Howard Concrete Pumping v. Peak Innovations ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HOWARD CONCRETE PUMPING : IN THE SUPERIOR COURT OF
COMPANY, INC. : PENNSYLVANIA
:
Appellant :
:
v. :
:
PEAK INNOVATIONS, INC., AND :
DREW RAYMOND NELSON, AN :
INDIVIDUAL, AND TJ MINC, LLC : No. 725 WDA 2017
Appeal from the Judgment Entered April 21, 2017
In the Court of Common Pleas of Allegheny County Civil Division at No(s):
GD14-021268
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 27, 2018
Howard Concrete Pumping Company, Inc. (“Howard”) appeals from the
judgment entered in its favor and against Peak Innovations, Inc. (“Peak”) in
this contract case. Specifically, Howard challenges a pre-trial evidentiary
ruling that limited its ability to establish damages. We affirm.
The trial court offered the following summary of the facts underlying
this action and the procedural history of the case.
[Howard] mixes and supplies grout for injection into
underground spaces such as abandoned mines so as to improve
ground stabilization. Over nearly forty years, Howard developed
a variety of equipment and techniques to produce grout
effectively at project sites. In 2012, Howard contracted with
[Peak] an equipment manufacturer. Under the contract, Howard
expected to buy from Peak a new and unique mixing plant, a
custom-designed piece of equipment intended to provide a range
of cementitious products with more efficiency and accuracy than
had been previously accomplished in the industry. The novelty
of this plant was such that Howard, already a long-time leader in
the grout-related industry, believed it (Howard) would be able to
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move its business to the “next level,” evidently in terms of
productivity, efficiency, and/or profit. The contract negotiations
involved a number of documents and information such as
proposals, purchase orders, warranties, and a non-disclosure
agreement. Defendant Drew Nelson was an owner and/or
executive of Peak involved in the negotiations and the eventual
sale of the plant. Also involved in the contract negotiations
and/or sale was TJM, Inc. (“TJM”). TJM was an authorized dealer
or sales agent for Peak.
According to Howard, Peak delivered the plant in April
2013, several months late and, moreover, the plant did not
operate properly. Howard contended that, as a result of the late
delivery and the defects in the plant, Howard lost money. In its
complaint filed in this suit, Howard alleged that its losses
resulted from, for example, an inability to use the plant—or an
inability to use it fully—on one or more of the jobs for which it
was intended; the need to use replacement equipment; low
productivity/efficiency when the subject plant was used; repair
and troubleshooting costs; and costs for idle manpower. Howard
also alleged that Peak and Nelson sold one of Howard’s
competitors a plant that Peak manufactured using Howard’s
trade secrets and other protected information. As defendants in
this litigation, Howard initially named Peak, Nelson, and TJM.
Howard’s claims against Peak and Nelson included breach of
contract, breach of warranties, breach of the non-disclosure
agreement, and misappropriation of trade secrets. Howard sued
TJM for breach of both contract and warranties.
Prior to trial, all Defendants anticipated that Howard would
seek to claim damages for, inter alia, Howard’s inability to
secure a particular project with the Ohio Department of
Transportation in or near Zanesville. Defendants sought to
exclude evidence of that project from trial. Arguing to th[e trial]
court, Howard contended that, because the subject plant was not
properly operable, Howard had submitted a bid for the Zanesville
work based on the anticipated use of other/older equipment.
Because that equipment was not as cost-effective as Howard
expected the new plant to be (if properly operable), Howard’s
Zanesville bid was higher with the old equipment than it would
have been with the new plant. Howard was not awarded the
Zanesville job. Thus, Howard’s position was that, if the new
plant had been operable, Howard would have submitted a lower
bid, the Ohio Department of Transportation would have selected
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Howard for the Zanesville job, and Howard would have made a
profit on the job.
Defendants raised several points in opposition to Howard’s
Zanesville argument, including the contention that the jury in
this case would need to speculate to determine whether the Ohio
Department of Transportation would have awarded Howard the
Zanesville project based solely on a lower bid. In this vein,
Defendants contended that, in the course of considering bids,
the appropriate Ohio officials were required, by Ohio law, to
consider numerous factors in addition to the bid amount. Along
these lines, Defendants also noted that Howard had no intention
of calling any Ohio state official to testify about the issue of
whether Howard would have received the Zanesville project if
Howard had lowered its bid amount. Defendants’ point was
simply that any claim of Zanesville damages was too uncertain
to admit evidence thereon at trial. Th[e trial] court granted
Defendants’ motions to preclude evidence of the Zanesville bid
because the court found the Zanesville matter to be speculative.
