Appeal from the Order of Superior Court at No. 781, Pgh. 1985, dated July 31, 1986, affirming the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD82-5895 dated May 24, 1985 and Judgment entered June 11, 1985. 359 Pa. Super. 635,
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Nix, C.j., filed a dissenting opinion.
The issue in this case is whether the trial court erred in permitting a witness to testify as to his discussion with an out-of-court declarant who told the witness about the conclusion
contained in a report which was prepared by experts who were not called to testify at trial.
On July 16, 1981, appellant, Joseph Semieraro, was inspecting an old stone bridge for his employer, the City of Pittsburgh (City), when the underbridge inspection truck, which appellant was operating from a bucket suspended from the truck over the side of the bridge, tipped and fell off the bridge and into a ravine seventy feet below. Appellant suffered severe personal injuries. Appellant and his wife filed a complaint in trespass and assumpsit against appellees, Commonwealth Utility Equipment Corporation (CUECO) and Hunt-Pierce Corporation,*fn1 the seller and manufacturer of the truck, respectively. To recover damages for the loss of the truck, the City also filed a complaint in trespass and assumpsit against appellees, and the two cases were consolidated for trial before a jury in the Court of Common Pleas of Allegheny County.
During the trial, the president of appellee CUECO, Anthony Closkey, was permitted to testify, over objection, that he had been told by a City employee (Louis Gaetano) that the experts hired by the City to investigate the accident had concluded that the underbridge inspection truck was stable. Specifically, the exchange between counsel for appellee CUECO and Closkey was as follows:
Q. . . . During your conversations with Mr. Gaetano, did he ever mention the subject of the results of any studies done by the City of Pittsburgh?
Q. And what did he say with regard to those studies?
A. He said the studies showed that the final conclusion was -- one of the things in the final conclusion was that the unit was stable.
Trial Transcript, Vol. III, at 1249-50 (Jan. 23, 1984) (objection was raised at sidebar prior to quoted exchange).
The jury returned a verdict in favor of appellees CUECO and Hunt-Pierce Corporation. The trial court denied the post-trial motions of the City and appellants, finding that the testimony of Closkey was admissible against the City and that the testimony was "error in the abstract" even if it were improper hearsay because stability was not at issue in the case. Opinion of the Trial Court at 7-8 (May 24, 1985). Superior Court, in a ...