Sirchio, J. v. MacDougall, C.

J-A22002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSHUA R. SIRCHIO AND ALLISON : IN THE SUPERIOR COURT OF
D. SIRCHIO, H/W : PENNSYLVANIA
:
Appellants :
v. :
:
COREY MACDOUGALL :
:
Appellee : No. 3444 EDA 2016
:
Appeal from the Judgment Entered January 5, 2017
in the Court of Common Pleas of Montgomery County
Civil Division at No.: 2013-33448
BEFORE: BOWES, J., LAZARUS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: Filed July 20, 2018
Appellants, Joshua R. Sirchio and Allison D. Sirchio, appeal from the
judgment entered after the jury’s defense verdict in their suit for personal
injury and loss of consortium. Mr. Sirchio maintains that he slipped on black
ice on the sidewalk of Appellee, Corey MacDougall, due to Appellee’s
negligence. Both Appellants maintain that the lighting in the area was
inadequate to see the ice. On appeal, they challenge the trial court’s
admission of testimony from the defense’s expert engineer on lighting
conditions, as beyond the fair scope of his pre-trial written report. They claim
they were misled and prejudiced, and seek a new trial. We conclude that the
trial court committed no abuse of discretion or error of law in admitting the
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* Retired Senior Judge assigned to the Superior Court.
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now-challenged testimony, and Appellants were not improperly prejudiced by
it. Accordingly, we affirm.
This is a slip-and-fall case, asserting premises liability. Mr. Sirchio
alleged that on or about January 28, 2013, about 10:15 p.m., he sustained
multiple fractures and related leg injuries when he fell on black ice on the
sidewalk adjacent to the house owned by Appellee in Conshohocken.1 The
fractures required surgery, including the insertion of screws and plates for
stabilization. Mr. Sirchio called his wife after he fell. Mrs. Sirchio and her
father (who was staying with them on a visit from Texas), came and picked
Mr. Sirchio up.
At the time he fell, Mr. Sirchio was walking home from watching a Flyers’
hockey game on T.V. at a friend’s house. He conceded that he had a couple
of alcoholic drinks while watching the game, but denied that he was impaired
at all on the walk home. (See Deposition of Joshua Sirchio, 5/29/14, at 43-
44, 54).2
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1 The exact date is somewhat problematic and inconsistently referenced
throughout the record as either January 26, January 28, or January 29, 2013.
The complaint states the date of the incident was January 26, 2013. (See
Complaint, 11/14/13, at 2 ¶¶ 3, 4). Appellants’ brief gives the date as January
28, 2013. (See Appellants’ Brief, at 8). Mr. Sirchio remembered he fell on a
Saturday. January 26, 2013 was a Saturday. In any event, the date is not
dispositive of any of the issues raised in this appeal, and neither party raises
the discrepancy as an issue on appeal.
2Mr. Sirchio testified that he was returning home early after his wife called
and told him she was sick from her pregnancy. Mrs. Sirchio had nausea,
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The weather was not in substantial dispute. It had snowed earlier that
evening. It had also snowed the night before. It stayed below freezing both
days. There is no dispute that Appellee had shoveled the earlier snow off the
sidewalk. Mr. Sirchio testified that on his way home that night he would walk
on the sidewalk where the snow had been shoveled, and walk on the grass
next to the sidewalk where it had not.
Appellants’ theory of the case, in essence, was that Mr. Sirchio slipped
and fell “on an isolated batch of ice” [sic] on the sidewalk formed by the run-
off of water or melted snow from a downspout on Appellee’s house, which re-
froze in the very cold temperature. (Appellants’ Brief, at 9; see also id. at
8-13; Deposition of Joshua Sirchio, at 50-52). The downspout was directed
to flow into a flowerbed. However, if the outflow exceeded the capacity of the
flowerbed to absorb it, water continued to flow downward, pooled in a buckle
of the sidewalk and in sub-freezing temperature became ice. Appellants
maintain that Appellee had notice of the dangerous condition (the pooling and
freezing of run-off from the downspout to the sidewalk), but failed to correct
it.
In his deposition, Mr. Sirchio testified that the lack of lighting
contributed to his fall. (See Deposition of Joshua Sirchio, at 50-52; also
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commonly known as “morning sickness” even though it can occur at any time
of the day. Mrs. Sirchio identified her more severe form as hyperemesis
[gravidarum]. (See N.T. Trial, 6/20/16, at 58, 84).
