Jones, C. v. McNaughton Company, PC

J-A26016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CYNTHIA C. JONES, ET AL. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants

v.

MCNAUGHTON COMPANY, PC, ET AL.

Appellee No. 12 MDA 2015

Appeal from the Judgment of December 15, 2014
In the Court of Common Pleas of Cumberland County
Civil Division at No.: 2010-05283

CYNTHIA C. JONES, ET AL. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.

MCNAUGHTON COMPANY, PC, ET AL.

APPEAL OF: MCNAUGHTON HOMES AND
HAMPTON CONSTRUCTION
No. 105 MDA 2015
MANAGEMENT, LIMITED D/B/A
HAMPTON CONSTRUCTION, LIMITED

Appeal from the Judgment Entered on December 15, 2014
In the Court of Common Pleas of Cumberland County
Civil Division at No.: 2010-05283

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.: FILED DECEMBER 15, 2015

Cynthia Jones and Daniel Jones (“Appellants”) appeal the judgment

entered in their favor on December 15, 2014. Specifically, they contend that

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
J-A26016-15

the trial court erred in entering a non-suit on their punitive damages claim.

As well, they contest the trial court’s refusal to qualify Appellant Mr. Jones as

an expert on structural damage and causation. McNaughton Homes and

Hampton Construction Management (collectively, “Appellees”) have cross-

appealed, seeking relief on a separate matter solely in the event that we find

either of Appellants’ issues meritorious.1 Because we find no merit to

Appellants’ issues and affirm the judgment, we need not address Appellees’

cross-appeal.

The trial court has provided the following brief account of the facts

underlying this appeal, which Appellants not only endorse but reproduce:

[Appellants’] home and property suffered significant damage
from flooding and silt spillover resulting from [Appellees’]
development of an adjacent property. [Appellants] alleged that
this damage was the result of [Appellees’] intentional and
deliberate decision to accelerate their development plan by
combining multiple development phases into one phase, leading
to grossly inadequate swales,[2] an improperly located detention
basin, and a mountain of piled topsoil with a very steep grade
that led to [Appellants’] property. On the basis of that conduct,
[Appellants] demanded punitive damages.

In the early stages of this case, [Appellees] filed [p]reliminary
[o]bjections to [A]ppellants’ [a]mended [c]omplaint objecting to
all allegations of wanton, reckless, and outrageous conduct
____________________________________________

1
Although Appellees were found liable for damages, the amount was
considerably less than Appellants sought, and Appellees are content to
accept the verdict as it stands. Their appeal, therefore, is contingent upon
our hypothetical grant of a new trial to Appellants.
2
A swale is a V-shaped drainage ditch. See Notes of Testimony,
12/10/2014, at 45.

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contained therein. A two[-]judge panel, including the
undersigned, overruled that objection on the basis that the
[a]mended [c]omplaint presented a factual question for jury
determination. Subsequently, [Appellees] filed a [m]otion for
[p]artial [s]ummary [j]udgment as to the question of punitive
damages. A panel of judges, speaking through the undersigned,
denied that motion on the basis that the question of punitive
damages remained a question of material fact to be determined
by a jury.

During the jury trial, at the close of [Appellants’ case-in-chief],
[Appellees] moved for a compulsory non[-]suit on the issue of
punitive damages and the court granted that motion, over
strenuous objection from [Appellants’] counsel, thereby
removing the question of punitive damages from the jury’s
consideration. Ultimately, the jury returned a verdict in favor of
[Appellants] in the amount of $52,480.00. Following the verdict,
both parties filed [p]ost-trial motions which were argued before
a three[-]judge panel. All motions were denied.

Trial Court Opinion (“T.C.O.”), 4/8/2015, at 2-3; see Brief for Appellants

at 7.

On December 15, 2014, judgment was entered in favor of Appellants.

On December 30, 2014, Appellants filed a notice of appeal. On January 12,

2015, Appellees filed their joint notice of cross-appeal. The trial court

directed the parties to file concise statements of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) in orders entered, respectively, on

January 5 and January 13, 2015. The parties timely complied. On April 8,

2015, the trial court filed its opinion pursuant to Rule 1925(a), ripening this

case for our review.

Appellants raise the following issues for our consideration:

A. Did the trial court commit an error of law and/or abuse
[its] discretion when [it] granted [Appellees] a compulsory non-
suit as to punitive damages?

