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ALLEN FEINGOLD v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND DARRELL K. DUNCAN (01/30/85)

filed: January 30, 1985.

ALLEN FEINGOLD, APPELLEE,
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY AND DARRELL K. DUNCAN, APPELLANTS



No. 2202 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 2642 May Term, 1975.

COUNSEL

Perry S. Bechtle, Philadelphia, for appellants.

M. Mark Mendel, Philadelphia, for appellee.

Wickersham, Wieand and Lipez, JJ.

Author: Wieand

[ 339 Pa. Super. Page 19]

Allen Feingold, a member of the Philadelphia Bar, was injured when his vehicle was struck in the rear by a Southeastern Pennsylvania Transportation Authority (SEPTA) bus operated by Darrell Kenneth Duncan. A jury awarded compensatory damages to Feingold in the amount of $218,000.00 against both defendants and punitive damages in the amount of $50,000.00 against SEPTA. The trial court molded the verdict to include delay damages allowed by Pa.R.C.P. 238. On appeal, it is argued that the trial court erred (1) by denying a defense request for continuance; (2) by refusing to allow the defense to call plaintiff's treating physician as a defense witness after plaintiff had failed to call him; (3) by refusing to allow two Philadelphia judges to testify to plaintiff's active practice in order to rebut plaintiff's testimony that his law practice had been curtailed by his injuries; (4) by allowing the jury to award punitive damages against SEPTA; and (5) by assessing delay damages against SEPTA. These are interesting issues, and we will consider them seriatim.

The grant or denial of a motion for continuance lies in the discretion of the trial court; absent a clear abuse of discretion or manifest error, the court's decision will not be overturned on appeal. Phoenix Mutual Life Insurance Co. v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 165, 266 A.2d 698, 701 (1970); Ragnar Benson, Inc. v. Bethel Mart Assoc., 308 Pa. Super. 405, 417, 454 A.2d 599, 604 (1982). This Court, in Krupa v. Williams, 316 Pa. Super. 408, 463 A.2d 429 (1983), enumerated four factors to be considered in determining whether a continuance should be granted: (1) whether a delay will cause prejudice to the opposing party; (2) whether opposing counsel is willing to continue the case; (3) the length of the delay requested; and (4) the complexities involved in presenting the case. Id., 316 Pa. Superior Ct. at 419, 463 A.2d at 434. See also: Snyder v. Port Authority of Allegheny County, 259 Pa. Super. 448, 453, 393 A.2d 911, 914 (1978).

[ 339 Pa. Super. Page 20]

The motion for continuance in the instant case was made on the first day of trial. It was based upon plaintiff's delayed supplying of information pertaining to his injuries which had been requested by defense interrogatories. The trial court denied the continuance because the request therefor had not been filed timely as required by Pa.R.C.P. 216(C) and because defendants had failed to take earlier steps to compel prompt disclosure of the information sought to be discovered. This did not constitute an abuse of discretion. See: Ragnar Benson, Inc. v. Bethel Mart Assoc., supra; Love v. Harrisburg Coca-Cola Bottling Co., 273 Pa. Super. 210, 417 A.2d 242 (1979). The fact that SEPTA had changed counsel three months before trial did not excuse almost five years of failure to propound interrogatories calculated to discover the nature and extent of the plaintiff's injuries. Cf. Princess Hotels International v. Hamilton, 326 Pa. Super. 226, 473 A.2d 1064 (1984).

We begin our discussion of the second issue by observing that Feingold's pre-trial statement had included the name of his treating physician among the witnesses whom he intended to call at trial. Deeming the witness' testimony unfavorable, however, Feingold determined not to call his doctor at trial as his witness. When the defense attempted to call the physician as a defense witness, the trial court precluded the witness from testifying, in response to plaintiff's objection, because the witness had not been listed in the defendant's pre-trial statement.

This ruling precluding the doctor's testimony as a defense witness was premised upon the Civil Trial Manual of the Court of Common Pleas of Philadelphia which required:

In addition to concisely setting forth his factual contentions, each party shall include the following in his pre-trial statement: . . . (4) a list by name and address of all witnesses the party intends to call at trial, except those who may be used for rebuttal or impeachment purposes. If the parties learn the names of any additional witnesses after the pre-trial conference, they will promptly exchange names and addresses.

[ 339 Pa. Super. Page 21]

(Civil Trial Manual, pp. 41, 42). The Trial Manual also required the pre-trial conference judge, at the conclusion of the conference, to dictate an order which would include "(c) a list of all non-rebuttal witnesses who may be called at trial." In the instant case, ...


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