         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Carletti and Brenda Carletti,   :
h/w                                   :
                                      :
            v.                        : No. 1312 C.D. 2017
                                      : Argued: June 7, 2018
Commonwealth of Pennsylvania,         :
Department of Transportation,         :
                  Appellant           :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY
SENIOR JUDGE PELLEGRINI                      FILED: July 17, 2018


            The Commonwealth of Pennsylvania, Department of Transportation
(PennDOT) appeals from the post-trial order of the Court of Common Pleas of
Delaware County (trial court) denying PennDOT’s Motion for Post-Trial Relief
seeking Judgment Non Obstante Veredicto (JNOV) or, alternatively, a new trial.
In support of its contention that the trial court should have granted its motion for
JNOV, PennDOT argues that the plaintiffs, David and Brenda Carletti (together,
the Carlettis), failed to offer any competent, non-hearsay evidence (1) on the
essential elements of their negligence claim, and (2) that PennDOT had actual or
constructive notice of an alleged defect in a state-operated roadway, which would
thereby cause PennDOT to fall under the highway exception to sovereign
immunity. In support of its argument for a new trial, PennDOT contends that the
trial court failed to give adequate cautionary jury instructions. For the following
reasons, we reverse and remand.


                                        I.
                                        A.
            At approximately 6:30 p.m. on May 26, 2012, David Carletti (Mr.
Carletti) was riding his bicycle downhill at about 30 miles per hour on State Route
320/Sproul Road near the entry of a bridge over trolley tracks in Springfield
Township, Pennsylvania, when he allegedly hit a “hump” in the road. Mr. Carletti
crashed, hitting his head on the pavement. Mr. Carletti was 63 years old at the
time of the accident and had been an avid and experienced cyclist for 15-20 years,
averaging 50-60 miles per week on his bicycle. He was wearing a helmet but the
force of the fall caused it to crack. David and Pamela Kauffman (together, the
Kauffmans) were standing nearby and tended to Mr. Carletti after his fall. While
Pamela Kauffman (Mrs. Kauffman) was looking away at the exact moment of the
accident, David Kauffman (Mr. Kauffman) witnessed it as it was happening.


            Sergeant Andrew McKinney (Sergeant McKinney) of the Springfield
Township Police Department came to the scene and spoke to the Kauffmans about
the accident, including their perceptions as to what caused Mr. Carletti to crash.
Sergeant McKinney authored an incident report, in which he stated:

            The witnesses advised that they observed the victim
            traveling eastbound, on his bicycle, in the center of the
            traffic lane when he hit a hump in the roadway. As a
            result, the victim went forward over the handle bars
            landing on his head. The victim’s bike helmet was
            located several feet away and was damaged.


                                        2
(Reproduced Record (R.R.) at 520a.) Though he did not take measurements,
Sergeant McKinney estimated that the hump Mr. Carletti hit was about three feet
wide and rose a few inches above the rest of the roadway. Though described as a
hump, it is more accurately described as a linear patch to a cut-out portion of the
roadway, stretching from one side of the road to the other.


              Immediately after the fall, Mr. Carletti suffered skull and facial
fractures, as well as four broken ribs and a fractured T-2 vertebrae of his thoracic
spine. Mr. Carletti also suffered serious, irreparable brain damage.


                                              B.
              The Carlettis brought an action against PennDOT alleging negligence
in the design and maintenance of the portion of the roadway where the accident
occurred, as well as a failure to warn bicyclists of the hazardous condition and
failure to remedy the condition after receiving notice thereof.1                Mrs. Carletti
claimed loss of consortium.


              During discovery, the Carlettis retained Shawn Gyorke (Gyorke), an
accident reconstructionist and Arlington Heights, Illinois Police Commander, as an
expert witness. In Gyorke’s report, he opined that:


       1
         The Carlettis also included in their Second Amended Complaint actions against six
other defendants besides PennDOT, including Springfield Township and five private parties that
were alleged to have been responsible for the “selling, manufacturing, marketing, and design” of
Mr. Carletti’s helmet and bicycle. (R.R. at 24a-25a.) The claims against all defendants except
PennDOT were resolved before trial and, therefore, are not part of this appeal.




                                               3
             The only stimulus for the ejection, which can reasonably
             account for the subsequent accident, was the roadway
             defect (patched section of asphalt), as it provided a
             discontinuity in the lateral, vertical and longitudinal
             directions. By way of explanation, absent an alternative
             cause, we can reasonably conclude the nearby road defect
             did cause the ejection/fall.

             The roadway defect was a dangerous condition.
             Furthermore, it posed a hazard due to improper
             maintenance. By way of explanation, [PennDOT], as the
             agent responsible for maintaining the aforementioned
             roadway, had a duty to make the highway safe for its
             intended purpose. Seeing as though there were no
             dedicated off-highway bicycle paths available in the
             same area, the intended purpose of the highway would
             include, but not be limited to, transportation by way of
             bicycle.

