J-A24037-16
                              2016    PA   Super 240
JOHN NOBLES                                            IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                          Appellant

                    v.

STAPLES, INC., STAPLES THE OFFICE
SUPERSTORE EAST, STAPLES THE
OFFICE SUPERSTORE, LLC

                          Appellees                       No. 2939 EDA 2015


                Appeal from the Order Dated August 18, 2015
            In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): March Term, 2013, No. 2406

BEFORE:   BOWES, J., OTT, J., and SOLANO, J.

OPINION BY SOLANO, J.:                             FILED NOVEMBER 08, 2016

      Appellant John Nobles appeals from the order entered on August 18,

2015, granting summary judgment in favor of Staples, Inc.; Staples the

Office Superstore East; and Staples the Office Superstore, LLC (collectively,

"Staples "), in his action to recover damages for personal injuries. We affirm.

      Nobles was   a     corporal in the Philadelphia Police Department.      On

April 5, 2011, he was at his office desk when the chair on which he was

sitting snapped at the base and fell to the floor. Nobles hit his head as he

fell and sustained injuries to his neck, back, and right shoulder. Trial Court

Opinion, 2/9/16, at 2.

      Ten minutes after the incident, Nobles photographed the chair.          The

base of the chair was still upright, but the rest of the chair was on the floor.

A few days later, another police officer disposed of the chair, and, as a
J-A24037-16



result, the chair was not available for inspection during this litigation.      See

Trial Court Opinion, 2/9/16, at 2.

            The chair was purchased in 2008, but there is no documentation that

memorializes the purchase. Trial Court Opinion, 2/9/16, at 2. Nobles claims

the chair was purchased from Staples, Nobles' Brief, at 6, 8, but Staples

denies that contention and claims that it has not been able to verify that it

sold    a   chair of the type at issue. See Trial Court Opinion, 2/9/16, 8. There

is no       documentation regarding the chair's specifications or its history over

the three years between its purchase and the incident.        Id. at   2.

            In March 2013, Nobles filed this personal injury action against Staples,

contending that the chair had been purchased from Staples and that defects

in   the chair caused its collapse. Trial Court Opinion, 2/9/16, at 1, 6.

            On March 31, 2014, Staples moved for summary          judgment on the

ground that Nobles was unable to prove that the chair had been purchased

from Staples.          On   May 30, 2014,1 in     a   written order, the Honorable

Annette       M. Rizzo denied   Staples' motion without prejudice, "as the Motion

was filed prior to the expiration of the discovery period."

            On November 24, 2014, Staples again moved       for summary judgment,

repeating the same ground as that in its first motion. On January 20, 2015,




1
    The order was entered on the docket on June 2, 2014.


                                          -2
J-A24037-16


the Honorable Frederica Massiah- Jackson entered an order denying that

second summary judgment motion, without further comment.

        On April 22, 2015, Staples filed two motions      in limine.     First, Staples

moved for "an order from the court barring [Nobles], [Nobles'] expert, or

any other witnesses from testifying that they were told that the chair was

purchased from Staples."        Second, Staples moved to bar the testimony of

Nobles' liability expert, Keith A. Bergman, P.E.         Nobles filed responses in

opposition to both motions on May 4, 2015.

        On May 18, 2015,     after jury selection but before trial, the Honorable

Mary D. Colins heard argument on the two motions             in limine    and granted

both.      N.T., 5/18/15, at 11, 15, 20 -21.    In light of those decisions, Judge

Colins then granted Staples' motion to dismiss the action.            Id. at   22.   The

court's dismissal was recorded on the docket as entry of        a   "non- suit," but,   in

a   Rule     1925(a) opinion, the trial court characterized           its decision      as

equivalent to entry of summary judgment. Trial Court Opinion, 2/9/16, at 4.

