MEADOWS LANDING ASSOCIATES, L.P.
v.
MICHAEL SCUVOTTI AND CHARLENE SCUVOTTI Appellants
No. 1279 WDA 2020
No. J-A18020-21
Superior Court of Pennsylvania
October 20, 2021
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered October 23, 2020 In the Court of Common Pleas of Washington County Civil Division at No(s): 2013-6850
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM
NICHOLS, J.
Appellants Michael Scuvotti and Charlene Scuvotti appeal from the order that vacated the previous entry of compulsory nonsuit in favor of Appellee Meadows Landing Associates, L.P., and entered summary judgment in favor of Appellee. Appellants contend that the trial court violated their due process rights and erred in granting Appellee's motion to strike their expert. Appellants also challenge the entry of summary judgment, claiming that expert testimony was unnecessary and that the trial court violated the law of the case doctrine. We are constrained to affirm.
The facts and procedural history of this appeal are well known to the parties. Briefly, we note that in 2006, Appellee purchased two hundred acres
of undeveloped land that abutted Appellants' property and residence.[1] In 2013, Appellee commenced the underlying case by filing a complaint in ejectment and trespass against Appellants.[2]
In 2014, Appellants filed an answer, new matter, and counterclaims for trespass, ejectment, nuisance, and negligence.[3] In their counterclaims, Appellants alleged that Appellee's development of its land included (1) removing vegetation, (2) changing the grading of the land, and (3) redirecting water and sediment through artificial avenues. Appellants stated that Appellee's development increased the flow of water and sediment from Appellee's land to Appellants' property.
In 2015, Appellants obtained an expert report from a registered professional engineer, James Harshman, PE, who evaluated the stormwater and groundwater impacts of Appellee's activities on Appellants' property and residence. Harshman updated his report on October 30, 2017 (Harshman report).
On March 25, 2019, the trial court, with the Honorable Michael J. Lewis presiding, granted in part and denied in part Appellee's motion for partial summary judgment. Specifically, the trial court dismissed Appellants' claims for punitive damages. However, the trial court denied summary judgment on Appellants' claim that Appellee caused non-economic damages including personal annoyance and discomfort.
On February 19, 2020, Appellee discontinued its claims against Appellants, and the trial court scheduled trial on Appellants' remaining counterclaims for March 9, 2020. On February 20, 2020, Appellee filed motions in limine, including a motion to strike the Harshman report.
On March 9, 2020, the trial court, with President Judge Katherine B. Emery presiding, heard arguments on Appellee's motions in limine. Of relevance to this appeal, the trial court determined that Harshman failed to state his expert opinion to a sufficient degree of certainty and granted Appellee's motion to strike the Harshman report. The trial court's ruling concerning Harshman prompted the following exchange:
[Appellee's Counsel]: Do you want to talk to your people again?
[Appellants' Counsel]: I think we should.
THE COURT: I mean, you obviously can appeal this and sort of pursue it that way.
[Appellants' Counsel]: Certainly. We don't have causation without --
THE COURT: I'm surprised they didn't do an updated [report] after '17.
* * *
(Whereupon a discussion was held off the record and recess was taken.)
[Appellee's Counsel]: I am making a motion for a compulsory nonsuit in view of the [c]ourt's ruling on expert testimony.
THE COURT: And you don't have any other expert, I take it?
[Appellants' Counsel]: We do not. Mr. Harshman was our --
THE COURT: Right.
[Appellants' Counsel]: -- the source of our --
THE COURT: That is the only one it seems.
[Appellants' Counsel]: Correct.
THE COURT: The [c]ourt will grant that motion.
N.T., 3/9/20, at 39, 41. Appellants' counsel stated that he would have to speak with Appellants, but he did not object to the ruling. Id. at 41-42. Service of the trial court's written order granting compulsory nonsuit occurred on May 11, 2020.
Appellants thereafter filed a post-trial motion to remove the nonsuit asserting that the trial court erred in entering nonsuit prior to the presentation of their evidence.[4] Additionally, Appellants claimed that expert testimony "is
not a general requirement to put on a case of trespass, ejectment or negligence." Post-Trial Mot. to Remove Nonsuit, 6/1/20, at 3.
On October 23, 2020, the trial court entered a memorandum order granting Appellants' request to remove nonsuit. Mem. Order, 10/23/20, at 3-4. The trial court, however, entered summary judgment against Appellants and in favor of Appellee based on the arguments at the March 9, 2020 hearing and dismissed the case. Id.
Appellants timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed a responsive opinion.[5]
Appellants present the following issues, which we have reordered for review:
1. Whether the trial court erred when it converted the oral motion for nonsuit to a motion for summary judgment and granted summary judgment on all counts and dismissed the case.
2. Whether the trial court erred in granting the motion in limine to exclude the expert's testimony where it found that the report and anticipated testimony did not meet the degree of certainty required for an expert opinion.
3. Whether the trial court erred as a matter of law when it granted summary judgment in favor of [Appellee] and against [Appellants].
4. Whether the trial court erred in granting summary judgment when the law of the case doctrine had determined that the expert report was sufficient.
Appellants' Brief at 8 (formatting altered).[6]
Initially, we summarize the principles governing our review. First, it is well settled that a trial court errs when it enters compulsory nonsuit before the presentation of evidence. Lewis v. United Hosps., Inc., 692 A.2d 1055, 1058 (Pa. 1997); accord Valles v. Albert Einstein Med. Ctr., 805 A.2d 1232, 1235 n.6 (Pa. 2002). However, the trial court's premature entry of nonsuit does not prevent this Court from reviewing the trial court's decision to dismiss a case. See Wujcik v. Yorktowne Dental Assocs., Inc., 701 A.2d 581, 583-84 (Pa. Super. 1997) (concluding that the trial court "had the pre-trial authority to determine that [an] appellant's offer of proof of damages was legally insufficient and to dismiss [the appellant's] cause of action"); Valles, 805 A.2d at 1235 n.6 (indicating that because the appellant and appellees treated the appellees' motion for nonsuit as a summary judgment motion, the Supreme Court would "do the same").
Second, the general principles governing appellate review of an order granting summary judgment are as follows:
[S]ummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. In ruling on such a motion, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. 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. Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient facts to make out a prima facie cause of action or defense.
On appeal, this Court
may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals.
To the extent that this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record.
Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.
Dunlap v. Fed. Signal Corp., 194 A.3d 1067, 1069 (Pa. Super. 2018) (citations and footnote omitted, and formatting altered). Further, when the
entry of summary judgment involves an underlying evidentiary ruling, "the appropriate appellate standard of review is the one pertaining to the underlying ruling that [the a]ppellant is challenging." Walsh v. BASF Corp., 191 A.3d 838, 842 (Pa. Super. 2018).
Third, appellants challenging an improper entry of compulsory nonsuit or the erroneous grant of summary judgment must preserve their objections and claims at the first opportunity in the trial court. See Pa.R.A.P. 302(a); see also Young v. S. B. Conrad, Inc., 216 A.3d 267, 275 (Pa. Super. 2019). Although...
