Nagy, J. v. Avant Gardening

J-A03019-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEAN NAGY AND CHRISTOPHER : IN THE SUPERIOR COURT OF NAGY : PENNSYLVANIA : : v. : : : AVANT GARDENING, INC. : : No. 852 WDA 2018 Appellant

Appeal from the Judgment Entered June 8, 2018 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-16-000336

BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER*, J. MEMORANDUM BY SHOGAN, J.: FILED MAY 1, 2019

Appellant, Avant Gardening, Inc., appeals from the June 8, 2018 judgment entered on a verdict in favor of Appellees, Jean and Christopher Nagy, in the amount of $47,840.00. After review, we affirm.

The record reveals that in 2004, Appellees entered into an oral contract with Appellant for the construction of retaining walls. N.T., 5/4/18, at 29. Appellant agreed to construct the walls using VERSA-LOK bricks and VERSA-GRID geotextile reinforcing material. Id. at 32. Appellees paid Appellant $45,935.06 for the walls. Id. at 53. Appellant completed the walls in two phases between 2004 and 2007. Id. at 46. After Appellant completed the construction, Appellees observed defects in the walls including splitting, leaning, tilting, and sinking of the bricks. Id. at 48. Appellees contacted

Appellant, and Appellant returned and attempted to repair the walls over the ____________________________________ * Retired Senior Judge assigned to the Superior Court.

J-A03019-19

next seven years. Id. at 46-62. In 2016, despite numerous repairs, Appellees had the retaining walls demolished and rebuilt by a separate contractor at a cost of $52,690.00. N.T., 5/7/18, at 5.

On January 8, 2016, Appellees filed a praecipe for a writ of summons. On May 19, 2016, Appellees filed a complaint against Appellant, and on August 8, 2016, Appellees filed an amended complaint. In the amended complaint, Appellees asserted claims of negligence in the construction of the walls, breach of contract, and unjust enrichment. Following a nonjury trial, the trial court found in favor of Appellees and awarded damages in the amount of $47,840.00.

Appellant filed timely post-trial motions that were denied on May 29, 2018. Appellant filed a praecipe for the entry of judgment on the verdict, and judgment was entered on June 8, 2018. This timely appeal followed. Both the trial court and Appellant complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issues for this Court’s consideration:

1. Did the Trial Court err as a matter of law by not finding that Appellees’ claims were time-barred by the Statute of Limitations?;

2. Did the Trial Court err as a matter of law and/or abuse its discretion by not finding that Appellees had committed spoliation of evidence?;

3. Did the Trial Court err as a matter of law and/or abuse its discretion by permitting the use or admission of unauthenticated evidence which informed an expert’s testimony?;

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J-A03019-19

4. Did the Trial Court err as a matter of law and/or abuse its discretion by permitting the improper use of a PowerPoint presentation not included in the pre-trial statement and not disclosed to Appellant prior to trial?;

5. Did the Trial Court err as a matter of law and/or abuse it discretion by allowing expert testimony beyond the fair scope of that expert’s report?; and

6. Did the Trial Court err as a matter of law and/or abuse its discretion by entering a verdict against the weight of evidence?

Appellant’s Brief at 5.

We have reviewed the briefs of the parties, the relevant law, and the certified record before us, including the trial court’s August 7, 2018 opinion. After review, it is our determination that the trial court’s opinion thoroughly and correctly addressed Appellant’s claims of trial court error. Accordingly, we affirm on the basis of the trial court’s opinion and adopt its reasoning as our own. The parties are directed to attach a copy of that opinion in the event of further proceedings in this matter.

Judgment affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/1/2019

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Circulated 04/12/2019 12:54 PM

IN THE COURT OF COMMON:PLEAS.:OF ALLEGHENY'COUNTY,_PENNSYL.VANIA., · CiVIL t>IVlSrO�( .

JEAN 'NAG:Yand CHRISTO.Pf.mRN'A'OY� · NO·: ,·: · :D ·o eo3'36: . · · :l·.6�:o . w.1fe. and husband, . · , .Superior Court.No -.: �St·WDA ·zcns

y. OPJNIQN'

A VANT·GAROENING . . .. . ' .INC. . .. 7 J3Y\ Honorable OQmdd.J{/WaUco,Jr•. 706 City-County Building . 414 'Grant .$(r�i.t . Pittsburgµ, PA 15219

COPIES'TO:

Counsel for Plaintiffst Dav-id M.. Tkacik, ·�q1,iire Ti<:A:.€IK LA:W-OFFIQE .9500 Btooktree Rd., Ste. 205. Wexford, Pennsylvania. J$.0.9.Q

Counsel for Defendant: ·n�.oqfs .,M.. Blackwel], �quir:e.- ..... - .. TuE BLACKWELL LAW FIRM: Beneaum ·Trees Building 2;i_tFo'1rtJ1 Av.em1� • .gih· Fl9or . Piltsbutgh,. Pennsylvante' 15222

:Rpbert- b· Lampl, Esquire 'J ames R. Cooney, Esquire nm LAW .OFFJCE·or ·Ro�a:�r o LAMri ijen.e:dupt'Trees Buitdi:ng . 223; Fourth Avefitie,.4\n Floor P.ittsb1,1.i:gh?, ·P�nn�yi;vcIDfa: i.s.222

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IN'TIQwi:0URT{j?f (:;OM¥0N PLEAS Of' ALLEGHENY COUNTY, PENNSYLVANIA .JEAN.NAGY.anct ·C.aRISTOPHER NAGY., GiVIL. DIVISION. wife and husband, : . . No.: <lo Hl-0.00336 Superit)r Court.No» '8$2 W'·PA 2018 V.:

.AVANT·.GARDENING� �.c., .. -'Defeiidant;.App¢1l�nt.

·OPINION

WAL.E:Q,J. I ,. I . I I I 1'his appealconcerds the M�.y 11,.2018, Non-JuryVerdict enteredby the.Courtinfavor.of I ' : .

l ,· the Fiaj�tiffs, Jean N�gy and· Chrlstopher Nagy {''Piain(iffs"); regarding claims. for def�G(iv.e.

I I • ,, •

· retainiiig• 1 walls ccmsiro¢t1;, • "'!, � 'lu� Defendant•.. Av.a�t. Gardening; Inc, ,('·'I)eferid�nt") .. 'The Court � • • • I

·I l I .awarded dama;e� .to P.l�infif;(s .in--�be· amount of Jprty.,seven.'th<'.>µs�ndi eigllt-fiun�rtd. and 'forty I t ' dolhmr($47�84.0.00). b,"ef¢.�dant�ppeal�,.for th� reason;'; set.forth hr this.Qpfo1on,.:the-brg�rshc.mld. . � . ' ,; ·1 . ,.

