author: BROSKY, Judge. BECK, Judge,

text:
    574 A.2d 693
    Eileen HANDSCHUH, Administratrix of the Estate of Thomas H. Handschuh, Deceased, and Eileen Handschuh, Individually and Eileen Handschuh as Mother and Natural Guardian of Kimberly Ann Handschuh, a Minor v. ALBERT DEVELOPMENT and Richard Berkheimer and Kathleen Berkheimer and Thomas Rickets and Ridley Township, and Ridley Township Sewer Authority and Ridley Township Municipal Authority and John P. Damon Associates, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1989.
    Filed May 10, 1990.

      Ronald D. Ashby, Media, for appellant.
    Gary R. Block, West Chester, for appellee.
    Before BROSKY, BECK and HOFFMAN, JJ.
   BROSKY, Judge.

This is an appeal from a judgment entered after post trial motions were denied. Appellant raises several contentions of error regarding the court’s failure to instruct the jury on the defense of assumption of the risk, error in instructing the jury on agency and error in molding the verdict. We affirm.

The facts of relevance indicate that appellee’s decedent was a plumbing contractor engaged in the task of installing a residential sewer line for appellant, Albert Development, at the site of a house being built by appellant, when he was killed in a trench cave-in accident. The job involved the digging of a trench approximately ten feet deep, (tapered to shorter depths as the trench neared the house), between the house and the sewer main located under the adjacent street, and laying and connecting pipe from the main to the house. The decedent was aware, as were the excavator and general contractor, that such trenches can cave in and that there was a general risk of cave-in any time one entered a trench. At some point prior to the actual breaking of ground it was suspected that this particular job would be delicate, a suspicion which was confirmed when water was struck during the digging. In response to the “delicateness” of the situation, the decedent shortened the lengths of pipe, from the standard 20 feet to 10 feet, so that the length of open trench he would be working in would also be shortened. Also, certain warning precautions were taken where someone would watch the trench in order to shout a warning should the threat of a cave-in become imminent.

The actual operation was not without difficulty. In fact, a few times during the course of this particular job small amounts of dirt were observed to fall into the ditch. On each such occasion, a warning was shouted and evasive actions were taken, although the decedent did not exit the trench on every occasion. However, in contrast, at no point did the erosion of dirt approach that of a cave-in of the trench. On the occasion of the fatal collapse of the trench, the excavator observed a seam or crack in the back corner of the dirt bank and saw it move forward a bit and then shouted a warning. The decedent turned and retreated a few steps, hesitated and turned again when the bulk of the dirt hit him. He was retrieved from the ditch but ultimately died from the injuries sustained in the collapse.

At trial, appellant asserted the defense of assumption of the risk but was denied a jury instruction on the defense. Instead the jury was instructed on the theory of comparative negligence. The jury found the decedent, appellant and the excavator all one-third negligent. Upon appellee’s motion, the verdict was molded by subtracting one-third and adding delay damages. This appeal followed.

The theory of assumption of the risk would seem to be one of the more difficult issues to grasp and apply in the law of torts. This was apparently recognized by a plurality of our Supreme Court in Rutter v. Northeastern Beaver County School Dist., 496 Pa. 590, 437 A.2d 1198 (1981). They said:

There is a serious question as to whether the doctrine of assumption of risk, which has had its origins in a now somewhat disfavored legal philosophy and which has presented problems of application of a type well illustrated by this case, should be permitted longer to survive.

The Court went as far as to attempt to invalidate the doctrine in Pennsylvania, but fell one vote shy of reaching that goal. Be that as it may, and giving full validity to the doctrine, we nevertheless conclude that appellant failed to demonstrate that the decedent assumed the risk of injury sustained, within the legal concept of the assumption of the risk defense, and that the trial court was correct in denying the requested instruction.

The parameters of the assumption of the risk defense are somewhat difficult to define. However, one thing is abundantly clear from a review of relevant authority: that is, that certainly not all voluntary encounters with a foreseeable risk result in application of the assumption of the risk doctrine. Life is full of perils, many of which are foreseeable. However, the fact that an individual proceeds in daily activities does not mean that he is thereby excusing from liability an individual who has negligently caused him harm. As the noted writer on torts, William Prosser has stated:

A pedestrian who walks across the street in the middle of a block, through a stream of traffic travelling at high speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to avoid running him down.

W. Prosser, Law of Torts, (4th ed. 1971) at 445. This is true even though it is readily foreseeable, and thus must be understood to be an associated risk of the endeavor, that one might be struck by one of the vehicles. Understandably, in light of these principles, we have stated “[a]ll voluntary risk-taking that can be described by the ambiguous phrase ‘assumption of the risk’ does not constitute the defense.” Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042, 1048 (1983). Instead, all the elements of the defense — that the plaintiff fully understood the specific risk, voluntarily chose to encounter it, and under circumstances that manifest a willingness to accept it — must be demonstrated before the theory will be submitted to the jury. Id. We commented in Fish, that a “particularly difficult element of the defense is in defining ‘circumstances that manifest a willingness to accept’ the risk.” Id.

The essence of assumption of the risk defense is not an evaluation of fault or negligence in encountering a danger but an acknowledgement that the plaintiff changed his position. Before suffering injury “he intelligently acquiesced in a known danger and abandoned his right to complain, but afterwards, seeks to assert the claim he had waived.” Id., 463 A.2d at 1049. We stated in Fish that “to imply such a waiver from conduct and circumstances alone can be a source of ‘misapprehension and confusion’ and ‘frequent misapplication.’ ” Id. Thus our court has taken a restrictive attitude toward the circumstances from which the assumption of risk defense might imply, id., and has concluded that endeavors that contain an element of voluntary risk-taking do not necessarily demonstrate a deliberate abandonment of the right to complain, but rather, are better judged by their reasonableness under the circumstances, thus, implicating comparative negligence principles. Id.

In the present case it is true that the decedent was aware of the risk of a trench cave-in prior to suffering the fatal accident. However, as alluded to earlier, there are many practical endeavors in life that have foreseeable dangerous consequences attached to them. Every time that an individual takes a seat in an automobile or an airplane, for instance, he should be aware that there exists a possibility that the vehicle may collide with another or that the plane may crash to the ground. Every time that an individual undergoes surgery he should be aware that there is a risk of lapsing into a coma or dying. However, the law has never taken cognizance of these facts arid relied upon them to excuse an individual who negligently causes a motor vehicle collision from liability for the resulting injuries, or likewise excusing a negligent surgeon or anesthesiologist or the negligent airline from resulting injury or death. Certainly the decedent was aware of the general dangers associated with the job he had contracted to provide. But this does not necessarily indicate that he was agreeing to excuse the contractor from exercising proper care and regard for his safety. To the extent appellant’s negligence was a substantial factor contributing to the decedent’s death, and in the absence of evidence that appellant had abandoned his right to complain, appellant was rightfully held accountable for the decedent’s death.

Appellant has attempted to paint a picture that implies that the decedent assumed the risk of a trench collapse in the legally acknowledged sense. Yet, we are unconvinced by this attempt. The true essence of appellant’s argument is that the risk of cave-in in this particular case was so exigent and obvious that the decedent’s decision to perform or continue with the job must be construed as a voluntary assumption of the risk, or in other words, an abandonment of the right to complain. In practicality, this is the true essence of the defense itself. A situation involving the voluntary encountering of a known danger under circumstances that suggest, or really compel a finding of, a waiver of an individual’s right to complain about a breach of duty of care to the risk taker. Examples of such situations were related in Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118, 542 A.2d 525 (1988), and include the act of walking over a clearly visible patch of ice in a parking lot, Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983), ascending or descending obviously uneven steps, Villano v. Security Savings Assoc., 268 Pa.Super. 67, 407 A.2d 440 (1979), attending a baseball game (the risk of being struck by a baseball), and inserting one’s head into an elevator shaft through a broken protective window, Malinder v. Jenkins Elevator Co., 371 Pa.Super. 414, 538 A.2d 509 (1988). However, if the true nature of the defense is the encountering of a risk under circumstances that imply waiver of a right to complain, we do not believe appellant has demonstrated that situation in the present case.

Appellant points to several facts in an effort to imply a waiver of a right to complain, the fact that this job was considered delicate by the decedent and the excavator, even dangerous. Also to the fact that water was struck during excavation and that it had previously rained. Appellant also points to the few occasions during the job when small amounts of dirt fell from the side of the trench, and the fact that the decedent had insisted on finishing the job despite the difficulties encountered. However, despite the fact that there was an element of risk in the job, the risk of a collapse did not appear to be so great that, in practicality, performance of the job would have to be construed as a waiver of a right to complain.

The excavator testified that the job was dangerous, meaning that it required “respect” and required one to be “on the alert.” However, he further stated that it was not unsafe, meaning that you “would never go in it.” He further testified that he didn’t feel the job was dangerous enough to shut the machines down and that at a point prior to the accident he felt that they had completed the most dangerous part of the job and that “there was no cave in situation.” As such, there was no assumption of an extraordinary risk under circumstances that would imply a waiver of a right to complain, and certainly, there has not been demonstrated any kind of express waiver of this sort.

