*1 555 Burkett, Thus, we hold supra. v. supra; Commonwealth trial court’s support sufficient evidence there was a reason- proved beyond that the Commonwealth conclusion operating that her had actual notice appellant able doubt suspended. privilege affirmed.
Judgment sentence 806
682A.2d ERDOS, Administrator of the Estate John Erdos, Deceased, Appellant, Kelly
v. CO., Sell, E. VALLEY PETROLEUM Gerald BEDFORD Repair, Allied Tank & Truck and Trailer Sell Appellees. Equipment Company, Trailer Pennsylvania. Superior Court of 1, Argued May 1996. Aug.
Filed 15, 1996. Rehearing Oct. Denied *2 Pittsburgh, appellant. Adamczyk, John A. appellees. Pittsburgh, Louis C. Long, HESTER, POPOVICH, JJ. EAKIN and Before *3 POPOVICH, Judge: Court of Common order1 of the to review the
We are asked against non-suit a County granting compulsory Blair Pleas of Erdos, Es- John Administrator the plaintiff/appellant, Erdos, affirm. We Kelly tate of Deceased. case was discloses that this review the record
Our complaint subsequent a of summons and a by initiated writ as he was Kelly Erdos death following work-related in a at di- tanker-truck compartment inside a welding Sell, Truck and G.E. Sell of his employer/G.E. rection d/b/a by Allied Tank & Repair. The vehicle was assembled Trailer Valley Petro- by owned Bedford Equipment Company, Trailer repair by Erdos. While Company leum maintenanced and torch, welding of a use being performed work was to Erdos’ compartment from adjoining emitted an fumes were explosion area, fumes caused an sparks ignited work Erdos. killing Bedford and against suit estate instituted
Erdos’ filed to complaint Sell, which an amended following August 1995. Record No. judgment to on 1. reduced The order was included Allied as an additional defendant. Sell and his filed company preliminary objections which dismissed each suit exclusivity from the because of the Workmen’s Likewise, compensation Act. See Record No. 20. Allied’s preliminary objections resulted in removal the litiga- its from tion, granted but Bedford’s preliminary objections were part to allow only liability the strict of the prong plaintiffs suit to to proceed trial. the plaintiff completed Once his case-in- chief, a motion for compulsory was granted. non-suit Post- denied, trial motions were raising and this ensued appeal claim that the court in excluding plaintiffs expert erred from testifying concerning “on matters which procedures are safer and meet necessary applicable to standard of care providing when a tank which previously had contained flam- liquid (gasoline) Appellant’s mable Brief welding.” at i. It is well established this Commonwealth stan- qualification dard for an expert witness is a liberal one. The test to be when applied qualifying expert an witness is any whether the witness had pretension spe- reasonable to knowledge cialized on the under subject investigation. If does, he he may testify weight and the to to given be such testimony is the trier It is determine. also of fact well established a qualified that witness be may render on expert opinion based training experience. For- mal education subject on the testimony matter is not nor required, necessary is it expert that an be licensed practitioner medical testify respect mat- organic ters. It is not a necessary prerequisite that the be possessed of all given field, in a knowledge only that *4 he possess knowledge more than is within otherwise ordinary range training, knowledge, of intelligence or expe- rience. Tavern, Inc., 525,
Miller v. Brass Rail 541 Pa. A.2d 664 (Citations (1995) added). omitted; 528 emphasis bar, (W.T. In plaintiffs the case at Niggel), in prior retiring open firm, 1991 to his consulting own had employed thirty-nine years been in industry the chemical for a major producer (Mobay). chemical responsibilities His includ- safety and ser- corporation’s transportation managing ed vices; to-wit: activi- response emergency and control of all
Coordination ], to hazardous system[ response centralized highly ties of transportation incidents. materials Transporta- Department to all for adherence Responsible for Also corporate responsible on a basis. regulations tion the Hazard Communica- regulations they apply as OSHA Safety Date concerning labels and Material tion Standard Sheet distribution. specifications for the lease and construction
Responsible tank-trucks, (railcars, and special service equipment all bulk containers). semi-bulk distribution generation control and
Administrative and Materiel products, labels drummed cautionary all Data distribution customers. Safety Sheet Also, the page at Expert’s Plaintiffs Curriculum Vitae See textile background studying consisted expert’s educational Philadelphia Technical Institute and assort- at the engineering Universi- “at UMKC and Northwestern courses non-degree ed Statistics, Engineering, Manage- in Chemical Chemistry, ty, Further, data regulatory Id. at 9. Logistics.” ment and Agency and the by the Environmental Protection promulgated gener- regarding Pennsylvania Department Transportation of hazard- ating, transporting disposal and of residual amounts expertise within the and knowledge ous material were also at 3-4. the witness. Id. that,
Lastly, report, Niggel proffered his W.T. industry’s his of the chemical standards knowledge based on transportation handling of hazardous flam- regarding the chemicals, failing inspect Bedford was liable mable skill, experience knowledge and G.E. Sell’s premises (i.e., gasoline). transporting liquids tanks flammable repairing Id. at 1-2. pre- on the accident Engineer’s Report
Interestingly, that steam plaintiffs expert agreed for Bedford pared proce- repair of the tank should have occurred before cleaning *5 560 begun. Similarly,
dures were Id. at 3. the Report joined the plaintiffs expert holding that Sell “G.E. should have been equipped with [testing, breathing ap- and some work-related paratus], Thus, and should have used them.” Id. the at Report’s opined author that the direct cause of the explosion death safety resultant of Erdos “was the lack of adequate by Mr. precautions supervision Erdos and the manage- and/or ment of Sell Truck & Repairs during Trailer the welding process.” at 12. Id. Bedford’s absence from and control over the work site and repair exempted the manner of it from liability. Id. We make reference to Bedford’s Engineering Report to show that practices procedures the highlighted by plaintiffs expert were not by discounted Bedford’s report. two The versions of what occurred were consistent save for the variance as to the responsibility factor. Inc.,
In Montgomery v. South Philadelphia
Group,
Medical
(1995),
Pa.Super.