I be .affirmed, 1 } t, ;PROCEI>URA:t.HISTORY. ' '.a. On .January .�·,·�Q�_6; ..Pfainiiff� filed: a: Prae¢ip� for Writ of Summons lifiofi.'D�{�nda�L J .. ·, ·1 . ., f Plaintiffs. fHed a three ($t�hunt Arilend�d Complaint ag�in.s.t Defendant Q�1 ..Augu·st '8, 2Qi6· for· ! ' . . . � .. .negligence, ·l?rn.��h. of contr�ct,)md. unjust euriohmentSee' Plaintiff's Amended ·.Qomplafot, dated - . ' I .. '., ' I ,.',,. .. ..• ·• l .. August 8;..Z016 .. P:l�jn.tlns· .i�J�ged. tfi_at Defendant negllgentlyconstructed .a.. number of r�Jaining ·.1 •

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wa1ls··f'·th�. ·Walls''.) ion PI.�ln�iffs'· _p·r�per.iy :�t ,3300 Old ·Qak,dal�··Ro·ad,. South ;Fayette:·Towns4iP.i' . ·,1· f .. ! . .• . . .. .. .. . . . . P�nnsylvani'a, :l.$QSq • Id.. Plai;ntw/.�; further alleged that" the construction-project required expertise � .., . .and skills .that Defon.��Q�· :d1di not poss�ss: I'd. I ., 2

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Construction allegedly began in October of 2004. and ended in December of 2007. Id. Shortly thereafter, Plaintiffs informed Defendant of the Walls "buckling," and Defendant insisted it could repair the Walls. Id. Repair efforts began in the summer of 2008 and continued until October of 2015 when Plaintiffs requested that Defendant cease work. Id. Plaintiffs asserted. that · "upon consultation with engineering and landscaping professionals," the Walls were determined to have been constructed incorrectly by Defendant. Id. Plaintiffs further asserted that the Walls required demolition and replacement. Id.

A three-day non-jury trial was held on May 4, 7, and 8, 2018.1 Plaintiffs appeared with · their counsel of record, Attorney David M. Tkacik. Defendant appeared with its counsels of record, Attorneys Dennis M. Blackwell and James R. Cooney.

Defendant presented a Motion In Limine to Limit Claims on May 4, 2018. Defendant requested that Plaintiffs' claim for negligence be limited to acts that have occurred within the two (2) years prior to the issuance of the Writ of Summons. Defendant further requested that Plaintiffs' claims for breach of contract and unjust enrichment be limited to acts and payments within four (4) years prior to the issuance of the Writ of Summons, The Court denied the motion after determining that the Repair Doctrine applied and prevented the statutes of limitations from being tolled. See Order of Court denying Motion In Limine to Limit Claims dated May 4, 2018.

Defendant presented a Motion In Limine to Exclude Evidence Based on Spoliation on May 4, 2018. Defendant asserted that Plaintiffs spoliated evidence to the prejudice of Defendant when they demolished and replaced the Walls. Defendant, therefore, requested that Plaintiffs "be precluded from offering any evidence that Avant Gardening, Inc. failed to properly construct the· retaining walls." See Order of Court denying Motion /11 Limine to Exclude Evidence Based on

I References to the hearing transcripts for May 4, 7, and 8, 2018 will be cited lo as "H.T. Day 1," "H.T. Day 2," and "H.T. Day 3" respectively.

Spoliation dated May 4, 2018. Plaintiff's counsel, Attorney Tkacik, responded:

I, as counsel, informed [Defendant] via letter, certified mail on April 5, 2016, that they must -- if they wanted the opportunity to inspect, document, photograph the retaining walls for purposes of litigation or trial, they must contact me in writing to arrange a time to do· so. And my letter stated that the work would start in approximately three weeks.

At that point, we did have a docket number on April 5, 2016. I subsequently .arranged for a time to meet at the property with counsel for [Defendant], Dennis Blackwell, and we did meet there with the defendant's engineer present. Defendant's expert . was present at that time and studied the walls, took measurements.

Subsequent to that, on July 13, 2016, I sent a letter to Mr. Blackwell indicating that he had not notified me that he wished to be present during the demolition of the walls. And that was something in my initial letter that I notified him that if he wanted tobe present during the demolition of the walls, that he had to let me know. He never let me know. And, subsequently, the walls were demolished.

See H.T. Day 1, at 4, 5. Defendant's counsel did not deny this averment, but insisted that their expert's inspection did not negate the prejudice of the spoliation. Id. at 6. The Court denied the Motion In limine after determining that Defendant suffered no prejudice since Plaintiffs gave Defendant more than two (2) months' time-to inspect the Walls. Id.

After the trial, the Court found in favor of Plaintiffs, and awarded damages in the amount of forty-seven thousand, eight-hundred and forty dollars ($47,840.00). See Non-Jury Verdict, dated May 11, 2018.

On May 17, 2018, Defendant filed a Motion for Post-Trial Relief. Defendant averred the following:

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4: !hi�·. matters: ;r-io«i9r��,�: t: ·· q>.�tt'-s ,ruli�g� � ere··.etro�eous: regarding the· following · ·

a. The Cb,i;trl f��l�d. to (ind that Jhe Plaintiffs. claims were' time-barred by tfie . S.ta(4te:�.f:Ljihit<1,.Hons; Which issuewas raised by Defendant's.Motiorrfor Su�att Ju�gme1n �1,1(l by-Defendant's' Motion in Limine to Lhnit:Ciaims;: I• •' ' • ' • - i · • . .

b. T:he -c;o!(rJ. {afted to .fiifd · that'Plaintiffs had'. spoliated evidence b.y ·qerp_(;)llslti�g'jihe walls constructed by ;):Jefend ant -whicll ·i�su.� was raised. by- D.efend(ne�s\ Mpi1&n· in Limine ·to. Exclude EV.:ioen��: Based on Spoliado.n; . ' .

c.. 1:'he .Cot�ti etr⁹,qeously;permittec.l,eJ!:pe1::t, testimony l��YQJJ(i the fair scope of the ·e�p�h; rep'of.t,. w.liich. was r�i�ed. by: o�jecfio.ps 1),t trial; and � i •; ! .

d... The Cour(ed,�n.eous�y permitted t_l1e admission or· reference to inacbh{��ibie .evidence, Jn�h.19ing; ....

(1)'Th�·\Plai'1tjtf�' expert, Robert J.. Capo's repoz:t, whicherrorwasraised b,t�ef�ndartf?s �oJjon 'in Limine to Exclude Certain.Reports and I Exlfjbits°ta�_g b,y, obJet:tioiis at trial; • t l • .

. ·1 (i}Ai�w.�riPoi�t-.pres.�.o.t�tlo.n' prepateg' by�J>laintiffs-' exp�rh 'E.'o}).ert J. .: I ... C�g.p� w.�kh1 raised. by objections at :trial��rrorw��: . ;_ . :: I ... · (3.)'i)_rawtqg�.and reports prod�cea by·O�t�way. Engineering, whicherror :.I... · · was.-r,ai,$t\gi by Defendant's Motion ·.in· Limine t¢ Exclude, Certain L, I Rep�ft$: �ti.d.Ex·hibits; �n4- I . ' '(4) Rep,brt� P,rt: ,gq_9ect: oy ECS M{o�Atiantic� ·wfiicn error was raised .py :D.efe�d�t' s. Mo.tiori, in )Jmfne to ExducJ�: Certain Reports and � E�ldbhs.·· . . I' . . .. J•, .. ;. . :· . ' Ii· $��J).efendartf?s Iyl.Q(fo.n. fer PosttTrifflf�_elief; datedMay 17-� ·2018. ·' ' . 1

· Defendant teqµ��t�l that· the Court grant. a :i1�w. tri� or- en'ter- ·a judgment no.'twith'stan<3i.:P.g �

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' the. verdict ·hJ fav�:r-,of,;.Pei�tid.ant. :After hearlng oral atgume11t�1..the Court d�ni�d Defondant1:� ' '• I ' ,1· • • • '

. ,, Jvtodon,for:Post-Trfal .R�li��-'. See Orderof Court, dat�i.i May 29, ·2orn! � :p�fend�n·t mis�_s: the· .folleWin;g mauers ·c.omplaine� Qf onappeal: ,I •' ., '

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a. T:h.is..Honorable Court-erred 'as·�a m�tt�r- of.law ar1cJ/9r abused.Its.discretion by ' .... . · np't :.ffu'dfog:. '.J"fia'f. Pla:itififfs'·� .cJaims Were· tiro.�"ba:rre.cl �y tn�· Statute of

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. '. • I> Limitations; •:.'

