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May 20, 1997


Appeal from Superior Court Order at Nos. 1086 Phila. 1993 and 1287 Phila. 1993 entered February 22, 1995, affirming in part and reversing and vacating in part, the Order of the Court of Common Pleas, Northampton County, Civil Division, at No. 1988- C-9118. Messrs. Justice Zappala and Cappy concur in the result. Opinion BY Mr. Justice Nigro

The opinion of the court was delivered by: Nigro


MAY 20, 1997

The issue before this Court is whether the Superior Court erred in affirming the trial court's finding that Appellee timely objected to a flawed punitive damages charge. Because we conclude that Appellee failed to timely and specifically object, we reverse the Superior Court's decision as it pertains to the punitive damages issue.

Appellee, Metropolitan Edison Company ("Met-Ed"), is a utility company which supplies electricity to eastern Pennsylvania. In the fall of 1987, Met-Ed decided to have several of its electrical substations painted. Appellant, Steven Takes ("Takes"), had thirty years experience as an industrial painter, including painting electrical powerstations. Through his company El Greco Painting ("El Greco"), Takes submitted the lowest bid for painting a number of de-energized Met-Ed substations and was awarded the contract. *fn1 The one substation that Met-Ed could not de-energize was awarded to a different contractor.

Painting began in October of 1987. Takes and his crew completed painting five of the substations and started to work on the Dock Street substation in Easton, Pa. Unbeknownst to Takes, the substation had been deengerized except for a 4,800 volt capacitor which was not roped off nor were any warning signs posted. Takes climbed the capacitor's structural housing and was painting it when an enormous electric shock knocked him off his perch, causing him to fall ten feet to the ground.

Takes suffered serious injuries from the electric shock and fall. The electric current destroyed a finger on his hand which required amputation, and left leathery black entrance and exit wounds on both sides of his body. The fall broke two ribs and fractured his scapula. Additionally, Takes now suffers from severe depression, Post-Traumatic Stress Syndrome and endures dizzy spells and blackouts.

Takes and his wife filed a civil action in 1988 against Met-Ed to recover damages for personal injuries. Subsequently, Met-Ed joined Takes, doing business as El Greco Painting Company, as an additional defendant, arguing an indemnification clause required that El Greco indemnify Met-Ed for any injury "caused in whole or in part by the contractor." After joinder, Appellants filed an amended complaint containing a claim for punitive damages.

On February 26, 1992, the trial Judge met during trial with all counsel in chambers to discuss the charge and verdict sheet. Met-Ed's attorney argued against any punitive damages charge, but argued that, if one was given, it should be restricted to a situation where Takes was urged to do his work under known dangerous circumstances. Met-Ed's counsel argued that the jury should not be allowed:

to wander around in the fact combination with this blanket charge: do you find that they acted in a negligent, willful or reckless manner, is prejudicial to the defense in this instance because it suggests that the Court thinks any combination of the facts they would choose could infer wanton or reckless negligence from those facts and that's just not the case.

(N.T. 2/26/92, RR. 512a). After further Discussion, Met-Ed's counsel asked, "What happens to my proposition that the application of the [punitive damages] is limited to a fact situation?" Id. at 516a. The trial court noted Met-Ed counsel's objection but declined to restrict the charge to a particular factual scenario and decided to give a general punitive damages charge. Id. at 517a. Subsequently, the trial court instructed the jury on the issue of punitive damages and the following exchange took place:

THE COURT: ...The sole purpose of punitive to punish Metropolitan Edison's outrageous conduct, if you were to find as such, and to deter Metropolitan Edison from commission of like acts.

Question number nine asks you that very question: Do you find that Metropolitan Edison acted in a grossly negligent, reckless, willful or wanton manner in causing injuries to Mr. Takes, and if you do what damages do you find?

Gentlemen are there any suggested corrections to the punitive damages, additions or corrections to the ...

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