J-A20028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF ASHLEY NICHOLE BOUHER,                      IN THE SUPERIOR COURT
JENNIFER S. BOUHER AND RICHARD A.                      OF PENNSYLVANIA
BOUHER,

                          Appellants

                    v.

GIFTWARES CO., INC., CONSOLIDATED
RAIL CORPORATION PENNSYLVANIA
LINES, LLC., BARRY DICKMAN, GREGG
DICKMAN, MITCHELL DICKMAN,
GIFTWARES ASSOC., NORFOLK
SOUTHERN RAILWAY COMPANY,
ROYERSFORD BOROUGH AND PATRICK
J. SULLIVAN,

                          Appellees                   No. 2999 EDA 2014


              Appeal from the Order Entered October 9, 2014
           In the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): 2009-37236


BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 23, 2015

      The Estate of Ashley Nichole Bouher, Jennifer S. Bouher, and

Richard A. Bouher (collectively, the “Estate”) appeals from the order dated

October 9, 2014, in the Court of Common Pleas of Montgomery County,

granting summary judgment in favor of Consolidated Rail Corporation

Pennsylvania Lines, LLC and Norfolk Southern Railway Co. (the “Railroads”),

and   Giftwares    Co.,    Inc.,   Barry   Dickman,    Gregg   Dickman,   and

Mitchell Dickman, (“Giftwares”). After careful review, we affirm in part and

reverse in part.
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      The trial court detailed the factual and procedural background, as

follows:
            I.    FACTS AND PROCEDURAL HISTORY:


            The present appeal arises out of a fatal motor vehicle
      accident which occurred on March 10, 2008, at approximately
      7:55 pm in Royersford, Montgomery County, Pennsylvania.
      Patrick Sullivan, Defendant herein, was the driver of the vehicle
      (then 19 years old); Leonard Luciano (then 19 years old), Kyle
      Warfel (then 17 years old) and Ashley Bouher (then 16 years
      old) were all passengers. Passenger Ashley Bouher died as a
      result of the accident.

            A. Factual Background

            For background purposes, the record shows that
      Defendant/Sullivan had just purchased the 2003 Ford Crown
      Victoria [on the] morning of March 10, 2008, at the Mannheim
      Auto Auction. Later that afternoon, Mr. Sullivan picked up the
      passenger/friends listed above, as well as Lauren Perry who
      purchased a case of beer for the underage occupants. Sullivan
      dropped off Perry, post-purchase, and then drove the remaining
      passengers to a drinking area known as the “firepit” in a clearing
      on First Ave/River Road in Royersford. The friends spent an
      hour or two at the firepit where they drank beer and/or allegedly
      used drugs. Driver Sullivan consumed either one or two beers.

            Thereafter, Sullivan and his passengers returned to the
      vehicle and travelled through Royersford. By this time, it was
      after sunset. According to the crash investigation performed by
      Montgomery County Detectives, Sullivan’s vehicle travelled north
      on First Avenue at approximately 62 mph, in a posted speed
      limit of 25 mph, when his vehicle crossed over railroad tracks
      which were located at a slight curve in the roadway, and lost
      lateral stability. The vehicle then left the paved road surface and
      entered a stone parking area on Defendant Giftware’s private
      property. The vehicle travelled across a portion of this area, and
      then the driver side rear door of Sullivan’s vehicle, where Ms.
      Bouher sat, struck the right corner of Giftware’s parked trailer,
      impacting Ms. Bouher at head level. This trailer was parked 17
      feet off the roadway. Due to the impact, the driver’s side door
      sustained damage, and opened. The car then spun counter-


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     clockwise and ejected Ms. Bouher from the vehicle. The vehicle
     crossed back over First Avenue, struck a utility pole, and came
     to rest on Giftware’s private property on the eastern side of First
     Avenue. Ms. Bouher was pronounced dead at the scene.

           Subsequent police inspection of Sullivan’s vehicle showed
     no mechanical problems.        In addition, Montgomery County
     Detective Turner re-enacted the accident, and indicated that the
     markings in the street were all consistent with the application of
     hard acceleration and forceful steering, and that, there was no
     indication that Sullivan ever applied the brakes.      Finally, a
     witness indicated that, earlier that afternoon, he saw Sullivan’s
     vehicle pass him very quickly, drive down River Road, enter
     Defendant Giftware’s parking lot, and proceed to do a donut or
     donuts with the car.

           As a result of the above accident, the Commonwealth of
     Pennsylvania filed criminal charges against the driver, Patrick
     Sullivan. On January 23, 2009, the Defendant/driver Sullivan
     pled guilty to one count of Involuntary Manslaughter and two
     counts of Recklessly Endangering Another Person, here, Ashley
     Bouher. In the plea transcript, Defendant Sullivan admitted to
     travelling at an excessive rate of speed which caused him to lose
     control of his vehicle on the night in question. (See Notes of
     Testimony from Guilty Plea, 1/23/09, Pgs. 9-10)[.] During the
     guilty plea, Sullivan also admitted that he was familiar with the
     terrain and layout of First Avenue where the accident occurred,
     and likewise admitted that he was aware of the condition of the
     road. Id. These sworn statements, on the record, provided the
     factual basis for Sullivan’s guilty plea. Id.

           Thereafter, the Estate of Ashley Nichole Bouher, by and
     through her parents Richard A. Bouher and Jennifer S. Bouher,
     as Administrators of her Estate; Richard A. Bouher, individually;
     and, Jennifer S. Bouher, individually, filed the present civil suit
     against several Defendants.        The Defendants include (1)
     Giftwares Company, Inc., d/b/a Giftwares Company, Giftwares
     Associates, and its principles, Barry Dickman, Mitchell Dickman
     and Gregg Dickman (collectively, “Giftwares”); (2) Consolidated
     Rail Corporation and Norfolk Southern Railway Co. (collectively,
     “the Railroad Defendants”); and (3) Patrick J. Sullivan, the
     driver. The Borough of Royersford was an additional Defendant
     in the above captioned matter, however the Plaintiffs settled
     with the Borough. Notably in 2014, the Plaintiffs settled their
     civil suit against Defendant driver, Patrick Sullivan.        (See

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     Montgomery County Docket Entry 387, Amended Order-Approval
     of Settlement dated 1/15/14)[.] Consequently, with the present
     posture, the Giftwares and Railway Defendants are the only
     Defendants remaining in the action.

            With reference to these remaining Defendants, Plaintiffs
     allege, inter alia, that the Giftwares Defendants and the
     Railroad Defendants each failed to maintain their property,
     and that such lack of maintenance contributed to the accident in
     question. Plaintiffs likewise allege that Defendant Giftwares
     created a dangerous condition in the way that it parked [its]
     trailers on [its] property, thereby contributing to the accident in
     question.

           The Giftwares Defendants argue, inter alia, that no cause
     of action exists against them for the following reasons: (1) the
     occupants of the vehicle were trespassers and there is no
     evidence of willful or wanton conduct by Giftwares; (2) Giftwares
     had no duty to ensure that their private property was suitable for
     out-of-control vehicles that enter upon its’ land; (3) Giftwares
     owed no duty to institute measures that would attempt to
     prevent the vehicle from entering its’ private property; and (4)
     no proximate cause exists as none of the alleged actions by
     Giftwares caused Sullivan’s vehicle to deflect from the highway.