        On September 11, 2015, Nobles filed a notice of appeal, and he now

presents the following issues for our review:

        1.    May a trial court grant a defendant's motion for non -suit
        on the eve of trial where the plaintiff has not had the opportunity
        to present evidence and only pre -trial motions had been ruled
        upon?

        2.    Is it a violation of the coordinate jurisdiction rule for a trial
        court to grant a motion for non -suit, which it deemed a motion
        for summary judgment, after the court had already denied a
        motion for summary judgment?


                                         -3
J-A24037-16


      3.    May a trial court grant a verbal motion for non -suit on the
      eve of trial when witnesses are prepared to testify as to the
      dispositive issue within the motion for non -suit?

      4.    Did the lower court err in barring the trial testimony of
      [Nobles'] expert, Keith Bergman, P.E., regarding the cause of
      the chair's failure ?[2]

      5.   May a trial court bar expert testimony submitted under a
      malfunction theory of liability where it is properly based on fact
      and essential to the plaintiff's case?

Nobles' Brief, at 4 -5 ¶¶       1 -5.    We have reordered the sequence in which we

address these issues.

                     The Exclusion of Bergman's Testimony

      We first consider Nobles' fourth and fifth issues, in which he asserts

that the trial court's exclusion of Mr. Bergman's testimony was erroneous.

Nobles' Brief, at    5   ¶¶ 4 -5.3      The admission of expert testimony is    a   matter

committed to the discretion of the trial court and will not be disturbed absent

an abuse of that discretion.            Commonwealth v. Walker, 92 A.3d 766, 772
(Pa. 2014). An abuse of discretion "is not merely an               error of judgment, but

if in reaching   a   conclusion the law            is   overridden or misapplied, or the

judgment exercised        is   manifestly unreasonable, or the result of partiality,




2 Nobles does not appeal the trial court's grant of Staples' other motion in

limine, which barred as hearsay any testimony concerning where the chair
was purchased.

3 Although Nobles lists these issues separately, we deem them to raise the
same issue regarding the admissibility of Nobles' proffered expert.


                                              -4
J-A24037-16


prejudice, bias or ill -will, as shown by the evidence or the record, discretion

is   abused." Id. at 772 -73 (citation omitted).

        According to Mr. Bergman's expert report, he would have testified that

Nobles "did not cause this incident to occur" and that the "failure of the

connection of the bell and post column of the incident chair caused this

incident to occur." Bergman Engineering Report, 11/17/14, at 11 (attached

as Exhibit    "I"   to Nobles' Response in Opposition to Staples' Motion for

Summary Judgment).

        In its opinion, the trial court thoroughly reviewed this proffer and

concluded that Mr. Bergman's report was based "on little more than guess

and conjecture" and was insufficient to meet the standards for expert

evidence. Trial Court Opinion, 2/9/16, at 6 -9. The trial court explained:

        [Mr. Bergman's] report is notable for what it does not do. It
        does not state, even in general terms, what the defect is. It
        does not state or even speculate about how the defect caused
        the break. It does describe the [Business and Institutional
        Furniture Manufacturers Association's] X5.1 -2002 "standard "[,
        but it does not] state how the construction or materials used
        would not have met that standard.         He says only that the
        purpose of the standard is to ensure a chair's ability to withstand
        certain maximum impacts. The report also cites no facts in the
        record to support a conclusion that the chair was defective when
        it left the seller in 2008, a necessary element of the cause of
        action. The only physical evidence was the photo [that Nobles
        took of the chair after it broke,] and the Staples representative
        testified that this photo did not allow her to confirm either the
        type or model of the chair; the chair was not otherwise
        identified. Pages 9 -14, deposition transcript of Jaclyn Smith,
        Staples' chair buyer, attached as Exhibit F to defendant's
        11/26/2014 motion for summary judgment. Bergman's opinion,
        then, was uninformed by any information about the chair's
        manufacture, specifications, materials, features, warnings, or

                                       -5-
J-A24037-16


         history.    There was no evidence of this chair's structure,
         particularly at the joint where the break occurred. No evidence
         was available that would have enabled examination or testing of
         an exemplar. Bergman cited no evidence that he eliminated all
         other possible causes of the break in the chair. In short, there
         was no defect evidence, circumstantial or otherwise, to support
         an opinion.

