J-A08001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ANDREA PALMER                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDREW CAIRONE AND MICHAEL                 :
    CAIRONE                                    :
                                               :   No. 1581 EDA 2017
                       Appellants              :

                Appeal from the Judgment Entered July 17, 2017
              In the Court of Common Pleas of Philadelphia County
                       Civil Division at No(s): 160101326


BEFORE:      PANELLA, J., LAZARUS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, J.                          FILED SEPTEMBER 25, 2018

        Appellants, Andrew Cairone and Michael Cairone, appeal from the

judgment entered on July 17, 2017, in the Philadelphia County Court of

Common Pleas, after a jury returned a verdict in favor of Appellee, Andrea

Palmer, in this motor vehicle negligence case. We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On the morning of December 13, 2014, Andrew Cairone1 was driving down
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   Retired Senior Judge assigned to the Superior Court.

1 In her complaint, Appellee alleged Andrew Cairone was operating a vehicle
owned by Michael Cairone at the time of the accident, as a servant or
employee acting in the scope of his agency. The complaint raised a count of
negligent entrustment against Michael Cairone. Andrew Cairone’s answer to
the complaint denied these allegations and asserted that Michael Cairone was
deceased. Andrew Cairone also filed a suggestion of death as to Michael
Cairone, which stated he had died on July 27, 2014. Appellee did not pursue
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Broad Street in Philadelphia at a speed of 35-40 mph and approached the

intersection of Broad Street and Chew Avenue. Appellant became distracted

by nearby police activity and entered the intersection without stopping at the

red light. At the same time, Appellee was driving along Chew Avenue through

the intersection. The front of Appellant’s vehicle collided with the front driver’s

side of Appellee’s vehicle at full speed, forcing Appellee’s car into the opposite

lane. Appellant exited his car and approached Appellee, who asked Appellant

how he did not see the light. Appellant responded by apologizing repeatedly

and admitting he had been distracted.

       An ambulance took Appellee from the scene of the accident to Einstein

Medical Center. Appellee experienced a severe headache on the way to the

hospital. Once there, Appellee underwent CAT scans and MRIs and received

pain medication, after which she was discharged. Appellee continued to

experience pain in her head, shoulder, and back. For the next three months,

Appellee’s father transported her children between home and school or

daycare and helped her with daily household chores. Appellee stopped working

in December 2014 due to her physical symptoms and she began physical
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her claims against Michael Cairone any further, and the verdict and judgment
were entered against Andrew Cairone only. Nevertheless, the notice of appeal
was filed on behalf of both Andrew Cairone and Michael Cairone. Michael
Cairone is not an aggrieved party, so this matter is concluded as to him. See
Pa.R.A.P. 501 (“Except where the right of appeal is enlarged by statute, any
party who is aggrieved by an appealable order, or a fiduciary whose estate or
trust is so aggrieved, may appeal therefrom.”); Interest of K.C., 156 A.3d
1179 (Pa. Super. 2017) (explaining party is aggrieved when party has been
adversely affected by decision from which appeal is taken). “Appellant”
henceforth refers specifically to Andrew Cairone.

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therapy around one month later. Appellee eventually started a new job as a

nurse’s aide in 2015, but she was unable to work extended shifts as in her

previous position.

       Appellee also was involved in two other motor vehicle accidents—one

before and one after the December 13, 2014 accident. In an accident on

November 18, 2013, Appellee broke her pelvis and suffered lower back pain.

She completed several months of physical therapy, which improved her

condition and allowed her to resume her normal fifty-three hour workweek at

the time. Then on December 21, 2015, Appellee was driving when her vehicle

was hit head-on by an approaching car. Appellee lost consciousness and

fractured her right ankle and one of her vertebrae. Appellee was placed on

bedrest and was unable to work for three months.

       On January 12, 2016, Appellee filed a complaint in negligence against

Appellant and Michael Cairone for injuries arising out of the December 13,

2014 accident. Following a two-day trial, the jury found Appellant’s negligence

was a factual cause of Appellee’s harm and Appellee had sustained a serious

impairment of a body function. The jury awarded Appellee $65,000.00 in

damages. Appellant filed a motion for post-trial relief,2 requesting a new trial,

or in the alternative, remittitur. The trial court later denied the post-trial


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2The motion was also filed on behalf of Michael Cairone, but the verdict was
entered against Andrew Cairone only.




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motion. Appellant filed a timely notice of appeal on May 11, 2017.3

       Appellant raises the following issues on appeal:

       I.       Did the [t]rial [c]ourt abuse its discretion by not granting
       [Appellant’s] request for a continuance to accommodate
       [Appellant’s] [e]xpert, Ira C. Sachs, DO, C.I.M.E.[,] who was not
       available until after March 7, 2017?

