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decided: November 18, 1986.


Appeal from the Order entered by the Superior Court of Pennsylvania at No. 2202 Philadelphia, 1985, on January 30, 1985, reversing the judgment of the Court of Common Pleas of Philadelphia Pennsylvania, at No. 2642. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion.

Author: Mcdermott

[ 512 Pa. Page 570]


This is an appeal from the order of the Superior Court which reversed the judgment of the Court of Common Pleas of Philadelphia.

Appellant, Allen L. Feingold, Esquire, filed a complaint in trespass against appellees, Southeastern Pennsylvania Transportation Authority (SEPTA) and Darrell Kenneth Duncan,*fn1 in May, 1975, as a result of an automobile accident which occurred between the parties on September 17, 1974. SEPTA did not contest its liability, so the issues for trial were reduced to appellant's alleged aggravation of pre-existing voice and throat problems and his alleged loss of earnings as a lawyer. The complaint was amended in March, 1976, to include a count for punitive damages.

The trial commenced on October 27, 1980, and ten days thereafter the jury returned a verdict for appellant in the amount of $218,000 in compensatory damages and $50,000 in punitive damages. On November 14, 1980, the trial judge awarded $28,048.14 in delay damages, bringing the judgment in its entirety to the amount of $296,048.14. Post-trial motions were subsequently denied on June 23, 1982.

On appeal the Superior Court reversed on the basis of erroneous evidentiary rulings and an improper computation of damages. Appellant then sought allowance of appeal, and we granted review to consider the following issues: whether the trial court erred in denying SEPTA's requests to present certain testimony; and whether it was proper to assess punitive damages against SEPTA. Based on the

[ 512 Pa. Page 571]

    ensuing reasons, we affirm the order of the Superior Court, and remand the matter for a new trial.


Regarding the evidentiary errors, the Superior Court held: first, that the trial court erred in precluding the admission of testimony of appellant's treating physician, when said doctor was called as an expert on behalf of SEPTA; and second, that the trial court erred in barring testimony offered by SEPTA, which consisted of testimony from two common pleas court judges who would have discussed whether appellant's injuries affected the disposition of the cases he had pending in the Court of Common Pleas of Philadelphia.

The facts germane to a consideration of the first error are as follows.

In March of 1980, approximately seven months prior to trial, the parties to the instant action filed pre-trial statements. Appellant listed Dr. Joseph P. Atkins, Jr., as a treating physician and expert witness. Furthermore, appellant stated that the witness and exhibit list submitted in the pre-trial statement were incomplete as of that date. Neither party certified that discovery was complete and the trial court never entered a pre-trial order limiting the number of witnesses each party would be allowed to call. Appellant did not call Dr. Atkins to testify at trial, admitting through counsel that he was aware of the conflicting nature of the doctor's testimony with respect to his proposed theory of liability. SEPTA's attempt to call the doctor in its case in chief was thwarted by the trial court because of the absence of his name from SEPTA's pre-trial statement. Appellant thereafter entered the doctor's records into evidence.

In support of his position that the trial court properly excluded the doctor's testimony appellant argues that a failure to identify proposed testimony constitutes prejudicial error, which cannot be overlooked, and that the Rules of

[ 512 Pa. Page 572]

Civil Procedure authorized the trial judge's actions. The rules in issue involve both local and state-wide rules.

This Court's approach to the enforcement of procedural rules, whether local or state-wide, is dictated by the facts and circumstances in each individual case. To analyze otherwise would exalt procedural rules, which were created for efficiency and fairness, to a status far beyond their inherent power. "It has been our policy to overlook . . . procedural errors when a party has substantially complied with the requirements of the rule and no prejudice would result. 'Procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives,'" Pomerantz v. Goldstein, 479 Pa. 175, 178, 387 A.2d 1280, 1281 (1978) (citation omitted).

Additionally, this Court has previously held that local rules cannot be construed so as to be inconsistent with the prevailing state-wide rules. See Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, 501 Pa. 234, 460 A.2d 1093 (1983).

At the time of trial in this matter the Philadelphia local practice rules required:

     n 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.

Civil Trial Manual of the Court of Common Pleas of Philadelphia, pp. 41-42. It was further required by the Manual that the pre-trial conference judge should dictate an order upon the conclusion of the conference which would include "(c) a list of all non-rebuttal witnesses who may be called at trial." Id. The Superior Court correctly noted that such an order was not entered in the instant case.

[ 512 Pa. Page 573]

The relevant Pennsylvania Rule of Civil Procedure is Pa.R.Civ.P. 4003.5 which provides:

Rule 4003.5 Discovery of Expert Testimony. Trial Preparation Material.

(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.

Pa.R.Civ.P. 4003.5 (emphasis added). See also Pa.R.Civ.P. 4019(i).

Rule 4003.5(b) specifically provides that the presiding court must balance the facts and circumstances of each case to determine the prejudice to each party. In reversing the trial court's exclusion of Dr. Atkin's testimony, the Superior Court relied on several factors "[i]n determining whether to allow the testimony of a witness who has not been included in a pre-trial memorandum." Feingold v. SEPTA, 339 Pa. Super. 15, 21, 488 A.2d 284, 287 (1985).

[B]ad faith on the part of the party seeking to call witnesses not listed in his pretrial memorandum; see Clark v. Pa.R.R.Co., 328 F.2d 591 (2d Cir. 1964), cert. denied, 377 U.S. 1006, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964); ability of the party to have discovered the witnesses earlier, see Hunt v. Pa.R.R.Co., 41 F.R.D. 349 (E.D.Pa. 1967); validity of the excuse offered by the party, Thompson v. Calmar Steamship Corp., 331 F.2d 657, 662 (3d Cir. 1964); willfulness of the party's failure to comply with the court's order, Taggart v. Vermont Transportation Co., 32 F.R.D. 587 (E.D.Pa. 1963), aff'd, 325 F.2d 1022 (3d Cir. 1964); the parties' (sic) intent to mislead or confuse his adversary, Pakech v. American Export Isbrandtsen Lines, Inc., 69 F.R.D. 534 (E.D.Pa. 1967); and finally, the importance of the excluded testimony,

[ 512 Pa. Page 574]

The next issue concerns the appropriateness of the trial court's exclusion of the testimony of the common pleas judges who were offered as rebuttal witnesses by SEPTA. The trial judge's ruling on this evidence was based on the same local rule cited above.*fn3

The evidence in question consisted of testimony by two judges, the Honorable Stanley M. Greenberg and the Honorable Joseph P. Braig, who were offered as rebuttal witness concerning appellant's loss of earnings claim. Appellant successfully contended below that SEPTA's failure to list the judges in the pre-trial statement was fatal to its plan to call them as witnesses. This contention falters under close analysis of the procedural matrix of the instant case. The local rule excuses the listing of a witness if he or she ...

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