*4 NIX, C.J., Before LARSEN, and FLAHERTY, jj. McDERMOTT, ZAPPALA, CAPPY, and PAPADAKOS THE COURT OF OPINION PAPADAKOS, Justice.* into Zinsser entered and Janice of 1984 Edmund
In March pro- Company which Butler Petroleum with agreement an gas- Zinsser’s refurbish Butler Petroleum would vided gasoline with it, among things, other station, fitting oline tanks, a for the pumps and tanks, plumbing appropriate sign, complete and a a Texaco imprinter, credit card Texaco In pattern. Texaco following the scheme painting exterior products purchase petroleum return, the Zinssers would of time. Addi- length a certain Petroleum for from Butler clause which indemnity contained an agreement tionally, provided: to exonerate, discharge, agree and ... Zinssers]
[The Petrole- indemnify harmless and protect and save [Butler loss, for claims for liability and all any ... from um] or persons property casualty or other damage, injury fire, explosion leakage, by any caused or occasioned ... in, imperfection occurring through any casualty or other installation, use, to, of the damage byor reason injury or equipment of the said operation repair and/or premises. Butler agreement obligation its under keeping with sign. to erect new Sign Company
Petroleum called AMG AMG, Ruzzi, worked Gary who On March sign the old station to remove appeared at the Zinsser’s install a new one. George arranged with
Butler Petroleum had also fiberglass of four used transportation for the purchase tanks, installed below three of which were be gasoline station, time Ruzzi at the ground at Zinsser’s but which arrived, sign. near the Un- sitting ground on the were Ruzzi, top tanks had a hole one of the known gasoline. gallons contained 50 to Zinsser, present, also saw Neither Ruzzi nor who was gasoline. Ruzzi or realized that the tank contained hole * Reassigned to the writer.
6 using a torch he was to cut rusted bolts injured was when from the existing sign ignited escaping from the fumes tank, causing knocking an and fire and fiberglass explosion ladder. Ruzzi from his
Thereafter, against and Sharon Ruzzi filed suit Gary in Company Butler Petroleum the Court of Common Pleas seeking Allegheny County, damages personal injuries explosion. Mr. Ruzzi received because of the Butler Petro- leum, turn, complaint George in filed a and joining Shockey The Edmund Zinsser as additional defendants. Ruzzis sub- complaint against filed their Edmund and sequently own Zinsser, (a corporation Janice Zincon owned the Zins- by sers), George and Brenda d/b/a Exca- Shockey Shockey action, A third vating Co. filed Butler Petroleum Zinssers, against was based on the indemnification agreement. These actions were consolidated for trial. of the jury
The
returned
verdict
favor
Ruzzis and
against Butler Petroleum and
the amount of
Shockey
$321,000.00,
assigning
negligence
Butler
84%
Shockey.
Petroleum
The trial court also award-
and 16%
$67,981.85
damages
ed
and the verdict
molded
delay
damages
$388,981.85.
to include
for a total
delay
award
Post-trial motions were filed
Butler Petroleum and
Shockey
Judgments
were denied.
were entered on the
Ruzzis,
verdict and in favor of the
the Zinssers and Zincon.
Shockey
appeals
Butler Petroleum and
filed
from
timely
judgments. Superior
these
affirmed but remanded
Court
for a
on the
hearing
question
pre-judgment delay.
Pa.Super.
George
The law has been well settled in this Commonwealth
for 87
if
years
parties intend to include within the
of their
scope
agreement
indemnity
provision
a
that covers
losses due to the indemnitee’s
negligence, they
own
must do
so in
unequivocal
clear and
language. No inference from
general
words of
import can
such
establish
indemnification.
Perry
v.
Payne,
252,
(1907).
also,
217 Pa.
66
A. 553
See
Pittsburgh
Patterson-Emerson-Comstock,
Steel Co. v.
Inc.,
53,
404
Tidewater Field
(1961);
Pa.
... all cost or expense ... from arising acci- dents to mechanics or employed laborers the construc- tion work, of said or persons passing where the work is being constructed ...
