author: REILLY, P.J.,

text:
    Fye v. Woodland Forrest Products Inc.

      C.P. of Clearfield County,
    no. 95-1473-CD.

      James P. Coletta, for plaintiffs.

      Dale K. Forsythe, for defendant.

      Deborah P Powell and Donald M. Lund, for additional defendants.
    September 29, 1998
   REILLY, P.J.,

Dennis and Valerie Fye instituted the above-captioned civil action in order to recover money damages resulting from injuries sustained after Dennis Fye, plaintiff, fell on the stairs/catwalk allegedly under the control of Woodland Forrest Products Inc., defendant.

The facts of the case indicate that plaintiff is a truck driver, and on August 16, 1994, he was weighing a truckload of wood chips to be hauled for defendant at the defendant’s chipping mill near Clearfield. The accident occurred that day as plaintiff was ascending a set of steel steps to the weight scales of the chipping plant. Plaintiff apparently suffered a fractured foot and nerve, muscle, ligament, and soft tissue damage.

Alleging negligence, plaintiffs’ complaint argues that the improper installation and substantial disparity in elevation between the ground and walkway of the stairs/catwalk created a dangerous condition. Defendant has denied any negligence and liability resulting from plaintiff’s fall. Further, in 1997, Eichleay Constructors Inc., additional defendant, was brought into the litigation by defendant. Defendant claims that additional defendant had possession and control of the stairs and catwalk, and as contractor, was solely responsible for the construction and maintenance of them.

The crux of the dispute, however, centers on whether plaintiff was an employee of the defendant. Defendant claims that plaintiff was its employee or statutory employee, thus barring recovery based on negligence due to the Pennsylvania Workers’ Compensation Act. Plaintiff argues that he was an employee of Robert Raymond d/b/a R.J.’s Garage at all relevant times.

Defendant filed a motion for summary judgment on April 23, 1998. Oral argument on the issue of summary judgment was held on July 27, 1998 before the undersigned. Briefs by the parties having been timely received, the issue is now set for decision.

Plaintiff began working for R.J.’s Garage in May 1994, and was initially assigned to operate a dump trailer, which was used to haul stone. About a month later, R.J.’s decided to lease two trucks to the defendant, which would haul wood chips. Hauling wood chips from a processing plant requires compliance with certain regulations of the Public Utility Commission (PUC). Both parties agree that there was an oral agreement between defendant and R.J.’s Garage, which resulted in the placement of R.J.’s employees on defendant’s payroll. This temporary arrangement allowed R.J.’s to operate through the defendant, who had PUC authorization that R.J.’s lacked. The facts indicate that Bruce Graham, president of Woodland Forrest Products Inc., leased the trucks and drivers from Robert Raymond. Upon R.J.’s procurement of its own PUC license in May 1995, the employees were placed back on R.J.’s payroll.

The manner in which the parties conducted business while operating under their agreement is important to the resolution of the instant matter. Mr. Raymond told plaintiff of the arrangement with defendant because of the PUC problem, and plaintiff never had a discussion with Mr. Graham relating to his employment or the situation generally. R.J.’s told plaintiff that he would be hauling wood chips, and plaintiff was taken to defendant’s premises by Mr. Raymond. The wood chips were loaded at the chipping plant in Woodland, and the destination was Johnsonburg. Plaintiff learned what to do by observing, and stated that he did not receive any kind of instruction on the process of loading the chips from the shoots to the truck from either R.J.’s or the defendant.

The parties are in agreement as to the following; plaintiff’s checks were issued by defendant, plaintiff was paid in accordance to the pay cycle of defendant’s employees, plaintiff filled out W-2 and W-4 forms for defendant, and deductions were taken from plaintiff’s check for payroll taxes, workers’ compensation insurance, and social security. It is asserted that R.J.’s continued to pay workers’ compensation insurance on the plaintiff because of ease in bookkeeping. Two paychecks dated August 18 and August 25, 1994, were issued to plaintiff by defendant for the work done a week prior to each issuance. Plaintiff’s rate of pay while on defendant’s payroll was the same as previously established at R.J.’s. Apparently, Mr. Graham did not want to pay that rate initially, but the pay rate was set by the truck owner, Mr. Raymond. Because of the way the payments to R.J.’s were structured, defendant’s out-of-pocket expenses remained constant after the truckers from R.J.’s were placed on defendant’s payroll.

Both parties had the right to terminate plaintiff’s employment. Although plaintiff reported to R.J.’s to determine the number of loads to be hauled per week, this information was also provided to R. J. ’s or the drivers by the defendant. R.J.’s had no authority to decide the number of loads going out or the number of trips to be made, although the papers received by the plaintiff from the scale in Johnsonburg for the week were submitted to Mr. Raymond. The only instruction given to plaintiff by R.J.’s was the general caution given to all the drivers not to overload. Since the trucks were leased from R.J.’s and under their control, R.J.’s was responsible for repairs.

After plaintiff’s accident, another driver, Ron Hensel, was sent by R.J.’s to pick up the truck, which was parked near plaintiff’s home. Incidentally, Mr. Hensel was later dismissed by R.J.’s. As previously noted, R.J.’s obtained a PUC license, and the drivers were placed back on its payroll. In addition, at the time of the deposition of Mr. Raymond, R.J.’s Garage had apparently gone through chapter seven bankruptcy proceedings.

In considering a motion for summary judgment, the trial court must examine the entire record. Morin v. Traveler’s Rest Motel Inc., 704 A.2d 1085, 1086 (Pa. Super. 1997) (citing Merriweather v. Philadelphia Newspapers Inc., 453 Pa. Super. 464, 684 A.2d 137 (1996)). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Hopewell Estates Inc. v. Kent, 435 Pa. Super. 471, 475, 646 A.2d 1192, 1194 (1994) (citing Pa.R.C.P. 1035.1, 42Pa.C.S.). Summary judgment may be entered only in cases where the right is clear and free from doubt. Id. In addition, the record must be viewed in the light most favorable to the non-moving party, and all doubts as to 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, 145, 615 A.2d 303, 304 (1992) (citing Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991)).

The record contains excerpts from the depositions of Mr. Fye, Mr. Raymond and Mr. Graham, which were submitted as exhibits in connection with the motion for summary judgment. In accordance with Pa.R.C.P. 1035.3, relating to the non-moving party’s burden in response to a motion for summary judgment, plaintiffs have also supplemented their motion in opposition to summary judgment with excerpted deposition testimony.

The issue of whether an employer-employee relationship exists is a question of law. Northern Central Bank and Trust Co. v. W.C.A.B. (Kontz), 88 Pa. Commw. 277, 279, 489 A.2d 274, 276 (1985). Moreover, “[wjhere the facts are not in dispute, and the evidence leaves no sufficient ground for inconsistent inferences therefrom, the question as to who is the servant’s employer is a matter for the determination of the court, but, where the evidence presents an issue of fact, or different inferences can reasonably be drawn therefrom, the question is one for determination by the jury.” Mature v. Angelo, 373 Pa. 593, 598, 97 A.2d 59, 61 (1953).

The Pennsylvania Workers’ Compensation Act provides a remedy to employees injured while engaged in the furtherance of the business or affairs of the employer. 77 PS. §§411, 481. As defined by the Act, “injury” and “personal injury” includes “injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon, sustained by the employee, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employee’s presence thereon being required by the nature of his employment.” 77 P.S. §411(1). In short, an employer’s liability for injury to an employee under the Pennsylvania Workers’ Compensation Act is exclusive; therefore, employers and statutory employers are immune from negligence actions under the Act. See generally, Anskis v. Fischer, 326 Pa. Super. 374, 474 A.2d 287 (1984).

The existence of an employment relationship is determined by considering several factors: control of the manner in which the work is to be done; responsibility for result only; terms of agreement between the parties; nature of the work or occupation; skill required for performance; whether the one employed is engaged in a distinct occupation or business; which party supplies the tools; whether payment is by the time or by the job; whether work is a part of the regular business of the employer; and the right of the employer to terminate the employment at any time. Duquesne Truck Service v. W.C.A.B. (McKeesport Truck Service), 165 Pa. Commw. 145, 154, 644 A.2d 271, 275 (1994) (citing J. Miller Co. v. Mixter, 2 Pa. Commw. 229, 277 A.2d 867 (1971)). Other matters commonly considered in analyzing employment situations include: carrying of an individual as an employee on company payroll records; deduction of income taxes and social security contributions from his earnings; the payment of unemployment compensation; and the inclusion of an individual in workers’ compensation and other insurance coverage held by the company. Duquesne Truck Service at 154, 644 A.2d at 275-76.

Control is also an essential element in borrowed employee cases, and under the common-law definition of the master-servant relationship, whether a servant furnished by one person to another becomes the employee of the person to whom he is loaned is determined by whether “he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.” Ashman v. Sharon Steel Corp., 302 Pa. Super. 305, 314, 448 A.2d 1054, 1059 (1982). The right to control performance of work is the overriding factor in determining whether employee-employer relationship exists. JFC Temps Inc. v. W.C.A.B. (Lindsay), 545Pa. 149, 680 A.2d862(1996). Moreover, the existence of the right to control the work to be done and the manner of performance is critical irrespective of whether the control is exercised. Mature v. Angelo, 373 Pa. 593, 596, 97 A.2d 59, 60 (1953).

