Kovalchick v. B.J.'s Wholesale Club

DISSENTING OPINION BY

BROSKY, J.

¶ 1 I respectfully disagree with the Majority’s conclusion that the appeal in this matter is taken from an order that was not final under Pa.R.A.P. 341 and, accordingly, must be quashed. I would find that this Court, on the basis of Klein v. Weisberg, 694 A.2d 644 (Pa.Super.1997), should address the merits of the appeal from the trial court’s disposition of the matter.

¶ 2 The trial court here ruled on two motions. First, after an evidentiary hearing, the trial court granted the original defendant, B.J.’s, motion in limine. This motion sought to preclude the introduction at trial of any evidence or arguments that would be contrary to the terms of a lease agreement between B.J.’s and its lessor, Benderson. At the commencement of the evidentiary hearing, the trial judge stated that, if the lease agreement is interpreted in the way that B.J.’s suggests, then B.J.’s is dismissed from the case and sole liability would be imposed on Benderson. (N.T., 5/22/00, at 2-3). Counsel for Benderson conceded that, if the plaintiffs, Koval-chicks, are successful in establishing liability, under the terms of the lease and from the discovery in the case, Benderson alone would be solely liable. (N.T., 5/22/00, at *7793). Benderson’s counsel stated on the record that Benderson was not opposed to a grant of the motion in limine, which “would leave B.J.’s out of the case”. (N.T., 5/22/00, at 5). Benderson’s counsel also requested that his client be dismissed from the case on the basis of untimely joinder under the applicable two-year statute of limitations. (N.T., 5/22/00, at 5).

¶ 3 Counsel for plaintiffs/Appellants then argued that, under his interpretation of the lease agreement, liability for Mrs. Kovalchick’s injury would rest with BJ.’s. (N.T., 5/22/00, at 6-7). Counsel for plaintiffs/Appellants conceded that any direct claims that plaintiffs had against Bender-son would be time-barred and that, if B.J.’s were still “in the case”, any contribution action by B.J.’s against Benderson would be time-barred.2 (N.T., 5/22/00, at 6-7). The following exchange then took place between the trial judge and counsel for plaintiffs/Appellants:

The Court:
But if B.J.’s [is] out of the case, if I grant the motion, that means that B.J.’s is out of the case, and you concede that Benderson is out.
Mr. Burkhardt:
As it stands right now, I would believe that we did not directly — the action was filed on March 24, 1997 solely against B.J.’s.

(N.T., 5/22/00, at 7).

¶ 4 After affording the parties an opportunity to settle the case, the trial judge returned on the record and granted B.J.’s motion in limine. The trial judge directed that the plaintiffs/Appellants and Bender-son were barred from introducing at the time of trial any evidence contrary to the provision in the lease that was at issue. Additionally, the trial judge ordered that the liability to the plaintiffs/Appellants, if established, rested solely with Benderson. The trial judge then granted Benderson’s oral motion to dismiss Benderson from the case, after giving counsel for plaintiffs/Appellants the opportunity to respond. (N.T., 5/22/00, at 15).

115 The trial court entered written orders on May 26, 2000, dated May 23, 2000, that set forth in writing the orders that were orally made at the hearing. Plaintiffs/Appellants sought reconsideration of the trial court’s May 23, 2000 orders, asserting that, as a result of the concessions made by Benderson at the hearing, plaintiffs/Appellants were prejudiced and suffered unfair surprise three days before trial was scheduled to commence. Plaintiffs/Appellants asserted that, without the concessions, B.J.’s motion in limine should have failed. Plaintiffs/Appellants accordingly requested the trial court to reconsider its rulings on the motion in limine and the oral motion to dismiss.

¶ 6 Appellants filed a notice of appeal with this Court on June 20, 2000. The trial court denied reconsideration of the May 23, 2000 orders by an order entered on June 21, 2000.