Additionally, Payne agreed to:
protect
...
and keep harmless the said Edward
Perry
loss,
and from all
costs and
for
damages,
non-fulfillment
DiPietro,
2.
Superior
Pennsylvania
Court concluded: “Under
law, indemnity
actively
is
if
negligent.”
disallowed
the indemnitee is
Pa.Super.
at
material for labor work, from accidents to damages arising persons or from of, passing in the construction or near the said employed work, damages adjacent properties by or for done to work, or by depositing reason of the construction of said either the damage city material such a manner as to the individual. an
Perry’s employee negligently lowered
elevator
paint-
death one of Payne’s employees,
crushed to
who was
shaft. The estate of the
ing
bottom
elevator
against Perry
then
employee
judgment
recovered
who
Payne
agree-
indemnification from
based on their
sought
indemnity against
ment.
ruled that “a contract of
We
construed to
personal
injuries
indemnify
should
be
*7
indemnitee,
the
of the
unless it is so
against
negligence
in
terms. The
on such in-
expressed
unequivocal
liability
hazardous,
demnity
indemnity
is so
and the character
the
pre-
so unusual and
that
there can be no
extraordinary,
that the indemnitor intended to assume the re-
sumption
unless the contract
it
doubt
sponsibility
puts
beyond
general
inference from
express stipulation. No
words
import
page
can establish it.”
at
[The Zinssers] indemnify and save harmless and Petrole- protect [Butler loss, liability from and all for claims for any ... um] or damage, persons property or other injury casualty fire, by any leakage, explosion ... caused or occasioned in, casualty occurring through any imperfection or other to, installation, use, or reason of the injury damage of the said or of the operation repair equipment and/or premises.
Because
in this
when
Perry
jurisdiction
law
Butler Petroleum and the Zinssers entered into their indem-
that
they
that
knew
we must assume
agreement
nification
agreement
their
recognize as effective
would not
the law
(Butler
acts of the indemnitee
concerning the negligent
negli-
Petroleum)
stipulation concerning
express
unless an
document. This rule of contract
included
gence was
contract
applicable
any
like the law
interpretation
incorporated
if
its
expressly
as
agreement
of this
part
only intend to for acts parties indemnify did are general import since words of negligence, indemnitee’s rule no reason to abandon the Perry can used. We discern still a rule of interpretation of contract which is valuable construction, authority reject rooted reason and contrary arguments. Butler Petroleum’s respect Shockey appeal, question With to the permitted to expert erroneously whether an witness was testify earning capacity. particular, as to Ruzzi’s loss of raises the issues of whether the witness who earning capacity testified with to Ruzzi’s loss of had respect *8 area; a of in this whether pretense expertise reasonable determined the earning capacity jury should have been expert testimony; expert without the aid of whether the in in founda- testimony question speculative, lacking tion, evidence; contrary expert and to the and whether pretrial testimony beyond scope went witness’s report.
In cases of our reviewing pertinent the various Court, Superior has summarized the law properly Court Co., Independent Erschen v. Pa. Oil of in expert witnesses 477, 924, (1978) 393 A.2d as Ct. Pa.Superior follows: a judge for the trial to determine whether general, it is v. qualifies expert[,] as an
particular witness
Griffith
Rentals, Inc., 427 Pa.
30,
At Jarrell testified 17%, he read based on studies had was diminished earning capacities employees, concerning injured the unem- limitations had twice persons physical with are not Jarrell had a injured. rate of those who ployment degree pretension expertise as to reasonable he had 32 impairment earning capacity of Ruzzi’s including years experience placing employees jobs, *9 that, work, injured employees, part and as of his he trends, including on regularly employment reviewed studies placement persons. trends in first job injured Shockey’s error, therefore, assertion of is rejected. issue, earning
The second should capacity whether have been determined the aid of jury expert without testimony, subsumed the first. Since Jarrell had a pretension expertise reasonable under subject i.e., consideration, degree of impairment of Ruzzi’s definition, earning he capacity, by knowledge had relevant to the matter under that investigation was not within the reach. Since this ordinary knowledge was relevant to the trial, issues at and since the jury would have been of this knowledge aware absent Jarrell’s it testimony, was permit not error to expert introduction of this testimo ny.
