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DAUPHIN DEPOSIT BANK AND TRUST COMPANY v. GEORGE E. PIFER (04/06/89)

filed: April 6, 1989.

DAUPHIN DEPOSIT BANK AND TRUST COMPANY, APPELLANT,
v.
GEORGE E. PIFER



Appeal from the Order entered in the Court of Common Pleas of York County, Civil Division, No. 84-N-985

COUNSEL

Michael W. Flannelly, York, for appellant.

Harold N. Fitzkee, Jr., York, for appellee.

Wieand, Olszewski and Tamilia, JJ. Wieand, J., concurs in the result.

Author: Tamilia

[ 383 Pa. Super. Page 277]

This is a timely appeal by Dauphin Deposit Bank and Trust Company of judgment entered on a jury verdict in favor of appellee, George E. Pifer, after denial of appellant's post-trial motions. The case went to trial following the trial court's opening of the judgment by confession entered by appellant.

Appellant brought this action to recover the principle sum of $30,000 plus interest, which it loaned to appellee. The parties stipulated that on March 12, 1979 appellant loaned appellee $30,000 with no terms of repayment. The parties had had prior dealings before this loan. At trial, appellee claimed he repaid the principle plus interest on July 7, 1982 in cash, by bringing the cash into the bank and in return receiving a receipt from the bank. Appellant claims the receipt is a forgery and maintains the loan was never repaid. After hearing all of the evidence the jury returned a verdict in favor of appellee.

Appellant's first claim on appeal is that the trial court erred in prohibiting its witness Susanne Smith, of the Paul M. Smith Rubber Stamp Company, from rendering an opinion as to whether the stamp appearing on the appellee's receipt (Plaintiff's Exhibit 7), was from a stamp used by appellant, as exhibited by five samples of appellant's stamps which were brought to trial (Plaintiff's Exhibit 8). A review of Smith's testimony discloses she was never qualified as an identification expert -- as pointed out by the trial court (Slip Op., Erb, P.J., 4/29/88, p. 3) -- and was only involved in the manufacture of rubber stamps for the past twelve years in the employment of her company, which made stamps for appellant for a period greater than the last twelve years. Although Smith was able to testify as to the manufacturing process and the number of stamps her company made over the years she was not qualified to identify the mark made on appellee's receipt with those made by the sample of stamps presented. The question of qualifications

[ 383 Pa. Super. Page 278]

    of a witness to give expert opinion testimony is within the discretion of the trial court. Gottfried v. American Can Company, 339 Pa. Super. 403, 489 A.2d 222 (1985); Reed v. Hutchinson, 331 Pa. Super. 404, 480 A.2d 1096 (1984). Here, no attempt to qualify the witness as an expert to render opinion testimony was made by appellant at trial, leaving the determination properly within the jury's purview. Based on a review of the testimony, we find the trial court did not abuse its discretion in so ruling.

Next, appellant claims it was error to grant appellee's request for a jury trial because the request was made in an untimely manner. Pennsylvania Rule of Civil Procedure 2960 provides:

Rule 2960. Proceedings upon Opening of Judgment. Pleadings. Jury Trial. Waiver

If a judgment is opened in whole or in part the issues to be tried shall be defined by the complaint if a complaint has been filed, and by the petition, answer and the Order of the court opening the judgment. There shall be no further pleadings. The right to a jury trial on the opened judgment shall be deemed waived unless a party files and serves a written demand for jury trial within twenty (20) days after the ...


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