             Knowing the ejection was a product of the listed defect,
             PennDOT failed in their [sic] duty to make the highway
             safe for its intended purpose. Similarly, the failure in
             maintaining the highway caused harm to Mr. Carletti.
             Simply put, the roadway defect was a product of
             improper maintenance, thereby creating a dangerous
             condition which was unreasonably unsafe for passing
             cyclists.


(R.R. at 76a.)


                                         C.
             At trial, portions of PennDOT Assistant Manager Joseph Zielke’s
(Zielke) deposition were read into the record. He confirmed that Route 320/Sproul
Road is a state road and, as such, it is PennDOT’s responsibility to maintain it and
ensure it is free of defects. He also stated that in his role as Assistant Manager, he
conducts inspections on state-operated highways to search for possibly dangerous


                                          4
conditions. Regarding the dangerous condition that the Carlettis claim caused the
accident, the following exchange took place during Zielke’s testimony:

               Q: If that bump, when you do your inspections of the
               roadway, if you saw a bump such as you see in this
               photograph, is that something that you would have put in
               to have repaired?

               A: Yes, sir.

               Q: And why?

               A: I would have probably milled it.

               Q: And what does that mean, sir?

               A: And I see the grass in there, too, so, yes, I would have.

                                           ***

               Q: For us lay people, milling means what?

               A: Going to make it level to the roadway.

               Q: And why would you do that?

               A: Get the bump out of the road.


(R.R. at 516a.)


               Mr. Carletti did not testify as to what caused the accident because he
did not recall the specifics of the incident due to the serious brain trauma he
suffered as a result of it. Mr. Kauffman, the sole witness of the accident, also did
not testify.    In fact, Sergeant McKinney and Gyorke were the only liability
witnesses offered at trial.


                                            5
             Sergeant McKinney testified that when he arrived at the accident
scene, the Kauffmans were tending to an unconscious Mr. Carletti. Sergeant
McKinney also testified that, at the scene, he wrote down information that the
Kauffmans relayed to him and, within a few hours of the incident, filled out an
incident report of what he observed. When questioned about the cause of the
accident, Sergeant McKinney read directly from the portion of his report
containing Mr. Kauffman’s observations and, later in his testimony, confirmed that
was what Mr. Kauffman told him. He also testified that the Kauffmans were
standing a couple hundred feet away from where Mr. Carletti hit the hump.


             Sergeant McKinney did not investigate the scene or take any
measurements because it was not in his practice to do so unless the accident
involved either a death or something of a criminal nature. He described the hump
to the Carlettis’ counsel as being roughly three feet wide and “a couple of inches”
high.   (R.R. at 408a.)    Upon cross-examination, he described the hump to
PennDOT’s counsel as “at some point in time [being] several inches high.” (R.R.
at 409a.)


             The Carlettis called Gyorke as an accident reconstruction expert to
establish the cause of the accident. In arriving at his opinion as to what caused Mr.
Carletti’s crash, he testified that he reviewed a number of depositions, including
those of Sergeant McKinney and Mr. Kauffman, which were not included in the
record. Gyorke also reviewed Mr. Carletti’s medical records, which included CT
scans, and Sergeant McKinney’s incident report. He had not visited the scene
itself because by the time he had been retained, the defect had already been



                                         6
repaved. However, Gyorke was able to review photographs of the hump in the
road dating back to June 2011, as well as photographs taken in August 2012 just
months after Mr. Carletti’s accident.


               Regarding the defect on the roadway, Gyorke testified that the asphalt
had worn away after rising and being pounded down in certain areas, “[s]o there is
now a gap down and a hump up where the asphalt has not been chipped away.”
(R.R. at 276a.)2 Gyorke went on to describe the defect as follows:

               There is essentially a pavement section that has been now
               replaced which provides both a vertical change as well as
               a longitudinal change and lateral change in elevation with
               regards to the roadway. The roadway is no longer flat
               when he hits that. It’s basically a – I’ll call it a hump or a
               defect in the road.

                                               ***

       2
         PennDOT’s counsel objected to this testimony because Gyorke was not a highway
engineer and was not qualified to speak about the way asphalt moved. The trial court asked
Gyorke if it was in the field of his expertise to know how highways may become “uneven,
humped, and leveled and lowered.” (R.R. at 277a.) He responded in the affirmative, stating that
in a course he teaches in accident reconstruction at Northwestern University’s Center for Public
Safety:

               We deal with this all the time, sir. We spend the better part of our
               – our first at-scene investigation course is two weeks long. We
               spend the better part of four or five days teaching officers and
               engineers about roadway aspects and evidence from roadways, of
               which we deal with things like asphalt, different paved surfaces,
               the consistency, what their coefficient of frictions are for various
               surfaces. I mean we spend a very long time teaching these types of
               topics too. These are just entry level reconstructionists.

Id. The trial court then overruled the objection.