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B. Did the [trial] court commit an error of law or several
errors of law in precluding testimony as to what [Appellants]
observed and did in repairing their home after the first few
weeks of cleanup because [Appellant Mr. Jones] was not a
structural engineer and testimony from a structural engineer was
indispensable as to [the] causal relationship between
[Appellees’] negligence and damages other than cleanup, i.e.,
equivalent of [sic] partial summary judgment as to structural
damages?

Brief for Appellants at 6. For the reasons that follow, we find that these

issues are unavailing. Consequently, we need not consider Appellees’

materially identical cross-appeals, which they submitted for our review only

in the event that Appellants prevailed on one or both of their claims.

See Brief for McNaughton Homes at 12; Brief for Hampton Construction

Management at 42.

Appellants first challenge the trial court’s grant of Appellees’ motion for

a non-suit at the close of Appellants’ case-in-chief, which Appellants

pervasively misidentify as a directed verdict.3 The legal standard that

governs the entry of a non-suit is as follows:

____________________________________________

3
Appellees argue that Appellants have waived their challenge to the
trial court’s entry of a non-suit, because Appellants do so in the guise of
challenging a putative directed verdict. Rather than challenge the non-suit
as such, Appellants treated it as a directed verdict and requested a new trial
in their post-trial motion. It is true that Pa.R.C.P. 227.1 distinguishes
between a directed verdict and removal of a non-suit. It also is true that an
entry of non-suit is not appealable unless and until the trial court rules upon
a motion to remove a non-suit. See Conte v. Barret’s Bootery, Inc.,
467 A.2d 391, 392 (Pa. Super. 1983) (“The right to appeal does not exist
until a motion to have a non[-]suit is first filed with and denied by the trial
court.”). However, Rule 227.1 provides that one may challenge a non-suit in
(Footnote Continued Next Page)

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Our standard of review in determining the propriety of an entry
of non[-]suit is that it is proper only if the fact[-]finder, viewing
all the evidence in favor of the plaintiff, could not reasonably
conclude that the essential elements of a cause of action have
been established. Biddle v. Johnsonbaugh, 664 A.2d 159
(Pa. Super. 1995); Orner v. Mallick, 639 A.2d 491, 492
(Pa. Super. 1994). “When a non[-]suit is entered, the lack of
evidence to sustain the action must be so clear that it admits no
room for fair and reasonable disagreement.” Gregorio v.
Zeluck, 678 A.2d 810, 813 (Pa. Super. 1996) (citing Dion v.
Graduate Hosp. of Univ. of Penna., 520 A.2d 876
(Pa. Super. 1987)). A compulsory non[-]suit can only be
granted in cases where it is clear that a cause of action has not
been established and the plaintiff must be given the benefit of all
favorable evidence along with all reasonable inferences of fact
arising from that evidence, resolving any conflict in the evidence
in favor of the plaintiff. Coatesville Contractors v. Borough
of Ridley, 506 A.2d 862 (Pa. 1986); Poleri v. Salkind,
683 A.2d 649 (Pa. Super. 1996). The fact-finder, however,
cannot be permitted to reach a decision on the basis of
speculation or conjecture. Biddle, 664 A.2d at 161.

Joyce v. Boulevard Physical Therapy & Rehab. Ctr., P.C., 694 A.2d

648, 652-53 (Pa. Super. 1997) (citations modified).

Appellants’ punitive damage claims appear to hinge upon a lone

proposition—that Appellees undertook to perform several different phases of

_______________________
(Footnote Continued)

post-trial motions. Here, albeit using incorrect terminology, Appellants
raised the trial court’s refusal to allow their punitive damage claim to reach
the jury, which is the same outcome as would have obtained had the ruling
come in the form of a directed verdict. Because the trial court was given
due opportunity to change its ruling, and because the trial court addressed
the merits of this issue, we decline to find the issue waived for purposes of
appeal.

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construction simultaneously (Phases XII, XVIII, and XIX),4 when the

governing plans and/or permits required them to reach 70% completion of

the earlier phase before subsequent phases could commence.

The decision to combine three phases into one using a revision
to Phase XII only was obviously intentional, the result of
deliberate decisions made by [Appellees] without a new
combination plan. The earth disturbances took place over a
five[-]week period from 8/7/08-9/9/08 with five weeks of daily
decisions.

