author: HOFFMAN, Judge: DEL SOLE, Judge,

text:
    487 A.2d 1340
    Walter KAMINSKI and Lisa Kaminski, his wife v. EMPLOYERS MUTUAL CASUALTY COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1984.
    Filed Feb. 8, 1985.

      Susan M. Danielski, Philadelphia, for appellant.
    Lee C. Krause, Honesdale, for appellees.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant-insurer contends that the lower court erred in permitting two expert witnesses to testify on behalf of appellees-insureds with respect to the cause and origin of the fire in question when those experts were not identified in appellees’ answers to interrogatories and were not identified as appellees’ expert witnesses until the sixth day of trial. We agree and, accordingly, reverse and remand for a new trial.

Following a May 5, 1980 fire which damages and/or destroyed their house and its contents, appellees, Mr. and Mrs. Kaminski, submitted a claim in the amount of $89,-593.20 to appellant, Employers Mutual Casualty Company, pursuant to their homeowners insurance policy. Because appellant refused to make any insurance payments, appel-lees filed a complaint on December 22, 1980, alleging breach of contract and seeking damages under the policy. Appellant responded by filing an answer and new matter on January 29, 1981; appellees then filed an answer to appellant’s new matter on February 9, 1981. During discovery, appellant propounded interrogatories which appellees answered on May 7, 1981. Both parties submitted pre-trial memoranda and, on July 9, 1981, the trial court, per Judge Davis, specially presiding, held a pre-trial conference.

Jury trial commenced on July 21, 1981, with Judge Williams specially presiding, and continued to July 24; after an approximate one-week adjournment period, it recommenced on August 3 and concluded on August 6. In establishing their case, appellees first presented the testimony of Mr. Kaminski regarding appellees’ activities on the day of the fire, as follows: On Sunday, May 4, 1980, at approximately 8:00 a.m. appellees left their residence located on Route 652, between Beach Lake and Narrowsburg, Damascus Township, Wayne County, to go to work in Monticello, New York, approximately a 45-minute drive. Mrs. Kaminski is a bookkeeper at Kutshers Country Club in Monticello; Mr. Kamin-ski is a real estate salesman for E. & A. Mason Real Estate in Monticello. At 5:00 p.m., appellees left work and returned home, arriving at 5:45. At 6:15, appellees left their home and drove to Kutsher’s Country Club for dinner and a show. They stayed until approximately 2:00 a.m. the next morning. They then left the club and, because Mrs. Kamin-ski wanted something to eat, they went to a restaurant in Monticello and stayed there approximately one hour. At 3:30 a.m., they left the restaurant and stayed in the parking lot for a while because Mr. Kaminski fell asleep. At approximately 4:30 a.m., appellees started to drive home; however, after driving about three-quarters of a mile, Mr. Kaminski was too tired to continue so they stopped on the side of the road and Mr. Kaminski again fell asleep. At approximately 6:00 a.m., he was awakened by the sun. Because appellees were approximately 45-50 minutes drive from their home and had to be at work by 9:00 a.m., they drove straight to Mr. Kaminski’s real estate office to freshen up and then went to their respective offices. At the end of the day, appellees left work early and, upon arriving home, saw the burned remains of their residence. The fire was estimated to have broken out at approximately 2:00 a.m. on Monday, May 5, 1980. (N.T. July 22, 1981 at 27-28, 44-46; July 23, 1981 at 96-111). Appellees each testified as to the various items lost in the fire and their values. (Id. at 38-47). They concluded their case-in-chief by presenting the expert testimony of Robert Jones, a professional building estimator, and Charles Catanzaro, a public insurance adjuster. Both of these witnesses work for Dalan Adjustment Company, which had been retained by appellees to prepare their insurance claim, and they testified as to the estimated values and replacements costs of appellees’ destroyed property. (N.T. July 23, 1981 at 52-79).

In defense, appellant presented the testimony of several experts. Alfred Crosby, Chief of the Beach Lake Volunteer Fire Department, testified that the fire in question had been difficult to extinguish and therefore opined that some type of liquid material, such as gasoline, turpentine or fuel oil, had been applied to the basement and first floor of appel-lees’ home. He also based this opinion on the “tunnellike” burnt patterns on the flooring. (Id. at 126-27). Alfred H. Thumann, assistant fire chief of the Beach Lake Fire Department, also testified that the fire had been difficult to extinguish with water and would flare up repeatedly. He therefore opined that there had been some highly flammable substance in the basement other than paper or wood. (Id. at 141-43). Michael O’Day, a Pennsylvania State policeman and alternate fire marshall for Wayne County, testified that his job as a state police fire marshall was to investigate the cause and origin of fires of suspicious nature and gave the following opinions: (1) an oil burner had been carefully removed from the basement furnace of appellees’ home prior to the fire; (2) the point of origin of the fire was the basement stairway; (3) the fire had been caused by placing some type of flammable liquid on the floor from the kitchen into the living room, down the basement stairway, and upstairs to the second floor; (4) the ignition source of the fire was the oil burner motor which had been set to the thermostat like a timing device, i.e., when the temperature hit a certain degree, the thermostat called for heat, thereby automatically igniting the oil burner, which started the basement stairway on fire and rapidly moved upstairs from there; (5) the whole house was intended to be burned to the ground. (Id. at 150-53, 156-203). Frederick Blum, a consulting engineer in the field of investigation of fires involving malfunctioning equipment, testified as to the condition of the oil burner both before and after the fire occurred. (N.T. July 24, 1981 at 284-93). Robert Haycock, a senior fire investigator with UBA Fire Investigators in Harrisburg and a state police fire marshall, gave his opinion that, because of the burning patterns or “alligatoring effect” on the wood floors of appellees’ home after the fire, the fire was caused by the ignition of a flammable liquid and that such low floor burnout throughout the entire structure was not common with accidental fires. (Id. at 302-10). He also ruled out the possibility of an electrical fire because of the extreme burning throughout the entire building and because the flooring above the electrical panel was still intact, stating that an electrical fire starts from a smoldering effect. (Id. at 337). Mr. Kaminski, called to the stand by appellant as of cross, testified that appellees’ separately filed 1980 federal income tax returns reported respective gross incomes of $4729 and $8475. (N.T. August 3, 1981 at 381-83). He also testified as to appellees’ various earnings and expenses. (Id. at 383-405). Appellant’s last witness, Edward Gieda, a home building-remodeling and damage appraiser, testified as to replacement costs for appellees’ home (Id. at 408-14).

Appellees responded on rebuttal with the testimony of two expert witnesses. Robert Jennings, a photographer, county coroner and chief deputy for Wayne County, testified that, in his opinion, no accelerants or flammable liquids had been poured on the stairways of appellees’ home and that the fire was not incendiary. (N.T. August 4, 1981 at 510). Thomas Evans, electrical inspector for the City of Scranton and a member of the Arson Task Force, testified: “My opinion is definitely an electrical fire.” (Id. at 524).

In surrebuttal, appellant again put Michael O’Day on the stand. O’Day disagreed with Jennings and Evans as to the electrical origin of the fire because the fuse box was intact and there was no evidence of melting. (N.T. August 5, 1981 at 549-68). On cross, however, he admitted that he was not an electrician. (Id. at 561-62).

At the conclusion of the trial, the jury, finding that the fire was not incendiary and that there was no fraud, rendered a verdict in appellees’ favor for $89,500.00 in damages.

Appellant subsequently filed motions for a new trial or for judgment n.o.v. Following argument, these motions were denied on December 13, 1982 by Judge Conway. On January 7, 1983, appellant filed the instant appeal. The lower court then ordered appellant to file of record a Pa.R.A.P. 1925(b) concise statement of the matters complained of on appeal; appellant complied with this order. On March 25, 1983, appellant filed a praecipe to enter judgment nunc pro tunc on the jury verdict in appellees’ favor pursuant to Pa.R.Civ.P. 1039.