         Nevertheless, Bergman opines that since the chair broke, it was
         defective. Without saying why or how, he presses the inference
         that that since the chair broke, it must have been defective [in]
         its weight bearing properties. This is circular reasoning that
         rests on no factual foundation and is insufficient to support
         expert analysis. At best, it is ordinary res ipsa loquitur dressed
         up as expert opinion.

Trial Court Opinion, 2/9/16, at 8 -9. The trial court therefore concluded that

it "properly barred [Mr.] Bergman's testimony because it lacked foundation."

Id. at   6.

         We   agree.      Pennsylvania    Rule of Evidence     702 "permits expert

testimony on subjects concerning 'knowledge beyond that possessed by                 a


layperson.' It    is   the job of the trial court to 'assess the expert's testimony to

determine whether the expert's testimony                reflects the application    of

expertise or strays into matters of common knowledge.              '   Snizavich v.
Rohm & Haas Co., 83 A.3d 191, 194 (Pa. Super. 2013) (citations to quoted

authorities omitted). We have explained:

         Admissible expert testimony that reflects the application of
         expertise requires more than simply having an expert offer a lay
         opinion. "Testimony does not become scientific knowledge
         merely because it was proffered by a scientist." Likewise, expert
         testimony must be "based on more than mere personal belief,"
         and "must be supported by reference to facts, testimony or
         empirical data."


                                           -6
J-A24037-16


Id. at    195 (citations to quoted authorities omitted).       Accordingly, we have

stated the following test to distinguish between admissible expert testimony

and inadmissible lay testimony by an expert:

         The exercise of scientific expertise requires inclusion of scientific
         authority and application of the authority to the specific facts at
         hand. Thus, the minimal threshold that expert testimony must
         meet to qualify as an expert opinion rather than merely an
         opinion expressed by an expert, is this: the proffered expert
         testimony must point to, rely on or cite some scientific authority
         -  whether facts, empirical studies, or the expert's own research
         -  that the expert has applied to the facts at hand and which
         supports the expert's ultimate conclusion. When an expert
         opinion fails to include such authority, the trial court has no
         choice but to conclude that the expert opinion reflects nothing
         more than mere personal belief.

Id. at   197.

         In Snizavich, Dr. Thomas Milby proffered evidence that the decedent,

whose estate brought the suit, developed brain cancer as                  a   result of

exposure to chemicals while working at         a   chemical facility.   In forming his

opinion, the doctor "reviewed nine documents, eight of which dealt with

Decedent's medical history, work history, and work conditions," and the

ninth of which was an inconclusive epidemiological                 report about the

statistical occurrence of brain cancer at the facility.         He then "concluded,

based on the nine documents he reviewed as well as his years of expertise in

epidemiology, toxicology and occupational medicine that Decedent's brain

cancer had been caused by exposure to an unknown chemical or chemicals,

while working at [the facility]."       83 A.3d at 197.         This Court held the

testimony inadmissible, explaining:

                                         - 7
J-A24037-16


       Missing from Dr. Milby's expert report is any scientific authority
       -  any facts, testimony or empirical data
       conclusion.       .
                                                      that supports his
                           The Milby Report may, therefore, be aptly
                                 .       .
                                                                             -
       described as       based "entirely on subjective assessments of
                             .       .       .


       both cause and effect," as it does not include any "research,
       conducted by [Dr. Milby] or anyone else, to support [his]
       assertion[] on causation."

Id. (quoting Checchio                             v.   Frankford Hosp. - Torresdale Div., 717 A.2d
1058, 1062 (Pa. Super. 1998) (excluding proffered expert testimony about

cause of neurological dysfunction because it was based on subjective beliefs,

rather than scientific evidence)).

