Aiello v. Southeastern Pennsylvania Transp. Authority

• Decision Date: 05 February 1997
• Citation: 687 A.2d 399
• Parties: Louis AIELLO v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.
• Court: Pennsylvania Commonwealth Court

Page 399

687 A.2d 399

Louis AIELLO v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellant.

Commonwealth Court of Pennsylvania.

Argued June 10, 1996.

Decided Dec. 13, 1996.

Reargument Denied Feb. 5, 1997.

Joan A. Zubras, Philadelphia, for appellant.

Tina Marcy Weber, Philadelphia, for appellee.

Before DOYLE and FLAHERTY, JJ., and KELTON, Senior Judge.

FLAHERTY, Judge.

Southeastern Pennsylvania Transportation Authority (SEPTA) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) which awarded damages to Louis Aiello (Aiello), after a jury found SEPTA guilty of negligently maintaining a subway stairway, causing Aiello to fall and injure himself.

Aiello alleged that, on April 18, 1991, a defective steel plate connected to a damaged concrete step caused him to slip and fall on a stairway located at the Walnut/Locust Street subway stop in Philadelphia. Notwithstanding the fall, Aiello boarded the subway train but later collapsed at the Snyder Avenue station when he attempted to exit the train. ¹ Both Philadelphia and SEPTA police responded to the situation and subsequently transported Aiello to Methodist Hospital where he was treated.

As a result of the fall, Aiello suffered a tibial plateau fracture of his left leg, which required surgery, as well as other injuries to his left knee and foot. At the time of trial, Aiello did not have complete use of his leg and needed a cane to walk. Aiello had Human Immunodeficiency Virus (HIV) infection since 1986, and AIDS-Related Complex (ARC) symptoms at the time of this accident.

Aiello filed a premises liability action against SEPTA. The case was originally heard by an arbitration panel which found in favor of Aiello and awarded damages in the amount of $50,000. SEPTA appealed the panel's decision. Aiello was a few days less than 36 years old at the de novo trial in which the jury returned a verdict in favor of Aiello in the amount of $933,160, less 30% contributory negligence assigned to Aiello, for a total award of $653,212. The trial court subsequently modified the award to $250,000, pursuant to the statutory cap under 42 Pa.C.S. § 8521, and additionally granted Aiello's request for delay damages in the amount of $124,110.27, for a total award of $374,110.27. SEPTA's post-trial motions were denied and this appeal followed.

On appeal, SEPTA raises the following issues: (1) whether the trial court abused its discretion in prohibiting SEPTA from calling a witness who had previously been precluded by the discovery judge from testifying; (2) whether the trial court abused its discretion by permitting an expert to testify for Aiello whose medical report was not disclosed before trial; (3) whether the trial court erred in admitting photographs taken of the scene of the accident when the photographer had died before trial; (4) whether counsel improperly summarized in her closing statement Aiello's testimony regarding counsel's alleged error in drafting the situs of the accident in the original complaint; and (5) whether the trial court erred in excluding evidence as to plaintiff's HIV and ARC illnesses. ²

SEPTA initially asserts that the trial court erred in prohibiting Officer Warren, a SEPTA police officer, from testifying at trial. Aiello allegedly stated to Warren that he fell at the Snyder Avenue station. During the discovery period, SEPTA failed to comply with a court order to disclose to Aiello that Officer Warren was a prospective defense witness. On May 11, 1992, Judge Eugene Maier, who was assigned to discovery matters, ordered SEPTA to release all discoverable items, to make full and complete production of all requested documents, and to provide answers to plaintiff's interrogatories within twenty days. (R.R. 718.) SEPTA failed to disclose Officer Warren as a witness until the week before trial, over 2-1/2 years after it was due. Based on SEPTA's failure to comply with his previously entered order, Judge Maier, in a subsequent order dated December 9, 1994, specifically precluded the testimony of Officer Warren. (R.R. 718.)

The trial court properly gave effect to Judge Maier's discovery orders. Pursuant to Pa. R.C.P. No. 4019(a)(1)(viii), the court may enter an appropriate order if a party "fails to make discovery or to obey an order of court respecting discovery." Because of SEPTA's failure to comply with his May, 1994, discovery order, Judge Maier specifically precluded the testimony of Officer Warren in accordance with Pa. R.C.P. No. 4019(c)(2), which prohibits the disobedient party from introducing designated documents, things or testimony. SEPTA's clear disobedience of Judge Maier's May, 1994 order, and its apparent bad faith by not disclosing witnesses at a suitable time before trial, clearly justify the trial court's preclusion of Officer Warren's testimony despite SEPTA's protestations to the contrary. Gill v. McGraw Electric Co., 264 Pa. Superior Ct. 368, 399 A.2d 1095 (1979).