Appellant contends that the rebuttal testimony of Jennings and Evans should not have been admitted because appellees failed to disclose the identities of these expert witnesses during discovery. Pa.R.Civ.P. 4003.5 provides that:

(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
(1) A party may through interrogatories require
(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.
* # * * Jje *
(b) If the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

(Emphasis added). The rule embodied in subsection (b) above is restated in Rule 4019, entitled “Sanctions”, as follows:

(i) A witness whose identity has not been revealed as provided in this chapter shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

Pa.R.Civ.P. 4019(i) (emphasis added). Thus, the rule is one of mandatory preclusion at trial of the testimony of undisclosed expert witnesses in the absence of extenuating circumstances. See Sindler v. Goldman, 309 Pa.Superior Ct. 7, 14, 454 A.2d 1054, 1057 (1982) (Local Rule 212, which embodies the same rule codified in Pa.R.Civ.P. 4003.5, “provides unconditionally that testimony will be precluded in the event of noncompliance.”). See also Long v. C.M.C. Equipment Rental, Inc., 70 D. & C.2d 403 (Philadelphia Co.1975); Peace v. Hess, 67 D. & C.2d 230 (Lancaster Co.1974). The rationale for these discovery rules has been set forth by this Court on several occasions. In Catina v. Maree, 272 Pa.Superior Ct. 247, 259-60, 415 A.2d 413, 420 (1979), rev’d on other grounds, 498 Pa. 443, 447 A.2d 228 (1982), we stated:

The importance of a party having adequate and accurate information on the eyewitnesses to be called by an adverse party, is of course, manifest. If the witness’ trial testimony is damaging to the uninformed party, he is subject to the vagaries of surprise and attendant detriment in the eyes of the jury; while if the witness is in possession of facts favorable to the uninformed party, the latter is deprived of potentially crucial information.

And in Sindler v. Goldman, supra, 309 Pa.Superior Ct. at 12, 454 A.2d at 1056, we reiterated:

The purpose of the discovery rules is to prevent surprise and unfairness and to allow a trial on the merits. When expert testimony is involved, it is even more crucial that surprise be prevented, since the attorneys will not have the requisite knowledge of the subject on which to effectively rebut unexpected testimony. By allowing for early identity of expert witnesses and their conclusions, the opposing side can prepare to respond appropriately instead of trying to match years of expertise on the spot. Thus, the rule serves as more than a procedural technicality; it provides a shield to prevent the unfair advantage of having a surprise witness testify.

(Footnote omitted).

In the instant case, appellant propounded written interrogatories which clearly requested, inter alia, the names of the expert witnesses who were expected to testify on appellees’ behalf. See Defendant’s Interrogatories Nos. 12-14. In response, appellees answered: “All persons listed in the Dalan Adjustment Corporation report and adjusters of that company.” See Plaintiffs’ Answer to Defendant’s Interrogatory No. 12. Although Jones and Cantanzaro were listed in the Dalan Adjustment Corporation report, Jennings and Evans were neither listed in that report nor identified anywhere in appellees’ answers. Therefore, under the discovery rules, Jennings and Evans should have been precluded from testifying at trial unless extenuating circumstances existed for appellees’ nondisclosure. See Pa. R.Civ.P. 4003.5(b) and 4019(0-

Appellees contend, however, that there were extenuating circumstances because the pleadings raised only the defense of misrepresentation or false swearing and did not raise the defense of arson. They therefore argue that because they did not contemplate an arson defense at the onset of the trial, they sought rebuttal experts on the issue of the cause and origin of the fire after the trial was underway only when it became apparent that the issue of arson was becoming the thrust of appellant’s defense. The lower court, in allowing Jennings and Evans to testify over appellant’s objections, apparently agreed. See N.T. August 4, 1981 at 466-67.

We reject appellees’ argument because their claim of ignorance of the arson defense prior to trial is controverted by the record. In its Answer to the Complaint, appellant invoked the “Concealment or Fraud” defense provided for in the insurance policy, and averred in New Matter the following:

13. Defendant avers that the policy of insurance sued upon contains, inter alia, the following provisions:
Concealment or Fraud. We do not provide coverage for any insured who has intentionally concealed or misrepresented any material fact or circumstance relating to this insurance.
14. The defendant avers that subsequent to the fire which occurred on or about May 5, 1980 and which fire defendant avers was incendiary in origin, plaintiffs furnished to defendant a document purporting to be a Sworn Statement in Proof of Loss wherein plaintiffs averred, declared and represented that the cause and origin of said loss was “fire” and that the said loss did not originate by any act, design or procurement on the part of plaintiffs. A true and correct copy of said document purporting to be a Sworn Statement in Proof of Loss is attached hereto, and marked as Exhibit “A”, and made a part hereof.
15. The defendant further avers that the averments, declarations and representations referred to in paragraph fourteen (14) hereof related to material facts and circumstances concerning the insurance in question, the subject thereof and the interest of the plaintiffs therein.
16. The defendant further avers that plaintiffs, in such aforesaid document purporting to be a Sworn Statement of Proof of Loss, did, under oath, willfully, deliberately and maliciously with intent to defraud the defendant, conceal the true origin and cause of the fire.
17. Defendant further avers that plaintiffs did on July 15, 1980, under oath, willfully, maliciously and with intent to defraud the defendant, conceal the true origin and cause of said fire, when, in fact, such origin and cause was well known to them.

(Emphasis added). In their Answer to Appellant’s New Matter, appellees averred the following:

14. Paragraph 14 is admitted in part and denied in part. That the plaintiffs do not of their own personal knowledge have any information or belief as to the nature or origin of the fire and therefore by implication this part of paragraph 14 must be denied and proof of the same is demanded at trial. As to the plaintiffs filing a proof of loss indication that the origin of the loss was a fire and that it did not originate by any act, desire or procurement on their part, this document speaks for itself and therefore Exhibit A is admitted as per the statements contained therein.
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17. Paragraph 17 is denied and it is specifically averred that the plaintiffs did not know nor intend to defraud or conceal the true origin of the fire, therefore, strict proof of paragraph 17 is demanded at trial.

(Emphasis added). We think it clear from these pleadings that both parties were put on notice and understood that the defense of arson was raised and would be litigated. Although arson is not expressly mentioned in appellant’s New Matter, at trial, defense counsel explained the reasons for the formulation of the above paragraphs in appellant’s New Matter:

MR. BELZ [Defense Counsel]: ... (In Chambers) ... This lawsuit brought by the Plaintiffs against the Employers Mutual Casualty Company is an action for a breach of an insurance contract. The Defendant can only be found liable to the Plaintiffs under the provisions of that contract, and can avoid liability only by showing a breach of a contractual provision of the policy. The provisions of the contract of insurance in question, as in the case of the provisions required of all fire insurance policies by statute in Pennsylvania under 40 P.S. Section 636, do not include a provision expressly stating that no payment will be made to an insured who intentionally burns his property, or for arson by an insured.
Rather, the policy in this action, and the fire policies by statute in Pennsylvania, provide that coverage is not provided for any insured who has intentionally concealed or misrepresented any material fact or circumstance relating to the insurance. This is the provision in the contract, and by statute, under which an insurer can defend a case on the grounds that the insured intentionally set the fire for which he is making a claim.
Accordingly, in order to defend a claim under the contractual provisions of the policy, the insurer must aver that the insured concealed and misrepresented in the proof of loss and/or the oral examination under oath, that the fire did not originate by any act, design or procurement on the part of the insured and thereby, by necessary implication, that the insureds intentionally set the fire.
The fact that an insured sets a fire by his and/or her act, design or procurement, is not a defense itself, but only when pled in the context of the concealment and misrepresentation provisions. The ultimate fact of proof is the concealment or misrepresentation of the arson or the incendiary fire caused by the act, design or procurement of the insured. That is the ultimate fact, and the only fact that has been pled in this action in the new matter.

