O'Donnell, R. v. Mortimer, T. ( 2016 )


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  • J-A13022-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    RODNEY L. O’DONNELL AND TINA M.                 IN THE SUPERIOR COURT OF
    O’DONNELL, HIS WIFE                                   PENNSYLVANIA
    Appellants
    v.
    THERESA J. MORTIMER,
    ADMINISTRATOR OF THE ESTATE OF
    MICHELLE A. SCHNUR
    Appellee                No. 1058 WDA 2015
    Appeal from the Order Dated June 12, 2015
    In the Court of Common Pleas of Butler County
    Civil Division at No: No. AD14-10978
    BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
    MEMORANDUM BY STABILE, J.:                     FILED NOVEMBER 29, 2016
    Rodney L. O’Donnell and Tina M. O’Donnell, his wife (collectively
    “Appellants”) appeal from the order entered June 12, 2105, following the
    Court of Common Pleas of Butler County’s (“trial court”) grant of Appellee
    Theresa J. Mortimer’s, Administrator of the Estate of Michelle A. Schnur,
    motion for summary judgment. For the reasons set forth below, we affirm.
    The facts and procedural history of this case are undisputed. 1    On
    December 4, 2012, Mr. O’Donnell’s and Ms. Schnur’s cars collided at the
    ____________________________________________
    1
    Unless otherwise specified, these facts come from the trial court’s June 12,
    2015 opinion.
    J-A13022-16
    intersection of State Routes 68 and 38.2 On November 14, 2014, Appellants
    filed a complaint in negligence against Ms. Schnur.       Because Ms. Schnur
    passed away on May 3, 2014, approximately six months prior to the filing of
    the complaint, Appellants amended the complaint on December 10, 2014 to
    include the estate of Ms. Schnur. Appellants alleged:
    13. On December 4, 2012, at approximately 5:50 p.m.,
    [Mr. O’Donnell] was traveling South on State Route 68, near the
    intersection of State Route 38.
    14. When [Mr. O’Donnell] came to the intersection of State
    Route 68 and State Route 38, the traffic signal was green and
    [Mr. O’Donnell] proceeded through the intersection with the right
    of way.
    15. At the same time and place, [Ms. Schnur] was traveling
    North on State Route 68.
    16. It was raining and the road surface was wet.
    17. When [Ms. Schnur] came to the intersection of State Route
    68 and State Route 38, she proceeded through the intersection
    and attempted to turn left onto State Route 38.
    18. [Ms. Schnur] failed to yield the right of way and drove
    directly into left front area of the O’Donnell vehicle. The violent
    force of the impact caused the O’Donnell vehicle to rotate in a
    clockwise position; it came to rest in a westerly direction in the
    intersection of State Route 68 and State Route 38.             The
    O’Donnell vehicle was towed from the scene.
    Appellants’ Amended Complaint, 12/10/14, ¶¶ 13-18.          Appellants alleged
    that, as a result of Ms. Schnur’s action, Mr. O’Donnell sustained extensive
    injuries and damages. Id. at ¶ 19, 22-23. Appellee filed an answer to the
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    2
    Mr. O’Donnell’s father-in-law was a passenger in Mr. O’Donnell’s vehicle at
    the time of the accident. For reasons not relevant sub judice, the father-in-
    law has passed away. N.T. Argument, 5/8/15, at 6.
    -2-
    J-A13022-16
    complaint, generally denying Appellants’ averments and raising new matter,
    in which Appellee asserted, inter alia, a defense under the Dead Man’s Act,
    42 Pa.C.S.A. § 5930. See Answer and New Matter, 1/26/15, ¶¶ 26-34.
    On March 13, 2015, Appellee moved for summary judgment against
    Appellants on the basis that Mr. O’Donnell was not competent under the
    Dead Man’s Act to testify at trial regarding the circumstances surrounding
    the motor vehicle accident. The Dead Man’s Act provides in pertinent part:
    Except as otherwise provided in this subchapter, in any civil
    action or proceeding, where any party to a thing or contract in
    action is dead, . . . and his right thereto or therein has passed
    . . . to a party on the record who represents his interest in the
    subject in controversy, neither any surviving or remaining party
    to such thing or contract, nor any other person whose interest
    shall be adverse to the said right of such deceased . . . party,
    shall be a competent witness to any matter occurring before the
    death of said party[.]
    42 Pa.C.S.A. § 5930.          Appellee specifically argued that Mr. O’Donnell’s
    “interests in this litigation are directly adverse to those of [Appellee,]” acting
    on behalf of the estate of Ms. Schnur. 3         Appellee’s Motion for Summary
    Judgment, 3/13/15, at ¶ 15.
    ____________________________________________
    3
    Appellee did not waive the protections of the Dead Man’s Act because it did
    not conduct discovery. See Anderson v. Hughes, 
    208 A.2d 789
    , 791 (Pa.
    1965) (noting that when a decedent before he died or a decedent’s
    representative has required an adverse party to be deposed or to answer
    interrogatories, any objection based upon the Dead Man’s Act to the
    competency of such a party to testify at the trial is waived, even though the
    discovery is not offered in evidence).
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    Objecting to Appellee’s summary judgment motion, Appellants noted
    that they were permitted to offer other evidence under the Dead Man’s Act.