. . . Before trial, TJM and Howard settled their disputes. Peak
and Nelson remained as Defendants.
The case was heard by a jury. The jurors found in
Defendants’ favor on the counts of breach of confidentiality and
misappropriation of trade secrets, but awarded Howard
$50,000.00 on its breach of contract and warranty claims.
Howard filed post-trial motions challenging th[e trial] court’s
exclusion of the Zanesville evidence and requesting an award of
prejudgment interest. The court denied Howard’s post-trial
request for a new trial on the Zanesville issue but granted
Howard $1,500.00 in prejudgment interest. The court then
molded the verdict accordingly and ordered entry of judgment
on April 17, 2017. Howard filed this direct appeal on May 16,
2017. On May 19, 2017, this court ordered Howard to file a
statement of matters complained of on appeal. Howard filed its
statement on June 9, 2017.
Trial Court Opinion, 6/17/16, at 1-4 (citations omitted).
Howard presents the following questions for this Court’s review.
1. Did the trial court err in granting Peak’s Motion in Limine
and barring Howard’s evidence related to the Zanesville Project,
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where entitlement to and the amount of consequential damages
are questions of fact for the jury?
2. Did the trial court err in substantively adjudging Howard’s
claims for consequential damages as inherently speculative?
3. Did the trial court err by barring Howard’s entire claim for
consequential damages related to the Zanesville Project by way
of a motion in limine, improperly rendering the motion in limine
a motion for summary judgment?
Howard’s brief at 3.
As all of Howard’s issues concern the trial court’s decision to preclude
Howard from offering evidence of damages from not obtaining the Zanesville
contract, we address them together. The following principles guide our
review.
A motion in limine is a pretrial mechanism to obtain a
ruling on the admissibility of evidence, and it gives the trial
judge the opportunity to weigh potentially prejudicial and
harmful evidence before the trial occurs, preventing the evidence
from ever reaching the jury. A trial court’s decision to grant or
deny a motion in limine is subject to an evidentiary abuse of
discretion standard of review.
Questions concerning the admissibility of evidence lie
within the sound discretion of the trial court, and we
will not reverse the court’s decision absent a clear
abuse of discretion. An abuse of discretion may not
be found merely because an appellate court might
have reached a different conclusion, but requires a
manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support so as to be
clearly erroneous.
Seels v. Tenet Health Sys. Hahnemann, LLC, 167 A.3d 190, 206
(Pa.Super. 2017) (citations and internal quotation marks omitted).
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Turning to the substantive issue, we observe that “[t]he general rule
of law applicable for loss of profits in a contract action permits recovery of
lost profits when there is evidence to establish them with reasonable
certainty, there is evidence to show that they were the proximate
consequence of the wrong and if they were reasonably foreseeable.” Quinn
v. Bupp, 955 A.2d 1014, 1021 (Pa.Super. 2008) (internal quotation marks
omitted). “To recover for lost profits there must be affirmative evidence that
the loss resulted from the breach of contract. It is not necessary that the
amount be shown with absolute or mathematical certainty, but only that it
be approximated by competent proof.” Ne. Vending Co. v. P.D.O., Inc.,
606 A.2d 936, 939 (Pa.Super. 1992) (citations omitted).
However, “damages are not recoverable if they are too speculative,
vague or contingent[.]” Spang & Co. v. U.S. Steel Corp., 545 A.2d 861,
866 (Pa. 1988). “The question of whether damages are speculative has
nothing to do with the difficulty in calculating the amount, but deals with the
more basic question of whether there are identifiable damages.” Newman
Dev. Grp. of Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 98 A.3d
645, 661 (Pa.Super. 2014) (en banc); see also Kituskie v. Corbman, 714
A.2d 1027, 1030 (Pa. 1998) (“Damages are considered remote or
speculative only if there is uncertainty concerning the identification of the
existence of damages rather than the ability to precisely calculate the
amount or value of damages.”); Barrack v. Kolea, 651 A.2d 149, 155
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(Pa.Super. 1994) (“Damages are not speculative when they are certain in
fact, even if uncertain as to amount.”).
