Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. 79-12879.
John D. Hendricks, Pittsburgh, for appellants.
James F. Manley, Pittsburgh, for appellee.
Spaeth, President Judge, and Rowley and Wieand, JJ. Spaeth, President Judge, concurs in the result.
[ 349 Pa. Super. Page 564]
In this action to recover for damages allegedly caused to improved real estate by escaping water, the trial court allowed the defendant water company's risk manager to read from copies of reports in company records that a water sample had been collected, analyzed in a laboratory and found to be "not our water." In this appeal from a defense verdict, the appellant property owners contend that the ruling of the trial court which allowed this evidence was erroneous. We agree. Therefore, we reverse and remand for a new trial.
The property owners, Mary Ganster, Frances S. Cannon, and Frank and Catherine Janicki, brought suit against Western Pennsylvania Water Company to recover damage to improvements on their real estate allegedly caused by water escaping from mains along DeWalt Drive in Baldwin Township, Allegheny County. At trial, the property owners produced testimony that water had been observed bubbling through the road surface. Escaping water, they contended, had also flowed subsurface to their properties where it caused damage to the foundations of their homes. At trial, the property owners and the water company called expert witnesses who gave conflicting testimony regarding negligence and whether water escaping from mains in the street had caused the damages. The water company then called
[ 349 Pa. Super. Page 565]
its risk manager, Herman Kreuzer, who produced water company records to show that an employee had responded to a call to turn on the water at the Ganster home. The company's business records showed that when the water had been turned on at the curb, their employee had also gathered a sample of surface water on the property. This sample, according to the water company's records, had been taken to the lab for analysis. According to the trial record, the following then occurred:
Q What were the results of the test.
MR. HENDRICKS: I object, Your Honor, unless the individual who performed these tests is present to testify, further that there is no testimony of where this water sample was taken from at the house. That may have a great deal to do with what was found in the water. There is absolutely no evidence other than he took a water sample from house 409. I don't know if that means inside the house or around it or behind it.
THE COURT: What do the records show, sir?
THE WITNESS: It just indicates that a sample was taken at house 409.
THE COURT: Is that all the record says?
THE COURT: All right. Objection overruled. The test was taken. That's all.
Q The record also indicates the sample was taken down to the lab, does it not?
A Yes, the sample was taken from the home and delivered to the lab.
Q And did you receive a lab -- is this lab report the third page of Exhibit G?
Q What was the result of the test?
MR. HENDRICKS: Again, Your Honor, I am going to object. The individual who did this test is not here. There is no foundation laid that Mr. Kreuzer is an expert in ...