Osborne v. CAMBRIDGE TP.

• Decision Date: 16 July 1999
• Citation: 736 A.2d 715
• Parties: Jeannette M. OSBORNE, an individual and Administratrix of the Estate of Stephen K. Osborne, Deceased, v. CAMBRIDGE TOWNSHIP, Appellant. Jeannette M. Osborne, an individual and Administratrix of the Estate of Stephen K. Osborne, Deceased, Appellant, v. Cambridge Township.
• Court: Pennsylvania Commonwealth Court

736 A.2d 715

Jeannette M. OSBORNE, an individual and Administratrix of the Estate of Stephen K. Osborne, Deceased, v. CAMBRIDGE TOWNSHIP, Appellant.

Jeannette M. Osborne, an individual and Administratrix of the Estate of Stephen K. Osborne, Deceased, Appellant, v. Cambridge Township.

Commonwealth Court of Pennsylvania.

Argued June 17, 1999.

Decided July 16, 1999.

Reargument Denied September 24, 1999.

John O. Dodick, Erie, for appellant.

Louis M. Tarasi, Jr., Pittsburgh, for appellee.

Before PELLEGRINI, J., FLAHERTY, J., and NARICK, Senior Judge.

PELLEGRINI, Judge.

Jeannette M. Osborne, individually and as Administratrix of the Estate of her deceased husband, Stephen K. Osborne (Osborne or Decedent), appeals from an order of the Court of Common Pleas of Crawford County (trial court) denying her motion to mold the verdict and award Rule 238 delay damages and post-verdict interest. Cambridge Township (Township) has filed a cross-appeal from that order denying its post-trial motions as well.

This case arises as a result of an automobile accident that occurred around 9:30 p.m. on July 28, 1993, in which Osborne was killed. At the time of the accident, it was dark and raining hard because a storm had just gone through the area, making for poor visibility on the road on which Osborne was driving his pick-up truck. Osborne was driving along Route T680/Center Road (Center Road), a two-lane gravel road with barbed wire on the side of the road and trees on the property inside the barbed wire. Although the speed limit was 55 miles per hour, Osborne, who had a blood-alcohol level of .191 at the time,¹ was driving approximately 72 miles per hour when he went over a knoll and soon after struck a large fallen oak tree — approximately 54 inches in circumference — that was lying in a dip in the road across both lanes.² He died instantly.

Osborne's wife, acting in her capacity as Administratrix, filed wrongful death and survival actions against the Township alleging, inter alia, that the fallen tree was within its right-of-way and that it was negligent in its failure to take measures to warn the public that the large tree had fallen across one of its roads for which it had received timely notice. At the jury trial, the Township Road Master, Lawrence Tapper (Roadmaster Tapper), Township Supervisor Patrick Herman (Supervisor Herman), and a Township road worker Trace Fosburg (Roadworker Fosburg), testified that they had never received any complaints prior to the accident that the fallen tree needed maintenance or that it was rotting. Even Edward Styborski (Supervisor Styborski and abutting Landowner), the owner of the property on both sides of Center Street where the accident occurred and also a Township supervisor, testified that the fallen tree was fully leafed when it fell and he never complained that it required maintenance.

As to when the Township received notice and had an opportunity to respond to the tree in the road, Supervisor Styborski testified that when he went out that night, he saw the downed tree and told his wife to call one of the other supervisors. He could not recall, however, at what time he told his wife to make the call but thought it might have been a few hours before the accident occurred. Betty Styborski (Mrs. Styborski) testified that after her husband told her to make the phone call, she placed a call at 9:00 p.m. to Supervisor Herman but only spoke with his wife who told her he was sleeping. She further stated that she again called Supervisor Herman but when she reached Mrs. Herman instead, she told her there had been an accident.

Contrary to Mrs. Styborski's testimony, Mrs. Herman testified that she received a call from Mrs. Styborski at 9:30 p.m. regarding the fallen tree, but told her that her husband was sleeping and to call someone else. Mrs. Herman also stated that Mrs. Styborski called again at 9:50 p.m. but spoke to her husband because he was getting up to go to work at his night shift position. Supervisor Herman's testimony echoed his wife's regarding the phone calls, but he also testified that even if he had gotten up at 9:30 p.m. to attend to the tree, it would have taken him approximately 20-30 minutes to get to the Township building to get barricades to put on the road and reach the tree. Similarly, Roadmaster Tapper stated that he heard about the accident on his police scanner between 9:15 and 9:30 p.m. but no one called him prior to that time to notify him that a tree was down.