(N.T. August 4, 1981 at 443-44). We find this explanation reasonable. In Greenberg v. Aetna Insurance Co., 427 Pa. 494, 235 A.2d 582 (1967), the insured sought to recover under two separate fire insurance policies for losses resulting from a fire in the shopping center where he owned and operated a drug store. In their answers to the complaint, the defendant-insurance companies denied liability on the contracts because the fire “was the result of incendiarism, a fact well known to the plaintiff who participated therein, and ... such participation and failure to disclose this information was the result of concealment and misrepresentation of the plaintiff thereby voiding the said policy.” Although the sufficiency of the pleadings was not an issue in Green-berg, we note that, at trial, evidence was admitted from which the jury could infer that the fire involved was of an incendiary nature, and that plaintiff had arranged for arsonists to set the fire. Admittedly, the pleading in Green-berg more explicitly alleges the plaintiffs participation in the fire; however, we believe that the instant pleadings raise the same allegation by clear implication.

Even assuming that the pleadings are ambiguous, however, appellant’s pre-trial memorandum and the transcript of the pre-trial conference clearly demonstrate that appel-lees were aware of the arson defense prior to trial. In appellant’s July 3, 1981 pre-trial memorandum, appellant stated, under “Summary of Legal Issues”, that:

(a) Defendant’s burden of proving that the insureds participated in or caused the fire to be set is controlled by the burden of proof in civil cases or preponderance of the evidence, as opposed to the standard of proof in criminal cases.

(Defendant’s Pre-Trial Memorandum at 5). At the July 9, 1981 pre-trial conference, in the presence of appellees’ counsel and the court, appellant’s defense counsel, in requesting a continuance because his principal expert witness would be out of the country from July 17 to August 3, stated: “he is my chief expert to determine that the fire is arson.” (N.T. Pre-trial Conference, July 9, 1981 at 2). Additionally, at this conference, the following exchange occurred:

THE COURT: And, your defense is that you are not liable because the owners or their agents or representatives were responsible for the fire?
MR. BELZ [Defense Counsel]: Yes, Your Honor.

(N.T. Pre-trial Conference, July 9, 1981 at 3). Appellees’ counsel at the pre-trial conference also recognized that arson was a defense which would be testified to at trial, as the following excerpt indicates:

MR. KRAUSE [Plaintiffs’ Counsel]: Your Honor, the only legal question that I would raise at this time in anticipation of testimony. I would like it clearly understood that the policy would still be in effect and still be a binding obligation if there was arson. The only time and the only defense that I believe is being set forth is the policy Holder or his Agents committed the arson.
THE COURT: I understood that was your contention.
MR. KRAUSE [Plaintiffs’ Counsel]: To carry my objection, which I anticipate is that Attorney Belz [Defense Counsel] does not produce or prove my client’s involvement in the arson, but merely puts testimony on concerning arson, I am concerned very much as to the effect that would have on a jury.
THE COURT: Do you disagree with him?
MR. BELZ [Defense Counsel]: Yes, Your Honor, and I expect to prove arson, Number One, and after I prove arson I can then proceed to tie in the insured, to either having the fire set intentionally or having it set by someone else or having knowledge by whom it was set and not disclosing that information to the Insurance Company, but I have to prove arson in my case, Number One.

(N.T. Pre-trial Conference, July 9, 1981 at 4).

Thus, even if appellees were not put on notice of the arson defense by the pleadings, they certainly knew of the defense for at least two weeks prior to the commencement of trial. We also note that the record is devoid of any indication that appellees’ counsel was surprised by, or objected to, the arson references in the pre-trial memorandum or at the pre-trial conference.

Although it is true that the pre-trial memorandum was filed and the pre-trial conference occurred subsequent to the interrogatories, Pa.R.Civ.P. 4007.4 imposes upon a responding party a duty seasonably to supplement his responses to discovery requests:

(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to the identity and location of persons having knowledge of discoverable matters and the identity of each person expected to be called as an expert witness at trial the subject matter on which he is expected to testify and the substance of his testimony as provided in Rule 4003.5(a)(1).
(2) A party or an expert witness is under a duty seasonably to amend a prior response if he obtains information upon the basis of which
(a) he knows that the response was incorrect when made, or
(b) he knows that the response though correct when made is no longer true.

(Emphasis added). The explanatory note to Rule 4007.4 further states that:

The prior Rules contained no provisions imposing a continuing obligation on an answering party to supplement his responses to interrogatories or oral depositions if he becomes aware of subsequent facts which make his prior answers incorrect when made or no longer true in the light of new circumstances.
Rule 4007.4 is adapted from Fed.R.Civ.P. 26(e) to provide such an automatic obligation. The automatic obligation is limited to (a) disclosure by a party of the identity and location of additional persons having knowledge of discoverable facts and the identity of persons expected to be called at trial as expert witnesses, and (b) amendment of a prior answer if a party or expert witness obtained information on the basis of which he knows that the original response was incorrect, or, if correct when originally made, is no longer true. Additional obligations to supplement may be imposed by (1) an order of court; (2) an agreement of the parties; or (3) supplemental interrogatories.

(Emphasis added). See Royster v. McGowen Ford, Inc., 294 Pa.Superior Ct. 160, 167 n. 4, 439 A.2d 799, 803 n. 4 (1982) (even though initial expert interrogatories were possibly immature, party still required to answer and, also, under Rule 4007.4, party had duty seasonably to supplement responses); Crawford v. Chambersburg Hospital, 18 D. & C.3d 121, 127-30 (Franklin Co. 1980) (under Rule 4007.4, supplemental responses should be supplied as trial strategy develops).

Accordingly, we find that appellees had no excuse for failing to prepare for the arson defense prior to trial and for failing to disclose the identities of their expert witnesses on the issue of the cause and origin of the fire. Although the record does not definitively reveal exactly when Jennings and Evans were considered by appellees to be possible expert witnesses for trial, appellees indicate that Jennings was retained on July 23, 1981, and Evans was retained on or before August 1, 1981. Thus, Jennings and Evans were presumably retained after trial was underway. However, we find it hard to believe that appellees would have waited until after the commencement of trial to retain expert witnesses to rebut the arson defense when the record demonstrates that they had clear notice of such a defense well in advance of trial. See, e.g., Crawford v. Chambersburg Hospital, supra at 131. Moreover, we find a disturbing deliberation in the fact that the identities of Jennings and Evans were not disclosed to appellant’s counsel and the trial court until August 4, 1981, the sixth day of trial, just immediately before they were to testify as rebuttal witnesses. Therefore, we cannot allow a party to circumvent the valid purposes of the discovery rules by late retention of expert witnesses which the party then excuses under the guise of ignorance or surprise regarding opposing party’s case.

Under these circumstances, we find that there were no extenuating circumstances justifying appellees’ failure to disclose the identities of Jennings and Evans until the sixth day of trial (and the second day after a one-week adjournment period). Thus, we hold that the testimony of these expert witnesses should have been precluded at trial pursuant to Pa.R.Civ.P. 4003.5(b) and 4019(i). See Nissley v. Pennsylvania Railroad Company, 435 Pa. 503, 259 A.2d 451 (1969), cert. denied, 397 U.S. 1078, 90 S.Ct. 1528, 25 L.Ed.2d 813 (1970) (new trial granted because trial court erroneously allowed testimony of expert medical witness whose identity was not revealed in answer to interrogatory); Sindler v. Goldman, supra (allowing defendant doctor in malpractice action to testify in expert capacity even though he failed to comply with local rule requiring pre-trial expert report denied plaintiffs opportunity for effective rebuttal and right to a fair trial); Moore v. Howard P. Foley Co., 235 Pa.Superior Ct. 310, 340 A.2d 519 (1975) (new trial granted because trial court erroneously allowed doctor to testify as expert witness where identity of doctor was not disclosed in plaintiffs answer to defendant’s interrogatories and defendant did not learn of it until the first day of trial); McClain v. Carney, 19 D. & C.3d 527 (Wyoming Co.1981) (where plaintiff fails to list known witness in response to interrogatories or in pre-trial memorandum, Rule 4019(i) requires that the witness’ testimony at trial be stricken because under the new discovery rules the court no longer has the discretion to allow a witness to testify whose identity and role have not been previously disclosed to opposing counsel); and Philadelphia Electric Company v. Nuclear Energy Liability-Property Insurance Association, 10 D. & C.3d 340 (Philadelphia Co.1979) (under discovery rules, sanction for failure to disclose identity of expert in answer to interrogatories either upon initial inquiry or seasonably after duty to disclose arises, is barring of undisclosed expert from testifying at trial). But see Emerick v. Carson, 325 Pa.Superior Ct. 308, 472 A.2d 1133 (1984) (trial court correctly allowed defendant’s expert witness to testify even though witness’s identity was not disclosed in answers to interrogatories and only provided to plaintiffs on the day jury selection for trial was completed).

