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CAMP CONSTRUCTION CORPORATION v. LUMBER PRODUCTS COMPANY AND GEORGIA-PACIFIC CORPORATION. APPEAL GEORGIA-PACIFIC CORPORATION (03/04/83)

filed: March 4, 1983.

CAMP CONSTRUCTION CORPORATION
v.
LUMBER PRODUCTS COMPANY AND GEORGIA-PACIFIC CORPORATION. APPEAL OF GEORGIA-PACIFIC CORPORATION



No. 2025 Philadelphia 1981, Appeal from the Judgment entered in the Court of Common Pleas, Civil Division, of Philadelphia County at No. 437 November Term, 1978.

COUNSEL

Patrick O. McDonald, Philadelphia, for appellant.

Stephen M. Howard, Philadelphia, for Camp, appellee.

Hester, Wickersham and Popovich, JJ.

Author: Popovich

[ 311 Pa. Super. Page 384]

Appellee-plaintiff, Camp Construction Company, purchased plywood from defendant, Lumber Products Company, which had been manufactured by Georgia-Pacific Corporation, the other defendant in the subject litigation. According to appellee, the plywood was manufactured in a defective manner. A trial was held by a judge, sitting without a jury, and a verdict was entered in the amount of $17,418.00 against Georgia-Pacific Corporation. Verdicts also were entered in favor of Lumber Products Company on its cross-claim against Georgia-Pacific and on the cross-claim Georgia-Pacific had filed against Lumber Products Company. Exceptions were denied, and judgment was entered upon praecipe by one of the parties.*fn1 This appeal by Georgia-Pacific Corporation followed. We affirm.

[ 311 Pa. Super. Page 385]

On appeal, appellant contends that the trial court erred (1) when it allowed two lay witnesses to give expert testimony; (2) when it allowed one of the witnesses, Robert Kish, to state his opinion that the warping and delamination of the plywood were not caused by improper installation; and (3) when it allowed into evidence testimony by Jack Blumenfeld, the owner of Camp Construction Company, the appellee, that none of the plywood had warped or delaminated prior to installation. Appellant also contends that the verdict entered in favor of the plaintiff was against the weight of the evidence. We must reject appellant's contentions.

At the outset, we will consider appellant's claims concerning the admissibility of certain testimony. Generally speaking, "'questions concerned with the admission or exclusion of evidence are within the sound discretion of the trial court and will be reversed on appeal only where a clear abuse of discretion exists.'" Lewis v. Mellor, 259 Pa. Super. 509, 515, 393 A.2d 941, 944 (1978) (quoting Westerman v. Stout, 232 Pa. Super. 195, 202, 335 A.2d 741, 745 (1975)).

For the most part, appellant's arguments involve whether statements made at trial can be classified as either fact or opinion evidence and also the related question of whether the individuals were testifying as lay witnesses or as experts.

The testimony challenged initially by appellant consists of statements made by Blumenfeld and by Kish. Blumenfeld's testimony reads as follows:

"BY MR. LAZAROFF [Attorney for Appellee]:

Q. Would you have? Would you have purchased lumber that would warp and delaminate for use in sub-flooring?

A. I try and buy the very best of everything that I am able to when I build a house, and even if I had been offered a bargain at a cheaper amount of dollars I would have turned it down anyhow. Our industry is hard

[ 311 Pa. Super. Page 386]

    enough as it is without also having the headache of a bad piece of wood.

MR. MC DONALD [Attorney for Appellant]: Objection, Your Honor, and move to strike.

THE COURT: Overruled."

(Emphasis added.)

Similarly, the remark made by Kish which appellant contends is objectionable can be found in the following portion of the trial:

"Q. Was all this work necessary because of the defects you found?

A. Yes, sir.

MR. LAZAROFF: No further questions.

MR. MC DONALD: Objection and move to strike on the question of defects that were found.

THE COURT: Overruled. I understand this is a factual determination to be made by the Court."

N.T. 98-99. (Emphasis added.)

To begin with, we have said the following:

"The decision whether testimony constitutes fact or opinion may be difficult, for '[t]here is no litmus test for fact versus opinion.' Strausser v. Strunk, 222 Pa. Super. 537, 544, 295 A.2d 168, 173 (1972) (PACKEL, J., dissenting); see 7 Wigmore, Evidence, § 1919 (Chadbourn rev. 1978). Often testimony that might be classified as opinion is nevertheless admitted almost as a matter of course. Statements such as 'it made an awful racket,' 'the weather was miserable', 'he looked drunk', are in a sense all opinions, but a little attention to our every day way of speaking will show that they are more accurately classified as shorthand, or compendious, statements of fact, based on personal observation. ('Well, when I say he looked drunk, what I mean is that he smelled of whiskey, his clothes were a mess, and he was swaying back and forth.') In such cases the experienced trial judge will admit the statement. To instruct the witness that he must 'tell us only the facts, not your opinions,' may

[ 311 Pa. Super. Page 387]

    confuse or intimidate the witness; the judge may therefore decide to let the witness express himself naturally, leaving it to counsel to question the witness further, if elaboration or clarification is thought desirable. See McCormick, Handbook on Evidence, § 11 (West ed. 1972); see also Wilson v. Penna. R. Co., 421 Pa. 419, 219 A.2d 666 (1966) (in close case trial judge's discretion respected); Holton v. Gibson, 402 Pa. 37, 166 A.2d 4 (1960) (testimony that automobile 'increased' speed was fact not opinion)."

Lewis v. Mellor, 259 Pa. Super. at 517-518, 393 A.2d at 946 (1978).

Also, the distinctions between the admission of lay or expert witness testimony has been set forth in the following manner:

"[A] lay witness . . . would not be competent to express an opinion unless it were both rationally based on his own perceptions and helpful to a clear understanding of his testimony or the determination of a fact in issue. Lewis v. Mellor, 259 Pa. Superior Ct. 509, 393 A.2d 941 (1978). [A]n expert witness . . . would not be competent to express an opinion unless it pertained to a subject 'so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman,' Ragan v. Steen, 229 Pa. Superior Ct. 515, 538, 331 A.2d 724, 736 (1974) (concurring opinion), and it appeared that the [witness] had 'sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in the search for truth.' Id. See Kravinsky v. Glover, 263 Pa. Superior Ct. 8, 396 A.2d 1349 (1979) (no error in qualifying witness as expert in ...


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