       Here, similarly, Mr. Bergman's report provides no reliable scientific

basis for the views he propounds.                              The first eight pages of his twelve -page

report merely reiterate information found elsewhere in the record, including

a   list of the materials submitted to Mr. Bergman for review, summaries of

the depositions, and                     a       photograph of the chair. See Bergman Engineering

Report at      1   -8.   Another page of the report sets forth                         a   history of the

development of furniture regulations in the United States. See id. at 9. On

page 10, Mr. Bergman describes the X5.1 -2002 standard of the Business

and Institutional Furniture Manufacturers Association ( "BIFMA "), which, he

says, "was intended to provide manufacturers, specifiers, and users with                                a


common basis for evaluating the safety, durability, and structural adequacy

of general -purpose office chairs."                             Mr. Bergman states    that the standard

employs    a   "Drop Test," in which test bags weighing 225 to 300 pounds are

dropped on the chair's seat from                           a   height of six inches to determine whether


                                                               -8
J-A24037-16


the chair can "withstand heavy and abusive impact forces on the seat."               Id.


at 10. Mr. Bergman continues:

       The failure of the incident chair failed to comply with the BIFMA
       standard, resulting in this incident occurring. The structural
       components failed to withstand the weight of John Nobles sitting
       on the chair. Had the incident chair complied with the BIFMA
       standard, this incident would have been avoided.

Id.    The remaining two pages of Mr. Bergman's report summarize his

conclusions, state that "[t]his report may be supplemented if additional

information becomes available," and contain Mr. Bergman's signature.                 Id.


at 11 -12.

       As the trial court stated and as Staples elaborates in its brief, there is

nothing in Mr. Bergman's report to show that he applied any scientific

expertise to reach his conclusion that the chair was defective. Mr. Bergman

did not inspect the chair at issue;          he merely looked at a photograph taken

after the chair broke. Nor did he examine an exemplar or any similar chair.

As    there   was    no     evidence    of    the   chair's   structure,   manufacture,

specifications, materials, or features, it was impossible to identify such             a


similar chair. Mr. Bergman did not test the subject chair or any other chair.

Thus, as the trial court observed, Trial Court Opinion, 2/9/16, at 8, Mr.

Bergman does not state, "even in general terms, what the defect is" or how

the   chair broke,        reporting   only    (on   the   basis   of the   post- accident




                                             -9
J-A24037-16


photograph) that the chair broke at "the connection of the bell and post

column." Bergman Engineering Report at 4.4

      Mr. Bergman does reference the BIFMA X5.1 -2002 standard, but he

provides no facts, studies, or independent research to show that the chair

failed to meet that standard when it was made, which was at least three

years before it broke. Nobles argues that the mere fact that the chair broke

after three years suggests that it was not as durable as the X5.1 -2002

standard requires, but that argument says no more than if    a   chair breaks

after three years, it must be defective. The trial court aptly characterized

such reasoning as "res ipsa loquitur dressed up as expert opinion."     Trial

Court Opinion, 2/9/16, at 9.

      Nobles responds that, although "there is no direct evidence as to what

caused the chair's malfunction," Mr. Bergman's expert opinion "was still


4 Mr. Bergman's failure to state how the chair was defective or how it broke
presents a stark contrast between this case and the main decision on which
Nobles relies, Duquesne Light Co. v. Woodland Hills Sch. Dist., 700
A.2d 1038 (Pa. Cmwlth. 1997). In Duquesne, a school built on a hilltop
was damaged by a landslide. A proposed geotechnical expert studied the
landslide and opined that it was caused by the failure of a water line built
into an embankment that was created to support the school structure, as
well as "by absence of a proper embankment toe key." 700 A.2d at 1047.
Although the expert was unable to explain   -  and therefore did not seek to
testify about - why the water line failed (the line had been destroyed and
was unavailable for study by the expert after the landslide) the court held
that the opinion that the rupture caused the landslide should have been
allowed. Id. at 1047 -48. Here, in contrast to Duquesne, Mr. Bergman did
not study the chair or opine on what caused it to break. Permitting his
testimony would be equivalent to allowing the Duquesne expert to
speculate about what caused the water line rupture.