Next Shockey testimony claims that Jarrell’s was speculative, lacking in contrary foundation and to the evi dence. assertion,
The first testimony specula- Jarrell’s was tive, is based on the idea that general because Jarrell used terms such as “unemployed handicapped” to describe the class to belonged, which Ruzzi and he failed to because explain physical capabilities Ruzzi’s and limitations in rela- vocations, tion potential jobs his testimony specu- speculation, lative. The presumably, whether Ruzzi is fact a member the class to which Jarrell referred and Ruzzi whether was limited at all with to his econom- respect ic horizons. out,
As Ruzzi it points speculative was not for Jarrell to Flit, rely on the of Dr. testimony expert, Ruzzi’s medical which established that Ruzzi permanent suffered from a back he injury requiring light was limited to jobs exertion. history Neither is Ruzzi’s work both before speculative. Ruzzi, after the injury high graduate, school in the sign installing signs worked business his entire life, working and he lost considerable time from work following accident. It is clear that the doctor’s testimo- including Ruzzi’s educational ny history, work *10 that Ruzzi’s economic horizons were background, establish job He his former and his work pursue limited. could It perhaps no alternatives. is history suggested obvious studies cited Jarrell were government less clear that the case, jury Ruzzi’s since the was not told how applicable to compared in the studies to Ruzzi’s of those injuries evidence, of the not its goes weight this to the injuries, but challenge If defense counsel wished to admissibility. case, cross-examina- of these studies to Ruzzi’s application for that closing argument purpose.3 and were available tion conclude, therefore, was not testimony Jarrell’s We speculative.
Next, testimony claims that Jarrell’s was Shockey As in foundation. This assertion is without merit. lacking seen, history Jarrell had examined Ruzzi’s work we have Flit, of Dr. and had earnings, testimony had viewed stand, took the all of the Ruzzi. When Jarrell interviewed permanent in the case that Ruzzi had a suggested evidence testimony The for his was ade foundation injury. back quate. testimony also claims that Jarrell’s was is at to the The basis of this claim that
contrary evidence. Sign Compa Ruzzi AMG employed by the time of trial demanding but at the same ny physically job, at a less The error in this claim is injury. he made before the salary the difference actual loss of earn ignores that it between loss of This court discussed the ings earning capacity. concepts these as follows: difference between The contend that there was no evidence of defendants and that the fact impairment earning power of wages higher Bochar’s were after the accident than be- A earning ability. fore no deterioration of tort- proves is not entitled to a reduction his financial feasor because, through fortuitous circumstances responsibility person, on the application part injured or unusual lawyers 3. The entire cross-examination of Jarrell two is contained testimony. pages in three of person following the accident wages injured of prior than to the high higher they are as or even were of wages may impairment of show lack Parity accident. earning physical if it confirms other data that power has from his injured person completely recovered alone, however, wages injuries. Standing parity worker, leg a has inconclusive. The office who loses he obviously earning ability impaired though had his even as punch comptometer can still sit at a desk It is not the of the immedi- vigorously as before. status ate determines for remunerative present capacity which involved, the employment. permanent injury Where life must the economic span whole be considered. Has horizon of the shortened person disabled been because *11 as the result of the tortfeasor’s injuries the sustained is the test. negligence? That Motors, Inc., 240, 244, 97 Bochar v. J.B. Martin 374 Pa. (1953). (Footnotes omitted.) Shockey’s A.2d claim merit, employment is for the fact of Ruzzi’s current without not, at the same as does as this salary injury before Bochar, explained negate court his claim for a diminished has to do earning capacity. Earning capacity with horizons, earnings, his actual injured person’s economic not enough and the fact that Ruzzi fortunate to earn as earned, formerly much as he had but at a new and less that a loss of physically demanding job, does establish facts, to the earning capacity, contrary on these is evidence. Shockey expert testimony contends that the Finally, beyond scope was inadmissible because it went pretrial report. particular, Jarrell’s claims that Shockey loss, it although pretrial report wage addresses future thus, does not address diminished earning capacity, place does not on notice that expert would testify earning capacity. disagree as to diminished We with Shockey’s pre-trial report characterization of Jarrell’s fur pertinent nished to to rules. Shockey pursuant discovery Motors, Inc., As stated earlier Bochar v. J.B. Martin earning lost capacity question, involves “Has the eco- nomic horizon person of the disabled been shortened be- result of the tort- of the sustained as a injuries