Hon�t��i4:·���(-t:err:e.d:·a:s··a b, 'f.h.is .m�Jter of faw·a:ncflo.r abused 'its'discretion by .. �· ··. .not ·fin<:Ii.ng\tb�l., ;P.lain\iffs fi�� cemmitted spoli�d· . on ·of evidence; . ' Hbn�t��1(d1urt: q. This er.red. as.a matter of law �.�/or, abused its dj_s.�retfon by ) ppt_mitt�.Qg;,,thei1�j dmis_$fon ,of evidence which was f�pr�p�t�Y authenticated, :o.amely,i.. �,1: . · · .·..... I� •

ii i, .Di:awii1gsJ!IJ,O reportsproduced byGateway Engineering, .and r· • . i ,; I ,

:if. Rep:,..oHs,\pr,o·. d"1�d by ECS Mid'-A:lh111tic;· ':'' . ·1.... . . . ·d.. 'ifhis' Ho.n�raJJJ�I U:ouft erred @..� -� .matter. ·Of i�w an;d/er. abused 'frs. discretion By pefmitt�ngJlr�. ·�&�i&�lQn ·ophears�y. evidence, :namely.:· · . . . !.•. I• • . I (. ,I

i. '.'f.h�:·�}.(:p�r.freport of �.o.Qert.J/Capo, • • t- ': ·• • • �

ii'. Driwin&� �jl.o reports pro(Jµc;ed -�Y Gateway E.ngjne·tfring, and

.iii.; R�µ��ts.br rg4uGed. byECS':Mi_�-Atlan�ic:; ·e.. This flo-�6iib1�: !c(:).tirt ette� as .a· �after of Ia,w �1J.d/.or abused .lts .d}scretiofi'.�:Y pe��(tjpg. ;the: · �fiti'.Y-"Qf a report, the Powerpoint 'presentation, prepared by :·r.i�.�ll!l��,/��-eif�.hiB��hij�;·gdt·.���ViQ���� bee� �i�ted on the. pretrial' statement ·and whicltij�q,npt previously been provided to Defendant; ·� i; · . This: Ho·4ot�·Q.le·"C.91,11.t:erre'a �.s. a matter :oflaw �md/or..abused Its d.i.�cre.tion ·by ·,'.... .•. :�er��tth)g;,t��:·p,:�tf�esfim0lly·b�yond Ihe,:(a_ir scope .of. the expertreport; and 1

. ' I •, I ' ·g.: Thi$: ijb� 9ra.\>Ie.:C(mrt.etred. ;�s. · ir: matter of law ·and/ or· abused Jts:. discretion. by :eh�efjp� l·%;i:�i�t,���i�$t ·�ii� ·':"ii�t P.� e.vldencet fr1s9f<1-r as. the Court f�'ile.d. �o . ·��� 'int?.?Cf?�·�:ttb�ti:���· all, w.al:l(were :�?il�trn�te..d �e�i�en_tlr ox -�e_r� m. •'·;'1). breach of-wP,J:r:a.�,t;_ and 1ns9far as Jhe Court failed ·to.: take .mto acconnt · the age ofth� w�l,I(s·�·t-,itl-�epr�G,i�tfon. .. . �-·.. . .. ,. ,. ' . (

l . See i;)e,fendanfs·.Con,¢.i!e:·$tji.tement of :t,Aa.(ters- Compla,h1�.d of oh· App�.�J Pursuant to '.P.�.�,C;P •. ) •,. '192:S(b),. da,t�d July 3; 201$.\ · · . "' l ; .,.... .'

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I n, 'FACTS·. '· I •I •

:- II ·1. • Testfmcm.y<oUht'Pitt�e� I ·i .'. • ..

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a. Plaintiffs, Jean and Christopher Nagy. . . Jean Nagy testified that in 2004 Plaintiffs entered into an oral contract with Defendant's

managing supervisor, Roland Gaglia, for the construction of five (5) retaining walls in their backyard with "VERSA-LOK" stone and "VERSA-grid geo textile reinforcing material." See, H.T. Day 1, at 29, 132, 135; H.T. Day 2, at 5; Plaintiff's Exhibit 3. Ms. Nagy testified that Plaintiffs believed that Mr. Gaglia was capable of properly constructing the Walls since he agreed to do the project. See, H.T. Day 1, at 135, ·136; Plaintiff's Exhibit 3. Ms. Nagy further testified that Plaintiffs believed that Mr. Gaglia understood how to use VERSA-LOK and VERSA-grid geo materials because Defendant's proposal and acceptance read: "All work to be completed in a workman-like manner according tostandard practices." See, H.T. Day 2, at 35; Plaintiff's Exhibit 3.

Construction was planned in two (2) phases and lasted from 2004 until "November or December" of 2007. Id. at 45, 47. Ms. Nagy testified that when she asked Mr. Gaglia if a building permit would be necessary for any of the construction, he told her it would not because none of the walls would be above four (4) feet tall. See H.T. Day 1, at 41, 42. Ms. Nagy testified that Mr. Gaglia built the Walls first and "then backfilled [them] with stone." Id. at 108.

Ms. Nagy testified that after completion of the construction of the Walls that at "various points throughout the whole wall sy�tem ... [Plaintiffs] were seeing splitting, leaning, tilting[,] sinking[,] and spacing" of the brickwork. Id. at 48, 60. Ms. Nagy further testified that she feared for her children's safety since bricks from the Walls were "falljing] down by themselves].]" Id. at 71, 142. Ms. Nagy presented photographs of the Walls taken during the periods of 2004 to December 2016. She testified that the photographs depicted the deterioration of the Walls during that time. Id. at 44, 104; Plaintiff's Exhibits la, lb, 16a, 16b.

Ms. Nagy testified that Plaintiffs paid Defendant forty-five thousand, nine-hundred and

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f

thirty-five ·dolla:ts,. !lIJ.� sbt' . cents {�45,9.35.0(?) to construct the Walts·. Id: a.t 49., $.3} ._Plaintiff1s ·· I ·1 · ExhJpifs; 2..4. Site .als� .te�fi:fiep. that.by October. 20iS th.e \Y·ans needed to .oe ��i:n.9}:Isbed :and 1, replaceddue' to :safe.�y ·co�cerns...J4.. at 71,. 7-2•. 'Ms� Nagy t��fified that Plaintiffs.then liired C&R

Landscapingjo reeonstruct.the W�Ui using the existing, bri.9k:;·. /d. at: 73;, and that Pfail\fiffs.pai4.