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quoted in Appellants’ Brief, at 9-10). He stated that he could not see the
patch of ice because there was not much lighting. (See id.). Mr. Sirchio
maintained that a very large tree blocked the light from the street lamp across
the street, even though it was January and there were no leaves on the tree.
(See id.).
Both parties engaged professional engineers. Appellants retained David
J. Littlewood, P.E. of Fleisher Forensics. Appellee engaged Daniel M. Honig,
P.E. of Structures Consulting Engineers. Both Mr. Littlewood and Mr. Honig
prepared written reports. Both also testified at trial. Mr. Littlewood’s report
emphasized perceived violations of various building codes. (See
Littlewood/Fleisher Forensics Report, 8/31/15, at 9-13). Mr. Honig’s report,
while denying the violation of applicable building code provisions, concluded
generally that the fall “simply occurred” because Mr. Sirchio failed to exercise
proper caution on an exterior walkway in inclement weather.
(Honig/Structures Consulting Engineers Report, 1/12/16, at 8).
Both reports noted the assertions of the parties concerning the lighting,
ambient and augmented, and the respective opinions of the parties on
whether the bare tree obscured the lighting from the street lamps or not.
(See, e.g., id. at 1).
Both engineers state in their reports that Mrs. Sirchio testified that when
she arrived to pick up her husband, the ice was not visible until she used the
flashlight on her cellphone. (See Littlewood/Fleischer Forensics Report,
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8/31/15, at 2; see also Honig/Structures Consulting Engineers Report,
1/12/16, at 2; both cite the deposition of Allison Sirchio, 5/29/14, at 29).3
Based on the available record, there is no dispute that Appellants’
counsel, in his opening statement at trial, told the jury “it is extremely difficult
to see when” the water from the downspout freezes on the sidewalk. (N.T.
Trial, 6/20/16, at 14).4 He added that the jury would hear evidence that “you
can not see any light really in this area. That it is extremely dark.” (Id. at
15).
At trial, during direct examination, counsel for Appellee, Attorney Eamon
Merrigan, questioned Mr. Honig as to whether the patch of ice was
“discernible” or “conspicuous.” (See N.T. Trial, 6/21/16, at 32-35). Counsel
for Appellants, Attorney Brian D. Kent, objected that Mr. Honig’s report did
not include the term “conspicuous” or “conspicuity.” (See id. at 35).
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3 After diligent search, we are unable to find Mrs. Sirchio’s original deposition
in the record before us. There are many problems with this record. (See n.4
immediately below; see also infra at 8-10).
4We note with regret that in addition to the transcript order problem identified
by the trial court in its opinion (which forms the basis of Appellants’ first
question presented on appeal), both Appellants’ Appendix and Reproduced
Record appear to have been assembled in virtually random order. Neither
contains a table of contents or a comprehensive index even though the
Reproduced Record runs over four hundred pages and the Appendix, over
seven hundred pages. Because of these problems, discussed more fully
below, we cite the testimony and other references provided in Appellants’
Appendix and Reproduced Record, to the extent we are able. (See infra at
8-10).
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Attorney Merrigan conceded that the Honig report did not include the
term “conspicuous” but argued that the term was a general reference to the
conclusions on page eight (which concluded the fall was due to Mr. Sirchio’s
failure to exercise proper caution).
After initially sustaining Attorney Kent’s objection, the trial court decided
to give Merrigan “a little leeway,” allowing him to ask a general question on
the topic. (Id. at 35). Attorney Kent responded, “Fair enough.” (Id.).
Mr. Honig concluded that the walkway had been properly cleared, and
any ice, water or combination would have been “conspicuous” and
“discernible,” enabling Mr. Sirchio to proceed with caution. (Id. at 36).
On cross-examination, Attorney Kent questioned Mr. Honig’s
assumptions, and challenged his methodology. (See id. at 38-62). He elicited
the admission that Mr. Honig had not visited the accident scene at night or
otherwise, to ascertain lighting conditions, as Mr. Littlewood had. Mr. Honig
further admitted he did not take specific measurements of the lighting
conditions, which he maintained were not required for his evaluation. Instead,
he testified that he reviewed photographs supplied by defense counsel, and
looked the property up on “Google Street View/s.” (Id. at 39).
Counsel for Appellants even got Mr. Honig to admit several times that
Appellee had the dripping water condition repaired by diverting the water flow
under the sidewalk, but not until after the accident occurred. (See e.g., id.