****

There was testimony of extensive trespass onto [Appellants’]
land, grossly inadequate swales, a mis-located detention basin,
and a mountain of piled top soil with a very steep grade that led
to [Appellants’] property.

Brief for Appellants at 17-18 (emphasis in original).

Appellants first argue that the trial court erred in granting a non-suit

because the same court, in a two-judge panel including the trial judge,

previously denied Appellees’ preliminary objections to Appellants’ punitive

damages claim. Later, the court, in a three-judge panel including the trial

judge, denied Appellees’ motion for summary judgment on the same claim.

They contend that this triggered the law of the case doctrine, specifically the

coordinate jurisdiction rule.

____________________________________________

4
“Phase” refers to a discrete area of the larger development project.
See Notes of Testimony, 12/10/2014, at 52-53. Thus, the proposition is
that certain conditions in a given area must be attained before work could
commence in other areas.

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One of the distinct rules that are encompassed within the “law of
the case” doctrine is the coordinate jurisdiction rule. Generally,
the coordinate jurisdiction rule commands that[,] upon transfer
of a matter between trial judges of coordinate jurisdiction, a
transferee trial judge may not alter resolution of a legal question
previously decided by a transferor trial judge. More simply
stated, judges of coordinate jurisdiction should not overrule each
other’s decisions.

Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (footnote and citations

omitted).

Appellants’ coordinate jurisdiction argument overlooks the differences

in procedural posture that distinguish a trial court’s rulings on preliminary

objections, which tests only the sufficiency of the pleadings; summary

judgment, which tests only the sufficiency of the plaintiff’s proffer of

evidence following discovery and other pretrial events; and a motion for a

non-suit, which tests the sufficiency of the evidence that plaintiff has

adduced at trial.

Appellants cite Clearwater Concrete & Masonry, Inc., v. West

Philadelphia Financial Services Institution, 18 A.3d 1213

(Pa. Super. 2011),5 for the proposition that the law of the case doctrine

____________________________________________

5
Clearwater Concrete was abrogated on different grounds than those
for which it is cited herein by Bricklayers of Western Pennsylvania
Combined Funds, Inc., v. Scott’s Development Co., 41 A.3d 16
(Pa. Super. 2012) (en banc). Bricklayers was, in turn, reversed on still
other grounds by our Supreme Court. Bricklayers of W. Penna.
Combined Funds, Inc., v. Scott’s Dev. Co., 90 A.3d 682 (Pa. 2014). The
propositions for which Clearwater Concrete is cited herein, however, are
(Footnote Continued Next Page)

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“does not preclude a single judge from reviewing his or her previous

decisions, [but] it does preclude a judge from reviewing a decision made by

a different judge, or by additional judges.” Brief for Appellants at 21. But

Clearwater Concrete, itself, demonstrates the futility of their argument.

In Clearwater Concrete, this Court noted that the coordinate jurisdiction

rule does not apply to bar rulings on summary judgment that diverge from

earlier rulings on preliminary objections.

[A] trial court exercises different types of review for preliminary
objections and motions for summary judgment. “When
reviewing preliminary objections[,] the trial court looks to the
pleadings, but, in considering a motion for summary judgment[,]
the trial court weighs the pleadings, depositions, answers to
interrogatories, admissions and affidavits.” Herczeg v.
Hampton Twp. Mun. Auth., 766 A.2d 866, 870
(Pa. Super. 2001).

Clearwater Concrete, 18 A.3d at 1216-17 (citation modified); see

Hunter v. City of Phila., 80 A.3d 533, 537 (Pa. Cmwlth. 2013) (“[T]he

coordinate jurisdiction rule[] does not apply where the motions are of a

different type, and does not bar a judge on summary judgment from

overruling another judge’s decision on preliminary objections . . ., even on

an identical legal issue.” (internal quotation marks omitted)). As well, this

Court has held unequivocally that a grant of a non-suit by one judge is not

subject to the coordinate jurisdiction rule when a prior judge denied

_______________________
(Footnote Continued)

consistent with voluminous case law, and we rely upon Clearwater
Concrete only to illustrate the problems with Appellants’ argument.

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summary judgment on the same issue, “[s]ince a motion for summary

judgment and a motion for non[-]suit are not motions of the same kind.”

