J-A07023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEBRA GOLD                                       IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

PLESSET PROPERTIES PARTNERSHIP,
T/D/B/A SHADYSIDE INN SUITES

                            Appellee                    No. 1178 WDA 2016


                Appeal from the Judgment Entered July 25, 2016
               In the Court of Common Pleas of Allegheny County
                       Civil Division at No: GD 12-018098


BEFORE: OLSON, STABILE, and STRASSBURGER, * JJ.

MEMORANDUM BY STABILE, J.:                      FILED SEPTEMBER 18, 2017

        Debra Gold (“Gold”) appeals from the July 25, 2016 judgment entered

in the Court of Common Pleas of Allegheny County (“trial court”) in favor of

Plesset Properties Partnership, T/D/B/A Shadyside Inn Suites (“PPP”)

following a civil jury trial. Upon review, we affirm.

        The matter stems from an incident on July 8, 2011, wherein Gold fell

to the ground and severely injured her leg while walking out of PPP’s

property. Shortly thereafter, PPP installed skid-resistant adhesive strips to

the doorstep where Gold fell.

        On September 26, 2012, Gold filed a complaint against PPP sounding

in negligence.     On May 6, 2016, PPP filed a motion in limine seeking to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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exclude any testimony or evidence of subsequent remedial measures,

including skid-resistant paint, adhesive strips and/or warning signs. On May

9, 2016, Gold filed a motion in limine to preclude the expert testimony of

Andrew Rentschler, Ph.D.       The trial court denied this motion on May 12,

2016.     On May 9, 2016, the trial court granted, in part, PPP’s motion in

limine    and   precluded   Gold   “from   introducing   all   photographs,   with

subsequent remedial measures and/or demonstrative exhibits described in

the pretrial [statement] with recently purchased paint.” Trial Court Order,

5/9/16, at 1. A jury trial was held on May 9-12, 2016, after which the jury

found PPP was not negligent.

        Gold filed a request for post-trial relief on May 20, 2016, asserting that

Gold should have been permitted to cross examine Jonathan Plesset and Dr.

Rentschler on the issue of subsequent remedial measures, and Dr.

Rentschler should not have been permitted to testify due to unfair surprise.

The trial court denied the request for post-trial relief on July 25, 2016. PPP

filed a praecipe to enter judgment on July 29, 2016.

        On August 11, 2016, Gold filed a timely notice of appeal. On the same

date, the trial court directed Gold to file a concise statement of errors

complained of on appeal. Gold complied on August 24, 2016, and the trial

court issued a Pa.R.A.P. 1925(a) opinion on October 11, 2016.

        Gold raises four issues on appeal, which we repeat verbatim.

         [I.] Did the trial court err in prohibiting [Gold’s] counsel from
              cross-examining and impeaching [PPP’s] witness Jonathan
              Plesset on the issue of subsequent remedial measures (i.e.

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            skid-resistant strips) given the unfair advantage created by
            Plesset’s opinions and testimony ay trial?

      [II.] Did the trial court err in prohibiting [Gold’s] counsel from
            cross-examining and impeaching [PPP] expert Andrew
            Rentschler, Ph.D., on the issue of subsequent remedial
            measures due to the fact that his opinions were found, at
            least in part, on his site inspection that took place after the
            implementation of subsequent remedial measures (i.e.
            skid-resistant strips)?

      [III.] Did the trial court err in failing to preclude the testimony of
             [PPP] expert Rentschler based upon the unfair surprise
             created by the late notification from [PPP] that Rentschler
             would testify at trial?

      [IV.] Did the trial court err in failing to grant a new trial based
            on the unfair advantages to [PPP] and the prejudice to
            [Gold] resulting from the aggregate effect of the foregoing
            errors?

Appellant’s Brief at 20-21 (some capitalization omitted).

      First, Gold argues that the trial court erred in not permitting Gold to

cross-examine and impeach Jonathan Plesset, a part owner of PPP,

regarding subsequent remedial measures.

      [O]ur standard of review of a trial court’s decision to admit or
      exclude evidence is well-settled. When we review a trial court
      ruling on admission of evidence, we must acknowledge that
      decisions on admissibility are within the sound discretion of the
      trial court and will not be overturned absent an abuse of
      discretion or misapplication of law. In addition, for a ruling on
      evidence to constitute reversible error, it must have been
      harmful or prejudicial to the complaining party. An abuse of
      discretion is not merely an error of judgment, but if in reaching a
      conclusion the law is overridden or misapplied, or the judgment
      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias or ill-will, as shown by the evidence of the record,
      discretion is abused.