                                                    7
            [I]t’s a patch job essentially, for lack of a better term,
            wherein now there has been, due to weather and other
            things, that has risen above the level of the roadway.
            There is both a longitudinal change as well as a wave
            effect of the pavement. Essentially when cars travel –
            continue traveling over those sections of roadway, they
            pat down a certain section of the asphalt while the other
            sections are allowed to rise, for lack of a better term,
            which means that you have this wave effect across the
            defect as well as a hump in the roadway as well. That’s
            the impact point that he strikes before being launched off
            his bicycle.

                                       ***

            So where the asphalt has now worn away, there is now a
            gap. Okay? The asphalt is meant to patch the gap. But
            not only has the asphalt risen and been pounded down in
            certain areas, making it kind of that wave effect, but
            several parts were, due to wear, of that which is not
            intended to be a long-term solution or a long-term fix for
            a roadway of this particular condition, it’s worn away,
            leaving a gap before you actually hip [sic] the hump as
            well. So there is a gap down and then a hump up where
            the asphalt has not been chipped away.


(R.R. at 273a – 275a.)


            Regarding whether the hump in the road was, in fact, a defect, Gyorke
noted that he reviewed Zielke’s deposition testimony, which assisted him in
coming to his conclusion that the hump in the roadway was a dangerous or
defective condition of the roadway and that it undoubtedly was the cause of the
accident. When counsel for the Carlettis questioned him regarding why he was
certain the defect in the roadway caused the accident rather than Mr. Carletti
braking, Gyorke responded:


                                        8
             So there’s a difference when it comes to the mechanics of
             crash with regards to the way the person’s body moves
             when they [sic] yank, like you just described, yank on the
             brakes. That’s what called an end-over or people will
             commonly refer to it as an endo. I don’t know why but
             they use that particular acronym. But an endo is
             distinctly different in that it causes your body to do
             something completely dissimilar to what the witnesses in
             this particular case describe.         When you impact
             something, that’s a slowing of the bicycle and your body
             keeps going. Okay? When you can – when you perform
             or when you grab the brakes really hard, and you’ll see
             this on occasion during bicycle races and things like that
             where riders panic and stop. When you brake hard, you
             can also cause to put the bike to – if I hold it hard
             enough, I can cause the bike to go over. The problem is
             is [sic] that my body doesn’t get ejected upon the
             roadway. My body stays with the bicycle now because
             I’m applying the brakes and I go over and I hit head first
             upside-down, about as close to a 90-degree turnover
             essentially, and that is not what we saw in this particular
             case. So we know that it’s not some event where [Mr.
             Carletti] simply jams on the brakes and basically does a
             90-degree turn and hits his head first on the ground.

                                         ***

             So if I’m a rider and I am on the bicycle and now my
             head is rotated down along with the bicycle, I’m
             basically taking it from here and I’m rotating the bicycle
             over. We would see an impact on the top of the helmet
             and we would see an impact on the top of the head. If it
             was – if it were a product of jamming on the brakes so to
             speak and going over.


(R.R. at 285a – 286a.)


             Gyorke also explained the exact scenario of the accident as he
reconstructed it to a reasonable degree of certainty:


                                          9
            So as the bicyclist is riding, he hits this defect and the
            bicycle is slowed. The bicycle is definitely being slowed
            as a result of impacting the barrier. It’s his body that’s
            not [because] his body isn’t conjoined to the bicycle. So
            his body follows Newton’s first law of motion . . . in that
            his body continues forward at the speed at which he was
            riding and goes over the handlebars, like Mr. Kauffman
            describes, whereas the bicycle, having been slowed due
            to the impact, is slightly behind him, meaning that the
            bicycle has been slowed some but his body has not and
            that’s why his body goes over the handlebars and he goes
            tumbling down the roadway to where his final rest
            position is.


(R.R. at 327a.) On cross-examination, PennDOT’s counsel asked Gyorke how he
could have relied upon Mr. Kauffman’s deposition testimony in forming his
opinion when Mr. Kauffman himself did not know precisely what caused Mr.
Carletti to crash. Gyorke replied:

            It’s by way of – it’s by way of crash reconstruction that
            knowing the defect is there, knowing the size, scope, and
            nature of the defect, looking at the physical evidence, and
            then taking all of those facts into consideration is how
            you arrive at the ultimate opinion that it was the defect
            that did, in fact, cause the crash. Mr. Kauffman is just
            being honest because he doesn’t – he’s not a crash
            reconstructionist. He didn’t attempt to reconstruct this
            crash. All he knows is that he sees [Mr. Carletti] get
            ejected over his bicycle, where the defect is in the
            roadway.


(R.R. at 312a - 313a.) Gyorke did, however, concede that Mr. Kauffman did not
state whether he knew if Mr. Carletti grabbed his brakes. Counsel for PennDOT
then read part of Mr. Kauffman’s deposition testimony, which states:



                                        10
             I never said starts to lose control. What I said is that
             something happened [sic] the bike back wheel came up
             and he went over the handlebars.


(R.R. at 321a.) Later, PennDOT’s counsel questioned Gyorke on this point:

             Q: So when you were asked about what Mr. Kauffman
             said, equally, you would disagree that he said in his
             deposition nine times that I can’t tell you what caused
             him to flip over, correct?