.·,. G&R. Landscaping, fifty.-fivo thousand, six-hundred ,arid. nin�w d.oilar-s ·.{$52,69.0.00) Jor the I . I .� reconstruction, /.ef,; '.at -102; fiaintiff's Exhit,i.t ib . t._

b, Roland ·Gagiaa, · Managing :Super:v1spr 'for· AvantGard.ei:ii�g,. fo-c •. . hi • •

Mr•\,Gaglia is. Hie. m�n11gi. I .. n.g· :;Jl pervisor of Avant 'Gardening, Inc., and is.married, to its "sole

owner," Sec, 'a 1\ Pai -2:. at.147. 'Mr. Gaglia .testjfi�.d. that· he .had l>µilt "similar walls" fo: th� past,

. .. Atfhe beginning. ohbe project, Mt. ·Gagli�·t�stified 'but none "that big," J4.\it 119 ;:., . that he believed

JMJ:an engineer was nt>f necessary and .he: did .not Investlgate Iocal building. ordinances. Id. ar 151'-, ' ,. ·.152. During contract negotiations Mt. Gaglia failed, to: inferm Plaintiffs' thar "the scope of [the} . .. project was beyondanything' [he] had done. before" since he.started.in business in 19.86 . .Jd, l!d4'7. 1 , . II I

1$9. ·1 l·_ ·, i Mr, Gaglia tesflfied 1ili�t, he .had attended "some 'training classes" .reg�rdfog VERS'A..LOK; I I '"[�1ut nothing th..at was real, qUcH.e, format" Iii. at 174. Mr. O�gii!'l. further 'testified· th!lt at jhe time I· o • ,, • ' ,, .I ·� •

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I I en1Pne�_1:(.;J" Id: 'at 184 .. II I

I 2� C�ey. Hartz, B.u�lding· {fod� Official:,

I GaryJi-i.ar:t:z:; 'thesbuilding <;Qde· official fot South Fayette Township, testified. that, theWalls I '• I J • ' •

' ·�s· -�epk:ted in ,a 2�Q7>pJ1ot,ogtaph would have .required a building: permit and' 'an engineer's I . � ptirs4�t "drawing" with a.seal . to Art Vl, Ord.. No .. 230A,. .§.§1 163-1 et- seq: Qf-'tht To:w.nship 6f . . .' -

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Mr. Hartz st�ted that "you would need a permit because anything over four feel in height I think would have a bigger chance of failing and needs to be engineered to look at the loads imposed on them." See, H.T. Day 1, at 80. Mr. Hartz further explained that if any portion of the Walls were taller than four (4) feet in height the entire project would require a building permit. He added that · portionts) over four (4) feet would require an engineer. Id. at 80-82. 3. Expert Witness Testimony.

a. Plaintiffs' Expert, Robert Capo.

Plaintiff's expert, Robert Capo, P.E., was qualified to testify as an expert in engineering.. See, H.T. Day 2, at 72. Mr. Capo testified that he examined the Walls during site visits in October of 2015, June of 2016, and July of 2016. Id. at 70, 82. In developing his opinion, Mr. Capo also relied upon a Gateway Engineering survey and a C&R soil report. Id. at 70, 71. Mr. Capo further relied upon the "industry standards from VERSA�LOK and the NCMA, the National Concrete and Masonry Association, which the segmental-wall industry relies on for engineering information and . engineering criteria." Id. at 81, 82.

Mr. Capo opined within a reasonable degree of engineering certainty that the Walls "did not follow the standards of practice for construction].]" Id. at 101. Mr. Capo stated that the Walls were subject to a "fair amount of movement" and were "coming apart." Id. at 74. Mr. Capo testified that the design and construction of the Walls required an engineer and a building permit pursuant to Art. Vl, Ord. No. 230A, §§ 163-1 et seq. of the Township of South Fayette's municipal code. Id. at 83.

Mr. Capo testified that the VERSA-LOK's manufacturing requirements are "more stringent than any local code would be." Id. at 100. Mr. Capo further opined that a

review ·of the site plan ... showled] that [the Walls] were closer than the requirements for VERSA-LOK, thereby requiring an engineering design and soil

reinforcement by the way of geogrid soil reinforcement. This reinforcement was· · riot included in the original wall installation but was required due to tiering and slope conditions.

Id. at 103.

Mr. Capo explained that the 'Walls were built without required geogrid except "there was

one wall rebuilt at a later date" where geogrid was installed by Defenda·n t incorrectly. Id. at 99. 1

Mr. Capo further testified' that the geogrid was supposed to be perpendicular to the Walls, but instead a small amount was installed parallel to the Walls. Id. at 97,98. Mr. Capo opined that Defendant also constructed the Walls without proper drainage.1d.

b. Defendant's Expert, Lou Marsico.

Lou Marsico, P.E., was qualified to testify as an engineering expert. See, H.T. Day 3, at 56. Mr. Marsico testified that he observed "areas [of the Walls] that needed designed by professional engineers" and that "alot of [the Walls] failed." Id. at .60. Mr. Marsico testified that VERSA�LOK "guidelines ... clearly states an engineer should look at it." Id. at 53.

Mr; Marsico opined that "engineering or geogrid" was required for "14 percent" of the Walls (Id. at 73) and that geogrid would not have prevented all of the Walls' failures Id. at 84. Mr. Marsico further opined that the failures were caused by "not having an engineer design per the requirements of VERSA.LOK." Id. at 84: 4. Defendant's Attempts 'to Repair the Walls.

Ms. Nagy testified that the Walls began "moving" shortly after their installation. See, H.T. Day 1, at 33, 48. Ms. Nagy credibly testified that

[e]very time [Mr. Gaglia] would come out, for whatever reason, we would grab him and say, hey, we are concerned about this. Come look at this. He would examine the areas we were concerned about, and, like I said, very often, although it's not -documented, he would ·CQme back and restack areas and make it look a little bit better.

.. ··t ·-··:· . . ", !.:� •• .:

Id. at.60.

., . .Mt. G�gU.� 9.:ffered tc. repair M�. .Nagy fost�.fied·;�.hat: .the -w-�It&Jr.ee: of eharge as. rtoteq :.in. aIJ. "' . . 1 . .· . . • . .

'invoice tlated-.M�Y: f6.? ·iQ�9� fd.-,at46·;:"PJ�.iqtiff.'·s.. Exhibit·2. Ms. Nagy-credibly'testified tfiaP�1r.

.Gaglia.had :ahem�ted:·tQ rep�ir the Wallii\J�el'. Q.1,Js· times before May· 2�. :2009, butthat he.il'oted.:i�· 0

. . r . . '. ·.. · 'in an 1p.:voic�..onfy once, $.�e:;:·:a::r. D:{t 1,. at 47: Ms,1 Nagy explained that ''w.e started ralkingto . ' [Mr. G�gHaJ.pretty·:eirly'aft�t:th�.copstruction ... abeut.someof the issues.we wereseeing," fd.. at . ' . 47; 46. '.Ms·. N'�gy_ <1:r;dibly testifi��· that.Mr. Gaglia returned :at te�st once .pt�r· year. for various �· I .

purposes and' ·w.ouJ<;f':m_aJce .repairs, to �he Wall$ wbfie 'he was_ there. See, n.r, :.p_�y 2,: at 38, ,She

. J�rtlier credibly :fe!itifi��- t��J she cl.Id.· no): commence: a faws�k�g�ipstO.efendant because. sh.� relied . . ... ·. . '

'Oii Mr:�..(Jagii�!:s..st�te���t� that.he.·�.uid Jix the ·�alls; Id. ar 37� ·�$. � . M� . .Nagy, tesJified \haGn: Ma;y,=of it)15· Plaintiffs asked Mt.. 0'.�glia to cease his' "band-ai'd1' . • .. ·1 . . .

repair eflfotts:aria�in��� ·a·.peoo.ane·ni repair w.ith._g..eogd.9,,/d. at 61, 62, She fuh�er·testifi �� -that Mr. .. • ! . . . ..