As we suggested earlier, the fact that the decedent voluntarily performed a job that had some associated risk, cannot, by itself, imply a waiver of another’s duty of care; or excuse an individual who has negligently contributed to the occurrence of that contemplated risk. If so, much of all actionable injury would be rendered unredressable due to the doctrine of assumption of the risk. This is hardly the purpose of the doctrine, and is also a legally and logically faulty position. Furthermore, much of the actions which could be cited to support an assumption of the risk theory occurred in close time proximity to the accident. Under such circumstances, Fish v. Gosnell, supra, suggests that those actions be considered in a reasonableness/negligence context, not in an assumption of the risk context. The theory of comparative negligence was submitted to the jury, which, in fact, found the decedent one-third negligent. Consequently, we conclude that the trial court did not err when he refused to instruct the jury on assumption of the risk.

As to appellant’s other issues, we have reviewed the allegation of error regarding the instruction on agency but have found no error. We will rely upon the discussion of this issue in the opinion of the trial court in affirming this issue. Further, we find appellant’s contention regarding error in the molding of the verdict waived for failure to complain of the trial court’s molded verdict, or to otherwise raise this contention below. See, Dilliplaine v. Lehigh Valley Trust, 457 Pa. 255, 322 A.2d 114 (1974).

For the foregoing reasons, we affirm the judgment appealed from.

Judgment affirmed.

BECK, J., files a concurring statement.

BECK, Judge,

concurring:

I join the majority. I write separately only to note my continuing adherence to the view that with the enactment of the Comparative Negligence Act, 42 Pa.Cons.Stat.Ann. § 7102 (1982), the legislature also clearly intended the abolition of the defense of assumption of the risk in cases where the plaintiffs conduct can be characterized as negligent. In such cases, the plaintiffs conduct should be analyzed under the rubric of comparative negligence and compared to that of the defendant. Whether the plaintiffs conduct can also be characterized as a voluntary assumption of the risk should not be regarded as controlling. See Malinder v. Jenkins Elevator & Machine Co., 371 Pa.Super. 414, 538 A.2d 509 (1988) (Beck, J., dissenting); Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118, 542 A.2d 525, 532-33 (1988).

As the majority notes, the “parameters of the assumption of the risk defense are somewhat difficult to define.” This case is a perfect illustration of the difficulties presented in ■ determining the applicability of the defense where the plaintiffs conduct is negligent. When precisely does the negligent conduct of a plaintiff rise to the level of a voluntary assumption of the risk? Under what circumstances can it be implied that the plaintiff has abandoned his right to complain of the consequences? Case law provides no workable standard to use in answering these questions. These difficulties would be avoided if it were recognized that the Comparative Negligence Act has eliminated the need for courts or juries to grapple with this unwieldy concept. The Act allows a jury to make a full and fair assessment of the plaintiffs conduct whenever it can be characterized as negligent, to compare it to that of the defendant, and to reduce or even bar recovery where appropriate.

      . It would appear important to distinguish the facts which relate to a point in time prior to the performance of the job and those that occurred rather contemporaneously with it. Certainly, the mere contracting of the job to install the sewer line, without more, would seem insufficient to establish assumption of the risk. There would simply be an insufficient basis from which waiver of the right to complain could be implied. The other events which occurred during the performance of the job very well may be too close in proximity to be considered, under Fish v. Gosnell, in implying such a waiver as well. For instance the decedent’s decision to remain in the ditch when the warning was sounded immediately preceded the collapse, and under Fish would be properly considered in a comparative negligence context, not an assumption of the risk context.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    574 A.2d 697
    COMMONWEALTH of Pennsylvania v. Robert BUCKMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1989.
    Filed May 10, 1990.

      Heywood E. Becker, New Hope, for appellant.
    David W. Zellis, Asst. Dist. Atty., Doylestown, for Com., appellee.
    Before CIRILLO, President Judge, and BROSKY and BECK, JJ.
   BECK, Judge:

This case presents a significant question concerning the power of state inspectors to conduct warrantless searches of goods for sale in commercial establishments throughout Pennsylvania.

The relevant facts are not in dispute. Robert Buckman is the owner and operator of Buckman’s Garden Works, a lawn and garden supply center located in Doylestown. On May 22, 1986, two deputy sealers employed by the Bucks County Department of Weights and Measures entered Buckman’s store during normal business hours and asked to open two bags of pine bark mulch selected at random from his inventory. The agents planned to cut open the sealed packages of mulch and dump their contents into a measuring box in order to ascertain whether the weights and measurements listed on the packages were accurate. The Department of Weights and Measures had not received any complaints concerning the products sold at Buckman’s Garden Works, and the agents had no reason to believe that Buckman had ever sold falsely labeled merchandise. The proposed inspection was part of an ongoing program of random spot checks of items offered for sale conducted by the Department on a year round basis.

Buckman objected to the inspection on the grounds that it would destroy the sealed packages and would ruin the products for retail sales purposes. He told the agents that if they opened the packages, he would charge them for the mulch. Instead of buying the mulch, the agents summoned their supervisor. After speaking with the supervisor, Buck-man again refused to consent to a warrantless search of the packages. He repeatedly insisted that the agents purchase the packages before measuring their contents. The agents and supervisor departed from the store without conducting a search.

Buckman was cited for committing the following offense:

Any person who shall hinder or obstruct in any way the Attorney General, the director or any one of the inspectors or a sealer or a deputy sealer in the performance of his official duties shall upon conviction thereof, in a summary proceeding be punished by a fine of not less than twenty dollars ($20) or more than two hundred dollars ($200), or by imprisonment for not more than three months, or by both such fine and imprisonment.

Pa.Stat.Ann. tit. 73, § 1684 (Purdon Supp.1989). He was tried by a district justice, convicted, and fined twenty dollars. He appealed to the Court of Common Pleas of Bucks County where, following a trial de novo, he was again convicted and the twenty dollar fine was reimposed. Following the denial of post-trial motions, he filed a timely notice of appeal with this court.

I.

The fourth amendment to the Constitution of the United States provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

Appellant contends that warrantless nonconsensual inspections of consumer goods by agents of the Weights and Measures Department are unreasonable searches prohibited by the fourth amendment. We must decide at the outset if this issue is properly before us.

Appellant prevented the state inspectors from opening his mulch bags. No search or seizure of any personal property was actually conducted. We must therefore determine whether appellant has standing to raise a fourth amendment challenge to his conviction. We find that appellant has standing to litigate the fourth amendment issue. Appellant was convicted and fined for refusing to allow a warrantless search of his business. If the search that the inspectors planned to undertake would have complied with fourth amendment standards, appellant’s conviction was proper. On the other hand, if the proposed search would have violated appellant’s fourth amendment rights, appellant cannot be penalized for failing to comply with the inspectors’ demands.

In See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the United States Supreme Court addressed a constitutional challenge that arose in a similar procedural posture. Norman See owned a commercial warehouse in Seattle, Washington. A representative of the Seattle Fire Department attempted to conduct a warrantless inspection of the warehouse pursuant to the city fire code. See refused to permit the fire inspector to enter the warehouse and no search took place. See was convicted of the summary offense of failing to comply with an order of the fire chief, and was subjected to a suspended fine of $100. On appeal, the United States Supreme Court found that the municipal ordinance providing for warrantless searches of business property was inconsistent with the fourth amendment. The Court further reasoned that “appellant may not be prosecuted for exercising his constitutional right to insist that the fire inspector obtain a warrant authorizing entry upon appellant’s locked warehouse.” 387 U.S. at 546, 87 S.Ct. at 1741. Accordingly, the Court reversed See’s conviction.

See v. Seattle illustrates that a defendant may mount a successful constitutional attack on an inspection program even if no actual search or seizure of his business property was accomplished. Cf. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (fourth amendment bars prosecution of tenant for refusing to allow warrantless inspection of apartment building that was authorized by municipal housing code); Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978) (fourth amendment bars enforcement of federal statute compelling manager to submit, to warrantless inspection of business involved in interstate commerce). Citizens may not be forced to endure the Hobson’s Choice of opening their private property to illegal warrantless searches or facing the prospect of imprisonment. At least where a state inspector seeks to perform an unconstitutional search, where the inspector has not obtained a warrant or prior court order sanctioning the search, and where the owner of the premises does no more than offer non-violent resistance to the invasion of his property, the fourth amendment confers immunity from prosecution for hindering the duties of the inspector.

In light of these considerations, we hold that appellant has standing to question the constitutionality of warrantless inventory searches by agents of the Department of Weights and Measures. Under Pennsylvania law, a party asserting standing must ordinarily have a direct, immediate, and substantial interest in the subject matter of the litigation. See Franklin Township v. Dep’t of Envtl. Resources, 500 Pa. 1, 452 A.2d 718 (1982). Appellant has a direct, immediate, and substantial interest in litigating the constitutionality of inventory searches since a finding that such searches are unconstitutional would afford a complete defense to the criminal offense of which he was convicted and for which he was fined. Moreover, appellant was personally aggrieved by the prosecution and conviction for hindering the duties of the inspector. Appellant seeks to vindicate his personal right to oppose in a peaceful manner an unlawful search of his own property; appellant is not attempting to invoke the constitutional rights of any third party. Therefore, we must reach the merits of appellant’s fourth amendment claim.

II.

Appellant calls into question the constitutionality of certain provisions of the Weights and Measures Act of 1965. The Act provides the statutory basis for searches by inspectors of weights and measures. Section 1662 of the Act, as codified, states in relevant part:

The Attorney General shall from time to time, weigh or measure and inspect packages or amounts of commodities kept, offered or exposed for sale, sold or in the process of delivery, to determine whether the same contain the amounts represented and whether they be kept, offered or exposed for sale or sold in accordance with law____

Pa.Stat.Ann. tit. 73 § 1662.

