author: VALASEK, J.,

text:
    Commonwealth v. Turney

      Scott Andreassi, district attorney, for Commonwealth.

      Ronald C. Makoski, for defendant.
    March 23, 2005
   VALASEK, J.,

Presently before the court is defendant’s omnibus pretrial motion in the form of a motion to suppress/motion to dismiss DUI charges. The parties have submitted the preliminary hearing transcript to the court to be used as a basis for its decision.

HISTORY

On November 27, 2003, at approximately 1:35 a.m., Worthington Borough Police Officer Gregory Koprivnak: was traveling in a marked police cruiser in the eastbound left (or passing) lane of Route 422. Officer Koprivnak observed defendant traveling ahead of him in the right lane. During the next three-fourths of a mile, Officer Koprivnak saw defendant’s vehicle touch the fog line on two occasions, and then travel off the road onto the berm. Officer Koprivnak initiated a traffic stop based on a violation ofVehicle Code 75 Pa.C.S. §3309(1) (Driving on roadways laned for traffic). During the stop, Officer Koprivnak detected a strong odor of alcohol and noted defendant’s bloodshot and glassy eyes. Defendant was also noted to have an unsteady gait and failed three field sobriety tests.

Defendant was placed under arrest and taken to Armstrong County Memorial Hospital. Blood was drawn at 2:35 a.m. and revealed a serum BAC of .256 percent.

Defendant is charged with, inter alia, DUI under 75 Pa.C.S. §3802(a)(1) (General impairment) and section 3802(c) (Highest rate of alcohol).

ISSUE

Whether the officer’s observation of defendant’s vehicle touching the fog line twice and then traveling out of his lane and onto the berm was sufficient to justify a stop.

STANDARD OF REVIEW

The Commonwealth shall have the burden of going forward with evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights. Pa.R.Crim.P. 581(H).

DISCUSSION

75 Pa.C.S. §3309 provides:

“Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules in addition to all others not inconsistent therewith shall apply:
“(7) Driving within single lane. — A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.”

Defendant argues that Officer Koprivnak initiated a traffic stop under 75 Pa.C.S. §3309(1) without probable cause as set forth by the Pennsylvania Supreme Court case Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001).

In Gleason, the defendant crossed the fog line six to eight inches on two occasions for a couple seconds over a quarter mile distance. The court held that these circumstances coupled with the early morning hours when no other traffic was on the road did not justify a stop, and that more sufficient probable cause was required.

Our courts recognize that while the Commonwealth has an interest in enforcing rules designed to maintain safety on our roads, an individual does not lose all reasonable expectation of privacy when he takes to the highway in a vehicle. A police officer must have specific facts justifying the intrusion. Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001).

The specific facts articulated by Officer Koprivnak in the present case are that defendant crossed the fog line on two occasions and then crossed over the fog line completely so that the driver side tires touched the fog line and the vehicle itself was on the berm.

In Gleason, the court found that, “[gjiven the early morning hour, the fact that there was no other traffic on the roadway and the rather momentary nature of defendant’s vehicle crossing the fog line..., the officer erred in believing he had justification to stop defendant’s vehicle.” Gleason, 567 Pa. at 116, 785 A.2d at 985-86.

Upon consideration of the relevant case law, the court notes a certain common denominator present in the cases where the courts refuse to justify a stop under the Motor Vehicle Code. That is to say that a stop is not justified when the driving infraction is “momentary and minor.” See Commonwealth v. Gleason, supra (held an officer’s observation, over a distance of 1/4 mile, of a vehicle crossing fog line by six to eight inches on two or three occasions for a period of a second or two is not probable cause); Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995) (Erratic lane change and speed estimated at 70 mph for 2/10 of a mile did not give officer probable cause to conclude defendant was traveling at an unsafe speed and to make a traffic stop); Commonwealth v. Battaglia, 802 A.2d 652 (Pa. Super. 2002), ap peal denied, 576 Pa. 718, 841 A.2d 528 (2003) (held weaving within own lane is insufficient to stop vehicle); Commonwealth v. Garcia, 859 A.2d 820 (Pa. Super. 2004) (observation of driver touch berm line of road two times in response to another car coming toward driver over a two-block distance within very short time period is not probable cause).

In other words, de minimis driving infractions such as crossing the fog line for several seconds or momentary weaving is not enough.

In contrast, however, the courts have found that more serious driving infractions were sufficient to find probable cause. See Commonwealth v. Slonaker, 795 A.2d 397 (Pa. Super. 2002) (continuous weaving for five miles, accelerating and decelerating at night, going outside lane of travel on three occasions was sufficient in finding probable cause); Commonwealth v. Cook, 865 A.2d 869 (Pa. Super. 2004) (observation of driver crossing fog line three times to such an extent that half of the vehicle was on the berm and then rapidly jerked back into his lane of travel sufficiently gave the trooper probable cause to believe that defendant moved his car from his lane of travel in an unsafe manner in violation of section 3309(1)).

In the present case, defendant was stopped for a violation of section 3309(1) which states only that a vehicle “shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety 75 Pa.C.S. §3309(1). (emphasis added)

The standard as set forth by Gleason in determining whether a violation has occurred requires the officer “to articulate specific facts possessed by him, at the time of the questioned stop, which wouldprovide probable cause to believe that the driver or the vehicle was in violation of some provision of the Code." Gleason, 567 Pa. at 122, 785 A.2d at 989. (emphasis in original)

As we have already suggested, prior case law has demonstrated that de minimis driving infractions such as crossing a fog line and momentary weaving do not provide probable cause that section 3309 was violated.

“[W]e are mindful that ‘ [pjrobable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference.’ ” Cook, 865 A.2d at 875 (citing Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa. Super. 2004)).

Keeping in mind that erratic driving is not a per se violation of the Vehicle Code, the court must determine whether the facts articulated by Officer Koprivnak sufficiently established probable cause that defendant did not first ascertain that it was safe before moving his vehicle from his lane.

At the preliminary hearing, Officer Koprivnak testified that the defendant’s passenger side wheels touched the fog line twice and the driver side wheels touched the fog line once so that the body of the vehicle was actually on the berm. (Prelim, hr’g. tr. at pp. 4, 7-10.) The berm was paved and had no rumble strips. (Prelim, hr’g. at p. 9.) This traveling on the berm occurred directly in front of a Citgo station that had two entrances/exits. Officer Koprivnak lastly stated that other than the three occasions where defendant left his lane, there were no other Vehicle Code violations observed. (Prelim, hr’g. at p. 10.)

Upon examining the totality of the circumstances and bearing in mind that the Commonwealth has the burden of proving the stop was lawful, the court is constrained to conclude that the stop was not lawful. The record is devoid of a detailed description of how defendant’s vehicle traveled onto the berm near the Citgo station.

The absence from the record of evidence concerning use of a turn signal, speed of vehicle at the time, acceleration or deceleration of the vehicle, and the absence of other evidence of purposefulness, or lack thereof, renders impossible any conclusion that there existed probable cause to believe that defendant had violated section 3309(1) of the Motor Vehicle Code.

CONCLUSION

For these reasons, the court finds that the Commonwealth failed to meet its burden of proof. Therefore, defendant’s motion to suppress is granted.

An appropriate order will be entered.

ORDER

And now, to-wit March 23, 2005, defendant, Samuel Ray Turney, having filed an omnibus pretrial motion in the form of a motion to suppress/motion to dismiss, for the reasons set forth in the foregoing opinion, it is ordered, adjudged, and decreed that the defendant’s motion to suppress be granted, and all evidence obtained as a result of the stop be suppressed for use at trial.


source: Caselaw Access Project

author: TETI, Chair,

license: Public Domain

text:
    In the Matter of Wiener
    Disciplinary Board Docket no. 2 D.B. 1999.
    November 19, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

TETI, Chair,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

Petitioner, Eric Jeffrey Weiner, filed a petition for reinstatement to the bar of Pennsylvania on June 19,2003. Petitioner was suspended for five years retroactive to January 12,1999, by order of the Supreme Court ofPennsylvania dated February 28, 2003.

A reinstatement hearing was held on April 23,2004, before Hearing Committee 3.03 comprised of Chair Francis E. Marshall Jr., Esquire, and Members Joanne Ludwikowski, Esquire, and Charles Owen Beckley III, Esquire. Petitioner was represented by Robert H. Davis, Esquire. Petitioner testified at the hearing and presented the testimony of 13 witnesses. He produced letters of character and support from four additional persons.

The Hearing Committee filed a report on July 7,2004, and recommended that petitioner be reinstated to the practice of law.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting on September 27, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is Eric Jeffrey Wiener. He was bom in 1946 and was admitted to the practice of law in Pennsylvania in 1973. His address is 4505 Lakeside Drive, Harrisburg, PA 17110.

(2) Petitioner was suspended from the practice of law for five years, retroactive to January 12, 1999, by order of the Supreme Court of Pennsylvania dated February 28, 2003.

(3) Petitioner was convicted in 1998 of two counts of wire fraud for his failure to disclose to two potential buyers that he had suspicions that the vehicle he was trying to sell could be stolen.

(4) Petitioner served his criminal sentence in full, paid all expenses relating to his disciplinary suspension and gave clients all required notices relating to his suspension.

(5) During the period in which he was suspended from practice and was awaiting incarceration, petitioner was employed by Harrisburg area businessman Robert Mumma to work for his businesses.

(6) Petitioner was careful to avoid any expectation that his services would involve any type of legal advice or services to Mr. Mumma.

(7) Upon his return from incarceration, petitioner sought out work in fields relating to legal practice. Petitioner was employed by the Harrisburg law firm of Schmidt, Ronca & Kramer and by Aegis Security Insurance Corp.

(8) No part of this employment involved the practice of law.

(9) Petitioner fulfilled his Continuing Legal Education course requirements for reinstatement.

