J-S32029-16

2016 PA Super 146

NATIONWIDE MUTUAL FIRE INSURANCE 

COMPANY A/S/O RONALD STRUNK

IN THE SUPERIOR COURT OF

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.
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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 @ 3⁄4 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