Parker v. Freilich, 803 A.2d 738, 745-46 (Pa. Super. 2002); cf. Ryan v.

Berman, 813 A.2d 792, 795 (Pa. 2002) (holding that the coordinate

jurisdiction rule did not bar a judge from allowing defendant to amend

answer in light of trial evidence when a different judge had denied a pre-trial

motion to do so). Consequently, Appellants’ invocation of the coordinate

jurisdiction rule is unavailing, and we need not consider it further.

This leaves us to consider Appellants’ argument that the evidence

presented at trial in support of punitive damages was sufficient to warrant

submission to a jury.

[T]he purpose of punitive damages is to punish outrageous and
egregious conduct done in a reckless disregard of another’s
rights; it serves a deterren[t] as well as a puni[tive] function.
Schecter v. Watkins, 577 A.2d 585, 595 (Pa. Super. 1990).
Therefore, under the law of this Commonwealth, a court may
award punitive damages only if an actor’s conduct was
malicious, wanton, willful, oppressive, or exhibited a reckless
indifference to the rights of others. SHV Coal, Inc. v.
Continental Grain Co., 587 A.2d 702, 704 (Pa. 1991); Rizzo
v. Haines, 555 A.2d 58 (Pa. 1989).

Johnson v. Hyundai Motor Am., 698 A.2d 631, 639 (Pa. Super. 1997)

(citations modified).

In pressing this issue, Appellants rely heavily upon their pleadings and

conclusory assertions about what evidence was adduced at trial, few of

which are supported by citations to the record. See, e.g., Brief for

Appellants at 17-18 (“Virtually all of the Amended Complaint facts were

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[proved] through undisputed exhibits. The testimony at trial focused upon

witness after witness confirming the factual allegations of the Amended

Complaint and referencing the undisputed exhibits supporting [Appellants’]

claims of outrageous conduct by [Appellees] . . . .”); id. at 18 (“There was

testimony of extensive trespass onto [Appellants’] land, grossly inadequate

swales, a mis-located detention basin, and a mountain of piled top soil with

a very steep grade that led to [Appellants’] property.”). Appellants ask,

“What happened to the Amended Complaint allegations? Why did they

suddenly become insufficient? What about the Court’s own statement of

facts?” Id. at 20. Faced with such a flurry of rhetorical questions, our

answer typically is “You tell us.” Appellants never do.

The trial court explains the basis for its grant of a non-suit as follows:

[Appellants] failed to introduce . . . evidence of outrageous
conduct by either of [Appellees] and therefore the question of
punitive damages was not submitted to the jury. We are
confident that [Appellees] will regale the appellate court(s) with
tales of our wisdom, albeit delayed in surfacing. Similarly,
[Appellants] will respectfully criticize court rulings in general and
this one in particular. Moreover, all parties’ briefs will be replete
with references to the voluminous transcript. Because our
review of this transcript elicited PLSD (Post Litigation Stress
Disorder), in deference to the [Superior C]ourt and its clerks, we
will not add to your burden.

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T.C.O. at 7 (emphasis in original). As it turns out, Appellants’ brief not only

is not replete with such references, it is almost devoid of them.6

The principal problem with Appellants’ argument is that, in criticizing

the trial court for providing insufficient explanation for its grant of a non-

suit, they neglect to acknowledge that it is not incumbent upon the trial

court to prove a negative, i.e., that Appellants failed to produce sufficient

evidence. Rather, it is Appellants’ burden to demonstrate with citations to

the record and reasoned argument that they did produce such evidence.

See Pa.R.A.P. 2119(c) (“If reference is made to the pleadings, evidence,

charge, opinion or order, or any other matter appearing in the record, the

argument must set forth, in immediate connection therewith, or in a

footnote thereto, a reference to the place in the record where the matter

referred to appears.” (emphasis added)). This is especially important in a

case, such as this, with a voluminous trial record. The appellant who

expects this Court to comb through a several-thousand-page record in an

effort to substantiate the appellant’s bald assertions of evidentiary

sufficiency will be sorely disappointed.
____________________________________________

6
Neither is Appellants’ argument terribly respectful of the trial court.
See Brief for Appellants at 18 (“It is incomprehensible how the same facts
withstood the pre-trial challenges with virtually the same standard of review
as a compulsory non-suit, but were not sufficient to withstand [Appellees’]
end of [Appellants’] case [m]otion.”), 19 (“The [trial court] ignored the
standard of review . . . .”), 20 (“The [trial court] ignores the law of the case
doctrine, the devastating facts at trial and granted a directed verdict without
explaining his reasons.”).

