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J. A17012/01
2001 PA Super 251
ROBERT LAND and SPENCER M.
:
IN THE SUPERIOR COURT OF
WERTHEIMER, ADMINISTRATORS OF
:
PENNSYLVANIA
THE ESTATE OF ANDREW LAVERN
:
BROWN WALTERS, III A/K/A ANDREW
:
WALTERS, III; JOHNATHAN VICTOR
:
PHILLIPE BO BROWN A/K/A
:
JOHNATHAN WALTERS; JULIE JANELLE
:
TIFFANY BRIANA WALTERS A/K/A
:
JULIE WALTERS and AIMEE ELIZABETH
:
HELEN ZUHAIRAN WALTERS A/K/A
:
AIMEE WALTERS,
:
:
Appellees
:
:
v.
:
:
THE SALVATION ARMY and COPE,
:
LIPPINCOTT, SLIFER ARCHITECTS and
:
C. DANIEL WEYMAN AND WEYMAN
:
ASSOCIATES, INC.,
:
:
Appellants
:
:
v.
:
:
JEANETTE L. WALTERS
:
No. 1664 EDA 2000
ROBERT LAND and SPENCER M.
:
IN THE SUPERIOR COURT OF
WERTHEIMER, ADMINISTRATORS OF
:
PENNSYLVANIA
THE ESTATE OF ANDREW LAVERN
:
BROWN WALTERS, III A/K/A ANDREW
:
WALTERS, III; JOHNATHAN VICTOR
:
PHILLIPE BO BROWN A/K/A
:
JOHNATHAN WALTERS; JULIE JANELLE
:
TIFFANY BRIANA WALTERS A/K/A
:
JULIE WALTERS and AIMEE ELIZABETH
:
HELEN ZUHAIRAN WALTERS A/K/A
:
AIMEE WALTERS,
:
:
Appellants
:

J. A17012/01
:
v.
:
:
THE SALVATION ARMY and COPE,
:
LIPPINCOTT, SLIFER ARCHITECTS and
:
C. DANIEL WEYMAN AND WEYMAN
:
ASSOCIATES, INC.,
:
:
Appellees
:
:
v.
:
:
JEANETTE L. WALTERS
:
No. 1794 EDA 2000
Appeal from the Order entered April 26, 2000
in the Court of Common Pleas of Philadelphia County,
Civil Division, at No. 1655 February Term, 1997
BEFORE: DEL SOLE, P.J., MONTEMURO* and KELLY, JJ.
OPINION BY DEL SOLE, P.J.:
Filed: August 28, 2001
¶ 1
These cross-appeals follow a trial court order awarding a new trial
after a jury returned a verdict finding the defendant, The Salvation Army,
negligent, but ruling that its negligence was not a substantial factor in the
cause of death of four children. We affirm.
¶ 2
On March 11, 1995, a tragic fire killed four young children in Room
203 of the Red Shield Residence, a shelter owned and operated by The
Salvation Army. The children died of smoke inhalation. The children's
mother as well as three older children were also residents of the room but
were in the hallway when the fire erupted.
* Retired Justice assigned to the Superior Court.
Justice Montemuro did not participate in the decision of this matter.
- 2 -

J. A17012/01
¶ 3
The Red Shield Residence had a fire alarm system which included
smoke detectors in the hallways. The individual residential units were not
equipped with smoke detectors. On January 26, 1995, less than two months
before the fire, the Philadelphia Department of Licenses and Inspections sent
an inspector to the shelter. The inspector advised The Salvation Army
personnel that smoke detectors were required in each individual unit under a
revision to the fire code, effective January 1, 1995. The code further
provided that compliance was to be within two years of the effective date of
the code.
¶ 4
A jury trial was held in which the administrators of the estates of the
deceased children (the administrators) sought recovery based on a claim of
negligence against The Salvation Army. 1 In response to interrogatories the
jury found that The Salvation Army was negligent, but the negligence was
not a substantial factor in causing the deaths of the four children. Both
parties filed post-trial motions. The administrators sought a judgment n.o.v.
on the issue of causation, or in the alternative, a new trial. The Salvation
Army sought a judgment n.o.v. on the jury's finding of negligence.

1. The mother of the deceased children was also a plaintiff in the original action, both in
her own right and as the parent and natural guardian of her other children who were
injured, but not killed by the blaze. Also named as defendants were Cope Lippincott Slifer
Architects, an architectural firm, Weyman Associates, Inc., an electrical contractor and C.
Daniel Weyman, its principal. All defendants, with the exception of The Salvation Army,
were dismissed from the case. The mother's individual claim was withdrawn, and the claims
of the surviving children were settled out of court.
- 3 -

