Oxford Presbyterian Church v. Weil-McLain Co., Inc.

815 A.2d 1094

OXFORD PRESBYTERIAN CHURCH, Appellant, v. WEIL-McLAIN COMPANY, INC., American Manufacturers Mutual Insurance Company, Commonwealth of Pennsylvania Department of Labor and Industry, Thomas W. Hindman Plumbing, Heating & Air Conditioning, Jack's Plumbing & Heating, Inc., SICO Oil Company, South Penn Gas Company, Al Slack Gas Company.

Oxford Presbyterian Church v. Weil-McLain Company, Inc., American Manufacturers Mutual Insurance Company, Commonwealth of Pennsylvania Department of Labor & Industry, Thomas W. Hindman Plumbing, Heating & Air Conditioning, Jack Plumbing & Heating, Inc., Sico Oil Company, South Penn Gas Company, Al Slack Gas Company.

Appeal of Sico Oil Company, Appellant.

Superior Court of Pennsylvania.

Argued October 9, 2002.

Filed January 15, 2003.

Richard W. Yost, Philadelphia, for Oxford Presbyterian Church.

Thomas P. Bracaglia, Plymouth Meeting, for Sico Oil Company.

Before: HUDOCK, FORD ELLIOTT, and OLSZEWSKI, JJ.

OPINION BY FORD ELLIOTT, J.:

¶ 1 This case had its genesis in May of 1989 when a fire destroyed a 134-year-old church in Chester County. The church settled its claim against its insurer, which then sought to discover the cause of the fire. Upon determining that the fire must have started in the church basement in the wood joists above one of the boilers that supplied the church with heat, the insurer filed subrogation claims in 1991 against every company or individual involved in maintaining or repairing the boilers. By 1996, only two defendants remained: SICO Oil Company ("SICO") and Thomas W. Hindman Plumbing, Heating and Air Conditioning ("Hindman").

¶ 2 At the close of discovery, both SICO and Hindman filed motions for summary judgment. The trial court, the Honorable Lawrence E. Wood, granted SICO's motion in 1996 and dismissed it from the case. The court then granted Hindman's motion in 1998, thus bringing to an end all claims against all parties. The church filed an appeal from the grants of summary judgment to both SICO and Hindman, however, and this court reversed by memorandum and order filed April 8, 1999. Oxford Presbyterian Church v. Weil McLain Company, Inc., et al., No. 794 Philadelphia 1998 unpublished memorandum, 738 A.2d 1063 (Pa.Super. filed April 8, 1999). This court based its reversal on trial court error in concluding that neither SICO nor Hindman owed the church a legal duty, an issue this court concluded should have gone to the jury.

¶ 3 On remand, the case was tried to a jury with Judge Wood presiding and with SICO the only remaining defendant. SICO had, however, filed cross-complaints against Hindman and South Penn Gas Company, but neither actively participated in the trial. At the close of the evidence, the jury found that SICO had breached its duty to the church, but that the breach was not the cause of the fire. The jury therefore returned a verdict in favor of SICO. Following the denial of its motions for a new trial or j.n.o.v., the church timely filed an appeal and SICO filed a cross-appeal. For the reasons that follow, we affirm the judgment entered in favor of SICO and quash SICO's cross-appeal.

¶ 4 The church raises the following issues:

1. Whether the Trial Court erred in permitting SICO's experts to testify as to matters beyond the scope of their reports and in admitting the deposition testimony of Robert Brown as to the origin of the fire, even though Mr. Brown was not qualified as an expert.

2. Whether the Trial Court erred in excluding all opinion testimony of Oxford's experts, Thomas Cocchiola and Ronald Durr, in excluding the Chester County Fire Marshal's report as to the cause and origin of the fire, in significantly restricting the testimony of Corporal Douglas Brose as to the cause and origin of the fire and in refusing to permit John Quinn to testify that his opinion was consistent with the Chester County Fire Marshal[ ] and the Pennsylvania State Police.

3. Whether the Trial Court erred in giving adverse inference instructions with regard to a `missing witness' and the loss of some evidence of the fire scene.

4. Whether the Trial Court erred in requiring the jury to determine whether SICO's breach of duty was `the cause', rather than a substantial contributing factor in bringing about the fire, as set forth in Question 2 of the Verdict Slip.

Appellant's brief at 5. In its argument section, the church divides several of these issues into sub-issues, which we will address separately.

¶ 5 "A JNOV can be entered upon two bases: (1) where the movant is entitled to judgment as a matter of law; and/or, (2) the evidence was such that no two reasonable minds could disagree that the verdict should have been rendered for the movant." Buckley v. Exodus Transit & Storage Corp., 744 A.2d 298, 304 (Pa.Super.1999), citing Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186 (1997) (other citation omitted).