                                          ***

             A: He does not know why the bike flipped over. He only
             knows that [Mr. Carletti] was ejected when he reached
             the defect.

             Q: Okay. [Mr. Carletti] doesn’t say he reached the defect
             and the defect caused him to flip. [Mr. Carletti] says I
             don’t know. It was the area of where it was, correct?

             A: Correct.


(R.R. at 365a – 366a.)


                                          D.
             Throughout the trial, the Carlettis’ counsel stated that he was going to
call Mr. Kauffman as a witness. Based upon this assumption, throughout Gyorke’s
testimony, multiple references were made to Mr. Kauffman’s deposition testimony.
At the close of their case, the Carlettis’ counsel stated that he did not intend to call
Mr. Kauffman as a witness.         Moreover, Mr. Kauffman’s deposition was not
entered into the record.



                                          11
             Counsel for PennDOT moved to strike as hearsay all references to Mr.
Kauffman’s out-of-court statements, including all references to these statements in
Gyorke’s testimony, arguing that the only reason the trial court permitted the
references was because Mr. Kauffman was expected to testify. The trial court
agreed, stating “I think I got to exclude the Kauffman’s [sic] testimony or there is
reference to them and [Gyorke’s] opinion is still there been [sic] based on all the
things he reviewed.” (R.R. at 441a.) The trial court made a similar ruling with
regard to Sergeant McKinney’s reiteration of what the Kauffmans said to him.
(R.R. at 442a - 444a.)


             Acknowledging that it “agreed that the Kauffman’s [sic] [deposition]
testimony is hearsay since they are not being called,” the trial court found that
“records and reports” upon which an expert relies – even if hearsay – are
admissible to help the jury assess an expert’s opinion, “but not as establishing the
truth of the underlying information.” (R.R. at 456a.) The trial court also reasoned,
“it will be up to the jury to recall what the basis of Mr. Gyorke’s opinion was and
there will be no mention of the Kauffman’s [sic] testimony by either side [in their
closings.]” Id.


             Separately, PennDOT moved for a nonsuit on the merits of the
Carlettis’ claims, arguing that the Carlettis had not proven that PennDOT had the
requisite actual or constructive notice of a dangerous condition on Route 320. It
also contended that it was entitled to a nonsuit because there is no proof of a causal
connection between the alleged defect on Route 320 and Mr. Carletti’s accident




                                         12
because the Carlettis’ case rested entirely upon Gyorke’s impermissible
speculation and conjecture. The trial court denied this motion.


                  The jury returned a verdict in favor of Mr. Carletti and awarded
damages in the amount of $4,458,530.50 for loss of wages, medical costs and pain
and suffering, and $1,000,000 in favor of Mrs. Carletti for loss of consortium.
PennDOT made an oral motion for post-trial relief, but the motion was
immediately denied. PennDOT followed with a written motion for post-trial relief,
which was also denied. The trial court also molded the verdict, in accordance with
42 Pa.C.S. § 8528(b),3 to $250,000 per plaintiff, for a total of $500,000, plus delay
damages of $18,811.00. This appeal followed.4

         3
             42 Pa.C.S. § 8528(b) provides that in actions for damages against a Commonwealth
party:

                  Damages arising from the same cause of action or transaction or
                  occurrence or series of causes of action or transactions or
                  occurrences shall not exceed $250,000 in favor of any plaintiff or
                  $1,000,000 in the aggregate.

         4
             We may only reverse upon a showing that the trial court clearly abused its discretion or
committed an error of law. Worley v. County of Delaware, 178 A.3d 213, 228 (Pa. Cmwlth.
2017). In reviewing a motion for JNOV, “the evidence must be considered in the light most
favorable to the verdict winner, who must be given the benefit of every reasonable inference of
fact arising therefore, and any conflict in the evidence must be resolved in his or her favor.” Id.
JNOV should only be entered in a clear case and all doubts should be resolved in favor of the
verdict winner. Id. JNOV is properly granted only where the movant is entitled to judgment as a
matter of law or evidence is such that no two reasonable minds could disagree that the outcome
should have been rendered in favor of the movant. Id. A movant is entitled to judgment as a
matter of law when the court reviews the record and concludes that even with all factual
inferences decided adverse to the movant, the law requires a verdict in its favor. Moure v.
Raeuchle, 604 A.2d 1003, 1007 (Pa. 1992). Alternatively, JNOV may be granted on an
evidentiary basis when the trial court reviews the record and concludes that the evidence was
such that a verdict for the movant was beyond peradventure. Id.



                                                   13
                                              II.
              PennDOT contends that it was entitled to JNOV because: (1) the
Carlettis failed to establish negligence because they failed to provide competent
testimony on the element of causation;5 and (2) the Carlettis’ claim does not fall
within an exception to sovereign immunity because there was no evidence that
PennDOT had notice of the defect.


