J-A22010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MICHAEL HENNESSEY AND LINDA                :   IN THE SUPERIOR COURT OF
    HENNESSEY                                  :        PENNSYLVANIA
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 905 EDA 2019
    WILLIAM C. MOYER AND JUDITH L.             :
    MOYER H/W                                  :

                Appeal from the Judgment Entered April 15, 2019
      In the Court of Common Pleas of Montgomery County Civil Division at
                              No(s): 2016-11704


BEFORE:      MURRAY, J., STRASSBURGER, J.*, and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                             FILED OCTOBER 02, 2019

        In this personal injury action, Michael Hennessey and Linda Hennessey

(Appellants) challenge the trial court’s denial of post-trial relief. Upon review,

we affirm.

        The trial court summarized:

              [Appellants] brought this action against Defendants William
        C. Moyer and Judith L. Moyer for personal injuries that Mr.
        Hennessey sustained [in 2015] when he slipped and fell on ice in
        the street in front of his house in New Hanover Township.
        [Appellants] asserted that the ice originated from water
        discharged from a sump pump in the Moyers’ house, through a
        drainpipe emptying onto the curbside. The Moyers had installed
        the drainpipe in the early 1990’s. [Appellants] maintained that
        water from the pipe then flowed to their own property, located
        several houses downhill, where it froze and became the ice that
        caused Mr. Hennessey’s fall. A jury trial was held on November
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       13-15, 2018, and resulted in a verdict for [the Moyers], based on
       a jury finding that they were not negligent.

Trial Court Memorandum and Order, 2/27/19, at 1.

       After three days of trial, the jury rendered their verdict in favor of the

Moyers. On November 26, 2018, Appellants filed a motion for post-trial relief

in which they claimed the trial court erred by sustaining the Moyers’ objection

to the introduction of a portion of videotape deposition testimony from

Hanover Township Director of Code Enforcement, James Wozniak. Appellants

specifically claimed that Mr. Wozniak’s testimony about his review of Mr.

Moyer’s file was relevant to Mr. Moyer’s testimony that he had a conversation

in the early 1990s with the Director of Code Enforcement at that time, Mr.

Hank Clemmer. The Moyers filed an answer to Appellants’ post-trial motion

on January 31, 2019. The trial court scheduled oral argument for February

11, 2019. By memorandum and order dated February 27, 2019 and docketed

February 28, 2019, the trial court denied Appellants’ post-trial motion.

Appellants filed this appeal on March 6, 2019.1 Appellants and the trial court

have complied with Pennsylvania Rule of Appellate Procedure 1925.

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1 On April 12, 2109, this Court issued upon Appellants a rule to show cause,
observing that “final judgment has not been entered on the trial court docket
as required by Pa.R.A.P. 301”, and citing Fanning v. Davne, 795 A.2d 388
(Pa. Super. 2002), appeal denied, 825 A.2d 1261 (Pa. 2003) (appeal
properly lies from judgment entered following trial court’s disposition of post
-trial motions). We directed Appellants to praecipe the trial court prothonotary
to enter judgment, stating that “[u]pon compliance with Pa.R.A.P. 301, the
notice of appeal previously filed in this case will be treated as filed after the
entry of judgment. See Pa.R.A.P. 905(a)(5).” Appellants praeciped for



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       Appellants present a single issue on appeal:

              Whether the [trial c]ourt should have permitted Appellants
       to present the entire testimony of James Wozniak including his
       review of [the Moyers’] file with New Hanover Township and his
       letter to [the Moyers], where the testimony was relevant, [the
       Moyers] failed to raise a timely objection thereby constituting a
       waiver of same, and the preclusion of said evidence was highly
       prejudicial to Appellants.

Appellants’ Brief at 4.

