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09/12/97 DUQUESNE LIGHT COMPANY v. WOODLAND HILLS

September 12, 1997

DUQUESNE LIGHT COMPANY
v.
WOODLAND HILLS SCHOOL DISTRICT V. MICHAEL BAKER, JR., INC., COCO BROTHERS CONSTRUCTION COMPANY AND CARL G. BAKER V. WAYNE CROUSE, INC., CARL G. BAKER, APPELLANT V. DUQUESNE LIGHT COMPANY V. WOODLAND HILLS SCHOOL DISTRICT V. MICHAEL BAKER, JR., INC., COCO BROTHERS CONSTRUCTION COMPANY AND CARL G. BAKER V. WAYNE CROUSE, INC., MICHAEL BAKER, JR., INC., APPELLANT V. DUQUESNE LIGHT COMPANY V. MICHAEL BAKER, JR., INC., COCO BROTHERS CONSTRUCTION COMPANY AND CARL G. BAKER V. WOODLAND HILLS SCHOOL DISTRICT, MICHAEL BAKER, JR., INC., APPELLANT; DUQUESNE LIGHT COMPANY V. MICHAEL BAKER, JR., INC., COCO BROTHERS CONSTRUCTION COMPANY AND CARL G. BAKER V. WOODLAND HILLS SCHOOL DISTRICT, CARL G. BAKER, APPELLANT



Appealed From No. GD 92-3455 and GD 91-18296. Common Pleas Court of the County of Allegheny. Judge JOHNSON.

Before: Honorable Bernard L. McGINLEY, Judge, Honorable James R. Kelley, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Judge Kelley. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

FILED: September 12, 1997

In these consolidated appeals, *fn1 Michael Baker, Jr., Inc. (Michael Baker) and Carl G. Baker (Carl Baker) are challenging several orders of the Court of Common Pleas of Allegheny County (trial court) in a dispute involving Duquesne Light Company (Duquesne Light), Woodland Hills School District (School District) and Coco Brothers Construction Company (Coco Brothers).

I. FACTS & PROCEDURAL HISTORY

The subject of this case is a landslide which occurred on hillside property belonging to the School District on February 22, 1990. The 1990 landslide caused extensive damage to the School District's property and to Duquesne Light's electrical substation located at the base of the hillside.

In December of 1972, an agreement to construct a school was entered into between the School District *fn2 and three design professionals: Michael Baker, the engineer; Carl Baker, the architect; and Coco Brothers, the general contractor. The site of the proposed school structure was located on a hill containing numerous mined-out coal seams. As part of the geotechnical design, part of the hilltop was to be cut and the fill was to be used to form an additional embankment in order to enlarge the surface area for athletic and recreational utilization.

Excavation and fill work on the embankment began in August 1976. On April 1, 1977, a landslide occurred. Construction resumed with no change in the design drawings or specifications. As part of the embankment construction, a pressurized water line was installed from a pump station at the bottom of the hill to transport water up to the school. The water line was designed by Gumpf Engineering and was installed by Wayne Crouse, Inc. The construction of the embankment was completed in July 1977.

On February 22, 1990, a second landslide occurred on the hillside, which is the subject of this case. The 1990 landslide occurred in a location different from the 1977 landslide.

On October 15, 1991, Duquesne Light commenced an action against the School District alleging negligence in the creation and/or maintenance of the hillside. On February 20, 1992, Duquesne Light commenced a separate action against Michael Baker, Carl Baker and Coco Brothers, alleging negligence in the construction of the embankment. The actions were consolidated.

On December 17, 1992, the School District filed a complaint to join additional defendants against Michael Baker, Carl Baker and Coco Brothers for damage sustained in the 1990 landslide. Michael Baker filed a motion for summary judgment asserting the School District's claim was time-barred since the embankment was created in 1977. The motion was denied on the doctrine of nullum tempus.

The case was assigned to the trial court for jury trial on May 1, 1995. Prior to the commencement of the trial, settlements were reached between Duquesne Light and the School District, Coco Brothers, and Wayne Crouse, Inc., *fn3 and between the School District and Coco Brothers. The liability and damage segments of the trial were bifurcated. The trial began on May 10, 1995.

On June 12, 1995, the jury returned a verdict on liability in favor of Duquesne Light and the School District and against Michael Baker and Carl Baker. On June 22, 1995, the jury returned a verdict on damages in favor of Duquesne Light in the amount of $468,500 and the School District in the amount of $1,044,486. Duquesne Light and the School District filed motions for delay damages. Molded verdicts were entered in favor of Duquesne Light in the amount of $549,434.98 and the School District in the amount of $1,224,924.53 on July 18, 1995.

Timely post-trial motions were filed by both Michael Baker and Carl Baker. In March 1996, Duquesne Light, the School District and Coco Brothers filed praecipe for entry of judgment pursuant to Pa.R.C.P. No. 227.4(1)(b). Judgment was entered by the prothonotary denying all post-trial motions. Michael Baker and Carl Baker filed petitions to open these judgments. By order of court entered March 14, 1996, the trial court denied all petitions to open judgment. These appeals followed.

II. PROCEDURAL ERRORS

Before this court are 14 appeals: Two appeals regarding denial of motions for summary judgment, four appeals regarding denial of petitions to open judgment, and eight appeals regarding final judgments. Before reaching the merits of these appeals, we must first address the propriety of these 14 appeals.