In “borrowed employee” cases, facts which indicate that “an employee remains in the service of his original employer include the original employer’s right to select the employee to be loaned and to discharge him at any time and send another in his place, the loaned employee’s possession of a skill or special training required by the work for the second employer, and employment at a daily or hourly rate for no definite period.” W.W. Friedline Trucking v. W.C.A.B. (Reynolds), 151 Pa. Commw. 38, 41, 616 A.2d 728, 729 (1992) (citing Daily Express Inc. v. Workmen’s Compensation Appeal Board, 46 Pa. Commw. 434, 436-37, 406 A.2d 600, 601-602 (1979)). Also useful in borrowed employee cases is “the fact that the second employer designates the work to be done and where it is to be done does not militate against the first employer-employee relationship.” W.W. Friedline Trucking, 151 Pa. Commw. at 41, 616 A.2d at 730. In addition, there is a factual presumption that when a person is engaged in the business of renting out trucks, and furnishes a driver as part of the hiring of the truck, that the driver remains in the employ of his original employer, and, unless that presumption is overcome by evidence that the borrowing employer in fact assumes control of the employee’s manner of performing the work, the servant remains in the service of his original employer. Id. at 41, 616 A.2d at 729. In W.W. Friedline Trucking v. W.C.A.B. (Reynolds), supra, Conn Trucking leased drivers and trucks to W.W. Friedline Trucking in order to take advantage of Friedline’s PUC permit. The court considered previously mentioned principles of the law and several factors, including the lease, Conn hired and paid the driver, driver worked for Conn before Conn leased the trucks to Friedline, Conn instructed driver where and when to pick up the load, Conn told driver where to deliver load, Friedline never specifically told driver to pick up a load at a certain time and Friedline did not decide which drivers would be used. Both James Conn and Wayne Friedline, the owners of the trucking companies in question, believed driver was an employee of Conn. Therefore, based on the conduct and testimony of the parties, Conn was determined to be the injured driver’s employer. W.W. Friedline Trucking v. W.C.A.B. (Reynolds), 151 Pa. Commw. 38, 616 A.2d 728 (1992).

The right to instruct a driver as to the route to take is also a guide for determining where the control lies. Wilkinson v. K-Mart, 412 Pa. Super. 434, 440, 603 A.2d 659, 662 (1992) (citing Lego v. Workmen’s Compensation Appeal Board, 66 Pa. Commw. 593, 599, 445 A.2d 1324, 1326-27 (1982)). Further, “the presence of the lessee’s logo on the side of the tractor raise[s] a rebuttable presumption that ‘the one to whom the logo refers is the employer of the operator.’ ” Id. With regard to control, the determining factor is the actual conduct of the parties even when a contractual provision is involved. Wilkinson, 412 Pa. Super, at 440-41, 603 A.2d at 662.

The borrowed employee doctrine is closely related to the statutory employer issue, and both may provide immunity for the employers under the Workers’ Compensation Act. Mathis v. United Engineers & Constructors Inc., 381 Pa. Super. 466, 554 A.2d 96 (1989). According to the Pennsylvania Workers’ Compensation Act, statutory employer status in a negligence action is controlled by 77 PS. §52, which states: “[a]n employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employee or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee.”

Statutory employer status focuses on contractors and does not include an owner or entrepreneur. Gniewek v. 1700 Place Apartments, 435 Pa. Super. 479, 646 A.2d 1196 (1994). Specifically, “contractor” does not include “a contractor engaged in an independent business, other than that of supplying laborers or assistants, in which he serves persons other than the employer in whose service the injury occurs, but shall include a subcontractor to whom a principal contractor has sublet any part of the work which such principal contractor has undertaken.” 77 P.S. §25. In establishing a statutory employment relationship, the following elements must be shown: “(1) an employer who is under contract with an owner or one in the position of an owner, (2) premises occupied by or under the control of such employer, (3) a subcontract made by such employer, (4) part of the employer’s regular business entrusted to such subcontractor and (5) an employee of such subcontractor.” Dougherty v. Conduit & Foundation Corp., 449 Pa. Super. 405, 410, 674 A.2d 262, 265 (1996) (citing McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930)).

Further,

“[Vjery great care . . . must be exercised before allowing an employer to avoid his liability at common law by asserting that he is a statutory employer. Section 203 of the Workmen’s Compensation Act, which was designed to extend benefits to workers, should not be casually converted into a shield behind which negligent employers may seek refuge.” Travaglia v. C.H. Schwertner & Son Inc., 391 Pa. Super. 61, 65, 570 A.2d 513, 515 (1989) (citing Stipanovich v. Westinghouse Electric Corp., 210 Pa. Super. 98, 106, 231 A.2d 894, 898 (1967)).

While a “statutory employer” avoids liability for negligence under certain conditions, this court need not explore this argument any further because the facts do not support that defendant falls within the applicable provisions of the Act.

In conclusion, who had the right to control the day-to-day activities of the plaintiff is crucial to the determination of this case. In determining plaintiff’s employer, the main issue is, given the facts presented, who had the right to control the work done by the plaintiff and the manner in which it was performed. Certainly, both parties had several factors to buttress their arguments. However, the material facts are not in dispute and indicate that Mr. Raymond hired plaintiff, showed him the premises of the defendant, established his pay rate, received the scale slips, and dealt with the situation after the accident, among other things. As to the peripheral matters, defendant did pay the plaintiff, and deductions were taken from plaintiff’s check for workers’ compensation and social security. Clearly, the arrangement between defendant and R.J.’s Garage was due to PUC regulations. The facts show that the parties knew this would be a temporary arrangement. Therefore, based on all the facts presented, this court must find that plaintiff was an employee of R.J.’s Garage at the time of the accident.

Wherefore, the court enters the following:

ORDER

Now, September 29, 1998, consistent with the foregoing opinion, this court enters the following findings:

(1) Motion for summary judgment filed on behalf of defendant, Woodland Forrest Products Inc., is hereby denied.
(2) Motion in opposition to summary judgment filed on behalf of the plaintiffs, Dennis and Valerie Fye, is hereby granted.

      . Valerie Fye’s claim in the instant case is based on her status as Dennis’ wife. Thus, for ease in understanding, plaintiff will refer to Dennis Fye.

      . 1915, June 2, P.L. 736, art. II, §203. Reenacted and amended 1937, June 4, P.L. 1552, §1; 1939, June 21, P.L. 520 §1.


source: Caselaw Access Project

author: SALUS, J.,

license: Public Domain

text:
    Long v. Larusso
    (No. 2)

      C.P. of Montgomery County,
    no. 94-22105.

      Clyde W. Waite, for plaintiff.

      William H. Pugh V, for defendant.
    April 30, 1998
   SALUS, J.,

This appeal arises from this court’s granting of the defendant’s motion for judgment of non pros, as per order dated August 1, 1997. The plaintiff then filed a petition to open and/or strike judgment on December 19, 1997. The court denied the petition and an appeal followed. The plaintiff’s four contentions as to why this court erred in granting the instant motion are as follows: First, the plaintiff claims that the motion for judgment of non pros was inappropriate because the above captioned case and Christopher Long v. Bruno P. Larusso, Mont. Co. docket no. 94-22103, are companion cases, therefore the docket activity in the Christopher Long case should be inferred to the James O. Long case; second, Long contends that the defendant caused the delay from which he has now profited through the granting of non pros; third, Long alleges that there occurred significant docket activity and “off’ docket activity; fourth, the plaintiff alleges that the defendant has failed to satisfy the three elements of Penn Piping Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992).

FACTUAL AND PROCEDURAL HISTORY

On November 22, 1992, at approximately 10 a.m., the plaintiff’s son, Christopher, was operating a motor vehicle owned by the plaintiff. The vehicle being operated by Long was struck from behind by a vehicle operated by the defendant, Larusso. Long’s vehicle was damaged in the accident. The complaint alleges that the sole cause of the accident and the damage was the negligent conduct of the defendant. In addition to property damage to the vehicle, a loss of business and business opportunities is also alleged as an injury suffered by the plaintiff.

The action was initiated by writ of summons. The summons was reissued on February 27,1995, and served on March 16. The plaintiff filed a complaint in this action on April 11, 1997. An answer with new matter was filed on April 29, 1997. The plaintiff then replied to the new matter. The defendant’s motion for judgment of non pros was filed on May 27, 1997. The motion was granted by this court by order of August 1, 1997. An immediate appeal followed on August 12, 1997, in contravention of Pa.R.C.P. 3051.

An opinion of this court was filed on September 23, 1997, setting forth the reasons for the entry of non pros. The Superior Court quashed the August 12 appeal by order of November 24, 1997. On December 19, 1997, a petition to open and/or strike judgment was filed by the plaintiff. The petition was denied and a second, and timely, appeal followed on April 17, 1998.

DISCUSSION

The standards for a trial court to grant a motion of non pros, although recently modified, are well settled. The decision to grant a motion of non pros is within the discretion of the trial court. For a court to dismiss an action for lack of docket activity three things must be shown: “(1) a party has shown a want of due diligence in failing to proceed with reasonable promptitude; (2) there is no compelling reason for the delay; and (3) the delay has caused some prejudice to the adverse party . . . .” Streidl v. Community General Hospital, 529 Pa. 360, 363, 603 A.2d 1011, 1012 (1992).

When this motion for the entry of non pros was decided, the trial court was to presume prejudice where a delay of at least two years occurred. Penn Piping Inc., 529 Pa. 350, 603 A.2d 1006 (1992); Blackburn v. Sharlock, Repcheck, Engel and Mahler, 433 Pa. Super. 581, 585, 641 A.2d 612, 614 (1994). This proposition, so actively employed since Penn Piping, has recently been abandoned by the Supreme Court of Pennsylvania in Jacobs v. Halloran, no. 18 E.D. appeal docket 1997 (Pa. April 2, 1998). Jacobs is clear that the rule it espouses “shall apply to all pending cases where the issue has been preserved.” Id., slip op. at 9. Because the plaintiff has alleged that actual prejudice has not occurred, the court will address that issue.

Furthermore, when judgment by non pros is entered, Pennsylvania Rule of Civil Procedure 3051 governs relief from the judgment’s entry. In order to open the judgment the following things must be demonstrated: (1) the petition is timely filed; (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay; and (3) there is a meritorious cause of action. Pa.R.C.P. 3051(b). The trial court’s determination of whether to open a judgment entered by non pros will be upheld absent an abuse of discretion. Pine Township Water Co. v. Felmont Oil Corp., 425 Pa. Super. 473, 477, 625 A.2d 703, 705 (1993).

Turning to the contentions of the plaintiff, we will first address the relevancy of the companion case of Christopher Long v. Bruno P. Larusso, Mont. Co. dkt. no. 94-22103. The plaintiff argues that the companion case and the instant case are really the same case and that the docket entries in Christopher Long should be applicable to the James O. Long case. This reasoning is unsound and would act to impinge upon the orderly administration of justice. The law provides several methods for consolidating or joining actions. The plaintiff utilized none of them. Instead, one of the actions was attended to with diligent prosecution, while the other was left to languish on the docket, as the unwanted and non-lucrative offspring of Christopher Long’s automobile accident.

