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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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