           The Railway Defendants argue that in the 1980s, they
     formally abandoned any ownership interest in the industrial track
     running along the river side of River Road, and have had no
     dealings with the property since that time. In addition, the
     Railway Defendants assert that they did not negligently maintain
     the railway tracks crossing over River Road.

           B. Procedural Background

           The Honorable Emanuel A. Bertin, since retired, was
     assigned this civil action, pre-trial. On April 10, 2013, Judge
     Bertin issued a protective order in favor of Defendant, Patrick
     Sullivan.

                                   * * *

           This action was subsequently rotated to the undersigned.
     On August 26, 2014, the matter was given an assigned trial date
     of October 14, 2014 through October 28, 2014. The parties filed
     several pre-trial motions including, Plaintiffs’ Motion to Lift
     Protective Order and Defendants’ Motions in Limine pursuant to

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      Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The court
      held argument on September 15, 2014 and October 1, 2014,
      respectively. The opinion subjudice addresses these pre-trial
      rulings, which ultimately form the basis for the presently
      appealed, October 9, 2014, summary judgment rulings in favor
      of the Defendants.

            That is, on October 9, 2014, the trial court granted
      Defendant, Giftwares Company, Inc.’s oral Motion for Summary
      Judgment and entered judgment in favor of Defendant Giftwares
      Company Inc. and against Plaintiffs. (See October 9, 2014,
      Order)[.] On that same date, the trial court also granted the
      Railway Defendants’ oral Motion for Summary Judgment and
      entered judgment on behalf of Defendants, Norfolk Southern
      Railway Company, Pennsylvania Lines LLC and Consolidated Rail
      Corporation and against Plaintiffs.  (See October 9, 2014,
      Order)[.]

Trial Court Opinion, 2/23/15, at 1–7 (emphases in original).

      The trial court had also earlier authored Findings of Fact and

Conclusions of Law relative to the Railroads’ and Giftwares’ motions in limine

to preclude the Estate’s experts, Dr. Steven Batterman (“Batterman”) and

Russell J. Kolmus (“Kolmus”), from testifying.    The trial court granted the

motions in part as to Batterman and in full as to Kolmus. Order, 10/8/14, at

23–25. The day after the trial court issued its order on the allowable scope

of the experts’ testimonies, the Railroads and Giftwares orally motioned for

summary judgment, arguing that the Estate could not prove causation. The

Estate conceded that without Batterman and Kolmus, it had no evidence of

causation.    Telephone Conference, 10/9/14, at 10–11.         The concession

reasoned the trial court’s summary judgment award in favor of the Railroads

and Giftwares. Id. at 12. This appeal followed.

      The Estate raises six issues for review:

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J-A20028-15


            Did the Trial Court err in failing to compel the deposition of
      Defendant Patrick Sullivan and granting a Protective Order
      regarding the same?

           Did the Trial Court err[] in failing to review the Protective
      Order and not allowing Plaintiffs to properly review the Protective
      Order?

             Did the Trial Court err in precluding the testimony of
      Plaintiffs’ expert witnesses?

             Did the Trial Court [err in] applying the Frye standard and
      [in failing] to conduct a procedurally correct Frye hearing?

           Did the Court err in failing to correct the record upon
      showing of demonstrable error?

            Did the Honorable Carolyn Carluccio err in failing to recuse
      herself upon a clear showing of the bias and failing to properly
      consider Plaintiffs’ motion regarding the same?

Estate’s Brief at 4.   We condense these issues into three—the protective

order, the Frye issue, and the motion for recusal.

                              Protective Order

      On July 27, 2012, Patrick Sullivan (“Sullivan”) filed a motion for a

protective order to preclude his deposition and testimony at trial because

engaging in such activities would result in a serious risk of harm to his

mental health. Giftwares filed a motion to compel Sullivan’s deposition and

testimony, and the Estate joined Giftwares’ motion.

      On January 18, 2013, the presiding judge, Honorable Emanuel A.

Bertin, conducted an evidentiary hearing on both motions. Sullivan did not

appear. Sullivan’s mother, Teresa Sullivan, testified that her son had been

treated for bipolar disorder prior to the accident that killed Ashley Bouher.

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N.T. (Protective Order Hearing), 1/18/13, at 39.      She also recounted that

Sullivan twice attempted suicide following the accident.       Id. at 16.   In

conjunction with one of the suicide attempts, Sullivan typed on his computer

“Ashley take me home.” Id. at 18. Mrs. Sullivan described her son at the

time of the hearing as being “in a really dark place” who has “lost his will to

live.” Id. at 14.

       Sullivan also submitted four letters from his treating psychiatrist,

Dr. Samir Farag.        Motion for Protective Order, 7/27/12, Exhibits A–D.1

Dr. Farag stated that Sullivan had been under his care for monthly

medication management for a mood disorder and psychotherapy since

August 2007.        After the car accident in 2008, Dr. Farag explained that

Sullivan experienced symptoms of “severe Post Traumatic Stress Disorder

(PTSD).” Id. at Exhibit A.

       In his first letter dated May 26, 2011, Dr. Farag wrote that Sullivan

was “emotionally unstable,” “fragile,” and has “suicidal thoughts.”     Motion

for Protective Order, 7/27/12, Exhibit A.        Dr. Farag also confirmed the

suicide attempts and four hospitalizations for psychiatric reasons.    Id. He

opined that Sullivan would not be able to participate in a deposition

____________________________________________


1
  Dr. Farag’s letters dated May 26, 2011, June 15, 2011, and July 5, 2012,
were attached as Exhibits A through C to the motion for the protective order.
The motion was supplemented with Exhibit D, Dr. Farag’s letter dated
January 17, 2013, at the January 18, 2013 hearing on the motion. N.T.
(Protective Order Hearing), 1/18/13, at 100–101.



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concerning the auto accident due to an “increase[d] risk of suicide and

exacerbation of his unstable symptoms.”          Id. One month later, Dr. Farag

penned a second letter representing that Sullivan continued to experience

severe depression symptoms, and offered that Sullivan would need “at least

three more months of treatment with medication and psychotherapy in order

to be able to participate in the deposition.”          Id. at Exhibit B.    Dr. Farag

wrote a third letter one year later, describing Sullivan as “depressed and

withdrawn,” and suffering from “suicidal ideations.”           Id. at Exhibit C.    He

further clarified that he was unaware of what a deposition would entail when

he had previously represented that Sullivan might be able to be deposed

after more therapy and now believed that Sullivan may “never be able to

safely, without serious risk to his mental status or physical well-being, to

participate in a deposition or testify in a trial regarding his car accident.” Id.

