J-A13022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RODNEY L. O’DONNELL AND TINA M.                 IN THE SUPERIOR COURT OF
O’DONNELL, HIS WIFE                                   PENNSYLVANIA

                            Appellants

                       v.

THERESA J. MORTIMER,
ADMINISTRATOR OF THE ESTATE OF
MICHELLE A. SCHNUR

                            Appellee                No. 1058 WDA 2015


                   Appeal from the Order Dated June 12, 2015
                 In the Court of Common Pleas of Butler County
                      Civil Division at No: No. AD14-10978


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                     FILED NOVEMBER 29, 2016

       Rodney L. O’Donnell and Tina M. O’Donnell, his wife (collectively

“Appellants”) appeal from the order entered June 12, 2105, following the

Court of Common Pleas of Butler County’s (“trial court”) grant of Appellee

Theresa J. Mortimer’s, Administrator of the Estate of Michelle A. Schnur,

motion for summary judgment. For the reasons set forth below, we affirm.

       The facts and procedural history of this case are undisputed. 1    On

December 4, 2012, Mr. O’Donnell’s and Ms. Schnur’s cars collided at the


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1
 Unless otherwise specified, these facts come from the trial court’s June 12,
2015 opinion.
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intersection of State Routes 68 and 38.2 On November 14, 2014, Appellants

filed a complaint in negligence against Ms. Schnur.       Because Ms. Schnur

passed away on May 3, 2014, approximately six months prior to the filing of

the complaint, Appellants amended the complaint on December 10, 2014 to

include the estate of Ms. Schnur. Appellants alleged:

       13. On December 4, 2012, at approximately 5:50 p.m.,
       [Mr. O’Donnell] was traveling South on State Route 68, near the
       intersection of State Route 38.
       14. When [Mr. O’Donnell] came to the intersection of State
       Route 68 and State Route 38, the traffic signal was green and
       [Mr. O’Donnell] proceeded through the intersection with the right
       of way.

       15. At the same time and place, [Ms. Schnur] was traveling
       North on State Route 68.

       16. It was raining and the road surface was wet.

       17. When [Ms. Schnur] came to the intersection of State Route
       68 and State Route 38, she proceeded through the intersection
       and attempted to turn left onto State Route 38.

       18. [Ms. Schnur] failed to yield the right of way and drove
       directly into left front area of the O’Donnell vehicle. The violent
       force of the impact caused the O’Donnell vehicle to rotate in a
       clockwise position; it came to rest in a westerly direction in the
       intersection of State Route 68 and State Route 38.             The
       O’Donnell vehicle was towed from the scene.

Appellants’ Amended Complaint, 12/10/14, ¶¶ 13-18.          Appellants alleged

that, as a result of Ms. Schnur’s action, Mr. O’Donnell sustained extensive

injuries and damages. Id. at ¶ 19, 22-23. Appellee filed an answer to the


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2
  Mr. O’Donnell’s father-in-law was a passenger in Mr. O’Donnell’s vehicle at
the time of the accident. For reasons not relevant sub judice, the father-in-
law has passed away. N.T. Argument, 5/8/15, at 6.



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complaint, generally denying Appellants’ averments and raising new matter,

in which Appellee asserted, inter alia, a defense under the Dead Man’s Act,

42 Pa.C.S.A. § 5930. See Answer and New Matter, 1/26/15, ¶¶ 26-34.

       On March 13, 2015, Appellee moved for summary judgment against

Appellants on the basis that Mr. O’Donnell was not competent under the

Dead Man’s Act to testify at trial regarding the circumstances surrounding

the motor vehicle accident. The Dead Man’s Act provides in pertinent part:

       Except as otherwise provided in this subchapter, in any civil
       action or proceeding, where any party to a thing or contract in
       action is dead, . . . and his right thereto or therein has passed
       . . . to a party on the record who represents his interest in the
       subject in controversy, neither any surviving or remaining party
       to such thing or contract, nor any other person whose interest
       shall be adverse to the said right of such deceased . . . party,
       shall be a competent witness to any matter occurring before the
       death of said party[.]

42 Pa.C.S.A. § 5930.          Appellee specifically argued that Mr. O’Donnell’s

“interests in this litigation are directly adverse to those of [Appellee,]” acting

on behalf of the estate of Ms. Schnur. 3         Appellee’s Motion for Summary

Judgment, 3/13/15, at ¶ 15.




