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DOUGLAS P. PAINTER AND JOANN PAINTER v. PENNSYLVANIA ELECTRIC COMPANY (11/16/87)

filed: November 16, 1987.

DOUGLAS P. PAINTER AND JOANN PAINTER, HIS WIFE, APPELLANTS
v.
PENNSYLVANIA ELECTRIC COMPANY



Appeal from the Judgment entered December 11, 1986, Court of Common Pleas, Erie County, Civil Division at No. 3862 A 1983.

COUNSEL

Eugene J. Brew, Jr., Erie, for appellants.

Timothy M. Sennett, Erie, for appellee.

Rowley, Del Sole and Johnson, JJ.

Author: Johnson

[ 368 Pa. Super. Page 335]

In this appeal Appellants seek a new trial on the grounds that the trial court erred in refusing to charge the jury on absolute liability and in allowing certain testimony by Appellee's expert witness. We find no merit in Appellants' position and affirm.

On August 31, 1982, Appellee, Pennsylvania Electric Company, and its subcontractors were engaged in excavation in front of Appellants' building in downtown Erie. Appellee was utilizing a Horam Model 7000B tractor-mounted pneumatic pavement breaker. Shortly after the excavation had commenced, Appellants complained that Appellee's

[ 368 Pa. Super. Page 336]

    excavation activities were disturbing Appellants' building. Appellee's crew chief entered the building and felt the vibrations in the floor caused by the operation of the pavement breaker. Thereafter the excavation was discontinued until approximately two days later when the crew resumed excavating with a smaller pavement breaker. Appellants made no further complaints.

Subsequently Appellants instituted this action in trespass which resulted in a jury verdict in favor of Appellee. Appellants then filed a Motion for Post-Trial Relief which was denied by the Court of Common Pleas of Erie County. Hence this appeal.

Appellants' first contention is that the lower court should have instructed the jury on absolute liability for ultra-hazardous activity.

In order to preserve for appellate review any claim of error in the trial judge's instructions to the jury, a party must specifically object to the charge when given at trial. Failure to do so results in a waiver of any claim of error in the charge. Pa.R.A.P. 302(b); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 260, 322 A.2d 114, 117 (1974); Wilkerson v. Allied Van Lines, 360 Pa. Super. 523, 537, 521 A.2d 25, 32 (1987). The complaining party is further required to set forth in both the statement of the case and in the argument of the appellate brief reference to the place in the record where the issue presented for decision on appeal has been raised or preserved below. Pa.R.A.P. 2117(c)(4), Pa.R.A.P. 2119(e); In re Estate of Smith, 492 Pa. 178, 181, 423 A.2d 331, 333 (1980).

In the instant case Appellants in their brief claim to have submitted a point for charge on absolute liability which was rejected by the trial judge. Appellants also maintain that they took exceptions to the charge. As Appellants have furnished this Court with an inadequate record, we are unable to ascertain that the challenge to the charge was properly preserved. The transcripts which Appellants have supplied to this Court contain neither the trial judge's charge to the jury nor any objections or exceptions by Appellants thereto. Moreover, while the record includes

[ 368 Pa. Super. Page 337]

    written points for charge filed by Appellants several days after the jury rendered the verdict, the Appellants have failed to satisfactorily demonstrate that the points were submitted to the trial court in a timely manner at trial. Consequently Appellants have failed to show that they have properly preserved any claim of error in the charge to the jury. Any challenge based on this issue has been waived.

Assuming arguendo that Appellants had properly preserved their claim of error in the instructions to the jury, their argument is nevertheless unpersuasive.

In the Restatement (Second) of Torts §§ 519-524 A (1977) the phrase abnormally dangerous activity is substituted for the term ultrahazardous activity found in the Restatement of Torts §§ 519-524 (1938). The Restatement (Second) of Torts § 519, approved by this Court in Albig v. Municipal Authority of Westmoreland County, 348 Pa. Super. 505, 502 A.2d 658 (1985), states:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has ...


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