In his final letter, dated January 17, 2013, Dr. Farag stated that Sullivan

“remains depressed, emotionally labile, fragile and withdrawn, having

flashbacks   and   suicidal   ideations    off   and    on.”       Sullivan’s   Second

Supplemental Brief, 3/21/13, Exhibit D. Dr. Farag reiterated his psychiatric

opinion that it was unlikely that Sullivan would ever be able to participate in

a deposition or testify in a trial regarding the car accident because of the risk

of suicide. Id.

      On April 10, 2013, Judge Bertin denied the motion to compel Sullivan’s

deposition   and   granted    Sullivan’s    motion       for   a   protective    order.


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Judge Bertin ordered additionally that “in the event of an improvement in

Patrick Sullivan’s medical condition prior to trial, Patrick Sullivan may not

testify at trial unless he first appeared and submitted to a deposition in this

action.” Order, 4/10/13, at unnumbered 1–2 (emphases added).2

       The Estate lodged two objections to the propriety of the original

issuance of the protective order.3             In its Pa.R.A.P. 1925(b) statement of

errors complained of on appeal, the Estate asserted:

       1. The Court committed an error regarding Patrick Sullivan in
       [the] following ways:

              a. The Court committed an error in granting a
              protective order regarding Patrick Sullivan.

              b. The Court committed an error in considering
              unsubstantiated out of court statements in granting
              a protective order.

Estate’s Pa.R.A.P. 1925(b) statement, 11/5/14, at 1.

       Pennsylvania Rule of Civil Procedure 4012 governs the procedures for

seeking a protective order and provides, inter alia:


____________________________________________


2
    On April 19, 2013, the Estate filed a motion pursuant to 42 Pa.C.S.
§ 702(b) to amend Judge Bertin’s April 10, 2013 order to include the
certification required for a permissive interlocutory appeal. Judge Bertin
denied the motion on May 7, 2013. On May 23, 2013, the Estate filed a
petition for review of Judge Bertin’s order refusing to amend the April 10,
2013 order in this Court. By per curiam order dated June 28, 2013, the
petition for review was denied. Estate of Bouher v. Giftwares, Inc., et
al, 66 EDM 2103 (Pa. Super. 2013).
3
 The remaining four challenges relate to the trial court’s denial of Sullivan’s
motion to lift the protective order discussed infra.



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       (a) Upon motion by a party or by the person from whom
       discovery or deposition is sought, and for good cause shown, the
       court may make any order which justice requires to protect a
       party or person from unreasonable annoyance, embarrassment,
       oppression, burden or expense, including one or more of the
       following:

          (1) that the discovery or deposition shall be prohibited;

          (2) that the discovery or deposition shall be only on specified
          terms and conditions, including a designation of the time and
          place[.]

Pa.R.C.P. 4012(a)(1)(2).

       While Pennsylvania appellate courts have yet to define the “good

cause” requirement, “a party seeking a protective order must, at the very

least, present some evidence of substance that supports a finding that

protection is necessary. Such evidence must address the harm risked. . . .”

Dougherty v. Heller, 97 A.3d 1257, 1267 (Pa. Super. 2014) (en banc),

appeal granted in part, 109 A.3d 675 (Pa. 2015).4 With respect to a court’s

role in granting a protective order, we have recognized that no “hard-and-

fast” rules govern how courts decide a motion for a protective order.
____________________________________________


4
    In Dougherty, the February 4, 2015 order granting the petition for
allowance of appeal, one issue before the Supreme Court certified as:

       [w]hether the Superior Court’s en banc ruling below, that
       affirmed the trial court’s order denying protective relief under
       Pa.R.C.P. 4012, should be reversed because (a) the ruling now
       elevates the burden of proving “good cause” in Pa.R.C.P. 4012
       matters to a practically unattainable level. . . .

Dougherty v. Heller, 109 A.3d 675 (Pa. filed February 4, 2015).



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Hutchison v. Luddy, 606 A.2d 905, 908 (Pa. Super. 1992). “‘Whether to

grant or deny the motion, and what kind or kinds of protective orders to

issue are matters that lie within the sound judicial discretion of the

court. . . .’”   Id. (quoting Allegheny West Civic Council, Inc. v. City

Council of the City of Pittsburgh, 484 A.2d 863, 866 (Pa. Commwlth.

1984)).

       The trial court, Honorable Carolyn T. Carluccio, determined that the

record contained sufficient evidence to support Judge Bertin’s issuance of

the protective order, namely, Sullivan’s mother’s testimony and Dr. Farag’s

letters.     Trial Court Opinion, 2/23/15, at 15.    The court also found it

significant that the Estate represented that it did not need to depose Sullivan

because it had ample evidence from the criminal proceedings and social

media to cross-examine Sullivan at trial. Id. at 13–14. The trial court then

rejected the Estate’s contention that the protective order protected only

Sullivan’s deposition testimony and that his trial testimony was governed by

Pa.R.E. 601—competency. The trial court concluded that Rule 601 was not

relevant to Judge Bertin’s ruling because there was no claim that Sullivan

was not competent to testify. Id. at 14.

           An exercise of discretion by a trial court whether to grant or deny

motions for protective orders may not be overturned by an appellate court

because the latter is persuaded that it might have taken a different action.

Allegheny West, 484 A.2d at 866. Whether to grant or deny the motion


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for a protective order lies within the sound judicial discretion of the court;

the court’s determination as to these matters will not be disturbed unless

that discretion has been abused. Hutchinson, 606 A.2d at 908. An abuse

of discretion is not merely an error of judgment; it is judgment which is

manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will

as shown by evidence of record.      Fanning v. Davne, 795 A.2d 388, 393

(Pa. Super. 2002) (citation omitted).

      In its appellate brief, the Estate raises three points of error regarding

the issuance of the protective order: 1) its constitutional right to confront

and cross-examine another party and call relevant witnesses at trial was

violated; 2) the trial court lacked the authority and factual record to make a

finding concerning Sullivan’s medical condition; and 3) the trial court erred

in failing to address Sullivan’s competency. Estate’s Brief at 27–35.

      At the outset, we are compelled to determine which of these

arguments has been properly preserved for appellate review.                 See

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (appellate courts may

sua sponte determine whether issues have been properly preserved under

Pa.R.A.P. 1925)).   Our concern is focused on issue one, the constitutional

argument, and issue three, competency.

      The Supreme Court of Pennsylvania held in Commonwealth v. Lord,

719 A.2d 306 (Pa. 1998), that “from this date forward, in order to preserve

their claims for appellate review, [appellants] must comply whenever the


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trial court orders them to file a Statement of Matters Complained of on

Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement

will be deemed waived.” Id. at 309. Subsequently, in Commonwealth v.

Castillo, 888 A.2d 775 (Pa. 2005), the Supreme Court voiced its displeasure

with “decisions of the intermediate courts to the extent that they have

created exceptions to Lord and have addressed issues that should have

been deemed waived.” Castillo, 888 A.2d at 780 (citations omitted). Thus,

Pennsylvania jurisprudence is now well-settled that Rule 1925(b) sets out an

unambiguous rule that any issues not raised in the 1925(b) statement will

be deemed waived.          Hill, 16 A.3d at 494.   See also In re Estate of

Daubert, 757 A.2d 962, 963 (Pa. Super. 2000) (an issue not identified for

review in a Rule 1925(b) statement is waived whether or not the lower court

actually addresses the issue in an opinion).