Gaglia agreed :ana: 'bf.fJre�, t{> r�mec\y· the defective Walls.wttb he�y.y tquip�ent 'and.geogrid before . • I " . . .'

- . wint�r.;,ld .Ms·.'Nagy. te.. �_ti£fed-· ·, tlia:fi.ri.:()ct6berQf2015 Defendant's employeesarrived.on Plaintiffs! .

...i..... • • • • ••

equipment er, _g!;}�grid::· ��. ar ·68.; Ms.. Nagy .�rth�r testi:tied. that Plaintiffs imme<!ia.te.ly. asked . qefendant's·-emploS�¢s. . to .Ieave since theywere "wasting. tli.�ix H:m,e .at our .slredoing: the same · ,· ' ::.··

'* **

. ·lII., STANDARD OF imv.mw . ·' -� J:h.�· st�n,fard of �ev-i�w -tegatd'ing a -tr-I;ii �o.ur't's· decision to· grant ·or �epy.· a spoliation

u

.,\ ... j .!. .

sanction is abuse of discretion. The Superior Court of Pennsylvania held:

When reviewing a court's decision to grant or deny a spoliation sanction, we must determine whether the court abused its discretion. Croydon Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa.Super.1997) ("the decision whether to sanction a party, and if so the severity of such sanction, is vested in the sound discretion of the trial court''), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998). "An abuse of discretion is not merely an error in judgment; rather it occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, . prejudice, bias or -ill-will." Pilon v. Bally Eng'g Structures, 435 Pa.Super, 227, 645 A.2d 282, 285, appeal denied, 539 Pa. 680, 652 A.2d 1325 (1994).

Mount Olivet. Tabernacle Church v. Edwin L. Wiegand Division, 781 A.2d 1263, 1269 (Pa. Super. Ct. 2001).

· When reviewing the trial court's admission of expert testimony, the Superior Court of Pennsylvania held that "[t]he admission of expert testimony is a matter within the sound discretion of the. trial court, whose rulings thereon will not be disturbed absent a manifest abuse of discretion." Woodard v. Chatterjee, 827 A.2d 433, 440 (Pa. Super. Ct. 2003) (quoting Walsh_ v. Kubiak, 661 A.2d 416, 419 (Pa. Super. Ct. 1995) (en bane)).

The standard of review regarding admissibility of evidence is abuse of discretion or error of law. The appealed ruling must also have been prejudicial to the complaining party to be reversed. The Superior Court of Pennsylvania ruled:

"The admission or exclusion of evidence is within the sound discretion of the trial court, and 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 oflaw." B.K. v.'J.K., 823 A.2d 987, 991-92 (Pa.Super.2003). "Thus our standard of review is very narrow .... To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party." Hawkey v. Peirsel, 869 A,2d 983, 989 (Pa.Super.2005) (citing Turney Media Fuel, Inc. v. Toll Bros., 725 A.2d 836, 839 (Pa.Super.1999)). ·

McManamom v, Washko, 906 A.2d 1259, 1268-69 (Pa. Super. Ct. 2006) .

.. * *

IV. DISCUSSION

(Defendant's Matter Complained of on Appea1 (a.): "This Honorable Court erred as a matter of law and/or abused .its discretion by not finding that Plaintiffs' claims were time-barred by the Statute of Limitations;") I

1. The Court Properly Found that Plaintiffs' Claims were Preserved Under the Repair Doctrine.

Under 42 Pa.C.S. § '5524, actions for negligence must be commenced within two (2) years . of the injury's occurrence or they are time-barred. Actions upon a contract must be initiated within. four (4) years of the alleged breach of contract pursuant to 42 Pa.C.S. § 5525. The Supreme Court of PennsyJvania, however, recognizes the repair doctrine. "Under the repair doctrine, the applicable statute of limitations will be tolled where the evidence reveals that repairs were attempted; representations were made that the repairs would cure the defects; and the complaining party relied upon such representations." Gustine Uniontown Associates, Ltd. v. Anthony Crane Rental, Inc., L.P., 842 A2d 334, 3�4 n.8 (Pa. 2004) (citing Amodeo v. Ryan Homes.Tnc., 595 A.2d 1232, ·1237 (Pa. Super. Ct. 1991)).

Based upon Plaintiffs' credible testimony and Mr. Gaglia 's admission, the Court found that Plaintiffs refrained from seeking a legal remedy against Defendant because they relied upon Mr. Gaglia 's repeated representations that he could repair the Walls. The Court further determined that the statute of limitation? began to run when Defendant's repair attempts finally ceased in October of 2015. Plaintiffs' praecipe for writ of summons against Defendant on January 8, 2016 was, therefore, timely.

***

(Defendant's Matter Complained of on Appeal (b.): "This Honorable Court erred as a matter of law and/or abused its discretion by not finding that Plaintiffs had committed spoliation of evidence;")

2. The Court Properly Found that Plaintiffs Did Not Spoliate Evidence because Defendant's Expert Inspected the Retaining Walls and Defendant Did Not Suffer Prejudice.

-e.

�·

The Supreme ·<Co1,1� pf i>epnsy.{vania has long 'held. that" .,. the ,destr.u:ctidil .or withholding: ' .

· ·of° evidence which a tfa-tty :pug)it 'to produce. gives. rise to'. a presumption ·1.!n£�\'.Prable· to 'him; as his • • • ', I • ''

;<.:Q���c;J may proper!}'.· �e ·a(ttibiHtd to nis supposed.knowledgethat'the tm th would operate against

hint'; McH�gh vdJ.cHugh; 40 A. 410, 411 (Pa .. JS.98).

· In Schr.oe4er Vi �om,,. Dept. :of Ttansp., 710 A,1<1:i) (J'ii'. 1998); the ·Petinsylvanil!- ·s.1,1m:eme·

;, Court ado_pted \he· TIJ.ird 'Of:rcuit Court' of.Appeals·' standards for !!Pol.i.atfon,of evldenee ifs. outlined ... in.Sihmid v. · Milwaukee Eie�tri� fpQi Cprp:-; 1:3: 'F:3d 7i5, (3tl Cir. 1994:). Sr/6.ro.e.4.er._, supr.a:,at. 27 ,, (�jt{ng,S�hmid: s.upra at:81):.. The .Court-:in,$chro�der adopjed the followfas ·staiidards from Schmid.: . ' In de_ciding tl.ie. prbper. penalt-r for the spdliaiiQn o.f -�videi,t.ce,. the. Third Circuit fQun<f relevant, (lfihe degree. of fault <.>.f ¢.e· party who altered' erdestroyed ·Ule- evidence; -{2) th� .g�gi:��· of'p,r�judice suffered by- the oppo�ing: p,atty, and ($): the- avliil4bjlify.·.oq lesser sanction 'that·w'ill. protecttb-�-Qppos1ng_ par.tY.;s,rights and deter future fsirnilanel:lnduet.' . , .. ·.. t

Schroeder, supra. at 11 ( citingSchmid; .supra at W).