J. A17012/01
¶ 5
The trial court granted the administrators' motion for a new trial
holding that its trial rulings limiting the administrators' witnesses and their
testimony on causation impeded the administrators' ability to prove their
case. The court stated: "Certainly, an opinion that a smoke alarm in Room
203 would have prevented the deaths would have been very useful to the
jury in evaluating the issue of causation, and its absence from this case as
a result of my rulings is, all by itself, a more than sufficient basis for a new
trial to be granted." Trial Court Opinion, 8/14/00, at 4. Both sides
appealed.
¶ 6
On appeal both sides argue that it was appropriate for the trial court to
enter a judgment n.o.v. in their favor. In reviewing an order denying a
motion for judgment notwithstanding the verdict, we must determine
whether there was sufficient competent evidence to sustain the verdict.
Armstrong v. Paoli Memorial Hospital, 633 A.2d 605 (Pa. Super. 1993).
Judgment notwithstanding the verdict can be entered only if the movant is
entitled to judgment as a matter of law or if evidence is such that no two
reasonable minds could disagree that the outcome should have been
rendered in favor of the movant. Moure v. Raeuchle , 529 Pa. 394, 604
A.2d 1003 (1992).
¶ 7
In denying The Salvation Army's motion the trial court noted that the
jury was entitled to determine whether the failure to install smoke detectors
immediately upon the enactment of the new code constituted negligence.
- 4 -

J. A17012/01
We perceive no error of law or abuse of discretion in this ruling and for the
reasons more fully set forth by the trial court in its opinion, we conclude that
judgment n.o.v. in favor of The Salvation Army was properly denied.
¶ 8
We reach the same conclusion with respect to the administrators'
request seeking review of the court's denial of their motion for judgment
n.o.v. The administrators argue that the record did not support the jury's
verdict on causation and that the facts as presented warrant entry of
judgment in their favor, leaving only the question of damages unresolved.
As the administrators must acknowledge by virtue of their initial request for
a new trial on the basis that the court erred in the preclusion of causation
evidence, the evidence offered at trial in relation to causation was not fully
developed. The court did not err in denying the administrators' motion.
¶ 9
We turn now to The Salvation Army's request for review of the trial
court's order granting a new trial. The Salvation Army contends that the
record clearly refutes the reasons relied upon by the trial court in entering
its award. The trial court found that it had prevented Mr. Semple, a witness
offered by the administrators, from offering an opinion that had there been a
smoke alarm in the room the children would not have died in the fire. With
respect to a second expert, Mr. Tantala, the court wrote: "I precluded Mr.
Tantala from testifying, on the basis that his testimony would have been
merely cumulative of that given earlier by Mr. Semple, even though I had
by sustaining an objection prevented Mr. Semple from giving that very
- 5 -

J. A17012/01
opinion during his testimony." Trial Court Opinion at 4. The trial court also
remarked that it had prevented the plaintiff from asking similar questions to
the person who investigated the fire and the paramedic who responded to
the initial alarms. The court concluded that the administrators were
precluded from offering any witness to give "this obviously relevant opinion."
Id.
¶ 10 The Salvation Army does not argue that this testimony was irrelevant
or inadmissible, rather it asserts that the trial court incorrectly recalled the
events which transpired at trial. It claims that Mr. Semple was permitted to
testify as to causation, yet the administrators failed to question the witness
on this point. It further maintains that Mr. Tantala's testimony was not
precluded because it was cumulative to causation testimony, as the trial
court states, but that it was considered cumulative to testimony involving
the fire code. It further asserts that if the new trial award was based on the
preclusion of causation testimony from the assistant fire marshal and
paramedic, such preclusion was proper and a new trial was not warranted.
¶ 11 Our review of the complete record supports the trial court's ruling.
The discussions and testimony regarding Mr. Semple's qualifications and the
extent of testimony he would be permitted to offer exceed over 40
transcribed pages. N.T. 5/17/99, at 2.44-2.86. A careful reading of the
objections, responses and the court's comments cause us to conclude that
the court was limiting the witness' testimony to the question of how smoke
- 6 -

J. A17012/01
detectors operate and the speed of their reaction. The court repeatedly
directed that Mr. Semple was not able to offer the jury his opinion that these
children would not have died had their room been equipped with smoke
detectors with alarms because the alarm would sound before the oxygen
level was depleted to a level that would cause death. Id.
¶ 12 Appellant also disputes whether Mr. Tantala's expert opinion was
precluded as cumulative on the issue of causation or cumulative to
testimony regarding code compliance. The Salvation Army objected to the
testimony of this witness as cumulative. N.T. 5/17/99, at 2.184. The court
asked to review the proposed witness's report. That report, among other
things, opined:
It is our professional opinion that if the subject portion of the
building at 701 North Broad Street complied with the codes and
had smoke detectors in the sleeping areas, then these four
children would not have died in this fire.
Upon review of the report, the court ruled: "his opinion is cumulative." N.T.
5/17/99, at 2.186. Counsel for the administrators continued to press the
court restating the witness's experience and advising the court that he would
testify that The Salvation Army was not in compliance with the code on the
date of the fire. The court stood by its ruling precluding the testimony.
Regardless of the degree to which his testimony would be cumulative or on
what specific points, it is clear that Mr. Tantala was unable to present expert
testimony on the issue of causation.
- 7 -

J. A17012/01
¶ 13 Based upon our review of the transcripts of this trial we find the trial
court was correct in concluding that due to its ruling(s) no witness gave this
challenged testimony. 2 Thus, we affirm its ruling awarding a new trial.
¶ 14 Order affirmed.

2 Based upon our ruling it is unnecessary to consider whether the testimony of the assistant
fire marshal and paramedic was properly restricted.
- 8 -