    In this regard, they attached, inter alia, to their response to Appellee’s
    summary judgment motion an expert report regarding the motor vehicle
    accident.4 See Appellants’ Response to Summary Judgment, 5/1/15.
    On May 8, 2015, the day arguments were scheduled on the summary
    judgment motion, Appellee filed a reply brief, addressing the issues raised in
    Appellants’ response to the summary judgment motion.              Appellee argued,
    inter alia, that the conclusions contained in Appellants’ expert report lacked
    proper    factual   foundation because         they were   rooted in speculation.
    Appellee’s Reply Brief, 5/8/15, at 4.            Particularly, Appellee argued that
    Appellants’ expert’s conclusion were based on an investigation of the
    accident scene, specifically the traffic signal, that occurred more than two
    and one-half years after the accident. See 
    id.
     (“The alleged investigation
    occurred on April 21, 2015, nearly two and a half years after the December
    4, 2012 incident date.”).
    At argument, Appellee’s counsel repeated, among other things, that
    Appellants’ expert report lacked proper foundation.            Specifically, counsel
    argued:
    ____________________________________________
    4
    The expert report was dated April 23, 2015 and was prepared more than a
    month after Appellee moved for summary judgment.
    -4-
    J-A13022-16
    And, your Honor, this is purely speculation and a bold
    conclusion. The investigation of the traffic signal happened on
    April 21st, 2015. This accident occurred on December 4, 2012.
    This is two-and-a-half years later. And we would not have an
    issue with this if there was any basis or foundation within the
    expert report that establishes a correlation or a link to say that
    the traffic signals were the same that day or were similar, but
    instead what we are left with is just “we looked at the light in
    2015.” . . . . I mean, for all we know the light could have, in
    theory, been changed 20 times pattern[-]wise or seconds or how
    they operated the light. There is no causal connection to that.
    N.T. Argument, 5/8/15, at 5-6. In response, Appellants’ counsel argued that
    the adequacy of the expert report was an issue of fact to be decided by the
    jury.    Id. at 7.     Appellants’ counsel also mentioned in passing that he
    received Appellee’s reply brief late on the previous day. 5          Id.   Finally,
    Appellants’ counsel acknowledged that Mr. O’Donnell would be incompetent
    to testify under the Dead Man’s Act. See id. at 8 (“So the Dead Man’s Act
    only applies to . . . O’Donnell[.]”).
    On June 12, 2015, the trial court issued an opinion and order granting
    Appellee’s summary judgment motion.              The trial court concluded, among
    other things, that Appellants could not establish a prima facie case of
    negligence because its expert report did not capture the timing and phasing
    of the traffic signal at the time of the accident in 2012. Appellants timely
    appealed to this Court.       Following Appellants’ filing of a Pa.R.A.P. 1925(b)
    statement of errors complained of on appeal, the trial court issued a
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    5
    Appellants’ counsel failed to object to the submission of the reply brief or
    the trial court’s consideration of issues raised therein.
    -5-
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    Pa.R.A.P. 1925(a) opinion, wherein the court largely adopted the findings
    and conclusions set forth in its June 12, 2015 opinion.
    On appeal,6 Appellants raise only two issues for our review:
    I.     Whether the trial court erred in granting summary judgment
    when the court’s decision was based on an issue raised in
    [Appellee’s] reply brief filed the day of the summary
    judgment argument and when [Appellants were] not given
    any opportunity to file a sur-reply brief and/or submit
    additional evidence to address the issue on which the court
    ultimately granted summary judgment[.]
    II.     Whether the [trial c]ourt erred in finding that [Appellants’]
    expert report was insufficient evidence to establish a prima
    facie case of negligence against [Ms. Schnur.]
    Appellants’ Brief at 4.
    ____________________________________________
    6
    It is well-settled that
    [o]ur scope of review of a trial court’s order granting or denying
    summary judgment is plenary, and our standard of review is
    clear: the trial court’s order will be reversed only where it is
    established that the court committed an error of law or abused
    its discretion.
    Summary judgment is appropriate only when the record clearly
    shows that there is no genuine issue of material fact and that
    the moving party is entitled to judgment as a matter of law. The
    reviewing court must view the record in the light most favorable
    to the nonmoving party and resolve all doubts as to the
    existence of a genuine issue of material fact against the moving
    party. Only when the facts are so clear that reasonable minds
    could not differ can a trial court properly enter summary
    judgment.
    Hovis v. Sunoco, Inc., 
    64 A.3d 1078
    , 1081 (Pa. Super. 2013) (quoting
    Cassel-Hess v. Hoffer, 
    44 A.3d 80
    , 84-85 (Pa. Super. 2012)). Moreover,
    “[w]here the non-moving party bears the burden of proof on an issue, he