The Superior c�)U·�. -Qf reI)Jlsylvania has 'ruled that H .tne Go1.1.n.. _fJ�d:nhat evidence was .spollated' by a,par�y,_ iliep. the-Court ·" ... ��oullsilect the: least onerous ·saiictiort,cQmmeP.il.ur�t�:wfrh ' . the. spc_;ti;itoi'�: fault and theother ·p-arty's ·prejudice:"·Uoun.t O#vet Xab'e.r.n.acle Church .v.. Edqin L ..

· Wiegand Div., 781. A,..�. 1.t6�; f273.:(J>a.. .Super, Ct, 2001 ), '(citing:Sch112id, 'supra. at. '79). In jti�y . ' '

trials, a. remedial instruetfoii · to: the jl,!ry' is otep th'e appropriate saiic:tfotY .. $chrgcti�r,..$Uprfl at. 26� . • . l . ' . -

'.27 . .FuJth.Clr-; "[w]her.e fault and prejudice are inQt s�vere,·,�ismissal :is·foa:pptoptiaie/''Mount Oliy�{ Tdb�rnacle, �upr.q. ap110 (c:;iting Sdiroecjer,; supr.a at'27, 1.S,;S�hmi.�';, supra at -81) .. : I ' • •

As addre��ed,supr.ai'.Pt'a.i!i(iff� gave Defendant ample.opportunity to i'iJ�p�f;t·th�--d�fectiye

ret�ining walls'prior toi:�enioliifon. See, Procedural ':t:Jistory supra. at 4. Plaintiffs' counsel averred

'thai::Defendant's cp_µ��l and: Defendant's engineer ''studied the w?ll�;· tandJ tookmeasurements, "2 "'\ \ I

2 Neither'.Defendant's,1:911n{!;l iJ�(Mr. �arsito. denied this averment. (.

Id. Plaintiffs notified Defendant ori April 5, 2016 that they intended to demolish and replace the . dangerous walls within three (3) weeks and urged Defendant to investigate the. Walls prior to

. demolition. Id. Plaintiffs did not demotish the Walls in April. and Defendant had more than . two (2)

months to inspect them. Plaintiffs notified Defendant again on July 13; 2016 that demolition was imminent and. urged Defendant to inspect the Walls. Id.

The Court determined that Plaintiffs' fault and Defendant's prejudice, if any, were · minimal. The Court, therefore; properly denied Defendant's request that Plaintiffs "be precluded from offering any evidence that [Defendant] failed to properly construct the retaining walls."

***

(Defendant's Matters Complained of on A1;meal (c.) and (d.): "This Honorable Court erred as a matter: of Jaw and/or abused its discretion by permitting the admission of evidence which was improperly authenticated, namely: drawings and reports produced by Gateway Engineering, and reports produced by ECS Mid-Atlantic. This Honorable Court erred as a matter of law and/or abused its discretion by permitting the admission of hearsay evidence, namely: the expert report of Robert J. Capo, drawings and reports produced by Gateway Engineering; and reports produced by ECS Mid-Atlantic."

3. The Court Properly Overruled Defendant's Hearsay and Authentication Objections to Robert Capo's Testimony because Expert Witnesses are Permitted to Rely Upon Outside Reports and Information When Giving Their Opinion. ·

When determining the admissibility of an expert's opinion that relied upon reports not in . evidence, tlie Court is bound by the appellate precedent in Duquesne Light Co. v. Woodland Hills School Dist., 700 A.2d 1038 (Pa. Commw. Ct. 1997). Similar to the case sub judice, an engineering . expert in Duquesne Light Co. opined regarding a defectively constructed embankment. The expert's opinion utilized data and soil reports conducted by a non-testifying expert. Id. at 1049-50. Opposingcounsel objected stating that the information therein was inadmissible hearsay. Id. at 1050. The trial court, over opposing counsel's· objections, permitted the expert to iestify and the Commonwealth Court affirmed. Id. The Commonwealth Court, citing Pennsylvania Superior *16 Court precedence, .stated: .

Pennsylvania courts r.ecognize an exception to the hearsay exclusionary rule for reports on which experts reasonably reJy in reaching their professional conclusions. Primavera v, Celotex Corporation, 415'Pa. Superior Ct. 41, 50, 608 A.2d 515, 518 (1992},petition for allowance ofappeal denied, 533 Pa. 641, 622 A.2d 1374 (1993). Experts are permitted to express opinions based upon reports, not in evidence, provided that such reports are of a type customarily relied upon by experts in the field in making professional judgments. Id. at 50, 608 A.2d at 518-19. However, an expert is not' permitted to "repeat another's opinion or data without bringing to bear on it his own expertise and judgment." Id. at 52, 608 A.2d at 521.

Id. Mr. Capo partially relied upon reports and information from Gateway Engineering and

ECS Mid-Atlantic when drafting his report dated November 9, 2017. His reliance on others' '·

reports was permitted under Duquesne Light Co. because, as Mr. Capo credibly explainedit was customary for engineering experts to utilize such reports when making engineering determinations. Mr. Capo, moreover, did not merely "repeat" the Gateway Engineering and ECS Mid-Atlantic reports, but he combined his own professional analysis with the reports' data after visiting the Walls and inspecting them. The Court, therefore, properly determined that Mr, Capo's opinion, while relying on report� and information not in evidence, was admissible under the standard.set forth in Duquesne Light Co.

***

(Defendant's Matter Complained of on Appeai' (e.): "This Honorable Court erred as a matter of law and/or abused its discretion by permitting the entry of a report, the Powerpoint presentation, prepared by Plaintiffs' expert which had not-previously been listed on the pretrial statement and which had not previously been provided to Defendant;")

4. The Court Properly Permitted Plaintiffs to Displ�y a Micr�soft PowerPoint Presentation During Robert Capo's Testimony because it was a Visual Aid and It Did Not Go Beyond the Fair Scope of the Expert Report. ·

The standard for permitting visual aids during trial was articulated by the Superior Court of. Pennsylvania in Com.nionwealth v. Rickabaugh, 706 A.2d 826 (P_a. Super. Ct. 1997). In Rickabaugh, the defendant objected to the Commonwealth's use of charts and photographs as

visual aids during trial. Rickabaugh, supra at 837.. Defendant objected on the basi� that "the chart's �ntents were not reasonably based upon tbe facts in evidence, and, therefore, the chart's use" was impermissible. Jd. The Superior Court, citing the Pennsylvania Supreme Court, stated:

"Visual aids .may be used to assist the jury in understanding the evidence in - appropriate cases, and permission to do so is within the sound discretion of the trial ·judge." Commonwealth v. Pelzer, 531 · Pa. 235, 245; 612 A.2d 407, 412 (1992). This rule applies equally to demonstrative aids used .during the actual trial phase and during the parties' opening andclosing arguments.

_ Id. (Emphasis added).