(10) Petitioner supported community activities while suspended, including the Leukemia Society, and provided both moral and financial support for efforts to expand minority employment in the Harrisburg area. He encouraged Schmidt, Ronca & Kramer to expand its support for cerebral palsy fundraising and sponsorship of Dying for a Drink.

(11) Petitioner expressed sincere remorse for his misconduct.

(12) The witnesses who testified were credible persons drawn from a wide variety of settings and professions, including the law, business, and religion. These witnesses represented abroad cross-section of petitioner’s former colleagues, community and social contacts.

(13) The character testimony evidenced that petitioner has a good reputation for honesty in the community. He has won the respect of the very community that was most directly impacted by his conviction and subsequent suspension from the bar.

(14) The witnesses testified that the public is aware of the background of petitioner’s legal troubles, but the general opinion is that petitioner possesses the characteristics necessary to practice law.

III. CONCLUSIONS OF LAW

(1) Petitioner has the moral qualifications, competency and learning in the law required to practice law in Pennsylvania.

(2) Petitioner’s resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for reinstatement filed by Eric Jeffrey Wiener. Petitioner seeks reinstatement to the bar following his five-year suspension.

Pursuant to Rule 218(a), Pa.R.D.E., an attorney who is suspended for a period exceeding one year may not resume the practice of law until reinstated by the Supreme Court of Pennsylvania. In order for petitioner to gain reinstatement, he has the burden of proving by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law required for admission to practice law in this Commonwealth. In addition, petitioner has the burden of demonstrating that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or administration of justice, nor subversive of the public interest. Rule 218(c)(3)(i), Pa.R.D.E.

A reinstatement proceeding is a searching inquiry into a lawyer’s present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer’s suspension, but rather the nature and extent of the rehabilitation efforts undertaken, and the degree of success achieved in the rehabilitative process. Philadelphia Newspapers Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

Petitioner was convicted of two counts of wire fraud following his attempt to sell a vehicle he suspected may have been stolen. Petitioner served his criminal sentence and has completed all requirements of the Disciplinary Board relating to his suspension.

While suspended, petitioner made good use of his time by working for businessman Robert Mumma, the law firm of Schmidt, Ronca & Kramer, and Aegis Security Insurance Company. He was able to effectively use his legal abilities while not actually practicing law. All of his employers were well aware of his status as a suspended lawyer and treated him accordingly. Petitioner kept apprised of the current law through his work and his reading of various periodicals and advance sheets. Additionally, petitioner engaged in good works for his community, volunteering time to the Leukemia Society, among others.

Members of petitioner’s community think highly of petitioner, and, though they are clearly aware of his legal troubles, they believe that petitioner has put this behind him and is a competent, fit person to practice law in their community.

Petitioner demonstrated sincere remorse for his actions and the shame they brought on the legal profession. He showed awareness of his wrongdoing and emphasized the fact that it will not again occur. His future plans include starting a dialysis center business with a physician. He believes that he will practice law only in a secondary capacity, such as representing his new venture in general matters.

Petitioner has presented conclusive evidence that he has rehabilitated himself and is fit to practice law. Petitioner has met with clear and convincing evidence his burden of proving that he is morally qualified, competent and learned in the law. Furthermore, the board finds that petitioner’s re-admission will not be detrimental to the bar or the public. For these reasons the board recommends that petitioner be reinstated to the practice of law.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that petitioner, Eric Jeffrey Wiener, be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Member Nordenberg did not participate in the September 27, 2004 adjudication.

Board Member Gephart recused himself.

ORDER

And now, January 31,2005, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated November 19, 2004, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: FEUDALE, S.J., specially presiding,

text:
    Commonwealth v. Briggs

      Pat Blessington, for Commonwealth.

      George Lepley and Craig Miller, for defendant.
    October 12, 2005
   FEUDALE, S.J., specially presiding,

The matter presently before the court is defendant’s oral pretrial motion for discovery and the Commonwealth’s motion to quash a subpoena for certain documents from the Commissioner of the Pennsylvania State Police. The Commonwealth objects to discovery and has filed motions to quash the subpoena.

Defendant, Dustin Briggs, is charged with two counts of murder, one count of robbery, and one count of person not to possess or use a firearm involving the killings of Bradford County Deputy Sheriffs Michael VanKuren and Christopher Burgert in Bradford County, Pennsylvania on or about March 31,2004. The Commonwealth has filed a notice of seven aggravating circumstances per victim indicating their intention to seek the death penalty. A brief record proceeding was held on October 7,2005, to address the defendant’s oral motion and subpoena for discovery. At that time the defendant orally requested and/or in his subpoena made the following request:

“(1) ‘The clothes, other items that the individuals (victims) would have been wearing such as belts, socks, things of that nature; and the footwear of defendant, Arlan Briggs (defendant’s father), April Harris (defendant’s girlfriend), and the two victims, along with the two found firearms.’ The defendant requests the aforesaid items be ‘forwarded to R.J. Lee Group, Monroeville for examination.’ Defendant also requested certain cartridges ‘that we wanted to break down’ be turned over to their firearms and tool mark examiner, Frederick Wentling, a former forensic expert for the Pennsylvania State Police.
“(2) Discovery by way of subpoena issued to Jeffrey Miller, Commissioner of the Pennsylvania State Police, requesting the items set forth in attachment A (attached hereto). As per an on the record stipulation of counsel for the Commonwealth and defendant, items one, two, three and four of attachment Ato the subpoena have been resolved, and the only items at issue are Pennsylvania State Police operations manual 7-7 and 7-2 re: field reporting.”

When the Commonwealth asked the defendant to lay a foundation for the discovery requested in paragraph one, counsel responded as follows: “Your honor, we believe that under Rule 573(b), subsection (1 )(f), that we’re permitted to examine any tangible evidence. It’s a mandatory discovery. And that’s our position. We have discussed whether it is our burden to come forth and tell you in open court before the Commonwealth as to the reason behind that. I will tell you that it is Mr. Lepley and my opinion that to do that would divulge our theory of the case, and that we do not believe that that’s in the interest for our defendant to do that. And at this point in time, our request is, as you know, the one in — regarding Mr. Wentling looking at the cartridges and taking ’em apart. The other one is to have these items forwarded to the R J. Lee Group for examination. That’s our offer. We believe that we’re entitled to do that under the applicable discovery rules.”

Pennsylvania Rule of Criminal Procedure 573(B)(1)(f) provides:

“(B) Disclosure by the Commonwealth
“(1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information provided they are material to the instant case. Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
“(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence.” (emphasis added)

We note that neither the Commonwealth nor this court dispute that the items defendant requests be turned over to an entity described as R J. Lee Group, of Monroeville, or Mr. Wentling, as set forth in paragraph one are “tangible objects.” Black’s Law Dictionary defines tangible as real or substantial evidence “capable of being touched, possessed or realized.” We also note the language of the rule as to inspect, copy or photograph is identical as to both mandatory and discretionary discovery.

While shall is used in the mandatory discovery language as compared to the use of may in the discretionary language, the shall is prefaced by the qualifier disclose (not deliver) such evidence and only (whether disclosure or delivery) when applicable, (emphasis added)

We believe, the limitation as to disclosing, inspecting, copying or photographing, when applicable, are clear and unequivocal and are not, despite the defendant’s assertions to the contrary, “mere semantics.”

To date, Commonwealth has provided the defendant with all mandatory and much discretionary discovery. To the best of this court’s knowledge, no mandatory exculpatory evidence has been identified by the Commonwealth. The Commonwealth has allowed and does not dispute the right of the defendant to inspect, copy or photograph any of the evidence in question. Such may, depending on the request and circumstances, at times only occur in the presence of an appropriate agent for the Commonwealth.

However, to suggest that defendant has the right to request such evidence be turned over to agents for the defendant for some type of unspecified examination (in the case of R.J. Lee Group) and the “breaking down” of cartridges in the case of their expert Frederick Wentling; without laying some type of foundation for their request, strains credulity.

In support of its position, Commonwealth cited Commonwealth v. Jones, 432 Pa. Super. 97, 637 A.2d 1001 (1994). Therein, the court held, before the court will exercise its discretion to permit disclosure, the defendant has the burden of proving that the evidence requested in discovery is material, reasonable and in the interest of justice. The court also held that, once the defendant proves that the requested evidence is material and the request is reasonable, the court, in the interest of fairness, must balance a public interest in protecting the flow of information against the defendant’s right to prepare a defense. Admittedly, the given case involved discretionary, as compared to mandatory, discovery. However, the mandatory language of shall does not broaden the limitation of disclose, inspect, copy or photograph when applicable. Nor does it logically allow the defendant unfettered discretion to demand evidence be turned over to his agent for unspecified or even a specified use, without some explanation or foundation for the request, and appropriate guidance and/or protective order from the court.

Defendant’s assertion that he should not be required to lay a foundation alleging such because it would arguably divulge the “theory of the case” is disingenuous. A commentator we are unable to attribute once stated that the adversarial system of trial... is not yet a poker game in which players enjoy an absolute right to conceal their cards until they are played.

While it is true the only mandatory discovery by the defendant is related to his intent to utilize an alibi, or insanity or mental infirmity defense; he cannot access evidence in the custody and control of the Commonwealth and expose such evidence to potential misuse, modification or destruction without showing the materiality, reasonableness and justiciability of such a request.

Another concern is the issue of chain of custody. Chain of custody is an indirect method of proving the identity and integrity of evidence by showing its continuous whereabouts. The Commonwealth or proponent of the evidence must establish, to a reasonable degree of certainty, that the identity and condition of the proffered exhibit remains unimpaired until it is surrendered to the trial court. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980).

None of the aforementioned is in derogation of the right of the defendant to prepare a defense by accessing and testing evidence in the custody and control of the Commonwealth. Such may be allowed even when the evidence may be used up, modified or destroyed. In a recent homicide case, a DNA lab advised this court that a limited, dated and degraded DNA sample would in all likelihood be used up/destroyed in their attempt to analyze same. Given the forgoing, and the dispute between the defendant and the Commonwealth about such, as well as who should do the testing, the court selected the lab. We also had the defendant acknowledge and waive on the record that, despite the lab’s best attempts, the so limited sample could be used up or destroyed or reveal inconclusive results.