With the various issues it argues on appeal, Howard contends that the
trial court usurped the jury’s role of judging the sufficiency and weight of the
evidence. Howard’s brief at 15. Howard maintains that Peak’s challenge to
the speculative nature of the damages went to the weight of the evidence,
not its admissibility. Id. at 22 (citing Zieber v. Bogert, 773 A.2d 758, 763
(Pa. 2001)). It avows that motions in limine “are unsuitable vehicles for
parties to allege that a claim must fail because it lacks evidentiary support,
and are inappropriate devices for resolving substantive issues.” Id. at 30.
Howard argues that the trial court paradoxically precluded Howard from
putting its evidence before the jury and then ruled that Howard’s claim failed
for lack of evidence. Id. at 28.
Howard further asserts that it did proffer evidence, in the form of an
expert report, to establish that lost profits from the Zanesville job were
foreseeable, calculable, and proximately caused by Peak’s breach of
contract. Id. Howard insists that it had no duty to prove that it would have
won the Zanesville job, but rather “only that it was denied the opportunity to
fairly compete for the bid.” Id. at 21 (citing Merion Spring Co. v. Muelles
Hnos. Garcia Torres, S.A., 462 A.2d 686, 697 (Pa.Super. 1983)).
We begin with Howard’s procedural arguments. On October 16, 2017,
Howard filed its pretrial statement listing its witnesses and exhibits, and
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indicating that its damages were set forth in the expert report of Michael H.
Bronder, CPA. Pretrial Statement, 10/17/16, at 4-21. On November 21,
2016, Peak filed a motion in limine claiming that Mr. Bronder’s expert
opinion was insufficient to show that Peak was the cause of Howard losing
profits from the Zanesville job. Motion in Limine, 11/21/16, at ¶¶ 10-23.
The trial court entered an order granting the motion on December 12, 2016,
indicating that Howard was not permitted to introduce evidence relating to
“damages for lost profits associated with the Ohio Department of
Transportation project located on Interstate 70 in the vicinity of Zanesville,
Ohio, as set forth in Plaintiff’s expert report submitted by Michael H.
Bronder[.]” Order, 12/12/16, at ¶ A. The trial court explained its ruling as
follows.
By virtue of statutes and interpretive case law, Ohio has its
own criteria for awarding public projects like the Zanesville job.
See, e.g., O.R.C.Ann. §9.312; see also Steingass Mechanical
Contracting, Inc. v. Warrensville Hts. Bd. of Education, 784
N.E.2d 118, 121-24 (Ohio Ct. App. 2003) (discussing criteria for
awarding public projects to “responsible” bidders under Ohio
Revised Code § 9.312; and indicating the determination of
statutorily required “responsibility” under Ohio law will differ
from project to project). Howard was not going to call any Ohio
official to offer the jury any testimony about the Ohio criteria
and/or the Ohio process for evaluating bids, to offer facts giving
the jury any insight as to any probability that Ohio might have
awarded Howard the Zanesville project if Howard had submitted
a lower bid, or to shed light on the issue of whether a lower bid
alone could have rendered Howard’s bid successful.
Furthermore, Howard itself admitted that, for any official from
the Ohio Department of Transportation (i.e., an official involved
in the bid-evaluation/bid-acceptance process) to testify about
whether Howard could have won the project with a lower bid
would involve “speculation that [the Ohio official] couldn’t even
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give.” Howard acknowledged that “no one can go back in time”
and/or tell “who was going to get that job” if the bid had
changed. In short, while recognizing that even Ohio officials
familiar with the Ohio criteria and process could do no more than
speculate about whether Howard might have won the project
with a lower bid, Howard nevertheless maintained that the jurors
should have somehow been permitted to reach that conclusion—
i.e., to reach a probability determination that Howard would
have secured the project and would have earned a certain profit
if Howard had lowered its bid price.
Howard’s request to pursue damages in connection with
the Zanesville job was untenable. Howard simply did not proffer
any evidence sufficient to demonstrate anything beyond a
speculative claim that Howard might have won the project at a
decreased bid level. Along these lines, Howard suggested no
reasonable way for the jurors to determine how Ohio officials
would have applied Ohio criteria to Howard’s bid, and whether
those officials might or might not have awarded the work to
Howard had Howard tendered a bid lower than the one actually
submitted. In sum, whether Howard would have received the
job was a purely speculative matter. Under these
circumstances, the probability of damages sought by Howard for
the Zanesville job was likewise speculative. Simply put, because
it could not be proven to any reasonable certainty that Howard
would have been awarded the project, the likelihood of any
damages could not be proven with reasonable certainty. Lost
profits from the Zanesville job were, therefore, entirely
speculative and unrecoverable.
