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WALTER KAMINSKI AND LISA KAMINSKI v. EMPLOYERS MUTUAL CASUALTY COMPANY (02/08/85)

filed: February 8, 1985.

WALTER KAMINSKI AND LISA KAMINSKI, HIS WIFE
v.
EMPLOYERS MUTUAL CASUALTY COMPANY, APPELLANT



No. 00067 PHL 83, Appeal from the Judgment entered March 25, 1983 in the Court of Common Pleas of Wayne County, Civil Division, at No. 1793-1980.

COUNSEL

Susan M. Danielski, Philadelphia, for appellant.

Lee C. Krause, Honesdale, for appellees.

Del Sole, Montemuro and Hoffman, JJ. Del Sole, J., files a dissenting opinion.

Author: Hoffman

[ 338 Pa. Super. Page 401]

Appellant-insurer contends that the lower court erred in permitting two expert witnesses to testify on behalf of appellees-insureds with respect to the cause and origin of the fire in question when those experts were not identified in appellees' answers to interrogatories and were not identified as appellees' expert witnesses until the sixth day of trial. We agree and, accordingly, reverse and remand for a new trial.

[ 338 Pa. Super. Page 402]

Following a May 5, 1980 fire which damages and/or destroyed their house and its contents, appellees, Mr. and Mrs. Kaminski, submitted a claim in the amount of $89,593.20 to appellant, Employers Mutual Casualty Company, pursuant to their homeowners insurance policy. Because appellant refused to make any insurance payments, appellees filed a complaint on December 22, 1980, alleging breach of contract and seeking damages under the policy. Appellant responded by filing an answer and new matter on January 29, 1981; appellees then filed an answer to appellant's new matter on February 9, 1981. During discovery, appellant propounded interrogatories which appellees answered on May 7, 1981. Both parties submitted pre-trial memoranda and, on July 9, 1981, the trial court, per Judge Davis, specially presiding, held a pre-trial conference.

Jury trial commenced on July 21, 1981, with Judge Williams specially presiding, and continued to July 24; after an approximate one-week adjournment period, it recommenced on August 3 and concluded on August 6. In establishing their case, appellees first presented the testimony of Mr. Kaminski regarding appellees' activities on the day of the fire, as follows: On Sunday, May 4, 1980, at approximately 8:00 a.m. appellees left their residence located on Route 652, between Beach Lake and Narrowsburg, Damascus Township, Wayne County, to go to work in Monticello, New York, approximately a 45-minute drive. Mrs. Kaminski is a bookkeeper at Kutshers Country Club in Monticello; Mr. Kaminski is a real estate salesman for E. & A. Mason Real Estate in Monticello. At 5:00 p.m., appellees left work and returned home, arriving at 5:45. At 6:15, appellees left their home and drove to Kutsher's Country Club for dinner and a show. They stayed until approximately 2:00 a.m. the next morning. They then left the club and, because Mrs. Kaminski wanted something to eat, they went to a restaurant in Monticello and stayed there approximately one hour. At 3:30 a.m., they left the restaurant and stayed in the parking lot for a while because Mr. Kaminski fell asleep. At approximately 4:30 a.m., appellees started to drive home;

[ 338 Pa. Super. Page 403]

    however, after driving about three-quarters of a mile, Mr. Kaminski was too tired to continue so they stopped on the side of the road and Mr. Kaminski again fell asleep. At approximately 6:00 a.m., he was awakened by the sun. Because appellees were approximately 45-50 minutes drive from their home and had to be at work by 9:00 a.m., they drove straight to Mr. Kaminski's real estate office to freshen up and then went to their respective offices. At the end of the day, appellees left work early and, upon arriving home, saw the burned remains of their residence. The fire was estimated to have broken out at approximately 2:00 a.m. on Monday, May 5, 1980. (N.T. July 22, 1981 at 27-28, 44-46; July 23, 1981 at 96-111). Appellees each testified as to the various items lost in the fire and their values. (Id. at 38-47). They concluded their case-in-chief by presenting the expert testimony of Robert Jones, a professional building estimator, and Charles Catanzaro, a public insurance adjuster. Both of these witnesses work for Dalan Adjustment Company, which had been retained by appellees to prepare their insurance claim, and they testified as to the estimated values and replacements costs of appellees' destroyed property. (N.T. July 23, 1981 at 52-79).

In defense, appellant presented the testimony of several experts. Alfred Crosby, Chief of the Beach Lake Volunteer Fire Department, testified that the fire in question had been difficult to extinguish and therefore opined that some type of liquid material, such as gasoline, turpentine or fuel oil, had been applied to the basement and first floor of appellees' home. He also based this opinion on the "tunnellike" burnt patterns on the flooring. (Id. at 126-27). Alfred H. Thumann, assistant fire chief of the Beach Lake Fire Department, also testified that the fire had been difficult to extinguish with water and would flare up repeatedly. He therefore opined that there had been some highly flammable substance in the basement other than paper or wood. (Id. at 141-43). Michael O'Day, a Pennsylvania State policeman and alternate fire marshall for Wayne County, testified that his job as a state police fire marshall was to investigate