Finally, we address defendant’s subpoena and the motion to quash as to the request of the Commissioner of the Pennsylvania State Police for the state police operations manuals. Again, at the hearing, defendant laid no foundation as to the materiality, reasonableness or justiciability of such. The defendant asserted as the sole right to such, Article I Section 9 of the Pennsylvania Constitution, which gives the defendant the right to compulsory process. The relevant section of Article I Section 9 of the Pennsylvania Constitution provides for the rights of accused criminal prosecution “to have compulsory process for obtaining witnesses in his favor ” (emphasis added) Subpoenas are not to be used to compel production of documents merely for inspection or for a fishing expedition. See Commonwealth v. Cook, 865 A.2d 869 (Pa. Super. 2004) and Commonwealth v. McEnany, 446 Pa. Super. 609, 620, 667 A.2d 1143, 1149 (1995). Again, without a foundation, such a request has no merit to it whatsoever.

In consideration of the foregoing, we enter the following:

ORDER

And now, October 12, 2005, it is hereby ordered and directed that defendant’s motion to forward the items set forth in paragraph one to R J. Lee Group, Monroeville for examination is denied. It is further ordered that defendant’s subpoenaed request for the operations manuals set forth in the attachment is denied. Finally, defendant’s request that certain cartridges that he wishes to break down be turned over to firearm and stock mark examiner Frederick Wentling is hereby denied.

ATTACHMENT A

(1) All PSP (Pennsylvania State Police) press releases regarding Commonwealth v. Dustin F. Briggs (no. 04CR000348).

(2) All PSP reports on one Jacob White.

(3) All PSP prior records reports (handwritten and/or typed) on:

(a) Arlan R Briggs

(b) Mark Briggs

(c) Daniel Peters

(d) Alden Briggs

(e) Albert Briggs

(4) All recorded statements of the following individuals:

(a) Dustin R Briggs

(b) Arlan R Briggs

(c) Mark Briggs

(d) Alden Briggs

(e) Albert Briggs

(f) Daniel Peters

(5) PSP Operations Manual 7-7.

(6) PSP Operations Manual 7-2 re: field reporting.


author: WAGNER, J.,

text:
    First National Bank of Pennsylvania v. Keefer

      David Abrams, for plaintiff.

      Crystal H. Thornton, for defendants.
    November 30, 2005
   WAGNER, J.,

We are presented with a motion for summary judgment filed on behalf of the plaintiff, First National Bank of Pennsylvania against the defendants Derek D. Keefer and Doris R. Keefer. The issues to be determined are: (1) whether a 20-year or four-year statute of limitations applies to a deficiency action under a motor vehicle installment sale contract to satisfy a note and security agreement with the plaintiff Bank; and (2) if the four-year statute of limitations applies, whether an alleged March 2002 payment by defendants’ tolled the statute of limitations.

The facts before us are undisputed in that the defendants purchased a 1998 Dodge Stratus sedan from Latrobe Motors Inc., Latrobe, Pennsylvania, on June 2, 1999. (Plaintiff’s exhibit 1.) Pursuant to the Pennsylvania Motor Vehicle Sales Finance Act (MVSFA), the defendants signed a contract entitled “Pennsylvania Motor Vehicle Installment Sale Contract.” Id.; 69 P.S. §601 et al. This contract contained an assignment clause to plaintiff, under which the defendants agreed to pay to the plaintiff Bank the sum of $274.42 per month. Id.

On August 4,2000, the plaintiff repossessed the Dodge Stratus as the defendants were in default. (Plaintiff’s exhibit 2.) This same date, the plaintiff sent a notice of repossession and advisement of redemption rights to the defendants by registered certified mail. (Plaintiff’s exhibit 3.) Specifically, this letter advised the defendants that pursuant to Pennsylvania’s MVSFA, 69 Pa.C.S. §23, the sum of $11,623.94 could be paid to redeem the vehicle and terminate the then existing contract. Id. This letter also provided notice that the defendants had 15 days to redeem the vehicle in order to avoid sale at auction. Id.

On September 21, 2000, the plaintiff sent a notice of sale by certified letter to the defendants setting forth the date and time of the sale. (Plaintiff’s exhibit 5.) On October 2,2000, the plaintiff sold the Dodge Stratus at auction to the highest bidder for the sum of $2,000. (Plaintiff’s exhibit 6.) On November 8, 2000, the plaintiff notified the defendants of the sale, costs and expenses incurred therein, and the balance owing on the sales agreement, which was $9,473.91 plus interest. (Plaintiff’s exhibits 6, 7, 8, and 9.)

On March 12,2002, the defendants allegedly issued a $75 money order made payable to Promistar Bank, a division of plaintiff Bank, that was posted to the defendants’ account. (Plaintiff’s exhibit 10.) During oral argument, plaintiff’s counsel stated that there were approximately three such payments allegedly made by the defendants. (N.T. 13-14.) Defendants state that there is a dispute over the payment, but aver that the payment has no bearing on the date the deficiency claim arose.

On December 3, 2004, the plaintiff filed the within action, to which the defendants filed an answer and new matter on January 13,2005. OnNovember 16,2005, we held a hearing on the motion for summary judgment at which time counsel presented arguments. We now must determine the outcome of the motion for summary judgment.

The Pennsylvania Rules of Civil Procedure governing summary judgment instruct that we shall enter judgment when there is no genuine issue of material fact that is a necessary element to the cause of action or defense. Pa.R.C.P. §1035.2(1); Fine v. Checcio, 582 Pa. 253, 870 A.2d 850 (2005). “A motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law” by accepting as true all well-pleaded facts, admissions, and supporting affidavits, providing the non-moving party all reasonable inferences to be drawn therefrom. Id., 870 A.2d at 857; Pittsburgh Hotels Association Inc. v. Urban Redevelopment Authority of Pittsburgh, 202 F. Supp. 486 (W.D. Pa.), aff’d, 309 F.2d 186 (3d Cir. 1962), cert. denied, 372 U.S. 916 (1963). If there is any doubt as to the existence of a material fact, this motion must be resolved against the moving party. Id., citing Jones v. SEPTA, 565 Pa. 211, 772 A.2d 435 at 438 (2001). We may only grant the motion where the right to such a judgment is “clear and free from doubt.” Fine, supra, 870 A.2d at 857. Finally, in examining the record, we are not to attempt to resolve conflicting contentions of fact or inferences that may be drawn from the facts. Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 505 A.2d 973 (1985).

We now turn to the issues raised by the parties in their cross-motions for summary judgment. The first issue before us is which statute of limitations applies to a deficiency action based upon the purchase, repossession and subsequent sale of an automobile where the installment contract was under “seal.” At the outset, we note that this issue has yet to be addressed by our Supreme and Superior Courts. As such, we have been compelled to review sister states and sister courts, noting that there are varying interpretations and outcomes in such suits but that all seek “uniformity” in commercial code application and interpretation.

The plaintiff asserts that because the installment contract was under seal, the 20-year statute of limitations pursuant to 42 Pa.C.S. §5529(b) is applicable. The defendants counter that the applicable statute of limitations is four years as the agreement was a contract for the sale of goods pursuant to 42 Pa.C.S. §5525, thereby barring the plaintiff from recovery.

As the plaintiff points out, our Superior Court has addressed the issue of preprinted forms under “seal” in Beneficial Consumer Discount v. Dailey, 434 Pa. 636, 644 A.2d 789 (1994). In Dailey, the defendant defaulted on a consumer loan wherein he signed a preprinted loan agreement form with the word “SEAL” printed to the right of the signature line. Id. After the defendants defaulted on their payments, the plaintiff pursued a deficiency action. Id. The plaintiff here argues that the matter before us is analogous to Dailey. Particularly, the plaintiff relies on our Superior Court holding that “when a party signs a contract which contains a pre-printed word ‘SEAL,’ that party has presumptively signed a contract under seal.” Id. at 638, 644 A.2d at 789, citing Klein v. Reid, 282 Pa. Super. 332, 422 A.2d 1143 (1980). Additionally, the plaintiff contends that the presumption is reasonable because it gives “effect to the objective manifestations of the parties, and our legislature’s acknowledgement that the contract under seal is a valid type of risk-shifting agreement.” Dailey, supra, at 638, 644 A.2d at 790.

Although we recognize and agree that we should be hesitant in addressing such a well-settled area of our common law as is the law relating to sealed instruments, we must distinguish Dailey from the matter before us. Dailey did not involve the sale of goods, so there were no article 2 concerns presented to our Superior Court. Here, we are dealing with a transaction involving a vehicle — a “good” as defined by Pennsylvania’s Commercial Code. 13 Pa.C.S. §2101. Our Superior Court has held that the Pennsylvania Commercial Code abrogates the common-law rule pertaining to seals where a contract made by the agent of an undisclosed principal for the purchase of a vehicle is made under seal. Commonwealth Bank and Trust Co. v. Keech, 201 Pa. Super. 285, 290, 192 A.2d 133, 135 (1963). Accordingly, we find that the Pennsylvania Commercial Code also controls in an installment agreement contract where the assignment is disclosed. The Commercial Code provides:

“The affixing of a seal to a writing evidencing a contract for sale or an offer to buy or sell goods does not constitute the writing [of] a sealed instrument and the law with respect to sealed instruments does not apply to such a contract or offer.” 13 Pa.C.S. §2203.

The difficulty arises in the matter before us with the compounding of a contract for the sale of goods and the purchase money security agreement aspect of the contract. Because neither party has addressed whether the instrument constitutes a secured transaction within the purview of article 9, we will refrain from analyzing the secured transaction aspects of the installment contract. We do note that our MVSFA would control even if article 9 had been raised. 69 Pa.P.S. §601 et seq.