Furthermore, contrary to counsel’s assertions, these cases were not mirror images of each other. The Christopher Long action involved physical injuries to the driver, while the James O. Long case involved property damage to that plaintiff’s motor vehicle. Also, as indicated by the caption, the plaintiffs are two different persons. There is no authority presented by the plaintiff that even so much as intimates support for the proposition that docket entries made in a case prosecuted by a different plaintiff, although arising from the same set of facts, but for different injuries, could be considered in a motion for non pros filed in a companion case. This argument is without merit.

The plaintiff’s second contention on appeal is that the delay in prosecuting the case was caused by the defendant’s conduct. Although it is true that a plaintiff may not have a judgment of non pros entered against him when the delay complained of is attributable to the defendant, Herb v. Snyder, 454 Pa. Super. 612, 620, 686 A.2d 412, 416 (1996) (delay caused by defendant failing to reschedule preliminary objections for argument), a plaintiff faced with such a scenario must take action to move the case forward. Pennridge Electric Inc. v. Souderton Area Joint School Authority, 419 Pa. Super. 201, 209, 615 A.2d 95, 99 (1992). Although it may be true that the defendant continually canceled depositions and that a deposition of the defendant was never taken due to the defendant’s failing health, it still does not alter the fact that the plaintiff made no effort on the docket to compel the taking of the testimony.

Third, the defendant complains that there occurred significant docket activity and “off’ docket activity and that such activity precludes the entry of a non pros judgment. Specifically, the plaintiff contends that, as proof of the diligent prosecution of the case, the parties have been involved in negotiations making settlement imminent. Settlement discussions and negotiations will not serve as an excuse for delay in prosecuting an action. Blackburn, 433 Pa. Super, at 584, 641 A.2d at 614. The obvious benefits of settlement discussions pale in the face of protracted negotiations. As the court noted in Pennridge Electric, the prospect of vigorous litigation helps keep a real possibility of settlement alive. When the threat of litigation passes, so too do serious settlement discussions. Pennridge Electric Inc., 419 Pa. Super, at 207, 615 A.2d at 98.

In the case sub judice, the plaintiff failed to keep the threat of litigation alive. Even if the defendant gave the impression, or even the promise, that settlement was imminent, it is still the burden of the plaintiff to prosecute his case until settlement is reached. Prompt prosecution of a case may necessarily entail initiating motions to compel, or even sanctions, if the defendant stalls. The plaintiff, in this case, did not fully prosecute his action.

The court is mindful of the recent Supreme Court case of Marino v. Hackman, no. 193 M.D. 1996, 1998 WL 151083 (Pa. April 2, 1998). There, the Supreme Court held that non-docket activity may be considered when deciding whether a case should be terminated pursuant to Rule of Judicial Administration 1901.M at *1. In Marino, the plaintiff’s original attorney died and was substituted with a second attorney named Arthur Rabelow. Rabelow eventually abandoned the case, last telling the plaintiffs that settlement negotiations were proceeding. Rabelow never contacted the plaintiffs and they were left to hire new counsel. Counsel then spent several months trying to obtain files from Rabelow and eventually had to drive over 200 miles in order to obtain them. Letters were also exchanged between counsel evidencing the existence of settlement discussions. Id.

The trial court in Marino terminated the case pursuant to the local Rule of Judicial Administration 1901 and the Superior Court affirmed. The Pennsylvania Supreme Court reversed. The Supreme Court noted that the case had an “unusual” amount of docket activity and that “any one of the cited factors would be insufficient to salvage this case.” Marino, no. 193 M.D. 1996, 1998 WL151083 at *3 (Pa. April 2,1998). In “combination,” the Supreme Court found that each singularly insufficient factor may act to prevent termination. Id.

Here, the plaintiff points only to letters exchanged between counsel expressing an interest in settlement and in taking the deposition of the defendant. The case sub judice is devoid of the same unusual circumstances as were present in Marino and rests solely on factors the Marino court found insufficient when standing alone. See id. The delay in the case at bar was due to the plaintiff’s failure to compel the taking of depositions and being placated with the prospect of settlement. This caused the plaintiff to not pursue his cause with due diligence.

The plaintiff finally contends that the three elements for the entry of judgment of non pros have not been met. The above discussion regarding “off’ docket activity touches upon the first element, that is, a want of due diligence by not prosecuting the case with reasonable promptitude.

Regarding the second element, that no compelling reason exists for the delay, the plaintiff argues that there are numerous compelling reasons. The court disagrees with this characterization. Other than the defendant failing to appear for depositions and the possibility of imminent settlement, the plaintiff offers no other compelling reason for the delay. A reason for delay will be compelling only if it is the cause of the delay. MacKintosh-Hemphill International Inc. v. Gulf & Western Inc., 451 Pa. Super. 385, 394, 679 A.2d 1275, 1279 (1996). Also, the reason for the delay must be one the plaintiff could not have prevented. Here, the plaintiff had many procedural options available to at least attempt to prevent the alleged repeated delays by the defendant.

To address the plaintiff’s argument that actual prejudice has not been demonstrated, we refer the plaintiff to the suggestion of death of Bruno P. Larusso, filed April 29, 1997.' The death of or unexplained absence of material witnesses is sufficient prejudice to allow for the entry of non pros. See James Brothers Lumber Co. v. Union Banking and Trust Co. of DuBois, 432 Pa. 129, 132, 247 A.2d 587, 589 (1968); Carroll v. Kimmel, 362 Pa. Super. 432, 524 A.2d 954 (1987). Furthermore, the Supreme Court in Jacobs adopted the Superior Court’s definition of prejudice as “any substantial diminution of a party’s ability to properly present its case at trial.” Jacobs, no. 18 E.D. appeal docket 1997, slip op. at 10 (Pa. April 2, 1998), citing Metz Contracting Inc. v. Riverwood Builders Inc., 360 Pa. Super. 445, 451, 520 A.2d 891, 894 (1987). The driver of the vehicle that allegedly struck the plaintiff’s vehicle is certainly a material witness and his death has resulted in at least some prejudice to the defense.

For all of the forgoing reasons, the court’s denial of the plaintiff’s petition to open and/or strike the entry of judgment of non pros should be affirmed, as a reasonable explanation for the delay was not forthcoming and the delay resulted in prejudice to the defense.

      . According to Pa.R.C.P. 3051, a petition to open and/or strike judgment is the,proper procedural method to challenge the entry of judgment of non pros. The denial of the petition is final and appealable.

      . See plaintiff’s concise statement of matters complained of on appeal, filed April 24, 1998.

      . The plaintiff also notes that the presumption of prejudice adopted in Penn Piping has been abandoned. Jacobs v. Halloran, no. 18 E.D. appeal docket 1997 (Pa. April 2, 1998).

      . Order, filed July 8, 1997.

      . See plaintiff’s response to defendant’s motion for entry of judgment of non pros, paragraph 23(c).

      . Specifically, the plaintiff alleges that “the defendant’s repeated unavailability for depositions due to the defendant’s failing health” caused the delay. See plaintiff’s response to defendant’s motion for entry of non pros at 10.

      . The Pennsylvania Supreme Court held that the same standards apply for the entry of non pros as for judicial termination of suits under Rule of Judicial Administration 1901. See .Shope v. Eagle, 1998 WL 149458 at *3 (Pa. April 2, 1998).

      . This is the third element that must be demonstrated before the trial court may grant a motion for the entry of judgment of non pros. Jacobs, no. 18 E.D. appeal docket 1997, slip op. at 9 (Pa. April 2, 1998).

      . Black’s Law Dictionary defines a material witness as “[a] person who can give testimony relating to a particular matter no one else, or at least very few, can give.” Black’s Law Dictionary 977 (6th ed. 1990).


author: OTT, J.,

text:
    Rodgers v. Bellam

      C.P. of Chester County,
    no. 95-05873.

      Richard D. Lucente, for plaintiff.

      J. Michael Kvetan, for defendant.
    September 22, 1998
   OTT, J.,

This trial was a result of an appeal from arbitration at which the board of arbitrators awarded plaintiff $27,500. The jury awarded the plaintiff zero damages and he now files post-trial motions requesting a new trial. Plaintiff contends that the verdict was against the weight of the evidence.

It was stipulated that the defendant, James H. Bellam Jr., caused an automobile accident when his car struck the plaintiff’s car in the rear. The trial was for damages only.

SUMMARY OF THE FACTS

On July 29, 1994, the plaintiff, Michael Rodgers, was on vacation when he was rear-ended while stopped at a red light. He went to Burdette-Tomlin Hospital in Cape May Courthouse, New Jersey, on July 31, and his cervical spine was x-rayed. The x-ray showed no evidence of fracture, subluxation or dislocation. He was sent home with a cervical collar and told to take Motrin. On August 2, 1994, he presented to Dr. Mahaveer P. Prabhakar, complaining that the pain was not relieved, and x-rays were taken of his lumbar spine. A letter report from this doctor was entered into evidence and the doctor reported that, as a result of his examination, he diagnosed significant cervical and lumbar sprain and strain. He prescribed narcotics and muscle relaxants, and advised plaintiff to see an orthopedist when he returned home.

On August 8, 1994, plaintiff reported to Robert Linn Medical Associates for treatment. He reported that he was still in constant pain. He was seen by Dr. Silverman of the Linn group, who reported that his examination revealed severe tenderness and spasm of the cervical paraspinal muscles, the trapezius muscles, and the lumbar muscles, with a severe restriction of motion. The diagnosis was:

(1) Acute post-traumatic cervical strain and sprain.
(2) Left cervical radiculopathy.
(3) Acute post-traumatic lumbar strain and sprain.
(4) Left lumbar radiculopathy.
(5) Acute post-traumatic trapezius myofascitis.
(6) Acute post-traumatic dorsal strain and sprain.

On August 19,1994, the plaintiff was seen by Stephen E. Sacks D.O., a neurologist who basically confirmed Dr. Silverman’s diagnosis. EMGs were ordered and the results were offered into evidence. The results of these tests were abnormal, correlating with a C5-6 cervical radiculopathy involving the left arm. An MRI was done and that test showed a mild cervical spondylosis but no herniation.

When Dr. Silverman saw the patient on September 6, 1994, he was still complaining of pain and a weak left-hand grip. The plaintiff was referred to an orthopedic surgeon for evaluation.