The grant or refusal of a new trial is a matter within the trial court’s discretion and will not be reversed on appeal absent a clear abuse of that discretion. Canery v. Southeastern Pennsylvania Transportation Authority (SEPTA), 267 Pa.Superior Ct. 382, 391, 406 A.2d 1093, 1097 (1979). Here, the trial court overruled defense counsel’s objection to allowing Jennings and Evans to testify, stating: “We think the argument of discovery in the interrogatories has no weight in light of the fact that these are witnesses that were not in the mind of counsel at the time the interrogatories were answered, or within the time that discovery would ordinarily have been pursued.” (N.T. August 4,1981 at 466-67). In denying appellant’s motion for a new trial, the lower court apparently believed appellees’ contention that they had been unaware of appellant’s arson defense prior to trial. As we have found, however, the record clearly demonstrates that appellees had notice of this defense well in advance of trial, and probably as early as the pleadings stage. Therefore, we find that the lower court abused its discretion in refusing to grant a new trial. Accordingly, we reverse the order below and remand for a new trial.

Reversed and remanded for a new trial.

Jurisdiction is not retained.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

The majority concludes that the trial court erred in allowing Appellees’ expert witnesses to testify on rebuttal and thus remands for a new trial. Since my review of the record shows no prejudice or surprise to Appellant from the introduction of the expert testimony nor any bad faith on the part of Appellees, I respectfully dissent. I would also then reach the remaining issues raised by Appellants and affirm the judgment of the trial court.

As I read the majority opinion, it relies on Appellees’ perceived failure to comply with the rules of discovery and the general belief that Appellees did not act in good faith in not retaining an arson expert or experts prior to trial. Specifically, the majority finds that Appellees’ experts should have been precluded from testifying under Rules 4003.5 and 4019 of the Pennsylvania Rules of Civil Procedure. In addition, the majority infers bad faith by Appel-lees based on its finding that the pleadings gave ample notice to Appellees that Appellant would raise an arson defense at trial and that Appellees accordingly should have retained experts prior to trial who would then have been identified in answers to interrogatories or at the pre-trial conference. However, I feel the majority’s analysis is flawed because it has ignored prior well settled case law in this Commonwealth.

The issue of whether to admit expert testimony undisclosed prior to trial has been addressed several times by this Court. In Gill v. McGraw Electric Co., 264 Pa.Super. 368, 399 A.2d 1095 (1979), a decision relegated to a footnote by the majority, this Court en banc established the analytical framework within which to consider admission of previously undisclosed expert testimony. The Gill Court set forth four criteria relevant to such determination: 1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, 2) the ability of that party to cure the prejudice, 3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or other cases in the court, and 4) bad faith or willfulness in failing to comply with a pre-trial order limiting witnesses to be called to those named prior to trial. Id., 264 Pa.Superior Ct. at 382, 399 A.2d at 1102. Thus, under Gill, the trial judge still can admit, in his sound discretion, previously undisclosed expert testimony despite the fact that the rules of discovery or a pre-trial conference order were not wholly complied with by a party.

The most recent pronouncement of this Court on the issue of the admission of previously undisclosed expert testimony is Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984). This Court stated in Kemp:

While the late disclosure of the identity or qualifications of an expert is to be condemned, the mere occurrence of such a circumstance does not per se create grounds for a new trial. In Gill v. McGraw Electric Co., 264 Pa.Super. 368, 399 A.2d 1095 (1979), a case cited by the Appellant, this Court declared that to preclude expert testimony, in the circumstance of late disclosure of information about him to the adverse party, is a drastic sanction, and unless necessary under the facts of the case, may be the basis for finding an abuse of discretion by the trial judge. Our Court also considered whether the sanction of preclusion of expert testimony should be granted, due to untimely response to pre-trial interrogatories, in the case of Royster v. McGowan Ford, Inc., 294 Pa.Super. 160, 439 A.2d 799 (1982). There it was stated: “... [Ajssuming that a party has not acted in bad faith and has not misrepresented the existence of an expert expected to be called at trial, no sanction should be imposed unless the complaining party shows that he has been prejudiced from properly preparing his case for trial as the result of a dilatory disclosure”. 294 Pa.Super. at 169, 439 A.2d at 804.

Id., 326 Pa.Superior Ct. at 330, 473 A.2d at 1374.

The majority attempts, in footnote three of its opinion, to portray the Gill criteria as merely “of some aid” in ruling on the admissibility of undisclosed expert testimony citing in support this Court’s decision in Sindler v. Goldman, 309 Pa.Super. 7, 454 A.2d 1054 (1982). However, a close reading of Sindler reveals that this Court did employ the Gill criteria in reaching our holding. Further, the portion of Sindler cited by the majority was only a footnote which the majority has somehow misinterpreted. Footnote eight of this Court’s opinion in Sindler merely states that the Gill, a case involving a violation of a pre-trial order, can be applied to cases in which no pretrial order limiting witnesses has been entered. Id., 309 Pa.Superior Ct. at 15, n. 8, 454 A.2d at 1058, n. 8. The majority interprets the footnote as rendering the Gill analysis merely advisory, a fact evident from its failure to employ such criteria in the body of its opinion. It is true that the majority concludes in footnote three of its opinion that the Appellees’ experts would have been precluded from testifying under Gill, but the majority offers no reasoning to support its conclusions. In fact, were the majority to employ a Gill analysis, as I believe it was bound to do, it would have concluded as I do that the trial court properly permitted Appellees’ experts to testify on rebuttal.

In the instant case, Appellees were permitted by the trial court to testify on rebuttal to contradict the opinion of Appellant’s expert that the fire which destroyed Appellees’ residence was arson. On appeal, Appellant cites Gill and argues it was prejudiced and surprised by Appellees’ expert testimony. I am unable to agree. Appellant was not in fact surprised because it had raised the issue of arson and thus was fully prepared to argue the point at trial. Given this fact, Appellant was also not prejudiced since it had a full and fair opportunity to present its defense, cross-examine Appellees’ experts and offer surrebuttal testimony. If Appellant was truly prejudiced or surprised, it could have cured the prejudice by a continuance, which it did not request. The testimony of Appellees’ experts on rebuttal may have been unexpected, but it was not prejudicial or surprising to Appellant.

When the remaining two prongs of the Gill analysis are applied it becomes apparent that the testimony of Appel-lees’ experts was properly admitted. There can be no serious contention that the calling of Appellees’ expert disrupted the trial or other trials since the trial was only extended a few more days. Finally, I also believe that there is no evidence in the record to support a contention that Appellees acted in bad faith by not disclosing their experts prior to trial or in not obtaining arson experts prior to trial. The basis of the majority’s finding of bad faith is solely that Appellees should have been on notice from the pleadings that Appellant would raise the defense of arson. However, a reading of the pleadings shows that while there was some mention of a suspicious cause for the fire in question the defense of arson was never squarely raised until the pre-trial conference, a fact conceded by the majority. Further, when it became apparent, to Appellees at trial that the cause of the fire was being specifically put in issue by Appellant, they expeditiously secured expert witnesses and made their presence known prior to the experts’ testimony. There is no other evidence in the record to even infer a finding of bad faith much less a willful and deliberate attempt by Appellees to circumvent and make a mockery of the rules of discovery. The majority takes the position, as I perceive it, that to not exclude the expert testimony here would render the rules of discovery and the sanctions thereunder useless. I do not share this view. While we should never condone violations of the discovery rules we also have recognized that the exclusion of expert testimony is a serious sanction and should only be imposed in certain situations. This is why this Court adopted criteria for exclusion in Gill and applied those criteria in cases following Gill. Had the majority of this Court fully considered and applied the Gill criteria I cannot help but think that it would have reached the same conclusion as I that the trial court was correct in its decision allowing Appellees’ experts to testify.