Unfortunately, the MVSFA is silent as to a statute of limitations to apply in such a deficiency action. Id. Defendants raise our Judicial Code time limitations for actions on contracts as set forth in 42 Pa.C.S. §5525, which states:

“The following actions and proceedings must be commenced within four years:
“(1) An action upon a contract, under seal or otherwise, for the sale, construction or furnishing of tangible personal property or fixtures.
“(2) Any action subject to 13 Pa.C.S. §2725 (relating to statute of limitations in contracts for sale).
“(3) An action upon an express contract not founded upon an instrument in writing.
“(4) An action upon a contract implied in law, except an action subject to another limitation specified in this subchapter.
“(5) An action upon a judgment or decree of any court of the United States or of any state.
“(6) An action upon any official bond of a public official, officer or employee.
“(7) An action upon a negotiable or nonnegotiable bond, note or other similar instrument in writing. Where such an instrument is payable upon demand, the time within which an action on it must be commenced shall be computed from the later of either demand or any payment of principal of or interest on the instrument.
“(8) An action upon a contract, obligation or liability founded upon a writing not specified in paragraph (7), under seal or otherwise, except an action subject to another limitation specified in this subchapter.” 13 Pa.C.S. §2725 and 42 Pa.C.S. §5525.

We find that although the Judicial Code sets forth four years as the statute of limitations for contracts, irregardless of whether they are under seal or not, and because the transaction involves the sale of goods, that we must also be in conformity with Pennsylvania’s Commercial Code provisions. Id. When we turn to our Judicial Code’s time limitations provisions, we find that the Uniform Commercial Code prevails: 42 Pa.C.S. §5501(b) “Uniform Commercial Code: The provisions of title 13 (relating to commercial code), to the extent that they are inconsistent with this chapter, shall control over the provisions of this chapter.” As such, we turn to article 2 governing sales: “An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.” 13 Pa.C.S. §2725.

Defendants, in support of their argument for a four-year statute of limitations, urge us to review a New Jersey case holding that “a [deficiency] is nothing but a simple in personam action for that part of the sales price which remains unpaid after the seller has exhausted his rights under article 9 by selling the collateral; it is an action to enforce the obligation of the buyer to pay the full sale price to the seller, an obligation which is an essential element of all sales and which exists whether or not the sale is accompanied by a security arrangement.” Associates Discount Corp. v. Palmer, 219 A.2d 858 at 861 (N.J. 1966). Relying on Pennsylvania law, the Palmer court additionally found that “a deficiency action must be considered more closely related to the sales aspect of a combination sales-security agreement rather than to its security aspect and be controlled by the four-year limitation.” Id. Numerous Pennsylvania common pleas courts have relied upon Palmer’s holding that a four-year statute of limitations applies to a creditor’s deficiency action based upon repossession and resale of vehicles purchased with a security agreement. Action Management Inc. v. Fratello, 46 D.&C.4th 139 (Dauph. Cty. 2000); Industrial Valley Bank v. Sharpe, 15 D.&C.3d 506 (Phila. Cty. 1980); and Action Management Inc. v. Birch, 20 Lycoming Rep. 377 (1998); Action Management Inc. v. Murphy, no. 317 of 1999 (C.P., Juniata Nov. 23, 1999) (applying the four-year statute of limitations set forth in Judicial Code section 5525(1) to an action upon a sealed instrument). We agree.

Having found that the matter before us is subject to the four-year statute of limitations governing contracts for the sale of goods, we now must determine whether the matter should be dismissed as time barred as the default occurred in August 2000 and the deficiency balance letter was directed to the defendants on November 8,2000, which would bar the action brought on December 3,2004, as one month past the statute of limitations. However, allegedly there was at least one payment made on the account in March of 2002, which could toll the statute of limitations.

Our analysis begins with the principles in this area of the law that are settled. Our Judicial Code provides that limitations periods are to be computed from the time the cause of action accrued. 42 Pa.C.S. §5502(a). In Pennsylvania, a cause of action accrues “when the plaintiff could have first maintained the action to a successful conclusion.” Kapil v. Association of Pennsylvania State College and University Faculties, 504 Pa. 92, 99, 470 A.2d 482, 485 (1983). Essentially, the statute of limitations will begin as soon as the right to institute suit arises. Pocono International Raceway Inc. v. Pocono Produce Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). In its essence, once a statute of limitations has accrued and the statutory period has run, the injured party will be barred from bringing a cause of action on the matter. Id. There are, however, exceptions that act to toll the running of a statute of limitations.

It is undisputed by the parties here that the defendants were in default under the installment sales agreement in August 2000. The defendants dispute that they made at least one payment in March of 2002. According to the plaintiff, if a four-year statute of limitations applies instead of 20 years as they urge, then the statute of limitations would not begin to run until the March 2002 payment.

We have examined plaintiff’s exhibit 10, which is a copy of the money order paid to a division of plaintiff Bank, dated March 12, 2002, as well as the supporting affidavit attached thereto. We find that this payment could evidence a continuing acknowledgement of the debt by the defendants. Under Pennsylvania law, a loan payment serves as an “acknowledgement” of the total outstanding debt and will cause the statute of limitations to recommence with each payment made. U.S. v. Hemmons, E.D. Pa. 1991, 774 F. Supp. 346, affirmed, 972 F.2d 1333; see Philadelphia v. Holmes Electric Protective Co. of Philadelphia, 335 Pa. 273, 280, 6 A.2d 884 (1939).

Pursuant to this “acknowledgement doctrine,” a statute of limitations may be tolled or its bar removed by a promise to pay the debt. “A clear, distinct and unequivocal acknowledgement of a debt as an existing obligation, such as is consistent with a promise to pay, is sufficient to toll the statute.” Huntingdon Finance Corp. v. Newtown Artesian Water Co., 442 Pa. Super. 406, 410, 659 A.2d 1052, 1054 (1995). In Huntingdon, our Superior Court further stated “[tjhere can be no more clear and unequivocal acknowledgement of debt than actual payment____” Id. As a result, where an acknowledgement of the debt is given, the statute of limitations for a non-breaching party’s claim upon the contract is tolled up until the breaching party has breached the express or implied promise to pay, or when the relationship of the parties is severed. Gurenlian v. Gurenlian, 407 Pa. Super. 102, 114, 595 A.2d 145, 151 (1991).

Based on the foregoing we find that the four-year statute of limitations as set forth in 13 Pa.C.S. §2725 applies to the installment sales agreement; however, there is an issue of material fact as to whether the action is barred due to the tolling of the statute of limitations by the payment allegedly made by the defendants.

ORDER

And now, November 30, 2005, after consideration of the cross-motions for summary judgment and arguments and briefs by counsel, it is hereby ordered that the plaintiff’s motion for summary judgment is denied as there exists an issue of material fact as to whether the defendants made a payment tolling the statute of limitations.

      . “[T]his payment does not change the situation if it is determined that the claim falls under section 5525(7). If that were the case, the claim would not arise until the final payment on the instrument in 2002, but section 5529 would apply extending the applicable limitation period to 20 years. Accordingly, this factual dispute does not involve a material fact and thus does not affect the court’s ability to rule upon the motion for summary judgment.” Defendants’ brief, page 7.

      . Pa.R.C.P. §1035.2: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as amatter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

      . The defendants do not dispute the contract attached to the pleadings as plaintiff’s exhibit 1. For purposes of resolving the motion before us, we must assume that the contract was signed and under seal as this is not disputed.

      . Associates Discount Corp. v. Palmer, 219 A.2d 858 (N.J. 1966) (installment agreement involved transaction in goods and was barred by four-year statute of limitations); Nat'l Bank v. Freeland, 468 N.E.2d 941 (Ohio 1984) (holding that because the bank was not the seller of the automobile, the default related to the promissory aspect of the note and was therefore not in the purview of article 2); Massey-Ferguson Credit Corp. v. Casaulong, 62 Cal. App. 3d 1024 (Ca. 1976) (UCC law governed in security agreement and resale of farm equipment); Worrell v. Farmers Bank of Delaware, 430 A.2d 469 (Del.Sup. 1981) (holding sale was dominant in transaction for automobile and UCC therefore governed); Chaney v. Fields Chevrolet, 503 P.2d 1239 (Or. 1972) (holding that where deficiency existed between creditor and debtor on automobile installment contract, action more closely related to sales than to security); Carolina Nat’l Bank v. Holhouser, 247 S.E.2d 645 (N.C. 1978) (holding that action for deficiency was not barred by four-year statute of limitations under North Carolina Code).

      . “We recognize, as did our Supreme Court more than [117] years ago, that ‘(t)he world has outgrown the necessities of an age when men made their seals because they could not write; what then from necessity attested the very act of execution and the genuineness of it, is now but a mere arbitrary form .... ’ Hacker’s Appeal, 121 Pa. 192, 203, 15 A. 500, 501 (1888). We believe, however, that courts should be reluctant to overrule well settled principles where to do so would result in an action being barred by the statute of limitations. Moreover, if such a change is to be made, we believe that the decision is more appropriately left to our Supreme Court. Consequently, finding that the note in this case is under seal, we hold that the lower court erred in concluding that the statute of limitations bars this action.” Klein v. Reid, 282 Pa. Super. 332, 336, 422 A.2d 1143, 1145 (1980).

      . As noted previously, counsel for the plaintiff stated that there were at least three payments made on this account in the spring of 2002. (N.T. 13-14.)

      . As previously noted, plaintiff’s counsel indicated that there were at least three payments made on the defendants’ account. (N.T. 13-14.)


author: QUIÑONES ALEJANDRO, J.,

text:
    Hines v. Kosseim

      Michael Troiani and Robert Stein, for plaintiff.