                                               A.
              A commonwealth agency waives its sovereign immunity for
dangerous conditions of the highway under its jurisdiction.                     42 Pa.C.S. §
8522(b)(4). Although it is not an insurer against all defects, a commonwealth
agency is required to maintain its highways in a reasonably safe condition for the
traveling public. The duty to keep the highway safe for the traveling public
includes the duty to design the highway in a reasonably safe manner, maintain the
highway in a reasonably safe manner, and update the design, if improvements are
necessary, to protect the public from harm. Mitchell v. Borough of Rochester, 150
A.2d 338 (Pa. 1959).


              A commonwealth agency also waives immunity for a claim that gives
rise to damages due to:

              A dangerous condition of Commonwealth agency real
              estate and sidewalks, including Commonwealth-owned

       5
         It is well settled that a person claiming negligence must establish the elements of: (1)
duty, (2) breach, (3) causation, and (4) damages. Bubba v. Department of Transportation, 61
A.3d 313, 316 (Pa. Cmwlth. 2013).




                                               14
               real property, leaseholds in the possession of a
               Commonwealth agency and Commonwealth-owned real
               property leased by a Commonwealth agency to private
               persons, and highways under the jurisdiction of a
               Commonwealth agency. . . .


42 Pa.C.S. § 8522(b)(4). This exception does not specifically provide for actual or
constructive notice of the dangerous condition of the highway. 6 However, because

       6
         The other exception to immunity regarding highways is for dangerous conditions
created by natural elements:

               A dangerous condition of highways under the jurisdiction of a
               Commonwealth agency created by potholes or sinkholes or other
               similar conditions created by natural elements, except that the
               claimant to recover must establish that the dangerous condition
               created a reasonably foreseeable risk of the kind of injury which
               was incurred and that the Commonwealth agency had actual
               written notice of the dangerous condition of the highway a
               sufficient time prior to the event to have taken measures to protect
               against the dangerous condition.

42 Pa.C.S. § 8522(b)(5).

        This exception encompasses holes in highways resulting from deterioration caused by a
combination of water, freezing, thawing and traffic. Cressman v. Department of Transportation,
538 A.2d 992 (Pa. Cmwlth. 1988). Where the defect in the roadway is solely the result of traffic
conditions, it appears that the subsection (b)(4) highway exception applies, not the (b)(5)
exception. In Bartell v. Straub, a drop off (a lineal pothole) between the roadway and the berm
that had been created by vehicles’ wheels or tires eroding the berm was not considered a natural
condition that fell within the exception. 578 A.2d 72 (Pa. Cmwlth. 1990), rev’d on other
grounds, 613 A.2d 1185 (Pa. 1992). For defects which fall under (b)(5), actual written notice is
also required. That the commonwealth agency knew or should have known about the pothole or
other natural condition is insufficient to satisfy the notice requirement. Stevens v. Department of
Transportation, 492 A.2d 490 (Pa. Cmwlth. 1985). This requirement has been held not to violate
the Pennsylvania Constitution and it serves the legitimate purpose to give the commonwealth
agency sufficient notice to cure the defect. Ketterer v. Department of Transportation, 574 A.2d
735 (Pa. Cmwlth. 1990).

(Footnote continued on next page…)

                                               15
it is a prerequisite that an action must be maintainable at common law, and at
common law the action required such notice, the commonwealth agency must have
actual or constructive notice of the dangerous condition to maintain an action
under the exception to sovereign immunity.


              For the governmental entity to be charged with constructive notice of
a dangerous condition of a roadway, the condition had to be apparent upon
reasonable inspection. See Good v. City of Philadelphia, 6 A.2d 101 (Pa. 1939);
Department of Transportation v. Patton, 686 A.2d 1302 (Pa. 1997). Whether there
has been constructive notice is typically a jury question, but the issue may be
decided by the court “when reasonable minds could not differ as to the
conclusion.” Patton, 686 A.2d at 1305.


              PennDOT contends that the question of constructive notice should not
have been submitted to the jury because “reasonable minds” could not differ as to
whether there was sufficient evidence that it had constructive notice of the
dangerous condition. While there is no evidence regarding precisely how long the
dangerous condition existed, images of the hump dating back to over a year before
the accident occurred were included in the record, as well as comparative images
from a few months after the accident. There is no doubt the defect was apparent on
reasonable inspection because Zielke testified that if he observed the condition


(continued…)

      The parties agree that the Carlettis’ claim falls within the “dangerous condition of the
highway” exception set forth in 42 Pa.C.S. § 8522(b)(4).




                                             16
while inspecting the road, he would have taken corrective action by milling the
road to take out the hump and other imperfections.


            Because there was sufficient competent evidence that the jury could
have found that PennDOT had constructive notice of the dangerous condition, the
trial court did not err in denying PennDOT’s motion for JNOV based upon the
issue of sovereign immunity.


