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July 29, 1997


Appeal from the ORDER ENTERED December 27, 1995, in the Court of Common Pleas of DELAWARE County, CIVIL, No. 93-16145. Before KOUDELIS, J.

Appeal from the Order of the Court of Common Pleas of Delaware County, Civil Division at No. 93-16145. Before KOUDELIS, J.

Before: Del Sole, Popovich and Olszewski, JJ. Opinion BY Olszewski, J. Dissenting Opinion by Popovich, J.

The opinion of the court was delivered by: Olszewski

Filed July 29, 1997


Appellant Eugene Mitchell appeals from the trial court's December 27, 1995, order which vacated a $532,000 jury verdict entered in his favor and granted a new trial to appellees, Gravely International, Inc. (Gravely) and Niemeyer Corporation (Niemeyer). We reverse.

This matter originates from Mitchell's October 31, 1991, grievous fall from a mowing tractor manufactured by Gravely and owned, distributed and supplied by Niemeyer. Mitchell was operating the machine during the course of his employment with the Convent of Our Lady of Angels (the convent), to whom Niemeyer had supplied the mower for a sales demonstration. At the time of the accident, Mitchell had just washed the machine and was driving along a paved road leading to the convent's garage. Mitchell testified at trial that the mower suddenly accelerated and struck the curb, hurling him from the driver's seat. Most unfortunately, appellant sustained serious bodily injuries as a result of the accident, including broken facial bones and a permanent loss of cognitive abilities. Subsequently, Mitchell filed an action based upon strict products liability against Gravely and Niemeyer plus a negligence claim against Niemeyer, alone, for failing to properly maintain the mower. Following a trial on the matter, a jury found against both defendants. The defendants filed post-trial motions demanding a new trial. Said motions were granted by order of the trial court dated December 27, 1995, and this appeal follows.

At the outset, we note that the decision whether to order a new trial is one that lies within the discretion of the trial court. Coker v. S.M. Flickinger Co., 533 Pa. 441, 625 A.2d 1181 (1993). Moreover, unless the trial court grossly abuses its discretion or commits an error of law, its determination must stand. Id. Instantly, the trial court based its decision to grant a new trial upon its determinations that it had erred in: (1) allowing Mitchell to call Sister Mary Regis, an elderly nun at the convent, to testify in rebuttal to defense experts' opinions, and (2) accepting the jury's verdict even though the jury twice acted in violation of the trial court's charges. We find that the trial court committed errors of law and grossly abused its discretion in reaching both of the above Conclusions. Accordingly, we reverse the December 27th order.

First, the trial court determined that Sister Regis's testimony was improper for rebuttal and, as such, that it had erred in allowing the nun to testify. We disagree. "The admission or rejection of rebuttal evidence is within the sound discretion of the trial Judge." Neal by Neal v. Lu, 365 Pa. Super. 464, , 530 A.2d 103, 110 (1987) (quotation omitted). Moreover, our Supreme Court has stated that "rebuttal is proper where facts discrediting the proponent[']s witnesses have been offered." Flowers v. Green, 420 Pa. 481, , 218 A.2d 219, 220 (1966) (quoting Schoen v. Elsasser, 315 Pa. 65, 66, 172 A. 301, 302 (1934)). Instantly, Sister Regis's testimony was limited to facts which discredited appellees' witnesses.

First, she stated that she observed Eugene Mitchell's blood on the curb and ground on the right side of the convent's driveway. N.T., 9/12/95 at 22. She did not see any blood on the left side of the driveway. Id. These facts clearly discredit Hugh Grow, appellees' expert in agricultural engineering and accident reconstruction, whose testimony shed doubt upon the manner in which Mitchell's injury occurred. Specifically, Grow stated:

If the machine struck the right curb, then I think the operator stayed on that point sufficient to keep the seat switch activated until the machine had, at least in part if not totally, climbed the left curb.

My opinion would be that he had to be on the machine at least until it partly if not totally climbed the left curb.

N.T., 9/8/95 at 13, 16. Sister Regis's testimony, that she only saw blood on the right side of the driveway, clearly discredits Grow's version of how the accident occurred and was, therefore, proper rebuttal evidence. See Schoen, (supra) . *fn1

Sister Regis also testified that, on a prior occasion, she had witnessed Mitchell's co-worker, Jim Kimmery, driving the mower. During that incident, she had been working in the convent's yard when she heard the screeching of the mower's tires. N.T., 9/12/95 at 24. Alarmed by the noise, she turned and saw Kimmery turn quickly into the driveway with fear on his face. Id. at 24-25. Once the vehicle stopped, Sister Regis heard Kimmery exclaim, "I thought I'd never get it stopped." Id. at 28. These facts discredit the testimony of Dr. Clyde C. Richard, an expert in mechanical engineering, human factors, and accident reconstruction presented by appellees. Dr. Richard testified that he did not consider the incident involving Kimmery to be similar to the one involving Mitchell. N.T., 9/11/95 at 45. Accordingly, the facts presented by Sister Regis, which tend to show the similarity of the two incidents, clearly discredit Dr. Richard's testimony and, thus, were entirely proper as rebuttal evidence. See Schoen, (supra) .

Appellees make much of the fact that Sister Regis's testimony served to rebut opinions rather than facts. Since Sister Regis, herself, was limited to testifying about facts, appellees' argument is not persuasive. Our decision in Mapp v. Dube, 330 Pa. Super. 284, 479 A.2d 553 (1984), is instructive on this matter. Mapp involved a lawsuit filed by the estates of two women consumed in a fire against the owners of the apartment building where the women perished. On appeal, the building owners alleged that the trial court erred in allowing "a tenant of the destroyed building to testify as a rebuttal witness that she heard women screaming from the inside of the burning building." Id. at , 479 A.2d at 557. This Court resolved the matter by reasoning:

The record reveals the testimony of [the owners'] fire expert that, in all probability, the conditions inside the building at the time of the fire resulted in the instantaneous deaths of the women. Rebuttal testimony as to the possibility that the women might not have died immediately and, indeed, might have suffered prior to their demise, was certainly relevant to the issue of damages. We therefore, can discern no abuse of discretion on the part of the trial court.

Id. at , 479 A.2d at 558. Accordingly, it is entirely proper for a rebuttal witness to testify about facts which discredit an opponent's witness's opinions. Id. Accordingly, Sister Regis's testimony may not be attacked in this regard. *fn2

Were we to conclude that Sister Regis's testimony should have been presented during appellant's case in chief, however, we would still be compelled to find that the trial court was not warranted in granting ...

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