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As noted, supra, Appellants rely more or less exclusively upon their

allegations that Appellees recklessly and wantonly commenced work on

Phases XVIII and XIX of their plan before phase XII was 70% stabilized.7 As

the trial court notes, by the terms of Appellants’ own proffer, they intended

to establish that “[e]verything that [Appellees] did intentionally, knowingly,

willfully, what I would say wantonly, from the time they took plans that said

you were to do [Phases XII, XVIII, and XIX] separately, and they decided to

do them together.” Notes of Testimony (“N.T.”), 12/16/2014, at 19.

Even Appellants’ own expert witness, James Cieri, P.E., did not support

that assertion:

[Counsel for Appellants]: Mr. Cieri, we showed you what the
2.4 and the 4.2 acres were which would be [Phases] XII, XVIII
and XIX. Did we not point that out yesterday and today?

A. Yes.

Q. And the narrative described the sequence in which they
were to be constructed. What was the sequence that they were
to be constructed from the narrative? . . . .

A. The plan indicated that they were to do the work in Phase
XII, stabilize Phase XII prior to removing the erosion controls,
the temporary erosion controls from Phase XII before starting.
That was to be stabilized. When Phases XVIII and XIX were
implemented, there were separate [erosion and sedimentation]
control plans prepared for them.

Q. Did [the plans] clearly tell [Appellees] that [they] had to
finish XII before [they] started XVIII and XIX?
____________________________________________

7
70% stabilization is a term of art that refers to a condition wherein
70% of a disturbed area of land is stabilized with grass, matting, mulch, or
other permissible means. See Notes of Testimony, 12/10/2013, at 40-41.

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A. I don’t think that the narrative[8] clearly said that.

Q. But how about the [erosion and sedimentation] plans that
were created separately for XII, and separately for XVIII and
XIX. Did that clearly tell them that?

A. I do not recall that telling them that either. The narratives
were very similar in that they said that prior—what it said was
that the areas of disturbance needed to be 70 percent stabilized
before removing the temporary control measures. That’s what
both of them said.

N.T., 12/13/2013, at 64-65.

More importantly, though, we must bear in mind that, even if there

was a deviation from a plan provision that, on its face, required that Phase

XII achieve 70% stabilization before site work proceeded on Phases XVIII

and XIX, more than that must be demonstrated to establish a factual basis

upon which a jury might find, by clear and convincing evidence, that either

Appellee acted maliciously, wantonly, willfully, oppressively, or exhibited a

reckless indifference to the rights of others. See Johnson, supra.

Appellants’ own expert refused to aver that the plans that were approved by

the Cumberland County Conservation District (“CCCD”) categorically

required that Phase XII be 70% stabilized before work could commence on

Phase XVIII or XIX.

____________________________________________

8
“Narrative” refers to a written description of the erosion and
sedimentation control plan, which details “the controls that keep . .
accelerating sedimentation from occurring.” See N.T., 12/10/2013, at 18.
It attends the plans that were submitted to the Cumberland County
Conservation District for approval.

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In an extensive examination of Kimberley Falvey, the district

technician for CCCD responsible at all relevant times for the construction at

issue in this case, Appellants failed in their efforts to elicit from her a clear

statement that Appellants were precluded by the plans that she approved

from proceeding simultaneously on Phases XII, XVIII, and/or XIX.

Furthermore, Ms. Falvey testified that, as of August 21, 2008, her last visit

to the site before the September 9, 2008 flooding underlying Appellants’

claims, she determined that the erosion and sedimentation measures

implemented on the site were compliant with the approved plan and

conformed to her earlier August 14, 2008 identification of certain additional

measures that were required. See N.T., 12/10/2013, at 170-72.

Furthermore, Ms. Falvey approved the repairs that she observed in her first

post-flood visit to the site on September 15, 2008. Id. at 172-73.