Section 1665 provides:

(a) With respect to the enforcement of this act and any other acts dealing with weights and measures that he is or may be empowered to enforce, the Attorney General may seize for use as evidence without formal warrant, incorrect or unsealed weights and measures or amounts or packages of commodities found, prior to seizure, to be used, retained, offered or exposed for sale or sold in violation of the law.
(b) In the performance of his official duties, the Attorney General is authorized to enter and go into or upon without formal warrant, any structure or premises and to stop any person whatsoever and to require him to proceed with or without any vehicle of which he may be in charge to the nearest available testing apparatus tested and approved by the Attorney General, a city or a county.

Id. at § 1665. Section 1666 further provides that the powers and duties imposed upon the Attorney General are also imposed upon inspectors acting under the Attorney General’s directions.

Read as a whole, these provisions appear to grant inspectors broad authority to conduct warrantless searches of store inventories. Appellant does not dispute that the agents of the Department of Weights and Measures acted in furtherance of this statutory scheme when they attempted to open packages at Buckman’s Garden Works. All statutory schemes, however, are subject to certain overriding constitutional limitations. We must determine whether the proposed search of the mulch bags was consistent with the fourth amendment.

It is now well established that fourth amendment protection against unreasonable searches and seizures extends to private commercial property. New York v. Burger, 482 U.S. 691, 699, 107 S.Ct. 2636, 2642, 96 L.Ed.2d 601 (1987). Indeed, one impetus for the passage of the fourth amendment was the bitter experience of colonial merchants whose products were frequently inspected by agents of the Crown to ensure payment of taxes imposed by the British Parliament. See Marshall v. Barlow’s, Inc., 436 U.S. at 311-12, 98 S.Ct. at 1819-20. The United States Supreme Court has held that administrative inspections of businesses may not ordinarily be carried out without first obtaining a warrant or the consent of the owner. See v. Seattle, supra. However, the Court has recognized a limited exception to the warrant requirement in the case of certain industries that are subject to extensive regulation. See Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). The Commonwealth argues that searches by agents of the Department of Weights and Measures fall within the Colonnade-Biswell exception to the warrant requirement.

The Colonnade-Biswell doctrine validates certain warrantless administrative searches that are authorized by statute or duly promulgated regulation. See generally Commonwealth v. Black, 365 Pa.Super. 502, 530 A.2d 423 (1987). In order for the doctrine to apply, there must be an initial determination that the business establishment that is the target of the search is part of a closely regulated industry. See Burger, 482 U.S. at 703-707, 107 S.Ct. at 2644-46; Barlow’s, 436 U.S. at 313, 98 S.Ct. at 1820. Moreover:

... warrantless inspection ... even in the context of a pervasively regulated business, will be deemed to be reasonable only so long as three criteria are met. First, there must be a “substantial” government interest that informs the regulatory scheme pursuant to which the inspection is made____ Second, the warrantless inspections must be “necessary to further [the] regulatory scheme.” ... Finally, ... the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.

Burger, 482 U.S. at 702-03, 107 S.Ct. at 2643-44 (citations omitted).

In this case, we must focus on the threshold question of whether Buckman’s Garden Works is part of a closely regulated industry. It has been said that an industry is closely regulated if the “regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections for specific purposes.” Burger, 482 U.S. at 705 n. 16, 107 S.Ct. at at 2645 n. 16 (citing Donovan v. Dewey, 452 U.S. 594, 600, 101 S.Ct. 2534, 2539, 69 L.Ed.2d 262 (1981)). Although this general definition is open to varying interpretations, a review of precedent provides further guidance.

In Colonnade, supra, the United States Supreme Court upheld a statute that authorized warrantless searches of the business premises of liquor licensees. In doing so, the Court noted that the sale of alcohol has been subject to an exceptional degree of close government supervision throughout the history of our nation. Id., 397 U.S. at 75-76, 90 S.Ct. at 776. In Biswell, supra, the Court sanctioned warrantless searches of gun dealers conducted pursuant to a federal gun control law. The Court observed that facilities dealing in sporting weapons are federally licensed, and that by accepting a license, a dealer is put on notice that “his business records, firearms, and ammunition will be subject to effective inspection.” Id., 406 U.S. at 316, 92 S.Ct. at 1596. Dewey, supra, approved warrantless searches of the mining industry conducted pursuant to the Federal Mine, Safety and Health Act of 1977. In this context, the Court stressed that mining is among the most dangerous of all occupations, and that the Act established a comprehensive scheme for the regulation of mines that limited the discretion of federal inspectors. Burger, supra, upheld a New York statute authorizing warrantless searches of automobile junkyards. The Court found that junkyards specializing in the dismantling of vehicles are closely regulated by the state of New York; this conclusion was based in large part on the fact that operators of such establishments are required to obtain a license from the state and comply with detailed record keeping requirements.

On the other hand, not every commercial enterprise that is subject to government inspection by statute qualifies as pervasively regulated. In Barlow’s, supra, a federal safety inspector attempted to search an electrical and plumbing installation business. The inspector relied on section 8(a) of the Occupational and Safety Health Act of 1970 (the OSHA Act) which granted agents of the Secretary of Labor the right to enter the work areas of establishments engaged in interstate commerce. The manager denied the inspector entry and challenged the Act on fourth amendment grounds. On appeal, the Court rejected the Secretary of Labor’s argument that by passing the Act, the government had exposed all businesses engaged in interstate commerce to close regulation. Writing for the majority, Justice White stated that: “The clear import of our cases is that the closely regulated industry of the type involved in Colonnade and Biswell is the exception. The Secretary would make it the rule.” 436 U.S. at 313, 98 S.Ct. at 1821. Justice White further noted that “[only] the most fictional sense of voluntary consent to later searches [can] be found in the single fact that one conducts a business affecting interstate commerce; under current practice and law, few businesses can be conducted without having some effect on interstate commerce.” Id., 436 U.S. at 314, 98 S.Ct. at 1821. Accordingly, the Court declared section 8 of the Act unconstitutional.

Recently, the Pennsylvania Supreme Court applied the federal case law concerning regulated industries in Department of Environmental Resources v. Blosenski Disposal Service, 523 Pa. 274, 566 A.2d 845 (1989). In that case, the Court rebuffed a challenge to warrantless inspections of waste disposal facilities authorized by the Solid Waste Management Act. The Court found that these facilities are subject to “extensive and pervasive regulation....” Id. at 284, 566 A.2d at 850. In support of this conclusion, the Court cited provisions of the Act that require, inter alia, that all persons who engage in the processing, storage or treatment of waste obtain permits from the state and comply with .state regulations. Pa.Stat.Ann. tit. 35 §§ 6018.201-6018.405. The Court also emphasized the public health risk posed by waste materials. Finally, the Court was careful to distinguish Barlow’s:

In Barlow’s, the United States Supreme Court invalidated warrantless searches permitted under OSHA because the OSHA statute allowed searches of all worksites engaged in interstate commerce. The instant case involves searches of only a single business engaged in the disposal of solid wastes and is therefore clearly distinguishable from Barlow’s. Indeed, we think, as noted above, that this case is like Colonnade and Biswell in that only a single business or industry is involved and that any one engaged in the business activity should be aware that because of the vital public and statutory interest society now recognizes in proper solid waste disposal from an environmental standpoint, that unannounced inspections (as authorized by Section 608 of the Solid Waste Management Act) can be anticipated.

Blosenski, 523 Pa. at 285, 566 A.2d at 850.

Against the backdrop of these prior cases, we must assess the constitutionality of the warrantless inspection of stores specializing in the retail sale of lawn and garden supplies. We find that these stores are not part of any closely regulated industry. Such establishments lack the distinguishing characteristics of businesses that previously have been recognized as pervasively regulated. Unlike sales of alcoholic beverages, sales of garden supplies have not been the focus of a long history of close government supervision. Nor does the state require that a businessman obtain a license or permit before he may sell bags of mulch and similar products. Moreover, the Commonwealth has not come forward with evidence that the garden supply trade is especially dangerous or poses a significant threat to public health and safety. Thus, a person opening a garden shop might easily be unaware that his commercial property would be subject to warrantless searches and seizures.

The Commonwealth attempts to invoke the Colonnade-Biswell doctrine on the sole ground that garden shops are covered by the warrantless search provisions of the Weights and Measures Act of 1965. This argument might have merit if the Weights and Measures Act were a detailed and comprehensive legislative scheme designed to regulate a narrowly defined sector of the economy. See Dewey, supra (upholding federal Mine, Safety and Health Act of 1977). Such is not the case. The Act is not directed exclusively at any particular category of products. Instead, the Act grants state agents general authority to “go into or upon, without formal warrant, any structure or premises” and inspect “commodities, kept, offered or exposed for sale, sold or in the process of delivery____” Pa.Stat.Ann. tit. 73 §§ 1662, 1665. The word commodity encompasses “[anything — goods, wares, merchandise, compound mixture or preparation, products of manufacture or any tangible personal property — which may be lawfully kept, sold or offered for sale.” Pa.Stat.Ann. tit. 73 § 1652. This broad language would apparently cover every manufacturing, wholesaling, and retailing enterprise in Pennsylvania.

