DeFrancesco v. Western Pennsylvania Water Co.

• Decision Date: 01 June 1984
• Citation: 329 Pa.Super. 508,478 A.2d 1295
• Parties: Joseph G. DeFRANCESCO and Frank Crea, t/d/b/a Mt. Washington Ornamental Iron Works Company and Frank G. DeFrancesco and Frank Crea, as individuals v. WESTERN PENNSYLVANIA WATER COMPANY, a corporation, Appellant. Joseph F. LOY and Bernice Loy, t/d/b/a Joseph F. Loy Tire Service, Inc., v. WESTERN PENNSYLVANIA WATER COMPANY, a corporation, Appellant.
• Court: Pennsylvania Superior Court

Page 1295

478 A.2d 1295

329 Pa.Super. 508

Joseph G. DeFRANCESCO and Frank Crea, t/d/b/a Mt. Washington

Ornamental Iron Works Company and Frank G.

DeFrancesco and Frank Crea, as individuals v. WESTERN PENNSYLVANIA WATER COMPANY, a corporation, Appellant.

Joseph F. LOY and Bernice Loy, t/d/b/a Joseph F. Loy Tire

Service, Inc., v. WESTERN PENNSYLVANIA WATER COMPANY, a corporation, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 19, 1983.

Filed June 1, 1984.

George I. Buckler, Pittsburgh, for appellant.

Robert W. Murdoch, Pittsburgh, for appellees.

Before SPAETH, P.J., and CAVANAUGH, McEWEN, BECK, MONTEMURO, MONTGOMERY and CERCONE, JJ.

MONTEMURO, Judge:

This appeal is from judgments entered on verdicts in favor of appellees, plaintiffs below. The verdicts awarded damages of $72,000 to Joseph G. DeFrancesco and Frank Crea, trading and doing business as Mt. Washington Ornamental Iron Works, and as individuals; and damages of $173,000 to Joseph F. Loy and Bernice Loy, trading and doing business as Joseph F. Loy Tire Service, Inc. In DeFrancesco v. Western Pennsylvania Water Co., 291 Pa.Super. 152, 435 A.2d 614 (1981), this court vacated the judgments entered on these verdicts on the ground that appellees' claim, that the water company had failed to provide sufficient water and water pressure, was within the original jurisdiction of the Pennsylvania Utility Commission. In DeFrancesco v. Western Pennsylvania Water Co., 499 Pa. 374, 453 A.2d 595 (1982), the supreme court reversed, holding that original jurisdiction properly rested in the trial court. Therefore, the supreme court remanded the case to this court for consideration of the other issues raised by the appellant water company but not decided.

Generally stated, the facts are as follows: On August 11, 1973, at approximately 1:00 a.m., a fire broke out in a pile of tires behind a building on property owned by the Joseph F. Loy Tire Service, Inc., located at 1655 through 1659 Saw Mill Run Boulevard in Pittsburgh. The City of Pittsburgh Fire Department arrived on the scene while the fire was still confined to the Loy property. However, because of the low volume and sporadic flow of water from the fire hydrants, the Fire Department was unable to contain the fire and it spread next door to the Mt. Washington Ornamental Iron Works Company located at 1651 Saw Mill Run Boulevard. The buildings on both properties and their contents were damaged extensively by the fire.

The issue at trial was who was responsible for the inadequate supply of water. The mains that supplied water to the hydrants were owned and maintained by appellant. Appellees contended that the inadequate supply of water was caused by appellant's employees' negligent repairs on August 10, 1973--the day before the fire. Appellant contended that the inadequate supply was caused by the Fire Department's use of too many pumpers.

The issues now before us for disposition are: (1) whether appellant's liability to appellees is precluded by Rule 17 of appellant's tariff; ¹ (2) whether the trial court erred in refusing to instruct the jury on Section 328 D of the Restatement (Second) of Torts; (3) whether the trial court erred in admitting into evidence certain statements allegedly made by unidentified employees of appellant; and (4) whether the trial court adequately instructed the jury that damages could be awarded only for such of appellees' losses as were caused by appellant's negligence. The concurring opinion by Spaeth, P.J., adequately covers the first and second issues, and we adopt that portion of President Judge Spaeth's opinion as our own. With respect to the third issue, we hold that the trial court erred, and that a new trial must be granted. Thus, we need not consider the fourth issue, for we see no reason to suppose that it will arise again at the new trial.

