Semieraro v. Commonwealth Utility Equipment Corp.

544 A.2d 46, 518 Pa. 454, 1988 Pa. LEXIS 185

• Court: Supreme Court of Pennsylvania
• Decided: July 14, 1988
• Docket: 49 W. D. Appeal Docket 1987
• Status: Published

Opinions

OPINION OF THE COURT

LARSEN, Justice.

The issue in this case is whether the trial court erred in permitting a witness to testify as to his discussion with an out-of-court declarant who told the witness about the conelusion contained in a report which was prepared by experts who were not called to testify at trial.

On July 16, 1981, appellant, Joseph Semieraro, was inspecting an old stone bridge for his employer, the City of Pittsburgh (City), when the underbridge inspection truck, which appellant was operating from a bucket suspended from the truck over the side of the bridge, tipped and fell off the bridge and into a ravine seventy feet below. Appellant suffered severe personal injuries. Appellant and his wife filed a complaint in trespass and assumpsit against appellees, Commonwealth Utility Equipment Corporation (CUECO) and Hunt-Pierce Corporation,¹ the seller and manufacturer of the truck, respectively. To recover damages for the loss of the truck, the City also filed a complaint in trespass and assumpsit against appellees, and the two cases were consolidated for trial before a jury in the Court of Common Pleas of Allegheny County.

During the trial, the president of appellee CUECO, Anthony Closkey, was permitted to testify, over objection, that he had been told by a City employee (Louis Gaetano) that the experts hired by the City to investigate the accident had concluded that the underbridge inspection truck was stable. Specifically, the exchange between counsel for appellee CUECO and Closkey was as follows:

Q. ... During your conversations with Mr. Gaetano, did he ever mention the subject of the results of any studies done by the City of Pittsburgh?

A. Yes, he did.

Q. And what did he say with regard to those studies? A. He said the studies showed that the final conclusion was — one of the things in the final conclusion was that the unit was stable.

Trial Transcript, Vol. Ill, at 1249-50 (Jan. 23, 1984) (objection was raised at sidebar prior to quoted exchange).

The jury returned a verdict in favor of appellees CUECO and Hunt-Pierce Corporation. The trial court denied the post-trial motions of the City and appellants, finding that the testimony of Closkey was admissible against the City and that the testimony was “error in the abstract” even if it were improper hearsay because stability was not at issue in the case. Opinion of the Trial Court at 7-8 (May 24, 1985). Superior Court, in a memorandum opinion, 515 A.2d 623, affirmed. We granted appellants’ petition for allowance of appeal and we now reverse.

An out-of-court declaration constitutes hearsay if it is offered for the purpose of proving the truth of the matter contained in the declaration. Carney v. Pennsylvania Railroad Co., 428 Pa. 489, 240 A.2d 71 (1968). In the case presently before this Court, Gaetano’s out-of-court declaration was introduced to prove the truth of an out-of-court written declaration which was introduced to prove the truth of the non-testifying experts’ opinion that the underbridge inspection truck was stable. This is hearsay upon hearsay. It is well established that a report prepared by an expert who is not called to testify as a witness is hearsay. Pompa v. Hojancki, 445 Pa. 42, 281 A.2d 886 (1971). This can be no less true where an employee of a party discusses the conclusion reached by experts with a witness who is testifying at trial.

As so eloquently stated by Mr. Justice Musmanno:

[t]he primary object of a trial in our American courts is to bring to the tribunal, which is passing on the dispute involved, those persons who know of their own knowledge the facts to which they testify. If it were not for this absolute sine qua non, trials could be conducted on paper without the presence of a single flesh and blood witness. However, with such a pen-and-ink procedure, there would be no opportunity to check on testimonial defects such as fallacious memory, limited observation, purposeful distortions, and outright fabrication. The great engine of cross-examination would lie unused while error and perjury would travel untrammeledly to an unreliable and often-tainted judgment. Accordingly, nothing is more adamently established in our trial procedure than that no one may testify to what somebody else told him. He may only relate what is within the sphere of his own memory brought to him by the couriers of his own senses. While, of course, there are many so-called exceptions to this rule against hearsay, it will be noted upon analysis that they are actually not exceptions. In nearly every instance where the statement of others is allowed, the alleged hearsay is in itself a matter of original impression.

Johnson v. Peoples Cab Co., 386 Pa. 513, 514-15, 126 A.2d 720, 721 (1956).

There is no exception to the hearsay rule which would permit the experts’ opinion regarding the stability of the underbridge inspection truck to be admitted in this case. Therefore, we find that the trial court erred in admitting the testimony of Closkey regarding the experts’ opinion. Not all trial errors, of course, constitute reversible error, thus we must also determine whether the erroneous admission of this testimony was harmful to appellants. Williams v. McClain, 513 Pa. 300, 520 A.2d 1374 (1987).

A thorough reading of the trial transcript reveals that the stability of the underbridge inspection truck was the central issue in this products liability case. Among other defects cited, appellants’ witnesses indicated that appellees CUECO and Hunt-Pierce were never able to correct a problem with the spring locks of the truck.² Trial Transcript, Vol. I at 461. When these spring locks were applied, they raised the back end of the truck several inches. Id. Partial spring lock slippage, which occurred on more than one occasion, caused the truck to visibly tip. Id. at 398. Appellants’ expert testified that the underbridge inspection truck involved in the accident had only two spring locks, as opposed to other comparable models that were equipped with six spring locks, and that this made the truck “springier” on an uneven surface and vulnerable to spring lock slippage. Trial Transcript, Yol. II at 835. In the opinion of appellants’ expert, the cause of the initial tip over of the truck was either a cracked frame or the partial slipping of a spring lock. Id. at 839. Appellee CUECO’s expert disagreed with this analysis of the cause of the accident, and, indeed, appellee CUECO attempted to discredit the appellants’ allegation of instability as the cause of the accident throughout the liability phase of the trial.

Because the experts hired by the City were never called to testify at trial regarding their opinion about the stability of the truck, appellants did not have an opportunity to challenge the experts’ qualifications or to probe the method and results of the investigation to expose flaws or weaknesses. The jury was informed by CUECO’s president, Closkey, that the experts hired by the City were professors from the University of Pittsburgh. Trial Transcript, Vol. Ill at 1242. Given the weight that a jury could have accorded this expert opinion, it is clear that the opinion of these experts may well have influenced the jury in reaching its verdict.

Accordingly, we reverse the order of Superior Court and remand for a new trial.

NIX, C.J., filed a dissenting opinion.

1 . Hunt-Pierce did not participate in the trial, and, according to the testimony of the president of CUECO, had gone out of business prior to trial.

2 . These devices were attached to the rear axles of the truck and were designed to provide the rigidity ordinarily associated with vehicles which have outriggers attached for stability.