of contributory
                    negligence shall not bar a recovery by the
                    plaintiff or his legal representative where such
                    negligence was not greater than the causal
                    negligence of the defendant or defendants
                    against whom recovery is sought, but any
                    damages sustained by the plaintiff shall be
                    diminished in proportion to the amount of
                    negligence attributed to the plaintiff.

42 Pa.C.S.A. § 7102(a). “Pennsylvania’s comparative negligence statute does

not bar recovery by the plaintiff as long as the plaintiff’s causal negligence is

not greater than that of the defendant.” Terwilliger v. Kitchen, 781 A.2d

1201, 1209 (Pa.Super. 2001).

            [W]hen willful or wanton misconduct is involved,
            comparative negligence should not be applied. Our
            primary reason for so holding is the longstanding
            distinction Pennsylvania courts have made between
            willful or wanton conduct and negligent conduct.




                                      - 17 -
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                  Wanton conduct has been defined as
           “something different from negligence, however gross,
           different not merely in degree but in kind and evincing
           a different state of mind on the part of the tort
           feasor[.”] Kasanovich v. George, 348 Pa. 199, 203,
           34 A.2d 523, 525 (1943); Zawacki v. Pennsylvania
           Railroad Company, 374 Pa. 89, 97 A.2d 63 (1953);
           Geelen v. Pennsylvania Railroad Company, 400
           Pa. 240, 161 A.2d 595 (1960); Stubbs v. Frazier,
           [454 A.2d 119 (Pa.Super. 1982)].             “Negligence
           consists of inattention or inadvertence, whereas
           wantonness exists where the danger to the plaintiff,
           though realized, is so recklessly disregarded that,
           even though there be no actual intent, there is at least
           a willingness to inflict injury, a conscious indifference
           to the perpetration of the wrong.” Kasanovich,
           supra at 203, 34 A.2d at 525. Wanton misconduct

                 . . . means that the actor has intentionally
                 done an act of an unreasonable character,
                 in disregard of a risk known to him or so
                 obvious that he must be taken to have
                 been aware of it and so great as to make
                 it highly probable that harm would follow.
                 It usually is accompanied by a conscious
                 indifference to the consequences.

           Prosser, Torts § 33 at 151 (2d ed. 1955) cited in
           Evans [v. Philadelphia Trans. Co., 212 A.2d 440,
           443 (1965)]; Moss v. Reading Company, 418 Pa.
           598, 212 A.2d 226 (1965). Antonace [v. Ferri
           Contracting Co., Inc., 467 A.2d 833 (Pa.Super.
           1983)]. See also 57 Am.Jur.2d § 102.

Krivijanski v. Union R. Co., 515 A.2d 933, 936-937 (Pa.Super. 1986)

(footnote omitted).

     This court does not disagree with appellants that, ordinarily, questions

of comparative negligence are for the jury.         (Appellants’ brief at 38.)




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However, this is surely one of those rare cases where summary judgment on

the issue of comparative negligence is appropriate.2 As the trial court stated:

                   Furthermore, the evidence is clear that
            Mr. Meerhoff and Mr. Little’s actions are significantly
            greater than the cause of action for negligence against
            Defendant Penelec. First, Mr. Meerhoff and Mr. Little
            had been consuming alcohol the evening before the
            incident, with Mr. Meerhoff beginning to drink around
            6:00 p.m. and Little beginning to drink around 9:00
            p.m. After they had run out of beer, Mr. Meerhoff and
            Mr. Little left around 1:00 -- 1:30 a.m. to buy more
            beer. Sometime after, Mr. Meerhoff and Mr. Little
            arrived at Donald McCray’s property. While at Donald
            McCray’s property, Mr. Meerhoff and Mr. Little were
            “race tracking like in a racecar form” and “whipping
            doughnuts and going in circles.” During this time,
            Mr. Meerhoff and Mr. Little “hit something.” Several
            photographs were taken at the scene after the fire by
            Corporal Matthew Bly, and these photographs
            depicted tire tracks, damaged electrical wires, a
            damaged hay wagon and other significant levels of
            vandalism.      Several photographs depicted some
            power lines lying on the ground and the electrical
            transformer hanging on the power pole with several
            cables torn off. According to the Coroner’s Toxicology
            Report to Police Agency, Mr. Meerhoff’s Blood Alcohol
            Content (“BAC”) was .244%, three (3) times the legal
            limit of .08%. Thereafter, Mr. Meerhoff and Mr. Little
            entered Donald McCray’s residence, at which time
            Mr. Little indicated the “lights were on.” Mr. Meerhoff
            and Mr. Little “wrestled around” for around fifteen
            (15) minutes before going to bed. The actions of
            Mr. Meerhoff and Mr. Little rise far above the level of
            negligence Plaintiffs have alleged against Defendant

2 At any rate, since the trial court properly excluded the expert report of
Dr. Glancey and Dr. Vinson, appellants failed to prove the cause of the fire
and that it was electrical in origin. Mr. McCray did not observe any damage
or malfunction of any electrical equipment on his property on October 28,
2012, the day before the fire, nor did he notify Penelec of any damage, defect,
or malfunction of any electrical equipment. Therefore, appellants failed to
state a claim against Penelec. (Opinion and Order, 8/19/16 at 9.)

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J. A16023/17

            Penelec, which, as indicated above, is minimal, if not
            absent completely.      Therefore, Plaintiffs’ claims
            against Defendant Penelec are barred due to the
            actions of Mr. Meerhoff and Mr. Little on October 28th,
            2012.

Opinion and Order, 8/19/16 at 9-10 (citations to the record omitted).

      We agree. To the extent appellants could demonstrate a cause of action

for negligence against Penelec, it was drastically exceeded by their own willful

and wanton misconduct. There is no error here.

      As we find the trial court did not err in granting summary judgment for

the defendants/appellees and dismissing appellants’ complaint with prejudice,

we will affirm.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2017




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