Appellant's third argument is that the trial court erred in admitting into evidence certain statements allegedly made by unidentified employees of appellant. These statements were admitted, over objection, in the testimony of Battalion Fire Chief Henry Dudek and in the testimony of appellee Joseph Loy. Chief Dudek testified that while at the scene of the fire on August 11, 1973, at approximately 6:00 a.m., a man approached him and identified himself as an employee of the appellant. Chief Dudek testified that when he asked this man what happened to the water, the man responded, "[I]t's not eight or twelve inch mains. It's a four inch main and the valve at the other end was turned down because they were repairing that line--working on the line." N.T. 269. The trial court allowed this testimony into evidence "as nonhearsay and not to prove the truth of the matter asserted therein." N.T. 284. Chief Dudek testified that the man did not have on a uniform and did not carry any identifying papers, and that he did not see the man get out of one of appellant's vehicles. He further testified that shortly after 2:00 a.m. he had called the fire alarm operator to request that the operator get in touch with appellant and that he assumed that the man had come in response to the operator's call. Chief Dudek testified that he himself was distinguished from other firefighters on the scene in that he was dressed all in white.

Appellee Joseph Loy testified that he was at the fire scene on August 11, 1973, and between 11 a.m. and 12 noon, an "old Italian fellow" approached him and stated, "I guess you think I played a dirty trick on you. We weren't allowed to work overtime." N.T. 43. The trial court admitted this statement not to prove the truth of the matter asserted but for the fact that it was made. N.T. 42. Mr. Loy testified that he did not know the man's name but that he knew that he was employed by appellant because on the morning of the fire the man was in one of appellant's trucks, and also because he had seen the man before in one of appellant's trucks, had talked with him on previous occasions, and had previously sold him tires.

Appellees argue that each of the above statements was admissible on each of three grounds: (1) as nonhearsay and only to prove that it was made; (2) as within the present sense exception to the hearsay rule; and (3) as within the vicarious admission exception to the hearsay rule. We may quickly dispose of the first two asserted bases of admissibility; the third asserted basis of admissibility will require considerable discussion.

The statements were not admissible as nonhearsay only to prove that they were made, and it was error for the trial court to have admitted them on that basis. The fact that the statements were made was of no relevance to any fact of consequence in the case. The statements were only relevant to prove the truth of the matter asserted, i.e., that appellant was at fault. They were, therefore, hearsay and inadmissible unless within an exception to the hearsay rule.

Even though it was error for the trial court to have admitted the statements as nonhearsay, the error would be inconsequential if the statements could properly have been admitted as an exception to the hearsay rule. See Commonwealth v. Whitehouse, 222 Pa.Super. 127, 292 A.2d 469 (1972). Appellees' argument that the statements were properly admissible as within the present sense exception to the hearsay rule is, however, without merit. Neither statement concerned conditions or events that the declarant was observing at the time of the declaration. See Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974); McCORMICK ON EVIDENCE § 298 (2d ed. 1972).

We now consider appellees' argument that the statements were admissible under the vicarious admission exception to the hearsay rule. Appellees contend that a "less restricted" vicarious admission rule should be adopted in Pennsylvania in place of the "traditional, restricted" vicarious admission rule. The traditional rule is that statements made by a party's agent may be offered in evidence against him if the agent had authority to make the statement. McCORMICK ON EVIDENCE § 267 (2d ed. 1972). Obviously, the statements objected to here would not be admissible under the traditional vicarious admission rule. This is so because even if the requirement of agency was proven, there is no indication that either of the declarants had authority to make his declaration.

Appellees assert, however, that the rule to be applied in Pennsylvania is the "less restricted" rule. That rule provides that a statement offered against a party will be admissible if it is "a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship." Federal Rule of Evidence 801(d)(2)(D). While we are sympathetic to appellees' arguments that the traditional rule should be reexamined, it is not our prerogative to replace a rule of evidence which has consistently been applied in this jurisdiction.

The concurrence of President Judge Spaeth springboards to the adoption of the "less restricted" rule from the premise that the law in Pennsylvania on the vicarious admission standard is "unclear." Specifically, President Judge Spaeth finds that he cannot tell whether the traditional rule was applied in Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), and Murray v. Siegal, 413 Pa. 23, 195 A.2d 790 (1963), the two cases relied upon by appellant. It is obvious that these cases refer to the traditional rule requiring agency plus authority, and do not refer to any sort of "less restricted" rule requiring agency plus something less than authority:

The trial judge excluded a memorandum of defendant's chief test pilot to the defendant's president dated January 24, 1960, as hearsay. The memorandum was written by Captain Erickson while he was an agent of the defendant in the course of his duties and within the scope of his authority, and thus is admissible as substantive evidence against the defendant (emphasis added).

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