Trial Court Opinion, 6/17/16, at (some citations omitted).
Howard complains that Peak improperly used a motion in limine as a
substitute for a motion for summary judgment. However, it offers no
binding authority to support its claim of error in this regard. Instead,
Howard relies upon federal court cases that have no precedential effect in
this Court. See Howard’s brief at 29-30 (citing cases). The only
Pennsylvania case Howard cites to support its contention that the trial court
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committed a procedural error is Northeast Fence & Iron Works, Inc. v.
Murphy Quigley Co., 933 A.2d 664, 665 (Pa.Super. 2007). Howard
suggests that Northeast Fence stands for the proposition that a challenge
to a party’s ability to recover is properly made after the presentation of
evidence at trial, not through a motion in limine. Howard’s brief at 31.
In Northeast Fence, the plaintiff sued the defendant under the
mutually-exclusive theories of breach of contract and unjust enrichment.1
As the plaintiff indicated that it would introduce evidence of a written
agreement, the defendant filed a motion in limine to preclude recovery
under the unjust enrichment theory. Northeast Fence, supra at 667. In
rejecting the defendant’s argument that the trial court erred in denying the
motion, this Court explained as follows.
In making this argument, [the defendant] misperceives the
nature and purpose of a motion in limine. A motion in limine is a
device for obtaining rulings on the admissibility of evidence prior
to trial. Herein, [the defendant’s] “motion in limine” did not
seek to prevent or permit the admission of evidence at trial.
Instead, [the defendant] was arguing that [the plaintiff’s]
evidence was going to prevent recovery under an unjust
enrichment cause of action. This type of challenge is properly
made after presentation of the evidence, by means of a
compulsory nonsuit[.]
Id.
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1“A cause of action for unjust enrichment arises only when a transaction is
not subject to a written or express contract.” Heldring v. Lundy Beldecos
& Milby, P.C., 151 A.3d 634, 645 (Pa.Super. 2016) (internal quotation
marks omitted).
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In the instant case, Peak’s motion did not seek to preclude Howard’s
cause of action for breach of contract or breach of warranty. Rather, it
challenged the admissibility of the evidence that Howard identified in its
pretrial statement to support some of the damages it claimed flowed from
Peak’s breach. Hence, contrary to Howard’s assertion, Northeast Fence
validates, rather than disproves of, Peak’s use of a motion in limine.
Further, this Court has recognized that it is “not uncommon” that a
pretrial evidentiary ruling may effectively determine the result of not merely
an item of claimed damages, but an entire case. Nobles v. Staples, Inc.,
150 A.3d 110, 118 (Pa.Super. 2016) (affirming dismissal of case on
summary judgment after trial court excluded the plaintiff’s expert witness
based upon a motion in limine filed three weeks prior to trial). The fact that
an evidentiary ruling in effect puts a party out of court does not invalidate
the pretrial ruling. Id.
Turning to Howard’s substantive arguments, we observe that it is well-
established that “a jury cannot be permitted to reach its verdict on the basis
of speculation or conjecture.” Williams v. Dulaney, 480 A.2d 1080, 1083
(Pa.Super. 1984). Howard contends, however, that the speculative nature
of the lost profits from the Zanesville job went to the weight of the evidence,
not whether it was admissible. Howard’s brief at 22 (citing Zieber, supra).
In Zieber, our Supreme Court considered whether evidence of the risk
of recurrence of cancer could be considered by a jury assessing damages in
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a case alleging that the defendant doctor’s late diagnosis of the plaintiff’s
lymphoma was malpractice. The defendant contended that such evidence
was inadmissible given the decision in Simmons v. Pacor, Inc., 674 A.2d
232 (Pa. 1996), in which the High Court held that asymptomatic, benign
asbestos-related conditions were not compensable injuries when not
accompanied by actual physical impairment, and the speculative damages
for fear of cancer and increased risk of cancer associated with exposure to
asbestos were not recoverable in the absence of a physical injury. Id. at
238. Nonetheless, the Zieber Court held that “evidence of the increased
risk and/or fear of recurrence of cancer is admissible for the purpose of
establishing damages in a medical malpractice case alleging a physician’s
negligence in failing to properly diagnose the disease.” Zieber, supra at
763. In so holding, the Court stated the following, upon which Howard
hangs its hat: “Appellants’ concerns regarding the speculative nature of such
damages can be presented to the jury during argument, as such challenges
go to the weight, rather than the admissibility of the evidence.” Id.
