Appeal from the Order entered January 21, 1987 in the Court of Common Pleas of Chester County, Civil Division, at No. 85-02441.
Clara Brock, in propria persona.
Richard L. Cantor, Paoli, for Owens, appellee.
Dean R. Phillips, Pottsville, for Wusinich, appellee.
Neil S. Witkes, Philadelphia, for Kalemjian, appellee.
Cirillo, President Judge, and Hoffman and Cercone, JJ.
[ 367 Pa. Super. Page 327]
This is an appeal from the order of the lower court granting appellees' motion for a compulsory non-suit. Appellant contends that the lower court erred in (1) granting the motion for a non-suit after appellees had an opportunity to present evidence; (2) prohibiting her from calling expert witnesses; (3) changing its opinion and theory of the case; (4) prohibiting appellant from introducing all her evidence at trial; (5) allowing her deposition to be used at trial; (6) applying the doctrine of collateral estoppel to the issue of her exhaustion of administrative remedies; and (7) finding her liable for appellees' counsel fees. For the reasons set forth below, we affirm the order of the lower court.
Appellant, a professor at Lincoln University, retained appellee E. Craig Kalemjian, an attorney, in October, 1981 to represent her in litigation charging the university with racial and gender discrimination. Kalemjian filed a complaint in that action in November, 1981 and, in December, 1981, discovered a conflict of interest and withdrew from the case. Appellant then retained appellee Joseph F. Wusinich III. Wusinich represented her until March, 1983, when appellant retained appellee James T. Owens. In July, 1983, the lower court dismissed appellant's complaint for lack of subject matter jurisdiction.*fn1 This Court affirmed the order in a per curiam memorandum. In April, 1985, appellant
[ 367 Pa. Super. Page 328]
instituted the instant pro se malpractice action against appellees, alleging that all three negligently handled her lawsuit against the university. Appellees filed a motion for summary judgment. The lower court, although noting that any issue of material fact had been created by appellant's unsupported assertions, denied the motion and thus gave appellant the opportunity to support her claims at trial. See Order, November 26, 1986. At a jury trial, appellees motioned for a compulsory non-suit at the close of appellant's case. The motions were granted. Appellant filed a written petition for removal of the non-suit, which was denied, and this appeal followed.
Appellant first contends that the lower court erred in granting appellees' motions for a non-suit because they had presented evidence at trial. A court may grant a compulsory non-suit only if "the jury, viewing all the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established." Mazza v. Mattiace, 284 Pa. Superior Ct. 273, 277, 425 A.2d 809, 811-12 (1981). See also Rutter v. Northeastern Beaver County School Dist., 496 Pa. 590, 595, 437 A.2d 1198, 1200 (1981). A compulsory non-suit may not be granted if the defendant has put on evidence. Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 382, 390 A.2d 736, 744 (1978). See also Pa.R.Civ.P. 230.1.
Thus, to avoid a compulsory non-suit in the instant case, appellant was required to establish the following ...