To be clear, none of this suggests that Appellees at all times were fully

compliant with the approved plans. To the contrary, Ms. Falvey testified to

site plan deficiencies before and after the flood. However, she also testified

that the problems she observed, once identified, were corrected. However,

evidence of more than incidental, temporary non-compliance is necessary to

provide a basis upon which a jury could have concluded that either Appellee

acted with the requisite state of mind to sustain an award of punitive

damages. Ms. Falvey’s testimony that she determined that Appellees were

fully in compliance with the approved plans as of August 21, 2008, the date

of her last site visit before the September 9, 2008 flood, is hardly consistent

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with claims that Appellees acted with the requisite ill will or recklessness

necessary to establish a factual basis for the imposition of punitive damages.

To the contrary, it suggests that they had every reason to believe that they

were in compliance with the approved plan at that time.9 While there could,

in theory, be a factual dispute about these matters, one that would require a

jury determination, but Appellants provide only vague, conclusory

arguments to that effect, which lack any citations to testimonial evidence

that would establish such a factual dispute regarding Appellees’ conduct.

This is why the trial court entered a non-suit in favor of Appellees, and it is

why we affirm that ruling.

Appellants’ second issue embodies two separate trial court

determinations. First, they nominally contest the trial court’s determination

that, before claims of structural damage arising from the flood could be

submitted to a jury, Appellants were obligated to produce an expert witness

to establish that such damage was caused by the flood. Second, they argue

that, following that ruling, the trial court erred in finding that Appellant

____________________________________________

9
This does not categorically preclude the possibility that at some time
between August 21, 2008, and September 9, 2008, Appellees modified the
site and/or the sedimentation controls in ways that were non-compliant with
the approved plans. However, Appellants’ allegations and trial evidence, as
well as their argument before this Court, do not provide a factual basis for
such an occurrence, let alone that any such modification involved the
requisite intent necessary to support punitive damages.

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Mr. Jones was not qualified as an expert on the question of structural

damage and its causation. We address these contentions in turn.

With regard to the necessity to produce expert testimony in support of

causation, Appellants provide no legal argument. Rather, they merely

suggest challenges to the necessity of expert testimony on two occasions.10

They dedicate virtually all of their argument, as such, to establishing

Mr. Jones’ putative expert qualifications. Consequently, any intended

substantive challenge to the trial court’s threshold determination that expert

testimony was required to present a claim for certain damages is waived and

will not be considered. See Pa.R.A.P. 2119(a) (requiring appellant to

develop argument with reference to, and analysis of, relevant legal

authority); Burgoyne v. Pinecrest Community Ass’n, 924 A.2d 675, 680

n.6 (Pa. Super. 2007).

This leaves only the question whether Mr. Jones was qualified to testify

as an expert regarding the causes of any structural damage to the home, a

proposition made more complicated by the fact that Appellants undertook

____________________________________________

10
See Brief for Appellants at 23 (“[The trial court] abused its discretion
in its drastic limitations, need for expert testimony, finding Mr. Jones’ lack
of qualifications, and directing the jury as to the specific damages and
amounts that could be awarded . . . .” (emphasis added)), 24 (“Even if
expert testimony [was] required to casually [sic] relate the repairs following
the first few weeks of cleanup, Mr. Jones satisfied the prerequisites to testify
that he observed ‘structural damages’ and corrected same.”).

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repairs more or less immediately after the damage occurred, and before

Appellees’ expert engineer could inspect the property.

[T]he standard for qualification of an expert witness is a liberal
one. The test to be applied when qualifying an expert witness is
whether the witness has any reasonable pretension to
specialized knowledge on the subject under investigation. If he
does, he may testify and the weight to be given to such
testimony is for the trier of fact to determine. It is also well
established that a witness may be qualified to render an expert
opinion based on training and experience. Formal education on
the subject matter of the testimony is not required . . . . It is
not a necessary prerequisite that the expert be possessed of all
of the knowledge in a given field, only that he possess more
knowledge than is otherwise within the ordinary range of
training, knowledge, intelligence or experience.

Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995) (citations

omitted; emphasis in original). We review a trial court’s qualification or

disqualification of a proposed expert witness for an abuse of discretion. Id.

In its opinion, the trial court primarily refers this Court to its pre-trial

ruling, wherein the court indicated that it would allow Appellants the

opportunity to qualify Mr. Jones as an expert witness, but expressed

skepticism regarding their ability to do so.