                                   - 10 -
J-A24037-16


based on    a   proper factual foundation as he was able to study         a   photograph

of the chair after it failed and form an opinion on the reason for the failure

based upon his specialized knowledge of recognized industry standards."

Nobles' Brief, at 29.      This Court's decisions in Snizavich and Checchio

make clear, however, that such knowledge and references are not sufficient

to support an expert opinion where the expert fails to "point to, rely on or

cite some scientific authority     -     whether facts, empirical studies, or the

expert's own research     - that the expert   has applied to the facts at hand and

which supports the expert's ultimate conclusion." Snizavich, 83 A.3d at

197.

        In sum, as the trial court held, Mr. Bergman's testimony would provide

no more than an       "inference that since the chair broke, it must have been

defective in its weight bearing properties." Trial Court Opinion, 2/9/16, at 9.

Such an inference is no more than speculation       -   a   "subjective assessment[]

of cause and effect," Snizavich, 83 A.3d at 197         - and,    as in   Snizavich, it
is   insufficient to satisfy the requirements for expert evidence.

        The trial court's analysis of this issue was methodical, well- reasoned,

and not "manifestly unreasonable."           Walker, 92 A.3d at 772.             As the

admission of expert testimony       is   committed to the discretion of the trial

court, and as we perceive no abuse of that discretion in the exclusion of Mr.

Bergman's testimony, we affirm the trial court's decision with respect to Mr.

Bergman.
J-A24037-16


                      The Procedural Propriety of Dismissal

      The following colloquy occurred at the time the trial court granted

Staples' motion in limine to exclude Mr. Bergman's testimony:

      THE COURT:         I am going to grant your motion.             I believe the
      foundation is exceedingly weak, not supportive of expert
      testimony, for all the reasons that counsel has stated.

       So I am going to grant the motion and exclude the               testimony of
       Bergman in this case.

      That leaves you with basically a products liability case which you
      plead against Staples and no expert.

       [COUNSEL FOR NOBLES]: I think, in effect, the Court has put us
       out of court because under the malfunction theory I still have to
       have some expert testimony to indicate the absence. So, in
       effect, you have put us out of the courtroom.

      THE COURT:        I think so.

N.T., 5/18/15, at 20 -21. The trial court then asked whether Staples had any

further motion.       Counsel for Staples responded, "We would like to file                a


motion to dismiss the case. There is going to be no evidence that              is   going to

be able to support the case."          Id. at        21.    Counsel for Nobles made no

argument in opposition to this motion to dismiss, but stated only, "I take an

exception for the record, Your Honor."                Id.   at 22.   The trial court then

stated, "The motion to dismiss is granted," and adjourned the proceedings.

Id.   The trial worksheet and the docket then recorded the dismissal as the

granting of   a   motion for "non- suit."




                                            - 12 -
J-A24037-16


        In the first issue listed in his brief, Nobles contends that the trial court

erred in granting the motion to dismiss because it was procedurally improper

to grant   a   "non- suit" when Nobles had not yet presented evidence and only

pre -trial motions had been decided.5 We disagree.

        As the trial court observed, a motion to dispose of a case after a           jury
is   empaneled but before evidence is adduced may be treated under         a    variety

of procedural devices, including      a       motion for summary judgment or for

judgment on the pleadings. Trial Court Opinion, 2/9/16, at 4. For example,

in   DiGregorio v. Keystone Health Plan E., 840 A.2d 361, 366 -67                    (Pa.