¶ 6 All of the church's issues except its last are based on the trial court's allegedly erroneous evidentiary rulings or jury instructions. If the trial court has committed an error in its evidentiary rulings, and if the error caused harm to the complaining party, then "[b]ased upon such showing, our only remedy is to grant a new trial." Collins v. Cooper, 746 A.2d 615, 620 (Pa.Super.2000) (citation omitted). "`When improperly admitted testimony may have affected a verdict, the only correct remedy is the grant of a new trial.'" Id., quoting Bucchianeri v. Equitable Gas Co., 341 Pa.Super. 319, 491 A.2d 835, 838-839 (1985) (citation omitted). Likewise, "Error in a jury charge may provide the basis for a new trial if it is shown that the instruction may have been responsible for the verdict." Kovach v. Solomon, 732 A.2d 1, 4 (Pa.Super.1999) (citations omitted). As a result, we hold that the trial court did not err when it denied the church's motion for a j.n.o.v.

¶ 7 In contrast, "Our review of the trial court's denial of a new trial is limited to determining whether the trial court acted capriciously, abused its discretion, or committed an error of law that controlled the outcome of the case." Id., citing Brown v. Philadelphia College of Osteopathic Medicine, 449 Pa.Super. 667, 674 A.2d 1130 (1996). "An abuse of discretion is not merely an error in judgment; rather it occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill-will." Pilon v. Bally Engineering Structures, 435 Pa.Super. 227, 645 A.2d 282, 285 (1994), appeal denied, 539 Pa. 680, 652 A.2d 1325 (1994), rejected on other grounds in Shope v. Eagle, 551 Pa. 360, 710 A.2d 1104 (1998). In deciding whether the trial court erred or abused its discretion, "we must consider whether, viewing the evidence in the light most favorable to the verdict winner, a new trial would produce a different verdict." Buckley, 744 A.2d at 305, citing Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa.Super. 49, 537 A.2d 814 (1987), appeal denied, 520 Pa. 590, 551 A.2d 216 (1988). "Consequently, if there is any support in the record for the trial court's decision to deny a new trial, that decision must be affirmed." Id., citing Johnson v. Hyundai Motor America, 698 A.2d 631 (Pa.Super.1997), appeal denied, 551 Pa. 704, 712 A.2d 286 (1998). With these principles in mind, we now consider the propriety of the trial court's decision to deny the church the relief it requested.

¶ 8 As noted supra, most of the church's issues are based on the trial court's allegedly erroneous evidentiary rulings. "Evidentiary rulings are committed to the sound discretion of the trial court, and will not be overruled absent an abuse of discretion or error of law." Takes v. Metropolitan Edison Co., 440 Pa.Super. 101, 655 A.2d 138, 145 (1995) (en banc),reversed in part on other grounds, 548 Pa. 92, 695 A.2d 397 (1997). "In order to find that the trial court's evidentiary rulings constituted reversible error, such rulings must not only have been erroneous but must also have been harmful to the complaining party." Collins, 746 A.2d at 619, citing Romeo v. Manuel 703 A.2d 530, 532 (Pa.Super.1997) (other citations omitted). "`Appellant must therefore show error in the evidentiary ruling and resulting prejudice, thus constituting an abuse of discretion by the lower court.'" Id. at 620, quoting Romeo, supra.

¶ 9 The church first claims trial court error in allowing SICO's experts John Allen, Ph.D., and Edward Keegan to testify beyond the fair scope of their expert reports. See Pa.R.Civ.P. 4003.5, 42 Pa.C.S.A. We have carefully reviewed Dr. Allen's two reports and his testimony. (Expert reports of John Allen, Ph.D., 10/9/96 and 9/15/00; notes of testimony, 1/25/01 at 131-178.) Our review indicates that Judge Wood thoughtfully reviewed the reports from the bench while Dr. Allen testified, and sustained numerous objections to Dr. Allen's testifying beyond the scope of his reports. Judge Wood allowed Dr. Allen to "flesh out" his reports with some mathematical calculations and sketches to aid the jury in understanding why he believed it was impossible for the fire to have started in the manner the church alleged. None of this testimony was beyond the fair scope of Dr. Allen's reports, however, nor could it have resulted in unfair surprise, as the reports clearly indicated Dr. Allen's disagreement with the church's theory that pyrolysis caused the fire.¹ See Brady v. Ballay, Thornton, Maloney Medical Assoc., Inc., 704 A.2d 1076, 1082 (Pa.Super.1997) (finding no reversible error in allowing an expert to testify beyond the fair scope of his report where the testimony did not prevent the Bradys from preparing a meaningful response or mislead them into preparing an inappropriate response), appeal denied, 555 Pa. 738, 725 A.2d 1217 (1998).

¶ 10 The church next claims trial court error in allowing Edward Keegan to testify at all because his testimony was allegedly cumulative of Dr. Allen's. Keegan was a firefighter...