[T]he court is reluctant to qualify Mr. Jones as an expert in the
field of construction and structural damage. His apparent lack of
professional experience is significant. [Appellants] will have an
opportunity to attempt to qualify Mr. Jones as an expert at trial,
but that attempt may very well fail. Absent his qualification as
an expert, Mr. Jones will be limited to describing events but
precluded from opining as to their cause.

T.C.O. at 8 (quoting Trial Court Order In re: Pretrial Motions, 12/6/2013,

at 7). In the same pretrial ruling, the trial court also observed that, if

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Appellants succeeded in establishing Mr. Jones’ expert qualifications, the

issue of spoliation would be “amplified” because Appellants’ undisputed

spoliation effectively denied Appellees’ expert’s ability to form an opinion

regarding causation. Id.

Setting aside those aspects of Appellants’ argument that are irrelevant

to the one question properly preserved and argued, i.e., whether Mr. Jones

should have been qualified as an expert, we are left with the following

conclusory argument:

Mr. Jones’ construction experience began when he was five years
old, where he was exposed to construction projects with laborers
in Mexico. His learning in this field began at that time, and has
developed ever since. Throughout high school and college,
Mr. Jones worked on major construction projects, including the
design and construction of a special garage, wherein the entire
front wall (rather than just the door) lifted. Mr. Jones designed
the garage in this fashion to camouflage the fact that the
structure was a garage and to try to prevent break-ins.

After marrying Mrs. Jones, the two [sic] purchased numerous
properties and renovated them before turning them into rental
properties and eventually selling them at up to five times their
purchase prices. Mr. Jones is familiar with and has been using
major construction equipment for years, including on the
property which forms the subject of this lawsuit. Mr. Jones is
familiar with different types of foundations and—specifically—the
type of foundation existing at his present home and barn as
consisting of stones without mortar or footers. He knows what
structural damage is and what is needed to correct the damage.
He knows that the damage did not exist and was not present for
the hundred years before the [September 9, 2008] flood. Using
major construction equipment, he has completed projects he
hired professionals to do, and he also constructed an
underground tunnel between the Jones’ primary home and their
adjacent garage.

****

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Although he did not receive a formal degree in structural
engineering or architecture, Mr. Jones enrolled in many of the
same classes as those who did—including mathematics, calculus,
physics, and the like.[11] He received the highest marks in these
classes and oftentimes, at the request of his peers who were
enrolled in engineering courses, assisted them with their
coursework.

Brief for Appellants at 27-28. Referring to the fact that Pennsylvania

employs a generally liberal standard for expert witness qualification,

Appellants insist that the above-mentioned background qualified Mr. Jones

to educate the jury regarding the causal relationship between the flood and

structural damage to Appellants home.

Appellee Hamilton Construction notes that Mr. Jones’ testimony

regarding structural damages and causation “would necessitate a

demonstrated understanding of earth movement, structural design, and

forensic engineering.” Brief for Hamilton Construction at 36. They

emphasize that Pennsylvania statutory law defines what constitutes

architecture and engineering, and imposes licensure requirements on those

practicing either art. Id. at 36-37 (citing 63 P.S. § 34.3 (“architects

licensure law”); 63 P.S. § 149 (“Engineer, Land Surveyor and Geologist

Registration Law”); 63 P.S. § 150 (prohibiting the practice of engineering or

geology without a license)). Mr. Jones undisputedly was licensed in none of

these disciplines, in Pennsylvania or elsewhere. In addition to establishing

____________________________________________

11
Ostensibly, these classes were taken in furtherance of his studies
toward the degrees he earned in computer science.

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Mr. Jones’ lack of study or practice in the above-enumerated disciplines,

Hamilton Construction observes that Mr. Jones acknowledged hiring an

engineer when he rebuilt his garage. See id. at 38-39; see also Brief for

McNaughton Homes at 27 (“As the [trial court] pointed out, Mr. Jones had

some experience with a hammer and a backhoe, but he did not have the

training and experience that would qualify him to offer opinions as to a

causal link between [Appellees’] activities and the claims of structural

damage, especially in light of the extensive prior excavations of the

foundation and removal and/or alterations of five of the six foundation

walls.”).

Hamilton Construction further reviews Mr. Jones’ qualification

testimony and finds it wanting.