[ 338 Pa. Super. Page 404]

    the cause and origin of fires of suspicious nature and gave the following opinions: (1) an oil burner had been carefully removed from the basement furnace of appellees' home prior to the fire; (2) the point of origin of the fire was the basement stairway; (3) the fire had been caused by placing some type of flammable liquid on the floor from the kitchen into the living room, down the basement stairway, and upstairs to the second floor; (4) the ignition source of the fire was the oil burner motor which had been set to the thermostat like a timing device, i.e., when the temperature hit a certain degree, the thermostat called for heat, thereby automatically igniting the oil burner, which started the basement stairway on fire and rapidly moved upstairs from there; (5) the whole house was intended to be burned to the ground. (Id. at 150-53, 156-203). Frederick Blum, a consulting engineer in the field of investigation of fires involving malfunctioning equipment, testified as to the condition of the oil burner both before and after the fire occurred. (N.T. July 24, 1981 at 284-93). Robert Haycock, a senior fire investigator with UBA Fire Investigators in Harrisburg and a state police fire marshall, gave his opinion that, because of the burning patterns or "alligatoring effect" on the wood floors of appellees' home after the fire, the fire was caused by the ignition of a flammable liquid and that such low floor burnout throughout the entire structure was not common with accidental fires. (Id. at 302-10). He also ruled out the possibility of an electrical fire because of the extreme burning throughout the entire building and because the flooring above the electrical panel was still intact, stating that an electrical fire starts from a smoldering effect. (Id. at 337). Mr. Kaminski, called to the stand by appellant as of cross, testified that appellees' separately filed 1980 federal income tax returns reported respective gross incomes of $4729 and $8475. (N.T. August 3, 1981 at 381-83). He also testified as to appellees' various earnings and expenses. (Id. at 383-405). Appellant's last witness, Edward Gieda, a home building-remodeling and damage appraiser, testified as to replacement costs for appellees' home (Id. at 408-14).

[ 338 Pa. Super. Page 405]

Appellees responded on rebuttal with the testimony of two expert witnesses. Robert Jennings, a photographer, county coroner and chief deputy for Wayne County, testified that, in his opinion, no accelerants or flammable liquids had been poured on the stairways of appellees' home and that the fire was not incendiary. (N.T. August 4, 1981 at 510). Thomas Evans, electrical inspector for the City of Scranton and a member of the Arson Task Force, testified: "My opinion is definitely an electrical fire." (Id. at 524).

In surrebuttal, appellant again put Michael O'Day on the stand. O'Day disagreed with Jennings and Evans as to the electrical origin of the fire because the fuse box was intact and there was no evidence of melting. (N.T. August 5, 1981 at 549-68). On cross, however, he admitted that he was not an electrician. (Id. at 561-62).

At the conclusion of the trial, the jury, finding that the fire was not incendiary and that there was no fraud, rendered a verdict in appellees' favor for $89,500.00 in damages.*fn1

Appellant subsequently filed motions for a new trial or for judgment n.o.v. Following argument, these motions were denied on December 13, 1982 by Judge Conway. On January 7, 1983, appellant filed the instant appeal. The lower court then ordered appellant to file of record a Pa.R.A.P. 1925(b) concise statement of the matters complained of on appeal; appellant complied with this order. On March 25, 1983, appellant filed a praecipe to enter judgment nunc pro tunc on the jury verdict in appellees' favor pursuant to Pa.R.Civ.P. 1039.*fn2

Appellant contends that the rebuttal testimony of Jennings and Evans should not have been admitted because

[ 338 Pa. Super. Page 406]

    appellees failed to disclose the identities of these expert witnesses during discovery. Pa.R.Civ.P. 4003.5 provides that:

(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:

(1) A party may through interrogatories require

(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and

(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.

(b) If the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

(Emphasis added). The rule embodied in subsection (b) above is restated in Rule 4019, entitled "Sanctions", as follows:

(i) A witness whose identity has not been revealed as provided in this chapter shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond

[ 338 Pa. Super. Page 407]

    the control of the defaulting party, the court may grant a continuance or other appropriate relief.

Pa.R.Civ.P. 4019(i) (emphasis added). Thus, the rule is one of mandatory preclusion at trial of the testimony of undisclosed expert witnesses in the absence of extenuating circumstances. See Sindler v. Goldman, 309 Pa. Superior Ct. 7, 14, 454 A.2d 1054, 1057 (1982) (Local Rule 212, which embodies the same rule codified in Pa.R.Civ.P. 4003.5, "provides unconditionally that testimony will be precluded in the event of noncompliance.").*fn3 See also Long v. C.M.C. Equipment Rental, Inc., 70 D. & C.2d 403 (Philadelphia Co. 1975); Peace v. Hess, 67 D. & C.2d 230 (Lancaster Co. 1974). The rationale for these discovery rules has been set forth by this Court on several occasions. In Catina v. Maree, 272 Pa. Superior Ct. 247, 259-60, 415 A.2d 413, 420 (1979), rev'd on other grounds, 498 Pa. 443, 447 A.2d 228 (1982), we stated:

The importance of a party having adequate and accurate information on the eyewitnesses to be called by an adverse party, is of course, manifest. If the witness' trial

[ 338 Pa. Super. Page 408]

    testimony is damaging to the uninformed party, he is subject to the vagaries of surprise and attendant detriment in the eyes of the jury; while if the witness is in possession of facts favorable to the uninformed ...


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