cause negligence?” feasor’s that, understanding on his report states based
Jarrell’s permanently injured Ruzzi was testimony, Dr. Flit’s to of the he again perform type be able work would never Instead, accident. he would be had before the performed change he could light frequently work where duty limited lift Jarrell also twenty pounds. and not over positions stated, report: of his paragraph in the last Sign Compa- on AMG earnings
It based loss] [future Mr. Ruzzi continuing willingness provide with ny’s work, light duty as on an “as able work employment willingness cease or should basis. Should available” business, out of Mr. Ruzzi would Sign Company go AMG market where he would open to re-enter labor have unemployed difficulties of the handi- face the well known typically Their rate is twice capped. unemployment are average earnings and their non-handicapped, Atti- non-handicapped (Employer of those of the 54%-82% Disabilities, Human Hiring Persons With tudes Towards 1978). publication, Resources Center trial, that “countless studies done on At Jarrell testified versus the earn- earnings impaired handicap of an [sic] nonhandicapped” person indicate ings nonimpaired, of a earning suffers a loss of handicapped person that the 17% capacity. is the limitation of economic earning capacity
Since lost *12 horizons, not the report only and since Jarrell’s describes also, opinion, in Jarrell’s injuries, nature of Ruzzi’s but on compete to Ruzzi were he forced to happen what would market, that he including prediction an would be open job (an former salary to earn no more than of his able 18% 82% earning testimony loss of was within capacity), and it not error to admit Jarrell’s scope report expert testimony. is affirmed. Superior
The order of Court NIX, C.J., in the decision of this participate did not matter.
15 consideration or ZAPPALA, J., participate did matter. of this decision J.,
LARSEN, concurring opinion. files a FLAHERTY, J., dissenting opinion. files a Justice, LARSEN, concurring. I agree with the majority, result of the
I join wit- involving expert of the issue disposition majority’s I, however, disagree majority’s with testimony. ness’ and, in sup- issue the indemnification regarding rationale thereof, opin- Court Memorandum adopt Superior port Tamilia, Hoffman, JJ.) is at- which (Cavanaugh, ion tached hereto.
APPENDIX Ruzzi, his Wife Ruzzi and Sharon Gary v. Company, Appellant
Butler Petroleum
v. Zinsser George and Edmund Shockey Pittsburgh, No. 00139 entered in the Appeal Judgment from the Court Division, County, Common Pleas of Butler Civil 191, Page No. 87-1685 Book C.P. Ruzzi, his
Gary Ruzzi and Sharon Wife v.
Butler Petroleum Company, George and Edmund Zinsser of:
Appeal George Shockey Pittsburgh, No. 00169 Appeal from the entered in Judgment the Court Division, County,
Common Pleas of Butler Civil No. Page C.P. 87-1685 Book CAVANAUGH, TAMILIA, HOFFMAN, Before: JJ. MEMORANDUM:
Filed: November in trespass This action resulted from the consolidation of three cases the trial court. The cases tried in were Allegheny County judgment with then transferred to Butler County. dispute. The facts are not Additional defen- dant-appellee process Zinsser was in the a opening new gas property station on he had leased and had entered into agreement an for renovations defendant-appellant, with (“Butler”). Company Butler Petroleum Butler to pro- tanks, pumps, sign vide fuel a new and was to make other exterior repairs exchange renovations and for the Zins- promise purchase gas sers’ oil and from Butler for a specified period of time. renovations, part arranged
As Butler for additional defendant-appellant Shockey pick up and deliver two used fuel tanks to the Zinssers’ gas station. Butler also arranged for the installation of sign by Sign the new AMG Company, plaintiff-appellee Ruzzi’s employer. 8,000
Upon delivering gallon tanks to Zinssers’ sta- tion, noticed one tank a four had to six inch hole on top. general He notified Butler’s manager, stating repairs would have to be made and the tank drained of fuel before installation.