Super. 2003), the defendant made          a   motion to dismiss the day after    a   jury
was empaneled but before the presentation of any evidence. The trial court

granted the motion and dismissed the case            On appeal, the parties disputed

which procedural rules applied to the trial court's disposition. We resolved

that issue     as follows:

        Since the trial court disposed of the motion in chambers and
        since the jury heard no evidence, we cannot construe the trial
        court's disposition as a verdict, discharge due to the jury's failure
        to agree, or nonsuit. Rather, we conclude that the purported
        motion to dismiss either was a motion for judgment on the
        pleadings or a motion for summary judgment. See Bostick [v.
        Schall's Brakes and Repairs, Inc., 725 A.2d 1232 (Pa. Super.
        1999)]; cf. Lewis v. United Hospitals, Inc., 547 Pa. 626, 692
        A.2d 1055 (1997) (improper entry of nonsuit prior to plaintiff's
        evidence treated as judgment on the pleadings or summary


5 See Pa.R.C.P. 230.1(a)(1) (a nonsuit may be entered "if, at the close of
the plaintiff's case on liability, the plaintiff has failed to establish a right
to relief" (emphasis added)).


                                          - 13 -
J-A24037-16


         judgment which did not require post -trial motions); Wujcik v.
         Yorktowne Dental Associates, Inc., 701 A.2d 581 (Pa. Super.
         1997) (noting that trial court should have treated objection to
         plaintiff's offer of proof before trial as summary judgment or
         motion for judgment on pleadings).

Id. at    365 -66.   Here, although the trial court's granting of Staples' "motion

to dismiss" was docketed as        a   "non- suit," the trial court treated it as   a   grant

of summary judgment, citing DiGregorio. Trial Court Opinion, 2/9/16, at 4.

         The situation presented here is not uncommon.               We have previously

commented on "the murky quagmire often created when                      a   pretrial ruling

effectively determines the case, and the parties decide not to go through the

fruitless effort and expense of putting on           a   trial when the result has already

been determined." Rivera v. Home               Depot USA, Inc., 832 A.2d 487, 489
(Pa. Super. 2003). We observed in           Rivera:

         One common example [of this situation] is when a pretrial
         motion is decided against a party, such as a motion to preclude
         an expert under Frye[6] or for failure to include a critical factor
         in the expert report. In that instance, the parties want to save
         the time and expense of a trial but also want to preserve the
         issue for appeal.

Id.      This current case presents precisely the same situation that was

discussed in Rivera, in which we approved of the trial court's ending of the

case at this same point, through what we deemed to be                          a   summary




6   Frye v. U.S., 293   F.   1013 (D.C. Cir. 1923).


                                            - 14 -
J-A24037-16


judgment motion.        Id. at 489 -90;' see also Liles     v.       Balmer, 653 A.2d
1237, 1240 (Pa. Super. 1994) (permitting nonsuit after preclusion of key

testimony because plaintiff "had no remaining competent and relevant

evidence to present on the issues of negligence and causation            ...   [and her]

case was essentially complete prior to the entry of nonsuit "),                 appeal
denied, 663 A.2d 692       (Pa. 1995).    We perceive no error in the trial court's

handling of the case in this way.8

      In   a   reply brief, Nobles maintains that, although      a   court may grant   a


motion for summary judgment on the day of trial, it may not do so if

entertaining the motion would cause undue prejudice to the non -moving

party. The standard for determining the propriety of an eleventh -hour grant

of summary judgment        is   whether the non -moving party had notice that he

must respond to the legal issue on which the motion                  is based and was

afforded   a    full and fair opportunity to argue his position.           Cagnoli v.


7 We observed in Rivera that a preferred procedure in this situation is for

the parties to agree to treat the motion for dismissal as a motion for
summary judgment, but we did not say that such an agreement on
terminology is mandatory. See 832 A.2d at 490. Here, the record shows
that Nobles agreed that dismissal was preordained once Staples' motion in
limine was granted, and he therefore made no argument in opposition to the
motion to dismiss. Instead, Nobles merely recorded an "exception" that
would permit a right of appeal. In this situation, the trial court did not err in
treating its dismissal order as an entry of summary judgment.
8
  Furthermore, if this appeal actually stemmed from a nonsuit, we would
have to dismiss it, because Nobles failed to file a post -trial motion under
Pa.R.C.P. 237.1(c).