       The Estate did not include the constitutional or competency claims in

its Rule 1925(b) statement. Even though the trial court addressed the issue

of Sullivan’s competency in its opinion, we are constrained to conclude that

both issues are waived. See Pa.R.A.P. 1925 (b)(4)(vii) (issues not included

in the 1925(b) statement are waived).5

____________________________________________


5
   Absent waiver, the Estate’s competency argument is without merit. As
the trial court correctly recognized, Sullivan never claimed that he was
incompetent to testify under Pa.R.E. 601 and Rule 601 considerations did
not reason Judge Bertin’s decision to impose the protective order. Trial
Court Opinion, 2/23/15, at 14–15.



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        We turn to the Estate’s remaining argument that Judge Bertin’s order

granting the protective order was not supported by evidence of good cause.

Specifically, the Estate contends that Sullivan failed to present any

admissible or relevant evidence from which Judge Bertin could issue a ruling

based     on   Sullivan’s    medical   condition.   The   Estate   characterized

Mrs. Sullivan’s testimony as revealing scant knowledge of Sullivan’s current

medical condition.          The Estate’s primary    objection to the evidence

considered by Judge Bertin, however, focuses on the letters submitted by

Dr. Farag.       The Estate contends that the letters themselves were

inadmissible hearsay and that Dr. Farag’s failure to testify at the hearing

precluded the Estate from cross-examining him as to the basis for his

medical opinion. Additionally, the Estate disputes that the Health Insurance

Portability and Accountability Act of 1996 (“HIPPA”), 29 U.S.C. § 1181 et

seq., precluded Dr. Farag from testifying at the hearing, and criticizes the

trial judge for her conclusory statement that HIPPA prohibited Dr. Farag’s

live testimony. See Trial Court Opinion, 2/23/15, at 9 n.3 (“Due to HIPPA

constraints, Dr. Farag could not provide live testimony.”).

        We observe that the Estate has raised some colorable arguments

regarding the proper admission and evidentiary value of Dr. Farag’s letters,

and whether HIPPA’s restrictions are overridden when a party puts his

mental state at issue. We need not address these issues, however, because




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the Estate was not prejudiced by the issuance of the protective order, even if

granted in error.

      To constitute reversible error, an evidentiary ruling must not only be

erroneous, but must harm or prejudice the complaining party. Parr v. Ford

Motor Co., 109 A.3d 682, 690–691 (Pa. Super. 2014) (quoting Winschel v.

Jain, 925 A.2d 782, 794 (Pa. Super. 2007)). We have also upheld a trial

court’s decision that the improper exclusion of evidence is harmless error

when the testimony sought is cumulative. Potochnick v. Perry, 861 A.2d

277, 282 (Pa. Super. 2004).

      At the hearing on the protective order motion, the Estate advised

Judge Bertin that:

      [The Estate] as a general proposition do[es] not consider it
      critical to their case that they depose Mr. Sullivan because [the
      Estate has] his statement to the police, they have his testimony
      [from Sullivan’s guilty plea proceeding] and [it has] testimony
      [from] the sentencing hearing, and statements in the press, and
      statements on Twitter, and statements on Facebook, and a
      myriad of other places where we have evidence that would be of
      value in preparing for [Sullivan’s] examination at trial.

N.T. (Protective Order Hearing), 1/18/13, at 87–88.

      On appeal, the Estate acknowledges reciting the statement quoted

above but explains that it was uttered prior to the trial court’s later exclusion

of most of the Estate’s expert witness testimony.             This explanation,

however, is of no import. We assess whether the ruling under scrutiny was

proper when it was issued and not by how later events might have impacted




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it.   Therefore, the Estate’s claim that Judge Bertin erroneously granted

Sullivan’s motion for a protective order is unavailing.

       The Estate next challenges the trial court’s dismissal of its motion to

lift the protective order. On September 10, 2014, approximately one month

before trial was scheduled to begin, the Estate filed a motion to lift the

protective order precluding Sullivan’s testimony.    In its motion, the Estate

asserted that it had evidence of improvement in Sullivan’s mental condition

and requested the trial court to order Sullivan to make himself available for

a deposition.

       A hearing on the motion to lift the protective order was held on

September 15, 2014. At the outset of the hearing, the trial court identified

“an improvement in [Sullivan’s] medical condition” as the basis for

modification of Judge Bertin’s protective order.      N.T. (Motion In Limine

Hearing), 9/15/14, at 8.    The Estate represented that it intended to offer

medical testimony that would support lifting the protective order. Id. The

Estate then proffered evidence that Sullivan was enrolled in a college class

on Death and Dying, that Sullivan was interacting with the Probation

Department, and that Dr. John O’Brien, a forensic psychiatrist, was available

to testify that the record did not support Sullivan’s PTSD diagnosis, in part,

because of changed circumstances in Sullivan’s life.          Id. at 23, 26.

According to the Estate’s motion to lift the order, Dr. O’Brien offered that it

was “impossible . . . to consider the validity of an opinion from another


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purported ‘expert’” without knowledge of the subject’s testing or exposure to

the expert’s testimony. Motion to Lift Protective Order, 9/10/14, at 7 ¶ c.

With this caveat, the Estate described Dr. O’Brien’s estimation regarding

Sullivan’s current ability to testify, as follows:

      While [Dr. O’Brien] has no way of knowing the severity, if any,
      of [Sullivan’s] PTSD now or at the time of the hearing before
      Judge Bertin one year and 8 months ago, he said in exact quote:
      “[Estate’s counsel], your instincts are exactly right. If this guy
      feels he can voluntarily participate in a class on “Death and
      Dying” without there being suicidal ideation, then he certainly
      can testify in court as to his part in killing another person.

Id. at ¶ d.

      After considering the Estate’s proffer that Sullivan’s medical condition

had changed, and entertaining argument, the trial court dismissed the

motion to lift the protective order because the Estate failed to tender

evidence showing an improvement in Sullivan’s medical condition.           N.T.

Motion In Limine Hearing, 9/15/14, at 34. The trial court further explained

the basis for its ruling in its Pa.R.A.P. 1925(a) opinion:

            Indeed, [the Estate’s] proffer presented nothing new. [The
      Estate] alleged that Sullivan would take a course on death and
      dying, but Sullivan was already taking college courses.
      Moreover, [the Estate] had no evidence to support [its] quantum
      leap that if a person takes a death course, that person is
      emotionally strong. Finally, the death course did not reflect a
      present change in circumstances, it presented a possible,
      speculative, future change in circumstance. Sullivan was not
      taking the course at the time of the Motion to Amend the
      Protective Order. He was merely signed up for the course. All
      sorts of scenarios could occur which would result in Sullivan
      never taking the course, making [the Estate’s] assertion
      premature at best. Therefore, [the Estate] proffered no relevant


                                       - 17 -
J-A20028-15


       evidence to warrant a hearing on their Motion to Lift the
       Protective Order, and the court properly dismissed the same[.]

