J-S21037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH LANDMAN (DECEASED)                      IN THE SUPERIOR COURT OF
AND                                                  PENNSYLVANIA
MARIE LANDMAN

                            Appellee

                       v.

CALVARY FULL GOSPEL CHURCH

                            Appellant              No. 2598 EDA 2013


                      Appeal from the Order August 1, 2013
                 In the Court of Common Pleas of Bucks County
                       Civil Division at No(s): No. 0405026


BEFORE: SHOGAN, J., ALLEN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED DECEMBER 03, 2014

       Joseph Landman (Deceased)1 and Marie Landman (Landmans) appeal

from the order entered August 1, 2013, in the Court of Common Pleas of

Bucks County, purporting to grant a directed verdict in favor of Calvary Full


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1
  It does not appear that the Estate of Joseph Landman was ever substituted
as plaintiff for Joseph Landman (Deceased). Additionally, it does not appear
that a suggestion of death for Joseph Landman was ever filed. In its
Pa.R.A.P. 1925(a) Opinion, the trial judge simply notes that Joseph Landman
died, unrelated to this lawsuit, sometime after the complaint was filed. The
August 1, 2013, notes of testimony is the first time the caption of this
matter reflects Joseph Landman as deceased. Assuming that the Landmans’
property was owned jointly with right of survivorship, Marie Landman would
be the actual plaintiff, but that fact is not immediately discernable in the
certified record. See Pa.R.C.P. Rules 2352 (Substitution of Successor), 2355
(Notice of Death of a Party. Substitution of Personal Representative).
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Gospel Church (Calvary), thereby dismissing the Landmans’ cause of action.2

The motion for directed verdict was granted immediately after the trial court

granted Calvary’s motion to preclude the testimony of the Landmans’

proposed expert. In this timely appeal, the Landmans argue the trial court

erred in granting a directed verdict before the case had been called to trial

and before they were able to produce any testimony, that the trial court

erred in granting the motion to dismiss in the absence of notice to the

Landmans, and erred in determining the cause of action required expert

testimony.     After a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm in part, reverse in part, and

remand for further proceedings.

       On August 4, 2004, the Landmans initiated this lawsuit against

Calvary, claiming that Calvary had hired certain contractors to perform

landscaping work on the church property. The Landmans’ property adjoins

the property owned by Calvary. The certified record demonstrates that the

Landmans’ property is slightly elevated in comparison to Calvary’s and

therefore there is a hill between the church and the Landmans’ home.         A

survey included in the certified record shows that Calvary owns the hill. The

Landmans claimed that work was negligently performed causing various


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2
  Calvary filed joinder complaints against Weaver Construction and W.K.
Frame & Sons. Accordingly, dismissing the claims against Calvary would
necessarily terminate Calvary’s claims against the additional defendants.



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damage to the Landmans’ property, which abuts the church property. The

complaint alleges:

     A. [Landmans’] property has been cut away and now lost.

     B. [Landmans’] fence has been severely undermined and is a
     danger and in danger of imminent collapse.

     C. [Calvary] caused water run-off to be changed, and caused an
     undermining of [Landmans’] property, causing severe damage to
     sections of [Landmans’] property.

     D. [Calvary] has caused an undermining of [Landmans’]
     concrete slab, which has been caused to crack and is in
     imminent danger of collapsing and is unusable.

     E. The removal of the shrubbery and change of the land has
     caused extensive run-off and severe erosion to the protected
     area between [Landmans’] and [Calvary’s] property, which
     continues to cause severe erosion and damage.

     F. [Calvary]    has   encroached   on   the   property   owned   by
     [Landmans].

Complaint, 8/4/2004, at ¶10 (A)-(F).

     The Landmans further itemized their alleged damages:

     1. Survey cost for boundary markers removed by [Calvary] in
     the amount of Seven Hundred Fifty-two Dollars ($752.00).

     2. Engineering and placement of retainer wall, removal of
     severely cracked and damaged concrete slab, repair of building
     cracks in the amount of Twenty-seven Thousand Five Hundred
     Dollars ($27,500.00).

     3. Fence repair or removal and replacement of seventeen
     sections and eighteen stabilizing sets in the amount of Six
     Thousand Five Hundred Dollars ($6,500.00).

     4. Replacement of lost ground and erosion caused by excavation
     in the amount of Forty Thousand Dollars ($40,000.00)


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        5. Veneer stone on home cracked and damaged in the amount of
        Three Thousand Seven Hundred Dollars ($3,700.00).

        6. Repair and replacement of destroyed vegetation and trees on
        the hillside to return to original slope to prevent further damage
        and erosion in the amount of One Hundred Thousand Dollars
        ($100,000.00).

Complaint, at ¶ 11 (1)-(6).