                                         - 15 -
J-A24037-16


Bonnell, 611 A.2d 1194, 1196              (Pa. 1992);    Philips v. Lock, 86 A.3d 906,
914 -15 (Pa. Super. 2014); see also Pa.R.C.P. 1035.3(e)(1) ( "Nothing in this

rule is intended to prohibit         a   court, at any time prior to trial, from ruling

upon   a   motion for summary judgment without written responses or briefs if

no   party   is   prejudiced. A party     is   prejudiced if he or she is not given    a   full

and fair opportunity to supplement the record and to oppose the motion ").

Where the non -moving party has sufficient notice of the issues raised by the

summary judgment motion and               a   full opportunity to respond, the granting of

summary judgment on            a   motion made on the day of trial       is   not reversible

error. Phillips, 86 A.3d at 911 -15 (affirming grant of motion for summary

judgment made by defendant on the morning of trial).

       According to the record, Nobles received Staples' motions in limine

over three weeks before trial. These filings included the precise legal issues,

along with case law and facts, on which summary judgment ultimately was

granted; thus, Nobles had ample notice. See Robertson v. Port Auth.                         of
Allegheny County,             144 A.3d 980, 983 -84 (Pa. Cmwlth. 2016) (plaintiff

received notice of the precise legal issue upon which summary judgment

was later based in        a   motion in limine filed about       a   week before an oral

motion for summary judgment on the day of trial, and these circumstances

provided "ample notice ").

       Additionally, Nobles was given an opportunity to argue his position

immediately after the trial court decided the motion to exclude his expert's


                                               - 16 -
J-A24037-16


testimony. However, when presented with that opportunity, Nobles' counsel

stated:   "I think,   in effect,   the Court has put us out of court because
under the malfunction theory I still have to have some expert testimony to

indicate the absence.        So, in effect, you have put us out of the

courtroom." N.T., 5/18/15, at         21 (emphasis added).           Hence, Nobles' own

counsel essentially acknowledged that summary judgment was appropriate.9

The trial court therefore did not err in dismissing the case.

                       The Coordinate Jurisdiction Rule

      In his second listed issue, Nobles argues that the trial court's grant of

summary judgment violated the coordinate jurisdiction rule.                 Nobles' Brief,

at 4 ¶ 2. "[T]he coordinate jurisdiction rule           ...   provides that judges sitting

on the same court in the same case should not overrule each other's

decisions."   Commonwealth v. Daniels, 104 A.3d 267, 278                      (Pa. 2014).

However, "a trial court may reconsider         a     summary judgment motion, already

decided by    a   colleague of the same court when the motion contains new

evidence or facts of record." Elec. Lab. Supply Co. v. Cullen, 712 A.2d

304, 308 (Pa. Super. 1998); accord Bersani                by Bersani     v. Sch.   Dist. of

Phila., 456 A.2d 151, 153          (Pa. Super. 1982) ( "The action of the second

lower court judge in considering        a   second motion for summary judgment,


9 Furthermore, if Nobles' counsel believed that he did not have sufficient
opportunity to respond after Staples moved to dismiss, he could have
requested that the trial court allow the parties to submit briefs before ruling
on that motion, but he did not do so.



                                            - 17 -
J-A24037-16


even though the prior motion had been denied, is justified by the large

amount of new information added to the record in the time period between

the two motions ").