On September 8, 1994, the plaintiff was seen by Dr. Michael C. Saltzburg, an orthopedic surgeon, and Dr. Silverman’s diagnosis was once again confirmed. Plaintiff was ordered to continue with physical therapy as had been ordered when initially seen in August. When Dr. Silverman last saw the plaintiff on February 15, 1995, after monthly follow-up care, the prognosis was guarded. Dr. Silverman reported that the radiculopathy remained, and the bulging or herniated lumbar disc with persistently tight muscles might be permanent.

In evidence at the trial were: emergency room records from Burdette-Tomlin Memorial Hospital for services on July 31, 1994; reports from Mahaveer P. Prabhakar M.D.; reports from Robert Linn Medical Associates; reports from Delaware Valley Rehabilitation Center Inc., which performed the physical therapy; reports from Dr. Stephen E. Sacks D.O. (neurologist); and reports from Dr. Saltzburg (orthopedic surgeon).

Dr. Silverman testified by deposition, basing his testimony on his own treatment of the patient as well as the reports reviewed from the other doctors as we discussed above. After discussing the various tests that plaintiff had undergone and elaborating on the reports which he had reviewed, Dr. Silverman, the treating physician and expert, testified that his final diagnosis was “a chronic cervical strain and sprain; a chronic trapezius myofascitis; a chronic lumbar strain and sprain; a left C5-6 radiculopathy; a bulging disc at L5-S1; he has a sciatica condition, which may be musculoskeletal or neurologic.” He was then asked,

“Q. Now, doctor, do you have an opinion to a reasonable degree of medical certainty as to whether the automobile accident of July 29, 1994 was a competent producing cause of the injuries for which you and the other physicians have treated Michael Rodgers?
“A. Yes. Going from the emergency room visit on July 31, 1994, through the care at our offices, through the care rendered by other physicians, such as specialists we sent him to, and the doctors who saw him afterwards, all of his symptoms were consistent and derived definitely from the accident of July 29, 1994.
“Q. Do you have an opinion to a reasonable degree of medical certainty as to whether the diagnosed injuries are a competent producing cause of pain?
“A. In my opinion, they are.
“Q. Do you have an opinion to a reasonable degree of medical certainty as to whether the diagnosed injuries are a competent producing cause of disability?
“A. They do not disable him from work. They certainly, by history, at least, disable him from certain activities, such as mentioned above, such as yard work and athletics and so forth.
“Q. Now, there was an — was that opinion rendered to a reasonable degree of medical certainty?
“A. It is.
“Q. Now, you mentioned earlier, though, that there was a period of time following this accident when he was unable to perform his job?
“A. Yes. And it was derived from the fact that he stated he was disabled, at the time he first saw us, from the accident. And I recorded later that — looking through my notes, that he had returned in mid-September of 1994. So he had been out from July 29 to mid-September. About six weeks, I would judge.
“Q. So, doctor, do you have an opinion to a reasonable degree of medical certainty as to whether these diagnosed injuries, at least initially, were a competent producing cause of disability?
“A. Yes, they were.
“Q. And that would be — and your response would be?
“A. They were the cause.
“Q. Of that—
“A. Of the disability, yes.
“Q. That you’ve described from July 29 through mid-September 1994?
“A. That’s correct.
“Q. Do you have an opinion to a reasonable degree of medical certainty as to the likelihood that Michael Rodgers will continue to experience symptoms of neck pain with radiation into his left arm and lower back pain with radiation into his left leg caused by these physical injuries?
“A. I do have an opinion.
“Q. And that is?
“A. That is, he will continue. After four years, there is little likelihood that these symptoms will go away.
“Q. Do you have an opinion to a reasonable degree of medical certainty as to whether the injuries affected Michael Rodgers’ work and life activities in the past?
“A. Well, they certainly have. I mean just consider, if you will, that a person is in an accident and then winds up seeing doctors off and on for the next four years. That certainly has a lot of effect on people’s lives, just in terms of trying to make appointments to doctors and rehab centers and so forth and tests, all of which is—
“Plus, whatever you can’t do in terms of your normal daily life during that time. It’s very disruptive.
“Q. And, of course, you have noted the activities which he has indicated have been affected as a result of this accident and his injuries?
“A. Yes. I think I’ve mentioned a couple of times, with is sports and his housework and so forth, or even playing with his son, have been limited.
“Q. Is that opinion to a reasonable degree of medical certainty?
“A. Is what opinion?
“Q. Is you opinion that — these activities that you’ve described earlier on, which you didn’t necessarily allude to here, is it your medical opinion to a reasonable degree of medical certainty that these injuries have, in the past, affected his activities in work?
“A. It’s by history only, there’s no way of evaluating that further. By history, yes.
“Q. Okay. And you’ve seen no records or you’ve not been shown anything which would indicate to the contrary?
“A. Yes, that’s true.
“Q. You found Mr. Rodgers to be a very credible person throughout the time that you saw him?
“A. I have had no reason to doubt his credibility on any occasions.
“Q. And the records that you’ve seen all along from the time he was seen initially at the hospital until your most recent visit in 1998 were consistent, in terms of his complaints, the clinical findings and what’s happened with him?
“A. They were, entirely.
“Q. Now, doctor, do you have an opinion to a reasonable degree of medical certainty as to the likelihood that these injuries will continue to affect Mr. Rodgers’ work and social activities in the future?
“A. Yes. As I mentioned before, I see no reason to believe that his symptoms will change a lot.
“Q. Have all the opinions you’ve rendered here today in this direct examination been to a reasonable degree of medical certainty?
“A. Yes.” (Deposition testimony 4/9/98, pp. 57-62.)

At argument on this motion for a new trial, the defense attorney argued that the evidence that would support the jury verdict was his cross-examination of the doctor. On cross, counsel ascertained that the doctor’s fee for testifying was $1,600, that he had charged the plaintiff approximately $1,525 in medical bills, that Dr. Silver-man was not the plaintiff’s “family doctor” (however, it was clear that he was his treating and referring physician), and that although the plaintiff was disabled from work for about six weeks following the accident, at the time of discharge in 1995, he was doing a limited workout at a health club. (Deposition testimony 4/9/98, pp. 63-78; trial exhibits P-19 & P-19(a).) He also illustrated that there was evidence of degenerative change in the cervical spine of the plaintiff at C-5 and 6. This attempt at impeachment of the plaintiff’s witness does not serve, without more, to outweigh the evidence presented in the form of other reports, as well as the bulk of the medical testimony and that of the plaintiff.

DISCUSSION

This judge has the discretion to determine whether or not a new trial should be granted based on the jury having rendered a verdict that is obviously against the weight of the evidence. Brodhead v. Brentwood Ornamental Iron Company Inc., 435 Pa. 7, 255 A.2d 120 (1969). In the case sub judice, a case where liability was admitted, we have carefully reached the conclusion that we cannot let the verdict stand. There was no testimony presented by the defendant to counterbalance the medical evidence from at least four doctors who reached the same core medical conclusions that the plaintiff was injured by the accident and that the injuries were painful and impaired physical function. In order to reach a zero verdict, the jury would have had to disbelieve all of the testimony of the plaintiff and his treating physician as well as four other doctors. A verdict must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by the evidence at trial; and although, as charged, a jury may ignore or disbelieve some or all of the testimony of any witness, the verdict must not be so disproportionate to the uncontested evidence as to defy common sense and logic. Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995). We believe that, here, the jury’s verdict was disproportionate to the uncontested evidence and the zero verdict was unjust. See Fillmore v. Hill, 445 Pa. Super. 324, 665 A.2d 514 (1995). We do not exercise that discretion lightly, holding in highest regard the integrity of the jury system in our way of justice, but are constrained to order the following:

ORDER

And now, September 22, 1998, upon consideration of the plaintiff’s post-trial motion, a new trial is hereby granted.

      . The plaintiff chose not to have a transcript of the plaintiff’s testimony, but rather to rely on the doctor’s exhibits and deposition. It can be assumed that the substance of the plaintiff’s testimony was favorable to himself.


author: WETTICK, J.,

text:
    Kaye v. Mutschler

      C.P. of Allegheny County,
    no. GD96-14974.

      Ronald W. Crouch and James D. McMichael, for plaintiffs.

      Thomas M. Hardiman, for defendant.
    February 11, 1999
   WETTICK, J.,

In a 1994 action, Paul Mutschler obtained a judgment against Mineral & General Investments Ltd. (M&G), in the amount of $431,589 following a non-jury trial in which I entered a verdict in Mr. Mutschler’s favor. Mr. Mutschler has not been able to collect the judgment. M&G is in liquidation.

In this 1996 action, Mr. Mutschler previously raised numerous claims against Lorasen Holdings Inc. Recently, Mr. Mutschler has filed a motion to amend his complaint to raise two additional counts against Lorasen for the purpose of collecting from Lorasen the amount of the M&G judgment. This motion, which Lorasen opposes, is the subject of this opinion and order of court.

I.

In Proposed Count 30, Mr. Mutschler seeks to raise a cause of action which he characterizes as “liability as garnishee.” In this proposed count, Mr. Mutschler alleges that (1) in the 1994 action, he instituted garnishment proceedings against Lorasen; (2) pursuant to Pa.R.C.P. 3144, he served interrogatories in which he asked Lorasen if it owed M&G any money; (3) Lorasen answered “no” to the interrogatories; and (4) Lorasen’s answers are inaccurate because Lorasen is a debtor of M&G. Mr. Mutschler bases the fourth allegation on discovery responses which, according to Mr. Mutschler, show that M&G, through another corporation, made working capital advances to Lorasen, and that Lorasen has not provided any documentation to support its claims that the loans were later repaid.

Through Proposed Count 30, Mr. Mutschler is seeking to obtain a judgment against Lorasen as a garnishee in possession of assets subject to execution in a separate lawsuit from that in which it obtained its judgment based on allegations that Lorasen is in possession of assets subject to execution. Lorasen contends that Proposed Count 30 fails to state a cause of action because there is no Pennsylvania legislation or case law which permits a judgment creditor to bring a separate lawsuit against a third party based on allegations that the third party owes a debt to the judgment debtor and/or has property of the judgment debtor. Mr. Mutschler responds to this contention with the following argument: There is nothing in the Pennsylvania Rules of Civil Procedure governing garnishment proceedings that bars the institution of a separate lawsuit and Lorasen has not cited any case law barring a judgment creditor from suing a third person having possession of property of the judgment debtor.