The search and seizure provisions of the Weights and Measures Act are reminiscent of the section of the OSHA Act that the United States Supreme Court invalidated in Barlow’s. The OSHA Act permitted searches of all businesses engaged in interstate commerce. The Weights and Measures Act permits searches of all businesses that sell commodities. These statutes share the same infirmity— rather than regulate a single industry, they abolish the warrant requirement as to a vast number of industries that engage in ordinary commercial activities. To paraphrase Justice White’s opinion in Barlow’s, only the most fictional sense of voluntary consent to searches can be found in the fact that one conducts a business that in some way involves the sale of tangible personal property. If we were to endorse the warrantless inspection of all such businesses, the Colonnade-Biswell exception to the warrant requirement for searches of commercial property would come perilously close to swallowing the general rule.

The Weights and Measures Act of 1965 sweeps within its reach many businesses that cannot reasonably be characterized as closely regulated. Insofar as sections 1662 and 1665 of the Act authorize warrantless searches of businesses that are not the subject of close regulation, we hold that these provisions are invalid. We need not reach the question of whether every warrantless inspection undertaken pursuant to the Act would violate the fourth amendment. It might be argued, for example, that an inspector may verify the weights and measures listed on a bottle of alcohol without obtaining a warrant since the alcoholic beverage industry is in fact pervasively regulated in this Commonwealth. See Commonwealth v. Black, 365 Pa.Super. 502, 530 A.2d 423 (1987). However, we are constrained to find that at least as applied to the warrantless inspection of goods for sale in lawn and garden supply centers, sections 1662 and 1665 are clearly unconstitutional.

We reach this conclusion with full awareness of the strong presumption that the legislature has acted within constitutional bounds. See Blosenski, 523 Pa. at 282-283, 566 A.2d at 849. This presumption is not irrebuttable. In an appropriate case, a court must undertake a careful and sensitive review of legislation in order to ensure that the constitutional rights of the people have not been infringed. Moreover, in addressing a constitutional challenge to a statute, it is often useful to consider the statute in historical context. In 1959, in the case of Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959), the United States Supreme Court limited the warrant requirement to traditional police searches for evidence of crime. At the time the legislature passed the Weights and Measures Act of 1965, Frank was the law of the land. In 1967, the United States Supreme Court overruled Frank and held that the fourth amendment generally prohibits warrantless administrative inspections of commercial structures. Camara, 387 U.S. 523, 87 S.Ct. 1727; See, 387 U.S. 541, 87 S.Ct. 1737. Viewed in this light, it is hardly surprising that the Weights and Measures Act of 1965 poses constitutional problems. The 1965 Pennsylvania General Assembly cannot be faulted for failing to foresee the constitutional developments of the past twenty-five years. Yet, we must apply the law as it has evolved.

We therefore conclude that agents of the Department of Weights and Measures do not have carte blanche to enter businesses and open sealed packages without a warrant and without the consent of an owner. By so concluding, we do not deny the importance of the services provided by the Department. The improper labeling of goods is a fraud upon the public that may go undetected in the absence of an effective inspection program. Yet, it is difficult to argue that a blanket exemption from the warrant requirement is necessary in order for the Department to fulfill its function. In the vast majority of cases, it is likely that businessmen will freely consent to inspections in order to foster public confidence in their wares. In those few cases where consent is denied, the inspector may attempt to secure a search warrant. Although obtaining a search warrant would involve a short delay, a businessman would have difficulty disposing of a large inventory of falsely labeled goods on short notice. Alternatively, an inspector could simply buy a product prior to measuring its weight and volume. In the instant case, the Department’s decision to bring criminal charges against the appellant rather than purchase two bags of mulch did nothing to advance the goal of consumer protection.

The appellant was within his rights when he refused to permit a warrantless search of his goods. Therefore, he cannot be convicted and fined for interfering with an inspection.

III.

In affirming appellant’s conviction, the Court of Common Pleas relied on the Weights and Measures Act of 1965. For the above stated reasons, the Act does not justify a warrantless search of appellant’s garden shop. The trial court also suggested an alternative basis for dismissing appellant’s fourth amendment challenge. The court reasoned that appellant “cannot claim a right to privacy in goods publicly displayed in an establishment where the public is invited to come, inspect, and buy during regular business hours.” Trial Court Op. at 4-5. We do not agree.

It is true that a businessman does not possess a reasonable expectation of privacy in commercial premises to the extent that he knowingly exposes the premises to the general public. See 2 W. LaFave, Search and Seizure § 2.4(b) (2d ed. 1987) (collecting cases). State inspectors, like any other members of the public, are free to enter retail stores during normal business hours and observe merchandise on display. This does not mean that a businessman waives his privacy interest in the interior of a sealed container by placing it on the shelf. Only the outside packaging of the container is within plain view of customers. The businessman does not relinquish his privacy interest in the contents of the package until the package is sold.

On this point, the United States Supreme Court’s unanimous decision in Lo-Ji Sales v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979), is instructive. In that case, an investigator for the New York State Police appeared before a Town Justice and sought to obtain a warrant to search an adult bookstore. The Town Justice not only issued the warrant, but also accompanied the police to the bookstore and actively took part in the search. At the time the search party arrived, the bookstore was open for business. The police removed plastic and cellophane covers from publications so that the Town Justice could view their contents and determine if they were obscene. The police also directed a clerk who worked at the bookstore to adjust coin-operated projectors so that the Town Justice could view films on the projectors without depositing any money. Numerous items were seized and obscenity convictions were obtained.

On appeal, the Court first concluded that the Town Justice had departed from his proper role as a neutral and detached judicial officer and that therefore the warrant for the search of the bookstore was invalid. The Court then proceeded to address the State’s alternative theory for upholding the convictions. Chief Justice Burger, writing for the Court, explained:

The suggestion is that by virtue of its display of the items at issue to the general public in areas of its store open to them, petitioner had no legitimate expectation of privacy against government intrusion, see Rakas v. Illinois, 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421 (1978), and that accordingly no warrant was needed. But there is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to Fourth Amendment guarantees. See Lewis v. United States, 385 U.S. 206, 211, 17 L.Ed.2d 312, 87 S.Ct. 424 [427] (1966). The Town Justice viewed the films, not as a customer, but without the payment a member of the public would be required to make. Similarly, in examining the books and in the manner of viewing the containers in which the films were packaged for sale, he was not seeing them as a customer would ordinarily see them.

442 U.S. at 329, 99 S.Ct. at 2326.

The instant case is analogous. The agents of the Department of Weights and Measures were not content with seeing appellant’s mulch bags in the manner in which a customer would ordinarily see them. The agents insisted on examining the contents of the bags without making the payment a member of the public would be required to make. As against this intrusion, appellant maintained a reasonable expectation of privacy in his goods. Therefore, appellant may not be convicted for refusing to allow the warrantless search.

Judgment of sentence is vacated. Jurisdiction is relinquished.

      . An inspector’s official duty to conduct searches to ensure proper labeling of goods for sale derives from sections 12, 15, and 16 of the Weights and Measures Act of 1965. Pa.Stat.Ann. tit. 73 §§ 1662, 1665, 1666 (discussed infra).

      . The instant appeal should not have been filed in the Superior Court. The Weights and Measures Act of 1965 is a regulatory statute administered by the Bureau of Weights and Measures at the direction of the Attorney General. See E.L.G. Enterprises Corp. v. Gulf Oil Co., 291 Pa.Super. 414, 435 A.2d 1295 (1981). Commonwealth Court has jurisdiction over appeals from criminal prosecutions administered by Commonwealth agencies. 42 Pa.Cons.Stat.Ann. § 762(a)(2) (Purdon 1981). However, appellee’s failure to file a timely objection to the filing of this appeal has perfected the jurisdiction of this court. Pa.R.App.P. 741.

      . Appellant also argues that the effect of warrantless inspections is to render goods unsaleable, and that therefore such inspections constitute a taking without just compensation in violation of the fifth amendment. Since we find that appellant’s fourth amendment claim is meritorious, we need not address his fifth amendment claim.

      . The issue of whether a party has standing to assert a fourth amendment claim usually arises in cases where a defendant seeks to suppress evidence on the grounds that the evidence was the fruit of an unreasonable search. In such cases, the question of whether the defendant has standing to raise a fourth amendment challenge merges with the question of whether the search violated a legitimate expectation of privacy on the part of the defendant. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). We emphasize that the instant case does not present any suppression issue. Moreover, we need not determine whether a defendant who wishes to raise a fourth amendment defense to a prosecution for refusing to consent to a search must have a legitimate expectation of privacy in the area that he prevented the state inspectors from searching. Assuming arguendo that such a requirement exists, we note that appellant has a legitimate expectation of privacy in the mulch bags that the agents of the Department of Weights and Measures sought to inspect for the reasons specified in Section III of this opinion.

      . The legislature has transferred the Attorney General’s powers and duties under the Act to the Secretary of Agriculture. Pa.Stat.Ann. tit. 71 § 755-3 (Purdon Supp.1989).

      . See Pa.Stat.Ann. tit. 35 § 6018.608 (Purdon Supp.1989). In Commonwealth v. Lutz, 512 Pa. 192, 516 A.2d 339 (1986), a plurality of the Court had concluded that although warrantless inspections of hazardous waste sites were permissible, warrantless inspections of non-hazardous waste sites were unconstitutional. The Blosenski Court disapproved Lutz insofar as Lutz invalidated searches of sites handling ordinary solid waste.

      . Sections 1662 and 1665 were part of the original public law enacted in 1965. 1965, Dec. 1, P.L. 988, §§ 12, 15. The only subsequent change in the text of these provisions was a 1968 amendment transferring inspection powers from the Secretary of the Interior to the Attorney General. 1968, Dec. 18, P.L. 1247, No. 396 § 1.