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at 40, 49, 50). Defense counsel Merrigan finally stipulated to the repair. (See
id. at 50).5
At the conclusion of testimony, the jury rendered a verdict which found
both parties negligent as a factual cause of the harm, in the following
proportions: Appellee MacDougall, 35% negligent; and Appellant Joshua
Sirchio, 65% negligent. The jury awarded no damages. (See Verdict Sheet,
dated 6/22/16, and filed 6/24/16, at 1-3). The jury’s attribution of 65%
comparative negligence to Mr. Sirchio precluded recovery. (See Trial Court
Opinion, 3/09/17, at 2); see also 42 Pa.C.S.A. § 7102(a), Comparative
Negligence; Terwilliger v. Kitchen, 781 A.2d 1201, 1209 (Pa. Super. 2001)
(“Pennsylvania’s comparative negligence statute does not bar recovery by the
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5We note that Pennsylvania Rule of Evidence 407, Subsequent Remedial
Measures, provides:
When measures are taken by a party that would have made
an earlier injury or harm less likely to occur, evidence of the
subsequent measures is not admissible against that party to
prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose
such as impeachment or−if disputed−proving ownership, control,
or the feasibility of precautionary measures.
Pa.R.E. 407.
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plaintiff as long as the plaintiff’s causal negligence is not greater than that of
the defendant”).
Appellants timely appealed, after the denial of their post-sentence
motion.6 However, the trial court found that they did not follow the proper
procedures to order transcripts for the appeal. (See Trial Ct. Op., at 3). As
a result, the trial court found all issues waived, and requested that this Court
quash the appeal on that basis. (See id. at 3, 4). Based on this reasoning
the trial court did not address the merits of the case.
Appellants present two questions for our review on appeal:
1. Whether Appellants have waived the merits of their
appeal for failing to request the transcripts necessary for this
Honorable Court to address the merits of their appeal when
Appellants requested the necessary documents in November of
2016 and have taken steps to supplement and correct the certified
record sent to the Superior Court?
2. Whether the [t]rial [c]ourt abused its
discretion/committed an error of law when it denied Appellants’
Motion for Post Trial Relief and abused its discretion/committed an
error of law when it permitted the Appellee’s liability expert,
Daniel M. Honig, P.E, to testify at trial to opinions well beyond the
scope of his expertise and pre-trial report as well as speculate to
the lighting conditions at the time of the incident at issue since he
had never been to the incident site, let alone at night to view the
lighting and visibility conditions, despite Appellants’
interrogatories requesting any and all pre-trial expert opinions and
when said testimony clearly influenced the outcome of the trial?
(Appellants’ Brief, at 6).
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6Appellants filed a court-ordered statement of errors on December 6, 2016.
See Pa.R.A.P. 1925(b).
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On Appellants’ first issue, we note that following the trial court’s opinion,
their counsel attempted to supplement the record. Counsel represents that
he “adequately requested” transcripts, (Appellants’ Brief, at 31), and
“completely complied” with the applicable rules. (Id. at 29). However, this
explanation finds little support in the record, and, as noted, is contradicted by
the findings of the trial court.
Counsel argues in the alternative that even if the transcript request was
defective, the appeal is valid and should proceed. (See id. at 30). This is a
misreading and unwarranted extension of Pa.R.A.P. 904(c), unsupported by
reference to any other controlling authority. Counsel’s argument is
unpersuasive.7 Furthermore, counsel cites the dissent in Commonwealth
v. Hawk, 562 A.2d 858, 859 (Pa. Super. 1989), for his misreading of the law
to the effect that it is the burden of the trial court, not the Appellant, to obtain
an omitted transcript. (See Appellants’ Brief, at 32-33).
Counsel for Appellants complains of “a lack of communication and
guidance from the [c]ourt[.]” (Id. at 33). Counsel proffers a stipulation
signed by counsel for both parties to correct or modify the record pursuant to
Pa.R.A.P. 1926(b)(2). While counsel for Appellee takes no position on this
issue, he acknowledges the stipulation and states that Appellants appear to
have corrected any issues with the record. (See Appellee’s Brief, at 13 n.1).
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7 At the outset, counsel repeatedly uses “proscribe” incorrectly as a synonym
for “prescribe.” (See Appellants’ Brief, at 28, 30, 31).
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Accordingly, we are most sympathetic to the issues and problems
identified by the trial court. We could dismiss this appeal solely for Appellants’
failure to comply with the pertinent rules. See Pa.R.A.P. 1911(d) (appellate
court may take appropriate action for failure to comply with procedures for
request of transcript, including dismissal).