      Charles A. Fitzpatrick III and Arthur B. Keppel, for defendant.
    August 15, 2005
   QUIÑONES ALEJANDRO, J.,

INTRODUCTION

On October 1, 2002, Gilbert Hines (plaintiff) filed a medical malpractice and professional liability civil action against Laura Kosseim M.D., Aba Barden Maja M.D., Joseph Ravenal M.D. and Penn Center for Primary Care, alleging negligence in failing to timely diagnose his prostate cancer. On March 10,2004, defendants Barden, Ravenal and Penn Center for Primary Care were dismissed as party defendants, and the case proceeded against only Dr. Kosseim (defendant).

On January 28, 2005, the trial jury found in favor of plaintiff and against defendant. Thereafter, defendant filed a post-trial motion for judgment n.o. v. and/or a new trial which was denied by this trial judge. Dissatisfied with the ruling, defendant filed this appeal.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Based upon the evidence presented at trial, it is reasonable to infer that the jury considered the following relevant and pertinent facts when rendering its verdict:

Sometime prior to a medical visit to defendant, plaintiff, a 41-year-old African American male, had worked on a cancer awareness program designed to encourage African American males to be screened for prostate cancer. On January 7, 1999, plaintiff went to Penn Center for Primaiy Care for a complete routine physical examination, and for treatment and evaluation of an asthma condition. Plaintiff was examined by defendant who performed, inter alia, a digital rectal exam and found no masses on plaintiff’s prostate. Defendant ordered laboratory blood studies which returned positive for elevated cholesterol. The blood studies ordered did not include a prostate-specific antigen (PSA) screening test.

Plaintiff returned to Penn Center for Primary Care approximately 20 months later for another physical examination. He was examined by defendant. At that time, she did not conduct a digital rectal exam nor order a PSA blood screening test.

On November 7,2001, plaintiff returned to Penn Center for Primary Care and this time was seen by Aba Barden Maja M.D., for complaints of fever, chills, and respiratory problems. He underwent a physical examination and a digital rectal exam, which was found to be abnormal. Dr. Barden ordered a PSA test. On November 13, 2001, Dr. Barden called plaintiff and informed him that his PSA was greatly elevated and that he needed to undergo a biopsy and further tests. Subsequently, plaintiff was diagnosed with prostate cancer.

Plaintiff was seen by numerous physicians following the diagnosis of prostate cancer, some who recommended conventional modes of treatments, including regular hormone therapy, chemotherapy and castration. Plaintiff rejected the majority of these recommendations and was advised by a physician that he might be able to live up to 10 years with castration but, without this surgery, his life expectancy was about six months. Plaintiff did not accept this treatment option, but instead, underwent hormone therapy which he later discontinued due to adverse side effects. He sought alternative treatment, including injections of a derivative of mistletoe, changed his diet, and took vitamins.

Procedurally, a jury trial was originally scheduled for August 9,2004. However, due to plaintiff’s expert’s sudden unwillingness to testify, it was continued to allow plaintiff an opportunity to obtain a new expert. On January 24, 2005, a jury trial commenced. On January 28, 2005, the jury found in favor of plaintiff and against defendant in the amount of $2,859,770, and further found that plaintiff was 10 percent comparatively negligent and defendant was 90 percent comparatively negligent. The verdict amount was subsequently reduced by 10 percent, or $285,977, for an adjusted verdict award of $2,573,793.

On February 4, 2005, defendant filed a timely post-trial motion requesting judgment n.o.v. and/or a new trial. On February 7, 2005, plaintiff filed a motion for delay damages. Oral argument was scheduled for these motions, and on April 14, 2005, this trial judge denied defendant’s post-trial motion, and granted plaintiff’s petition for delay damages in the amount of $184,026.71. The adjusted verdict amount was molded to reflect the award for delay damages to a total verdict award of $2,757,826.91.

As stated, dissatisfied with this trial judge’s ruling, defendant filed the instant appeal.

ISSUES

Defendant’s timely statement of matters complained of on appeal filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) avers:

“(1) The honorable trial court erred in twice overruling defendant’s objection to testimony from plaintiff’s fact witness, Richard Ruffin, that plaintiff is ‘an honest’ man, and in refusing on both occasions to strike the inappropriate character evidence and to instruct the jury that it should not consider the evidence, so as to warrant the granting of a new trial;
“(2) the honorable trial court erred in failing to discharge juror no. 10 when he disclosed he was a friend of plaintiff’s fact witness, Richard Ruffin, and that he could not be sure if he would be influenced in his decision-making because of that friendship, so as to warrant the granting of a new trial;
“(3) the honorable trial court erred in permitting plaintiff’s expert, Thomas Kasper M.D., to testify over defendant’s objections as to opinions not expressed in his written report, including the opinion that the grade of plaintiff’s prostate cancer would not have been the same in 1999 as it was when diagnosed in 2001, and that therapy could not guarantee plaintiff an increased life expectancy, so as to warrant the granting of a new trial; and
“(4) the honorable trial court erred in permitting plaintiff’s expert, Thomas Kasper M.D., to testify over defendant’s objections as to opinions not stated to the degree of medical certainty required to be admissible, including the opinion that the grade of plaintiff’s prostate cancer would not have been the same in 1999 as it was when diagnosed in 2001, and that in 1999 the cancer was most probably localized to the prostate gland and had not spread to the regional lymph nodes or distantly to the bone as it had in December of2001, so as to warrant the granting of a new trial.”

LAW AND DISCUSSION

As noted, defendant claims that this trial judge committed four errors which would entitle her to either judgment n.o.v. and/or a new trial. This trial judge disagrees.

From the outset, it is important to mention that this case revolved on a determination of credibility of the highly contested issue of whether plaintiff requested to be screened for prostate cancer during the January 7,1999 physical examination performed by defendant. In this regard, plaintiff adamantly testified that he had a clear recollection that he had discussed with his wife the need to have a physical examination and a prostate cancer screening, and that at the time of his visit with defendant, he specifically requested a PSA screening. On the other hand, defendant testified that she had a vague recollection of the physical examination performed, but that she was certain that plaintiff had not requested a PSA test, because had plaintiff requested a prostate cancer screening, she would have had a conversation with him about the risks and benefits of the test and would have noted the fact of this conversation in his medical record, and nothing of the sort is contained in the chart. Defendant also testified that, as a habit, she conducts digital rectal examinations during routine physical examinations, but does not order PSAs on asymptomatic 41-year-old patients, without a specific request to do so. (Another point of contention, whether African American males ages 40 and older should have routine PSA screening, was discussed by the experts for the parties.) However, defendant admitted that she deviated from her usual practice when she did not perform a digital rectal examination during plaintiffs second physical examination 20 months after the first visit. This case boiled down to a determination on what plaintiff did or did not request. Defendant’s testimony on this critical factual issue, considering all the evidence of record, was perceived by the jury as being not as credible as plaintiff’s narration of the events. Clearly, it is the jury’s prerogative to assess credibility, and the evidence of record supports their assessment.

As to this trial judge’s ruling on defendant’s post-trial motion, it is undisputed that the decision to grant and/or deny a request for a new trial is within the sound discretion of the trial court. Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002), appeal denied, 572 Pa. 694, 813 A.2d 835 (2002). An appellate court may not disturb a trial court’s ruling unless the trial court palpably abused its discretion or committed an error of law. Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995); Andrews, 800 A.2d at 962. An abuse of discretion is not merely an error of judgment. An abuse of discretion occurs if, in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence of record. See Fanning v. Davne, 795 A.2d 388, 393 (Pa. Super. 2002), citing Paden v. Baker Concrete Construction Co. Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995); Price v. Chevrolet Motor Div. of General Motors Corp., 765 A.2d 800, 806 (Pa. Super. 2000). However, an abuse of discretion may not be found merely because the appellate court might have reached a different conclusion. The court’s action requires a showing of manifest unreasonableness, or partiality, prejudice, bias, or ill will, or such lack of support as to be clearly erroneous. Fanning, 795 A.2d at 393.

Anew trial is warranted where the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. Neison, 539 Pa. at 520, 653 A.2d at 636. However, a new trial should not be granted because of a mere conflict in testimony or some irregularity which occurred during trial or because another trial judge, on the same facts, would have arrived at a different conclusion. Harman ex rel. Harman v. Borah, 562 Pa. 455, 467, 756 A.2d 1116, 1122 (2000). “The moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake.” Id. at 467, 756 A.2d at 1122. (citations omitted) Atrial court’s decision to grant or deny a new trial is subject to consideration of all of the evidence, viewed in the light most favorable to the verdict winner. Haddad v. Gopal, 787 A.2d 975, 979 (Pa. Super. 2001), appeal denied, 572 Pa. 694, 813 A.2d 842 (2002).

On the other hand, “when reviewing a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the verdict winner, who must be given the benefit of every reasonable inference of fact.” Fanning, 795 A.2d at 392. “Any conflict in the evidence must be resolved in the verdict winner’s favor.” Id. (citation omitted)

There are two bases upon which a judgment n.o.v. can be entered: (1) the movant is entitled to judgment as a matter of law and/or (2) the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that even with all factual inferences decided adverse to the movant, the law nonetheless requires a verdict in his favor, whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure. Lanning v. West, 803 A.2d 753, 756 (Pa. Super. 2002).

Character Evidence

In the first appellate issue, defendant contends that this trial judge twice erred in overruling the objections to the testimony from plaintiff’s fact witness, Mr. Richard Ruffin; to wit: that plaintiff is “an honest” man; and in refusing on both occasions to strike the inappropriate character evidence and instruct the jury that it should not consider the evidence, so as to warrant the granting of a new trial.

The admission or exclusion of evidence is within the sound discretion of the trial court, and in reviewing a challenge to the admissibility of evidence, the appellate court will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law. Atrial court has wide discretion in ruling on the relevancy of evidence and its rulings will not be reversed absent an abuse of discretion. Fidler v. Cunningham-Small, 871 A.2d 231 (Pa. Super. 2005). A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently. The moving party must demonstrate prejudice resulting from the mistake before a new trial can be granted. Id.