However, the only rights that the law creates on behalf of a judgment creditor against a third party possessing property of the judgment debtor are those set forth in the Pennsylvania Rules of Civil Procedure governing enforcement of money judgments. These rules also provide the remedies that are available.

Under Pa.R.C.P. 3101(b), a person is a garnishee deemed to have possession of the property of the defendant if this person owes money to the defendant, has property of the defendant, holds as a fiduciary property in which the defendant has an interest, holds legal title to the property of the defendant or owns or possesses real property subject to a mortgage, judgment, or lien in which the defendant has an interest. Under Rule 3144, the plaintiff may serve interrogatories directed to the garnishee respecting property of the defendant in the garnishee’s possession. If the plaintiff contends that the answers to the interrogatories are not accurate, the plaintiff’s remedy is to request the court to schedule a trial in which it seeks the entry of a judgment for the plaintiff and against the garnishee. See Pa.R.C.R 3145 and 3147. The procedure between the plaintiff and the garnishee shall, as far as practicable, be the same as though the interrogatories were a complaint and the garnishee’s answer was an answer to the complaint. See Rule 3145. Also see, 8 Goodrich-Amram 2d §3145(a):2 at 460-61 (1993).

As I previously stated, in the 1994 action, Mr. Mutschler served interrogatories which asked Lorasen whether it owed money to M&G and whether it held property in which M&G had an interest. Under Pennsylvania case law, garnishment proceedings “may be used to determine whether the garnishee owes a debt to the judgment debtor, or has property of the judgment debtor.” Garden State Standardbred Sales Co. v. Seese, 417 Pa. Super. 15, 18, 611 A.2d 1239, 1241 (1992). (citation omitted) Thus, if Mr. Mutschler is dissatisfied with Lorasen’s answers, Mr. Mutschler may (1) put the issue down for trial immediately, (2) move for judgment for any amount admitted to be due under Pa.R.C.P. 3146(b) and proceed to trial for any remainder, or (3) attack the form of the answers and seek additional information from the garnishee. Hanchey v. Elliott Truck Brokerage Company Inc., 421 Pa. 131, 134, 218 A.2d 743, 745 (1966).

Since garnishment proceedings instituted in an action in which a judgment has been entered are the only remedy which the law provides to a judgment debtor to collect a debt out of property of the judgment debtor in the hands of a third party, I deny Mr. Mutschler’s request to file an amendment raising the claims set forth in Proposed Count 30.

II.

In Proposed Count 31, Mr. Mutschler seeks to raise a separate count which he has described as “alter ego liability.” This proposed count is based on allegations that Lorasen is a wholly-owned subsidiary of M&G, that the same persons operate Lorasen and M&G, and that Lorasen is the alter ego of M&G. Proposed Count 31 further alleges that M&G is a wholly-owned subsidiary of Soldus Holdings and that Soldus Holdings has utilized M&G as a shell corporation to invest in the United States operations through Lorasen holdings.

In Proposed Count 31, plaintiff seeks to apply the alter ego theory of piercing the corporate veil in order to proceed against Lorasen for the debts of M&G. However, the alter ego theory is applicable only where the holder of a judgment against a corporation seeks to impose liability against the controlling owner. See Miners Inc. v. Allpine Equipment Corp., 1998 WL 802120 (Pa. Super. Nov. 20, 1998). The piercing of the corporate veil is a remedy through which liability for the acts of the corporation may be assessed against its owner. Village at Camelback Property Owners Association Inc. v. Carr, 371 Pa. Super. 452, 460-61, 538 A.2d 528, 532-33 (1988), aff’d, 524 Pa. 330, 572 A.2d 1 (1990). A party seeking to pierce the corporate veil must show that the corporation liable to this party is merely a sham corporation constituting a facade for the operation of its owners. Iron Worker’s Savings and Loan Association v. IWS Inc., 424 Pa. Super. 255, 271-72, 622 A.2d 367, 375-76 (1993). The equitable doctrine of piercing the corporate veil is important to prevent the use of a corporation as “a shield for illegal and wrongful conduct....” Brindley v. Woodland Village Restaurant Inc., 438 Pa. Super. 385, 390 n.5, 652 A.2d 865, 868 n.5 (1995).

In the present case, Mr. Mutschler is not seeking to pierce the corporate veil of a corporation that allegedly controlled M&G. Instead, he seeks to proceed against a corporation that M&G controlled. However, the doctrine does not apply because it covers only the situation in which the judgment creditor of a corporation seeks to proceed against the owners of the corporation.

The doctrine of piercing the corporate veil is not available to the holder of a judgment against the parent corporation because, through execution proceedings against the parent corporation, the holder of the judgment can obtain the stock of the subsidiary. Also, if Mr. Mutschler contends that M&G fraudulently transferred its Lorasen stock to a third party, its remedy is to institute proceedings against the third party to set aside the fraudulent conveyance.

It appears that Mr. Mutschler may be asserting that M&G’s parent company created a structure for conducting business within the United States that utilized sham corporations. If this is the case, any causes of action based on alter ego liability must be raised against M&G’s parent rather than a corporation which M&G allegedly controls.

For these reasons, I enter the following order of court:

ORDER

On February 11, 1999, it is hereby ordered that defendant’s motion to lift stay and amend complaint is denied, and defendant’s request to file Proposed Counts 30 and 31 is denied.

      . Proposed Count 30 does not raise claims that M&G fraudulently conveyed property to Lorasen. If this were a proceeding to invalidate transfers from the judgment debtor to a third party, garnishment proceedings cannot be used. The judgment creditor’s remedy, instead, would be an equity action to set aside the conveyance. Garden State Standardbred Sales Co. v. Seese, supra (court ruled that garnishment proceedings may not be used to invalidate an allegedly fraudulent conveyance).


author: BERNSTEIN, J.,

text:
    Lavish v. Archbold Ladder Co.

      Leah B. Perry and Robert M. Britton, for defendants.
    March 19, 1999
   BERNSTEIN, J.,

Plaintiffs Edward and Catherine Lavish filed this action against defendants Archbold Ladder Company and Goodbuys Inc. d/b/a Mr. Goodbuys on September 15,1995. Plaintiffs sought damages against defendants for products liability, breach of warranty, and negligence resulting from plaintiff Edward Lavish’s fall from a ladder manufactured by defendant Archbold and sold to plaintiffs by defendant Goodbuys. On January 16, 1996, a default judgment was entered in favor of plaintiffs and against defendant Goodbuys.

Trial began on March 9, 1998. On March 16, 1998, a jury rendered a verdict in favor of plaintiffs and against defendants in the amount of $200,000. Following the verdict, defendant Archbold timely filed a motion for post-trial relief, asking this court to grant judgment n.o.v., a new trial, or remittitur. On April 15, 1998, this court granted plaintiffs’ petition for delay of damages, molding the verdict to $220,116.50. On December 3, 1998, post-verdict motions were argued. On January 19,1999, this court granted defendant’s motion for post-trial relief and ordered a new trial as to defendant Archbold only. From this order, plaintiffs timely appealed.

The first issue presented is whether this court erred in allowing plaintiffs’ expert, Dr. Scott A. Snyder, to testify after Dr. Snyder conceded that he was not an expert in wood. The second issue presented is whether this court improperly permitted plaintiffs’ counsel to cross-examine John Hatfield, the former president of Archbold Ladder Company, on prior accidents involving defendant Archbold. For the reasons that follow, the court found Dr. Snyder unqualified to provide expert testimony concerning the critical issues in this case, and the ruling granting a new trial should be affirmed.

In 1988, plaintiff Edward Lavish purchased a standard A-frame wooden ladder, manufactured by defendant Archbold, from defendant Mr. Goodbuys. On May 4, 1995, plaintiff used that ladder to remove caulk from newly installed windows on his house. While standing on the third step of the ladder and working on the lower left-hand window, the ladder broke and plaintiff fell to the ground. He was taken to JFK Hospital where he remained hospitalized until May 6, 1995.

At trial, plaintiffs’ only expert was Dr. Scott A. Snyder, an expert in mechanical engineering, product design, and failure analysis. Dr. Snyder testified that the ladder was defective because of the wood. Dr. Snyder demonstrated the wood to the jury on direct examination:

“In addition to the design, the weakness in the design, the wood itself had several characteristics which would make it weaker than a normal piece of wood; one being that, in fact, around this — you can’t really see it on the other side. The grain, which — ideally, you’d love to have straight grain in this design. That would be the strongest piece of wood with the highest strength aligned with the way this is building. This grain deviates from straightness, and even more so on the other side. We can turn this around. I know it’s difficult to see. At this comer, this grain deviation exceeds what would be an acceptable slope, and provides another irregularity around this joint (indicating).
“The second thing is, if you look at the cross-section of this piece, and you follow — you imagine, in a tree growing like this, you follow these growth rings; then you trace these out (indicating). They form an ellipse, rather than a circle. What that’s indicative of is something — a normal tree would grow in a circular growth pattern. Something was stressing in this particular piece of lumber; whether it was a branch growing or the tree was leaning over. What that’s called is compression wood. And the indication of compression wood also means that it was a weaker piece of wood.
“The other evidence of that compression was an exceptionally high density of this piece of wood, way more than average; 30 to 40 percent higher than a typical piece of southern yellow pine. That, alone, with the elliptical growth rings, indicates compression. So that also weakens the design.
“Then the third thing was the choice of lumber cut in this piece. Once again, if you imagine a cross-section of a tree and you’re looking down at it, with the growth rings coming out, there’s a couple ways you can cut it, cut a board out of a tree. One is, you can cut it tangent to those growth rings, so you cut it off the top, like that (indicating). What you would see on the side is a sort of grainy cross-section of several growth rings. You can cut it this way, which is called the quarter sawn. The way I just talked about was flat sawn. Quarter sawn would be right through the center, and perpendicular to the growth ring; and you’d see grains like this (indicating). Then there’s in-between cuts, which may refer to rift sawn or bastard sawn. Why that’s relevant is, the degree in this direction, as you — perpendicular to the growth rings out, it’s stronger in that direction than it is tangential to the growth rings. So if you were going to bend the board, you like to bend it into the direction as the growth rings head out, rather than along the circle of growth rings. So the way this wood was cut was actually rift sawn. It was not flat sawn. So that, in fact, also created a weaker piece, in bending that, than you’d like to have, ideally. In fact, many of the ladders inspected — I went out and looked at ladders in stores. And most of the pieces were flat sawn, that I saw in those cases.”