      . We note that in cases involving health and safety inspections, the United States Supreme Court has stated that a warrant may be issued upon a lesser standard than the probable cause required for police searches for evidence of crime. Health and safety inspectors, and perhaps other categories of inspectors, may obtain warrants upon a showing that "reasonable legislative or administrative standards for conducting an ... inspection are satisfied with respect to a particular [establishment].” Barlow's, 436 U.S. at 320, 98 S.Ct. at 1824 (citing Camara, 387 U.S. at 538, 87 S.Ct. at 1736).


author: HESTER, Judge: CIRILLO, President Judge,

text:
    574 A.2d 706
    Pier CIPRIANI and Ann Cipriani, his wife, in their own right and as Parents and Natural Guardians of Michael Cipriani, David Cipriani and Tricia Cipriani, minors and Robert Liepholt and Susan Liepholt, his wife, in their own right and as Parents and Natural Guardians of Michael Liepholt, Melissa Liepholt and Jennifer Liepholt, minors and James J. Rowley and Gloria Rowley, his wife and John M. Atkins and Kathleen M. Atkins, his wife and George F. Hepp, Jr. and Marylynne Hepp, his wife and Pat G. Morales, Jr. and Divina Morales, his wife and George S. Hartman and Martha Hartman, his wife and Joseph P. Adams and Charlotte Adams, his wife and Richard Foley and Jayne Foley, his wife v. SUN PIPE LINE COMPANY and Tri-State Telecommunications, Inc. and Davis Enterprises, Inc. v. E.A. DESIGNS, LTD. and Pennsylvania One Call Systems, Inc. and Maple Shade Cable Company, Inc. and Newtown Township and Newtown Cablevision, Inc. and Jan Gouza and Pickering Corts & Summerson. Appeal of SUN PIPE LINE COMPANY.
    Superior Court of Pennsylvania.
    Argued May 16, 1989.
    Filed May 11, 1990.

      Kenneth Scott and Bruce J. Chasan, Philadelphia, for Sun Pipe Line, appellant (at 2859) and appellee (at 3063).
    Howard J. Creskoff, Philadelphia, for Cipriani, Liepholt, Rowley, Atkins, Hepp, Morales, Hartman, Adams and Foley, appellees (at 2859 and 3063).
    William F. Schroeder, Newtown, for Pennsylvania One Call Systems, appellee (at 2859 and 3063).
    Gary Gremminger, Philadelphia, for Gouza and Pickering Corts & Summerson, appellants (at 3063) and appellees (at 2859).
    Before CIRILLO, President Judge, and ROWLEY and HESTER, JJ.
   HESTER, Judge:

This is a consolidated appeal by Jan Gouza and his engineering firm, Pickering Corts and Summerson, Inc. (collectively “Gouza”) and Sun Pipe Line Company (“Sun”) from judgment entered following an order denying their motions for post-trial relief. We affirm.

This class action was instituted as a result of a construction accident which occurred on November 12, 1982, in Newtown Township, Bucks County. During excavation work being performed by a local cable company to install cable lines, 50,000 gallons of unleaded gasoline spilled into the environment when one of Sun’s lines was ruptured. The line was located under a state road. Appellees, residents of a housing development adjacent to the site of the accident, instituted this action against Sun, Tri-State Telecommunications, Inc. (“Tri-State”), and Davis Enterprises (“Davis”). Subsequently, Gouza, E.A. Designs, Ltd. (“Designs”), and Pennsylvania One Call System, Inc. (“PA One-Call”) were joined as defendants. Then, Sun’s separate actions against the other defendants for its damages resulting from the accident were joined with this action.

During September and October, 1986, the issue of liability only for the accident was tried before’ a jury. On October 20, 1986, the jury returned its verdict, apportioning liability as follows: 1) forty percent to Tri-State; 2) eighteen percent to Sun; 3) fifteen percent to Gouza; 4) fourteen percent to Designs; 5) thirteen percent to Davis; and 6) no liability on the part of PA One-Call. Gouza and Sun are the only defendants to file appeals from the verdict.

Appeal of Gouza

The facts relevant to the issues raised in Gouza’s appeal may be summarized as follows. Sun’s pipeline, constructed in 1956, passes under Route 332 (Richboro Road) in New-town Township near the Newtown Crossing housing development where appellees reside. The pipeline crosses under Route 332 at the intersection of Mill Pond Road, a main access road to the development, and the pipeline remains underground along Route 332 for a distance of 2000 feet, where it crosses Green Street and continues underground where there are no longer any roads.

In 1982, Davis received the cable television franchise for Newtown Township. It hired Design to prepare the construction maps for the cable network and Tri-State to perform the underground cable installation. Representatives of Davis and Tri-State met with Gouza, the township engineer, on October 13, 1982, in order to receive highway occupancy permits that are required before excavation work may be performed on roads. Tri-State employees presented design maps for the cable television system at the meeting. The underground routes for cable installation were depicted on the maps, including an underground crossing of Richboro Road. Gouza issued forty road occupancy permits as a result of the meeting. The permits referred to the maps presented to Gouza at this meeting. Gouza never informed Tri-State or Davis that any of their proposed crossings were not covered by the permits, and there were sufficient permits issued by Gouza to cover all crossings indicated on the maps presented at the meeting. Richboro Road is a state highway, and Gouza does not have the authority to issue a permit for it. However, he did not inform the construction companies that he did not have this authority, and there was evidence presented that those companies did not realize that the road was state-operated until after the accident. The evidence also indicates that Gouza had reason to know of the location of Sun’s pipeline. Reproduced record (“R.R.”) at 1051a-55a, 2191a.

The construction companies sent a letter to the Newtown Township supervisors confirming their meeting with Gouza. The letter states that at the meeting, in compliance with Newtown Township ordinances, the cable television companies filed a set of construction plans showing the location and design of the cable network to Gouza. Gouza was present at the Newtown Board of Supervisors meeting held on November 1, 1982, and was aware of the letter.

Gouza’s liability arises from the duties imposed on him by a local ordinance as township engineer. The ordinance granting the cable television franchise for Newtown Township to Davis provides that Davis must obtain approval prior to commencing sub-surface street construction. The ordinance, in turn, requires the township engineer to review construction plans and approve them.

Gouza requests that we grant him either judgment notwithstanding the verdict or a new trial based upon the following allegations of trial error: 1) appellees failed to present expert testimony as to the standard of care applicable to a professional engineer; 2) the trial court erred in charging the jury that Gouza’s conduct should be examined by applying a reasonable man standard instead of that of a professional engineer; 3) the trial court characterized incorrectly the effect of the ordinance on Gouza’s liability; and 4) the trial court erred by failing to require that certain defendants reveal the terms of a settlement which they reached.

In reviewing an order denying a new trial, we will reverse the determination of the trial court only when it “clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case.” Gray v. H. C. Duke & Sons, Inc., 387 Pa.Super. 95, 101, 563 A.2d 1201, 1204 (1989), quoting Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 453, 539 A.2d 880, 881 (1988).

Our standard of reviewing the denial of judgment notwithstanding the verdict also is well-established. “[T]he sole duty of the appellate court is to decide whether there was sufficient evidence to sustain the verdict, granting the verdict winner the benefit of every favorable inference reasonably to be drawn from the evidence and rejecting all unfavorable testimony and inferences.” Lower Paxon Township v. United States Fidelity and Guaranty Co., 383 Pa.Super. 558, 561, 557 A.2d 393, 394 (1989), quoting Walasavage v. Marinetti, 334 Pa.Super. 396, 483 A.2d 509, 514-15 (1984).

Gouza’s first contention on appeal is that he is entitled to judgment notwithstanding the verdict in that appellees failed to present expert testimony on the issue of his negligence. He argues that since he is a professional engineer, appellees were required to present expert testimony to establish that his conduct did not conform to the standard of care of a professional engineer. We recognize that Gouza is an engineer and that the negligence alleged by appellees relates to performance of his duties as the township engineer. However, expert testimony is not required when the matter under consideration is simple and the lack of ordinary care is obvious and within the range of comprehension of the average juror. Smith v. Yoke, 412 Pa. 94, 194 A.2d 167 (1963); Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61 (1988); Burns v. City of Philadelphia, 350 Pa.Super. 615, 504 A.2d 1321 (1986). We concur with the trial court’s conclusion that expert testimony was not needed in order to establish that Gouza’s conduct was negligent. His negligence was obvious. He knew or should have known of the existence of the pipeline; he carelessly issued enough road occupancy permits to cover all road crossings, including the state road which transverses by the pipeline; he made no reasonable investigation to ensure that the construction maps had correctly marked all underground lines even though this was one of the responsibilities delegated to him under the ordinance. Gouza’s lack of care was within the comprehension of the ordinary lay person.

Similarly, Gouza argues that the trial court erred in instructing the jury that his actions should be analyzed under a reasonable man standard. Instead, Gouza suggests that the jury should have been instructed under a professional engineer’s standard of care. His argument entitles him to no relief. Gouza, citing a number of cases applying Restatement section 299 A, argues that since he was charged with negligence in connection with services rendered as township engineer, the jury should have been charged that his actions were to be evaluated under the standard of care required of professionals. However, Gouza fails to consider that this standard of care is a higher standard of care than that applicable to an ordinary person. See Restatement (Second) § 299 A, comment a (skill as used in this section is something more than the competence required of any person who performs an act and is a special form of competence not part of the ordinary equipment of the reasonable man, resulting from the acquired training and learning).