Since I would affirm the trial court’s decision on the expert testimony, I would also reach the remaining issues raised by Appellant and find that the trial court opinion correctly and adequately disposes of the issues presented. Thus, I would affirm the judgment of the trial court.

      . The damages award was comprised of the following elements: dwelling, $55,000.00; personal property, $27,500.00; and living expenses, $7,000.00.

      . At the time the notice of appeal was filed, no judgment had been entered, only a verdict; therefore, this Court did not have jurisdiction. However, once judgment was subsequently entered on March 25, 1983, Superior Court jurisdiction was perfected. See Pa.R.A.P. 905(a); Mi-nich v. City of Sharon, 325 Pa.Superior Ct. 178, 472 A.2d 706 (1984).

      . In Sindler, we also noted that the following four factors specified in Gill v. McGraw Electric Company, 264 Pa.Superior Ct. 368, 382, 399 A.2d 1095, 1102 (1979) (en banc), "[could] be of some aid” in considering whether or not a witness should be precluded for failure to comply with discovery rules even though Gill involved the violation of a pre-trial order:
      (1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified,
      (2) the ability of that party to cure the prejudice,
      (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court,
      (4) bad faith of [sic] willfullness in failing to comply with the court’s order.
      309 Pa.Superior Ct. at 15 n. 8, 454 A.2d at 1058 n. 8. Here, as in Sindler, we find that these factors also mitigate in favor of preclusion.
      Additionally, we note that Gill was decided prior to the effective date of Pa.R.Civ.P. 4019(i) (effective April 16, 1979) and therefore followed the abuse of discretion standard applied in such pre-Rule cases. See Saks v. Jeanes Hospital, 268 Pa.Superior Ct. 578, 408 A.2d 1153 (1979). Here, however, the case arose after Rule 4019(i) became effective and is therefore controlled by the mandatory preclusion rule. Accordingly, we find the applicability of Gill to the instant case questionable.

      . See also Little v. Sebastion, 50 D. & C.2d 761, 766 (Lebanon Co.1967) ("[T]he objects of a proper discovery procedure are to first, narrow the issues; second, obtain evidence to be used at the trial of the issues; third, secure information as to the existence and scope of evidence that may be used at the trial; and fourth, to obtain the necessary information to prepare proper pleadings.”).

      . Although there is some lower court authority for holding that the identity of an expert rebuttal witness need not be disclosed in advance of trial because the necessity for calling such witnesses may not be determinable until after the other party has presented its case-in-chief, see Fidler v. Wood Chips, Inc. 11 D. & C.3d 778 (Clinton Co.1979), we need not decide that issue here. The court in Fidler distinguished the situation in which the testimony presented by the plaintiffs in rebuttal more properly belonged in their case-in-chief. Id. at 780. We believe that the instant case is an example of the latter situation in light of the scanty expert testimony presented in appellees’ case-in-chief and appel-lees' pre-trial awareness of appellant's defense.

      . The lower court and appellees rely on the fact that appellant did not request a continuance at the trial. However, we note that the discovery rules authorize the court to "grant a continuance or other appropriate relief only “if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party.” Pa.R.Civ.P. 4003.5(b) and 4019(i). Having found no such extenuating circumstances in the instant case, such a request for a continuance would have been fruitless.

      . We find Emerick distinguishable from the instant case because, in that case, this Court found the following extenuating circumstances: Defendant's original expert witness became unavailable a week before trial whereupon defense counsel arranged for a new expert to give testimony, which was substantially similar to that contained in the original expert’s report. After the jury was selected, defense counsel supplied plaintiffs with the new expert’s name and, later that day, gave plaintiffs’ counsel a copy of the expert’s report. Plaintiffs’ counsel had an opportunity to take the new expert’s deposition over the weekend before plaintiffs’ evidence was introduced on Monday and also had copies of both experts’ reports before they offered evidence. Additionally, plaintiffs failed to demonstrate any prejudice as a result of defendant’s untimely disclosure of the new expert’s identity.
      Here, however, Jennings and Evans were not testifying as replacement witnesses for suddenly unavailable experts, because appellees did not retain any experts as to the cause and origin of the fire prior to trial. Therefore, appellant had no advance notice of their testimony. Moreover, appellees did not even supply appellant with the names and reports of these experts during the one-week adjournment period so that appellant could prepare for this new testimony and possibly depose Jennings and Evans prior to their testifying on August 4. Finally, appellant demonstrated prejudice as a result of appellees’ nondisclosure of Jennings’ and Evans’ identities because it "was precluded from conducting any discovery of the opinions of the experts and from having an opportunity to meet their testimony.” (Brief for Appellant at 14).

      . Appellant also raises other allegations of trial court error. Because of our disposition of this case, however, we need not dispose of those issues.

      . In its opinion, the majority infers that Appellees were somehow required to anticipate and meet Appellant’s arson defense. It must be noted that Appellees were in no way required, under the facts, to introduce expert testimony to disprove arson or even prove their case. Appellees were not required to prove a negative. It was Appellant’s burden to prove arson which it attempted to do through expert testimony. It was only on rebuttal that Appellees felt it necessary to utilize expert testimony. Under the facts, I do not find it unusual, and certainly not bad faith, that Appellees waited until necessary to retain an expert.


source: Caselaw Access Project

author: SPAETH, President Judge: ROWLEY, Judge,

license: Public Domain

text:
    487 A.2d 1353
    COMMONWEALTH of Pennsylvania v. Jeffrey S. REMP, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 19, 1984.
    Filed Jan. 30, 1985.
    Petition for Allowance of Appeal Granted Aug. 2, 1985.

      Charles D. Younger, Assistant Public Defender, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.

      Before SPAETH, President Judge, and ROWLEY and BECK, JJ.
   SPAETH, President Judge:

This is an appeal from judgment of sentence to life imprisonment for first degree murder. When the case was called for trial, defense counsel requested a continuance on the ground that a psychiatrist appointed by the court to evaluate appellant had not yet done so. The trial court denied the request. Appellant argues that this was reversible error. We agree and therefore vacate the judgment of sentence and reverse and remand for a new trial.

On May 23, 1981, appellant was arrested and charged with criminal homicide, murder, and aggravated assault for stabbing a man in a bar in Shillington, Berks County. He pleaded not guilty at his arraignment, and on August 10, 1981, he was evaluated by Dr. Larry Rotenberg, a psychiatrist. N.T. 6. On August 12, 1981, appellant filed an application with the trial court for leave to employ a psychiatrist and/or psychologist. The Commonwealth answered, stating that it had no objection to the application, and on September 2, 1981, the trial court entered an order appointing Dr. Rotenberg to evaluate appellant’s mental condition and to aid defense counsel in the preparation of appellant’s case.

On September 11, 1981, a Friday, defense counsel learned that appellant’s case would be called for trial on Monday, September 14, 1981. N.T. 8, 17-18. Although counsel had been informed at appellant’s arraignment, on July 31, 1981, that the trial was scheduled to begin on September 14, he believed that because of the outstanding order appointing Dr. Rotenberg, the case would not be called for trial in September. N.T. 13, 15-16. Counsel had communicated this belief to the District Attorney and had corresponded with him as late as September 9. N.T. 8. However, the District Attorney did not tell counsel that the trial would indeed commence on September 14, until September 11.