        Relevant to this appeal, a jury trial was scheduled to begin August 1,

2013.    Prior to that date, on June 26, 2013, a pre-trial order was issued,

requiring the parties to file a pre-trial memorandum listing all witnesses.

This memo was to be filed one week prior to trial. Here, the Landmans filed

their pre-trial memo on July 29, 2013, four days late.            The pre-trial

memorandum listed Mat Lydon as a witness. The certified record reflects

that on July 29, 2013, counsel for Calvary notified Landmans’ counsel that

Mat Lydon had never been identified prior to receipt of the pre-trial

memorandum and consequently, a motion in limine would be filed seeking to

preclude his testimony. The motion was filed on July 31, 2013.

        A pre-trial conference was scheduled for the morning of August 1,

2013, prior to jury selection.     At that time, the issue of Mat Lydon was

raised. The Landmans identified Lydon as an expert witness, but voluntarily

withdrew him as a witness.      Immediately following that, Calvary made an

oral motion for nonsuit or directed verdict, arguing the Landmans needed

expert testimony to provide the causal link between the landscaping

activities undertaken at Calvary and the erosion, run-off, undermining, and

physical damage claims made by the Landmans. The trial court then asked


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the Landmans for a specific offer of proof as to how they meant to causally

link the defendants’ activities with the damages claimed.       The arguments

presented by the Landmans were of a post hoc ergo propter hoc3 nature.

Essentially, the Landmans argued that they did not notice the cracking

problems in the concrete, walls and fences until after the landscaping began,

therefore, the damage must have been caused by the landscaping activities.

Similarly, they could not specifically link erosion and water run-off problems

to any negligent action taken by Calvary. The trial court noted that a variety

of elements have an effect on the structural integrity of fences, concrete

slabs and building walls. Therefore, the Landmans’ proposed evidence based

upon timing was insufficient; it would require an expert to determine what

caused the structural failings.

       Similarly, the Landmans’ property was above Calvary’s property;

therefore, water would always tend to run-off the Landmans’ property to

Calvary’s. However, how and why such erosion and/or run-off changed was

not a matter for lay interpretation. Rather, it required an expert to assess

the causal factors.

       Based upon the Landmans’ offer of proof, the trial court determined

the Landmans could not present a prima facie case, and there was no



____________________________________________


3
  Literally, “After this, therefore because of this.” Otherwise put, it followed,
therefore it was caused by.



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purpose in proceeding with the trial. Accordingly, the trial court dismissed

the action.

       The Landmans’ first claim is that they were denied their due process

rights when the trial court granted a motion for directed verdict prior to the

introduction of evidence. The Landmans are correct in noting that the Rules

of Civil Procedure allow for the entry of a directed verdict “at the close of all

evidence.”      See Pa.R.C.P. 226(b).            Similarly, the other method of

terminating a case during trial, nonsuit, is allowed “at the close of the

plaintiff’s case.”   See Pa.R.C.P. 230.1(a) (1).      Because the trial court has

stated it granted a directed verdict, under that theory, the Landmans should

have been allowed to present their evidence.

       However, we believe the trial court misnamed its ruling. The dismissal

was granted prior to trial and the introduction of testimony and evidence.

There are two methods by which that is accomplished; a party may seek

either a judgment on the pleadings or summary judgment.4 Since judgment




____________________________________________


4
   “A trial court's order dismissing a case prior to trial is properly
characterized as either a summary judgment or a judgment on the
pleadings.” Demmler v. SmithKline Beecham Corp., 671 A.2d 1151,
1153 (Pa. Super. 1996). In Demmler, SmithKline filed a misnamed motion
to dismiss; our Court considered the motion for what it was, a motion for
summary judgment. Similarly, we will view the instant motion as requesting
summary judgment.




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on the pleadings was not applicable, we must examine whether the order

was an appropriate grant of summary judgment.5

       Initially, the Landmans argue that the trial court erred in granting the

motion because Calvary had not followed the proper procedural rules,

thereby denying them the right of notice and the right to be heard.

“Generally, it is improper for a trial court to entertain a motion for summary

judgment filed on the morning of trial.”         DiGregorio v. Keystone Health

Plan East, 840 A.2d 361, 366 (Pa. Super. 2003).            However, we are not

persuaded that the general rule applies to the instant factual circumstances.

       The Landmans did not notify Calvary of their intent to present Mat

Lydon as an expert witness until they filed their pre-trial memorandum on

July 29, 2013, four days after it was due and only three days prior to trial.

Calvary immediately informed the Landmans they would object, and on July

31, 2013, filed a written motion seeking preclusion of Lydon as a witness. It

was not until the next day, at the pre-trial conference, that the issue was

resolved, confirming that the Landmans did not have expert testimony and

would be unable to prove certain aspects of their case.