When Ruzzi and a co-worker arrived install new sign, the tanks a feet sitting away sign were few from the post him, where Ruzzi had to work and unknown to they gallons gasoline. contained 50 to 100 Ruzzi noticed the tanks did not see the hole smell gasoline. but As he was working installing the tanks he sign, above new had difficulty removing sign the old and found it necessary to torch, use a acetylene spark torch. The heat of the or a piece of hot metal caused the fumes coming from the ignite, triggering defective tank to an explosion knock- ing Ruzzi from standing. the ladder on which he was He sustained to his injuries parts back and other of his body.
Ruzzi personal and his wife sued for the injuries he suffered and a jury after trial a molded entered verdict was *14 (Butler Shockey Butler against as and in favor of Ruzzis per negligent and was 84 cent was found to be the negligent) exonerating and per found to 16 cent be damages delay trial court also awarded Zinssers. The Post-trial motions were denied against Shockey. Butler and and entered favor of the Ruzzis judgment of the Zins- Shockeys and the in favor against Butler These followed against parties. timely appeals sers as all entry judgment. the of of the court charges
Butler as error the failure trial first the pursue indemnity to its action for from permit to Butler agree- clause Zinssers. The indemnification included the as parties ment stated follows: between exonerate, to discharge, agree ... [The Zinssers] Petrole- indemnify harmless and protect and save [Butler loss, for claims for any liability ... from and all um] or casualty property or to damage, persons other injury fire, leakage, explosion occasioned by any ... caused or in, occurring through imperfection other casualty any or to, installation, use, reason of the injury damage by or repair the said or of the operation equipment and/or of premises. as a matter of argues
Butler
this clause was enforceable
regard-
have
trial court
upheld
law and should
been
language
of
own
since the
negligence
less
Butler’s
alternative,
result.
In the
it
clearly provides
clause
for this
indemnity
of
or not
clause
contends the issue
whether
jury.
should have been
was enforceable
submitted
Pennsyl-
We
with Butler’s contentions.
“Under
disagree
law,
indemnity
disallowed if the indemnitee is
vania
Philadelphia,
v.
City
DiPietro
344
actively negligent.”
of
(1985).
191, 496 A.2d
found Butler
Pa.Super.
jury
The
is not
per
negligent
was 84
cent
which means it
entitled
of
indemnity regardless
language
the clause
whether
Further,
error
a
find no
on the
provides for such
result.
we
court in
part
submitting
the trial
indemnification
“It
role of
court
to decide
jury.
issue
is the
whether,
law,
as matter of
a
written contract
terms are
clear or ambiguous.”
Vogel Berkley,
Pa.Super.
(1986).
The
argument
next
of
which
by
is also raised
Shockey, is the court erred in admitting the
of
testimony
Mr.
expert
Jarrell as an
for the Ruzzis since he was not
qualified, his opinions
supported
were not
the facts and
by
beyond
scope
were
of his report.
Jarrell was called to
testify regarding
earning
Mr. Ruzzi’s
of
As
capacity.
loss
Ruzzis,
noted
correctly
of an
is
testimony
expert
necessary
not
for the determination of
earning capaci-
lost
Lukasik,
Mecca v.
149,
ty.
Pa.Super.
366
“The Pennsylvania qualification standard of for an expert witness is a one. ‘If liberal a witness has any reasonable pretension to specialized knowledge on the subject under investigation he and the may testify, weight given to be to his evidence is for the jury.’ Kuisis v. Baldwin-Lima Corp., Hamilton 321, 338, 457 Pa. 319 A.2d 924 (1974).” Rutter v. Northeastern Beaver County School District, 590, 597-8, 496 Pa. (1981) 437 A.2d 1201 (plurality opinion).
Although the witness must demonstrate some special skill, knowledge requirement there is no that a witness acquire knowledge as a result of formal schooling; expertise nonetheless. by experience expertise acquired omitted.) (Citations Dohme, Merck, Sharp & Pa.Super.
McDaniel
(1987).