SEPTA next contends that Dr. Frank Montique, Aiello's medical witness, should not have been allowed to testify because neither Dr. Montique's identity, nor the substance of his testimony, had been disclosed to SEPTA in response to its interrogatories. Aiello did state in his answers that treating physicians would be called at trial and subsequently identified Dr. Montique as an expert witness in a letter delivered to SEPTA on November 29, 1994, sixteen days before trial.

It is well established that the admission of expert testimony is a matter of discretion of the trial court and will not be disturbed unless there was a clear abuse of discretion. Kubit v. Russ, 287 Pa. Superior Ct. 28, 429 A.2d 703 (1981). To determine whether to allow the testimony of a witness who had not been included in a pre-trial memorandum, the presiding court must balance the facts and circumstances of each case to determine the prejudice to each party. Feingold v. Southeastern Pennsylvania Transportation Authority, 512 Pa. 567, 517 A.2d 1270 (1986).

The trial court determined that there was no resulting prejudice or unfairness to SEPTA by allowing Dr. Montique to testify. SEPTA knew of the witness sixteen days before the start of the trial, even before the case was assigned to the trial court. In fact, SEPTA had several opportunities to preclude Dr. Montique's testimony or to seek a continuance before trial but chose to remain silent, to not take any affirmative steps to compel, preclude or continue and to gamble on waiting until trial time to force preclusion of his testimony. First, SEPTA could have filed an immediate objection with the discovery court before trial seeking to preclude Dr. Montique's testimony when it was notified of his identity and curriculum vitae as an expert witness. SEPTA had ample opportunity to secure a protective order, just as Aiello did with Officer Warren. Second, SEPTA could also have motioned for a continuance on December 12, 1994, while before the calendar judge on other matters in this case. Instead of seeking a continuance, which would have given SEPTA the opportunity to depose Dr. Montique, SEPTA strategically sought to preclude Dr. Montique's testimony by a motion in limine at the start of the trial. ³ Accordingly, any claim now by SEPTA that Dr. Montique was a surprise witness is not valid because SEPTA had an opportunity to depose Dr. Montique or to make other necessary pre-trial preparations before Dr. Montique took the stand. The judge, the jury and the courtroom were committed for this trial before SEPTA moved for preclusion. Although SEPTA complains of disparate treatment of Dr. Montique vis-a-vis Warren by the trial court, the inaction of SEPTA before trial distinguishes the ruling allowing Dr. Montique's testimony from the court's ruling on Warren which was based on an order of the discovery judge, timely obtained by Aiello and then disobeyed by SEPTA. We find no abuse of discretion by the trial court by allowing Dr. Montique to testify.

SEPTA additionally argues that the admission of numerous photographs of different staircases at the Walnut/Locust station which were taken by Aiello's friend was prejudicial to SEPTA and an abuse of discretion by the trial court. The general rule is that it is within the sound discretion of the trial court judge to determine whether photographs will be admitted into evidence. DiBuono v. A. Barletta & Sons, Inc., 127 Pa.Cmwlth. 1, 560 A.2d 893 (1989). A photograph must be verified either by the testimony of the person who took it, or by another person with sufficient knowledge to state that it fairly and accurately represents the object or place reproduced as it existed at the time of the accident, or if there is a difference or change, the difference or change is specifically pointed out and is readily capable of being clearly understood and appreciated by the jury. Semet v. Andorra Nurseries, Inc., 421 Pa. 484, 219 A.2d 357 (1966).

At trial, Aiello testified that the photos accurately depicted the scene of the incident except that there were three steel plates on the steps on the day he fell which were not present in the photos admitted, including the defective steel plate which caused his fall as it existed on the day of the accident. (R.R. 162-163.) Furthermore, Aiello was able to identify the date that the photos were taken (R.R. 284), he was able to identify and describe the staircase upon which he fell (R.R. 158), and he was able to identify the removal of the steel plates on the steps and to identify the exact step upon which he fell. (R.R. 159, 161, 163-164.) Because Aiello authenticated the photos, the trial court did not abuse its discretion by admitting them.

SEPTA also contends that Aiello's counsel testified improperly during summation by stating that she, as counsel, not the plaintiff, made the mistake regarding the location of the accident. Specifically, SEPTA argues that the statement was intentionally made during closing argument to deny SEPTA the...