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 
2

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.
3

(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.
4

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 
5

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.
6

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 
7

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.
8

[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:
9

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:
10

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:
11

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.
12

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 
13

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),3to $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.
14

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).
15

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...)
16

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).
17

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:
18

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, 
19

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 “endover.” 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 
20

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...)
21

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.
22

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 
23

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...)
24

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.)
25

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
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 :

O R D E R

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