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LORI JIN KIRSCH v. PARKING AUTHORITY CITY NEW CASTLE (05/22/89)

filed: May 22, 1989.

LORI JIN KIRSCH, APPELLANT
v.
PARKING AUTHORITY OF THE CITY OF NEW CASTLE, A PUBLIC AUTHORITY, APPELLEE



Appeal from Common Pleas Court, Lawrence County, Honorable Francis X. Caiazza, Judge.

COUNSEL

Donald E. Williams, Esq., New Castle, Pennsylvania, for Appellant.

Charles W. Garbett, Esq., Lawrence M. Kelly, Esq., Ellwood City, Pennsylvania, for Appellee.

Before: Honorable David W. Craig, Judge, Honorable Joseph T. Doyle, Judge, Honorable Jacob Kalish, Senior Judge

Author: Kalish

[ 126 Pa. Commw. Page 144]

OPINION BY SENIOR JUDGE KALISH

Lori Jin Kirsch (appellant) appeals an order of the Court of Common Pleas of Lawrence County, which disallowed any testimony offered by Thomas A. Oravecz and further disallowed any testimony relating to any condition caused by either the defective design or construction of the stairway in question. We reverse and remand.

This is an action in trespass for negligence. The appellant fell on a stairway and alleged that the stairway was defectively designed and constructed.

The Parking Authority of the City of New Castle (appellee) filed written interrogatories pursuant to the Pennsylvania Rule of Civil Procedure relating to discovery. The appellee in interrogatory number twenty-seven directed the appellant to attach copies of any reports from any expert that appellant proposed to call at trial. The only report attached was a medical report. There was no mention of Thomas A. Oravecz, a professional engineer whose testimony appellant did intend to use. Furthermore, in interrogatory number twenty-eight, appellant was requested to state specifically and in detail the nature of any and each defect claimed, how the stairway should have been constructed, and to state any code violations. The appellant made no answer to this interrogatory. Thus, at a pre-trial conference at which all counsel were present, counsel for the appellee requested the court to preclude any testimony of appellant's expert.

The court held a hearing, and entered an order, whereby it disallowed any testimony offered by the expert and sua sponte any testimony relating to matters in regard to any condition caused by either the defective design or construction of the stairway in question.

[ 126 Pa. Commw. Page 145]

In accordance with section 762 of the judicial Code, 42 Pa. C.S. ยง 762, this court is vested with appellate jurisdiction of appeals from final orders of the courts of common pleas. An order constitutes a final" order if it (1) ends the litigation or disposes of the entire case; (2) effectively puts a litigant "out of court;" or (3) precludes a party from presenting the merits of his or her claim to the trial court. Bollinger v Obrecht, Pa. Commonwealth Ct. , , 552 A.2d 359, 361 (1989).

In the present case, the appellant's complaint alleges that her injuries were caused by the defective and improper construction of the stairway. Appellant's case is based on the condition of the stairway; therefore, the exclusion of appellant's expert testimony precludes her from presenting the merits of her claim concerning the allegations of defective and improper construction. The trial court's ruling effectively puts appellant "out of court" with respect to her allegations relating to the stairway construction. While every order excluding evidence ...


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