Kovach v. Solomon

• Decision Date: 06 May 1999
• Citation: 732 A.2d 1
• Parties: Mary Ann KOVACH and Francis D. Kovach, h/w, Appellees, v. Michael SOLOMON, Appellant.
• Court: Pennsylvania Superior Court

732 A.2d 1

Mary Ann KOVACH and Francis D. Kovach, h/w, Appellees, v. Michael SOLOMON, Appellant.

Superior Court of Pennsylvania.

Argued March 2, 1999.

Filed May 6, 1999.

Reargument Denied July 13, 1999.

Melissa P. Rudas, Bethlehem, for appellant.

Richard L. Orloski, Allentown, for appellees.

Before McEWEN, President Judge, POPOVICH, J., and CIRILLO, President Judge Emeritus.

CIRILLO, President Judge Emeritus:

¶ 1 Michael Solomon (Solomon) appeals from the order of the Court of Common Pleas of Northampton County granting a new trial following a jury's verdict that his negligence was not a substantial factor in causing the injuries of Mary Ann Kovach (Kovach) or in causing any derivative injuries to her husband. We reverse the order for a new trial and reinstate the original jury verdict.

¶ 2 Kovach's car was struck by Solomon from behind in 1994, and she allegedly suffered injuries as a result. Kovach therefore commenced this action. At trial it was revealed that she had also been involved in a similar accident in 1990 in which she had sustained similar injuries, and that she had been under treatment for her 1990 injuries immediately before her 1994 accident with Solomon. Kovach failed to call her primary treating physician, a chiropractor, at trial, although she listed him in her pre-trial witness list. His records, however, were obtained by the defense and were used quite effectively to impeach Kovach's direct testimony regarding the extent of her treatment prior to her accident with Solomon.

¶ 3 During its charge to the jury, the trial court instructed the jury that they could, if they wished, infer that the absence at trial of Kovach's primary treating doctor meant that his testimony would have been unfavorable to Kovach. It gave this "missing witness" instruction to the jury because it found that a local rule of civil procedure, regarding reliance on the pre-trial witness list, had been violated. The jury returned a defense verdict.

¶ 4 At a later hearing on Kovach's post-verdict motions, the trial court found that it had abused its own discretion by giving the "missing witness" instruction. The court had not at trial originally made an inquiry into what prejudice Solomon had suffered through Kovach's violation of the rule. At the post-verdict motion hearing, however, the court focused on this point. Although Solomon did state that he had been prejudiced by being unable to offer into evidence the doctor's professional diagnoses and opinions regarding which injuries had been caused by which accident, the court found that Solomon had not shown sufficient prejudice because he had been able to use the doctor's records to cross-examine Kovach. Because of the absence of prejudice, the court found, the local rule violation had not been severe enough to warrant the "missing witness" instruction it had given as a sanction within its discretion. Having found that it had committed reversible error, the court therefore granted a new trial. This appeal followed.

¶ 5 The local rule of civil procedure in question states:

At trial the parties will be limited to those witnesses, exhibits and document divulged at pre-trial, unless opposing counsel waives such restrictions or the Court finds such limitations to be manifestly unjust. If a party has indicated that he will call a specific witness, he will be expected to produce that witness at trial unless he has given to opposing counsel at least seven (7) days['] notice prior to trial that he does not intend to call such witness. Failure to give such notice shall subject a party to such penalty or sanction as the Court in its discretion may impose.

Northampton County Local Rule N212B(c)(5) (emphasis added).

¶ 6 On appeal from this order of the trial court, Solomon presents for our consideration the following issue:

Whether the court below abused its discretion in granting a new trial on the ground that it gave a negative inference instruction with respect to a listed witness whom the plaintiffs failed to call without giving seven days' notice in violation of a local rule.

¶ 7 When reviewing an order granting a new trial, a matter within the discretion of the trial court, we are called upon initially to determine whether the trial court would have ordered a new trial for any other reason but the one cited. Coker v. S.M. Flickinger Co., 533 Pa. 441, 448, 625 A.2d 1181, 1184-85 (1993). If the trial court would have granted a new trial for reasons other than those it cited, a broad scope of review applies. In that situation, we examine the entire record, and, using an abuse of discretion standard, we must affirm if there is any valid reason in the record for granting a new trial. Id.