       As stated by Appellants, this case arises “from a slip and fall on black

ice,” allegedly “due to run off from an improper and un-permitted drain

system” on the Moyers’ property. Complaint, 6/10/16, at 1. Prior to trial, the

Moyers filed a motion in limine to preclude evidence based on relevance and

risk of prejudice. The court explained:

              The Motion included a request to preclude [Appellants] from
       making any reference to codes, ordinances, and regulations of
       New Hanover Township that were not in effect at the time that the
       Moyers’ drainpipe was installed [in the early 1990s]. In their
       Answer to the Motion in Limine, [Appellants] stated that they “do
       not intend on introducing any evidence regarding references to
       New Hanover Township Codes, Ordinances and Regulations not in
       effect at the time of the installation of the sump pump and drain.”
       At the outset of trial, at oral argument on the motion, [Appellants’]
       counsel confirmed this position, and the Court therefore entered
       an Order dismissing the Motion as moot.

Memorandum and Order, 2/27/19, at 2 (record citations omitted).




____________________________________________


judgment, which was entered on April 15, 2019. Consistent with Pa.R.A.P.
905(a)(5), we treat Appellants’ appeal as “filed after the entry of judgment.”


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      At trial, Appellants’ counsel called Mr. Moyer to testify as on cross. N.T.,

11/14/18, at 3. Mr. Moyer testified that sometime around 1991, he put an

addition on his home, ran a drain pipe, and installed a sump pump. Id. at 15.

He obtained a permit for the addition, but not for the drain because “there

was none required.” Id. He testified to having a conversation during that

time with Mr. Clemmer, who was the Director of Code Enforcement for

Hanover Township at the time. Mr. Moyer testified:

      If I got a permit for building the family room addition, and we
      were going to try to resolve the water problem, I had to insure
      that I was having, getting what was required for the township,
      yes. So yes, that was a question I posed to Mr. Clemmer at the
      time.

Id.

      Appellants’ counsel asked Mr. Moyer:

      Q.   Okay. And is Mr. Clemmer going to be here to testify about
      him saying to you that this was fine, you didn’t need a permit?

      A.    I don’t believe he’s on the list anywhere that I’m aware of.

Id. at 15-16.

      After Appellants’ counsel finished questioning Mr. Moyer, the court

advised the jury that Appellants “have rested,” and turned to the Moyers’

counsel, who called Mr. Moyer on direct. Id. at 23. Mr. Moyer testified that

he did not obtain a permit for the sump pump drain and he did not believe he

needed one. Id. at 38. His counsel asked:

      Q.    So let’s talk about, you have made the decision now to move
      your sump pump drain, correct?

      A.    Yes.

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      Q.    Did you consult with the township?

      A.    I actually did.

      Q.    Did you speak to Mr. Clemmer, Hank Clemmer?

      A.    I spoke with him at the time period same proximity of when
      the building permit was obtained for the building addition and the
      inspections that were going on. Actually, it was the building
      permit was issued, he had to come out and do inspections. That
      is when the neighbor gave his concerns, asked about addressing
      some of the water flow that was going to his property. So that’s
      what got the ball moving.

Id. at 36-37.

      At that point, the court was aware of the Moyers’ objection to Mr.

Wozniak’s deposition testimony about his review of the township file; the court

called counsel to sidebar, and stated the court’s concern that Mr. Moyer’s

counsel was “opening the door to more testimony regarding the absence of

any record of a conversation between Mr. Moyer and Mr. Clemmer.” N.T.,

11/14/18, at 37. The court asked Mr. Moyer’s counsel if he “needed to go

there?” and counsel answered that he did not. Id. The court then stated: “If

it is repeated I think you will be opening the door.” Id. Counsel then indicated

that he would “move on” and continued with questioning unrelated to

communication between Mr. Moyer and Mr. Clemmer. Mr. Moyer reiterated

that in the early 1990s he did not obtain a permit to move the sump pump

drain, and he did not need one. Id. at 38.