Given the complexities of the forces and factors involved, the
following opinions that [Appellants] sought to elicit from [Mr.]
Jones required expert testimony:

(1) that [the] south wall of the foundation settled; (2) that any
proven settlement caused the structural problems identified in
the house; (3) that the September 9, 2009 storm caused these
structural problems; and (4) [that] the remedies chosen by
[Appellants], including excavation of all soils adjacent to and
below the foundation of the entire south wall, demolition of the
entire south wall, replacement of extensive portions of the house
including the south wall, the foyer, and [a] portion of the
roof.[12]

____________________________________________

12
Presumably this incomplete sentence was intended to assert that it
was incumbent upon Mr. Jones to establish that the remedies he choose
(Footnote Continued Next Page)

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Id. at 39-40.

Hamilton Construction further contends that Mr. Jones’ testimony

regarding the basis upon which he concluded that the flood caused the

damages in question was insufficient. Specifically, Hamilton Construction

argues that Mr. Jones’ reasoning improperly relied upon the post hoc ergo

propter hoc fallacy, i.e., the inference that B follows A because A caused B, a

proposition consistently rejected by the courts. Id. at 40-41 (citing Haney

v. Pagnanelli, 830 A.2d 978, 987 (Pa. Super. 2003) (“Post hoc [ergo

propter hoc] describes the fallacy of assuming causality from temporal

sequence; confusing sequence with consequence.”)).

Hamilton Construction raises what amounts to a “Frye challenge”

when it cites Haney. Frye governs the admissibility of expert methodology

and opinion.13 That question, though, is distinct from the inquiry that

informs expert witness qualification in the first instance. Indeed, a

substantial portion of Hamilton Construction’s brief can be understood more

as in the nature of a Frye challenge than as a defense of the trial court’s
_______________________
(Footnote Continued)

were necessary and appropriate in light of any damage caused to the
home. Cf. Brief for McNaughton Homes at 26 (so stating the issue).
13
See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), superseded
by federal rule as stated in Daubert v. Merrell Dow Pharma., Inc.,
509 U.S. 579 (1993), continues to supply the standard by which experts’
methodology and conclusions are tested for admissibility in Pennsylvania.
See Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1044 (Pa. 2003). However,
this inquiry does not bear on an expert’s qualifications; it affects only the
substance of his or her opinions.

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determination that Mr. Jones was unqualified to testify as an expert to the

fact and cause of structural damage to his home.

Given Pennsylvania’s liberal standard, we grant arguendo that

Mr. Jones’ experience working on remodeling projects, including the digging

of a tunnel and significant foundation work, at least on his own home, before

2008, qualified him, if barely, to testify regarding his observations of the

damages and the remedies he chose to implement upon discovering the

damage in question. On this point, the trial court agreed. See N.T.,

12/13/2013, at 154-56 (clarifying that, based upon Mr. Jones’ undisputedly

extensive practical experience in construction, the court would allow

Mr. Jones to testify regarding the remedial steps he had already taken to

address the damages at issue in this case, but denying his qualifications to

speak to the causal relationship between the flood and the structural

damages and denying him the prerogative to testify as to what repairs might

be required in the future as a result of any damage caused by the flood).

However, nothing in Mr. Jones’ testimony speaks to his qualification to speak

to what caused any such damage. Despite testifying to a lifetime of

construction and related activities, albeit as a hobby or “avocation” (to use

the trial court’s word), Mr. Jones did not testify directly to any experience

with geology or any activity requiring the forensic divination of the fact or

cause of structural issues associated with a flooding event like the one at

issue in this case.

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While Pennsylvania’s standard for expert qualification is not overly

stringent, it is, nonetheless, a standard. Furthermore, as noted, Appellants

have failed to preserve any challenge to the trial court’s determination that

expert testimony would be required to establish causation. We are left with

the trial court’s ruling that the establishment of causation required expert

testimony and that Mr. Jones would not be allowed to provide it. We have

no testimony whatsoever that establishes that, in Mr. Jones’ admittedly

extensive if informal experience on various types of construction, he ever

had occasion to learn how to infer causation in a case involving structural

damage arising from a flood or similar event.

In light of these considerations, we find that the trial court did not

abuse its discretion in refusing to qualify Mr. Jones as an expert or in

precluding him from testifying as to causation. Consequently, Appellants are

not entitled to relief from this ruling.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/15/2015

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