Here, defendant does not point to the specific objectionable passage in the trial transcript that pertains to this allegation of error. The reason may be because this error does not exist. A careful review of the trial transcript does not find the specific word honest mentioned nor used by Mr. Ruffin. However, the closest finding to the word “honest” in the official transcript of the testimony can be found where Mr. Ruffin stated with regard to plaintiff:

“I mean, he’s still, you know, a — I forget the word, honorable, or he still keeps a certain decorum about himself. I mean, he’s not the kind of guy that’s going to start crying about his situation. He’s very proud that way, if I could use that word. But now, over the last, especially like the last six or nine months, I mean, he’s just — he’s losing himself into the illness.” (emphasis added)

Thereafter, defendant objected and moved to strike this testimony. This trial judge overruled the objection based upon Pennsylvania Rule of Evidence 608, Evidence of Character and Conduct of Witness, which provides, in its pertinent part:

“(a) Reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of reputation as to character, but subject to the following limitations:
“(1) the evidence may refer only to character for truthfulness or untruthfulness; and
“(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise.” Pa.R.E. 608.

Under Rule 608, any mention of plaintiff being an honest man would be inadmissible in the absence of a prior attack of the plaintiff’s truthfulness. In this trial judge’s opinion, the alleged character evidence of truthfulness or plaintiff being “an honest” man was not actually offered. Therefore, defendant’s argument is without merit.

Notwithstanding and assuming arguendo that defendant is referring in her argument to the term “honorable,” this term conceivably could be interpreted as referring to truthfulness. However, this term can also be interpreted, as in the context used by Mr. Ruffin, as referring to “dignity and composure.” The context of Mr. Ruffin’s testimony explained his use of the word “honorable,” when stating that the plaintiff “still keeps a certain decorum about himself” and that “he’s not the kind of guy that’s going to start crying about his situation.” In this trial judge’s opinion, considering the surrounding testimony, Mr. Ruffin’s opinion of plaintiff was properly admitted. This testimony did not go to plaintiff’s reputation or character for truthfulness, but instead, to the kind of “stiff-upper-lip kind of person” Mr. Ruffin believes plaintiff to be.

In this trial judge’s opinion, the admission of the testimony does not warrant the granting of a new trial and/or judgment n.o.v. Should the appellate court, however, find that this testimony was improperly admitted, this trial judge opines that the use of the term “honorable” is, at most, a harmless error which also does not warrant either the granting of a judgment n.o.v. and/or a new trial.

Juror Discharge

Defendant contends that this trial judge erred in failing to discharge juror no. 10 when said juror disclosed that he knew plaintiff’s fact witness, Richard Ruffin, and that he could not be sure if he would be influenced in his decision-making because of that relationship. Defendant is somewhat disingenuous in this contention.

A careful review of the trial transcript reveals what actually occurred during the preliminary questioning of Mr. Ruffin:

“Mr. Ruffin: ‘ [E]xcuse me just for a moment, but I think I recognize a juror.’
“Mr. Stein: Side-bar, your honor?
“The court: Is there a relationship between you and the juror that you recognize?
“Mr. Ruffin: Just that he used to work with my wife a while ago. That’s all. We don’t have a personal relationship, but I just recognized him and I thought I should bring that to your attention.
“The court: When was the last time you socialized with him?
“Mr. Ruffin: Probably 10 years ago, besides seeing him on the street and saying hi.
“The court: Let’s have a side-bar.”

(Thereupon, a side-bar discussion was held out of the presence of the jury as follows:)

“Mr. Fitzpatrick: During voir dire, this man was not identified, the juror, as I recall, and the juror would have had the opportunity to tell us that he recognizes him. There are other jurors — one juror was released because he thought, even though he was mistaken, he might have known Dr. Kosseim. I think it’s improper. How can we have this witness? We have no idea how this would affect anything.
“Mr. Stein: If I may respond, your honor, I didn’t conduct voir dire, but I do believe Mr. Ruffin was identified, and the only way to do that would be to ask his recollection. But when Mr. Troiani and I stood up, he did the list of witnesses and he’s on our witness list as well.
“The court: Do you recall the name? [Directing the question to the court crier.]
“The court crier: I don’t remember his name, and I also know him from across the street from being in the courtroom.
“The court: That would have no bearing on the deliberation. I think the proper thing to do is to call the juror and conduct a voir dire with him.
“Mr. Fitzpatrick: Fine, your honor. Do you want to instruct them?
“The court: I think we should do that now before the testimony continues.”

(Thereupon, the side-bar discussion was concluded, and the proceedings were continued as follows to the jury:)

“The court: Just so you don’t start thinking about what we’re doing, I do need to ask some questions now that we have found out that they have known each other, to make sure that he can continue to be an impartial juror in this matter. I have to do this at side-bar.”

(Thereupon, a side-bar discussion was held out of the presence of the jury as follows:)

“The court: Mr. Wilson?
“Juror number 10: Yes.
“The court: You indicate that you do know this person?
“Juror number 10: Yes, I do.
“The court: What type of relationship is that?
“Juror number 10: His wife and I worked together for about a year or so at the library. We worked together for about a year in 1990.
“The court: Do you socialize with him?
“Juror number 10: No.
“The court: When was the last time you socialized with him?
“Juror number 10: My retirement dinner — not my retirement. My going away dinner there, which was about 1996.
“The court: The fact that he is going to be testifying to certain things, his relationship with the plaintiff, would that in any way make you impartial to hear this case and decide it based—
“Juror number 10: It’s hard to judge until I hear what he’s going to have to say.
“The court: If he says the plaintiff is my best friend and he’s suffering a lot?
“Juror number 10:1 think I understand that he has done that. I understood that from Mr. Hines. I don’t think it’s going to make any difference from what I’ve heard from Mr. Hines than what I’m going to hear from Mr. Ruffin.
“The court: The fact that you know Mr. Ruffin, would that make his testimony more credible to you that [sic] judging him as you would judge anybody else?
“Juror number 10:1 don’t remember him as close of a friend as other people.
“The court: But would you be able to judge his testimony as to credibility equally as you would judge the other witnesses that have been testifying?
“Juror number 10: Yes.
“The court: Is there any hesitation?
“Juror number 10: As I said, I don’t know what he’s going to say, so I’m not sure.
“The court: If there is anything that you feel at the end of having heard him that would make you bias towards one side or the other, please let me know, but I don’t want to know what you’re thinking. I just want to know your reaction, because it’s fair that you don’t know what he’s going to say that is going to taint your way of thinking. But if you feel at the end of his testimony you’re going to be able to continue to weigh all the evidence fairly and impartially for either side, if you feel you can do that, don’t say anything to me. But if you feel your judgment has been affected because of some relationship you had in the distant past with him, please let me know.
“Juror number 10: Okay.
“The court: Thank you, Mr. Wilson. Are you satisfied, counsel?
“Mr. Fitzpatrick: With that caveat.
“Mr. Stein: I’m satisfied.
“The court crier: We don’t remember the names. He never raised his hand to say that he knew him, or doing the individual voir dire, he didn’t say anything, so we wouldn’t recollect that.
“Mr. Fitzpatrick: Do you want to take a break for a few minutes?
“The court: No.
“Mr. Stein: I have an objection. I’m not going to be very long. He is a before-and-after witness.
“Mr. Fitzpatrick: Give me a second, please, your honor.”
(Thereupon, defense counsel, Mr. Fitzpatrick, conferred with his client.)
“Mr. Fitzpatrick: No objection, your honor, with the caveat that if something pops up, he should let us know.
“The court: Okay.”

(Thereupon, the side-bar discussion was concluded, and the proceedings were continued.)

Generally, a party waives an issue concerning a perceived trial court error if the party fails both to preserve the issue with a timely and specific objection at trial and to present it in post-trial motions. Harman, 562 Pa. at 471, 756 A.2d at 1124. This case also provides a limited exception to the waiver doctrine, i.e., where it appears from all the circumstances that a timely objection to perceived judicial misconduct would be meaningless, a party may choose to raise the issue for the first time at post-trial motions to preserve it for appellate review. This involves some risk, which atrial counsel should not assume lightly. The burden is on the party asserting the Harman exception to the waiver doctrine to demonstrate that lodging a timely objection would have been meaningless.

Here, this waiver doctrine does not apply. The record is clear that defendant’s counsel had an opportunity to confer with defendant and specifically responded to this trial judge’s inquiry, “No objection, your honor, with the caveat that if something pops up, he should let us know.” Nothing appeared to have “popped up” since the juror did not indicate to the trial judge any concerns. Further, as implied by the juror, Mr. Ruffin’s testimony did not bolster plaintiff’s testimony. His relationship to Mr. Ruffin was, at most, distant and tenuous. Accordingly, defendant has waived the issue.

Expert Testimony Outside the Scope of the Report

Next, defendant contends that this trial judge erred in permitting plaintiff’s expert, Thomas Kasper M.D., a board-certified urologist, to testify as to opinions not expressed in his written report, including the opinion that the grade of plaintiff’s prostate cancer would not have been the same in 1999 as it was when diagnosed in 2001, and that therapy could not guarantee plaintiff an increased life expectancy.

Generally, all relevant evidence is admissible, except as otherwise provided by law. Pa.R.E. 402. A witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. Pa.R.E. 702. The facts or data in a particular case upon which an expert bases an opinion may be those perceived by or made known to the expert at or before the hearing. Pa.R.E. 702.

In determining whether to admit expert testimony into evidence, a trial judge has wide discretion and will not be reversed unless there has been a clear abuse of this discretion. Greer v. Bryant, 423 Pa. Super. 608, 621 A.2d 999 (1993); Burton-Lister v. Siegel, Sivitz and Lebed Associates, 798 A.2d 231, 240 (Pa. Super. 2002), appeal denied, 570 Pa. 680, 808 A.2d 568 (2002). Expert witnesses can expand on and amplify upon their pretrial reports, as long as they do not proffer a new theory or present trial testimony inconsistent with the fair scope of their reports. Chanthavong v. Tran, 452 Pa. Super. 378, 682 A.2d 334 (1996). In addition, Pennsylvania Rule of Civil Procedure 4003.5(c), in its fair scope rule provision provides:

“To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings ... the direct testimony of the expert at the trial may not be inconsistent with or go beyond the fair scope of his or her testimony in the discovery proceedings as set forth in the . . . separate report, or supplement thereto. However, the expert shall not be prevented from testifying as to facts or opinions on matters which the expert has not been interrogated in the discovery proceedings.” Pa.R.C.P. 4003.5(c).