¶ 8 However, where, as here, it is apparent that the reason given by the trial court is the only basis upon which it ordered a new trial, a narrower scope of review applies. Id. at 449, 625 A.2d at 1185. In such a case, using an abuse of discretion standard, we examine only the stated reason the trial court ordered the new trial. Id. "Thus, if the trial court specifies the reasons for which it ordered a new trial, then an appellate court can only affirm the decision if at least one of the reasons specified is an adequate one." Id. at 452, 625 A.2d at 1187.

¶ 9 Here, the trial court has given one basis upon which it ordered a new trial. "As a practical matter, a trial court's reference to a finite set of reasons is generally treated as conclusive proof that it would not have ordered a new trial on any other basis." Id. at 447, 625 A.2d at 1184. We treat it as such.

¶ 10 However:

Even when an appellate court must confine its examination to the merit of any reasons offered by the trial court, circumstances may still demand a review of the entire record. However, the purpose for doing so is not to locate a valid reason for affirming the order. The inquiry is strictly directed at determining whether the trial court's stated reasons and factual basis can be supported.

Coker at 452, 625 A.2d at 1187.

¶ 11 The circumstances of this case demand a review of such a scope. Error in a jury charge may provide the basis for a new trial if it is shown that the instruction may have been responsible for the verdict. O'Brien v. Martin, 432 Pa.Super. 323, 638 A.2d 247 (1994); Sedlitsky v. Pareso, 425 Pa.Super. 327, 625 A.2d 71, 74 (1993); Smith v. Brooks, 394 Pa.Super. 327, 575 A.2d 926 (1990). A charge to the jury which is not warranted by the evidence is ground for a new trial. Sweitzer v. Dempster Systems, Division of Carrier Corp, 372 Pa.Super. 449, 539 A.2d 880 (1988); Kelly v. Crawford, 137 Pa.Super. 197, 8 A.2d 449 (1939).

¶ 12 We must, therefore, determine from the evidence whether the instruction was warranted in the first place, as well as whether the court's later grant of a new trial was warranted, together with its grounds for so ordering (i.e., lack of prejudice). In order to examine whether there was prejudice to Solomon in the violation of the local rule, whether prejudice is an appropriate pre-requisite for so charging the jury, how the local rule affects the general application of the "missing witness" rule, and whether the "missing witness" instruction was given in error, we must examine the facts of this case in detail.

¶ 13 Our standard is clear. We review them for an error of law or abuse of discretion; that is, to determine whether the trial court's decision has merit. Coker, supra at 447, 625 A.2d at 1183. As our supreme court has instructed us:

Discretion is abused when the course pursued represents not merely an error of judgement, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

P.L.E. New Trial § 2. One way of summing up all the qualities described in this definition of a valid exercise of discretionary power is to say that the decision had merit. Conversely, if the reason for performing a discretionary act had no merit, then the trial court abused its discretion. Thus, when viewed in terms of the degree of scrutiny that should be applied, an inquiry into an abuse of discretion is operationally equivalent as one into the merit of the trial court's decision.

Id. at 447-48, 625 A.2d at 1185 (precise usage and spelling in original) (emphasis added).

¶ 14 The pertinent evidence reveals the following. Well before trial, the attorneys for both sides in this case exchanged the usual pre-trial list of expert witnesses they expected to call to the stand.¹ Kovach's list included Dr. Ross Lyons, a chiropractor and Kovach's primary treating physician for the injuries at issue in this case.² In the usual course of discovery, counsel for Solomon obtained the records of Dr. Lyons.

¶ 15 As of seven days before trial, Solomon's attorney had not received word that Kovach would not be calling any of her listed witnesses. Being aware of the local rule, she believed that Kovach would call Dr. Lyons to testify. She prepared for trial accordingly, using Dr. Lyons' records she had obtained through discovery.

¶ 16 Four days before trial, in a telephone conversation regarding other details, Solomon's attorney asked Kovach's attorney whether he would be calling Dr. Lyons to testify. "I don't think so," said Kovach's attorney, but he explained his uncertainty was because it had just been determined that a different attorney from the same firm would be trying the case. Kovach's attorney stated that it was up to new counsel whether Dr. Lyons would be called or not. On the first day of trial, Solomon's attorney inquired again, this time of Kovach's new attorney (hereinafter "Kovach's attorney"), whether Kovach would be calling Dr. Lyons to testify. Kovach's attorney replied that Kovach would not be calling Dr. Lyons.³

¶ 17 Trial commenced with a stipulation that Solomon's car hit Mary Ann Kovach's in 1994, that Solomon was negligent, and that Kovach was not...