Mitchell v. Gravely International, Inc. , 698 A.2d 618 ( 1997 )

POPOVICH, Judge,

dissenting:

While I agree with the majority that a new trial is not warranted on the basis that the trial court accepted and subsequently molded the jury’s verdict, I respectfully disagree with the majority’s conclusion that the trial court abused its discretion in granting a new trial on the basis that Sister Mary Regis, an elderly nun, improperly testified as a rebuttal witness.

‘Rebuttal evidence’ is defined in Black’s Law Dictionary (5th ed.1979) as ‘evidence given to explain, repel, counteract, or disprove facts [as opposed to opinions] given in evidence by the adverse party.’ A party cannot, as a matter of right, offer in rebuttal evidence that which is properly part of his case in chief, but will be confined to matters requiring explanation and to answering new matter introduced by his opponent.

Clark v. Hoerner, 362 Pa.Super. 588, 525 A.2d 377, 382 (1987) (quoting Feingold v. Southeastern Pa. Transp. Auth., 339 Pa.Super. 15, 488 A.2d 284, 290 (1985)). Contrary to the majority’s assertion, I do not agree that Sister Regis’ testimony was limited to facts discrediting the appellees’ witnesses. Rather, I believe that Sister Regis’ testimony consisted primarily of opinions which were offered to contradict appellees’ experts’ opinions. Specifically, Sister Regis opined that a substance she saw was appellant’s blood and that, based on the location of the blood, appellant’s accident happened in the area where he told her it happened.¹ Sister Re-gis’ testimony does not qualify as “rebuttal evidence” since she did not offer evidence to explain, repel, counteract or disprove facts (as opposed to opinions) given in evidence by appellees’ expert witnesses. Moreover, her testimony should have been presented during appellant’s ease in chief. Also, she did not confine her testimony to matters requiring explanation or to answering new matter introduced by appellant’s opponents. Accordingly, it is my opinion that Sister Regis was not a proper rebuttal witness and that the trial court did not abuse its discretion or commit an error of law in granting a new trial on this basis.

I also respectfully disagree with the majority’s conclusion that Sister Regis’ surprise to appellees by her appearance does not warrant a new trial. In Clark, supra, we granted the appellant a new trial on the basis that the trial court erred in permitting rebuttal testimony following the conclusion of the parties’ case in chief. We specifically found that Pa.R.C.P. 4019(i),² which requires parties to disclose the identity of witnesses and operates to prevent surprise and unfairness, is applicable to witnesses called in rebuttal. Here, it is clear that appellant did not identify Sister Regis as a witness prior to trial. Her identity was not disclosed until immediately prior to her giving testimony. The evening prior to Sister Regis “taking the stand,” appellant’s counsel informed appel-lees’ counsel that he was presenting a rebuttal witness. However, he refused to disclose the witness’ identity. N.T. 9/12/95 p. 10. Accordingly, appellees’ counsel was not aware of Sister Regis’ identity until immediately before she was called as a witness on the final day of trial. Clearly, Sister Regis was a surprise witness. Moreover, I find that no extenuating circumstances existed in this case. There was no evidence to indicate that Sister Regis could not have been identified prior to trial or that she was unavailable to testify during the presentation of appellant’s case in chief. Nor is there evidence that appellant was surprised by the testimony of the defense experts such that the need for Sister Regis’ testimony could not have been anticipated. The identities of all defense experts called at trial, their backgrounds and the substantive aspects of their testimonies had been supplied to appellant before trial.

I note that appellant argues that there were extenuating circumstances in this case. Specifically, he argues that he did not disclose Sister Regis’ identity prior to her testifying because he believed that Gerald Wayne Schmidt, the manager of the Convent and a defense witness, would instruct Sister Regis not to testify. Other than making this bald allegation, appellant has offered no evidence indicating that Mr. Schmidt would have instructed Sister Regis not to testify. Moreover, even if appellant’s argument that there were extenuating circumstances permitting him to call Sister Regis as a rebuttal witness was to be accepted, such a determination would be unavailing to appellant because, in my opinion, the record clearly demonstrates that Sister Regis was not a “rebuttal witness.” Clark, supra. As the majority correctly indicates, in Clark this Court stated that “[t]he rules must be interpreted to prevent surprise and unfairness and not as devices for excluding proper, rebuttal evidence.” Clark, 525 A.2d at 382. However, in this case, I find that the rules operated to exclude surprise, unfairness and improper rebuttal evidence. Accordingly, I must respectfully dissent from the majority’s conclusion that Sister Regis testified properly at trial. Moreover, I would affirm the trial court’s grant of a new trial on this basis.

1 . Sister Regis did not witness appellant’s accident. However, the day after the accident she examined the Convent’s grounds.

2 . Rule 4019(i) is a discovery rule which provides as follows:

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