· During trial, Plaintiffs utilized a Microsoft PowerPoint presentation ("the PowerPoint") on a projector screen to aid the Court and illustrate Mr. Capo's testimony. Defendant initially objected to the PowerPoint as an exhibit because it was not disclosed or referenced in Plaintiffs' pretrial statements. Plaintiffs responded that it was a visual aid to assist the Court in understanding Mr. Capo's expert testimony and that it was merely a presentation of the photos and information from Mr. Capo's report. Defendant then consented to the PowerPoint on the condition that "it doesn't go beyond his expert report. If it does, I'll have objections to that." See, H.T. Day 2, at 61.

The PowerPoint, which was reproduced in a physical handout, contained photographs and information that were disclosed in Plaintiffs' pretrial statements. The PowerPoint in itsinitial slides, however, also contained photographs of example retaining walls that were not disclosed in *18 either of Plaintiffs' pretrial statements3• The Court, therefore, precludedthe non-disclosed photos. Id. at 77.

Defendant objected to the nineteenth PowerPoint slide because it was not disclosed in the pretrial statements. The slide was titled "Sectional View of West Walls" and depicted Mr. Capo's hand-drawn view of how far apart the walls were. Plaintiffs initially used the slide as a visual aid, but later the slide was admitted in rebuttal of Mr. Marsico's testimony. See, H.T. Day 3, at 95, 118�19; Plaintiffs' exhibit 18.

Based upon the use of the PowerPoint as a visual aid and the preclusion of undisclosed photographs the Court did not err in permitting Mr. Capo to use the selected portions of the PowerPoint presentation.

"'* * (Defendant's Matier Complained of on Appeal (f.): "This Honorable Court erred as a matter of law and/or abused its discretionby permitting expert testimony beyond the fair scope of the expert report;")

S. Robert Capo's Testimony was Within the Fair Scope of His Expert Report •. [This section incorporates the analysis addressed supra under Discussion sections 3 and 4.]

When assessing whether or not an expert's testimony goes beyond the fair scope of the report, the trial court must determine if the opposing party was given "sufficient notice" of what content the expert's opinion would contain. The Superior Court of Pennsylvania ruled:

No "hard and fast rule [exists] for determining when a particular expert's testimony exceeds the fair scope of his or her pre trial report," and we must examine the facts and circumstances of each case. Mansour v. Linganna, 787 A.2d 443, 445�6 (Pa.Super.2001) (quoting Wilkes-Barre Iron & Wire Works, Inc., v. Pargas of Wilkes-Barre, Inc., 348 Pa.Super, 285, 502 A.2d 210, 212-213 (1985) (internal quotations and citations omitted)). In doing so, we must ask the overarching question, which is whether the purpose of Rule 4003.5 is being served. Id. We are

3 Plaintiffs filed a Pretrial Statement on March 15, 2018 and an Amended Pretrial Statement on April 23, 2018.

guided by the foUowing:

[I]n determining whether an expert's trial testimony falls within the fair scope of his pre-trial report, the trial court must determine whether the report provides sufficient notice of the expert's theory to enable the opposing party to prepare a rebuttal witness. In other words, in deciding whether an expert's trial testimony is within the fair scope of his report, the accent is on the word "fair." The question to be answered .is whether, under the particular facts and circumstances of the case, the discrepancy between the expert's pre- trial report and his trial testimony is of a nature which would prevent the adversary from making a meaningful response, or which would mislead the adversary as to the nature of the appropriate response,

Feden v, Consolidated Rail Corp., 746 A.2d 1158, 1162 (Pa. Super. Ct. 2000) (citations and internal quotation marks omitted).

Defendant objected three (3) times during trial claiming that Mr. Capo had testified outside the fair scope of his report.

a. Defendant's First Fair Scope Objection - Failure to Disclose How Mr. Capo Reached His Opinion.

Defendant's first fair scope objection was as follows:

To say that Mr. Capo did his own measurements and reached his own conclusions when he arrived at his opinion, none of these measurements regarding his own conclusions are set forth in his report. He doesn't say, I went out to the· field, and I measured this or I did this soil test and I determined this. It's not in there .

. Under Rule 4003.S(c), an expert is bound by his report. He cannot go beyond it. So our objection is if he.intends to now change what his proposed testimony would be, that he didn't rely upon Gateway or he didn't rely upon the soils report done by others but.did his own investigation, it should have been in his report, and it wasn't.

See, H:T. Oay 1, at 13. The Court overruled the objection largely because Mr. Capo's report indicated that he both investigated the site and relied upon attached outside reports from Gateway:

On October 13, 2015 and at the request of Mrs. Jean Nagy I performed an initial review of the Versa-Lok Mosaic segmental retaining wall system located in the rear yard of the property .... The following recommendations were made after the initial site visit on October 13, 2015[.] ... In addition, Gateway Engineers supplied a site plan with detailed elevations and this engineer included a wall numbering layout to supplement the July 13, 2016 demolition review.

. �: :· · .. t· 1 .

See, Robert J. ·¢iipo'�.. R(ip6tt', cl@.t�� Noyember ·9, ·201 i Based· po. these, referem:;e� •.Oef�ndaiit . . ·:1 .

,d��riy had. sufficient notice _ef fhe content .and basis of Mr. Capo-•·s -�pfoion .. . ·, .

b� D.ef.e1J��llf.s..S�c;9.n:d ,airS.co:��·O.bjection...., Mr, C.apo.'s Refer¢1we,t'o H.is: Qctob.�r: .,. l�, 291s: • :Q.�p. • Qt,t within• hi� �Qvember 9�. 201:7 Report, t . � I . , .

Defe.n�_ant o_{?j�tt.ed a second time to Mr. Capo.�s te�timony,. ·sfatin_g that Mr. Capo coµ.I.d.

not. rceference,-a�. ()'cto�er 1?, .2(),15 report ·.("20 IS Jt.eport") he· had. writ.ten, See; H. t. Day 2,, af 80'. De.f�l'!cfant·argued·th�t�e.sJite the O�tob.er·R-eport being referenced within Mt. C�po's N:ove�b.et

9� t017 report, Defen�aiit ·did not receive a copy· -ef .the 20l-5� Report and .fyfr. Capo, therefore, l . . · sb.o�ld have ..been precluded from referring-to i� ..-fd., The Courtproperly overruled :D.efendant's' I objec;:Oon, on the: grcn,m�� jhat the· November· 9; 2017 report substantially quoted the 2015'Reportis '· I I ,,• recommendations and th�t �efenda:nt had sufficient -notiq� of �ha:t: Mr..Qlpo'·s .testimony- would t •

entail,

e, Defendant':s 'Tltfrri_.'Fair S�<,pe :(Jbje_ctioil - M;r•. Capo's Rebuttal Testimony., Defend�])� ebjected' ,a: t�ird time te.Mr, Capo's testimony when Mr. Capo testified ·as a· . �. -. . .

rebuttal witness to ,Mr; Marslco, Mr. Capo· was. rebutting Mr:.. Miil'$1<;0''s· testimony· regarding. "the - .. I . f ... slope of the pt�pet�Y·a:n4 v�1fous measurements-used to-calculate it1·1·w:1:1�n Defendant's counsel _ ' ,obj�cted,, stating; Your Hc;in,Qf, I'.qt.gd{ngto p\:iJect"a'iid -act1,11tilY. 1'10Ye to, ·strike·:a,ll of his· testllJ'I01':Y' \' · lie�u.s.e. none of :fl'i�' js::cqntained -witbfo his, expert .report, 1 realize he s.a rebuttal ',·.·. .'.. witness .�tit· h_e ·<;.�n\ gp,ouf there �pd xe.buthis.o�I), r�po.rt which i$-what he 'is doing, · .�. But there's n:othi�� 'in ·4ls report ... that has these-measurements or-discusses l these walls or tal¥s ;apQut any ,ofthi�, I! . $.ee,.H:T. Day-�,•.lJJ 94,,:95,.:i07. the Court.ov.er.rµl�� thisthird objection becatis-e,Mr:.,CaplfWas: , .. i permlt�e'ti. . f t ,·

to .give :rebutt_�J testimony as of'right; The CQ\t�t further overruled. the objection \>�<;J1µse . : • .

i. Mt.' Capo was not ·•1,re}iµ((tin�j his\ own report," but instead .he: was rebutting Mr., Marsico':s 2-0 . \.