436, 440
608, 533 A.2d
to deter-
Moreover,
the trial court’s discretion
it is within
testify
expert.
as an
qualified
mine whether a witness
61, 533
Corp.,
General
Pa.Super.
v. Container
Beary
background
(1987). The trial court found Jarrell’s
A.2d 716
regard-
his testimony
sufficient
to allow
experience
and
was
was
an abuse
capacity.
We find this
not
ing
earning
loss
the court’s discretion.
Mr.
testi-
argue
Jarrell’s
Additionally,
Butler
earning
capacity
a diminished
that Ruzzi suffered
mony
foundation, was
adequate
speculative
cent lacked an
per
should not have been admitted.
Mr. Jarrell
trial
found the
testimony
The
court
experience
his
upon
but was based
speculative
Ruzzi’s
regarding
physician
evidence submitted
is not
someone
Again,
expert
only
limitations.
an
physical
a
person
with
qualifications
educational
but can be
with
field.
experience
amount of
a certain
vast
question
is offered as
first
expert,
When a witness
an
subject
on which
trial court should ask is whether
is so
express
distinctively
an opinion
the witness will
*16
science,
occupation as to be
related to some
business or
if
knowledge
average layman
the
of
beyond
the
affirmative,
question the court
in the
the next
answered
skill,
ask
the
has sufficient
should
is whether
witness
appear
as to make it
knowledge
expertise
or
that field
trier in
search
opinion
that his
will
aid the
his
probably
for truth.
74,
Beary, Pa.Superior 368 Ct. at Mallis, 336 Pa.Su- Dambacher Dambacher (quoting 22, 35, (1984), 508 appeal 485 A.2d dismissed per. 428). 500 A.2d Pa. the trial Jarrell has sufficient agree
We with court that placement knowledgeable field of expertise job the of the relevant statistics that his aid the testimony would jury. the conjunction argument, with above Butler and claim testimony this was it
Shockey precluded because went beyond pre-trial expert report which is prohibited by Allegheny County Local Rule 212. After reviewing pre- report, trial we find Mr. Jarrell’s testimony consisted of a explanation his report reasonable which contained lan- guage dealing directly with Ruzzi’s diminished earning ca- therefore it pacity, properly was admitted. third is the is against
Butler’s claim verdict the weight of it evidence because was shown Ruzzi was contribu- torily comparatively negligent. Butler Ruzzi’s states own he testimony danger reveals was aware of the a torch operating gasoline near tanks and he continued to operate though the torch even he was having difficulty doing so. Ruzzi, invitee,
The trial court found as a business was not obligated to for inspect premises dangers hidden was negligent not since he did not see contributorily fact, hole in the one tank did he gasoline; nor smell Ruzzi testified tanks he appeared passed be new and when slapped (N.T. 5/6/87, them he one and it sounded hollow p. 16). His co-worker and Zinsser corroborated this testimo- ny. find Butler has met the standard necessary We trial, i.e. granting contrary new the verdict is so to the that it evidence shocks one’s sense justice. S.N.T. In- dustries, Geanopulos, Pa.Super. Inc. v. 525 A.2d (1987). We ample believe had evidence to jury find Ruzzi not negligent. Butler and
Finally, argue delay damages both should not have been awarded an evidentiary without hear- ing grant delay and the damages was made because court overlooked the fact that no party was at fault for the delay supported which would have a denial request for such damages. *17 damages it had awarding delay in
The
court found
trial
Magee
in Craig v.