The only evidence that the Township had possibly received notice in time to respond to the downed tree was Roadworker Fosburg's testimony that he spoke to Roadmaster Tapper one week after the accident and was told by him that Supervisor Herman had received notice of the fallen tree an hour prior to the accident.

Apparently considering the Decedent's condition and speed at which he was travelling at the time of the accident, the jury determined that he had been 25% negligent while the Township had been 75% negligent, and returned a verdict in favor of his estate for a total of $3,892,243.20 ($2,455,187.46 for the wrongful death action and $1,437,055.80 for the survival action). At the conclusion of the trial, the Township filed a motion for post-trial relief arguing that the judgment should have been entered in its favor and requesting a new trial, remittitur and a molding of the verdict.³ The Administratrix filed motions to mold the verdict⁴ and award Rule 238 delay damages and post-verdict interest. The trial court denied the Township's request for post-trial relief except for its motion for remittitur, which was granted with respect to the survival action award in that it was reduced to zero. The trial court also molded the jury's wrongful death verdict of $2,455,187.46 by Osborne's comparative negligence of 25% resulting in a verdict of $1,841,390.60. From that figure, $5,000 was subtracted for first-party insurance benefits that were paid. The total delay damages were then calculated to be $315,255.53⁵ and the verdict was reduced to the statutory cap of $500,000 plus the delay damages for a total verdict of $813,255.53. The trial court entered judgment in favor of the Administratrix against the Township with costs and interest at the rate of 6% from the date of the verdict. Both the Township and the Administratrix filed appeals from that decision which are now before this Court.⁶

I.

As to the notice requirement under 42 Pa.C.S. § 8542(b)(4), the Township only contends that the trial court erred by refusing its request for a new trial because Roadworker Fosburg was permitted to testify as to a hearsay statement made to him by Roadmaster Tapper that Supervisor Herman had an hour's notice of the fallen tree prior to the accident. More specifically, Roadworker Fosburg testified that one week following the accident, he was informed by Roadmaster Tapper that Supervisor Herman told him that he had received notice of the fallen tree one hour prior to the Decedent's accident and had done nothing in response. Although the trial court found that the Township had failed to object to this testimony at trial and had waived any further right to object to the testimony, the Township argues that it did raise a hearsay objection at trial.

Whether the issue is preserved is determined by the following exchange between Christine Hurnyak (Ms. Hurnyak), Counsel for the Administratrix; Roadworker Fosburg; John Dodick (Mr. Dodick), Counsel for the Township, and the Court:

Q. (by Ms. Hurnyak) Now, back in— I'm going to take you back to 1992 which would have been the year before the accident with Mr. Osborne. And I'm going to ask, did it come to your attention that a report had been made about a problem with trees on the Center Street Extension at the Styborski property?

A. (by Roadworker Fosburg) I had overheard Eddie Styborski and Larry Tapper.

MR. DODICK: Your Honor, I'm going to object to this overhearing, I think, it's hearsay.

THE COURT: Well, it depends on whether he's going to testify to prior inconsistent statements. They both testified.

MR. DODICK: Yeah.

THE COURT: Why don't you come to side bar and you can tell me what he's going [sic] say at side bar.

SIDE BAR:

THE COURT: Is he going to say something inconsistent?

MS. HURNYAK: Yes.

THE COURT: What's he going to say?

MS. HURNYAK: Well, Mr. Tapper had denied that he had any report of a problem but Mr. Fosburg is going to say that Mr. Tapper and Mr. Styborski discussed the problem at the township building on more than one occasion.

THE COURT: Mr. Tapper said they never talked about the problem in the Township.

MS. HURNYAK: Correct.

THE COURT: Is he going to say anything else?

MS. HURNYAK: He was at the scene the night of the accident and he is going to talk about a conversation that he had with Mr. Tapper about a week after the accident.

MR. DODICK: And what's—I mean, I don't understand. What is that conversation going to be?

MS. HURNYAK: That it's going to have to do with the notice on the night of the accident.

THE COURT: What's he going to say?

MS. HURNYAK: He's going to talk about how Mr. Tapper said that because the call came in like more than [sic] hour before the accident and Herman didn't do anything, that Herman is going to get us sued yet.

MR. DODICK: I don't understand. What is the evidence that call came in before, more than [sic] hour before the accident?

THE COURT: Well, if Mr. Tapper said that, then obviously that indicates— I guess, you could put him on and he could deny it or what are—I think, that's evidence in this case if he said he had a call—that Herman had a call an hour before. That's an inconsistency with the testimony that Herman certainly said.

Although the Administratrix argues that the objection initially made to Roadworker Fosburg's testimony regarding the trees on the road, the sidebar explained the objection also went to his testifying about the discussion between Roadmaster Tapper and Supervisor...