Palmer v. Lapp

JOHNSON, Judge,

dissenting:

I respectfully dissent. Although I am in agreement with the majority’s statement of the law in determining whether *31a witness is a qualified expert, my review of the record leads me to conclude that the trial judge did not abuse her discretion by allowing the testimony of Joyce Cusano.

The Lapps contend that Cusano was unqualified to testify as an expert on the value of the hearse and the surrey. The record reveals that the Palmer’s attorney went through the proper steps to have Cusano qualified as an expert appraiser. N.T. June 24, 1988 at pp. 21-32. Testimony was elicited from Cusano that she had an appraiser’s license and had been employed by Vintage Auto Appraisal Services for four years as an appraiser. However, the trial court limited her testimony according to her experience. During her testimony the court concluded in response to opposing counsel’s objection to Cusano’s qualifications:

I’m going to accept her as qualified to testify as to two vehicles [the hearse and the surrey]. The Court will keep in mind the limitations as to her qualifications and her opinion as to the surrey in that she didn’t see it. The Court will keep this in mind in making a decision as to what part of her testimony I will accept.

N.T. June 24, 1988 at pp. 31-32.

I would not reverse the decision of the trial court to admit Cusano’s expert testimony absent an abuse of discretion. Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 559 A.2d 550 (1989). A review of the record divulges no abuse of discretion, especially in light of the court’s above articulation of how it would weigh Cusano’s testimony.

Cusano testified that rare vehicles such as the hearse and the surrey must be carefully researched to uncover their true value. N.T. June 24, 1988 at p. 29. Cusano researched the value of the hearse, and mailed queries to 30 carriage experts, museums, collectors and restorers throughout the United States and Canada. N.T. June 24, 1988 at pp. 25, 34. Eight to ten responses proved reliable. N.T June 24, 1988 at p. 34. She also reviewed her employer’s report on the value of the hearse and the surrey and viewed photographs of both vehicles. N.T. June 24, 1988 at pp. 32-34, 36. *32Based upon all of this, Cusano testified that the hearse and the surrey were worth $10,000.00 and $4,198.45 respectively. N.T. June 24, 1988 at pp. 34-36.

The majority suggests that Cusano’s testimony is improper because she inserted the facts and data supplied by those who responded to the queries into her own testimony, representing that they were her own opinion. Majority opinion at pp. 29-30. This is misleading; first, Cusano did not attribute the opinions to herself. Most important, the reports that incorporated the letters in response to Cusano’s queries were moved into evidence by the Palmers’ attorney. N.T. June 24, at pp. 19-20. Thus, regardless of Cusano’s qualifications as an expert, the court had independent evidence of appraisal values before it when it determined the amount of damages the Palmers were to receive. Therefore, even if the trial court had erred in qualifying Cusano as an expert, it was harmless error; her testimony was essentially corroborative of the duly admitted documentary evidence.

The majority relies on McDaniel v. Merck, Sharp, & Dohme, 367 Pa.Super. 600, 533 A.2d 436 (1987), and Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984) to support its position that Cusano should not have been permitted to testify pn the value of the two items in question. I believe that these cases support the admission of Cusano’s testimony. Although some of the witnesses who testified in McDaniel and the witness who testified in Dambacher were found to be unqualified to testify as experts, both cases support the proposition that a witness is properly qualified to give expert opinion testimony when the witness has sufficient skill, knowledge, or experience in the field or calling as to make it appear that his opinion will aid the trier in his search for the truth. McDaniel, supra; Dambacher, supra. Here, the trial judge found Cusano possessed the sufficient skill, knowledge, and experience to value the property, and we see no abuse of discretion in this finding.

*33The trial judge carefully considered all of the testimony before her and determined the value of the hearse and the surrey together to be $10,077.00. I would affirm the order of the trial court.