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Thomas Ziegler v. Easton Suburban Water Authority

May 9, 2012


The opinion of the court was delivered by: Bonnie Brigance Leadbetter, Judge

Argued: March 12, 2012




Appellant, Thomas Ziegler, appeals from the order of the Court of Common Pleas of Northampton County (trial court) denying his post-trial motion requesting a new trial. Appellant asserts that the trial court erred by precluding the testimony of various witnesses with respect to the damages allegedly caused to his home as a result of a water main break. We reverse.

Appellant is the owner of a house located at 1027 Spruce Street in Easton, Pennsylvania ("the Property"). On February 19, 2007, Appellant's neighbor, George Knapp, discovered water in the alley between his house and the Property. Upon further inspection, Knapp discovered that the water was flowing from the foundation of Appellant's house. Knapp immediately called Easton Suburban Water Authority (ESWA) to report the incident and, later that day, ESWA employees identified the source of the leak, a water main break, shut off the water supply, and repaired the faulty water main. Appellant was not present during the water main break.

On February 15, 2008, Appellant filed suit, alleging that ESWA's negligent care and control of the water main caused substantial damage to the Property. Appellant alleged that ESWA's negligence caused: (1) the foundation of his house to shift and/or settle; (2) plaster walls within his house to crack; (3) the front door of his house to shift, thus preventing ingress and egress to the house;

(4) extensive soil erosion; and (5) an external retaining wall to fail. Before trial, ESWA conceded its negligence but contested Appellant's assertions regarding causation and damages.

Between January 21, 2011, and February 2, 2011, ESWA presented the trial court with several motions in limine, including, inter alia, a motion seeking to preclude Appellant from testifying that his home sank or settled as a result of the February 19, 2007 water main break. Following oral argument, the trial court issued a written order precluding Appellant from testifying that the water main break caused his house to sink or settle.*fn1

ESWA also filed a motion in limine seeking to preclude Appellant from introducing the testimony of Louis Ferrone, P.E. and the plot plan he prepared.*fn2 ESWA argued that: (1) Ferrone would be offered at trial as an expert witness; (2) Appellant failed to properly identify Ferrone as an expert witness as required; and (3) Appellant failed to produce a related expert report. Following oral argument, the trial court issued an order precluding both the testimony of Ferrone and documents prepared by him. R.R. at 332A.

On the first day of trial, ESWA presented an oral motion in limine, seeking to preclude the testimony of Appellant's witnesses, Carl Rodriguez of CMR Construction Corp., Leonard Marroni of Marroni Construction/Mason Contractor Companies, and Jimmy Tomaino of Palmer Woodworking and Construction (collectively, the Contractors), with respect to their repair estimates for damage caused to his home by the water main break. ESWA asserted that Appellant had not complied with Pennsylvania Rules of Civil Procedure 212.2(a)(5) (requiring production of expert reports) and 4003.5 (pertaining to the designation and discovery of expert testimony) by failing to properly identify the Contractors as expert witnesses in advance of trial.*fn3 ESWA argued that it had been prejudiced by Appellant's failures to disclose the information at issue, and such failures prevented ESWA from offering rebuttal experts or otherwise preparing a meaningful response. Appellant responded that he was not required to identify the Contractors as expert witnesses because they were not engaged for purposes of litigation, or alternatively, he had properly identified the Contractors as witnesses in his several amended pre-trial memoranda and that the Contractors' respective repair estimates served as expert reports. The trial court precluded the Contractors from testifying as experts ordering that:

 pursuant to [Pa.R.E.] 701, these witnesses may testify as lay witnesses. To the extent that such testimony is otherwise permitted by the Rules of Evidence, they may testify about matters of which they have personal knowledge, including, but not limited to the following: o their interactions with Plaintiff; and o their observations of damage to the property.

 pursuant to [Pa.R.E.] 701 and 702, however, these witnesses may not offer any expert testimony, including, but not limited to, the following: o the possible cause of damage to Plaintiff's property; o what repairs, if any, are necessary to fix the damage to Plaintiff's property; o the scope of such repairs; and o the cost of such repairs.

Order of February 16, 2011, at 1-2; R.R. at 333A--34A. In its accompanying opinion, the trial court addressed Appellant's argument that the Contractors were not subject to the requirements of Rule 4003.5. The trial court held that once Appellant determined that the Contractors would testify as experts at trial, "he was required to affirmatively respond to ESWA's interrogatory ...

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