¶ 7 On appeal, Appellants raise two issues:

A. Whether the [trial court] erred in permitting additional defendant to put forth evidence that was inconsistent with their pleadings three days prior to trial, thereby causing unfair surprise and prejudice to plaintiff?
B. Whether the [trial court] erred in holding that additional defendant was not a landlord out of possession in light of the fact that it was not given notice or *780an opportunity to repair the defective sidewalk?

Appellant’s Brief at 7 & 8.

¶8 The trial court has filed an opinion pursuant to Pa.R.A.P.1925(a) in which it concludes that Appellants waived the first argument. As to the second argument, the trial court concludes from the lease and the evidence at the hearing that sole responsibility rests with Benderson. Trial Court Opinion, 9/1/00, at 4-5.

¶ 9 I disagree with the Majority’s conclusion that this appeal was improperly taken as not from a final order under Pa.R.A.P. 341. As Judge Cavanaugh of this Court has observed, there are some cases in which the ruling on a motion in limine is a final trial order that is tantamount to a non-suit and is, thus, appeal-able under Pa.R .A.P. 341(b). See Klein, 694 A.2d 644, 648 (Cavanaugh, J., concurring and dissenting). Judge Cavanaugh further observed that there are situations in which a remand after an appeal from a ruling on a motion in limine results in a needless trial, where the result would be the same as the record presently stands but delayed until the presentation of the plaintiffs ease.

¶ 10 Although Judge Cavanaugh made these observations in a concurring and dissenting opinion, I find them applicable to the present case and not lessened by the fact that they were not in a majority opinion. The majority decision in Klein explained that, in that case, a first trial judge had denied motions for summary judgment. A second trial judge then granted a motion in limine. The appellant stipulated on the record that the second trial judge’s order, the ruling on the motion in limine, was dispositive of the case because the judge had in effect dismissed all claims by his ruling, and, if the ruling was correct, there was no need for a trial. The trial judge subsequently reduced his ruling on the motion in limine to writing. The appellant then filed an appeal with this Court from the trial court’s order.

¶ 11 The majority in Klein found that the second trial judge had improperly overruled the first judge’s, a coordinate judge’s, earlier denial of summary judgment on the same issue. The majority affirmed the trial court’s preclusion of certain evidence, however.

¶ 12 Judge Cavanaugh, in his concurring and dissenting opinion, agreed with the majority’s decision on the preclusion of evidence, but disagreed with the portion of the remaining conclusion of the majority opinion that there had been an impermissible overruling of a coordinate judge. It was in this context that he made his observations concerning appellate review of a ruling on a motion in limine that has a dispositive effect. Under the procedural posture of the Klein appeal, the majority disagreed with Judge Cavanaugh’s analogy to a grant of a compulsory non-suit, citing the problem with the review by a coordinate judge.

¶ 13 Here, there is no express stipulation by Appellants’ counsel that there is no need for a trial, as there was in Klein. However, the responses by Appellants’ counsel to the questioning by the trial judge at the evidentiary hearing suggest that, if the trial judge made the rulings that he did, counsel believed that there was no need for going to a trial if the order was correct. This is especially true since Appellants’ counsel operated under the belief that, even if B.J.’s remained as a party, any contribution by B.J.’s against Benderson would be time-barred.

¶ 14 Although deciding to quash the appeal as premature, the Majority comments on the propriety of the trial judge’s decision that B.J.’s has no liability and on the trial judge’s decision to determine liability *781through interpreting a lease agreement at a hearing on a motion in limine. The majority also comments on whether B.J.’s would be able to seek indemnity or contribution from Benderson after a trial. I believe that the appeal should be treated as having been filed from a final order of the trial court, as was done in Klein, and that we should address the merits of the issues raised to determine whether the challenged order was in error. I therefore respectfully dissent from my colleagues’ decision to quash this appeal.

. The accident occurred on March 25, 1995. BJ.’s filed the third party complaint against Benderson on April 30, 1997, approximately one month beyond the two-year statute of limitations. (N.T., 5/22/00, at 5).