Zieber does not compel reversal in the instant case. Zieber does not
contradict the law, cited above, that, although the presence of guesswork in
putting a dollar value on the harm suffered does not render damages
speculative, conjecture as to the actual existence of damages is not
permissible. See, e.g., Kituskie, supra at 1030 (“Damages are considered
remote or speculative only if there is uncertainty concerning the
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identification of the existence of damages rather than the ability to precisely
calculate the amount or value of damages.”). Zieber stands for the
proposition that, although the amount of damages for fear of recurrence of
cancer, as with all emotional distress damages, are not easily quantifiable,
the jury may consider them and render an award it deems appropriate.
Quite contrary to Howard’s suggestion, Zieber’s holding is entirely
consistent with the principle that impermissibly-speculative damages are
those the very existence of which cannot be shown with a reasonable degree
of certainty, as opposed to reasonably-certain damages that are not easily
quantifiable.
The trial court determined that the jury would have to engage in
speculation to identify the existence of any harm to Howard in connection
with the Zanesville job because Howard lacked proof that it was reasonably
likely to have had the successful bid for the Zanesville job had Peak lived up
to its contractual obligations. Citing Merion Spring Co., supra, Howard
claims that its burden was merely to show that Peak’s breach denied it the
opportunity to fairly compete for the Zaneville job, not to prove that it
definitely would have had the successful bid. Howard’s brief at 21.
In Merion Spring Co., the defendant-buyer, a Mexican company,
contracted to purchase from the plaintiff-seller used machines for
manufacturing automotive springs. Although the buyer paid part of the
contract price, it refused to tender the balance, citing defects noticed upon
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inspecting the machines. Merion Spring Co., supra at 690. The seller
sued for breach of contract, seeking the outstanding balance of the purchase
price, and the buyer counterclaimed, averring that it was the seller who
breached, and demanding damages, including lost profits. Id. at 688. At a
bench trial, the judge found in favor of the buyer and awarded damages.
The trial court en banc granted post-trial relief to the seller, holding that the
buyer had not shown lost profits with sufficient certainty because its
business was unestablished at the time it contracted to buy the machines.
Id. at 688-89. On appeal, this Court reversed, holding that the buyer had
sufficiently proven lost profits.
The Merion Spring Co. Court rejected the buyer’s contention that
reasonable certainty is necessary only to establish the fact of a loss, not to
prove the amount of the loss, stating as follows:
our cases stand for the proposition that reasonable certainty is
required for both the fact of loss and the amount of loss
sustained. Additionally, we note that this is not a requirement of
mathematical certainty, but only that the estimate made as to
the amount of lost profits be reasonably certain. The process of
estimation, of course, need not be completely free of analytical
or statistical error for that is the nature of an estimate.
However, the requirement of reasonable certainty as to the
amount as well as to the fact of loss assures that the
finder of fact will not determine the rights of any party
upon the basis of speculation.
Id. at 696 n.8 (emphasis added). However, it determined that the buyer
proved both the fact and the amount of lost profits attributable to seller’s
breach.
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The Court noted that proving lost profits is more easily done in cases
where an established and continuing business is at issue, than in cases
involving a new enterprise that lacks “the business records necessary to
determine [lost] profits with specificity.” Id. at 698. However, it noted that
lost profits from a new business “may be established with reasonable
certainty with the aid of expert testimony, economic and financial data,
market surveys and analyses, business records of similar enterprises, and
the like.” Id. at 696 (internal quotation marks omitted).
The buyer in Merion Spring Co. offered testimony from its general
manager, Emilio Cano Bazaldua, to prove lost profits, which we quote at
length to contrast with the instant case.
Cano provided a wealth of details concerning economic and
financial conditions prevailing in Mexico during the four years
following the completion of construction of the plant intended to
house the machinery. Cano provided specific data concerning
the Mexican government’s protection of domestic manufacturing,
estimated plant production, prices, direct and indirect labor cost,
the cost of skilled and supervisory labor, administrative and
sales staff and operations expense and the broad outlines of the
applicable tax structure. The figures he produced came from his
own knowledge; either he personally developed the data in his
capacity as [the buyer’s] general manager or he was aware of
the prevailing rates and figures because of his long association
with the automobile parts industry. Cano also took into
consideration the devaluation of the Mexican peso in September,
1976. At almost every point, Cano utilized patently conservative
data in estimating [the buyer’s] lost profits, forcing estimated
income down and estimated expenses up. Under ideal or even
under more realistic conditions, [the buyer’s] lost profits could
have been substantially higher. Cano stated that he and his
accountants arrived at a total estimated lost profits of
$325,000.00 for the four-year period 1974–1977. Finally, we
note that, while Cano did not himself perform any mathematical
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calculations while on the stand, he sufficiently explained the
necessary operations to enable the fact finder to perform them.
