Liles v. Balmer

• Decision Date: 01 March 1995
• Citation: 439 Pa.Super. 238,653 A.2d 1237
• Parties: Catherine M. LILES & Robert E. Liles, Appellants, v. Paul W. BALMER, Jr. & Mary Balmer.
• Court: Pennsylvania Superior Court

Page 1237

653 A.2d 1237

439 Pa.Super. 238

Catherine M. LILES & Robert E. Liles, Appellants, v. Paul W. BALMER, Jr. & Mary Balmer.

Superior Court of Pennsylvania.

Argued Oct. 20, 1994.

Filed Dec. 30, 1994.

Reargument Denied March 1, 1995.

John S. Hollister, Jr., Troy, for appellants.

W. Marshall Dawsey, Towanda, for appellees.

Before BECK, HUDOCK and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from the final order of the trial court which denied appellant's motion for removal of a compulsory nonsuit entered against her.

Appellant presents the following issues for our review: (1) whether the trial court erred in granting appellees' motion for compulsory nonsuit; (2) whether the trial court utilized an erroneous standard in excluding appellant's testimony where her recollection of the accident was elicited while under sodium pentothal/hypnosis and she had no independent recall of the details of the accident prior to the sodium pentothal/hypnosis; (3) whether the trial court erred in refusing to apply a more liberal standard in this case rather than the evidentiary standard for admitting hypnotically elicited recollections which is used in criminal cases; and (4) whether the trial court fostered prejudicial delay and impeded due process. For the reasons set forth below, we affirm.

Before addressing appellant's claims, we will recount the pertinent facts and procedural history of this case. Appellant, Catherine Liles, was riding her motorized pedalcycle ("moped") during the afternoon hours of May 5, 1985. As she passed the home of appellees, Paul Balmer, Jr. and his wife, Mary Balmer, appellant apparently lost control of her moped and fell, thereby sustaining various injuries to her head. Other than Mrs. Liles, there were no eyewitnesses to the incident.

Appellant believed that her accident was caused by the Balmers' dog chasing her moped and accordingly instituted suit against the Balmers in April, 1987. ¹ During the discovery and deposition phase of the proceedings, appellant was unable to remember any of the details of the accident. ² As a result, appellees filed a motion for summary judgment which was granted. Appellant thereafter appealed to this court. See Liles v. Balmer, 389 Pa.Super. 451, 567 A.2d 691 (1989).

On appeal, this court determined that the police accident report and the hospital records were inadmissible to prove the manner in which the accident occurred. Id., 389 Pa.Super. at 455-456, 567 A.2d at 693. We further found that appellant could not prove her cause of action by showing that on prior occasions the dog was unrestrained and chased passing vehicles or that the Balmers habitually allowed their dog to run free to chase passing vehicles. Id., 389 Pa.Super. at 456, 567 A.2d at 693. We nevertheless reversed the trial court's grant of summary judgment because the record did not disclose that, notwithstanding Mrs. Liles' inability to personally recall the details of the accident, she would be unable to produce evidence at trial to support the averments of her complaint. Id., 389 Pa.Super. at 456-457, 567 A.2d at 693.

In February of 1990, Mrs. Liles underwent a sodium pentothal/hypnotic interview conducted by her psychiatrist, Dr. Wigert. The interview was conducted for the purpose of enabling her to remember the details of the accident. ³ During a pre-trial conference, a question arose regarding the admissibility of the taped statement of Mrs. Liles' sodium pentothal/hypnotic interview. See Balmers' Pre-Trial Memorandum, filed 9/27/91 at paragraph 11; Trial Court Order, filed 10/4/91 (indicating that a pre-trial conference was held and directing the parties to file briefs regarding the admissibility of plaintiff's taped statement of her sodium pentothal interview). By orders entered in January and February 1992, the trial court ruled that Mrs. Liles would not be permitted to introduce into evidence tapes of her sodium pentothal interview. This issue was subsequently revisited during a second pre-trial conference following which the trial court directed the parties to file a brief regarding the admissibility of Dr. Wigert's testimony as to the statements made by Mrs. Liles during the sodium pentothal interview. Trial Court Order, filed 2/19/92. The trial court further ordered the parties to address the issue of whether Mrs. Liles' current recollection of the accident, which arose following the treatment, would be admissible. Id.