      Following Mr. Moyer’s testimony, the parties’ counsel — before the trial

court but outside the presence of the jury — argued about the admission of



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the videotaped deposition testimony of Mr. Wozniak. Appellants sought to

introduce Mr. Wozniak’s testimony that he looked at a file concerning the

improvements Mr. Moyer made to his property in the early 1990s, and that

Mr. Wozniak did not see anything indicating that Mr. Moyer had a conversation

with the former Director of Code Enforcement, Mr. Clemmer.              Appellants’

counsel stated, “it is simply Mr. Wozniak saying I checked the file and there is

nothing there.”       N.T., 11/14/18 (afternoon), at 3.2        The conversation

continued:

        THE COURT:        Is it your position as a matter of law that a
        permit application was required back at the time the drain pipe
        was installed?

        APPELLANTS’ COUNSEL:            I don’t know, Your Honor, and I
        don’t think it is relevant. Relevant as to whether or not there is a
        violation or a need for a permit, it is simply establishing that [Mr.
        Moyer] never sought out a permit.

        THE COURT:       How is it relevant if a permit was not required?
        I mean he also didn’t apply to the Army Corps of Engineers but
        who cares?

Id.

        Appellants’ counsel stated that Mr. Wozniak never testified that a permit

was required in the early 1990s. Id. at 4. Counsel further asserted that the

Moyers never objected to Mr. Wozniak’s testimony.           Id. at 5.   The court

responded that deposition objections “are reserved, you know, under the

rules.”    Id.   The court and the parties proceeded to parse through Mr.


____________________________________________


2   There are two separate trial transcripts for November 14, 2018.

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Wozniak’s deposition testimony. With regard to which parts were admissible,

the court determined:

            Well, so far I haven’t seen any admissible testimony other
      than [Mr. Wozniak’s] background and the investigation that he
      did, which is irrelevant if we are not going to hear something about
      a permit violation, or that a permit was not applied for but was
      required or something of that nature.

N.T., 11/14/18 (afternoon), at 12.

      Appellants’ counsel continued to argue:

            Your Honor, the importance of this testimony is it goes to
      corroborate whether or not Mr. Moyer had a conversation with Mr.
      Clemmer. Because Mr. Wozniak in his testimony is saying I went
      back and reviewed the file to see whether there was a permit or
      some other form of approval. And he says I went back and looked
      at the address file and there was no other form of approval.

            If there was a conversation with Mr. Clemmer and there was
      something in the file it leaves it open to question what was there.
      And this testimony is important because it establishes Mr.
      Wozniak in his position as code enforcement officer went back to
      look and see was there something else and found nothing. Which
      would potentially contradict what Mr. Moyer said about I had a
      conversation with Hank Clemmer.

      THE COURT:       Which presumes that a conversation of the type
      that Mr. Moyer testified to would have been documented in a file
      by Mr. Clemmer.

      APPELLANT’S COUNSEL:           Exactly. . . .

Id. at 14-15.

      The Moyers’ counsel countered, “there is no evidence that Mr. Clemmer

was required to document his conversation.        So the fact that he did not

document it in the file does not rise to the level of it did not occur.” Id. at

15-16. Defense counsel continued, “My response to that is if there is nothing

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that is required to be there, then the fact that it is not there doesn’t prove

anything.” Id. at 18. The court then addressed Appellants’ counsel:

             You are contesting the testimony that Mr. Moyer spoke with
      Mr. Clemmer back in the early nineties and said, hey, Hank, do I
      need a permit for this, and Mr. Clemmer said no. And you want
      to question that testimony without showing that a permit was in
      fact required. In other words, if a permit wasn’t required, what
      difference does it make what Mr. Clemmer told him? In fact what
      Mr. Clemmer allegedly told him was right. If he never got that
      advice from Mr. Clemmer, what difference does it make, given the
      absence of an ordinance applicable in the early nineties?

            APPELLANT’S COUNSEL:         The issue about what was
      sought after, what steps he took, what investigation he did, those
      are all at issue in this case. As to what he did or not do in
      investigating whether or not he needed to do this. The issue isn’t
      whether or not he needed a permit; the issue is did he inquire
      about it.

            THE COURT:         All right. I remain unconvinced on this
      particular point. So let’s move forward.

N.T., 11/14/18 (afternoon), at 19-20.