Trial Court Opinion, 2/23/15, at 23.6

       On appeal, the Estate urges that it was error for the trial court to

require medical evidence to support its assertion of changed circumstances

relative to Sullivan’s mental condition.           The Estate claims that there is no

legal requirement that it produce medical evidence, particularly because

there was no medical evidence to override. The underlying rationale for this

argument appears to be the Estate’s characterization of Dr. Farag’s letters as

inadmissible hearsay.

       We discern no abuse of discretion in the trial court’s dismissal of the

motion.     Judge Bertin’s initial ruling on the protective order allowed for

reconsideration of its issuance “in the event of improvement in [Sullivan’s]

medical condition.” Order, 4/10/13, at unnumbered 1. Thus, it was Judge

Bertin’s language that required evidence of a change in Sullivan’s mental
____________________________________________


6
   The trial court also concluded that even if its decision in this regard was
improper, the Estate was not prejudiced by the court’s evidentiary rulings for
three reasons—the Estate’s counsel had previously indicated that Sullivan’s
testimony was not crucial, the Estate had settled with Sullivan, and the
Estate’s expert witnesses asserted that they did not need Sullivan’s
testimony in order to opine on Giftwares’ and the Railroads’ liability. Trial
Court Opinion, 2/23/15, at 24–25. The Estate’s settlement with Sullivan
however, occurred after the trial court’s ruling on the motion to lift the
protective order.     We have faulted the Estate for referring to events
subsequent to Judge Bertin’s ruling in its argument concerning the propriety
of the underlying protective order; so too the trial court incorrectly relied on
an ensuing event in concluding that the Estate was not prejudiced by its
dismissal of the motion to lift the protective order.



                                          - 18 -
J-A20028-15


health, not the trial court’s imposition of an incorrect legal standard, as the

Estate propounds. Additionally, we agree with the trial court that Sullivan’s

enrollment in the Death and Dying course, an anticipatory, not an actual

event, coupled with the acknowledgment from the Estate’s expert that he

could not opine on whether Sullivan’s condition had improved, was not

sufficient evidence of changed circumstances that would justify lifting the

protective order. Therefore, the Estate’s claim of error on this evidentiary

ruling cannot succeed.

                                     Frye Hearing

       Pennsylvania adheres to the Frye7 test, which provides that novel

scientific evidence is admissible “‘if the methodology that underlies the

evidence has general acceptance in the relevant scientific community.’”

Commonwealth v. Walker, 92 A.3d 766, 789–790 (Pa. 2014) (quoting

Grady v. Frito–Lay, Inc., 839 A.2d 1038, 1044 (Pa. 2003)).             Frye is

likewise applicable when scientific methods are utilized in novel ways. Betz

v. Pneumo Abex LLC, et al., 44 A.3d 27, 53 (Pa. 2012) (quoting Grady,

839 A.2d at 1045).

       On September 5, 2014, Giftwares filed motions in limine to preclude

the expert reports and trial testimony of the Estate’s experts, Batterman



____________________________________________


7
    Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).



                                          - 19 -
J-A20028-15


and Kolmus.8 The Estate proffered Batterman as an accident reconstruction

expert to provide an opinion related to the manner in which Giftawares

parked its trailers, the crush damage to Sullivan’s vehicle, the impact speed

of Sullivan’s vehicle, the role that the railroad tracks contributed to the loss

of control of the vehicle, and the hazards posed by Giftwares’ maintenance

of the trailer parking area.           Giftwares’ Motion In Limine to Preclude

Batterman’s Report and Testimony, 9/5/14, Exhibit G (Batterman’s Expert

Report).    Kolmus, a forensic investigator, was retained to “examine the

incident site and review the submitted material to determine whether the

incident roadway and its appurtenances were maintained in accordance with

engineering standards and practice.” Giftwares’ Motion in Limine to Preclude

Kolmus’s Report and Testimony, 9/5/14, Exhibit G (Kolmus’s Report).

       As to Batterman, Giftwares claimed that his expert report was “unique

in the context of a Frye determination in that its failures are not due to its

reliance on unreliable evidence but are rather due to its complete lack of

scientific or technical foundation whatsoever.” Giftwares’ Motion in Limine to

Preclude Batterman’s Report and Testimony, 9/5/14, at 7 (emphasis in

original). Regarding Kolmus, Giftwares argued that his expert report could

not assist a jury because the report “provides no explanation as to how the

conclusions were reached. . . .”          Giftwares’ Motion in Limine to Preclude

____________________________________________


8
    The Railroads joined in Giftwares’ motion.



                                          - 20 -
J-A20028-15


Kolmus’s Report and Testimony, 9/5/14, at 11.            Giftwares also contended

that Kolmus’s report “fails to identify any methodology or technical

considerations let alone those accepted by the scientific community.”          Id.

The Estate filed a response to both motions asserting that the Frye standard

is not applicable because “[t]here is no novel science or theory behind any of

the reports of [the Estate’s] experts.”            Estate’s Omnibus Response to

Defendant’s Motions Regarding Plaintiff’s Expert Witnesses, 9/12/14, at 4.

       On September 15, 2014, the trial court held a hearing wherein

Giftwares informed the court that its “Frye motion” was based primarily

upon its position that Batterman “didn’t use a methodology that’s generally

accepted in a number of areas in his report.”              N.T. (Motion in Limine

Hearing), 9/15/14, at 64.          Giftwares summarized Batterman’s report as

accepting “all of Detective Turner’s9 observations and opinions with regard to

the happening of this accident.”           Id. at 65.   Giftwares then referred to

Batterman’s opinion that “the impact speed of the [vehicle] with the trailer

was in the range of 38 to 43 miles per hour” and criticizes the conclusion

because they had “no idea what methodology he uses to come to this

conclusion. What [we] believe Dr. Batterman does is he relies upon all of

Detective Turner’s opinions and his review of the physical evidence and then

____________________________________________


9
    Detective M. Robert Turner was a Montgomery County Detective and
collision reconstructionist who investigated the accident and prepared a
report in preparation of the criminal case.



                                          - 21 -
J-A20028-15


some way comes up with pre-impact speed.”               Id. at 65–66.      Giftwares’

argument continued:          “[T]here is really no scientific basis or methodology

that’s been provided with regard to Batterman and coming up to a speed

analysis at the point of impact.” Id. at 68.

       Regarding        Kolmus,   Giftwares   stated:       “Mr.    Kolmus,    unlike

Mr. Batterman, has absolutely no scientific reasoning.             He just has bald

opinions. . . .     [T]here is nothing to look at from a Frye standard to

determine a methodology.”          N.T. (Motion in Limine Hearing), 9/15/14, at

101.        Giftwares    then   conceded,   “[We]   can’t   even   argue   that     the

methodology        isn’t     generally   accepted     because      there    isn’t    a

methodology. . . .” Id. at 102.