The two appeals *fn4 filed by Michael Baker from the order entered January 26, 1995 denying his motions for summary judgment are inappropriate. It is well settled, subject only to certain exceptions not applicable here, *fn5 that only final orders may be appealed. Pa.R.A.P. 341; Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81 (1994). A final order is defined as any order that "disposes of all claims or of all parties." Pa.R.A.P. 341. An order denying a motion for summary judgment is interlocutory and is not appealable until a final order is entered in the cause. Conrail v. Shirk, 143 Pa. Commw. 422, 599 A.2d 262 (Pa. Commw. 1991); Hammond v. Thompson, 122 Pa. Commw. 223, 551 A.2d 667 (Pa. Commw. 1988).

In this case, the order denying the motions for summary judgment is a nonappealable interlocutory order. See Pa.R.A.P. 311. Accordingly, these appeals are quashed. We note, however, that the issues raised therein are effectively subsumed in the appeals from the final judgments.

The four appeals *fn6 filed by Michael Baker and Carl Baker from the order entered on March 14, 1996 denying their petitions to open judgment entered in favor of Coco Brothers are also inappropriate. Petitions to open judgment are typically filed with respect to judgments that have been entered upon default or admission. See Pa.R.C.P. No. 1037; Penn Piping, Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992) (judgment of non pros entered after a period of inactivity in excess of two years); Fessler v. Hannagan, 144 Pa. Commw. 274, 601 A.2d 462 (Pa. Commw. 1991), petition for allowance of appeal denied, 530 Pa. 647, 607 A.2d 257 (1992) (default judgment). In such cases, the entry of judgment is ministerial in nature. See Darlington, McKeon, Schuckers, & Brown, 1 Pennsylvania Appellate Practice 2d at § 311:11 (1996).

In the present case, Michael Baker and Carl Baker, following an unfavorable jury verdict, filed motions for post-trial relief. The trial court did not enter an order disposing of all motions within 120 days. Pursuant to Pa.R.C.P. No. 227.4(b), the prothonotary entered judgments upon the jury's verdict. Specifically, the prothonotary entered final judgments on March 7, 1995 in favor of Coco Brothers and against all other parties.

Unlike a judgment entered upon default or admission, this judgment reflected the jury's verdict on the merits of the complaint. The jury, in response to Special Interrogatory No. 3, stated that Coco Brothers' negligence was not a substantial factor in bringing about the harm to Duquesne Light. Reproduced Record (R.) at 1345a. Therefore, the petitions to open judgment and the appeals therefrom were not proper.

Instead, an appeal should have been taken from the judgments entered by the prothonotary on March 7, 1995. However, Michael Baker and Carl Baker only filed appeals with regard to the denial of their petitions to open judgment and did not file appeals from the final judgments. Thus, no claims against Coco Brothers have been preserved for appellate review. As a result, Coco Brothers is no longer a proper party to this action. Accordingly, these appeals are quashed, and Coco Brothers is dismissed as a party in this action.

The remaining eight appeals *fn7 from the final judgments entered in favor of Duquesne Light and the School District on March 1, 1997 are proper. *fn8 Because these appeals are from the final judgments, all issues raised by Michael Baker and Carl Baker, including issues raised in the quashed appeals regarding the motions for summary judgment, are before this court for review.

III. ISSUES

The following issues are raised in this appeal:

1. Whether the new Pa.R.C.P. 227.4(1)(b) precludes a trial court from compliance with Pa.R.A.P. 1925(a).

2. Whether the trial court erred in issuing a binding jury instruction requiring the jury to find one or more defendants negligent, despite evidence that natural causes or the conduct of third parties may have caused the landslide.

3. Whether the trial court may refuse to permit an expert witness to testify at trial on the grounds that the expert's report was "speculative" when the report expressly stated that its Conclusions as to causation were drawn "with reasonable engineering certainty."

4. Whether the trial court may admit evidence of a duty to inspect the construction of a hillside embankment, where no such duty existed in the agreement between the parties.

5. Whether the trial court must exclude expert reports from evidence and decline to permit other witnesses to testify about the contents of the expert reports because the expert is deceased and thus unavailable to testify at trial.

6. Whether the trial court must charge a jury that the School District's destruction of a failed water line constituted spoliation of evidence.

7. Whether the statute of limitations bars certain claims of the School District, despite the doctrine of nullum tempus.

8. Whether the trial court may preclude evidence of actual loss and require the jury to use restoration cost as the measure of damages.

9. Whether the trial court may refuse to charge on assumption of risk despite evidence that the School District knew since 1977 of a landslide risk and voluntarily chose to proceed with the construction of the embankment.

10. Whether the trial court may admit excerpts from a deposition regarding a joint venture as evidence and classify the same as binding admissions.

11. Whether the trial court erred in granting the motion in limine of the School District, excluding any testimony regarding the observations, reference, or arguments of the School District's full-time project representative who died prior to trial.

IV. DISCUSSION

1. Pa.R.C.P. No. 227.4

The issue of whether Pa.R.C.P. No. 227.4 eliminates the duty of a trial Judge to file an opinion in support of an order pursuant to Pa.R.A.P. 1925(a) is a case of first impression in this court. Rule 227.4 was amended effective January 1, 1996 and now states:

In addition to the provision of any Rule of Civil Procedure or Act of Assembly authorizing the prothonotary to enter judgment upon praecipe of a party, the prothonotary shall, upon praecipe of a party:

(1) enter judgment upon the verdict of a jury or the decision of a Judge following a trial without jury, or enter the ...


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