       II.      Did the [t]rial [c]ourt abuse its discretion by overruling
       [Appellant’s] objection and permitting the testimony of Appellee’s
       father at trial when he was not listed as a “trial witness” in any
       documents exchanged between the parties?

       III.     Did the [t]rial [c]ourt abuse its discretion by allowing
       Appellee’s [c]ounsel to mention the “missing” defense expert
       when Appellee’s counsel was specifically instructed not to so as
       not to mislead the jury?

Appellant’s Brief, at 6.

       Our standard of review of a trial court’s denial of a motion for a new trial

is as follows:

       [I]t is well-established law that, absent a clear abuse of discretion
       by the trial court, appellate courts must not interfere with the trial
       court’s authority to grant or deny a new trial.

                                       *       *   *

       Thus, when analyzing a decision by a trial court to grant or deny
       a new trial, the proper standard of review, ultimately, is whether
       the trial court abused its discretion.
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3  This Court directed Appellant to praecipe for entry of final judgment in the
trial court, after which the premature notice of appeal would be treated as
filed after the entry of judgment pursuant to Pa.R.A.P. 905(a)(5). See
Harvery v. Rouse Chamberlin, Ltd., 901 A.2d 523, 524 n.1 (Pa. Super.
2006) (explaining appeal properly lies from judgment entered following trial
court’s disposition of post-trial motions). Appellant complied with this Court’s
directive.

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      Moreover, our review must be tailored to a well-settled, two-part
      analysis:

        We must review the court’s alleged mistake and determine
        whether the court erred and, if so, whether the error resulted
        in prejudice necessitating a new trial. If the alleged mistake
        concerned an error of law, we will scrutinize for legal error.
        Once we determine whether an error occurred, we must then
        determine whether the trial court abused its discretion in
        ruling on the request for a new trial.

ACE Am. Ins. Co. v. Underwriters at Lloyds and Companies, 939 A.2d

935, 939 (Pa. Super. 2007) (internal citations omitted).

      In his first issue, Appellant argues that at a pretrial conference on

November 20, 2016, the judge pro tem recommended that this matter be

remanded to arbitration. Appellant avers the parties were subsequently

informed, at a January 5, 2017 conference before a different judge, that the

case would be placed in the February 2017 trial pool. Appellant claims he

immediately sought to depose his expert witness, Dr. Ira C. Sachs, but he was

unavailable until after March 7, 2017. Appellant asserts he requested a one-

month continuance on January 26, 2017, based on the unavailability of Dr.

Sachs, which the trial court denied. Appellant concludes the trial court’s denial

of a continuance constituted an abuse of discretion warranting a new trial. We

find this issue waived.

      Appellant averred in his motion for post-trial relief that he requested a

continuance on January 26, 2017, by way of a letter to the trial court, and

that the court informed Appellant’s counsel via phone call that the request was


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denied. In its Rule 1925(a) opinion, the trial court4 recited a somewhat

different version of events: “[Appellant’s counsel] informally faxed a Request

for Continuance to Judge Cohen on January 26, 2017, which was denied by

His Honor in handwriting saying ‘no motion for extraordinary relief filed.’ Yet,

[Appellant’s counsel] did not subsequently file a formal motion for

extraordinary relief.” Trial Court Opinion, filed 9/29/17, at 9.

       The trial court docket confirms that Appellant failed to file with the court

a motion seeking a continuance at any stage of the litigation. And Appellant’s

brief on appeal lacks any citations to the part of the certified record containing

the informal letter request for a continuance or the court’s denial of the

request, and our own review of the record confirms the absence of the letter.

This Court is “limited to considering only the materials in the certified record

when resolving an issue.” Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.

Super. 2006) (en banc). See also Pa.R.A.P. 2119(c) (“If reference is made to

the pleadings, evidence, charge, opinion or order, or any other matter

appearing in the record, the argument must set forth, in immediate connection

therewith, or in a footnote thereto, a reference to the place in the record where

the matter referred to appears.”)

       Without the relevant papers, we cannot discern the basis for Appellant’s

pretrial request for a continuance or the trial court’s grounds for denying it.


____________________________________________


4The judge who presided over trial and drafted the Rule 1925(a) opinion was
not the same judge who received Appellant’s request for a continuance.

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Also, there is no indication that Appellant subsequently filed a written motion

seeking a continuance or orally moved for a continuance at trial. Appellant

first raised the issue on the record in his motion for post-trial relief. See

Straub v. Cherne Indus., 880 A.2d 561, 566 (Pa. 2005) (“Rule 227.1, which

governs post-trial relief, provides in relevant part that a ground may not serve

as the basis for post-trial relief … unless it was raised in pre-trial proceedings

or at trial. The Rule further notes that error that could have been corrected by

timely objection in the trial court may not constitute a ground for such a

judgment.)” Therefore, we find Appellant’s first issue waived.