    may not merely rely on his pleadings or answers to survive summary
    judgment.” Krauss v. Trane U.S. Inc., 
    104 A.3d 556
    , 563 (Pa. Super.
    2014) (citation omitted). “Failure of a non-moving party to adduce sufficient
    evidence on an issue essential to his case and on which he bears the burden
    of proof establishes the entitlement of the moving party to judgment as a
    matter of law.” 
    Id.
    -6-
    J-A13022-16
    At the outset, we note that we need not address Appellants’ first issue.
    Our review of the record, specifically the May 8, 2015 hearing transcript,
    reveals that Appellants have waived this issue by failing to object to
    Appellee’s reply brief at any time before the trial court prior to filing their
    Rule 1925(b) statement. Accordingly, Appellants are not entitled to relief on
    the first issue.7 See Pa.R.A.P. 302(a) (“Issues not raised in the lower court
    are waived and cannot be raised for the first time on appeal.”).
    We now turn to Appellants’ second argument that the trial court erred
    in concluding that their expert report was inadequate or insufficient to
    establish a prima facie case for negligence against Appellee.
    It is settled that:
    [E]xpert testimony is incompetent if it lacks an adequate basis in
    fact. While an expert’s opinion need not be based on absolute
    certainty, an opinion based on mere possibilities is not
    competent evidence. This means that expert testimony cannot
    be based solely upon conjecture or surmise. Rather, an expert’s
    assumptions must be based upon such facts as the jury would be
    warranted in finding from the evidence.
    ____________________________________________
    7
    To the extent Appellants argue that the trial court erred in failing to grant
    them an opportunity to file a sur-reply brief, we disagree. As the trial court
    aptly explained:
    Appellants did not request, at oral argument or at any time
    thereafter, any leave to file a sur-reply to [Appellee’s] reply
    brief, or to supplement the record or their expert’s report, or for
    re-argument. Absent any request to file a [sur-]reply, or to
    supplement the record or the expert’s report, or for re-
    argument, [the trial court] decided the motion for summary
    judgment based upon the record before it.
    Trial Court Opinion, 8/26/15, at 2. Moreover, Appellants also did not invoke
    Pa.R.C.P. No. 1035.3(c) to supplement the record through affidavits,
    depositions, or other additional discovery. See Pa.R.C.P. No. 1035.3(c).
    -7-
    J-A13022-16
    Helpin v. Trs. of the Univ. of Pa, 
    969 A.2d 601
    , 617 (Pa. Super. 2009)
    (internal citations and quotation marks omitted).
    Here, the parties agree that, because the Dead Man’s Act renders
    Mr. O’Donnell incompetent to testify about the accident, the only way
    Appellants may be able to establish negligence is by offering an expert
    report that     demonstrates       that   Ms.    Schnur   likely   failed   to   yield   to
    Mr. O’Donnell’s southbound vehicle prior to turning left onto State Route 38.
    To do that, Appellants had to establish that the traffic signal was functioning
    properly at the time of the accident and that Mr. O’Donnell had the
    right-of-way. They, however, failed to do so.
    As the trial court reasoned:
    In this instance, the light’s signal phasing and timing as of the
    time of the accident are critical to the accuracy and reliability of
    the conclusions in [the expert’s] report.[ 8 ] However, [the
    expert’s] opinion does not state that the light’s signal phasing
    and timing in 2015 were the same as the signal phasing and
    timing as of the time of the accident. Moreover, [Appellants]
    have not offered into the record, or requested to supplement the
    record with any other facts that would support an assumption
    that the light’s signal phasing and timing at the time of the
    investigation [in 2015] were the same as those at the time of
    the accident [in 2012]. Absent a connection between the signal
    phasing and timing of the light at the two relevant time periods,
    [the expert’s] conclusions, regarding causation, lack adequate
    factual foundation.
    ....
    ____________________________________________
    8
    It is the law in Pennsylvania that an expert’s conclusions that are not
    supported by the record may be disputed at the summary judgment
    juncture, while credibility and weight attributed to those conclusions may
    not. Summers v. Certainteed Corp., 
    997 A.2d 1152
    , 1161 (Pa. 2010).
    -8-
    J-A13022-16
    Therefore, as [Appellants’] expert’s report lacks an adequate
    foundation, and [Appellants have] not produced other evidence
    to establish said foundation, the expert’s report is inadmissible.
    As a result, the remaining record in this case is devoid of
    evidence to establish a prima facie case of negligence.
    Trial Court Opinion, 6/12/15, at 10-11. Thus, viewing the record in the light
    most favorable to Appellants, as the nonmoving party, and resolving all
    doubts as to the existence of a genuine issue of material fact against
    Appellee, as the moving party, we conclude that the trial court did not err in
    granting Appellee’s motion for summary judgment.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/29/2016
    -9-
    

Document Info

Docket Number: 1058 WDA 2015

Filed Date: 11/29/2016

Precedential Status: Precedential

Modified Date: 11/29/2016