Dr. Snyder continued to offer detailed testimony on the characteristics of the wood that caused the ladder to break:

“Mr. Reger: . . . could you tell the jury what is compression wood, in English?
“The Witness: It’s basically prestressed wood.
“Mr. Reger: What does that mean?
“The Witness: There’s some external; force acting within the tree or on the tree that — to cause the wood to, essentially, grow with some compressive force on it.
“Mr. Reger: Dr. Snyder, is compression wood weaker or stronger than noncompression wood?
“The Witness: It would be weaker.
“Mr. Reger: Now you mentioned something about the growth rings. What is the effect of the growth rings in this particular case upon the strength of the ladder?
“The Witness: the number of growth rings or . . .
“Mr. Reger: Or the growth ring and, actually, the gain deviation as well.
“The Witness: Well the growth rings were just an element or evidence of compression wood; so they point to compression wood. The grain deviation itself, as you know, if I take this grain and, now, essentially tilt it, you can imagine it starts to get weaker.
“You know, if I had a tree grain running like this, essentially, I don’t have my strongest part of the wood aligned, because wood is an orthotropic material; and what that means, in simple terms, is, it has different properties and different directions. So you want the grain aligned with the highest load path. So as I deviate off of that, I’m losing strength in this piece. And it could be as much as 30, 40 percent in this case. . . .
“Mr. Reger: Dr. Snyder, referring you, in particular, to the fracture, I am pointing to an area — I will twist it toward the jury. (Pause.) Right here. See my finger (indicating)?
“The Witness: Yes.
“Mr. Reger: What does that show?
“The Witness: That’s a — that’s a grain deviation. It’s beyond what we would consider acceptable.
“Mr. Reger: What is the effect of a gain deviation? Does it make it stronger or weaker?
“The Witness: Weaker.
“Mr. Reger: Now you also mentioned elliptical patterns in the wood.
“The Witness: Right.
“Mr. Reger: Could you show up close, to the jury, what you’re referring to?
“The Witness: Yeah. Once again, if you — if you trace these growth rings out, and basically laid the signature onto a shape, it would be an elipse [sic]; not a circle. This is an elliptical pattern. And, once again, that indicates some external force acting on the tree of compression wood.
“Mr. Reger: What is the effect of the external force? Does it make the wood stronger or weaker?
“The Witness: It’s weaker.”
Dr. Snyder specifically testified that, in his opinion, the nature of the wood used in the ladder that plaintiff purchased caused the ladder to be defective. On direct examination, he said:
“Mr. Reger: Dr. Snyder, you’re not saying, are you, that all wood ladders are defective, are you?
“The Witness: No, I’m not.
“Mr. Reger: What was it about this ladder that caused the failure?
“The Witness: Once again, the weakness, the inherent weakness in the design, coupled with the weak characteristics of this wood.”
And later he said:
“Mr. Reger: In your analysis of the ladder, in your opinion, did grain deviations contribute to the failure of this ladder?
“The Witness: I believe so.”

Dr. Snyder holds a bachelor’s degree in mechanical engineering, a Ph.D. in engineering, and a professional mechanical engineering license. For nine years, he has designed products and subsystems in the aerospace industry. He presently serves as a mechanical engineer for Lockheed Martin Space Division. Dr. Snyder has credentials in failure analysis and teaches product design at the graduate level at the University of Pennsylvania.

Dr. Snyder testified that he is familiar with the physical properties of materials, including wood, steel, and graphite. Although he has never designed any wood products or ladders, he testified that he has designed products more complex than wooden ladders and has worked with materials with properties similar to wood. Dr. Snyder has never worked for any company manufacturing wooden ladders. He is generally familiar with normal design verification test practices, but he conceded that he is “not specifically” familiar with design verification test practices for wooden ladders.

During voir dire on qualifications, Dr. Snyder admitted that he has no expertise in either wood or wood technology. Dr. Snyder testified on cross-examination:

“Mr. Toensmeier: [Dr. Snyder], none of your degrees have anything to do with wood, do they, sir?
“The Witness: No.
“Mr. Toensmeier: Do you consider yourself to be an expert in wood, wood technology?
“The Witness: No.”

Dr. Snyder made further concessions concerning his qualifications:

“Mr. Toensmeier: Have you ever published any articles in any refereed professional journals on wood products or wood technology?
“The Witness: No, I have not.
“Mr. Toensmeier: Have you ever published any texts or any chapters in texts on wood or wood technology?
“The Witness: No.”

Dr. Snyder also conceded that he has neither taught nor lectured on wood, wood products, or wood technology. Neither has he ever consulted on the design of wood products.

In addition to conceding that he is not an expert on wood products, Dr. Snyder admitted that he lacks expertise in ladder design or manufacturing. He testified:

“Mr. Toensmeier: Do you consider yourself an expert in ladder manufacture, and design ladders?
“The Witness: I consider myself an expert in design, product design.
“Mr. Toensmeier: I understand that. My question is, do you consider yourself an expert in ladder manufacturing and design of ladders?
“The Witness: Not specifically ladders.”

Following these admissions, defense counsel objected to Dr. Snyder’s qualification to testify as an expert in this case. The court overruled the objection and ruled that Dr. Snyder was qualified to provide expert testimony in the fields for which he was being offered, namely mechanical engineering, product design, and failure analysis.

Dr. Snyder twice inspected the ladder and reviewed several publications before formulating an opinion in this case. Dr. Snyder reviewed the Wood Engineering Handbook of the U.S. Forest Products Laboratory and other literature. Dr. Snyder based his opinion at trial entirely on the type and characteristics of the wood used in the ladder. Dr. Snyder testified that the ladder was defective because of “the inherent weakness in the design, coupled with the weak characteristics of this wood.” He found three reasons for the failure:

“One is, inherently, this is a weak design because of the dedo cut that was talked about before . . . .”

The second reason for failure was the wood itself. The type of wood in the ladder was material to his opinion. He testified in detail about the wood characteristics that caused the failure:

“In addition to the design, the weakness in the design, the wood itself had several characteristics which would make it weaker than a normal piece of wood; one being that . . . [tjhis grain deviates from straightness . . . At this comer, this grain deviation exceeds what would be an acceptable slope, and provides another irregularity around this joint (indicating).
“The second thing is . . . [the growth rings] form an ellipse, rather than a circle ... a normal tree would grow in a circular growth pattern.”

Finally, Dr. Snyder concluded that the ladder’s weakness was a function of the wood:

“Then the third thing was the choice of lumber cut in this piece ... the way this wood was cut was actually rift sawn. It was not flat sawn. So that, in fact, also created a weaker piece . . . .”

On cross-examination, defense counsel demonstrated that Dr. Snyder had no expertise in these crucial areas of his opinion.

Dr. Snyder issued three reports in this case. In his first report, Dr. Snyder concluded that the failed right leg of the ladder was Douglas fir and therefore “composed of low density wood.” Dr. Snyder based this erroneous conclusion on his inspection of the ladder and “assumption” that the ladder was composed of a strong species of soft wood. Dr. Snyder repeated these erroneous opinions in his second report, which was issued to correct mathematical errors contained in his earlier report.

After reviewing the opinion of defendants’ expert, Dr. George H. Kyanka, Dr. Snyder changed his opinion, adopted the defense expert’s opinion, and issued a third report. In this third report, Dr. Snyder wrote, “Dr. Kyanka is correct that the species is a variety of southern yellow pine.” Dr. Snyder still could not determine which variety. In court, Dr. Snyder explained that he changed his opinion of the type of wood involved after he “went back and checked the text, and that was consistent with southern yellow pine.” Diametrically opposite his initial conclusion that the ladder was made of “low density wood,” Dr. Snyder wrote in his third report that the wood had an “abnormally high” density. Dr. Snyder’s third report also stated for the first time that there was evidence of compression wood. However, he never made the investigation necessary to actually identify whether compression wood was present.

Because Dr. Snyder lacked qualification in an area that was crucial to his opinion, defendant Archbold successfully argued on post-verdict motions that Dr. Snyder was unqualified to testify as an expert in this case. The standard in Pennsylvania for qualifying a witness as an expert is incredibly lax. Any individual having “any reasonable pretension to specialized knowledge on the subject under investigation” is qualified to present an opinion to the jury. “[T]he qualification of an expert witness rests within the sound discretion of the trial judge, and . . . absent an abuse of that discretion, the decision of the trial judge should be upheld.” Dr. Snyder’s training, education, and experience clearly qualified him to testify generally as an expert in the areas of mechanical engineering, product design, and failure analysis.

It is essential that a witness’ generalized expertise “fit” the precise area of controversy. Nonetheless, highly specialized experts are not required in every case. As the Superior Court stated, “[e]xperts in one area of medicine have been ruled qualified to address other areas of specialization where the specialties overlap in practice, or where the specialist has experience in another related medical field.” In Montgomery v. South Philadelphia Medical Group, the plaintiff in a medical malpractice action alleged that a physician’s assistant was negligent in failing to refer her to a doctor after she complained of breast pain. The plaintiff offered the testimony of a board-certified internist to establish that the physician’s assistant breached the applicable duty of care. The Superior Court held: “[a] witness may qualify as an expert if his experience or education logically or fundamentally embraces the subject at issue . . . In the area of medicine, specialties sometimes overlap and a practitioner may be knowledgeable in more than one field.” The physician was permitted to testify to the applicable standard of care because “[kjnowledge as to the treatment and care of patients which may be possessed by a physician’s assistant is also knowledge generally possessed by a medical doctor.”

In Lira v. Albert Einstein Medical Center, the plaintiff was injured when her doctor inserted a nasogastric tube through her right nostril. The plaintiff’s expert, aboard-certified neurologist, ruled out any neurological basis for the plaintiff’s injury and concluded that the traumatic forcing of the tube caused her injuries. The defense argued that the expert was unqualified to testify because he was not an otolaryngologist. The expert, however, had received training in otolaryngology; accordingly, he was qualified to testify in the area under investigation.