Immediately before the trial began, the following colloquy occurred:

MR. MOYER [defense counsel] ... Your Honor, I’d like to begin by objecting to this trial since I feel that there is an outstanding order, dated September 2, signed by you, in regard to an evaluation, psychiatric evaluation of the defendant by Dr. Larry Rotenberg. Further, at this time—
THE COURT: On that point, let’s deal with that, first of all. The file would indicate that you, on behalf of your client, on August 11th, 1981, — strike that, August 12, 1981, at 2:10 p.m., made application for leave to employ a psychiatrist and/or a psychologist.
MR. MOYER: Yes, Your Honor.
THE COURT: In that petition you asked that the Court permit you, on behalf of your client, to retain either a psychiatrist or psychologist to aid you in the preparation for a suppression hearing and trial, particularly to apprise counsel about defendant’s ability to understand his rights and to evaluate his intellectual level and determine his understanding of the crimes charged; is that correct?
MR. MOYER: Yes, sir.
THE COURT: The District Attorney then filed an Answer in which it [sic ] had no objection to that, but I then appointed Dr. Larry Rotenberg of the Reading Hospital.
MR. MOYER: Your Honor,—
THE COURT: Let me finish. I understand that Dr. Rotenberg did an evaluation of your client even before I appointed him.
MR. MOYER: Yes, sir.
THE COURT: All right. And so that I appointed Dr. Rotenberg by order dated September 2, 1981. Is that correct:
MR. MOYER: Yes, sir.
THE COURT: Now, is there any reason why then Dr. Rotenberg has not — is not in a position to assist you, having evaluated your client even prior to his appointment?
MR. MOYER: Your Honor, in regard to the application, the County of Berks was also made a party to that application and it was served upon them. I filed this before Judge Schaeffer and Judge Schaeffer felt that the County should have some discretion to whether their funds would be spent. There was no answer from them.
THE COURT: Well, they didn’t answer by the return date, did they?
MR. MOYER: No, sir.
THE COURT: All right.
MR. MOYER: On August 10, 1981, Your Honor, defendant was seen by Dr. Rotenberg. I had talked to Dr. Rotenberg at that time and I had talked to the defendant and I felt that there were additional, there were some things that bothered me about the defendant, his inability to remember and recall events, that led to my applying for a psychiatric evaluation.
THE COURT: Well, but has Dr. Rotenberg requested additional time to make any reevaluations or anything of that nature?
MR. MOYER: Your Honor, he hasn’t requested additional time because I thought he was just — in fact, Your Honor, you order states that the evaluation I received from him was an informal evaluation — no, excuse me. When I talked to you about this order, you stated to me that the evaluation I had was an informal evaluation and you were going to order a formal evaluation by Dr. Rotenberg.
THE COURT: I didn’t say that; you misunderstood me, if I did; I don’t think I did. What I said is you had him do informally in that he was not appointed by the Court. [sic ].
MR. MOYER: Yes, sir.
THE COURT: I felt that having filed the petition as you did, that certainly the Court ought to then follow through with that and not have that outstanding, and I therefore, after consultation with you and also Dr. Rotenberg, appointed him. When I talked to Dr. Rotenberg on the telephone, he indicated to me that he had already evaluated your client and he would be happy to accept the appointment. Now, unless he is presently telling me, through you, that he needs additional time for further or reevaluations, I don’t see any merit to your request for continuance on that basis.
MR. MOYER: Well, Your Honor, I have not talked to Dr. Rotenberg because I have received nothing from him since the evaluation which he did in August.
THE COURT: Well, I appointed him September 2, 1981. It’s September 14, 1981 now. Have you called him?
MR. MOYER: No, sir. I wasn’t aware that this was a problem until September 11, Your Honor.
THE COURT: All right. Anything further on that point?
MR. MOYER: No, sir.
THE COURT: So you are requesting that the matter be continued because of the possibility that Dr. Rotenberg might want to reevaluate?
MR. MOYER: Yes, sir.
THE COURT: But you are not in a position to know at this time?
MR. MOYER: No, sir. I am not. I would like an opportunity to talk to Dr. Rotenberg and to seek his advice. If there is not a question of competency or criminal responsibility, I would like to find out what sort of medication the defendant was taking, since he was on medication at that time.
THE COURT: All right.
N.T. 4-8.

When asked his position on the motion, the assistant district attorney responded by reiterating what had already been expressed by the court:

THE COURT: Initially, I’d like to know what your position is with respect to his request for a continuance based on the order of the court appointing Dr. Rotenberg to assist defense counsel in preparation of his trial.
MR. BUCCI: [assistant district attorney] I don’t think that is a valid reason for a continuance since the defense has had ample opportunity to confer with Dr. Rotenberg prior to today and there is nothing on the record that Dr. Rotenberg needs any further time to investigate the case. N.T. 10.

After further colloquy, on other matters, the court denied defense counsel’s request for a continuance. In its opinion the court gives the following reasons for the denial:

The court’s order of September 2 merely formalized the appointment of the psychiatrist already employed by defendant. Although defendant was not satisfied with the results of the psychiatrist’s initial evaluation he made no effort to contact the psychiatrist after September 2. Defense counsel mistakenly interpreted the order as requiring a formal evaluation by the psychiatrist. By September 11, 1981, defense counsel was aware that no further evaluation had taken place (N.T. at 7) but did not then avail himself of the opportunity to file a timely motion for a continuance. Upon the untimely motion, defendant could not demonstrate the need for any further evaluation but only the speculation that the psychiatrist might want additional time to reevaluate.
Slip op. of trial court at 9 (footnote omitted).

We may begin our examination of the trial court’s denial of defense counsel’s request for a continuance by noting the scope of our review. A court may, in the interests of justice, grant a continuance, either on its own motion or on the motion of a party. Pa.R.Crim.P. 301(a). Although a motion for a continuance on behalf of the defendant should ordinarily be made 48 hours before the time set for trial, a later motion may be granted when the interests of justice require it. Pa.R.Crim.P. 302(b). The decision whether to grant a later motion is a matter within the court’s discretion. Commonwealth v. Fisher, 247 Pa. Super. 187, 372 A.2d 1 (1977). The issue we must decide, therefore, is whether the trial court, in refusing defense counsel’s motion for a continuance, abused its discretion.

As we have mentioned, appellant was charged with first degree murder, a crime requiring willful, deliberate and premeditated killing. 18 Pa.C.S. § 2502. Appellant had a history of mental illness, N.T. 386-420, and defense counsel had filed a notice of insanity defense, pleading appellant’s inability to commit a willful, deliberate and premeditated killing. Also, appellant had been drinking heavily on the night of the stabbing so that the issue was presented whether his intoxication, together with his impaired mental condition, would warrant reduction of the killing from first degree murder to a lower degree of murder. See, 18 Pa.C.S. § 308. Indeed, the only substantial issue was appellant’s mental condition, for as the record discloses, there was little if any question that appellant had committed the killing. It was therefore entirely appropriate for the Commonwealth not to oppose, and for the trial court by its order of September 2 to grant, defense counsel’s petition for the appointment of a psychiatrist to evaluate appellant’s mental condition and to aid defense counsel in the preparation of appellant’s case.

We have encountered some difficulty in our consideration of the trial court’s statements in its opinion that its “order of September 2 merely formalized the appointment of the psychiatrist already employed by defendant”, and that “[d]efense counsel mistakenly interpreted the order as requiring a formal evaluation by the psychiatrist.” Initially, we note that the record does not disclose whether when Dr. Rotenberg saw appellant on August 10 it was pursuant to having been “employed by [appellant].” But whatever may be the fact as to that, the order of September 2 is unequivocal: it appointed Dr. Rotenberg to evaluate appellant’s mental condition, and we find no support in the record for the trial court’s statement that “defense counsel mistakenly interpreted the order as requiring a formal evaluation.” To the contrary, the record is persuasive that counsel’s interpretation was the natural and logical interpretation of the order. Specifically, the record discloses the following facts: Dr. Rotenberg had performed some sort of evaluation of appellant. The extent of the evaluation is not disclosed by the record, but in its opinion the trial court characterizes the evaluation as an “initial evaluation,” slip op. at 9, and this is borne out by counsel’s representation, which was uncontradicted, and which the court accepts in its opinion, id., that the evaluation left counsel with unanswered questions and that it was in an effort to resolve these that counsel petitioned for the appointment of a psychiatrist. Given this background, the natural and logical interpretation of the order granting the petition could only be that the psychiatrist appointed by the court would further evaluate appellant, and, in order to assist appellant’s counsel in resolving the questions left unanswered by the initial evaluation, would submit to counsel a report of his evaluation. Indeed, at one point in the colloquy the trial court seems to have acknowledged as much, for the court said that [defense counsel] having filed the petition” ..., certainly the Court [felt that it] ought to then follow through and not have that outstanding____” N.T. 6. And yet, when the case was called for trial, the order entered on the petition was outstanding: despite his appointment by the court, Dr. Rotenberg had not further evaluated appellant, and, consequently, had not and could not have submitted to counsel a report of that evaluation so that counsel could use it in preparing appellant’s case.

