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CHRISTINE W. GRAHAM v. SKY HAVEN COAL (08/04/89)

filed: August 4, 1989.

CHRISTINE W. GRAHAM, EXECUTRIX OF THE ESTATE OF CHARLES H. GRAHAM, DECEASED, AND BRENT L. MILLER AND JOSEPHINE A. MILLER, HUSBAND AND WIFE
v.
SKY HAVEN COAL, INC. V. JAMES E. RICOTTA. APPEAL OF CHRISTINE W. GRAHAM, EXECUTRIX OF THE ESTATE OF CHARLES H. GRAHAM, DECEASED. JAMES E. RICOTTA AND JOAN K. RICOTTA, APPELLANT, V. SKY HAVEN COAL, INC. CHRISTINE W. GRAHAM, EXECUTRIX OF THE ESTATE OF CHARLES H. GRAHAM, DECEASED AND BRENT L. MILLER AND JOSEPHINE A. MILLER, HIS WIFE V. SKY HAVEN COAL, INC. V. JAMES E. RICOTTA. APPEAL OF BRENT L. MILLER AND JOSEPHINE A. MILLER



Appeal From Judgment Entered August 13, 1987, In Court of Common Pleas, Civil Division, Clearfield County, at No. 83-1782-CD. Appeal From Judgment Entered August 18, 1987, In Court of Common Pleas, Civil Division, Clearfield County, at No. 83-1702-CD. Appeal From Judgment Entered August 18, 1987, In Court of Common Pleas, Civil Division, Clearfield County, at No. 83-1782-CD.

COUNSEL

John D. Briggs, Centre Hall, for Graham, appellant (at No. 1247) and appellee (at No. 1249) and participating party (at No. 1248).

Girard N. Evashavik, Pittsburgh, for Ricotta, appellant (at No. 1248) and appellee (at Nos. 1247 and 1249).

John E. Wall, Pittsburgh, for Sky Haven Coal, Inc., appellee (at Nos. 1247, 1248 and 1249).

Cirillo, President Judge, and Cavanaugh, Brosky, McEwen, Olszewski, Beck, Tamilia, Popovich and Johnson, JJ. Brosky, J., files concurring and dissenting opinion in which Johnson, J., joins.

Author: Cavanaugh

[ 386 Pa. Super. Page 601]

The primary issue in this appeal is whether the trial court properly instructed the jury on the duty of the possessor of land to one who enters the land, and whether a new trial should have been granted to the plaintiffs below, who are the appellants in this court.

The evidence presented at trial established that a strip mining operation in Clearfield County, Pennsylvania, conducted by Sky Haven Coal, Inc. had experienced a series of thefts at the site during December, 1982.*fn1 There was an access road leading from a state road to the mining operation. As a result of vandalism and thefts, the owner of the mine endeavored to close off the access road when the mine was not in operation. Joseph Owens, who owns Sky Haven Coal, Inc., instructed his foreman to place a cable across the road to prevent vehicles from entering the area during non-operating hours. Ditches were also dug along each side of the access road to prevent unauthorized trucks from entering the site. The cable was about 5/8" in diameter and was attached to two steel poles placed about 26 feet apart. The poles were on each side of the road, and when the strip mining operation was shut down during the early hours of

[ 386 Pa. Super. Page 602]

    the morning, the cable was stretched across the road and secured with a padlock. The cable was rusty and had fluorescent plastic streamers on it. It was hung at a distance about 3 feet to 4 feet from the ground. There were no trespassing signs posted on the property through which the access road ran, and also a sign at the entrance of the access road that stated in part: "BLASTING AREA. KEEP OUT."*fn2 The cable was placed across the access road about 1,000 feet in from the state road.

On the evening of February 8, 1983, James E. Ricotta, who lived near the strip mine, was expecting a friend, Brent L. Miller, and an acquaintance, Charles H. Graham, to visit him. The weather was very cold and windy, and it was snowing very hard. When the two men did not arrive at Mr. Ricotta's house as expected, he went to bed. About midnight, Miller and Graham arrived and had something to eat.*fn3 The three then went for a ride in Ricotta's car and subsequently went for another ride, notwithstanding the extremely bad weather, in a vehicle which Mr. Ricotta built himself and which he called a "work buggy."*fn4 Their destination was the nearby strip mine to watch the nighttime operations of the mine which they thought were then being conducted.