In Taylor v. Spencer Hospital, the Superior Court held that the trial court erred in striking the testimony of a doctor who testified to a standard of nursing care. The plaintiff’s expert, a medical doctor, testified that “the nursing staff did not take the necessary measures to prevent her [the plaintiff] from getting out of her restraints and going out the window.” The Superior Court permitted the testimony because nurses only practice medicine under the supervision of doctors:

“[N]ot allowing a medical doctor to give testimony on the standard of nursing care suggests that nurses are permitted to practice in some areas of medicine from which doctors are excluded.”

Thus, since “[a]ll areas of medical expertise within the knowledge of nurses are also within the knowledge of medical doctors,” the doctor’s testimony on the standard of nursing care was proper.

The Superior Court has also permitted experts to testify on related fields in non-medical cases. In Whistler Sportswear Inc. v. Rullo, a civil engineer with no specific expertise in roof design was permitted to testify on the cause of the failure of roof supports. The engineer testified that based upon his inspection, he determined that the collapse was caused by the torque of the support columns. The Superior Court stated that “[t]he fact that [the witness’] area of expertise was not specifically in roof design was by no means a fatal flaw once the actual impact of his testimony is reviewed.” The expert was not relying on any “knowledge of roofing per se” in forming his opinion but solely on his general engineering background. Therefore, his testimony was not beyond the scope of his expertise as a civil engineer.

Although Pennsylvania’s long-standing standard for the qualification of an expert is liberal, it is not unlimited. The witness’ “reasonable pretension” must be expertise in the specific area under investigation. Generally acceptable expertise is inadequate where it fails to “fit” the precise issue in question. A witness may be unqualified to testify as an expert “if a witness possesses neither experience nor education in the subject matter under investigation.” In Dambacher by Dambacher v. Mallis, the defense expert, an automobile mechanic, was held unqualified to testify on “vehicle-road dynamics” because he had no training or experience on the subject. The Superior Court recognized that even if the scope of a witness’ expertise embraces the subject in a general way, “the subject may be so specialized that ... the witness will not be qualified to testify.” The proffered expert claimed to be “an expert on the effect of mixing tires” because he had experience in road-testing the type of car in question. However, the witness did not know any details about the vehicles he had test-driven. Because of his failure of qualification in vehicle-road dynamics, the witness’ self-serving statement that he was an expert was insufficient to qualify him to testify on that issue.

Similarly, in Dierolf v. Slade, an orthodontist was found unqualified to express his opinion on the cause of a nerve injury during oral surgery. The proposed expert was a licensed orthodontist, but he “never performed surgery, never observed a peroneal nerve injury, is not a neurologist, is not board certified, and is rarely present in the operating room.” Because he failed to demonstrate any expertise in either nerve injuries generally or surgical procedures and lacked relevant training, he was not permitted to testify on the issue in question.

In McDaniel v. Merck, Sharp & Dohme, the trial court excluded the testimony of the plaintiff’s expert doctor, who specialized in anesthesiology and taught pharmacology at Louisiana State University. After reviewing the doctor’s educational and professional background, the Superior Court stated: “[b]y his own admission, Dr. Adriani’s extensive and impressive pharmacology experience has focused on anesthetics. Although generally familiar with Mefoxin through the literature available, he has never studied nor conducted research on the drug nor reviewed the clinical reports on Mefoxin ... he had no reasonable pretension to specialized knowledge of the drug.”

Accordingly, the Superior Court found the doctor unqualified to express an opinion on whether the antibiotic Mefoxin was the cause of decedent’s death, whether the hospital was negligent in supervising its surgical staff, or whether the defendant doctor was negligent in failing to consult specialists. The proposed expert was not properly qualified because his training, education, and experience, while providing general expertise, did not “fit” the question presented for jury determination.

Likewise, in Marlowe v. Lehigh Township, the trial court ruled that the plaintiff’s proposed expert was unqualified to testify concerning the design of the township’s storm drainage system. The witness “conceded that his undergraduate training was in the field of mechanical, not civil, engineering and that his work experience had been primarily as a real estate salesman and developer.” Affirming the trial court’s preclusion of the testimony, the Commonwealth Court recognized that a witness need not: “possess all of the knowledge within his special field of endeavor. However, a witness who demonstrates by his own testimony that he has no experience or special knowledge of the matter at issue is incompetent as an expert.”

Without any training or experience in drainage system design, the specific issue in question, the witness’ testimony, was properly excluded.

Pennsylvania law permits almost any expert to offer an opinion in any specialized area whenever such opinion “will assist” the trier of fact. The only significant limitation is that the witness’ expertise be in the specific area under investigation. Where the knowledge overlaps, a witness who is qualified as an expert in a specialized area will be permitted to address related areas of specialization. If the witness has no training or experience in the area under investigation, however, he will not be permitted to proffer expert testimony on that issue.

Accordingly, it is clear that Dr. Snyder was unqualified to provide an expert opinion on the specific issue in this case. Dr. Snyder admitted that he was unqualified to testify as an expert on wood. He admitted to having no specialized knowledge whatsoever on the properties of wood. Dr. Snyder’s extensive training and experience in the areas of mechanical engineering, product design, and failure analysis did not encompass the necessary knowledge of wood.

Dr. Snyder’s conflicting reports demonstrated this lack of expertise in the relevant field. Dr. Snyder originally concluded that the ladder was composed of Douglas fir. Dr. Snyder was mistaken. He admitted this mistake in his third report, which adopted the defense expert’s opinion that the wood was a variety of southern yellow pine. This error was important enough to Dr. Snyder’s opinion to require a revised report. Although he lacked any expertise on wood, Dr. Snyder improperly based his opinion entirely on the type and characteristics of the wood in the ladder.

Defendant argues that if the court grants its motion for post-trial relief, then defendant is entitled to either judgment n.o.v. or a new trial. In Dambacher, the Superior Court recognized that judgment n.o.v. may be the appropriate relief if the court finds the expert’s opinion to be equivocal and thus legally insufficient. However, when an expert is found unqualified to express an opinion, “the proper remedy is a new trial, not judgment n.o.v.” Because the court found that Dr. Snyder was unqualified to express an opinion on the issue in this case, the only proper remedy is a new trial, which was granted.

Defendant further argues that the court improperly allowed questions of John Hatfield, the former president of Archbold Ladder Company, concerning prior accidents involving defendant. It is basic that evidence of similar accidents occurring at substantially the same place and under the same or similar circumstances may, in the sound discretion of the trial judge, be admissible to prove constructive notice of a defective or dangerous condition and the likelihood of injury. Evidence of prior accidents can be “relevant to show the product was unsafe, to prove causation, and/or to show that a defendant had actual or constructive knowledge of a condition that could cause harm.” To be admissible, however, the prior accidents must be sufficiently similar to the plaintiff’s accident. Prior to Mr. Hatfield’s testimony, defense counsel argued that the prior accidents were not substantially similar to the accident in this case.

By offer of proof, plaintiffs introduced two prior cases involving defendant Archbold that they claimed were substantially similar to the instant case. The first case was Smith v. Archbold Ladder Company. In that matter, the plaintiff alleged that the right leg of a ladder manufactured by defendant Archbold fractured below the first step. Plaintiffs’ counsel argued that Smith was relevant to this case because there was an identical fracture in the right front leg. The second case was McCullough v. Archbold Ladder Company, where the plaintiff allegedly “fell from the ladder because of the use of defective wood that caused the ladder to break.” Plaintiffs’ counsel argued that evidence of similar accidents was relevant to show existence of the defect, causation, and notice. The accidents in both Smith and McCullough involved a fracture of the right leg of a wooden Archbold ladder below the first step, nearly identical to the fracture in this case. Following argument on the issue, the court overruled the objection and permitted Mr. Hatfield’s testimony. Because the incidents were substantially similar, the admission of this evidence was not reversible error.

For the foregoing reasons, the court properly granted defendant’s motion for post-trial relief and ordered a new trial. The ruling of the court should be affirmed.

      . Defendant Archbold Ladder Company’s motion for post-trial relief, ¶¶1-3.

      . N.T., 3/10/98, at 46.

      . N.T., 3/10/98, at 50.

      . N.T., 3/10/98, at 55-56.

      . N.T., 3/10/98, at 58-59.

      . N.T., 3/11/98, at 162.

      . N.T., 3/11/98, at 181-84.

      . N.T., 3/11/98, at 187-90.

      . N.T., 3/11/98, at 184-85.

      . N.T., 3/11/98, at 195.

      . N.T., 3/11/98, at 153-54.

      . N.T., 3/11/98, at 155-57.

      . N.T., 3/11/98, at 160-61.

      . N.T., 3/11/98, at 175-76.

      . N.T., 3/11/98, at 171-72. (emphasis added)

      . N.T., 3/11/98, at 174.

      . N.T., 3/11/98, at 172.

      . N.T., 3/11/98, at 174-75. (emphasis added)

      . N.T., 3/11/98, at 176.

      . N.T., 3/11/98, at 176-77.

      . N.T., 3/11/98, at 179.

      . N.T., 3/11/98, at 185.

      . N.T., 3/11/98, at 180.

      . N.T., 3/11/98, at 182-83.

      . N.T., 3/11/98, at 183.

      . He testified on cross-examination:
      “Mr. Toensmeier: In your first report, you said that the wood was Douglas fir, didn’t you?
      “The Witness: That’s what I said in the report, yes.
      “Mr. Toensmeier: It’s not Douglas fir, is it?
      “The Witness: No.” N.T., 3/11/98, at 197-98.

      . N.T., 3/11/98, at 198.

      . Dr. Kyanka further concluded that the ladder was not defectively designed and that the wood used in the ladder was not improper. N.T., 3/12/98, at 375-76.

      . N.T., 3/11/98, at 203.

      . N.T., 3/11/98, at 205.

      . N.T., 3/11/98, at 229.

      . N.T., 3/11/98, at 231-32.

      . See e.g., Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 480-81, 664 A.2d 525, 528 (1995).

      . Id. at 481, 664 A.2d at 528.

      . McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 612, 533 A.2d 436, 442 (1987). See also, Kearns v. Clark, 343 Pa. Super. 30, 493 A.2d 1358 (1985) (urologist qualified to testify as expert against surgeon who performed hysterectomy, where urologist was familiar with protection of ureters and had assisted in hysterectomies); Ragan v. Steen, 229 Pa. Super. 515, 331 A.2d 724 (1974) (doctor who was not radiologist but knew risks of x-ray treatment qualified to testify as expert against radiologist).

      . 441 Pa. Super. 146, 656 A.2d 1385 (1995), appeal denied, 542 Pa. 648, 666 A.2d 1057 (1995).

      . Id. at 151, 656 A.2d at 1387.

      . Id. at 151-52, 656 A.2d at 1388.

      . Id. at 152, 656 A.2d at 1389.

      . 384 Pa. Super. 503, 509, 559 A.2d 550, 553 (1989), appeal denied, 527 Pa. 635, 592 A.2d 1302 (1990).

      . Otolaryngology is a specialty dealing with the larynx and trachea.

      . 222 Pa. Super. 17, 22, 292 A.2d 449, 452 (1972).

      . Id. at 21, 292 A.2d at 451.

      . Id. at 22, 292 A.2d at 452.

      . Id. at 24, 292 A.2d at 453. Cf. Flanagan v. Labe, 446 Pa. Super. 107, 113, 666 A.2d 333, 336-37 (1995) (holding nurse incompetent to provide expert testimony on legal causation where opinion was based on her own unsupported medical diagnosis).

      . 289 Pa. Super. 230, 238, 433 A.2d 40, 44 (1981).

      . Id. at 238, 433 A.2d at 44. (emphasis added)

      . Dierolf v. Slade, 399 Pa. Super. 9, 13, 581 A.2d 649, 651 (1990). See also, Steele v. Sheppard, 411 Pa. 481, 485-86, 192 A.2d 397, 400 (1963) (holding witness having no personal experience with theater seats or carpets was unqualified to testify as expert on cost of repair and replacement).

      . 336 Pa. Super. 22, 37, 485 A.2d 408, 416 (1984), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985).

      . Id. at 43, 485 A.2d at 419.

      . Id.

      . 399 Pa. Super, at 13, 581 A.2d at 651.

      . Id.

      . 367 Pa. Super. 600, 610, 533 A.2d 436, 441 (1987), appeal denied, 520 Pa. 589, 551 A.2d 216 (1988).

      . Id. at 610-11, 533 A.2d at 441. (emphasis added)

      . Id. at 611, 533 A.2d at 441-42.

      . 64 Pa. Commw. 587, 441 A.2d 497 (1982).

      . Id. at 593, 441 A.2d at 500. The witness testified to his qualifications as follows:
      “Q: Have you ever had any formal training in the design and engineering of water drainage or water runoff systems?
      “A: No.
      “Q: Your capacity is as a real estate broker. Is that correct?
      “A: Well, yes. I have a broker’s license but our main business is construction.
      “Q: And you hire engineers to develop those systems. Isn’t that correct?
      “A: That’s correct.
      “Q: And you don’t do any of that yourself?
      “A: That’s correct.
      “Q: And you have no specific qualifications that you can give us here today that show you were in any way trained in the engineering of those systems. Is that correct?
      “A: That’s right.”
      Based on these admissions, the trial court precluded him from testifying as an expert on the issue of the drainage system’s design. Id.

      . Id. (emphasis added) See also, Pratt v. Stein, 298 Pa. Super. 92, 153, 444 A.2d 674, 706 (1982) (citing Erschen v. Pennsylvania Independent Oil Co., 259 Pa. Super. 474, 477, 393 A.2d 924, 926 (1978)).

      . Pa. R.E. 702.

      . N.T., 3/11/98, at 201-203.

      . An expert’s opinion may be based, in part, on the opinions of other experts. Foster v. McKeesport Hospital, 260 Pa. Super. 485, 394 A.2d 1031 (1978). However, an expert may not simply repeat another’s opinion or data without bringing to bear on it his own expertise and judgment. Primavera v. Celotex Corp., 415 Pa. Super. 41, 52, 608 A.2d 515, 521 (1992). Dr. Snyder obviously did not apply his own expertise and judgment in determining the type of wood in the ladder. After reading Dr. Kyanka’s report, Dr. Snyder simply “went back and checked the text” and found that it was consistent with Dr. Kyanka’s conclusion. Not only did Dr. Snyder base his opinion on the type of wood in the ladder, but he changed his “expert” opinion based on the report of defendant’s expert.

      . 336 Pa. Super, at 34, 485 A.2d at 414. See also, Palmer v. Lapp, 392 Pa. Super. 21, 28, 572 A.2d 12, 16 (1990).

      . Dambacher, 336 Pa. Super, at 35, 485 A.2d at 414.

      . Spino v. John S. Tilley Ladder Co., 548 Pa. 286, 293, 696 A.2d 1169, 1172 (1997) (citing DiFrancesco v. Excam Inc., 434 Pa. Super. 173, 185, 642 A.2d 529, 535 (1994), appeal dismissed, 543 Pa. 627, 674 A.2d 214 (1996)).

      . Id. See also, Majdic v. Cincinnati Machine Co., 370 Pa. Super. 611, 623, 537 A.2d 334, 340 (1988) (holding evidence of prior accidents inadmissible where plaintiff failed to demonstrate that they were sufficiently similar to plaintiff’s accident), appeal denied, 520 Pa. 594, 552 A.2d 249 (1988).

      . N.T., 3/11/98, at 125.

      . N.T., 3/11/98, at 127.

      . N.T., 3/11/98, at 129-30.


author: O’BRIEN, J.,

text:
    Dittmer v. Muffley
    C.P. of Monroe County,
    no. 2546 Civil 1994.

      James A. Swetz, for plaintiff.

      Paul M. Schaffer, for defendant Muffley.

      Maureen Eagen, for defendant Lyons.

      October 23, 1998
   O’BRIEN, J.,

On September 30, 1994, plaintiff Joyce C. Dittmer filed a complaint seeking damages for personal injuries arising from an automobile accident on August 24, 1993 in Paradise Township, Monroe County, Pennsylvania. The complaint named both Chong Muffley and Mark Lyons, the operators of two other vehicles involved in the accident, as defendants. After the close of the pleadings and completion of discovery, defendant Chong Muffley has filed a motion for summary judgment. Following the submission of briefs and oral argument on October 5,1998, the defendant’s motion for summary judgment is before the court for disposition.

Pennsylvania’s Rules of Civil Procedure provide in pertinent part as follows:

“Rule 1035.2 Motion
“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 a matter 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 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.”

When ruling on a motion for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits. Pa.R.C.P. 1035.1(a). In order to prevail in a motion for summary judgment, the moving party has the burden of proving that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Overly v. Kass, 382 Pa. Super. 108, 554 A.2d 970 (1989). Further, summary judgment is only properly granted in cases where the right to judgment is clear and free from doubt, with any existing doubts being resolved in favor of the non-moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991); Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 562 A.2d 279 (1989). Once a motion for summary judgment is made and supported under these principles, however, a non-moving party may not rest upon the mere allegations or denials of their pleadings. Rather, the non-moving party must set forth specific facts demonstrating that there is a genuine issue for trial. If he fails to do so, then summary judgment, if appropriate, shall be entered against him. Pa.R.C.P. 1035.3.

Although plaintiff’s brief in opposition to the motion for summary judgment is premised on the contention that, “there is sufficient evidence to raise an issue of fact concerning Muffley’s use of high beams,” no such allegation is made in the complaint nor is there any evidence to raise such an issue of fact. Plaintiff’s complaint alleges that the Lyons’ vehicle was preceding her vehicle in the northbound lane of travel on State Route 191. The complaint further alleges, “while exiting a curve which existed in the road, Lyons’ vehicle crossed over the double yellow lines into the southbound lane of State Route 191,” colliding with the Muffley vehicle. Thereupon the Muffley vehicle was forced into the northbound lane and collided with the plaintiff’s vehicle. The allegations of negligence with respect to defendant Muffley was her failure to “maintain proper and adequate control of her vehicle” and “failed to prevent her vehicle from crossing into the northbound lane.” However, the testimony of all three operators establishes conclusively that the negligence of defendant Lyons in crossing over the centerline and striking the Muffley vehicle set into motion the events resulting in plaintiff’s injuries. (See deposition of Mark Lyons N/T 26; deposition of Chong Muffley N/T 27; deposition of Joyce C. Dittmer N/T 28.) Therefore, we conclude there is no disputed relevant issue of fact in this case.

It has long been the law in Pennsylvania that negligence will not be implied because of a failure to perform a duty so suddenly and unexpectedly arising that there was no opportunity to apprehend the situation and to act according to the exigency. In explaining this rule, our Supreme Court observed in Polonofsky v. Dobrosky, 313 Pa. 73, 76, 169 A. 93 (1933):

“When one finds himself in a position of danger which is not the result of his negligence he is not responsible if he makes a mistake in judgment in getting out. An honest exercise of judgment is all that is required of him even if he could have done better had he had time to deliberate.”

In the case at bar, both the pleadings and the testimony of the drivers involved during discovery establishes the circumstance of the present accident resulted from defendant Lyons’ negligence crossing over the center line and striking the defendant Muffley’s vehicle. There is no evidence that defendant Muffley had any opportunity to apprehend the situation and to preclude the collision of her vehicle with that of the plaintiff. Our conclusion in this regard is also consistent with the holding of the Superior Court in Polumbo v. Destefano, 329 Pa. Super. 360, 478 A.2d 828 (1984). In that case, the Superior Court reversed the decision of the trial court allowing the issue of negligence to go to the jury on facts most similar to the case at bar. Therefore, we conclude that defendant Muffley is entitled to summary judgment.

ORDER

And now, October 23, 1998, the defendant’s motion for summary judgment is granted and judgment is entered in favor of the defendant, Chong Muffley, and against the plaintiff Joyce C. Dittmer.

      . The plaintiff has executed a joint tort-feasor release in favor of the defendant, Mark Lyons, in exchange for the payment of $50,000. Therefore, counsel for Mark Lyons has not appeared nor taken any position with respect to the present motion.