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3
  Appellee did not waive the protections of the Dead Man’s Act because it did
not conduct discovery. See Anderson v. Hughes, 208 A.2d 789, 791 (Pa.
1965) (noting that when a decedent before he died or a decedent’s
representative has required an adverse party to be deposed or to answer
interrogatories, any objection based upon the Dead Man’s Act to the
competency of such a party to testify at the trial is waived, even though the
discovery is not offered in evidence).




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       Objecting to Appellee’s summary judgment motion, Appellants noted

that they were permitted to offer other evidence under the Dead Man’s Act.

In this regard, they attached, inter alia, to their response to Appellee’s

summary judgment motion an expert report regarding the motor vehicle

accident.4 See Appellants’ Response to Summary Judgment, 5/1/15.

       On May 8, 2015, the day arguments were scheduled on the summary

judgment motion, Appellee filed a reply brief, addressing the issues raised in

Appellants’ response to the summary judgment motion.              Appellee argued,

inter alia, that the conclusions contained in Appellants’ expert report lacked

proper    factual   foundation because         they were   rooted in speculation.

Appellee’s Reply Brief, 5/8/15, at 4.            Particularly, Appellee argued that

Appellants’ expert’s conclusion were based on an investigation of the

accident scene, specifically the traffic signal, that occurred more than two

and one-half years after the accident. See id. (“The alleged investigation

occurred on April 21, 2015, nearly two and a half years after the December

4, 2012 incident date.”).

       At argument, Appellee’s counsel repeated, among other things, that

Appellants’ expert report lacked proper foundation.            Specifically, counsel

argued:


____________________________________________


4
 The expert report was dated April 23, 2015 and was prepared more than a
month after Appellee moved for summary judgment.




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        And, your Honor, this is purely speculation and a bold
        conclusion. The investigation of the traffic signal happened on
        April 21st, 2015. This accident occurred on December 4, 2012.
        This is two-and-a-half years later. And we would not have an
        issue with this if there was any basis or foundation within the
        expert report that establishes a correlation or a link to say that
        the traffic signals were the same that day or were similar, but
        instead what we are left with is just “we looked at the light in
        2015.” . . . . I mean, for all we know the light could have, in
        theory, been changed 20 times pattern[-]wise or seconds or how
        they operated the light. There is no causal connection to that.

N.T. Argument, 5/8/15, at 5-6. In response, Appellants’ counsel argued that

the adequacy of the expert report was an issue of fact to be decided by the

jury.    Id. at 7.     Appellants’ counsel also mentioned in passing that he

received Appellee’s reply brief late on the previous day. 5          Id.   Finally,

Appellants’ counsel acknowledged that Mr. O’Donnell would be incompetent

to testify under the Dead Man’s Act. See id. at 8 (“So the Dead Man’s Act

only applies to . . . O’Donnell[.]”).

        On June 12, 2015, the trial court issued an opinion and order granting

Appellee’s summary judgment motion.              The trial court concluded, among

other things, that Appellants could not establish a prima facie case of

negligence because its expert report did not capture the timing and phasing

of the traffic signal at the time of the accident in 2012. Appellants timely

appealed to this Court.       Following Appellants’ filing of a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, the trial court issued a



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5
  Appellants’ counsel failed to object to the submission of the reply brief or
the trial court’s consideration of issues raised therein.



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Pa.R.A.P. 1925(a) opinion, wherein the court largely adopted the findings

and conclusions set forth in its June 12, 2015 opinion.

            On appeal,6 Appellants raise only two issues for our review:

       I.     Whether the trial court erred in granting summary judgment
              when the court’s decision was based on an issue raised in
              [Appellee’s] reply brief filed the day of the summary
              judgment argument and when [Appellants were] not given
              any opportunity to file a sur-reply brief and/or submit
              additional evidence to address the issue on which the court
              ultimately granted summary judgment[.]

      II.     Whether the [trial c]ourt erred in finding that [Appellants’]
              expert report was insufficient evidence to establish a prima
              facie case of negligence against [Ms. Schnur.]

Appellants’ Brief at 4.
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6
    It is well-settled that
            [o]ur scope of review of a trial court’s order granting or denying
            summary judgment is plenary, and our standard of review is
            clear: the trial court’s order will be reversed only where it is
            established that the court committed an error of law or abused
            its discretion.
            Summary judgment is appropriate only when the record clearly
            shows that there is no genuine issue of material fact and that
            the moving party is entitled to judgment as a matter of law. The
            reviewing court must view the record in the light most favorable
            to the nonmoving party and resolve all doubts as to the
            existence of a genuine issue of material fact against the moving
            party. Only when the facts are so clear that reasonable minds
            could not differ can a trial court properly enter summary
            judgment.
Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (quoting
Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa. Super. 2012)). Moreover,
“[w]here the non-moving party bears the burden of proof on an issue, he
may not merely rely on his pleadings or answers to survive summary
judgment.” Krauss v. Trane U.S. Inc., 104 A.3d 556, 563 (Pa. Super.
2014) (citation omitted). “Failure of a non-moving party to adduce sufficient
evidence on an issue essential to his case and on which he bears the burden
of proof establishes the entitlement of the moving party to judgment as a
matter of law.” Id.