Therefore, the trial court may have been in error not to charge the jury that Gouza owed a higher duty to appellees due to his special training and expertise. However, this error inured to Gouza’s benefit in that the jury was permitted to evaluate his actions under a lesser standard of care. The jury nonetheless determined that Gouza was negligent, even evaluating his actions under the reasonable man standard. If a reasonable man would not have performed in this manner, certainly a specially trained professional, with special knowledge as to the existence of underground lines, would not have issued the permits in such a manner. Gouza, in effect, seeks a new trial wherein he would be judged under a higher standard of care than the standard of care which the jury determined he violated. This is an argument that appellees should make, and the argument provides no relief to Gouza since the error did not affect the outcome of the case as it relates to the jury’s determination that Gouza was liable to appellees.

Next, Gouza contends that the trial court’s characterization of the effect of the township ordinance was incorrect. Gouza has failed to preserve this issue for our review in that he failed to object to the charge to the trial court on this basis. The trial court charged the jury that if it determined that Gouza had violated the ordinance and the violation was a proximate cause of the accident, it must find Gouza negligent as a matter of law. The correct charge was that violation of the ordinance may be considered as evidence of negligence. At the close of the charge, Gouza did not object to the charge as it related to the characterization of the effect of a violation of an ordinance. Gouza stated: “Also, [I] have a problem with your charge on the ordinance. Again ... I think the jury can infer that the statute was designed to set standards for this cable company contractor, not the township engineer.” Notes of Testimony, 10/20/86 (Volume XXIII), at 74. Clearly, Gouza’s argument was that the ordinance did not impose a duty on him, but that the ordinance imposed a duty only on the cable contractors. His objection to the trial court was significantly different from his objection to the charge on appeal.

Under Pa.R.C.P. 227.1, errors which could have been corrected during trial by timely objection cannot constitute a ground for post-trial relief. Instantly, if the proper objection had been brought to the attention of the trial court, it would have been able to correct its error. We have ruled that “unless a specific exception has been taken to an alleged error in the trial court’s instructions, the alleged error will be deemed waived and will not be considered by the reviewing court.” Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 537, 521 A.2d 25, 32 (1987). If Gouza had stated precisely that his objection was to the characterization of the result of violation of the ordinance, the trial court easily could have corrected its instruction on the ordinance to comport with the Pennsylvania Standard Jury Instructions, which state that failure to comply with an ordinance may be considered evidence of negligence, but do not state that failure to comply with an ordinance is negligence per se. Accordingly, since Gouza did not present this objection to the trial court, it is not preserved. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Gouza’s final allegation is that the trial court erred in refusing to give him access to the settlement agreement reached by certain of the parties. It is axiomatic that the settlement agreement among the settling tortfeasors could not be admitted into evidence or used for any purpose during the trial of this matter. 42 Pa.C.S. § 6141(c); Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 533-34, 521 A.2d 25, 30-1 (1987). We will grant a new trial only where an erroneous ruling contributed to the verdict. Thus, assuming arguendo, the trial court erred in not permitting Gouza to see the agreement, the error did not affect the outcome of the case since the agreement could not be utilized during the trial for any purpose. Accordingly, Gouza is not entitled to a new trial on the basis of this allegation. of trial error.

Appeal of Sun

Sun’s liability for the accident was submitted to the jury on four theories. First, Sun marked the location of its pipeline, as required by federal regulations, inadequately. Second, Sun negligently performed, the inspections of its pipeline that it is required to perform under federal regulations. Third, Sun was negligent for failing to join ■ PA One-Call. Fourth, Sun unnecessarily delayed in its clean-up efforts, increasing the amount of leakage from the ruptured pipe.

On appeal, Sun raises four contentions: 1) it should be granted judgment notwithstanding the verdict since it could not be found liable as a matter of law for negligently marking the location of its pipeline; 2) the trial court erred in submitting the issue of negligent pipeline surveillance to the jury; 3) the trial court erred in submitting the issue of post-accident delay to the jury; and 4) the trial court erred in submitting to the jury, the issue of whether Sun was negligent for failing to join PA One-Call. Sun also contends that the trial court erred in failing to submit special interrogatories to the jury to ascertain upon which theory of liability its verdict against Sun was based. Sun requests a new trial if we determine that any of its first four issues have merit, since the jury’s verdict may be based on any of the four theories, including the incorrect one.

Initially, we note that Sun’s arguments are sometimes couched in terms of an incorrect premise. Sun contends that to establish its negligence, appellees had to establish both that it had a duty to act and that its actions fell below the standard of care in the industry. A plaintiff in a negligence action has to establish only the existence of a duty, breach of that duty, causation, and damages. There is no general requirement that the plaintiff establish that the defendant’s conduct failed to conform to some undefined industry standard.

We will now examine each issue raised by Sun in the order that Sun presents it and will examine the factual basis for each theory in connection with our discussion of that issue. First, Sun alleges that the federal regulation governing location of pipeline markers, 49 C.F.R. § 195.410, is vague and ambiguous, that Sun complied with the regulation, and that it is entitled to judgment notwithstanding the verdict as to this theory of negligence. We disagree.

First, Sun contends that the regulation is void since it requires that markers be placed “over” the pipeline, which is impossible in this case since the pipeline is buried under a paved road. Sun ignores the most significant language in the regulation when advancing this argument. The regulation states, in relevant part (emphasis added):

§ 195.410 Line markers.
(a) Except as provided in paragraph (b) of this section, each operator shall place and maintain line markers over each buried pipeline in accordance with the following:
(1) Markers must be located at each public road crossing, at each railroad crossing, and in sufficient number along the remainder of each buried line so that its location is accurately known.
(2) The marker must state at least the following: “Warning” followed by the words “Petroleum (or the name of the hazardous liquid transported) Pipeline” (in lettering at least 1 inch high with an approximate stroke of one-quarter inch on a background of sharply contrasting color), the name of the operator and a telephone number (including area code) where the operator can be reached at all times.

Thus, Sun focuses on paragraph (a) of the regulation, arguing that it requires it to place markers over the pipeline, which it could not do. We disagree. Part (1) of paragraph (a) clearly provides that markers must be placed at road crossings and along the locations where the pipeline continues underground. The regulation, fairly read in its entirety, provides for offset markers, i.e., markers placed along the road. One of Sun’s employees admitted that Sun now utilizes offset markers to mark where pipelines transverse paved roads. Specifically, the employee defined an offset marker as one “placed on the same side of the road that the pipe line traverses when the pipe line is under the blacktop____” Reproduced record (“R.R.”) at 964a. The employee then acknowledged that there were no markers on Richboro Road where it intersects with Mill Pond. This clearly is a violation of the regulation, which requires markers at each public road crossing.

Next, the employee was asked Sun’s present policy regarding offset markers.

Q. If you put markers along the road to show that a line was buried under the road, an offset marker, what would be your policy for the distance of those offset markers?
“THE COURT”: What would be your practice?
A. Our practice would be to place them three to five hundred feet apart____

Id. at 965a.

Thus, there is evidence in the record that Sun utilizes offset markers; The regulation is not void as ambiguous. It states that markers are required along buried lines so that the location of the line is accurately known. Instantly there was evidence that there were absolutely no visible markers along the location where this pipeline is under pavement. Thus, Sun had no markers visible to show the pipeline’s approximate location. This was a violation of the regulations, and the issue properly was submitted to the jury.

We also reject Sun’s second argument that the regulation is vague and unenforceable because it fails to define what constitutes a “sufficient” number of markers to locate underground lines. A sufficient number is simply a question of reasonableness. It is enough to alert a reasonable person to the existence of the buried pipeline. Instantly, the evidence establishes that Sun had no visible markers at the public road crossing, which clearly was required by the regulation. Further, it had no visible markers along the location where the pipeline was buried, even though the pipeline extends 2,000 feet underground along the road. Appellees presented expert testimony as to what would constitute a sufficient number of offset markers to inform the public accurately as to the location of the underground pipeline. Sun did not have this number. Accordingly, the evidence was sufficient to establish that Sun violated the unambiguous regulation, and we reject Sun’s argument on this issue.

Next, we address Sun’s contention that there was no evidence to support submission to the jury of the issue of whether it negligently conducted surveillance of its pipeline. Once again, federal regulations require surveillance of any underground pipeline carrying hazardous substances. 49 C.F.R. § 195.412. At trial, Sun admitted that it conducted an aerial surveillance of the pipeline on November 8, 1982. We believe that there was sufficient evidence presented at trial for the jury to find that construction along the pipeline actually occurred on that date and that the pilot who conducted the aerial surveillance should have seen the construction. The following was established at trial. On November 8, 1982, the cable company had three crews working within the Newtown Crossing area. There were two to three men per crew, and each crew was performing a separate task. The equipment they were utilizing included a one ton utility truck and two to three trailers carrying orange vibrator plows. There also was a backhoe on a white truck which was pulling an orange compressor. In addition, the crew had placed eighteen inch cones with signs and orange flags which stated that men were working in the area. These cones were “all out on Newtown Crossing on November 8, 1982.” R.R. at 558a.

