Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Stanley Doknovitch and Carol Doknovitch, his wife v. Commonwealth of Pennsylvania, Department of Transportation, No. 9930 of 1975.
William J. Cressler, Assistant Attorney General, with him Peter J. Comerota, Assistant Attorney General, Ward T. Williams, Chief Counsel, and Harvey Bartle, III, Attorney General, for appellant.
E. Charles Coslett, with him Charles R. Coslett, Coslett & Coslett, for appellees.
Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer dissents. Judge Rogers concurs in the result only. Judge Palladino did not participate in the decision in this case.
[ 65 Pa. Commw. Page 441]
This case is before us on appeal by the Pennsylvania Department of Transportation (DOT) from an order of the Court of Common Pleas of Luzerne County granting a new trial to the appellees, Stanley and Carol Doknovitch.
The appellees, who own a single-family residence in Kingston Township, Luzerne County, brought an
[ 65 Pa. Commw. Page 442]
action against DOT in which they alleged that they suffered consequential damages when nearby road construction caused water to enter their home. A Board of View determined that the appellees were entitled to $22,000 in damages and, upon an appeal by DOT, a trial was conducted after which a jury returned a verdict of $10,000. The court declared a mistrial, however, after a poll of the jury, which was requested by the appellees, revealed that its verdict was not supported by a 5/6 majority. A new trial was conducted which resulted in a verdict in favor of DOT and the court below thereafter granted the appellees' motion for another new trial. The lower court granted the motion partially because it concluded that certain testimony which the appellees sought to introduce was incorrectly excluded and also because the court held that the verdict was against the weight of the evidence inasmuch as the admittedly severe damage to the appellees' home occurred at the time of the road construction here concerned and it was found in the two prior proceedings that DOT was responsible. DOT then filed this appeal.
DOT contends that the lower court abused its discretion by granting another new trial. It argues that the testimony which the appellees sought to have admitted was properly excluded and that the lower court usurped the jury's factfinding role and erred in considering the result reached by the Board of View and the first jury.
The appellees had attempted to introduce the testimony of one of their neighbors, a Mrs. Donnelly, to establish that DOT's attorney had called her two weeks before the second trial and asked what she thought caused the damage to the appellees' home. The inference from this question, according to the appellees, was that DOT itself had doubts, as expressed through its counsel, as to its contention that the road
[ 65 Pa. Commw. Page 443]
construction did not cause the damage involved here. The trial court excluded such testimony, but, in its ruling on the motion for a new trial, it held that such exclusion had been improper because the possibility that adverse inferences could be drawn from the ...