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       At the outset, we note that we need not address Appellants’ first issue.

Our review of the record, specifically the May 8, 2015 hearing transcript,

reveals that Appellants have waived this issue by failing to object to

Appellee’s reply brief at any time before the trial court prior to filing their

Rule 1925(b) statement. Accordingly, Appellants are not entitled to relief on

the first issue.7 See Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).

       We now turn to Appellants’ second argument that the trial court erred

in concluding that their expert report was inadequate or insufficient to

establish a prima facie case for negligence against Appellee.

       It is settled that:

       [E]xpert testimony is incompetent if it lacks an adequate basis in
       fact. While an expert’s opinion need not be based on absolute
       certainty, an opinion based on mere possibilities is not
       competent evidence. This means that expert testimony cannot
       be based solely upon conjecture or surmise. Rather, an expert’s
       assumptions must be based upon such facts as the jury would be
       warranted in finding from the evidence.
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7
  To the extent Appellants argue that the trial court erred in failing to grant
them an opportunity to file a sur-reply brief, we disagree. As the trial court
aptly explained:

       Appellants did not request, at oral argument or at any time
       thereafter, any leave to file a sur-reply to [Appellee’s] reply
       brief, or to supplement the record or their expert’s report, or for
       re-argument. Absent any request to file a [sur-]reply, or to
       supplement the record or the expert’s report, or for re-
       argument, [the trial court] decided the motion for summary
       judgment based upon the record before it.
Trial Court Opinion, 8/26/15, at 2. Moreover, Appellants also did not invoke
Pa.R.C.P. No. 1035.3(c) to supplement the record through affidavits,
depositions, or other additional discovery. See Pa.R.C.P. No. 1035.3(c).



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Helpin v. Trs. of the Univ. of Pa, 969 A.2d 601, 617 (Pa. Super. 2009)

(internal citations and quotation marks omitted).

       Here, the parties agree that, because the Dead Man’s Act renders

Mr. O’Donnell incompetent to testify about the accident, the only way

Appellants may be able to establish negligence is by offering an expert

report that     demonstrates       that   Ms.    Schnur   likely   failed   to   yield   to

Mr. O’Donnell’s southbound vehicle prior to turning left onto State Route 38.

To do that, Appellants had to establish that the traffic signal was functioning

properly at the time of the accident and that Mr. O’Donnell had the

right-of-way. They, however, failed to do so.

       As the trial court reasoned:

       In this instance, the light’s signal phasing and timing as of the
       time of the accident are critical to the accuracy and reliability of
       the conclusions in [the expert’s] report.[ 8 ] However, [the
       expert’s] opinion does not state that the light’s signal phasing
       and timing in 2015 were the same as the signal phasing and
       timing as of the time of the accident. Moreover, [Appellants]
       have not offered into the record, or requested to supplement the
       record with any other facts that would support an assumption
       that the light’s signal phasing and timing at the time of the
       investigation [in 2015] were the same as those at the time of
       the accident [in 2012]. Absent a connection between the signal
       phasing and timing of the light at the two relevant time periods,
       [the expert’s] conclusions, regarding causation, lack adequate
       factual foundation.

        ....


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8
  It is the law in Pennsylvania that an expert’s conclusions that are not
supported by the record may be disputed at the summary judgment
juncture, while credibility and weight attributed to those conclusions may
not. Summers v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010).



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     Therefore, as [Appellants’] expert’s report lacks an adequate
     foundation, and [Appellants have] not produced other evidence
     to establish said foundation, the expert’s report is inadmissible.
     As a result, the remaining record in this case is devoid of
     evidence to establish a prima facie case of negligence.

Trial Court Opinion, 6/12/15, at 10-11. Thus, viewing the record in the light

most favorable to Appellants, as the nonmoving party, and resolving all

doubts as to the existence of a genuine issue of material fact against

Appellee, as the moving party, we conclude that the trial court did not err in

granting Appellee’s motion for summary judgment.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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