Nevertheless, in view of the stipulation of the parties, counsel’s efforts
to respond to the trial court’s opinion, and the absence of any dispute about
the accuracy of the presentation of those facts (in contrast to the
interpretation of those facts), to avoid further delay and the prospect of
repetitious appeals, in the interests of justice and judicial economy we will
“regard as done that which ought to have been done” and decide this appeal
on the merits based on the record now before us. Grossi v. Travelers
Personal Ins. Co., 79 A.3d 1141, 1145 n.1 (Pa. Super. 2013), appeal denied,
101 A.3d 103 (Pa. 2014) (citation omitted).
Appellants’ second question is a hybrid of two issues, asserting error or
abuse of discretion in the admission of testimony at trial by Appellee’s expert
Daniel Honig on lighting conditions at the time of the accident, and error or
abuse of discretion in the subsequent denial of their motion for a new trial.
(See Appellants’ Brief, at 6). Appellants characterize the challenged
testimony as outside of the fair scope of Mr. Honig’s expert report. They claim
prejudice, asserting they were prevented from presenting a meaningful
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response to the testimony, and they “were misled as to the appropriate
response.” (Id. at 25). We disagree.
Our standard of review is well-settled.
We review a trial court’s evidentiary decisions for an abuse of discretion.
See Schmalz v. Mfrs. and Traders Trust Co., 67 A.3d 800, 802–03 (Pa.
Super. 2013); Smith v. Paoli Mem'l Hosp., 885 A.2d 1012, 1016 (Pa. Super.
2005) (“Decisions regarding admission of expert testimony, like other
evidentiary decisions, are within the sound discretion of the trial court.”)
(citations omitted). In this context, “[d]iscretion is abused when the course
pursued represents not merely an error of judgment, but where the judgment
is manifestly unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill will.”
Schmalz, supra at 803 (citation omitted).
“To reverse the trial court, the [S]uperior [C]ourt must consider all the
evidence in the light most favorable to the appellee and conclude that the
verdict would be changed if another trial were granted.” Woodard v.
Chatterjee, 827 A.2d 433, 440 (Pa. Super. 2003) (citation omitted).
The fair scope rule, addressed in Pa.R.C.P. 4003.5(c), provides that an
expert witness may not testify on direct examination concerning matters
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which are either inconsistent with or go beyond the fair scope of matters
testified to in discovery proceedings or, as here, included in a separate report.8
Thus, [e]xperts may testify at trial concerning matters
which are within the fair scope of a pretrial report. The avoidance
of unfair surprise to an adversary concerning the facts and
substance of an expert’s proposed testimony is the primary
purpose of the rule requiring that testimony be within the fair
scope of the pretrial report.
Walsh v. Kubiak, 661 A.2d 416, 419-20 (Pa. Super. 1995) (en banc), appeal
denied, 672 A.2d 309 (Pa. 1996) (citations and quotation marks omitted).
In Wilkes–Barre Iron & Wire Works, Inc. v. Pargas of Wilkes–
Barre, Inc., 502 A.2d 210 (Pa. Super. 1985), this Court noted that:
[I]t is impossible to formulate a hard and fast rule for determining
when a particular expert’s testimony exceeds the fair scope of his
or her pretrial report. Rather, the determination must be made
with reference to the particular facts and circumstances of each
case. The controlling principle which must guide is whether the
purpose of Rule 4003.5 is being served. The purpose of requiring
a party to disclose, at his adversary’s request, “the substance of
the facts and opinions to which the expert is expected to testify”
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8 Rule 4003.5. Discovery of Expert Testimony, provides in pertinent part as
follows:
(c) To the extent that the facts known or opinions held by
an expert have been developed in discovery proceedings under
subdivision (a)(1) or (2) of this rule, the direct testimony of the
expert at the trial may not be inconsistent with or go beyond the
fair scope of his or her testimony in the discovery proceedings
as set forth in the deposition, answer to an interrogatory, separate
report, or supplement thereto. However, the expert shall not be
prevented from testifying as to facts or opinions on matters on
which the expert has not been interrogated in the discovery
proceedings.
Pa.R.C.P. 4003.5(c) (emphasis added).
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is to avoid unfair surprise by enabling the adversary to prepare a
response to the expert testimony. See Augustine v. Delgado,
332 Pa. Super. [194] at 199, 481 A.2d [319] at 321 [ (1984) ]
(“Pa.R.Civ.P. 4003.5 favors liberal discovery of expert witnesses
and disfavors unfair and prejudicial surprise”); Martin v. Johns–
Manville Corp., 322 Pa. Super. [348] at 358, 469 A.2d [655] at
659 [ (1983) ] (“[W]e have found experts’ reports to be adequate
. . . when the report provides sufficient notice of the expert’s
theory to enable the opposing party to prepare a rebuttal
witness.”)