      In his second issue, Appellant argues Appellee called her father, Charles

Palmer, as a witness at trial despite her failure to identify Mr. Palmer as a

witness in her pretrial memorandum or during discovery. Appellant contends

Appellee’s surprise introduction of this witness was a deliberate and tactical

move intended to prejudice Appellant’s ability to present a defense. Appellant

concludes the trial court abused its discretion when it permitted Mr. Palmer to

testify over Appellant’s objection. We disagree.

             The admission or exclusion of evidence is within the sound
      discretion of the trial court, and in reviewing a challenge to the
      admissibility of evidence, we will only reverse a ruling by the trial
      court upon a showing that it abused its discretion or committed
      an error of law. Thus our standard of review is very narrow…. To
      constitute reversible error, an evidentiary ruling must not only be
      erroneous, but also harmful or prejudicial to the complaining
      party.

McManamon v. Washko, 906 A.2d 1259, 1268-1269 (Pa. Super. 2006)

(citations omitted; ellipses in original).

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     “[T]he purpose of the discovery rules is to prevent surprise and

unfairness and to allow a fair trial on the merits.” McGovern v. Hosp. Serv.

Ass'n of Ne. Pennsylvania, 785 A.2d 1012, 1015 (Pa. Super. 2001) (citation

omitted). In determining whether a witness should be precluded from

testifying based on a party’s failure to comply with discovery rules, a court

must consider the following factors:

        (1) the prejudice or surprise in fact of the party against whom
        the excluded witnesses would have testified,

        (2) the ability of that party to cure the prejudice,

        (3) the extent to which waiver of the rule against calling
        unlisted witnesses would disrupt the orderly and efficient trial
        of the case or of cases in the court,

        (4) bad faith o[r] willfulness in failing to comply with the
        court’s order.

     In the absence of bad faith or willful disobedience of the rules, the
     most significant considerations are the importance of the witness’
     testimony and the prejudice, if any, to the party against whom
     the witness will testify. Further, we note that [t]o preclude the
     testimony of a witness is a drastic sanction, and it should be done
     only where the facts of the case make it necessary.

Smith v. Grab, 705 A.2d 894, 902 (Pa. Super. 1997) (citations and quotation

marks omitted).

     At the start of trial, Appellant’s counsel raised an objection to Charles

Palmer testifying and the following exchange occurred:

     [APPELLANT’S COUNSEL]: Your Honor, the defense was notified
     on Thursday that [Appellee’s] father may be testifying today as a
     damages witness. However, at no time prior to that was
     [Appellee’s] father identified as a witness or his information even


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     given to us. It would be our position that his testimony should not
     be accepted for trial.

     THE COURT: It wasn’t in the discovery requests? It wasn’t in the
     pretrial memorandum       or    the    settlement   conference
     memorandum?

     [APPELLANT’S COUNSEL]: No, Your Honor.

     THE COURT: All right. So how do you explain that? Because as
     you know, the pretrial memorandum says that if they’re not
     identified, they could be excluded, and he has not had no
     opportunity to do a deposition or any discovery on this witness.

     [APPELLEE’S COUNSEL]: Yes, Your Honor. Thank you. I would
     note in [Appellee’s] pretrial memorandum, there is in the witness
     list, “all persons identified by [Appellee] as witnesses in written
     discovery and/or deposition.” At the time that [Appellee] was
     deposed, she mentioned on three different occasions throughout
     her testimony about her father assisting her following the accident
     because she was not able to carry on with her regular activities
     around the house as a result of her injuries from this accident. So
     we would argue that defense was on notice. Additionally, when
     [Appellant’s counsel] --

     THE COURT: Why didn’t you just put him on the list? Why didn’t
     you just write his name on the list?

     [APPELLEE’S     COUNSEL]:      Your     Honor,     I    understand.
     Unfortunately, I can’t turn back time. I did reach out to
     [Appellant’s counsel] on Friday in light of his objection and made
     Mr. Palmer available for him to have a deposition on Friday itself.

     THE COURT: I’m going to let him, but I need for you to tell him
     during -- right now exactly the extent of his testimony.

     [APPELLEE’S COUNSEL]: Yes, Your Honor.

     THE COURT: Did you have a chance to ask?

     [APPELLANT’S COUNSEL]: No.




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      THE COURT: All weekend you would have had a chance to ask her
      or since Friday what he’s going to testify to. All right. Well, there
      is some notice. How long will this guy’s testimony be?

      [APPELLEE’S COUNSEL]: I anticipate it to be brief, Your Honor.
      It’s just talking about the days and weeks following the accident
      where he was assisting [Appellee] in the household.

