HomeMy WebLinkAbout00-8834 CIVILROBERT J. GARDNER and IN THE COURT OF COMMON PLEAS OF
LINDA GARDNER, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
SCHEU PRODUCTS, CO., INC.,
DRIVEKORE, INC., and BILL'S
DRYWALL,
DEFENDANTS 00-8834 CIVIL TERM
IN RE: MOTION OF DEFENDANTS DRIVEKORE, INC., AND
BILL'S DRYVVALL FOR SUMMARY JUDGMENT
BEFORE BAYLEY, J. AND HESS, J.
OPINION AND ORDER OF COURT
Bayley, J., January 15, 2002:--
On January 6, 2000, defendant, Bill's Drywall, was performing work in the home
of plaintiffs, Robert Gardner and Linda Gardner, in Cumberland County. At the end of
the workday, Bill's Drywall set up three portable propane heaters manufactured by
defendant, Scheu Products, Inc. Bill's Drywall had rented the heaters from defendant,
DriveKore, Inc. Later, when there were no construction employees on the premises,
there was a fire that damaged the home. In their complaint, plaintiffs allege that the fire
was caused by the malfunction of one of the propane heaters. They set forth a cause
of action for strict liability against Scheu Products, Inc., causes of action for strict
liability and negligence against DriveKore, Inc., and a cause of action for negligence
against Bill's Drywall. On the negligence count against DriveKore, Inc., plaintiffs aver:
00-8834 CIVIL TERM
The aforesaid fire was caused by the portable propane heater due
to the negligence of Defendant in that Defendant:
a. Failed to properly maintain said heater;
b. Failed to properly inspect the portable propane heater to
determine potential problems with the heater that could result in a
fire;
c. Failed to properly repair the defective condition of the portable
propane heater.
On the negligent count against Bill's Drywall, plaintiffs aver:
Defendant was negligent in causing the fire to Plaintiffs' property in
that Defendant:
a. Failed to properly inspect the portable propane heaters to
determine if any defective condition existed;
b. Left the portable heaters unattended;
c. Failed to properly use the portable propane heaters.
After the fire, plaintiffs retained the services of Robert H. Jones. Jones is a fire
investigator, and he examined the damaged home and the three portable propane
heaters. In a written report dated January 17, 2000, Jones concludes:
It is my expert opinion, based upon my experiential evaluation of
the fire scene and analysis of physical evidence observed and to a
reasonable degree of scientific certainty, the most probable possible
cause of the fire was a failure/malfunction of portable propane heater.
As a result of this suit, which was instituted by a writ of summons on December
28, 2000, with a complaint filed on April 18, 2001, defendants, DriveKore, Inc., and
Bill's Drywall, sought to examine the propane heaters. They cannot do so because
Robert Jones, in October, 2000, in conjunction with closing his business, discarded all
the heaters. Defendants maintain that they are entitled to summary judgment because
of the spoliation of this evidence.
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DISCUSSION
In Schroeder v. Commonwealth, Department of Transportation, 710 A.2d 23
(Pa. 1998), the Supreme Court of Pennsylvania adopted a three-prong test to be
applied to claims of spoliation. The tests were adopted from Schmid v. Milwaukee
Electric Tool Corp., 13 F.3d 76 (3d. Cir. 1994).
stated:
In Schroeder, the Supreme Court
In deciding the proper penalty for the spoliation of evidence, the
Third Circuit found relevant (1) the degree of fault of the party who altered
or destroyed the evidence; (2) the degree of prejudice suffered by the
opposing party, and (3) the availability of a lesser sanction that will
protect the opposing party's rights and deter future similar conduct ....
Having considered this authority, we adopt the Third Circuit's
approach to the spoliation of evidence in Schmid. Fashioning a sanction
for the spoliation of evidence based upon fault, prejudice, and other
available sanctions will discourage intentional destruction. The plaintiff's
burden of proof at trial to establish that a defective product caused his
injury will protect defendants in cases where it is determined that
summary judgment is not warranted based upon spoliation.
In the case sub judice, plaintiffs are at fault for the destruction of the propane
heaters because they were destroyed by their expert. Defendants are prejudiced by
the destruction of the evidence because they are unable to independently determine if
the cause of the fire was the failure/malfunction of a portable propane heater, as is
maintained by plaintiffs' expert, Robert Jones. There is no lesser sanction that will
protect defendants' rights and deter future similar conduct. See Roselli v. General
Electric Co., 410 Pa. Super. 223 (1991); DeWeese v. Anchor Hocking, Consumer
and Industrial Products Group, 427 Pa. Super. 47 (1993); Tenaglia v. Proctor &
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Gamble, Inc., 737 A.2d 306 (Pa. Super· 1999).4
Plaintiffs argue in their brief that even if their claims against DriveKore, Inc. must
be dismissed because they depend on proof of the failure to the propane heater:
There is no need to examine the heater to determine whether or not [Bill's
Drywall] was negligent in leaving the heater unattended. Thus, a remedy
less than complete dismissal of the complaint would.., be appropriate..
The fallacy of this argument is that, unless a propane heater malfunctioned and
caused the fire, Bill's Drywall could not be negligent for failing to properly inspect it,
leaving it unattended, and failing to use it properly. For the foregoing reasons,
summary judgment is warranted.
AND NOW, this
ORDER OF COURT
day of January, 2002, IT IS ORDERED:
(1) The motion of DriveKore, Inc., for summary judgment, IS GRANTED.
(2) The motion of Bill's Drywall for summary judgment, IS GRANTED.
By the Court,
Edgar B. Bayley, J.
Contrast the facts in Pia v. Perrotti, 718 A.2d 321 (Pa. Super. 1998).
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Richard H. Wix, Esquire
For Plaintiffs
Thomas E. Brenner, Esquire
For Bill's Drywall
Charles E. Wasilefski, Esquire
For DriveKore, Inc.
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