In other words, in deciding whether an expert’s trial
testimony is within the fair scope of his report, the accent is on
the word “fair.” The question to be answered is whether, under
the particular facts and circumstances of the case, the discrepancy
between the expert’s pretrial report and his trial testimony is of a
nature which would prevent the adversary from preparing a
meaningful response, or which would mislead the adversary as to
the nature of the appropriate response.
Id. at 212–13.
Here, mindful of this controlling authority, we have no difficulty or
hesitation in concluding that the trial court committed no error of law and
acted well within the proper scope of discretion in admitting the challenged
testimony. On independent review, we agree with the learned trial judge’s
observation at the hearing on the post-verdict motion that “I have a hard time
[at the claim of surprise] because lighting was pretty much a big issue during
this entire trial[.]” (N.T. Post-Trial Motions, 8/18/16, at 14).
The record before us supports the trial court’s skepticism. Mr. Sirchio
testified in his deposition that he believed the limited lighting conditions,
including a large tree, which he asserted blocked light from the streetlamp,
contributed to his fall. (See Deposition of Joshua Sirchio, at 50-51).
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Appellants’ professional engineer, David J. Littlewood, noted in his
report both Allison Sirchio’s testimony that ice was not visible until she used
the flashlight feature of her cellphone, and Joshua Sirchio’s own testimony of
minimal lighting. (See Littlewood/Fleischer Forensics Report, 8/31/15, at 2;
see Expert Report of David J. Littlewood, P.E., at 2, 8). Appellee’s engineer,
Daniel M. Honig, P.E., acknowledged these assertions about lighting in his own
report. (See Honig/Structures Consulting Engineers Report, 1/12/16, at 1, 2,
7).
When the trial court allowed defense counsel to ask a general question
on the issue of visibility of black ice, Appellants’ counsel responded, “Fair
enough.” (N.T. Trial, 6/21/16, at 35). He did not object again.
“A new trial is not warranted merely because some irregularity occurred
during the trial or another trial judge would have ruled differently; the moving
party must demonstrate to the trial court that he or she has suffered prejudice
from the mistake.” Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122
(Pa. 2000) (citations omitted).
Here, Appellants did not suffer prejudice from the trial court’s ruling.
Their counsel had ample opportunity to cross-examine Mr. Honig, and did so.
(See N.T. Trial, 6/21/16, at 38-62). He questioned Mr. Honig’s assumptions,
and challenged his methodology. He elicited the admission that Mr. Honig had
not visited the accident scene at night, or ever, to ascertain lighting conditions.
Mr. Honig further admitted he did not take specific measurements of the
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lighting conditions, which he maintained were not required for his evaluation.
Instead, he reviewed photographs supplied by defense counsel, and looked
the property up on Google. Counsel conducted a capable and productive
cross-examination. Appellants were not deprived of the opportunity for “a
meaningful response” to Mr. Honig’s testimony. (Appellants’ Brief, at 49).
Appellants’ assertion that the jury may have accorded Mr. Honig’s
testimony greater weight than other evidence because he is an expert is bald
speculation, unsupported by the record or controlling authority. Mr.
Littlewood had already testified as Appellants’ expert. Counsel did not recall
him.
“As we have held many times, it is the province of the jury to weigh
questions of fact and assess the credibility of expert witnesses.” M.C.M. v.
Milton S. Hershey Med. Ctr. of PA State Univ., 834 A.2d 1155, 1159 (Pa.
Super. 2003), appeal denied, 856 A.2d 834 (Pa. 2004) (citation omitted).
Here, when polled at the request of Appellants’ counsel, the jurors
unanimously confirmed their verdict. (See N.T. Trial, 6/22/16, at 153-55).
Viewing the evidence in the light most favorable to the Appellee, as we
must under our standard of review, we conclude the testimony was within the
fair scope of the expert’s report, and based on numerous prior references
throughout the trial. There is no support for the claim of surprise. The trial
court did not err or abuse its discretion. The trial court committed no error of
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law and properly exercised its discretion in admitting the testimony challenged
in this appeal. Appellants are not entitled to a new trial.
Judgment affirmed.
Judge Lazarus joins the Memorandum.
Judge Bowes files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2018
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