                                          B.
            Even if it is deemed to have constructive notice, PennDOT contends
that the Carlettis failed to show the causal link between PennDOT’s alleged
negligence and the injuries Mr. Carletti suffered. See Martinowski v. Department
of Transportation, 916 A.2d 717, 725 (Pa. Cmwlth. 2007) (holding that a
plaintiff’s lack of memory regarding how or why her vehicle ran off the road
resulted in a “gap in the chain of causation”). It argues that the only evidence
relating to the cause of the accident was the testimony of Gyorke and Sergeant
McKinney, and that both witnesses relied upon either facts not of record or
impermissible hearsay as the basis for their testimony. Specifically, regarding
Gyorke’s testimony, PennDOT contends that his opinion as to what caused the
accident and the mechanics of the accident are based upon Mr. Kauffman’s
deposition testimony, which was not introduced into the record.


            The rules of evidence permit a qualified expert to “testify in the form
of opinion.” Pa.R.E. 702. Specifically:




                                          17
              An expert may base an opinion on facts or data in the
              case that the expert has been made aware of or personally
              observed. If experts in the particular field would
              reasonably rely on those kinds of facts or data in forming
              an opinion on the subject, they need not be admissible for
              the opinion to be admitted.


Pa.R.E. 703. An expert opinion may be based on inadmissible facts or facts not in
evidence, including other expert opinions and hearsay statements, as long as such
facts are of a type reasonably relied on by experts in that profession used to form
an opinion.    Commonwealth v. Towles, 106 A.3d 591, 605 (Pa. 2014).            For
example, Gyorke legitimately relied upon a user manual issued by the United
States Department of Transportation to estimate the speed of the bicycle at the time
of the accident.


              An expert may also express an opinion as to the specific cause of an
incident based on facts that the expert assumes, but does not know, “if he answers
hypothetical questions based upon assumptions which the jury would be warranted
in finding as facts from the evidence presented.” DiBuono v. A. Barletta & Sons,
Inc., 560 A.2d 893, 895 (Pa. Cmwlth. 1989). The facts which the expert assumes
to be true for the purposes of a hypothetical must be put in evidence by witnesses
other than the expert himself. Houston v. Canon Bowl, Inc., 278 A.2d 908 (Pa.
1971). “To the extent that [the expert’s] opinions were predicated upon factual
assumptions . . . those assumptions ‘must find some support in the record.’” Shaw
by Strain v. Stackhouse, 920 F.2d 1135, 1142 (3d Cir. 1990) (quoting Pennsylvania
Dental Association v. Medical Service Association of Pennsylvania, 745 F.2d 248,
262 (3d Cir. 1984)). This is because the opinion of an expert does not constitute
proof of the existence of facts necessary to support the opinion. Collins v. Hand,

                                         18
246 A.2d 398, 404 (Pa. 1968); see also Kimberly Clark Corporation v. Workers’
Compensation Appeal Board (Bullard), 790 A.2d 1072 (Pa. Cmwlth. 2001)
(holding that a surveillance video not offered into evidence could not support a
medical expert’s opinion that an individual could return to work without
restrictions because it lacked factual foundation).


             In this case, Gyorke’s opinion that Mr. Carletti crashed due to a defect
in the road is predicated upon his opinion that Mr. Carletti hit the hump in the road
and was ejected from his bicycle rather than having hit his brakes to cause an “end-
over.”   An end-over, according to Gyorke’s testimony, is caused when an
individual on a bicycle brakes too suddenly and causes the bike to “go over.”
However, in such an instance, “[the] body doesn’t get ejected upon the roadway.
[The] body stays with the bicycle. . . .” (R.R. at 286a.) Gyorke’s opinion was
based on Mr. Kauffman’s deposition. Because that deposition was not offered into
evidence, it could not be used as a basis for Gyorke’s opinion.


             However, there is evidence as to what caused the accident and upon
which Gyorke could base his opinion. Sergeant McKinney testified regarding
what Mr. Kauffman told him when he arrived at the accident scene. He stated in
his report that Mr. Kauffman saw Mr. Carletti hit a hump and “[a]s a result, [Mr.
Carletti] went forward over the handle bars landing on his head.” (R.R. at 520a.)
PennDOT does not contend that this evidence, offered into the record, was a basis
for Gyorke’s opinion that the hump caused the accident. PennDOT instead argues
that Sergeant McKinney’s report and testimony regarding what Mr. Kauffman told




                                          19
him should not have been admitted or allowed because it is inadmissible hearsay.7
However, the Carlettis point out that PennDOT never made an objection to
Sergeant McKinney’s testimony regarding what Mr. Kauffman said to him. We
agree with the trial court that the issue of whether these statements constituted
inadmissible hearsay was waived.8

       7
         Pennsylvania Rule of Evidence 802 provides that hearsay is not admissible unless some
exception applies. Generally, “[a] police report prepared by an officer who is not a witness to
the accident is inadmissible hearsay that should not be admitted into evidence. Nor should a
party be able to get such a report into evidence in an indirect manner.” Rox Coal Company v.
Workers’ Compensation Appeal Board (Snizaski), 807 A.2d 906, 914 (Pa. 2002) (citing Holland
v. Zelnick, 478 A.2d 885, 888 (Pa. Super. 1984)). A police report containing statements from
persons who witnessed an incident is double hearsay and, therefore, is only admissible if there is
a separate hearsay exception for each statement in the chain. Commonwealth v. May, 898 A.2d
559, 566 (Pa. 2006); see also Walker v. Spiller, (E.D. Pa., No. 97-6720, filed June 9, 1998)
(holding that a police report which contains a cursory summary of a victim’s report that he had
been robbed at gunpoint constituted double hearsay and the statements did not fall within any
exception).