As we have already noted, in quoting the trial court’s opinion, supra, the court in explaining its decision to require counsel to proceed with the trial despite its outstanding order and Dr. Rotenberg’s not having made a further evaluation of appellant, states that by September 11 counsel knew that Dr. Rotenberg had not made the further evaluation directed by the court’s order of September 2, “but did not then avail himself of the opportunity to file a timely motion for a continuance.” Slip op. at 9. “Upon the untimely motion [filed September 14, when the case was called for trial],” the court continues, “defendant could not demonstrate the need for any further evaluation but only the speculation that the psychiatrist might want additional time to re-evaluate.” Id. These statements may be conveniently considered in reverse order.

The question was not what “the psychiatrist [Dr. Roten-berg] might want ” (emphasis added). He had, on appellant’s petition, unopposed by the Commonwealth, and granted by the court, been ordered to make a further evaluation. Moreover, the order was unequivocal; there was no room for any “speculation.”

As regards the court’s criticism of defense counsel: Counsel did indeed acknowledge to the court that on September 11 he knew that Dr. Rotenberg had not made the further evaluation of appellant that the court had ordered, and that knowing that, he had not filed a motion for continuance. In considering whether, and how severely, counsel should be chastised, several facts seem to us deserving of attention.

The order directing Dr. Rotenberg to make the further evaluation, having been entered on September 2, was only nine days old on September 11. Included in that nine day period was the three day Labor Day weekend. The doctor had therefore had only six days within which to make the further evaluation. No doubt court orders should be promptly obeyed. We do not believe, however, that the doctor could fairly be criticized for not having made the further evaluation within six days, which is to say, counsel was entitled to assume that it would take the doctor somewhat more than six days to arrange for and conduct a further evaluation, and to prepare and submit his formal report. We therefore find nothing surprising or in the least suggestive of inattention in the fact that on September 11 counsel knew that the further evaluation had not been conducted.

No doubt counsel might, and probably he should, have moved for a continuance on September 11. However, it must be remembered that counsel believed that the case would not be called to trial in September; counsel may have been too trusting, but he was not unreasonable. To the contrary, as we have discussed, the natural and logical interpretation of the court’s order of September 2 was that Dr. Rotenberg would further evaluate appellant and would submit a report of his evaluation. Given that the order was entered on September 2 and had not been complied with, it was entirely reasonable of counsel to believe that the trial would not proceed on September 14 — a date set several weeks before Dr. Rotenberg’s appointment. Moreover, counsel had communicated his belief to the District Attorney, and it was not until September 11 that he learned that despite the outstanding order of September 2, the case would be called for trial on September 14. While it is true that a motion for continuance filed that very afternoon would have been timely, we do not believe that counsel should be condemned as dilatory for not acting that promptly. September 11 was a Friday. The difference between a motion for continuance filed on Friday afternoon and one filed on Monday morning seems to us quite problematical: One motion is “timely,” the other is not; but as a practical matter, what is the difference?

Of course, in some circumstances there might as a practical matter be a difference. Situations may be imagined, as for example, where arrangements have been made for the attendance of an expert witness, in which it might be important to counsel for one party to know on Friday afternoon that opposing counsel would represent to the court on Monday morning that he was unprepared to proceed to trial because a court order was still outstanding. But nothing in the record before us suggests that this was the case.

In these circumstances we believe the trial court should have asked the prosecutor and defense counsel whether an arrangement might not be worked out that would enable the trial to proceed promptly while still ensuring compliance with the court’s outstanding order of September 2. Such an inquiry might have disclosed, for example, that Dr. Roten-berg would have been able to conduct the further evaluation of appellant’s mental condition, and submit his report, that same day, or the next. However, the court made no such inquiry.

One further aspect of this case requires discussion, and that is that the procedures that the General Assembly contemplated would be followed in a case such as this case were not followed.

The Mental Health Procedures Act, 50 P.S. § 7101 et seq., provides that “[application to the court for an incompetency examination may be presented by ... a person charged with a crime, [or his] counsel ...” 50 P.S. § 7402(e), and that “[t]he court, either on application or on its own motion, may order an incompetency examination at any stage in the proceedings ...” 50 P.S. § 7402(d). When an incompetency examination is ordered by the court, the defendant is entitled to have counsel present, 50 P.S. § 7402(e)(3), and the evaluator must submit a report to the court and counsel, 50 P.S. § 7402(e)(4). The report must contain the diagnosis of the defendant’s mental condition; an opinion as to the defendant’s competency to stand trial; when requested, an opinion as to the defendant’s mental condition in relation to the standards of criminal responsibility; and also when requested, an opinion as to whether the defendant had the capacity to have a particular state of mind required by the crime charged. 50 P.S. § 7402(e)(4)(i)-(iv). If the defendant has substantial objection to the conclusions of the court-appointed evaluator, and cannot afford to retain his own expert, the court must by providing for reasonable compensation enable him to retain his own expert. 50 P.S. § 7402(f).

Here, defense counsel did not follow the procedures as closely as would the careful practitioner. In his petition for the appointment of a psychiatrist and/or psychologist, he failed to cite § 7402, and rather than requesting the court to order an incompetency examination, he requested an evaluation of appellant’s mental condition for his use in preparing appellant’s defense. However, the Commonwealth raised no objection to the form of the petition, and the court granted the petition. Had the court required Dr. Rotenberg to comply with its order of September 2, and conduct his further evaluation of appellant’s mental condition and submit his report to the court and counsel, then the matter could have proceeded as contemplated by the General Assembly: Counsel would have known Dr. Rotenberg’s diagnosis and opinions regarding appellant’s competency, criminal responsibility, and capacity to form the intent requisite to first degree murder, and, depending upon what these were, could have petitioned for the appointment of another psychiatrist of his own selection. In the event, however, counsel was compelled to proceed to trial without Dr. Rotenberg’s report, with the possibility of petitioning for the appointment of another psychiatrist foreclosed.

After considering all of these different aspects of the case, and after balancing one against the other, we find the conclusion inescapable that in denying defense counsel’s request for a continuance, the trial court acted with inappropriate severity and undue haste, and thereby abused its discretion. While our reasoning is implicit in what has been said so far, it may be helpful by way of summary to recapitulate it.

First: Counsel requesting the continuance had in no sense been dilatory; the prosecution had in no sense been delayed; and nothing in the record suggests that a continuance would in any way have hampered the prosecution. Rather, counsel requested the continuance within three days of learning that the trial would begin on September 14; the prosecution was proceeding with great dispatch, appellant’s arraignment having occurred barely more than a month ago; and in opposing the continuance the district attorney did no more than reiterate the concerns expressed by the trial court, which we have rejected as not supported by the record.

Second; The basis of the request for a continuance was that the court’s own order, directing a further evaluation of appellant’s mental condition, was outstanding. Moreover, the doctor directed by the order to conduct the further evaluation had had very little time to comply with the order (only twelve days, including two weekends, one of them the Labor Day weekend). And yet, the court failed to require compliance with its order, and denied counsel’s request for a continuance without considering possible alternative courses of action.

Third: The charge was of the utmost gravity — first degree murder — and the only substantial issue was appellant’s mental condition. The interests of justice therefore required that the trial court exercise particular care to ensure that the issue of appellant’s mental condition was fully explored and fairly presented to the jury. We cannot say that that occurred.