       The Railroads offered the following rationale for joining in Giftwares’

motions in limine:         “We have Batterman’s report and we have the Kolmus

report. They are just the same without any foundation that Sullivan left this

roadway as a result of facts beyond his control or situations beyond his

control.”    N.T. (Motion in Limine Hearing), 9/15/14, at 74.         The Railroads

further explained its objection to the experts:              “[W]ithout Sullivan’s

testimony as to why he left the roadway there is simply no foundation for

the expert’s opinion. An opinion without fact violates Frye, the same as an

incorrect arithmetical calculation.” Id. at 82. After some discussion about a

discrepancy in Detective Turner’s testimony as to the speed of the vehicle on

the day of the accident and Batterman’s assessment of the speed, the Estate


                                         - 22 -
J-A20028-15


contended: “[T]hat’s not Frye. [Batterman’s] opinions are based on well-

known science of accident reconstruction.        Did he apply the science

correctly? That’s for cross-examination.” Id. at 79.

      At the conclusion of the hearing, the trial court determined that a Frye

hearing was necessary for Batterman and Kolmus to “present their

methodology.” Id. at 132. The trial court memorialized its decision in an

order filed September 25, 2014, directing all parties to appear “for a Frye

hearing challenging the methodology of [the Estate’s] expert witnesses,

[Batterman and Kolmus].”       Order, 9/25/14, at 2.       Subsequently, on

September 30, 2014, the Estate filed a memorandum of law substantiating

its position that the decision of the court to hold a Frye hearing was

inappropriate because its expert witnesses utilized non-novel science, and

the opposing parties were simply objecting to the witnesses’ conclusions.

      After what can only be described as a torturous back-and-forth

regarding scheduling, the Frye hearing was held on October 1, 2014. At the

outset of the hearing, there was some discussion between the Estate and the

trial court as to the correct procedural posture of the hearing. The Estate

offered that, because the trial court had ordered a Frye hearing, it had

impliedly ruled that that novel science was involved.       The Estate thus

contended that it carried the initial burden on the question of the novelty of

the science employed by its experts. Frye Hearing, 10/1/14, at 6. The trial

court disputed this characterization, and opined: “[T]he defense has alleged


                                    - 23 -
J-A20028-15


that there was no methodology put forward. So we don’t even get to the

novelness [sic] of it until there’s a methodology outlined.”      Id. at 6.     The

Estate then proceeded to question Batterman as to his credentials,

background, and published articles in the area of accident reconstruction. In

the   context of this questioning,      Batterman explained:         “Automobile

construction is nothing more than the application of Newton’s law of

mechanics to the physical facts which may be left at an accident scene by an

automobile or automobiles.”    Id. at 31.      When the Estate later posed the

quintessential question about the scientific principles utilized by Batterman

in the field of study relevant to the litigation, Batterman responded: “[T]he

basic principles here are Newton’s laws of mechanics which were first

promulgated in 1686 and are universal.”        Id. at 39.     Batterman repeated

this description after the trial court’s direct question to the witness

concerning     methodology:    “The    methodology     [is]   Newton’s   laws    of

mechanics applied to the physical facts left at the accident.” Id. at 45.

      Giftwares commenced its cross-examination of Batterman by stating:

“So I’m going to ask you a couple of questions about your conclusions, if you

don’t mind.”    Frye Hearing, 10/1/14, at 50.      The Estate objected on the

basis that conclusions are not at issue in a Frye hearing. Id. Although the

trial court overruled the objection, the Estate continually objected to the

nature of the cross-examination questions as beyond the proper scope of a

Frye hearing. The trial court consistently overruled each objection.


                                      - 24 -
J-A20028-15


      The questioning of Kolmus traveled a more conventional path. The

Estate elicited information from the witness regarding his qualifications as an

expert in civil engineering.   Frye Hearing, 10/1/14, at 123–146.      Kolmus

then explained that he prepared his report based upon depositions, a

reenactment video and photographs created by police investigating the

accident, a survey, and discovery of the parties. Id. at 148. Kolmus also

testified that he visited the site at both day and night to evaluate the

roadway conditions. Id. After he gathered his information, he compared it

to “what standards and practice were in the field for the various conditions

that I found in the field and from that and from the testimony in evidence, I

drew conclusions and eventually opinions.” Id. at 149–150.

      Following the Frye hearing, on October 8, 2014, the trial court issued

findings of fact, conclusions of law, and an order precluding the bulk of

Batterman’s expert testimony and Kolmus’s testimony in its entirety.       The

trial court determined that Kolmus’s report was “devoid of methodology

generally accepted in the civil engineering community, and/or provides lay

opinion, and/or renders legal conclusions, and/or fails to cite facts upon

which the opinion is based.” Order, 10/8/14, at 23. As to Batterman, the

trial court concluded that his expert opinion as to the manner in which

Giftwares parked its trailers contributed to the severity of the accident, the

impact speed of Sullivan’s vehicle, the role that the railroad tracks

contributed to the loss of control of the vehicle, and the hazards posed by


                                    - 25 -
J-A20028-15


Giftwares’ maintenance of the trailer parking area, were “not supported by

methodology generally accepted in the engineering and biomechanical

community.” Order, 10/8/14, at 24. Batterman was permitted to offer his

opinion that the damage to Sullivan’s vehicle “was caused by an underride

that resulted in the fatal injuries sustained by Ashley Bouher while she was

seated in the vehicle.” Id. at 25.

      In its Pa.R.A.P. 1925(b) statement, the Estate alleged nine trial court

errors concerning the applicability of Frye, the conduct of the Frye hearing,

and the trial court’s eventual exclusion of the majority of the Estate’s

experts’ opinions. In its Rule 1925(a) opinion, the trial court did not respond

to the Estate’s general averment that it abused its discretion when it

determined that Frye applied to the Estate’s experts’ opinions.       As to the

appropriateness of the hearing itself, the trial court quoted extensively from

the discussion between the Estate and the court as to the procedural

mechanics of the hearing, but offered no comment on whether the hearing

was conducted properly.     Finally, as to its ultimate decision regarding the

exclusion of most of Batterman’s and all of Kolmus’s testimonies, the court

referred this Court to its October 8, 2014 findings of fact, conclusions of law,

and order “in lieu of reiterating its reasoning herein.” Trial Court Opinion,

2/23/15, at 32.

      In its appellate brief, the Estate narrows its argument as to whether

the trial court erred in ordering a Frye hearing and then failed to conduct a


                                     - 26 -
J-A20028-15


procedurally proper Frye hearing. The Estate urges that its experts utilized

non-novel science that did not warrant a Frye hearing.        The Estate also

avers that because the trial court inappropriately conducted the hearing, its

experts were improperly exposed to cross-examination regarding their

conclusions.    “‘[T]he admission of expert scientific testimony is an

evidentiary matter for the trial court's discretion and should not be disturbed

on appeal unless the trial court abuses its discretion.’” Commonwealth v.

Safka, 95 A.3d 304, 307 (Pa. Super. 2014), appeal granted in part, 104

A.3d 525 (Pa. 2014) (quoting Commonwealth v. Harrell, 65 A.3d 420,

430 (Pa. Super. 2013) (citation omitted)).