suggested
that were
the factors
followed
60,
This Court Inc., Pa.Super. Park, Ephrata, View Trailer Valley (1988), support does not finding Craig 552 A.2d damages delay assessed should notion that defendants be Defendants should plaintiffs. fault of delay not the any for finds they the court damages when delay only assessed be for the sake delay deliberate at “fault” which includes are however, determine, whether are unable to profit. We the trial court delay because any are at fault appellants to hold for the court hearing. hold We remand did not a delay is any prejudgment whether hearings to determine entry judgment and for appellants attributable Memorandum, in findings and this those accordance with light of Ceresini. motion his denying trial court erred
Shockey claims the finding support the record does not for a nonsuit since duty without this of care to Ruzzi and he owed a duty Because cannot be sustained. negligence an action for site, to the tanks transport he only requested Butler of the tanks care, and control custody believes Shockey argues the risk He also Butler and Zinsser. passed had imposition so as to warrant harm was not foreseeable part. on his duty of any in Shockey’s merit there no
The trial court stated was sufficient evidence finding nonsuit compulsory motion for a agree with negligent. We contributorily Shockey gas tanks to the delivered the trial court. be he renovation work would major where knew station empty and that He knew the tanks were place. taking top. Given the six inch hole one had a four to caution and the extreme gasoline explosive propensity *18 22
required it, working when around we find it was foreseea- ble an occur injury could under the circumstances. Shockey owed a to duty premises workers on to notify them danger, Zinsser about the ap- when the tanks especially peared to be on the new others had no reason property to suspect gasoline Although there was Shockey inside. Butler, notified he his duty by breached not those notifying in individuals immediate proximity of the hazard. Next, Shockey alleges error due to the his denial of requests for charge stating court should have instructed as to jury required Butler, the standard care Shockey and Ruzzi under the circumstances that were presented at trial. This waived, however, issue has been as it was not raised his questions. statement of Rago v. Nace, 575, (1983).1 460 Pa.Super. A.2d 337
The Zinssers present
argument.
one final
Because there
are
raised in
being
appeal
issues
this
that
not directly
do
them,
concern
they
assert
should not
a
they
subjected
be
if
new trial
granted by
that is
relief
this Court. Stokan
Turnbull,
(1978).
v.
480 Pa.
Judgments except affirmed as to The delay damages. case hearing is remanded for a any determine whether prejudgment delay is to appellants attributable and for entry judgment accordance with those findings. relinquished. Jurisdiction
FLAHERTY, Justice, dissenting.
agree
While I
with the majority’s treatment of the Shock-
ey case and
join
part
opinion,
that
I vigorously
dissent from the
treatment of
majority’s
the Zinsser case.
The
majority
Zinsser holds
plain language
that
in an
indemnification
which
agreement
saves harmless and in-
1.
other
Questions
raises one
issue in his Statement of
which
brief, therefore,
argued
was not
in the
it is waived. Brown v. Dela-
Valley
Transplant Program,
Pa.Super.
ware
ty *19 indem- of the indemnify against negligence the the contract enforced, if intent nitee, but that would be agreement state clear, i.e., specifically if contract did not the were harmless and indemnified indemnitee would be held that the look to the sur- the court would negligence, for his own entering in parties’ object and the rounding circumstances express an required The court either into the contract. negli- for its the indemnitee own indemnifying provision result leading to that be- or circumstances gence unusual cause: his of the or part on the owner single negligence
A
act
no
have
the contractors would
over whom
employees,
whatever,
liability
create a
might
restraint or control
repay.
could not
of successful business
which a lifetime
rise to such
interpretation
might give
An
... which
or as
as reasonable
hardly
regarded
results could
be
parties.
to
effect
the intention
the
giving
259,
at
the intention of the used, the language may consider confined to but surrounding parties object and their circumstances making the instrument. 257, contract has 66 A. 555. As our law of
217 Pa. at
at
willing
give
more
to
modern courts are
generally,
evolved
effect to the unambiguous language of agreements than the
Perry
In Gene
court
in 1907.
Harvey
Builders v.
Pa.
Ass’n.,
512 Pa.
the absence of ambiguity, plain meaning of the agree- ment will be enforced.
It is well established that the intent of the parties to a written contract regarded being be as embodied itself, the writing and when the words are clear and unambiguous the intent tois be from only discovered express language of the agreement____” a writ- [W]hen ten contract is and unequivocal, clear its meaning must be determined its contents alone. It speaks itself and be meaning given cannot to it other than that ex- pressed. parties clear, Where intention of the there is no need to resort extrinsic Hence, aids evidence.” language where is clear unambiguous, the focus of interpretation is upon the terms of agreement as *20 manifestly expressed, as, rather than perhaps, silently intended. 48-49,
Decided Reargument May 1991. Denied