Consolidated Rail Corp. v. Delaware River Port Authority

ORDER

PER CURIAM.

AND NOW, this 28th day of December 2004, the Petition for Allowance of Appeal in the above captioned matter is GRANTED in part, the Superior Court judgment is VACATED, and the matter is REMANDED for the Superior Court to consider the reviewability and merits of the following two claims, which do not appear to have been addressed in its memorandum decision:

(1) Whether a hearsay declarant is “unavailable,” for purposes of Pa.R.E. 804, merely by virtue of his membership in a witness protection program, and if not, whether proof sufficient to otherwise satisfy the definition of “unavailability” was, in fact, offered by the proponent of that declarant’s testimony in this case?

(2) Whether the terms of the parties’ agreement should be interpreted to require indemnification under the instant circumstances, where the loss allegedly occurred during storage?