We conclude that, based on the testimony of Cano, there is
sufficient evidence to permit a reasonable estimate of [the
buyer’s] lost profits in the amount originally awarded by the trial
judge, $200,000.00.
Id. at 697. Although the seller argued that there were flaws in Cano’s data,
the Court rejected the contentions, stating as follows.
It is not difficult to shoot these estimates full of holes as [the
seller] has done. On the other hand, . . . we do not think this is
a case where it can be really said that there would have been no
profit . . . had the contract been performed. We think there
would have been some profit. As to the amount, we do not see
that our estimate can be any better than that of the [fact finder]
and we are satisfied with what he has done.
Id. at 698 (internal quotation marks omitted).
The notable difference between Merion Spring Co. and the instant
case is that the buyer in Merion Spring Co. offered evidence to support the
finding that it would have realized some profit from manufacturing
automotive springs if the seller had delivered the twenty-five machines it
had contracted to supply to the buyer. Howard’s evidence as to the fact of
the loss of the Zanesville job consisted solely of its expert calculating what
Howard’s bid would have been had Howard been able to rely upon the Peak
plant, and summarily opining that Howard “would have otherwise been the
successful low-bidder.” Howard’s Pretrial Statement, 10/17/16, Exhibit A at
9. Absent was any discussion of the factors Ohio was required to apply in
awarding the bid and applying them to Howard and the company that
actually was awarded the bid.
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Howard did not proffer any evidence upon which the fact finder could
have relied to find that Howard would in fact have won the bid from the Ohio
government if only Peak had not breached the contract. Hence, the trial
court excluded those lost-profit calculations derived wholly from the
Zanesville project based upon the speculative nature of the fact of the
alleged harm. The exclusion was not based upon lack of reasonable
certainty as to the amount of profits Howard would have realized if it had the
winning bid on the Zanesville job, or even upon a finding that Howard failed
to show that it would have made some additional profits if Peak’s mixing
plant worked as it should have. Indeed, the trial court did not exclude
Howard’s evidence of lost profits suffered on other jobs resulting from
defects in the Peak plant, and did not preclude evidence which would have
established generally the existence of a market for Howard’s services in
which it was unable to compete because Peak breached the contract.
Rather, the trial court’s ruling that Howard’s Zanesville-job-based lost profits
evidence was speculative was based upon the lack of evidence that could
establish with reasonable certainty that Howard in fact suffered the loss of
the Zanesville job because of Peak’s breach.
Based upon our review of the record and the applicable law, we
conclude that the trial court’s ruling to preclude evidence of profits Howard
purportedly lost from the Zanesville job was reasonable and consistent with
Pennsylvania decisions requiring the exclusion of speculative evidence in a
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variety of contexts. See, e.g., Rohe v. Vinson, 158 A.3d 88, 101
(Pa.Super. 2016) (holding trial court should have excluded testimony that
was “simply too speculative and highly prejudicial”); Ratti v. Wheeling
Pittsburgh Steel Corp., 758 A.2d 695, 708 (Pa.Super. 2000) (ruling there
was no error excluding evidence that was “based upon second-hand
information or mere speculation”); Kearns by Kearns v. DeHaas, 546 A.2d
1226, 1235 (Pa.Super. 1988) (remanding for a new trial where the trial
court allowed a witness to offer a speculative opinion); see also Appeal of
Carnegie, 53 A.2d 425, 427 (Pa. 1947) (holding it was reversible error to
admit “speculative and conjectural” estimates of value based upon “assumed
facts of what might or might not occur”); Glencannon Homes Ass’n, Inc.
v. N. Strabane Twp., 116 A.3d 706, 721 (Pa.Cmwlth. 2015) (“Speculative
testimony or testimony made without reasonable certainty does not aid the
trier of fact and should be stricken.”).
For the foregoing reasons, we conclude that the trial court did not
abuse its discretion in granting Peak’s motion in limine, and affirm the
judgment entered on the jury’s verdict.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2018
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