In other words, an expert witness may not testify on direct examination to matters that are either inconsistent with or go beyond the fair scope of matters provided in discovery proceedings or in a separate report. Woodard v. Chatterjee, 827 A.2d 433, 441 (Pa. Super. 2003). The fair scope or within the four corner rule favors the liberal discovery of expert witnesses and disfavors unfair and prejudicial surprises. The purpose of the discovery rules is to “prevent surprise and unfairness and to allow a fair trial on the merits.” Dominick v. Hanson, 753 A.2d 824, 826 (Pa. Super. 2000), quoting Linker v. Churnetski Transportation Inc., 360 Pa. Super. 366, 368, 520 A.2d 502, 503 (1987), appeal denied, 516 Pa. 641, 533 A.2d 713 (1987). Additionally, the appellate court stated in Kaminski v. Employers Mutual Casually Company, 338 Pa. Super. 400, 408, 487 A.2d 1340, 1344-45 (1985), quoting Sindler v. Goldman, 309 Pa. Super. 7, 12, 454 A.2d 1054, 1056 (1982):

“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.”

The explanatory comments to Pa.R.C.P. 4003.5 advise parties to make broad discovery inquiries in order to force all of the expert’s proposed testimony into the report and prevent surprise at trial. Further, it is for the trial court to determine whether the expert’s report gives sufficient notice of the expert’s theory to the opposing party to prepare its rebuttal witness(es). Tiburzio-Kelly v. Montgomery, 452 Pa. Super. 158, 173, 681 A.2d 757, 765 (1996). Thus, the litmus test is whether the trial testimony is within the fair scope or the four corners of the expert’s report and whether plaintiffs were prejudiced and/or surprised by the actual testimony. Jones v. Constantino, 429 Pa. Super. 73, 631 A.2d 1289 (1993), appeal denied, 538 Pa. 671, 649 A.2d 673 (1994).

To determine whether an expert’s testimony is within the fair scope of his pretrial report, the court must decide: whether, under the particular facts and circumstances of the case, the discrepancy between the expert’s pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response. Burton-Lister, 798 A.2d at 241.

There are no definite rules for determining whether testimony exceeds the fair scope of a report; said determination must be reviewed on a case-by-case basis. Wilkes-Barre Iron & Wire Works Inc. v. Porgas of Wilkes-Barre Inc., 348 Pa. Super. 285, 502 A.2d 210 (1985). In deciding whether testimony is within the scope of the report, the emphasis is on the word fair as “ ‘fair’ scope contemplates a reasonable explanation and even an enlargement of the expert’s written words.” Millard v. Nagle, 402 Pa. Super. 376, 404, 587 A.2d 10, 23 (1991), quoting Wilkes-Barre, supra.

Where an expert report was written in absolute language, adverse counsel should anticipate that the expert’s trial testimony would expand on his report. Greer v. Bryant, 423 Pa. Super. 608, 615, 621 A.2d 999, 1004 (1993). The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert’s pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response. Chanthavong, supra.

Here, Dr. Kasper, in his videotaped trial testimony taken five days before the commencement of trial, essentially opined that the grade of plaintiff’s prostate cancer would not have been the same in 1999 as it was when diagnosed in 2001, and that therapy could not guarantee plaintiff an increased life expectancy. In his written report, Dr. Kasper expressed the following:

“Page 2: ‘The pathology report [from the December 17,2001 guided needle biopsy] revealed a Gleason grade 9 (Gleason scale being grade 2-10 — grade 2 being the least aggressive and grade 10 being the most aggressive)’
“Page 3: ‘It is my opinion as a board-certified urologist that had Dr. Kosseim performed a screening PSA serum test on January 7, 1999, Mr. Hines’ PSA would have been in the abnormal range and prompted referral for urologic evaluation. This referral for urologic evaluation would have resulted in likely finding prostate cancer localized to the prostate glands at which time definitive treatment could have been recommended.’ ”

In this trial judge’s opinion, Dr. Kasper’s trial testimony falls within the fair scope of his written report, and is consistent with the report. There is no prohibition that an expert cannot expand and/or explain the opinions submitted in a written report.

Regarding the opinion that therapy could not guarantee plaintiff an increased life expectancy, Dr. Kasper’s written report contains the following:

“Page 1: ‘Dr. Kosseim’s failure to heed the guidelines and adhere to the accepted standard of good medical practice denied Mr. Hines the opportunity to have his prostate cancer diagnosed in a timely fashion such that definitive curative treatment could be instituted.’ (emphasis added)...
“Page 3: ‘The most important tenant [sic] as it applies to the case of Gilbert Hines is that the earlier one makes the diagnosis of prostate cancer, the greater the chance of curing the disease or controlling the disease if it has already spread outside the local confines of the prostate gland. The delay of almost three years from Mr. Hines’ 1999 physical examination by Dr. Kosseim to the diagnosis in November of 2001 by Drs. Barden and Axelrod allowed Mr. Hines’ localized prostate cancer to increase in size, spread locally and metastasize distally, thereby denying him the opportunity for definitive curative treatment and reducing his chances of long-term survival. ’ (emphasis added)”

In this trial judge’s opinion, Dr. Kasper’s report addresses his concerns that the lack of a timely diagnosis allowed the cancer to spread and denied plaintiff an opportunity for a cure and long-term survival. Although his trial testimony was not in the exact words, his opinions, both written and oral were similar and consistent. Clearly, Dr. Kasper opined that plaintiff has no guarantee of anything definitive in his future, regardless of any therapeutic intervention.

Based upon this careful dissection of the written report and the trial testimony, this trial judge opines that defendant’s argument that Dr. Kasper’s trial testimony exceeded the fair scope of his written report is without merit. There was no unfair surprise in the expert’s testimony. Furthermore, defendant was allowed an opportunity to make a meaningful response and was not misled as to the nature of the appropriate response needed for her defense. Defendant cannot argue “unfair surprise” or “lack of sufficient notice” to prepare a rebuttal to these opinions since the written report was provided in accordance with the deadlines established and the trial deposition took place on January 19, 2005, five days in advance of the trial date. This advance time period gave defendant ample opportunity to have her own expert(s) thoroughly review Dr. Kasper’s trial opinions and address and/or rebut any opinions expressed by Dr. Kasper during his trial deposition, an opportunity not lost to defendant expert, Leonard Gomella M.D., also a board-certified urologist. For example:

“Mr. Fitzpatrick: Dr. Kasper, in his report and in his testimony, told the jury that if a PSA test had been offered to Mr. Hines on January 7th of 2000 — I’m sorry, of 1999, that the PSA test would have been elevated and that it’s his belief and his opinion that that cancer would have been limited to the prostate itself and not have spread at that point in time. Is that how you understood his report to be?
“Dr. Gomella: Yes.
“Mr. Troiani: Objection, your honor.
“The court: Overruled.
“Mr. Troiani: And I know where this is going. Can I have a side-bar, your honor?
“The court: I know where it’s going, too. Overruled.”

Further along in his testimony, Dr. Gomella opined:

“Mr. Fitzpatrick: Doctor, to a reasonable degree of medical certainty, do you have an opinion as to whether or not Mr. Hines’ prognosis for this cancer that he has have changed at all had the cancer been found in January of 1999?
“Mr. Troiani: Objection, your honor.
“The court: Overruled.
“Dr. Gomella: Based on our best understanding of Gleason 9 cancers and about two plus years, two and-a-half years after that first encounter with Dr. Kosseim, knowing the growth of cancers as best as we understand it, Gleason 9 cancers — and we have to understand something. Cancer in the prostate doesn’t just come up within a few weeks or a few months. There is a slow lead time for these cancers coming up. But the problem is, if you have a Gleason 9, the propensity for them to either jump outside the prostate and cause a nodule or anything— I’ll give you an example here. If there was no nodule in his prostate and he got a rectal exam, two years later, his prostate was packed with Gleason 9 cancer. It tells you that this cancer has got its own mind. It’s acting its own way. So, probably, what’s happening is it was getting out of the prostate. And, unfortunately, that’s what Gleason 9 cancers do. You have to understand that. They tend to escape from the prostate before they cause multiple symptoms, and that’s the challenge that we have here with these high-grade cancers.
“Mr. Troiani: Objection, your honor, move to strike.
“The court: Overruled.”

As the above testimony illustrates, Dr. Gomella was given much latitude to address folly the progression of prostate cancer and the timing of the diagnosis, expand on his opinions, and rebut whatever opinion had been previously expressed by Dr. Kasper.

Expert Testimony Not Stated to Required Degree of Medical Certainty

Lastly, defendant contends that this trial judge erred in allowing Dr. Kasper to testify, despite defendant’s objections, to opinions not stated to the required degree of medical certainty, including his opinions that the grade of plaintiff’s prostate cancer would not have been the same in 1999 as it was when diagnosed in 2001; and that in 1999, the cancer was most probably localized to the prostate gland and had not spread to the regional lymph nodes or distantly to the bone as it had in December of 2001.

Specifically, defendant objected to the following exchange:

“Q. Is it your opinion that [plaintiff’s] cause of cancer was localized in January 1999 or had it spread or can you tell?
“A. It is my opinion within a recently agree [sic] of medical certainty that his cancer was most probably localized to the gland and had not spread to regional lymph nodes or distantly to bones as it had in December of2001.
“Q. And how do you know that, doctor? What is the basis of your opinion?
“A. The basis of my opinion was — is the literature in some of medianalyses of high grade Gleason tumors show that prostate cancers based on these aggressive doubling times are more likely than not with PSAs in the range of one to 20, high teens, are in a significant percentage of cases localized the prostate gland.”