      The court sustained the Moyers’ objection, and the trial proceeded. On

November 15, 2018, the jury rendered their verdict in favor of the Moyers.

Appellants filed a post-trial motion seeking a new trial on the basis that the

trial court improperly excluded Mr. Wozniak’s testimony. Appellants averred:

             The jury only had the opportunity to hear Mr. Moyer’s
      testimony that he asked somebody about his drainage system,
      without hearing the opposing evidence that there was nothing in
      the file indicating that such a conversation occurred.

            Similarly, the fact that Mr. Wozniak did not see anything in
      the file has a tendency to make it less likely that such a
      conversation occurred, even if it is not conclusive either way.

Appellants’ Motion for Post-Trial Relief, 11/26/18, at 4.

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      As noted, the trial court denied the motion in a memorandum and order

dated February 27, 2019, and Appellants filed this appeal in which they

continue to argue that the trial court erred in precluding the introduction of

Mr. Wozniak’s deposition testimony. Appellants maintain that Mr. Wozniak’s

testimony was relevant to their negligence claim, and the Moyers waived any

objection to the admission of the testimony because they did not object at the

deposition.   Appellants claim the court’s preclusion of evidence caused

substantial prejudice and they are therefore entitled to a new trial.

      Conversely, the Moyers contend they “properly and timely objected” to

Mr. Wozniak’s testimony when he was deposed. Moyers’ Brief at 9-10. They

further argue that the trial court properly excluded the disputed testimony

because it was not relevant, given that “Mr. Wozniak’s testimony on the issue

of Mr. Moyer’s property file had little, if any, probative value in this case,” and

“Appellants were unable to establish that had the conversation occurred a

record would have been created.” Id. at 9. Thus, the Moyers assert that

Appellants were not prejudiced.

      We begin with our agreement that the Moyers did not waive their

objection to the introduction of Mr. Wozniak’s deposition testimony at trial.

Mr. Wozniak was deposed the day before trial, and the notes of his testimony

span 20 pages, approximately 15 of which are direct examination by

Appellants’ counsel. Notably, the Moyers’ counsel objected approximately 7

times. See Deposition, 11/12/18, at 8, 10, 11, 12, 15, 16 and 19. With each

objection by the Moyers’ counsel, the videographer would state “Going off the

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video record.” Id. Thus, the details of the Moyers’ objections are unknown,

although we conclude from the context of Mr. Wozniak’s testimony and the

Moyers’ objections that timely objections to Mr. Wozniak’s review of the

Moyers’ file were made.

     Further, and as noted by the trial court, Pennsylvania Rule of Civil

Procedure 4016 addresses depositions and objections, stating:

     Objections to the competency of a witness or to the competency,
     relevancy, or materiality of the testimony are not waived by
     failure to make them before or during the taking of the deposition,
     unless the ground of the objection is one which was known to the
     objecting party and which might have been obviated or removed
     if made at that time.

Pa.R.C.P. 4016(b) (emphasis added).

     We have explained:

     Under Rule 4016(b), objections to the competence, relevance, or
     materiality of testimony “are not waived by failure to make them
     before or during the taking of the deposition, unless the ground of
     the objection is one which was known to the objecting party and
     which might have been obviated or removed if made at that time.”
     Pa.R.C.P., Rule 4016(b), 42 Pa.C.S.A. . . . Subject to the
     provisions of Rule 4016(b), “objection may be made at trial or
     hearing to receiving in evidence any deposition or part thereof for
     any reason which would require the exclusion of the evidence if
     the witness were then present and testifying.” Id., Rule 4020(c).

Sprague v. Walter, 656 A.2d 890, 905–06 (Pa. Super. 1995).

     Here, the trial court opined that the Moyers’ objection to the relevance

of Mr. Wozniak’s testimony “could not have been ‘obviated’ or ‘removed’ at

the deposition.” Trial Court Memorandum and Order, 2/27/19, at 6-7. We




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discern no basis upon which to find that the Moyers waived their right to object

to the introduction of Mr. Wozniak’s deposition testimony.