Mr. Ricotta's "work buggy" was constructed to be an oversized wheelbarrow. The front half of the vehicle was constructed from a 1967 Chevrolet truck and the rear was

[ 386 Pa. Super. Page 603]

    made from a 1963 Cadillac. The vehicle was open and had no windshield. A bench was located behind the engine on which the operator and a passenger could sit. The back of the vehicle was built as a dump truck. The vehicle had two headlights which Mr. Ricotta described as follows: "One had a light in it that was a light bulb off a fire truck which gave it real bright light, and the other was a fog-light type light."

The three men set off in the "work buggy" with Ricotta driving, Mr. Graham seated on the bench beside him and Mr. Miller on the back of the vehicle in the bed of the dump truck. They drove through the snowstorm to an airport and then around a friend's house and then on a macadam road where they turned off at the access road leading to the mining site. Mr. Ricotta was aware of the sign which stated that it was a blasting area and to "keep out." He proceeded up the access road at a speed of 10-15 miles per hour, and the time was then about 2:30 in the morning of February 9th. The strip mining was not operating at that time, as it was closed from 1:00 A.M. until 6:00 A.M. on the date in question. Mr. Ricotta did not see the cable across the road and struck it with his "work buggy". The cable hit the radiator of the vehicle, pushed it back about four inches, and then struck Ricotta, knocking him temporarily unconscious. His two passengers were also struck by the cable. Mr. Graham died shortly afterwards and Mr. Miller was injured.

The Executrix of the Estate of Charles H. Graham commenced an action for wrongful death and a survival action against Sky Haven Coal, Inc., and Anamae Pezzula and Alta F. Albert, Executrices of the Estate of Frank Albert. Brent L. Miller and Josephine A. Miller joined in the suit against the same defendants. James E. Ricotta and Joan K. Ricotta, his wife, commenced separate actions against Sky Haven Coal, Inc. and the Estate of Frank Albert. James E. Ricotta was joined as an additional defendant. All

[ 386 Pa. Super. Page 604]

    of the actions were consolidated for trial and on appeal.*fn5

Following a jury trial before Reilly, P.J., a verdict was entered in favor of Sky Haven Coal, Inc. and against additional defendant, John E. Ricotta, but awarded no damages against Ricotta.*fn6 The plaintiffs' motions for a new trial were denied and they have appealed to this court.

The decision of the trial court in denying a new trial is within its sound discretion and will be sustained on appeal unless the appellate court determines that the trial court palpably abused its discretion. Leslie v. Pennco, Inc., 323 Pa. Super. 23, 470 A.2d 110 (1983). A motion for new trial does not test the verdict itself, but rather the legal proceedings resulting in the verdict, and the basis of a new trial motion is not that the verdict is unsupported by sufficient evidence, but that an alleged trial error affected the verdict. Dorn v. Stanhope Steel, Inc., 368 Pa. Super. 557, 534 A.2d 798 (1987), appeal denied, 518 Pa. 656, 544 A.2d 1342 (1988). Review of an order denying grant of a new trial imposes on an appellate court the duty to review all the evidence. Klyman v. Southeastern Pennsylvania Transportation Authority, 331 Pa. Super. 172, 480 A.2d 299 (1984); Seewagen v. Vanderkluet, 338 Pa. Super. 534, 488 A.2d 21 (1985); Leslie v. Pennco, Inc., supra. The appellants allege that the trial court erred in its instruction concerning wanton misconduct and in refusing to charge the jury on the instructions which they submitted.

There was evidence that recreational vehicles had used the strip mining site at all hours of the day and night. Mr. Ricotta testified that he had gone on the site for many years and had encountered employees of the mining company who did not tell him to leave. Mr. Ricotta also acknowledged, as stated above, that he was aware of the sign at the

[ 386 Pa. Super. Page 605]

    access road which stated that the site was a blasting area and to keep out. Also, the property was posted with "No Trespassing" signs.

The appellants contend that the following excerpts from the charge confused the jury and constitute the basis for granting a new trial:

If you find from the evidence that the plaintiffs here were trespassers, if you find that they were on this property without consent, without permission, then the standard of care or the duty would be as follows: In that event if they are trespassers, if the defendant knew or if the defendant had reason to know of the plaintiffs' presence, the defendant's only duty to the plaintiffs ...


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