441
Sub listed as one of his respon- his during sibilities work history Mobay be “[r]es- all specifications [and] the ... construction pons[ibility] ... tank service special equipment included] [which bulk *6 trucks____” (Em- Expert of Plaintiffs Curriculum Vitae See of added). the Therefore, couples length one when phasis knowledge safety industry in chemical service the materials and involving hazardous in the business procedures service, the used for specialty of tank-trucks construction (exhib- (W.T. qualified as Niggel) witness plaintiffs knowledge on the specialized pretension ited reasonable on testimony give subject investigation) under industry. petroleum hazardous materials the topic the as an expert qualify failure to witness The trial court’s Miller, supra; Mont- See constituted an abuse discretion. gomery, supra.
Nonetheless, failure establish plaintiffs with the (Second) Torts 388 of the Restatement Section elements no case-in-chief, i.e., reason “ha[d] the defendant in his that supplied is will for use the chattel those whose believe that condition”, grant of the non-suit its dangerous realize Miller, we find the specifically, More supra. See warranted. regard law and facts this of the trial court on the remarks own; our to-wit: be as adopted are accurate and shall granted is for ... Nonsuit Compulsory Motion following reasons: of Torts Sec- B of the Restatement That Subsection those
ond, 388, “... no reason that Section has to believe danger- its applied is will realize whose use chattel not been has met and has even ous condition” not been The Court relies Plaintiff in the evidence. by reached Plaintiff called first witness that on the OSHA against Sell place work violations were G.E. indicated all the place for those violations. they responsible work were it that was Mr. Mr. Franklin testified Manager, Sell’s G.E. all the compart- to steam clean responsibility Kelly Erdos’ ments, indicating dangerous Sell knew thus that G.E. all required cleaning is steam why they and that condition prior one month truck prior repair, The compartments. by Valley Company on of Bedford Petroleum to this behalf Sell, welding inside of the tank as the testimony presented.
2. That repair welding by such truck interior is a reason Bedford Petroleum to Valley believe that Sell Erdos and/or would alleged dangerous realize the conditions of the truck.
3. That safety requirements of steam cleaning compartments in and of forth on itself as set the work orders that have been made to in testimony reference this that was required prior welding to the is and of itself enough to give they them notice that would have reason to believe that Sell Erdos would realize the alleged and/or dangerous conditions of the tank. The checking by further witness, if albeit called as on the Plaintiff cross as chief, part of Foor the case that Mr. testified that he *7 gas/fuel companies checked with other truck about the repairs repair facility prior sending and the to the Defen- dant’s in for repair finally, trucks and that the dangerous readily condition required by was discoverable as the vari- ous case laws.
Therefore, law, matter requirements as a of the of Section 388 of the Restatement of Torts Second have not been reached Compulsory granted. and the Nonsuit is May 24,1995. Court Order dated Accordingly, the despite trial court’s commission of in error excluding the opinion testimony of the plaintiffs expert, we find pales that such in comparison error the plaintiffs failure to disprove that the decedent aware of dangers was the welding associated with performing, the work he was which (Second) fact Section undermines the 388 Restatement Torts claim justifies entry and affirmance of the of a compul- See, Miller, sory e.g., non-suit. supra.
Order affirmed. HESTER, J., a files Concurring Dissenting Statement. HESTER, dissenting. concurring and Judge, to the effect that majority I with of the finding concur of William testimony excluding court the trial erred Niggel, expert witness. appellant’s majority
I portion dissent from respectfully non-suit. compulsory of the grant which affirms prove appellee, appellant The had failed trial court ruled not aware reason to believe decedent was Valley, Bedford had of a used to tank truck dangers welding involved part on the duty so was no gasoline, there transport involved. Valley dangers warn of the Bedford graduate of Al- old recent eighteen-year was an Decedent experience or train- He had no High toona School. Vo-Tech was herein. He ing welding involved type knowledge, experience welder. He had neither the entry-level Decedent job welding safely. or equipment perform compart- grinding inside one of four process was in the Valley tank-truck. within the fuel tank of Bedford ments An explosion had steam cleaned. compartment That been in the wall adjacent compartment, blowing occurred decedent. compartments, killing appellant’s separating decedent way ascertaining no whether Naturally, there is danger was aware of involved. testimony rejected by appellant
The offered proper practices court to establish the necessary trial *8 distribution business petroleum course conduct trucks regard handling empty to the of and tank preparing new appellant I trial. welding repairs. grant would