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filed: July 24, 1981.


No. 42 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Somerset County, Civil Action, No. 144 Civil, 1976.


David L. Glassberg, Hazleton, for appellant.

James B. Yelovich, Somerset, for appellees.

Price, DiSalle and Montemuro, JJ. Price, J., concurs in the result.

Author: Montemuro

[ 289 Pa. Super. Page 235]

December of 1974 was an unusually snowy month in the area surrounding Hollsopple, Pennsylvania. In early December two feet of wet and heavy snow was deposited on the area, and in Mid-December an additional sixteen or seventeen inches descended. On December 22, 1974, the roof of a small garment factory building owned by defendant-appellees collapsed. Fortunately the factory was closed and no personal injuries were involved, but the tenant manufacturer lost its equipment from the collapse and the subsequent exposure of the machinery to the weather.

The manufacturer filed suit in Trespass and Assumpsit against the estate of the original owner and her nephews, the present owners, and their wives. The theory set forth in the pleading was that damage and loss to the manufacturer was the result of negligence on the part of appellees in failing properly to construct or to maintain the roof. Damage was requested in the amount of $110,816.23 "forced replacement costs."

[ 289 Pa. Super. Page 236]

Appellees responded with Answer, New Matter and Counterclaim denying negligence and averring that the damage to the roof was caused by appellant's failure to keep the building heated as provided in the lease, and counterclaiming for replacement cost of the roof.

The case was argued before a jury for six days. The causes against the estate of the original owner and the wives of the present owners were withdrawn during the trial. The jury returned a verdict for the defendant-appellees, but permitted no compensation on the counterclaim.

Eighteen points of error were originally raised by appellant in the Motion for a New Trial, but only ten of these were retained for argument in the instant appeal. This court will address the issues seriatim.

The first question concerns a ruling of lower court disallowing use of a paragraph from defendants' New Matter as an "admission of fact." The paragraph at issue reads as follows:

No deficiency in the design, planning, supervision or observation of construction or construction of said building was the proximate cause of the injury or damages alleged by the plaintiff, and, therefore, any cause of action against William Rullo and Richard Rullo, individually, since they participated in the designing, planning, supervision and observation of construction of said building may be maintained because any such action is barred by the Act of December 22, 1965, P.L. 1183, Section 1, 12 P.S. Section 65.1 (R. 21a).

Appellant contends that it was entitled to read this into the record as a "judicial admission" of a fact contained in a pleading which "cannot be contradicted by the party that has made" the statement. Wigmore on Evidence, ยง 1603(2) (3rd Ed. 1940).

Additionally appellant claims that its cross-examination of appellee was restricted improperly when one of the defendants was not permitted to be cross-examined on the same paragraph. This error is alleged to be of "constitutional

[ 289 Pa. Super. Page 237]

    magnitude" because credibility of a witness can always be impeached by a prior contradictory statement. Appellees, in contrast, emphasize the fact that paragraph 40 was an attempt to invoke a statutory defense, couched in the language of the statute, and was never admitted as a "fact" per se. It appears that counsel for both parties had agreed at the outset of the trial to omit the issue of the underlying statute from consideration in the case.

At the outset, this court feels compelled to point out that paragraph 40 is confusing grammatically, apparently as the result of a typographical error and a missing negative. Additionally, sudden mention of a statute never argued to the jury as a factor in the case could compound the confusion. The wisdom of placing an unintelligible statement before a jury would be suspect under most circumstances.

Review of both of appellant's arguments as to the impropriety of excluding paragraph 40 forces the reader to notice that the citations imply that contradictory prior statements of a party are admissible, either to prove a fact or for impeachment. The record shows that the defendants admitted at some length to their participation in the planning and construction of the building at the behest of their aunt, the original owner. The jury was afforded far more detail than paragraph 40 supplied, and the testimony, unlike the paragraph, was not confusing.

The lower court properly emphasized the discretionary nature of its decisions concerning "scope, extent, order and manner" of cross-examination of defendants. The testimony permitted fully covered defendants' participation in the construction of the factory. The paragraph refused admission was not contradictory to that testimony and there was no onus on the trial judge to admit it for impeachment purposes or as a "judicial admission." As a practical matter, the sudden mention of a statute whose applicability was never explored by counsel and the grammatical uncertainty of the paragraph made it most unsuitable for presentation to a jury absent any compelling need for its admission. The trial judge was well within his discretionary powers in the exclusion of paragraph 40 from evidence.

[ 289 Pa. Super. Page 238]

The gist of the second issue raised by appellant was that the civil engineer testifying as an expert for appellees was not qualified to speak on roof failure and that the hypothetical posed to him included facts unsupported on the record.

The lower court's opinion states that the witness presented "impeccable qualification" as an expert engineer and upon review of the record, this court must agree. The fact that his area of expertise was not specifically in roof design was by no means ...

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