In addition to the above testimony, which was to the requisite degree of medical certainty (incorrectly transcribed above as “recently agree of medical certainty”), he repeated his opinion:

“Q. [D]id he have an elevated or normal PSA [on January?, 1999]?
“A. My opinion, he would have had an elevated or abnormal PSA based on what he presented with in November of 2001 when his PSA was elevated above 800.
“Q. How can you tell, doctor, that back two-and-a-half years before January 1999 that he had an elevated PSA?
“A. Well, we can tell with a reasonable degree of medical certainty using a factor of doubling times. What we do know is that in December of 2001 Mr. Hines was diagnosed with a fairly aggressive behaving form of prostate cancer, a Gleason 9 prostate cancer that involved at least 80 percent of most areas of his prostate that were biopsied. It also had spread at that time to boney structures and to lymph nodes in his abdomen. Using doubling times and going backwards by having the PSA value every six months which is a fairly aggressive behaving tumor, which is what Mr. Hines had, you can calculate backwards and get a value of or a range of values of what his PSA would be in January of 1999.”

Dr. Kasper was asked a similar question without objection:

“Q. Now, at the time that Dr. Kosseim did the digital rectal exam in January 1999, did Mr. Hines have cancer that spread outside of the prostate?
“A. In my opinion, he did not.
“Q. And what is the basis of your opinion?
“A. My opinion is based on the calculated PSA and the fact that Dr. Kosseim did not feel any abnormality in his prostate on digital rectal exam.
“Q. What significance is that?
“A. [T]he significance of that is that there was not in my opinion a significant amount of tumor burden within the prostate so that you could not feel any abnormality of the prostate in January of 1999.”

Of utmost importance, however, is the fact that, at the beginning of Dr. Kasper’s testimony, the following exchange occurred:

“Q. Those opinions, doctor, that you are going to give, are they to a reasonable degree of medical certainty?
“A. They are.”

Clearly, Dr. Kasper expressed his opinions within the required standard. Nevertheless, an expert need not testify with absolute certainty or rule out all possible causes of a condition, nor must an expert testify in precisely the language used to enunciate the legal standard. Eaddy v. Hamaty, 694 A.2d 639, 642 (Pa. Super. 1997). When a party must prove causation through expert testimony, the expert must testify with “reasonable certainty” that in his professional opinion, the result in question did come from the cause alleged. See Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). An expert’s testimony is reviewed in its entirety to assess whether it expresses the requisite degree of medical certainty. Id. Further:

“An expert fails this standard of certainty if he testifies ‘that the alleged cause “possibly,” or “could have” led to the result, that it “could very properly account” for the result, or even that it was “very highly probable” that it caused the result.’ Kravinsky v. Glover, 263 Pa. Super. 8, 21, 396 A.2d 1349, 1356 (1979). (citations omitted)” Eaddy, 694 A.2d at 642.

Read in its entirety, Dr. Kasper’s opinion testimony met the requisite degree of medical certainty. Thus, no error was committed in allowing his opinions into evidence.

CONCLUSION

Based on the foregoing analysis and case law, this trial judge is of the opinion that no error was committed in denying plaintiff’s post-trial motion. This trial judge respectfully requests that plaintiff’s appeal be dismissed, and that the jury’s molded verdict and the order dated April 14, 2005, be affirmed.

      . N.T. 1/24/05 at 63:11-25.

        . Id. at 59:15-65:15.

      . N.T. 1/25/05 19:22-24.

        . Id. at 25:16-19 and 27:6-8.

      . Id. at 25:22-24.

      . Id. at 34:22-24.

      . Id. at 34:25-35:2 and 35:11-15.

      . N.T. 1/24/05 at 162:2-164:11.

      . Id. at 165:23-166:24.

      . Id. at 170:17-171:2.

      . Id. at 171:11-12.

      . Id. at 77:12-13 and 79:9-16.

      . N.T. 1/24/05 at 120:4-5.

      . Id. at 120:4-5.

      . Id. at 82:8-17.

      . According to the docket entry dated February 7,2005, the jury returned a verdict on January 18,2005. This incorrect date appears to be a typographical error.

      . N.T. 1/24/05 at 64:19-22.

      .N.T. 1/25/05 at 21:21-22:9.

      . Id. at 21:21-22:9.

      . Id at 38:12-19:16 and 40:20-41:15.

      .N.T. 1/25/05 at 35:11-18.

      . N.T. 1/25/05 at 84:5-16.

      . The Mirriam-Webster Dictionary definition of “honorable” in its synonyms includes the word “noble,” and in its related words includes “proper,” “seemly,” and “chivalrous.” In the context used, Mr. Ruffin used the word “honorable,” as referring to proper or the dignity and composure of Mr. Hines, and not necessarily referring to his character for truthfulness.

      .N.T. 1/25/05 at 75:17-19.

      . Dr. Kasper’s report dated December 15, 2003.

      . N.T. 1/26/05 at 74:12-25.

      . N.T. 1/26/05 at 81:5-82:25.

      . Trial deposition Kasper, 1/19/05 at 32:18-33:11. (emphasis added)

      . Trial deposition Kasper, 1/19/05 at 21:3-22:4. (emphasis added)

      . Id. at 36:21-37:13.

        .Id. at 19:12-15. (emphasis added)


author: MOSCHETTA, J.,

text:
    Chillingworth v. Nello Construction Co.

      Frank A. Conte and Joseph M. Yablonski, for plaintiffs.

      Christopher T. Yoskosky, for defendant Nello Construction Co.

      Paul A. Pongrace III, for defendant Paramount Flooring Associates.

      Martin J. Gesk, for defendant Management Engineering Corp.

      Alan W. Torrance Jr., for additional defendant W.G. Tomko & Sons Inc.

      August 15, 2005
   MOSCHETTA, J.,

Before the court is additional defendant W.G. Tomko & Sons Inc.’s motion for summary judgment. The court has considered the motion, its accompanying brief, and the oral arguments presented by Tomko and defendant Paramount Flooring Associates Inc. on July 21, 2005. For the reasons discussed below, the motion will be denied.

I. BACKGROUND

Plaintiffs filed a writ of summons with the Court of Common Pleas of Washington County on April 11,2002, and then filed a complaint on May 22, 2002. Plaintiffs’ original complaint alleged counts of negligence against Nello Construction Company and the McGuffey School District that related to an accident in which plaintiff Kathryn Sell Chillingworth tripped and fell over an object on the floor of the library at the school where she worked. McGuffey filed preliminary objections, and thereafter, plaintiffs filed an amended complaint on August 29,2002, naming Nello as the sole defendant. Nello, on October 21,2002, then filed a complaint to join additional defendants Tomko and Paramount Flooring Associates. Tomko filed an answer and new matter on December 5,2002. Tomko did not file any preliminary objections. After engaging in discovery, plaintiffs obtained leave of court to file a second amended complaint and filed same on August 26, 2003. The second amended complaint makes no averments against Tomko.

II. STANDARD OF REVIEW

In determining whether summary judgment is appropriate, the court must consider the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-45, 615 A.2d 303, 304 (1992). Summary judgment will be granted only in those cases which are free and clear from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). At the same time, however, a non-moving party may not successfully avoid summary judgment by simply resting upon the mere allegations or denials contained in the pleadings. Pa.R.C.P. 1035.3(a). In other words, to defeat a motion for summary judgment, a non-moving party must present sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). The non-moving party’s inability to advance such evidence would establish that there is no genuine issue of material fact and that the movant is entitled to summary judgment as a matter of law. Id.

III. DISCUSSION

Additional defendant Tomko argues that it is entitled to summaiy judgment on the basis that there is currently no cause of action against it in this case. It claims that its involvement in this litigation began when defendant Nello filed a complaint to join additional defendants in response to plaintiffs’ first amended complaint. Tomko argues that when plaintiffs subsequently filed a second amended complaint on September 15, 2003, plaintiffs’ first amended complaint and all of its responsive pleadings were rendered moot.

The court concurs with Tomko on the general proposition of the effect of amended pleadings — when a pleading is amended, the original pleading is superseded and “the pleader is no longer concluded by it.” Braceland v. Hughes, 184 Pa. Super. 4, 6, 133 A.2d 286, 287 (1957). However, in this case, it is not the first amended complaint that named Tomko as an additional defendant — it was original defendant Nello’s complaint to join additional defendants, which was at no point withdrawn or stricken. Tomko cites no case law in which a court was faced with a situation factually similar to the one at hand — i.e., a case lending support to the proposition that Nello’s complaint to join additional parties should be rendered moot — nor is the court able to locate such a case.

Tomko also relies on the fact that it sought and obtained a stipulation for voluntary dismissal from plaintiffs and from all of the parties to this action except for additional defendant Paramount, which refuses to stipulate to Tomko’s dismissal. However, such stipulations are only relevant to the issue of discontinuance. If Tomko had a stipulation for voluntary dismissal from Paramount, Tomko would be eligible for a discontinuance under Pa.R.C.P. 229, which states, in relevant part:

“(a) a discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial.
“(b)(1) Except as otherwise provided in subdivision (b)(2), a discontinuance may not be entered as to less than all defendants except upon the written consent of all parties or leave of court after notice to all parties.” (emphasis added)

With regard to summary judgment, however, these stipulations for voluntary dismissal simply have no bearing on the court’s analysis.

IV. CONCLUSION

In light of the foregoing, viewing the facts in the light most favorable to additional defendant Paramount, the court concludes that this is by no means a case that is “free and clear from doubt.” Therefore, a grant of summary judgment is not appropriate.

ORDER

Andnow, August 15,2005, after argument, and in consideration of the motion and brief filed, defendant Tomko’s motion for summary judgment is hereby denied.