       8
         Even though it found that the issue was waived, the trial court found that the statement
was permitted under the “recorded recollection” exception to hearsay. Pennsylvania Rule of
Evidence 803.1(3), among other things, provides that it only applies to refresh the memory of
those who made the statement. Pa.R.E. 803.1(3). Mr. Kauffman’s statements memorialized by
Sergeant McKinney’s incident report do not fall under this exception because he was obviously
not the “declarant” of Sergeant McKinney’s report and was not a witness in this case.

       Alternatively, if the objection had not been waived, the Carlettis argue that it falls within
the “present sense impression” exception to the hearsay rule. A present sense impression is “[a]
statement describing or explaining an event or condition, made while or immediately after the
declarant perceived it.” Pa.R.E. 803(1). A statement may fall under this hearsay exception if it
occurred either contemporaneous with or immediately after an event the statement describes.
The contemporaneousness of the statement ensures its reliability.

               The declaration is “instinctive rather than deliberative—in short,
               the reflex product of immediate sensual impressions, unaided by
               retrospective mental action. These are the indicia of verity which
               the law accepts as a substitute for the usual requirements of an oath
               and opportunity for cross-examination.”
(Footnote continued on next page…)

                                                20
               Because there was competent evidence in the record for a jury to find
that the hump in the roadway was the cause of Mr. Carletti’s injuries, the trial court
properly denied PennDOT’s request for JNOV.


                                                III.
               However, even if the trial court properly denied the request for JNOV,
PennDOT contends that it is entitled to a new trial. To be entitled to a new trial, it
must be shown that a “mistake” was made at trial, and that mistake is sufficient
basis for granting a new trial. Luzerne County Flood Protection Authority v.


(continued…)


Municipality of Bethel Park v. Workmen’s Compensation Appeal Board (Willman), 636 A.2d
1254, 1257 (Pa. Cmwlth. 1994) (quoting Edmund Morgan, Res Gestae, 12 Wash. L. Rev. 91
(1928)).

        The present sense impression exception imposes no arbitrary time limit, but “shortly
thereafter” refers to mere minutes rather than tens of minutes. A 30-minute lapse in time
between the statement and the incident exceeds the scope of the present sense impression
exception. See Commonwealth v. Yancy (Pa. Super., 2604 E.D.A. 2012, filed Aug. 1, 2013).
The Superior Court has held that a ten-minute lapse in time from an eyewitness’ statements to a
police officer after a motorcyclist’s collision with a tractor trailer did not fall within the present
sense impression hearsay exception. See Croyle v. Smith, 918 A.2d 142 (Pa. Super. 2007). But
see McCurdy v. Greyhound Corporation, 346 F.2d 224, 226 (3d Cir. 1965) (approving the
admission of a statement made ten or fifteen minutes after an accident). This standard is not,
however, consistent, as the Superior Court has also held that a statement made to a police officer
between five to ten minutes after an incident occurred fell within the exception. Commonwealth
v. Gray, 867 A.2d 560, 571 (Pa. Super. 2005).

       In this case, Sergeant McKinney arrived at the scene several minutes after the accident
occurred. PennDOT does not contend that the statement did not occur “shortly thereafter”; but,
without support, contends that Mr. Kauffman’s statement does not fall within the exception
because he made it in response to a question.




                                                 21
Reilly, 825 A.2d 779, 782 (Pa. Cmwlth. 2003).                The moving party must
demonstrate that he or she has suffered prejudice from the mistake. Harman v.
Borah, 756 A.2d 1116 (Pa. 2000). Whether the trial court abused its discretion in
granting or failing to grant a new trial depends on whether the trial court has
rendered a judgment that is manifestly unreasonable, arbitrary or capricious, has
failed to apply the law, or was motivated by partiality, prejudice, bias or ill will.
Id. at 1123. Where the record adequately supports the trial court’s reasons and
factual basis, the court did not abuse its discretion.         Id. (citing Morrison v.
Department of Public Welfare, Office of Mental Health (Woodville State Hospital),
646 A.2d 565, 570 (Pa. 1994)).


               PennDOT argues that the trial court failed to give a proper limiting
instruction to the jury concerning Gyorke’s use of Mr. Kauffman’s deposition
testimony in forming his opinion.           The trial court provided the following
instruction:

               [I]f you find that the expert’s testimony is not truthful, or
               it’s not accurate, you reject it, just as you would any
               other witness’s testimony. If you find, on the other hand,
               that the expert’s testimony, or segments of it, are truthful
               and accurate, then it’s going to be up to you to decide
               how significant it is, if at all, in this case. So in other
               words, the weighing of expert testimony is left to you,
               ladies and gentlemen, just as with every witness.