      THE COURT: Well, at this point, if you wouldn’t mind speaking to
      counsel I want to know precisely what he’s going to be saying.
      Okay? He should know precisely what he’s going to be testifying
      to.

      [APPELLANT’S COUNSEL]: Thank you, Your Honor.

      THE COURT: I think that’s a reasonable compromise.

N.T., Trial, 2/6/17, at 6-10.

      After the trial court directed Appellee’s counsel to inform Appellant’s

counsel of the precise content of Mr. Palmer’s testimony, as a “reasonable

compromise,” Appellant’s counsel thanked the court and did not renew his

objection to Mr. Palmer testifying. Therefore, Appellant arguably has waived

this issue.

      Even if Appellant preserved the issue, he fails to establish that the trial

court abused its discretion in refusing to prohibit Mr. Palmer’s testimony,

which is a drastic sanction. See Gilbert v. Otterson, 550 A.2d 550, 555 (Pa.

Super. 1988) (“To preclude the relevant testimony of a witness is a drastic

step which should not be taken except for weighty reasons.”) Despite the

absence of Mr. Palmer’s name in pretrial documents, the court found that

Appellant had some notice that Mr. Palmer would be a witness. Appellant’s

counsel became aware on the Thursday before trial that Mr. Palmer would be

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testifying, and Appellee’s counsel made him available for a deposition. The

trial court did not find that Appellee’s omission of Mr. Palmer from the pretrial

memorandum was an act of bad faith.

      Additionally, Appellant’s two-page argument in his brief lacks any

substantive discussion of the factors enunciated in Smith, including how he

was prejudiced by the trial court’s ruling. Appellant cites no authority outside

of Pa.R.C.P. 4007.4(1), which concerns a party’s duty to supplement

discovery. Based on the foregoing, we decline to disturb the trial court’s

exercise of discretion in permitting Mr. Palmer to testify.

      In his third issue, Appellant argues the trial court erred when it allowed

Appellee’s counsel to refer to Appellant’s “missing” expert witness during

closing arguments. Appellant asserts counsel falsely suggested to the jury that

Appellant had an expert examine Appellee, but declined to call the expert as

a witness because his opinion was unfavorable to Appellant’s defense.

      Prior to closing arguments, the court denied Appellee’s request for an

adverse inference instruction to the jury regarding the failure of Appellant to

produce Dr. Sachs as an expert witness. Appellant’s counsel then made the

following clarification:

      [APPELLANT’S COUNSEL]: I’d just like to say I mean I think it’s
      clear to the jury that the defense did not present a doctor. I think
      they know that. So I certainly don’t have an issue with [Appellee’s
      counsel] mentioning that there was no medical evidence
      presented.

      THE COURT: And that’s what she wants to say.


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      [APPELLANT’S COUNSEL]: But my issue is to suggest that there’s
      medical evidence and there’s a reason for it outside of us not being
      able to present it is clearly misleading, because that leads the jury
      to believe there’s something there that I don’t want them to see,
      and that’s not the case.

      THE COURT: Well, I think she understands that and that’s what
      she agreed to. She wasn’t going to do an adverse inference. She
      was just going to say there was no evidence, medical evidence
      presented -- that’s all -- to counteract or counterbalance her.
      She’s not allowed to do an adverse inference. Okay. But she is
      allowed to bring it up. That’s what we discussed.

N.T., Trial, 2/7/17, at 8-9.

      Subsequently, during her rebuttal to Appellant’s counsel’s closing

argument, Appellee’s counsel stated: “You heard from Dr. Dworkin. But you

also heard Ms. Palmer testify that she was examined by a doctor for the

defense, and you have heard no testimony regarding that examination or have

seen no evidence.” Id., at 42. Appellant raised no objection during or

immediately after closing arguments that this remark violated the court’s

adverse inference ruling. Craley v. Jet Equip. & Tools, Inc., 778 A.2d 701,

706-707 (Pa. Super. 2001) (finding challenge to counsel’s comment during

closing argument waived for failure to object during argument). Appellant

challenged this portion of counsel’s rebuttal for the first time in his post-trial

motion. Consequently, we find this issue waived. See Straub.




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       Appellant further contends that even if none of the trial court’s alleged

errors individually constituted an abuse of discretion, they cumulatively

prejudiced Appellant’s ability to defend this action, warranting a new trial. In

light of our conclusion that at least two of Appellant’s three issues are waived,

we reject Appellant’s assertion that the trial court’s alleged errors cumulatively

amounted to an abuse of discretion.5

       Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/18




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5 In the conclusion section of his brief, Appellant alternatively requests relief
in the form of remittitur. Appellant, however, presents no argument and cites
no law with respect to remittitur elsewhere in his brief. Therefore, we conclude
the issue of remittitur is also waived.

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