By order dated June 23, 1992, the trial court determined that Mrs. Liles was precluded from presenting both the statements she made to Dr. Wigert during the sodium pentothal interview and any testimony involving her sodium pentothal-enhanced recollection of the events which led to her accident. Trial thereafter commenced on the same date, i.e., June 23, 1992. Before Mrs. Liles was called to the stand, an offer of proof was requested. In response, Mrs. Liles' counsel indicated for the first time that Mrs. Liles had an independent recollection of the accident when she recovered in the hospital but that she had suppressed her memory thereof due to her head injuries and ensuing depression. ⁴ N.T. 6/23/92 at 69 and 73-74. Because there was no proof that Mrs. Liles actually had a recollection independent of the sodium pentothal interview, the trial court ruled that she was not legally competent to testify as to the circumstances surrounding the cause of the accident. Id. at 84. In response to the trial court's decision, plaintiff's counsel indicated that the evidentiary ruling effectively precluded him from proceeding further with his case. Id. at 87. At this point, defense counsel formally moved for a compulsory nonsuit and the motion was granted by the trial court. Id. at 87-88.

Within ten days after entry of the compulsory nonsuit, Mrs. Liles filed a document that was captioned "Motion for Reconsideration." ⁵ While this document was pending before the court, Mrs. Liles filed an appeal from the entry of the nonsuit. See Liles v. Balmer, docket No. 00440 Harrisburg 1992. Appellees filed a motion to quash the appeal. This court granted appellees' request as the appeal was interlocutory. See Order of the Superior Court, filed 9/2/92.

Despite the dismissal of her appeal, Mrs. Liles took no action until April of 1993, at which time she moved for argument on her motion. Argument was held in June, 1993 following which the trial court entered a final order refusing to remove the nonsuit. Mrs. Liles thereafter instituted this timely appeal therefrom. Consequently, this appeal is now properly before us for review. See Miller v. Hurst, 302 Pa.Super. 235, 241, 448 A.2d 614, 617 (1982) (en banc ) (holding that an order refusing to remove a compulsory nonsuit is final and appealable).

Appellant's first three claims pertain to the trial court's grant of appellees' request for a compulsory nonsuit and the evidentiary rulings upon which the nonsuit was based. With regard to these matters, we first observe that the trial court, on the oral motion of a party, may enter a nonsuit if the plaintiff has failed to establish a right to relief. Pa.R.C.P., Rule 230.1, 42 Pa.C.S.A. In evaluating the trial court's grant of a nonsuit, "we must view the evidence adduced on behalf of the [plaintiff] as true, reading it in the light most favorable to [her]; giving [her] the benefit of every reasonable inference that a jury might derive from the evidence and resolving all doubts, if any, in [her] favor." Sinclair by Sinclair v. Block, 534 Pa. 563, 568, 633 A.2d 1137, 1139 (1993). Accord Taliferro v. Johns-Manville Corp., 421 Pa.Super. 204, 208, 617 A.2d 796, 799 (1992). Additionally,

a compulsory nonsuit may be entered only in cases where it is clear that the plaintiff has not established a cause of action.... When so viewed, a non-suit is properly entered if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action....

Taliferro v. Johns-Manville Corp., 421 Pa.Super. at 208, 617 A.2d at 799. With respect to the trial court's evidentiary rulings, "[q]uestions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. The basic requisite for the admissibility of any evidence in a case is that it be competent and relevant." Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. 101, 125, 586 A.2d 416, 428 (1991), allocatur denied, 529 Pa. 650, 602 A.2d 860 (1992). We will examine the trial court's determinations in accordance with the above principles.

Because the trial court's decision regarding the admissibility of Mrs. Liles' testimony led to the entry of the nonsuit, we must first consider whether the trial court's evidentiary ruling thereon was proper. ⁶ On the subject of hypnotically refreshed testimony, our Supreme Court has deemed such testimony to be inadmissible as evidence. Commonwealth v. Smoyer, 505 Pa. 83, 87, 476 A.2d 1304, 1306 (1984); Commonwealth v. Nazarovitch, 496 Pa. 97, 111, 436 A.2d 170, 178 (1981). The fact that a witness has undergone such treatment nevertheless does not result in the per se exclusion of all of his or her testimony. Instead, the appellate courts have held that a witness who has been hypnotized can testify to information not derived from the hypnotic session, subject to certain guidelines which include, inter alia, that the party offering the witness must show that the testimony to be presented at trial was established and existed previous to any hypnotic process. Commonwealth v. Smoyer, 505 Pa. at 89-90, 476 A.2d at 1308, quoted in Commonwealth v. Romanelli, 522 Pa. 222, 226, 560 A.2d 1384, 1386 (1989). Accord Commonwealth v. Galloway, 433 Pa.Super. 222, 226 n. 3, 640 A.2d 454, 456 n. 3, allocatur denied, 538 Pa. 666, 649 A.2d 668 (1994); Commonwealth v. DiNicola, 348 Pa.Super. 405, 413-415, 502 A.2d 606, 610-611 (1985), allocatur denied, 516 Pa. 616, 531 A.2d 1118 (1987), ...