       Although entertaining a motion for summary judgment on the morning

of trial is disapproved of, where the trial court has an extensive record and
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5
  Because the Landman’s due process claim was based upon the trial court
having granted a directed verdict, and we have determined the trial court
granted summary judgment, the due process claim is irrelevant to the
disposition of this appeal.



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the non-moving party has an opportunity to respond fully, the trial court

may hear the motion.     See Kramer v. Dunn, 749 A.2d 984 (Pa. Super.

2000). Here, as noted, because the Landmans delayed in filing their pre-

trial memorandum, the issue did not arise until the morning of trial.

Calvary’s motion was, therefore, not designed to delay trial.     Further, the

trial judge had the full record available and the Landmans were given the

opportunity to present an offer of proof that needed only demonstrate a

prima facie case that the claims did not require expert testimony. Taking all

of these factors into account, we find no error in the trial court entertaining

the motion for summary judgment on the morning of trial.

      The Landmans’ final claim is that the trial court erred substantively in

granting the motion for summary judgment.

      We begin by noting our standard of review for a motion granting

summary judgment.

      An order granting summary judgment is appropriate when a
      review of all the interrogatories, affidavits and depositions of
      record indicates that there are no genuine issues of material fact
      and the moving party is entitled to judgment as a matter of law.
      Buckno v. Penn Linen & Uniform Service Inc., 428
      Pa.Super. 563, 565, 631 A.2d 674, 675 (1993). However, “[a]n
      entry of summary judgment may be granted only in cases where
      the right is clear and free of doubt.” Musser v. Vilsmeier
      Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280
      (1989). When considering whether summary judgment is proper,
      the record must be examined in the light most favorable to the
      non-moving party, with all doubts resolved against the moving
      party.

      Denlinger, Inc. v. Dendler, 415 Pa.Super. 164, 170, 608 A.2d
      1061, 1064 (1992).

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Demmler v. SmithKline Beecham Corp, supra, 671 A.2d at 1153.

         Here, the complaint and pre-trial memorandum allege that as a result

of landscaping/construction work performed at the direction of Calvary, the

Landmans’ adjoining property suffered erosion, damage to a fence, damage

to a concrete slab, and damage to their home.             The trial court found that

such damages claimed were not within the general knowledge of laypersons

and therefore an expert was required to explain the mechanism of such

damage. Our review of the certified records leads us to agree with the trial

court.        The    record     provides       no   causative   link   between   the

landscaping/construction activity and the claims of erosion, water run-off,

undermining of fences, concrete slab and home. Given the myriad of factors

that can provoke such outcomes, we agree that an expert is required to

explain causation. In addition, we note the record contains expert opinion

provided by Calvary that purports to explain the mechanisms that caused

the Landmans’ complaints.6

         We have previously acknowledged the post hoc nature of the

Landmans’ claims and proposed evidence and following review of the

certified record and viewing the evidence in the light most favorable to the


____________________________________________


6
  We are aware that we must view the evidence in the light most favorable
to the Landmans as non-moving party. We note Calvary’s expert report only
to acknowledge the complexity of causation. We are not giving credit to the
conclusions found in Calvary’s expert report.




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Landmans, we discern no error in the trial court’s determination that certain

of the Landmans’ claims required expert testimony.               To that extent, we

affirm the grant of summary judgment to those claims involving erosion,

run-off, the necessity of replanting the hill to prevent erosion and run-off,

and damage to the physical structures of the home, fence and concrete slab.

       However, we find the trial court did err in concluding that all of the

Landmans’ claims required expert testimony. There are two claims that do

not and which can only be resolved by determination of fact and credibility

determinations.      The Landmans claimed that Calvary caused the survey

posts to be removed, which required the Landmans to hire a surveyor and

replace the posts.       No expert testimony is required to prove this claim.

Similarly,    the    Landmans       have       claimed   that   in   the   course     of

landscaping/construction, certain portions of their property were cut away.

This claim can be interpreted to mean that in performing their work, the

contractors improperly encroached upon the Landmans’ property.7                     This

claim does not require expert testimony to resolve. Accordingly, the claims

regarding the removal of the boundary markers and the improper removal of

land (not caused by erosion or run-off) must go forward.
____________________________________________


7
  As best as we can make out, this claim involves the hill between Calvary
and the Landmans’ home. Although the survey included in the official record
indicates this hill belongs to Calvary, because we cannot determine exactly
what portion of the Landmans’ property was allegedly cut away, and the
defense never sought clarification of the complaint, summary judgment is
inappropriate.



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      Order granting summary judgment is affirmed in part, and reversed in

part. This matter is remanded to the trial court for trial on the limited issues

detailed herein. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/2014




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