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Stapas v. Giant Eagle, Inc., 153 A.3d 353, 367-68 (Pa. Super. 2016)

(quoting Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa. Super. 2008)

(citation and quotations omitted)) (alteration in original).   Generally,

evidence of subsequent remedial measures is not admissible to establish

negligence or culpable conduct. See Pa.R.E. 407. However, the evidence

may be admissible for another purpose, such as “impeachment or—if

disputed--proving ownership, control, or the feasibility of precautionary

measures.” Id.

     Gold argues that PPP attempted to use the trial court’s ruling as a

sword and shield during the following exchange between Gold’s counsel and

Jonathan Plesset.

     Q: At the time of this incident, and I’m not going to put [the
     video recording of the incident] back up again because I think
     everyone has seen it enough at this point in time, you’d agree
     there were no skid-resistant strips on that step?

     A: Why would there be?

     Q: You’d agree there weren’t any; correct?

     A: There was not. No.

     Q: You know what skid-resistant strips are?

     A: I’m familiar with that, yes.

     Q: I actually showed – I’m going to have this marked as Exhibit
     No. 13. Can you tell the jury what that actually is?

     A: It’s anti-skid tread tape.

     Q: What’s the purpose of that?

     A: To prevent slips.


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       Q: Where does that get placed? Where could you place it?

       A; Any areas where it might be slippery.

       Q: Could you place it on a step?

       A: You could place it on a step. You could place it anywhere
       where you thought it was slippery.

       Q: You’d agree that was not present on that step on July 8,
       2011?

       A: It was not needed.

       Q: Again, my question as that wasn’t present?

       A: It was not.

N.T. Jury Trial, 5/11-12/16, at 411-12.          Gold argues that the flippant

rhetorical response     to   the   line   of questioning opened the   door   to

impeachment evidence of subsequent remedial measures.            We disagree.

Gold cites Smalls v. Pittsburgh-Corning Corporation, 843 A.2d 410 (Pa.

Super. 2004) for the proposition that impeachment testimony regarding

subsequent remedial measures is permissible.         In Smalls, the trial court

permitted impeachment evidence of subsequent remedial measures where

there was testimony explicitly denying that the product released asbestos

dust; however, they later put on a warning label that indicated it did. Id. at

413.   Unlike in Smalls, there were no grounds for impeaching Jonathan

Plesset’s testimony. Moreover, our Supreme Court in Duchess v. Langston

Corp., 769 A.2d 1131, 1134 (Pa. 2001) noted that the purpose behind Rule

407 “is grounded in social policy, the central concern being that allowing its

admission might discourage repairs or alterations that would enhance safety



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or otherwise constitute improvements, since, if the rule were otherwise, the

fact of any such change could be employed aversely in a future tort action.”

Id.   Thus, the trial court did not abuse its discretion when it excluded

cross-examination regarding subsequent remedial measures.

      Next, Gold argues that she should have been permitted to cross

examine Dr. Rentschler regarding subsequent remedial measures because

he based his expert opinion, in part, on a site visit after the measures had

been in place.    As discussed above, we review a trial court’s evidentiary

rulings for an abuse of discretion.   See Stapas, 153 A.3d at 367.       Upon

review of the testimony of Dr. Rentschler, while he conducted a site visit

after the subsequent remedial measures were installed, his testimony and

analysis were based exclusively on the videotape of the event on July 8,

2011. See N.T. Jury Trial, 5/11-12/16, at 558-91. Thus, there was no basis

to cross-examine Dr. Rentschler on subsequent remedial measures. Gold’s

claim fails.

      Next, Gold claims that the trial court improperly permitted Dr.

Rentschler to testify due to unfair surprise and was effectively ambushed on

the eve of trial. In her brief, Gold notes that she was provided with notice,

along with a copy of Dr. Rentschler’s report, that Dr. Rentschler was going to

be called as an expert witness one month before trial.        See Appellant’s

Brief at 50.     Moreover, the expert report was attached to the pre-trial

statement and filed thirty days prior to the earliest trial date as required by

the rules of civil procedure. See Pa.R.C.P. No. 212.1(b)(2); Pa.R.C.P. No.

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212.2. Moreover, upon review of the record Gold did not attempt to obtain a

rebuttal expert or request a continuance to obtain an expert. Thus, Gold’s

claim fails.

      Finally, Gold argues that the cumulative errors discussed above entitle

her to a new trial. As we have found that all of Gold’s claims are meritless,

there is no cumulative error.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




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