      The Estate first challenges the trial court’s decision to hold a Frye

hearing. The Estate contends that neither Batterman nor Kolmus intended

to offer “novel scientific evidence” requiring a Frye hearing; rather its

experts utilized standard principles of engineering and physics.

      The admissibility of expert opinion is governed by Pennsylvania Rule of

Evidence 702. The Rule provides that an expert witness may testify “in the

form of an opinion if the expert’s scientific, technical, or other specialized

knowledge is beyond that possessed by the average layman” and “will help

the trier of fact to understand the evidence or to determine a fact

on issue[.]” Pa.R.E. 702(a), (b). The Rule also requires that “the expert’s

methodology is generally accepted in the relevant field.” Pa.R.E. 702(c).




                                    - 27 -
J-A20028-15


     The Frye test is part of Rule 702. Grady, 839 A.2d at 1043. The test

only applies where a party seeks to introduce novel scientific evidence from

an expert scientific witness, and is not triggered “every time science enters

the courtroom.”   Trach v. Fellin, 817 A.2d 1102, 1108–1109 (Pa. Super.

2003) (en banc) (emphasis added).        Nonetheless, a “reasonably broad

meaning should be ascribed to the term ‘novel,’” and “a Frye hearing is

warranted when a trial judge has articulable grounds to believe that an

expert witness has not applied accepted scientific methodology in a

conventional fashion in reaching his or her conclusions.” Betz, 44 A.3d at

53. Further, what constitutes novel scientific evidence is decided on a case-

by-case basis. Commonwealth v. Dengler, 890 A.2d 372, 382 (Pa. 2005).

     The Frye test is a two-step process. Commonwealth v. Foley, 38

A.3d 882, 888 (Pa. Super. 2012).     First, the party opposing the evidence

must show that the scientific evidence is “novel” by demonstrating “that

there is a legitimate dispute regarding the reliability of the expert’s

conclusions.”   Id.   If the moving party has identified novel scientific

evidence, then the proponent of the scientific evidence must show that “the

expert’s methodology has general acceptance in the relevant scientific

community” despite the legitimate dispute. Id. (emphasis added); see also

Commonwealth v. Walker, 92 A.3d 766, 790 (Pa. 2014) (“[O]nce

determined to be novel evidence, under Frye, the proponent must show that




                                   - 28 -
J-A20028-15


the methodology is generally accepted by scientists in the relevant field, but

need not prove the conclusions are generally accepted.”).

      Herein, the motions in limine and the argument propounding the

necessity of the Frye hearing are profoundly lacking in reference to novel

science   relied   upon   by   the   Estate’s   experts.    Indeed,   Giftwares

acknowledged in its motions that Frye is not precisely implicated. Giftwares’

motion characterized Batterman’s expert report as “unique in the context of

a Frye determination in that its failures are not due to its reliance on

unreliable evidence but are rather due to its complete lack of scientific or

technical foundation whatsoever.”     Giftwares’ Motion in Limine to Preclude

Batterman’s Report and Testimony, at 7 (emphasis in original).        Giftwares

further argued that Kolmus’s expert report “provides no explanation as to

how the conclusions were reached. . . .” and “fails to identify any

methodology or technical considerations let alone those accepted by the

scientific community.”    Giftwares’ Motion in Limine to Preclude Kolmus’s

Report and Testimony, at 11.         Later, Giftwares represented during the

motion in limine hearing that its “Frye motion” was consistent with its

position that Batterman “didn’t use a methodology that’s generally accepted

in a number of areas in his report.”          N.T. (Motion in Limine Hearing),

9/15/14, at 64. It is therefore apparent that Giftwares’ request for a Frye

hearing was premised on a position that the experts provided no

methodology, as opposed to novel methodology, in forming their opinions.


                                     - 29 -
J-A20028-15


       We do not agree that Frye applies when the question is a lack of

methodology. The fact that Betz and Walker endorse a broad meaning of

“novel” in no way dissipates the requirement that the moving party meet the

threshold showing of novelty.          See also Trach, 817 at 1110 (“[W]e are

merely stating the law in Pennsylvania when we state that Frye applies only

to novel science.”).        And, while “novel science” has not been defined

precisely, even a most lenient definition of the term would not include the

concept of “no methodology.”           Novelty remains the sine qua non of the

threshold Frye inquiry.10

       The trial court likewise erred in its understanding of the Frye inquiry.

Despite the moving parties’ failure to interject the concept of novel science

into its motions and argument, at the conclusion of the motion in limine

hearing, the trial court decided, without elaboration, that a Frye hearing was

necessary for Batterman and Kolmus to “present their methodology.” N.T.

(Motion in Limine Hearing), 9/15/14, at 132.         While this statement could

reasonably be interpreted as the court deciding that a novel science Frye

inquiry was necessary, at the outset of the Frye hearing itself, the trial court

made the following statement disclosing its rationale for ordering the
____________________________________________


10
    The Railroads also displayed a fundamental misunderstanding regarding
the necessity of a Frye hearing. During the motion hearing, the Railroads
asserted: “An opinion without fact violates Frye, the same as an incorrect
arithmetical calculation.” N.T. (Motion in Limine Hearing), 9/15/14, at 82.
Actually, neither an opinion without fact nor an incorrect calculation
implicates Frye considerations.



                                          - 30 -
J-A20028-15


hearing:   “[T]he defense has alleged that there was no methodology put

forward.   So we don’t even get to the novelness of it until there’s a

methodology outlined.” Frye Hearing, 10/1/14, at 6. Thus, the trial court

incorrectly transposed the two-step Frye analysis. Rather than requiring the

moving party to first demonstrate the utilization of novel science, the trial

court inaccurately understood that the methodology itself was the threshold

inquiry. This conclusion was in error and requires that we reverse the trial

court’s decision to conduct a Frye hearing.

      Having so determined, we need not address the Estate’s argument

that the trial court failed to conduct a procedurally proper Frye hearing.

Additionally, because the trial court granted summary judgment in favor of

Giftwares and the Railroads when the Estate conceded that it could not

prove causation without its experts, the award of summary judgment must

also be reversed and the matter remanded. This conclusion, however, does

not end our review. As the matter is to be remanded, we must address the

Estate’s final argument that the trial judge should have recused herself

because she was unable to overcome her bias against the Estate’s counsel.

                                      Recusal

      The Estate filed and served its recusal motion at the Frye hearing held

on October 1, 2014. The motion alleged that a series of rulings against the

Estate, i.e., the refusal to lift the protective order, the handling of the Frye

hearing, and the language employed by the court in a scheduling order


                                     - 31 -
J-A20028-15


demonstrated that the trial court was unfairly biased. The trial court read

the motion and denied it.

      In its Pa.R.A.P. 1925(b) statement, the Estate alleged the following

errors in the trial court’s denial of its recusal motion:

             3. The Court committed an error in failing to correct the
      record and an order of the Court dated September 24, 2014 that
      the Court issued upon motion by Plaintiffs to do so. Said order
      deliberately distorted the record in an effort to make it appear as
      if Plaintiffs were non-compliant, which was demonstrably untrue
      and Plaintiffs in written motion asked the Court to correct the
      erroneous order.