The judgment of sentence is reversed and the case remanded for new trial. Jurisdiction is relinquished.

ROWLEY, J., files a dissenting opinion.

ROWLEY, Judge,

dissenting:

Since I am unable, based upon my review of the record in this case, to characterize the trial court’s order denying appellant’s request for a continuance of his trial as an abuse of discretion, I respectfully dissent.

The grant or refusal of a request for continuance is a matter vested in the sound discretion of the trial court and its decision, to grant or deny the request, will not be reversed by an appellate court in the absence of an abuse of that authority. Commonwealth v. DiPasquale, 431 Pa. 536, 246 A.2d 430 (1968). See also Commonwealth v. Slyman, 334 Pa.Super. 415, 483 A.2d 519 (1984) [Trial court did not abuse discretion in denying defendant’s request for continuance presented four days prior to trial for purpose of obtaining a named technical treatise for use at defendant’s trial on drug charges (pp. 32-34 Slip Op.) ]. In Com monwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976), the Supreme Court, in affirming the defendant’s first degree murder conviction and life sentence, held that the trial court had not abused its discretion in denying the defendant’s motion for a continuance for the purpose of having an investigator appointed and to secure a material witness. The Court noted that an appellate court, in reviewing such a ruling, should consider the nature of the crime and its surrounding circumstances in deciding whether the denial of the requested continuance was an abuse of the trial court’s discretion. The criteria established by the Court to determine whether the trial court’s discretion was properly exercised are: (1) the necessity of the missing witness to strengthen the defendant’s case; (2) the essentiality of the witness to defendant’s defense; (3) the diligence exercised to procure his presence at trial; (4) the facts to which he could testify; and (5) the likelihood that he could be produced at the next term of court. Applying these criteria to the record in this case, I conclude that the order entered by the trial court was fully justified and constituted an appropriate exercise of the discretion vested in the trial judge.

When appellant’s motion for a continuance was presented on the day set for trial, no information was provided to the trial judge to show that Dr. Rotenberg was either necessary or essential to the defendant’s case. Although an initial evaluation of appellant had been made by Dr. Rotenberg, no report, oral or written, of the evaluation was given by his counsel to the trial court for its consideration in passing on the motion. Appellant’s counsel conceded that he was requesting the continuance because of a “possibility ” that the doctor “might ” desire to reevaluate appellant and because counsel would like “to seek” the doctor’s advice. There was absolutely no information provided to the trial court as to what the doctor’s testimony might have been. The reasons given for the late request amount to pure speculation.

Furthermore, it does not appear that counsel, after the appointment of the doctor by the court, had ever contacted the doctor for the purpose of scheduling a reevaluation or determining whether one would be useful or valuable. It does not even appear that, after the appointment, he attempted to contact the doctor prior to appearing before the court at 11:41 a.m. on Monday morning to commence selection of the jury. The trial court, after considering the motion, recessed court until after 1:30 p.m. that day, and it does not appear that any effort was made to substantiate appellant’s “hope” or “expectation” that further evaluation or consultation with the doctor would assist in appellant’s defense. Finally, although we do not have any information regarding the doctor’s initial evaluation, it is noteworthy that in response to appellant’s notice of an insanity defense the Commonwealth, as was its right, listed Dr. Rotenberg as a rebuttal witness. The evidence of record in this case, then, is totally devoid of the remotest suggestion that appellant was (1) incompetent to stand trial or (2) “insane” at the time of the commission of the homicide. In addition, there is no indication of any evidence available to support such claims. Thus, appellant has failed to meet his burden of showing that Dr. Rotenberg was, or even might be, necessary or essential to his defense.

Additionally, I do not view appellant’s counsel’s efforts at obtaining such evidence or information as having been diligent. On the contrary, I do not view it to be the responsibility of the trial judge or the prosecutor, after the order of appointment was signed, to contact the doctor and make arrangements for any further evaluation. That was the responsibility of appellant’s counsel. Nor do I agree that counsel should have been mislead by the court’s order or that he “reasonably relied” on the order as effecting a continuance of the trial date previously scheduled. Furthermore, it appears that, even during trial and subsequent thereto, there has been no effort made to ascertain whether Dr. Rotenberg might “possibly” assist or benefit appellant’s defense. It is also important to note that prior to trial counsel did not object to the appointment of Dr. Rotenberg nor did he request the appointment of another or different doctor.

In addition to demonstrating appellant’s failure to meet the burden of showing what Dr. Rotenberg’s testimony might have been, or that his presence was necessary or essential to the defense, the record also discloses that the appellant did present at his trial the testimony of an expert witness. Although appellant did not present any evidence of insanity, he did present two defenses at his trial: (1) voluntary intoxication and (2) diminished capacity both to establish the lack of a specific intent required for first degree murder and to reduce the crime, if any, to third degree murder. Both of these defenses were presented for the jury’s consideration by the trial judge in a charge to which no exception has been taken. The diminished capacity defense was based upon the testimony of Dr. Peter Howard Thomas, called by appellant. Dr. Thomas is a clinical psychologist and at the time of trial had an independent practice. Prior to that time, he had some consulting relationships with the local hospital and school district as well as with the county Children and Youth Services. He had been practicing psychology in Pennsylvania for eight years. Even more importantly, Dr. Thomas had worked with the appellant off and on for some seven years prior to the trial. Dr. Thomas had personal knowledge of appellant and his past experiences with mental health institutions. In fact, Dr. Thomas had seen appellant during the two week period prior to the commission of the homicide. Dr. Thomas diagnosed appellant’s condition as a “borderline personality”. In response to a hypothetical question from appellant’s counsel, the doctor expressed an opinion “with great certainty” that appellant was highly vulnerable to acting out impulsively under stress accompanied by heavy drinking. The acting out would be impulsive, according to the doctor, and would be accompanied by a loss of control. The doctor further expressed the opinion, however, that he could not say “that there was no premeditation.” On cross-examination, Dr. Thomas testified that appellant, in his opinion, would know the difference between right and wrong at the time of the homicide. Thus, even appellant’s own expert, who had treated him over a period of years and was familiar with his condition, not only flatly contradicted any suggestion of insanity but he also failed to support his claim of diminished capacity to any great degree.

As indicated by the majority, there is very little if any question that appellant in fact fatally stabbed the victim during a barroom assault. It is also true that the only recourse left to appellant was to defend against the charges on grounds of his mental capacity or incapacity. However, although appellant filed a notice of an insanity defense, he has not to this day presented one bit of evidence to support that claim. In fact, on the contrary, his own expert has refuted that claim. Additionally, the testimony by the witnesses who were present at the time of the stabbing and those who observed him later, including the officers who effected his arrest, overwhelmingly establishes his sanity on that evening. See Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974), and Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970).

My review of the record convinces me that the trial judge did not act hastily in denying appellant’s request, but rather, that he gave it careful and deliberate consideration. Nor in my opinion did he act with undue severity. At the time scheduled for trial, he was presented with a request, after jurors, witnesses, counsel and staff were all collected, to continue the case. Counsel presented him with nothing of substance to support the request. Nor did counsel request a limited continuance or recess during the course of the trial that lasted for a week. Moreover, subsequent events such as the testimony by appellant’s own expert and the failure to produce, even to this day, any substantiation of a claim of insanity or incapacity to stand trial bear out the fact that the trial court’s decision was a sound one reached after an appropriate exercise of the discretion vested in him.

Having concluded that the trial court did not abuse its discretion, I have reviewed the remaining thirty allegations of error presented by appellant. Having concluded that they likewise have no merit, I would affirm the judgment of sentence.

      . Appellant assigns numerous other rulings of the trial court as reversible error, but we need not consider these. Appellant also argues that he is entitled to discharge because the verdict was contrary to the law, to the evidence and to the weight of the evidence, and that the evidence was insufficient to sustain the verdict. The trial court correctly found these arguments without merit. Slip op. of trial court at 4-7.

      . See footnote 1, supra, and the trial court’s discussion of the sufficiency of the evidence.