                                           ***

               But with respect to expert testimony, consider also the
               reasons that the expert gives you for his opinion. And
               are those – those reasons are very much like the pillars
               that hold up the roof of this building. If those pillars are
               weak, they’re going to fall away, and the roof’s going to


                                            22
               fall down. It’s no longer supported. And so it is with an
               expert’s opinion are the reasons that the expert gives you
               for those opinions. So consider the reasons that the
               expert gives you in his opinion, and then decide, are
               those reasons supported by the evidence in this case, that
               is the evidence that you – which you, ladies and
               gentlemen, find to be truthful and accurate, and worthy of
               some weight. Now if one of the expert witnesses had
               told you that he relied upon a particular fact, but you
               find, from the evidence, that fact is not so, the opinion is
               not supported in that regard. Similarly, if a witness
               depended on the non-existence of a fact, but you find,
               from the evidence, that that fact did exist, then, again, the
               opinion is not supported in that regard. You’ve heard,
               in this case the records and reports upon which the
               expert relied were marked and offered into evidence,
               and you may consider the facts, the data, or the
               opinions reasonably relied upon by the expert in
               evaluating the basis of the expert’s opinion, but it
               does not establish the truth of the underlying
               information.


(R.R. at 473a – 475a.) (Emphasis added.)9

       9
         The trial court found that PennDOT waived this issue because it did not take an
exception to the instruction. The trial court explicitly stated prior to issuing jury instructions:

               The Court may give a limited instruction to the jury under Rule
               105, that may – that it may consider the facts, data, or opinions
               reasonably relied upon by the expert under Rule 703 in evaluating
               the basis of that expert’s opinion, but not as establishing the truth
               of the underlying information. So it will be up to the jury to recall
               what the basis of Mr. Gyorke’s opinion was and there will be no
               mention of the Kauffman’s [sic] testimony by either side, the
               Plaintiffs’ or the Defendants’.

(R.R. at 456a – 457a.) Immediately thereafter, counsel for PennDOT stated:

               [PennDOT]: Your Honor, we take an exception to that and we ask
               you to abide by the rule in Rule 703 and Rule 105 as written in the
(Footnote continued on next page…)

                                                23
              We agree with PennDOT that this charge was inadequate because it
did not inform the jury that, since Mr. Kauffman did not testify, Gyorke’s opinion
as to causation could not be based on Mr. Kauffman’s deposition testimony
because that testimony was impermissible hearsay. By omitting specific references
to Mr. Kauffman’s deposition testimony in its instruction, the trial court put the
onus upon the jury to determine what precisely was the underlying foundation of
Gyorke’s opinion. This error was compounded because the trial court instructed
counsel that neither was to refer to Mr. Kauffman’s deposition or statements in
their closing arguments for any purpose. Under Pennsylvania Rule of Evidence
105, “[i]f the court admits evidence that is admissible against a party or for a
purpose – but not against another party or for another purpose – the court, on
timely request, must restrict the evidence to its proper scope and instruct the jury

(continued…)

              statute. Specifically, it says, when an expert testifies about the
              underlying facts and data that support the expert’s opinion and the
              evidence would be otherwise inadmissible. The Trial Judge upon
              request, must, and we’re asking this Court to do so, instruct the
              jury to consider the facts and data only to explain the basis for the
              expert’s opinion and not as substantive evidence. And we would
              ask this Court to instruct the jury that the facts that the expert
              relied on are not substantive evidence in this case.

              The Court: Well some of the facts are and some aren’t and you’re
              just getting back into this and I’m trying to clean up the business
              about the Kauffman’s [sic] and the hearsay aspects of it and –

              [PennDOT]: And we would ask specifically regarding the
              Kauffman’s [sic] testimony is not substantive evidence in this case.

(R.R. at 457a – 458a.) Clearly, PennDOT requested a more specific instruction, which the trial
court acknowledged when it said to PennDOT’s counsel, “[Y]ou have an exception on the
record, of course.” (R.R. at 461a.)



                                              24
accordingly.” Pa.R.E. 105. Despite PennDOT’s request to do so, the trial court
did not do as required. Because the trial court made a legal error and abused its
discretion in failing to grant PennDOT a new trial, we reverse the trial court’s
order and remand the matter for a new trial.



                                      __________________________________
                                      DAN PELLEGRINI, Senior Judge




                                        25
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Carletti and Brenda Carletti,       :
h/w                                       :
                                          :
             v.                           : No. 1312 C.D. 2017
                                          :
Commonwealth of Pennsylvania,             :
Department of Transportation,             :
                  Appellant               :




                                      ORDER


             AND NOW, this 17th day of July 2018, the Court of Common Pleas of
Delaware County’s order dated September 7, 2017, is reversed, and we remand this
matter for a new trial.


             Jurisdiction relinquished.



                                          __________________________________
                                          DAN PELLEGRINI, Senior Judge