      In the current action, once Judge Colins granted Staples' motions in

limine, the status of the case changed materially. Therefore, the basis upon

which Judge Colins granted the final motion for summary judgment was very

different from the bases upon which Judge Rizzo and Judge Massiah- Jackson

relied when they denied Staples' first and second motions for summary

judgment several months earlier.              Once Judge Colins held that Nobles'

expert would not be allowed to testify, it became clear that there was no

viable way in which Nobles could recover             -   as Nobles' counsel himself

admitted when he told Judge Colins that she had "put us out of court." See

Trial Court Opinion, 2/9/16, at       5 -6.     Accordingly, it was appropriate for

Judge Colins to then grant Staples' motion to dismiss the case, even if that

motion was the equivalent of      a   third motion for summary judgment.         In

doing so, the trial court did not violate the coordinate jurisdiction rule.

               The Substantive Propriety of the Dismissal

      The remaining issue raised by Nobles is that the trial court erred when

it granted Staples' motion to dismiss because Nobles' fact witnesses were

prepared to testify as to the lack of any misuse of the chair on Nobles' part.

Nobles' Brief, at 4   ¶ 3.




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J-A24037-16


      The trial court treated Staples' motion to dismiss as                       a       motion for

summary judgment.           Our standard of review with respect to                a       trial court's

decision to grant or to deny        a   motion for summary judgment             is as      follows:

      A reviewing court may disturb the order of the     trial court only
      where it is established that the court committed an error of law
      or abused its discretion. As with all questions of law, our review
      is   plenary.

      In evaluating the trial court's decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. 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 it bears the burden of proof
      establishes the entitlement of the moving party to judgment as a
      matter of law. Lastly, we will view the record in the light most
      favorable to the non -moving party, and all doubts as to the
      existence of a genuine issue of material fact must be resolved
      against the moving party.

WFIC, LLC v. Labarre, -- A.3d                  - -,   2016 PA Super 209 (2016).               Accord
Gilbert    v.   Synagro Cent., LLC, 131 A.3d                   1, 10 (Pa. 2015) (the scope of

review for the grant of summary judgment is plenary; the trial court's order

will be reversed only where it          is   established that court committed an error of

law or clearly abused its discretion).

      Nobles contends that his case was based on                      a   malfunction theory of

liability, Nobles' Brief, at 13, which permits "a plaintiff to prove                  a    defect in   a


product with evidence of the occurrence of                 a    malfunction and with evidence

eliminating      abnormal     use       or    reasonable,        secondary    causes         for   the

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J-A24037-16


malfunction." Beard v. Johnson & Johnson, Inc., 41 A.3d 823, 825 (Pa.

2012).    Nobles' witnesses were prepared to testify on the second of these

evidentiary requirements (elimination of other causes), but the exclusion of

Nobles' expert made it impossible for Nobles to prove the first requirement

- the occurrence of       a   "malfunction.i10 Thus, the trial court did not err   in

dismissing the case in the absence of such required proof.

        Nobles appears to concede as much. His argument of this issue in his

brief relates entirely to the contention that, if Mr. Bergman's expert

testimony had not been excluded, he would have been able to establish              a


prima facie case of   a   defect and survive summary judgment.         See Nobles'

Brief, at 32 -34; Nobles' Reply Brief, at 11 -12. Nobles does not contend that

he could survive summary         judgment once the Bergman Engineering Report

was excluded, and, in fact, he made         a   contrary admission at the time that

the trial court granted dismissal.         Accordingly, the trial court's grant of

Staples' motion to dismiss, which it treated as            a   motion for summary

judgment, was proper.

        Judgment affirmed.

to We
       have held that a manufacturing defect sometimes can be proven by
circumstantial evidence without expert testimony. See Wiggins v. Synthes
(U.S.A.), 29 A.3d 9, 15 (Pa. Super. 2011). The trial court held that Nobles
could not satisfy any of the non -expert ways of proving a malfunction or
defect. See Trial Court Opinion, 2/9/16, at 11. Although Nobles challenges
some of the trial court's conclusions regarding the evidence that he could
present, Nobles does not argue that he could have proven his case without
expert evidence.


                                         - 20 -
J-A24037-16




Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 11/8/2016




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