Poltorak v. Sandy ( 1975 )

Dissenting Opinion by

Spaeth, J.:

I join in the reasoning of Judge Hoffman’s opinion but would impose a condition on the order to remand.

This case illustrates the unsatisfactory situation that may arise where the courts rely exclusively on expert witnesses called by the parties. This system of adjudication has been justifiably labeled a failure. 2 Wigmore, Evidence, §563 (Collecting authority and remedial statutes) ; McCormick, Evidence, §17 (Cleary ed., 1972).

There is, unfortunately, no procedure in Pennsylvania by which a trial court may appoint and compensate independent expert witnesses. (The federal trial courts do have such a procedure. Fed.R.Evid. 706).

This court has the power, however, to modify an order brought before us on appeal. Act of July 31, 1970, P.L. 673, No. 233, art. V, §504, 17 P.S. §211.504 (Supp. 1974-1975). This power includes- by necessary implication the power to impose conditions, as in the case of a remittitur. See 6A Standard Pennsylvania Practice 278-79 (collecting cases). The imposition of conditions is especially appropriate where, as here, the trial judge has made no error and lacks statutory authority to take the action that perhaps more than any other will prevent a recurrence at a new trial of the problems that precipitated the appeal.

I would therefore provide that as a condition of remand appellant agree to compensate an independent expert witness to be appointed by the court. This would leave appellant with an option. If she did not wish to run the risk of a new trial at which an independent expert would testify, or incur the expense of the expert, she could keep the judgment she now has. I grant that this solution is not entirely satisfactory, but on the record before us I regard it as better than either an affirmance or an unconditional remand.