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RALPH GIACCO AND MAGDALINE GIACCO v. ANTHONY PAMPENA AND MARY PAMPENA (08/12/83)

filed: August 12, 1983.

RALPH GIACCO AND MAGDALINE GIACCO, HIS WIFE, APPELLANTS
v.
ANTHONY PAMPENA AND MARY PAMPENA, HIS WIFE, AND VINCENZO PAMPENA AND ANTOINETTE PAMPENA, HIS WIFE, AND SALVATOR ORTENZO AND CONNIE ORTENZO, HIS WIFE, AND RITA DENNE



No. 1116 Pittsburgh, 1981, Appeal from the Judgment of the Court of Common Pleas of Allegheny County, Civil Division, at Nos. GD 76-24443 and I #106261

COUNSEL

Girard N. Evashavik, Pittsburgh, for appellants.

Harvey E. Robins, Pittsburgh, for appellees.

Cavanaugh, Brosky and Montgomery, JJ.

Author: Brosky

[ 318 Pa. Super. Page 377]

This is an appeal from the judgment dismissing appellants' exceptions to the chancellor's adjudication below. Appellants contend that the court below erred in permitting the testimony of an expert witness. We disagree with appellants and, accordingly, affirm the order below.

On October 29, 1976, appellants brought suit in equity seeking an injunction and damages. They alleged that

[ 318 Pa. Super. Page 378]

    appellees had and were conducting activities (i.e., the addition of fill to appellees' land) which caused destruction of a wall constructed around the perimeter of appellants' land. Appellees answered by denying appellants' theory of destruction and asserting, inter alia, that the damage was caused by appellants' poor construction of the wall.

On September 13, 1979, pre-trial statements were filed by both parties. Appellees' statement notified appellants that an engineer would testify as to the collapse of the wall and survey of the property, but did not include the identity of the expert or his report.

Trial began on October 30, 1979. Appellants included in their case the testimony of four experts. Appellees began their presentation of evidence on the second day of trial, and presented their expert to testify as to the collapse of the wall.

Appellants objected to such testimony because the expert was not listed by name in appellees' pre-trial statement and his report was not attached thereto. Appellees stated that the expert would testify only as to what was stated in their answer. The chancellor allowed him to testify while granting appellants the opportunity to present additional counter evidence if they felt it necessary to do so. Also, appellees amended their pre-trial statement and submitted their expert's report to appellants before the third and final day of testimony. Appellees' expert testified on the third day and gave his opinion as a geotechnical engineer as to the technical causation of the damage to the wall.

An adjudication was made on March 3, 1980 against appellants based on all the evidence submitted at the trial. Appellants' exceptions to this adjudication ...


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