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TED BABICH v. PITTSBURGH & NEW ENGLAND TRUCKING CO. (02/28/89)

submitted: February 28, 1989.

TED BABICH, APPELLANT,
v.
PITTSBURGH & NEW ENGLAND TRUCKING CO., A CORPORATION; INDIANA REFRIGERATOR LINES, A CORPORATION; WILLIAM MARION GRAY, AN INDIVIDUAL, AND TURNER GRAY, AN INDIVIDUAL. TED BABICH V. PITTSBURGH & NEW ENGLAND TRUCKING CO., A CORPORATION INDIANA REFRIGERATOR LINES, A CORPORATION; WILLIAM MARION GRAY; AN INDIVIDUAL, AND TURNER GRAY, AN INDIVIDUAL. APPEAL OF INDIANA REFRIGERATOR LINES, A CORPORATION



Appeal from the Judgment entered in the Court of Common Pleas of Allegheny County, Civil Division, No. GD 80-16112.

COUNSEL

John W. Murtagh, Wexford, for Babich, appellant (at 821) and appellee (at 935).

Robert B. Truel, Pittsburgh, for Indiana Refrigerator, appellant (at 935) and appellee (at 821).

David H. Patterson, Pittsburgh, for Pittsburgh & New England Trucking, appellee (at 821 and 935).

Cirillo, President Judge, and Brosky and Tamilia, JJ. Brosky, J., concurs.

Author: Tamilia

[ 386 Pa. Super. Page 484]

These are cross-appeals by plaintiff Ted Babich at No. 00821 Pittsburgh, 1988, and defendant Indiana Refrigerator Lines, a corporation, at No. 00935 Pittsburgh, 1988, of a judgment in the amount of $45,933 entered upon a jury verdict in favor of Babich and against Indiana Refrigerator and co-defendant/appellee Pittsburgh & New England Trucking Company (hereinafter "P & NE").

Babich commenced this action on July 1, 1980 to recover damages sustained on March 23, 1979 when a tractor-trailer lost its brakes and careened down a steep graded street, eventually slamming into an old framed house at the bottom of the hill. Babich owned the building and used it as his principle place of business. The tractor-trailer was operated by defendant William Marion Gray. The tractor was owned by defendant Turner Gray and the trailer was owned by Indiana Refrigerator. The rig had been trip leased at the time of the accident by P & NE. The case went to trial before a jury on March 12, 1987, and the resulting verdict exonerated William and Turner Gray from liability, but found in favor of Babich and against Indiana Refrigerator and P & NE in the amount of $45,933. Babich's subsequent motion for delay damages in the amount of $32,065.13, pursuant to Pa.R.C.P. 238, was denied by the trial court, as was his motion for new trial limited to damages. The court also denied Indiana Refrigerator's motion for Judgment notwithstanding the verdict. After entry of judgment the instant cross-appeals were timely filed.

Babich seeks a new trial as to damages alone, on the basis that the verdict was inadequate in relation to the loss he suffered. In support of this contention he claims the trial court erred in excluding testimony and an exhibit relating to the replacement cost of the building and in refusing to admit evidence concerning the consequential damages suffered by Babich in the form of lost revenues and rental costs incurred for substitute space. In connection with these claims Babich contends the court erred in refusing to give all parts of a requested point for charge

[ 386 Pa. Super. Page 485]

    dealing with the damages recoverable for property negligently damaged in Pennsylvania. Specifically, appellant argues it was error to exclude the following portion:

When, under the facts and circumstances of an individual case, value of a property "as measured in the market place is wanting or the application of market place values is unlikely to compensate the injured party for the loss suffered" the measure of damages "must be the reasonable cost of replacement by a similar structure consistent with current standards of design." Anything less would not compensate the owner for the actual loss.

Lastly, appellant claims the trial court erred in refusing to award Rule 238 delay damages because no written ...


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