We conclude that this evidence was sufficient for the trial court to charge the jury on the concept of negligent inspection. There was sufficient evidence for the jury to conclude that Sun’s agent inspected the pipeline negligently in that a reasonable person under the circumstances would have seen the construction activity in the vicinity of the pipeline, recognized that it was close enough to the pipeline to pose a threat, and reported it to Sun. Compare Farnese v. Southeastern Pennsylvania Transportation Authority, 338 Pa.Super. 130, 487 A.2d 887 (1985) (evidence insufficient to submit issue to jury). We also note that Sun’s evidence established that the purpose of the overflight inspections is to ensure that there is no construction activity near the pipeline. R.R. at 1992a, 1999a. Thus, the pilot was on the lookout for the very thing he failed to observe.

As to the issue of post-accident delay, the evidence established that the telephone number posted for emergency use on Sun’s pipeline was incorrect and, furthermore, that it took Sun at least five and one-half hours to start clean up work once it was contacted about the gas spill. At approximately 5:30 p.m. Sun had two trucks at the scene that pumped two loads of gasoline. Further efforts to contain the spill commenced nine hours after the spill. Sun concedes that the delay caused spilled gasoline to dissipate into the ground, making it incapable of being recovered. We conclude that there was sufficient evidence for the trial court to submit the issue of post-accident delay to the jury. The jury could have concluded that five and one half hours was too long a period to commence clean up, that two trucks were inadequate and the time, and that nine hours to commence more serious efforts was unreasonable as well. Accordingly, we conclude that there was sufficient evidence for the trial court to submit the issue of post-accident delay to the jury. See Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989).

Next, Sun alleges that appellees had to produce expert testimony in order to establish its liability for post-accident delay. The rules regarding expert testimony are not complex. There are many situations where expert testimony is admissible, but whether such testimony is required in order to establish liability is another matter.

“[I]f all the primary facts can be accurately described to a jury and if the jury is as capable of comprehending and understanding such facts and drawing correct conclusions from them as are witnesses possessed of special training, experience or observation, then there is no need for the testimony of an expert.” Reardon v. Meehan, 424 Pa. 460, 465, 227 A.2d 667, 670 (1967). Expert testimony becomes necessary when the subject matter of the inquiry is one involving special skills and training not common to the ordinary lay person.

Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61, 64 (1988).

Thus, the situations in which expert testimony is required to establish a prima facie case of negligence are limited.

There are some situations in which expert testimony is indispensable to the establishment of a prima facie case. For example, generally, in a personal injury case medical testimony is necessary to causally connect the plaintiff’s injuries with the accident, and to establish the necessity of medical treatment and the reasonableness of the charge therefor. But where there is a sufficiently close relationship between the accident and the injury, the causal relationship may be established without the aid of expert testimony____
Similarly, in medical malpractice cases expert testimony is ordinarily essential to establish that the treatment rendered was not in accord with acceptable standards of medical practice and that the injury complained of was proximately caused by the .improper treatment.
The only exception to the necessity of producing expert testimony in support of a claim of medical malpractice exists where the matter under investigation is so simple, and the lack of skill so obvious as to be within the range of ordinary experience and comprehension of even nonprofessional persons.... Likewise, in a suit against an architect for negligent design, in a suit against a dentist for malpractice and in a suit against a lawyer for malpractice, expert testimony is necessary to establish professional negligence. And expert testimony is required to show the inadequacy of warnings in a product liability case against a drug manufacturer.

Feldman, Pennsylvania Trial Guide, § 6.81 at 338-40 (2d rev. ed.) (footnotes omitted).

In summary, expert testimony is required to establish professional negligence where the determination of whether the actions were negligent is beyond the understanding of the ordinary person. In this instance, Sun was not operating as a professional. Furthermore, there is nothing either technical or beyond the comprehension of the average juror at issue. Sun did not have any personnel on the scene of the accident for hours. The jury could have determined with the evidence before it, including Sun’s evidence as to where its nearest facilities were located and when it was informed about the puncture, whether Sun’s delay was unreasonable and contributed to the leakage of gas. No expert testimony was required.

Next, Sun alleges that it was improper to submit its failure to join PA One-Call to the jury since it had no statutory duty to join PA One-Call. PA One-Call is a service organization which attempted to have all.companies with underground cables join its service. Its purpose is to inform all contractors who will be excavating over public roads as to the whereabouts of all underground pipelines and cables. The service also informs all members about construction proposed in the vicinity of the buried pipes and cables. There was evidence that PA One-Call recruited Sun, and there was evidence that the cable contractors called PA One-Call prior to excavation work.

Initially, we disagree with Sun’s premise that it had no duty to join PA One-Call since it was not required to join PA One-Call by statute. A duty to perform an act (as opposed to a duty to act in a non-negligent manner once an act is undertaken) may be imposed in the absence of statute. For example, Restatement (2d) of Torts section 321 provides that where the prior act of the actor has created a risk of harm, the actor is under a duty to exercise reasonable care to prevent the risk from taking effect. See also Restatement (2d) of Torts § 323. In this case, the presence of the unmarked pipeline located under a paved roadway created a risk of rupture. The obviousness of the risk is underscored by the numerous regulations designed to prevent puncture.

We believe that, under traditional duty analysis, Sun should have taken reasonable precautions to prevent the risk of rupture. Joining PA One-Call certainly seems to require de minimis effort and to be significant in preventing risk of rupture. Furthermore, since Sun would have been informed of the proposed construction as a member of PA One-Call, there was evidence that if Sun had joined PA One-Call, the rupture would not have occurred. Thus, it was proper for the trial court to submit this issue to the jury.

Glick v. Martin and Mohler, Inc., 369 Pa.Super. 428, 535 A.2d 626 (1987), is distinguishable factually from this case. There, defendants were sued for failing to secure the vacant building where the plaintiff had been raped. We determined that the presence of the building was a fortuitous circumstance and that the rape would have occurred whether or not the building had. been secured — in a different location. Thus, it is clear that in Glick the actions of the defendant did not create the risk of harm suffered by the plaintiff.

In the present case, the risk of rupture of a pipeline under a paved road is obvious and the simple action of joining PA One-Call would have significantly reduced the risk created by the presence of the pipeline under the road. Sun was required under federal regulations to take a number of steps to prevent against unintentional rupture of its line — an extremely foreseeable event. The trial court charged the jury under general negligence principles that Sun was under an obligation to take reasonable steps 4o prevent a rupture, and we concur. Joining PA One-Call certainly could be considered by the jury as a reasonable step designed to prevent a rupture of the line. Accordingly, we chose to apply section 321 of the Restatement of Torts under the facts presented in this case.

Judgment affirmed.

CIRILLO, President Judge, files a concurring statement.

CIRILLO, President Judge,

concurring:

Sun alleges that the trial court erred when it submitted to the jury the issue of whether it was negligent for failing to become a member of PA One-Call. While I agree with the majority’s disposition of this issue, I can only concur in the result because of the majority’s reliance on section 321 of the Restatement (Second) of Torts.

In Glick v. Martin and Mohler, Inc., 369 Pa.Super. 428, 535 A.2d 626 (1987), this court stated:

The Supreme Court of Pennsylvania has never adopted section 321 as the law of Pennsylvania, and as the intermediate appellate court, we decline to do so. Section 321 fails to include any concept of to whom the duty is owed, which is a necessary element of a cause of action sounding in tort---- Secondly, the description of the prohibited conduct (that which poses “unreasonable risk”) is too vague to permit principled application of the conduct.

Id., 369 Pa. Superior Ct. at 435, 535 A.2d at 629 (citation omitted) (footnote omitted). While the majority distinguishes the facts of the present case from Glick, the concerns voiced by this court in Glick were not limited to its facts. The problems inherent in creating a cause of action based on section 321 are intrinsic to that section and are not vitiated simply by a change in facts. Tort law should shape society’s actions by “distinguishing] between acceptable and prohibited behavior and ... [by] penalizing] the latter.” Glick, 369 Pa.Super. 438, 535 A.2d at 631. While Sun’s actions in the present case may appear to fit squarely within the parameters of a section 321 cause of action, the majority’s recognition of such a theory of tort liability does not provide guidelines to influence future behavior.

      . The trial court certified plaintiff-homeowners as a class as to the issue of liability for the accident. However, it ruled that damages of the individual homeowners would have to be proven in separate trials. The propriety of that order is not at issue herein.

      . Although Sun is also an appellee in Gouza’s appeal, for ease, we refer to the plaintiff-homeowners as appellees.

      . These are the issues that are raised in Sun’s statement of issues presented on appeal; accordingly, these are the only issues which we address in this disposition. See Pa.R.A.P. 2116(a).

      4. Paragraph b of the regulation discusses exceptions, one of which applies to urban areas. Our review of the photographs of the area convinces us that the area in question is not urban and accordingly, we reject Sun’s suggestion that paragraph b is implicated in this case.

      . Sun presented expert testimony to the effect that the regulation requires markers over the pipeline, which is impossible in this instance. Under our standard of review for a judgment notwithstanding the verdict, we are required to reject this evidence which contradicts the evidence of the verdict winner.


author: TAMILIA, Judge:

text:
    574 A.2d 716
    COMMONWEALTH of Pennsylvania v. Blaine David KARENBAUER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 9, 1990.
    Filed May 7, 1990.