      Next, we address Appellants’ argument that the trial court erred in

precluding the introduction of Mr. Wozniak’s testimony because it was relevant

to their claim of the Moyers’ negligence, such that Appellants are entitled to a

new trial.

      We have stated:

      [O]ur standard of review when faced with an appeal from the trial
      court’s denial of a motion for a new trial is whether the trial court
      clearly and palpably committed an error of law that controlled the
      outcome of the case or constituted an abuse of discretion. In
      examining the evidence in the light most favorable to the verdict
      winner, to reverse the trial court, we must conclude that the
      verdict would change if another trial were granted. Further, if the
      basis of the request for a new trial is the trial court’s rulings on
      evidence, then such rulings must be shown to have been not only
      erroneous but also harmful to the complaining parties.
      Evidentiary rulings which did not affect the verdict will not provide
      a basis for disturbing the jury’s judgment. . . .

      Moreover, the admission or exclusion of evidence is within the
      sound discretion of the trial court. In reviewing a challenge to the
      admissibility of evidence, we will only reverse a ruling by the trial
      court upon a showing that it abused its discretion or committed
      an error of law.

Schuenemann v. Dreemz, LLC, 34 A.3d 94, 98–99 (Pa. Super. 2011)

(citation omitted).

      Although Appellants insist that Mr. Wozniak’s excluded testimony should

have been admitted because it “spoke directly to whether the allegations of

the [Moyers’] conduct was more or less probable,” Appellants’ Brief at 14,




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there is no record support for this claim. The trial court — succinctly and

astutely — opined:

      On review of the record, the Court concludes that [the Moyers’]
      objections at trial were properly sustained. The entire thrust of
      Mr. Wozniak’s testimony—that the Moyers did not apply for a
      permit when they installed the drainpipe in the early 1990’s and
      that the drainpipe was in violation of ordinances adopted in 2006—
      was plainly improper in the absence of any showing (a) that a
      permit was required at the time the pipe was installed or (b) that
      the 2006 ordinances applied retroactively to preexisting land uses.
      Moreover, the offer of such testimony was inconsistent with
      [Appellants’] assurance, in response to [the Moyers’] Motion in
      Limine, that they would not introduce testimony of codes,
      ordinances, and regulations of New Hanover Township that were
      not in effect at the time that the Moyers’ drainpipe was installed.

Memorandum and Order, 2/27/19, at 7 (footnote omitted).

      The above reasoning refutes Appellants’ contentions that the evidence

was relevant, and the preclusion of the evidence was prejudicial. Upon review,

we find no reversible error by the trial court.

      “To constitute reversible error, an evidentiary ruling must not only
      be erroneous, but also harmful or prejudicial to the complaining
      party. For evidence to be admissible, it must be competent and
      relevant. Evidence is competent if it is material to the issue to be
      determined at trial. Evidence is relevant if it tends to prove or
      disprove a material fact.” American Future Systems, Inc. v.
      BBB, 872 A.2d 1202, 1212 (Pa. Super. 2005). See Pa.R.E., Rule
      401 (“Relevant evidence” means evidence having any tendency to
      make the existence of any fact that is of consequence to the
      determination of the action more probable or less probable than
      it would be without the evidence.”) “Relevant evidence is
      admissible if its probative value outweighs its prejudicial impact.
      The trial court’s rulings regarding the relevancy of evidence will
      not be overturned absent an abuse of discretion.” American
      Future Systems, Inc., 872 A.2d at 1212. “A party suffers
      prejudice when the trial court’s error could have affected the
      verdict.” Gaudio v. Ford Motor Co., 976 A.2d 524, 535 (Pa.
      Super. 2009).

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Schuenemann v. Dreemz, LLC, 34 A.3d at 101.

     Mindful of the foregoing, we conclude that neither prevailing legal

authority nor the record support Appellants’ claim of trial court error.

Accordingly, we affirm the judgment in favor the Moyers.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/19




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