            4. The Honorable Carolyn T. Carluccio committed an error
      regarding her recusal from the matter in the following ways.

            a. The Honorable Carolyn T. Carluccio committed a
            clear error in failing to even consider Plaintiffs’
            motion for recusal properly.

            b. The Honorable Carolyn T. Carluccio committed an
            error by failing to even read Plaintiffs’ motion for a
            recusal prior to denying it.

            c. The Honorable Carolyn T. Carluccio committed an
            error by failing to properly consider the standard for
            recusal.

            d. The Honorable Carolyn T. Carluccio committed an
            error, severely abused her discretion, and denied
            Plaintiffs due process of law, by continuing to preside
            over this matter despite overwhelming evidence of
            her bias against Plaintiffs.

Estate’s Pa.R.A.P. 1925(b) statement, 11/5/14, at 3–4.

      The trial court concluded that the recusal motion was time-barred

because it was not raised “at the earliest possible moment. . . .” Trial Court

Opinion, 2/23/15, at 38.       It also proposed that the issue was waived

                                      - 32 -
J-A20028-15


because the Estate did not object to the denial of the motion on the record.

Id. at 39.    On the merits, the trial judge noted that “[a]dverse rulings,

without more, do not demonstrate the bias,” and that “a trial judge’s efforts

to maintain orderly proceedings in the courtroom, in the face of the

Appellant’s acknowledged intransigence and impertinence fall far short of

proof of bias.” Id. at 41 (citations omitted).

      Our standard of review for a denial of recusal is well settled.        The

Pennsylvania Supreme Court presumes that this Commonwealth’s judges are

“honorable, fair and competent,” and, in response to a recusal motion, are

able “to determine whether they can rule impartially and without prejudice.”

Commonwealth v. Druce, 848 A.2d 104, 109 (Pa. 2004).                  The party

advocating recusal must produce evidence establishing bias, prejudice, or

unfairness necessitating recusal, and the “decision by a judge against whom

a plea of prejudice is made will not be disturbed except for an abuse of

discretion.” Id. at 108 (quoting Commonwealth v. Darush, 459 A.2d 727,

731 (Pa. 1983)). See also Becker v. M.S. Reilly, Inc., __ A.3d __, 2015

PA Super 171 at * 1 (Pa. Super. 2015) (filed August 13, 2015) (“We review

the trial court's denial of the recusal motion for abuse of discretion.”).

      On appeal, the Estate claims that the trial court’s bias was exhibited

by the following:

      •      Accommodating Defense Counsel for “big client meetings”
      by moving hearings 24 hours, yet refusing to move a hearing
      thirty (30) minutes for Plaintiffs’ Counsel’s childcare, or for
      Plaintiffs’ Counsel wife’s surgery.

                                     - 33 -
J-A20028-15


      •    Issuing a blatantly false Order (and not correcting it even
      upon oral notice and a written motion) painting Plaintiffs’
      Counsel in a negative light.

      •     Refusing to enforce Plaintiffs’ Counsel’s subpoenas while
      threatening to sanction the “Plaintiffs” should their experts not
      appear, making Mrs. Bouher cry when counsel told her.

      •     Conducting a “Frye Hearing” without any justification and
      hijacking Plaintiffs’ ability to properly present evidence for a
      hearing that should never have occurred costing [P]laintiffs’
      counsel tens of thousands of dollars in costs and time.

      •    The redrafting of a court order to ensure that Plaintiffs’
      Counsel was no longer in compliance with the Order.

      •      Essentially adopting (often verbatim) whatever positions
      Defendants wanted her to with regard to Defendant Sullivan and
      Plaintiffs’ experts, regardless of whether there was a basis.

      •     Consistently berating Plaintiffs’ Counsel for being difficult
      or recalcitrant when Plaintiffs’ Counsel worked diligently to do
      everything asked of them.

Estate’s Brief at 53–54 (emphasis in original).

      Preliminarily, the Estate’s allegations of bias traceable to the trial

court’s failure to consider its scheduling conflicts, the trial court’s refusal to

enforce the Estate’s subpoenas, and the trial court’s acceptance of the

opposing parties’ positions, are waived for failure to include these claims in

its 1925(b) statement. See Pa.R.A.P. 1925 (b)(4)(vii) (issues not included

in the 1925(b) statement are waived). The Estate’s remaining allegations of

trial court bias fall into two categories—its rulings were not consistent with

Pennsylvania law or procedure and the hostility that the Court evidenced

against the Estate’s counsel.


                                     - 34 -
J-A20028-15


      As to the procedural concerns related to the motion, we first conclude

that the Estate presented its recusal motion in a timely manner. Secondly,

there is authority to support a finding of waiver for failure to note an

objection on the record following the trial court’s denial of the motion. See

Commonwealth v. King, 990 A.2d 1172, 1180 (Pa. Super. 2010) (holding

that recusal argument was waived when the appellant did not object after

judge refused to recuse himself). However, even if properly preserved, the

Estate would not be entitled to relief on the merits.

      The Estate’s contention that the trial court’s bias was reflected in its

rulings is not cognizable. As observed by the trial court, “a mere adverse

ruling, without more, does not demonstrate the bias required for a recusal to

be granted.” In re In the Interest of S.H., 879 A.2d 802, 808 (Pa. Super.

2005) (quoting Arnold v. Arnold, 847 A.2d 674, 681 (Pa. Super. 2004)).

Additionally, the Estate has presented its substantive objections to the trial

court’s rulings to this Court in this appeal in which we have independently

reviewed and decided.

      The Estate also claims that certain of the trial court’s on-the-record

statements and language in her 1925(a) opinion evidence open hostility to

the Estate’s counsel. The Estate also submits de hors the record information

concerning the historic animosity between the trial court and counsel.

      We have reviewed the trial court’s comments that the Estate cites as

evidence of trial court bias. While the exchanges between the court and the


                                     - 35 -
J-A20028-15


Estate’s counsel were often less than a model of professional civility, they

did not rise to the level demonstrating either trial court bias or the

appearance of bias requiring recusal.        “A judge’s ordinary efforts at

courtroom administration—even a stern and short-tempered judge’s ordinary

efforts at courtroom administration—remain immune.” Commonwealth v.

Kearney, 92 A.3d 51, 61 (Pa. Super. 2014) (quoting Liteky v. United

States, 510 U.S. 540, 555–556 (1994)). The trial court’s statements and

decisions that the Estate refers to as examples of bias are more correctly

understood as the trial court’s attempt to maintain order in her courtroom.

Accordingly, there was no abuse of discretion in her decision to deny the

recusal motion.

      For the reasons explained above, we affirm the trial court’s rulings on

the motion granting the protective order regarding Sullivan, the denial of the

Estate’s motions to lift the protective order, and the denial of the Estate’s

motion for recusal of the trial court. We reverse the trial court’s decision to

conduct a Frye hearing and the order awarding summary judgment to

Giftwares and the Railroads.

      Order granting summary judgment reversed. Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.

      Judge Wecht joins the memorandum.

      Judge Donohue Concurs in the Result.




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J-A20028-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2015




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