      Donald D. Doerr, Jr., Butler, for appellant.
    Robert F. Hawk, Asst. Dist. Atty., Butler, for Com.
    Before TAMILIA, HOFFMAN and CERCONE, JJ.
   TAMILIA, Judge:

This is an appeal from the judgment of sentence imposed March 9, 1989 following appellant’s conviction of homicide by vehicle — DUI related, homicide by vehicle, driving under the influence, limitations on backing and involuntary manslaughter. The trial court sentenced him to serve 42 to 84 months in prison and pay a $1,325 fine plus the costs of prosecution. Appellant filed post-trial motions in the nature of motions in arrest of judgment and for a new trial, which were denied. This appeal followed.

On the evening of June 24, 1988, appellant got into his car to drive to a neighborhood store. While backing out of his driveway on to an access alleyway, appellant’s car struck Jesse and Jeremy Moran, who were playing on the embankment along the access alley. Jeremy Moran died from the injuries he sustained. Appellant claims the accident occurred because of faulty brakes. However approximately two hours after the accident, appellant’s blood alcohol level was in excess of .20 per cent.

Appellant contends the evidence was insufficient to establish guilt beyond a reasonable doubt because the Commonwealth failed to establish an essential element of DUI — namely that the offense occurred on a public traffic-way or highway. The test for sufficiency of the evidence in a criminal case is whether the evidence is sufficient to prove every element of a crime beyond a reasonable doubt. Commonwealth v. Hughes, 521 Pa. 423, 429, 555 A.2d 1264, 1267 (1989). In making this determination, this Court must view the evidence in the light most favorable to the Commonwealth as the verdict winner and accept as true all evidence and reasonable inferences therefrom, upon which if believed, the fact finder properly could have based its verdict. Id. The Commonwealth need only demonstrate that the circumstances are consistent with criminal activity. Commonwealth v. Favinger, 358 Pa.Super. 245, 250, 516 A.2d 1386, 1389 (1986). Before a new trial may be awarded on the basis of the verdict being against the weight of the evidence, it must appear from the record that the verdict was so contrary to the evidence as to shock one’s sense of justice and to make an award of a new trial imperative. Commonwealth v. Hennemuth, 294 Pa.Super. 360, 439 A.2d 1241 (1982).

In order to be sufficient, the evidence produced by the Commonwealth must show that the drive on which the accident occurred was either a highway or trafficway. Commonwealth v. McFadden, 377 Pa.Super. 454, 457, 547 A.2d 774, 775 (1988).

Section 3101 of the Motor Vehicle Code provides: § 3101. Application of part
(a) General rule. — Except as provided in subsection (b), the provisions of this part relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except where a different place is specifically referred to in a particular provision.
(b) Serious traffic offenses. — The provisions of Subchapter B of Chapter 37 (relating to serious traffic offenses) shall apply upon highways and trafficways throughout this Commonwealth.

75 Pa.C.S.A. § 3101. Highways and trafficways are defined under section 102 as:

§ 102. Definitions
“Highway.” The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park.
“Trafficway.” The entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.

75 Pa.C.S.A. § 102. We believe the evidence establishes without question the accident occurred in a place open to the public for purposes of vehicular travel as a matter of right or custom. The record shows the Commonwealth referred to the road in question as a trafficway when questioning the witnesses — including appellant (T.T., 9/29/88, pp. 150-153), and appellant’s son testified the road in question was a “back road” leading to the post office (T.T. at pp. 135, 137-138). As the road in question not only accessed the three residences but also led to a government building, the post office, we find the road was open to the public. Moreover, we note that the jury viewed the site of the accident and still found appellant guilty under the Motor Vehicle Code. Photographs and a chart placed in evidence leave us without a doubt as to the correctness of their finding. This being so, we conclude the evidence, viewed in the light most favorable to the Commonwealth, supports the conviction.

Appellant also suggests the verdict is contrary to the evidence because the Commonwealth did not show appellant followed an unsafe procedure in backing his vehicle. To the contrary, the testimony at trial reveals appellant knew the brakes were faulty and still drove the car (T.T., 9/29/88, p. 144), had been drinking from 12 noon until at least 5:30 p.m. before driving (T.T. at pp. 148-149, 155) and failed to see the children despite having a clear view (T.T. at pp. 152-153). We believe this is amply sufficient to show appellant acted in an unsafe manner and to support appellant’s conviction.

As such, we affirm the judgment of sentence imposed by the trial court.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. § 3735(a).

      . 75 Pa.C.S.A. § 3732.

      . 75 Pa.C.S.A. § 3731.

      . 75 Pa.C.S.A. § 3702(a).

      . 18 Pa.C.S.A. § 2504(a).

        . McFadden involved the issue of a private drive in a trailer court and, therefore, is distinguishable from this case in that here there is no question that the alleyway is open to the public as a matter of right or custom. See Commonwealth v. Wilson, 381 Pa.Super. 253, 553 A.2d 452 (1989), which holds McFadden lacks precedential value.


text:
    574 A.2d 719
    George PECORARA, trading and doing business as Aliquippa Auto Recycling Company, and James Sarvey v. ERIE INSURANCE EXCHANGE and Gary McLaughlin, Alexander Davidson and American States Insurance Company. Appeal of ERIE INSURANCE EXCHANGE and Alexander Davidson.
    Superior Court of Pennsylvania.
    Argued March 29, 1990.
    Filed April 30, 1990.

      Deborah DeCostro, Monaca, for appellants.
    Charles P. Sapienza, Jr., Ellwood City, for appellees.
    Before TAMILIA, KELLY and CERCONE, JJ.
   TAMILIA, Judge:

On September 5, 1980, Alexander Davidson was the owner of a 1972 Chevrolet dump truck which was insured under a policy of liability insurance issued by Erie Insurance Exchange (hereinafter “Erie”). George Pecorara was then the owner and operator of a business known as Aliquippa Auto Recycling Company and James Sarvey was an employee of Pecorara’s. Pecorara and his business were insured by American States Insurance Company (hereinafter “ASIC”). Davidson gratuitously lent his dump truck to Pecorara so that Pecorara or his employees could use it to haul shale to Pecorara’s business premises. While Sarvey was operating Davidson’s dump truck on Pecorara’s business, he collided with a motor vehicle being, driven by Gary McLaughlin who sustained personal injuries.

On August 13, 1982, McLaughlin filed a praecipe for summons in trespass against Davidson, Pecorara and Sarvey and a complaint was filed on April 20, 1983. On November 19, 1987, Pecorara and Sarvey filed a complaint against Erie and McLaughlin seeking a declaratory judgment requiring Erie to provide them with a defense and indemnification in the underlying action. On May 10, 1988, after an answer containing new matter had been filed, plaintiffs filed an amended complaint which added Davidson and ASIC as party defendants.

On October 4, 1988, in an effort to expedite the liability case, a stipulation was filed of record, joined in by counsel for all the parties stating the liability action had been settled for $30,000 and would be discontinued. It further set forth that both Erie and ASIC had contributed $15,000 toward settlement, and it was the parties’ intent to pursue the declaratory judgment action in order to secure from the court a declaration as to the respective liabilities of Erie and ASIC.

The trial court dismissed the complaint seeking declaratory judgment, finding no justiciable controversy — the insurance carriers actually were seeking an advisory opinion as the liability action had been settled, rendering the declaratory judgment action moot. Erie appeals from the Order dismissing the action, claiming the issue is not moot just because the tort action has been settled. We agree and remand for reinstatement of the declaratory judgment complaint.

In Allegheny County v. Commonwealth, 517 Pa. 65, 534 A.2d 760 (1987), where the Commonwealth Court had sustained preliminary objections after finding the issues raised were non-justiciable, our Supreme Court discussed the question of non-justiciability:

The United States Supreme Court in Baker v. Carr [369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)] defined “non-justiciability” as follows:
In the instance of non-justiciability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court’s inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.
369 U.S. at 198, 82 S.Ct. at 700, 7 L.Ed.2d at 674. Since this is a declaratory judgment action, the court’s inquiry concerns the ascertainment of the rights of the parties and whether protection for the asserted right can be judicially molded. See The Declaratory Judgments Act, 42 Pa.C.S.A. §§ 7531-7541.

Id., 517 Pa. at 69-70, 534 A.2d at 762.

In this instance, the rights of the parties can only be ascertained by the court as the dispute centers on the language of an insurance policy, not factual issues. “The construction of an insurance policy is a question of law which must be resolved by the courts.” Loomer v. M.R.T. Flying Service, Inc., 384 Pa.Super. 244, 247, 558 A.2d 103, 105 (1989). Courts are given the authority to mold certain rights under the Declaratory Judgments Act, 42 Pa.C.S. § 7531 et seq. (hereinafter “Act”). Section 7532 provides the general scope of declaratory remedy:

Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.

We find that the relief sought by the parties is within the purview of the Act as the controversy which exists is over the interpretation of an insurance policy. Although the tort action has been settled by agreement of all the parties, it was only upon the contingency that Erie and ASIC would receive a final determination as to their respective liabilities. A declaratory judgment action is the proper vehicle by which this determination is made and should be entertained by the trial court. To hold that such an issue cannot be determined by declaratory judgment would be to invite more complex and extended litigation and to deny resolution of liability and damage claims to parties, otherwise entitled, pending trial.

Order of August 25, 1989 is vacated; case remanded for reinstatement of the declaratory judgment complaint. Jurisdiction relinquished.

      . The basis of Erie's appeal is that ASIC is liable for the entire claim paid to McLaughlin due to an exclusionary clause in Erie’s policy of insurance. This issue is not properly before us, however, as it must be decided by the trial court on remand. Our only determination is whether the court erred in dismissing the complaint.