I , .. .. I . .-: .. r, . 6,,· t·�.· ...

testimony. Regarding rebuttal testimony, the Pennsylvania Supreme Court has ruled that: "A witness may ;,. be impeached with proof that on a previous occasion he made a statement. inconsistent with his present testimony as well as by the testimony of other witnesses whose version of the facts differ from that of the witness being impeached." Commonwealth v. Hamm, 378 A.2d· 1219, i226, n. 11 (Pa. 1977) (emphasis added). Furthermore, this Court has held that "[a] litigant has the privilege of offering rebuttal testimony, and where the evidence proposed goes to the impeachment _of the testimony of his opponent's witnesses, it is admissible as a matter of right." Flowers v. Green, 420 Pa. 481, 484, 218 A.2d 219, 220 (1966) quoting Schoen v.Elsasser, 315 Pa. 65, 172 A. 301 (1934). ·

For the reasons addressed supra, the Court determined that Mr. Capo's testimony was within the fair scope of his report and that Defendant was never prejudiced by unexpected testimony or by "trial by ambush." The Court, therefore, properly denied Defendant's requests to preclude Mr. Capo from testifying.

***

(Defendant's Matter Complained of on Appeal (g.): "This Honorable Court erred as a matter of law and/or abused its discretion by entering a verdict against the weight of evidence, insofar as the Court failed to take into account that not all walls were constructed negligently or were in breach of contract, and insofar as the Court failed to take into account the age of the walls and depreciation.") ·

6. The Court Properly Found by a Preponderance of the Evidence that Defendant was Negligent and was Liable for Plaintiffs' Damages.

To succeed in a negligence action the plaintiff must prove by a preponderance of the evidence "four elements: (1) the defendant had a duty to conform to a certain standard of conduct; (2) the defendant breached that duty; .(3) such breach caused the injury in question; and (4) the plaintiff incurred actual loss or damage." Pyeritz v. Com., 32 A.3d 687 (Pa. 2011) (citing Krentz

v. Consolidated Rail Corp., 910 A.2d 20, 27 (Pa. 2006)).

The Court found by a preponderance of the evidence that Plaintiffs' Walls were clearly · defective due to Defendant's negligent construction. Any impact that the Walls' age or depreciation may have had on their structural integrity was eclipsed by Defendant's negligent and defective workmanship. No evidence, furthermore, was presented regarding the "age" or "depreciation" of the Walls.

Defendant owed a duty to Plaintiffs to construct the Walls in accord with industry standards for VERSA-LOK retaining walls. Defendant breached its duty by undertaking a construction · project that required VERSA-LOK and geogrid when, as Mr. Gaglia admitted, he lacked the experience to do so. See, H.T. Day 2, at 147. Mr. Gaglia, moreover, failed to engage an engineer or seek permits as required for the project. See, H.T. Day 2, at 83.

Ms. Nagy credibly testified after completion of both .Phase 1 and Phase 2 of the Walls " ... we were seeing splitting, leaning, [and] tilting." See, H.T. Day 1, at 48. Ms. Nagy also credibly testified that the issues were occurring at " ... various points throughout the whole wall system, both in Phase 1 and Phase 2 ... "

Plaintiffs' expert, Mr. Capo, credibly opined that within a reasonable degree of engineering

certainty that the Walls" ... did not follow the standards of practice for construction ... [.]" See, H.T. Day 2, at 101. He further opined that the Walls were subject to a " ... fair amount of movement ... "

and were " ... coming apart ... " Id. At 74. Mr. Capo further testified that the Walls were built without

. in ."... one wall [that was] rebuilt at a later required geogrid except . date ... " where it was installed by

Defendant incorrectly. Id at 99. He further opined that the Walls were constructed without proper drainage. Id. at 98.

The Court found, therefore, that Defendant breached its duty to follow the.required standard of care in the construction of the Walls, that said breach caused the· faulty construction and deterioration of the

•• ,I! .1, t

\VaU�;:1md. ihat the: P.lii�liffs .suffered mQ.o�tacy damages as.� result,

i *·* *

� v, CONCLOSlON • •••• 1 f

The Cour.f prilI �rly, ·• ruled. "that'. 'th�;-$tatutes . of ;(Jmftatioiis· di<l not, • bar Plaint.U'fs' .daiin�

·�fo� DefeiidiJP.t�s 'ef�oits 1ti;i. �eg�ir'th� W!!.US �nti�\ied p_n_(il October' of .2.0115, This case 'was . '··1 I

.. '8, _7.01�; commented: ott:Janu.ary

·r�f •• ·ac • e, ''.l.'h�· Co.u�.t: did -��r:-m· not eX�1Jding:·evidence based on spqliation. Defendant. had ample

opp.<1rftitiitf ·tQ· �� �� � ins - aiis:pdono: 9�moiitioir. . t.. .. The Court ·GQrr��tlf::pen)J'.iftf;d Plaintiff�� e�p.'eit, Mf..·OiP.o,.to 'testifieg :since histestimony ,. . . . , . was. W.ithin theJair.·s<;9pe· 0� his· tepo_n_: · 1

l . . '

The ¢9�r-t,. �rf;)perly overruled b�fendant'.s oi?j��tion ·to the use .of' a P.o:wer-Poihr :P�est,i!itati;n at ·trial· . . as i·" ·�. is��I i· �iq .tha"t was •wit]ul} the.fair' . scope. of Plaintiffs' ·�xpert.'s repen.

T:b.. � Coutt.. ptoripI(Y. . . fo11' rtd'by 11,:·preponaei�n�i:·.Of the eV.i4,(mce. that:Def�.!lcdaflt"De$!ig_en.tly ..r ' . u�dirto_Gk. a cQn�truifti�n,.p,f�j·e�t that' it was not quajitj.ed to undertake, D�fendwi.t's failure to .

. .., . ; ,· � . .. �9.nstrud .the. Wa(js. pr.�p·etl� 111ad� it' necessary to demolish �tid replace them, Plllin(iffs were, 0 • f� I •• •

.. . ·r ...reasonS,. F9r the fo'regoi.iJg r the Court; teSpt,i<;$1\y 'r�qu�§tS that. Defe-qihmfs . . llppeal . �e.

�· 4e.J)Jed.an�'the . C9µrti.irt1ay.1,t,.201a .. ·. . decreebe affi�ed. ·''·i

\

··.'

23·

. ' . .:..., ... .. · ,}', ..,J...\. - ......

Footnotes

[9] ''.