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[U] Eisbacher v. Davidson

Superior Court of Pennsylvania

February 6, 2014

JESSICA EISBACHER, Appellant
v.
RICHARD J. DAVIDSON AND GEICO INDEMNITY COMPANY,

NON-PRECEDENTIAL DECISION

Appeal from the Judgment Entered April 3, 2013 In the Court of Common Pleas of Lackawanna County Civil Division No(s).: 2010-05348.

BEFORE: BENDER, P.J., WECHT, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, Jessica Eisbacher, appeals from the judgment entered in the Lackawanna County Court of Common Pleas in favor of Appellees, Richard J. Davidson and GEICO Indemnity Company. Appellant contends the court erred by (1) precluding evidence regarding negligence, (2) improperly prejudicing the jury in favor of Appellees, and (3) improperly charging the jury. We affirm.

We state the facts and procedural history as set forth by the trial court.

On August 2, 2010, [Appellant], through Attorney Michael J. Pisanchyn, Jr., filed a civil complaint against [Appellees]. The complaint relates to a two vehicle collision, which occurred on October 31, 2008 at the intersection of Pittston Avenue and Hickory Street in Scranton . . . . At the time of this collision, this intersection was controlled by a traffic light.
The complaint contains a "negligence" count (count one) against [Appellee] Davidson and a "breach of contract" claim (count two) against [Appellee] Geico for underinsurance motorist benefits. . . .
Prior to trial, [Appellee] Davidson filed a motion to bifurcate trial, requesting the bifurcation of the negligence claim asserted against [Appellee] Davidson from the breach of contract claim asserted against the UIM carrier Geico. By order dated May 22, 2012, this court adopted the stipulation of the parties which provided, in part, that (a) Geico would not participate in the trial and (b) Geico agrees to pay any verdict in excess of [Appellee] Davidson's automobile insurance policy limits, up to Geico's underinsurance motorist limits.
The case was originally scheduled for trial on May 29, 2012. At the pre-trial conference on April 25, 2012, it was discovered that [Appellant's] counsel . . . intended to call additional witnesses that were not specifically listed on the parties' joint pre-trial submission. To avoid any prejudice to [Appellee Davidson] and to avoid imposition of a preclusion sanction against [Appellant], this court, with some degree of reluctance, continued the trial to October 1, 2012.

Trial Ct. Op., 3/15/13, at 2-3 (citations and some capitalization omitted).

On the eve of trial, [Appellant's] counsel . . . forwarded a subpoena to Ms. Hope Rose, a State Farm [insurance] adjuster who resided some distance from Scranton, Pennsylvania[, the place of trial]. Ms. Rose was another witness who was not disclosed on the joint pre-trial submission. Sometime after the subject accident, more specifically on November 28, 2008, Ms. Rose had a telephonic discussion with [Appellee] Davidson, her insured. As a result of this discussion, Ms. Rose recorded, in the form of a log entry, what [Appellee] Davidson told her[, i.e., note 106, which is reproduced below.]
On September 28, 2012, [Ms. Rose's counsel filed] a motion to quash [Appellant's] subpoena to attend and testify. In addition to stating the entire historical background regarding Ms. Rose's anticipated testimony, this motion stated that on Wednesday, September 26, 2012, [Appellant's] counsel faxed a subpoena to Ms. Rose, instructing her to appear for trial on October 1, 2012. This subpoena allegedly failed to comply with the requirement of Pa.R.C.P. 234.2, relating to proper service and payment of witness attendance fees. As noted in the motion, counsel for Ms. Rose informed the court that he was not available for a court appearance on October 2 and October 3, 2012 and that Ms. Rose had a pre-planned vacation scheduled for October 4th through October 9, 2012. Upon receipt of this motion, this court scheduled an argument on the motion to quash for Monday[, ] October 1, 2012, prior to trial commencing. Prior to the argument, the parties entered into a stipulation, which reads as follows:
Stipulation of the Parties
The parties, by and through their respective representative counsel, hereby agree as follows:
1. The parties agree that the adjuster notes are authenticated and will be allowed to be used at the time of trial.
2. The parties agree that the jury may be advised that these notes were made contemporaneously with any statements taken and taken on behalf of and for the benefit of [Appellee Davidson].
4. The parties specifically agree to a reading and/or referencing of note 106 as to the statements contained in exhibit 1 of this stipulation. Any use of the remaining notes would be subject to admissibility pursuant to Pa.R.E.
5. The notes other than note 106 are stipulated authentic and their admissibility shall be governed by the applicable Pennsylvania Rules of Evidence.
7. It is further agreed by the parties that the notice to attend directed to Hope Rose is hereby withdrawn, and that she need not attend the trial of this matter. . . .

Id. at 5-7 (citations and some capitalization omitted).

We excerpt and reproduce the relevant portions of the notes at issue, as referenced by the above stipulation. Note 104 was entered by a person named "Ortiz" on November 26, 2008:

[Appellee Davidson's vehicle] entered the intersection on red light & was struck by [Appellant's vehicle] which caused [Appellee Davidson's vehicle] to strike [a third vehicle] head on which was stopped at red light in opp direction. . . .

Ex. 63.

Note 105 was entered by Ms. Rose on November 28, 2008, at 2:38 p.m.:

## Task rep: Please advise of sequence of lights on Pitts Ave[.] north and south bound at the intersection of Hickory St. [Appellee Davidson] S/B approaching intersection as Clmt Russell was N/B. [Appellant] was E/B on Hickory St. [Appellee Davidson] contends green light was green. Clmt Russell contends stopping at red light. [Appellee Davidson] admits to being blinded by sun glare at time of loss. [Redacted]. [(]PR diagram is wrong. [Appellee Davidson] contends [Appellant] broadsided him in right rear[)]. Thanks[.]

Id.

Note 106 was also entered by Ms. Rose on November 28, 2008, at 2:46 p.m.:

C: Rec call from NI Richard. Reviewed PR. [Appellee Davidson] believed he had green light. [He] admits that he had sun glaring at him. Explained we can send a task rep to the scene to confirm sequence of lights for his direction. [Redacted]. [Appellee Davidson] confirmed [he] was rotated and spun around and collided with Clmt Russell approaching from opposite direction of [Appellee Davidson]. [Redacted]. . . .

Id.

Note 107 was entered by Jenna Pattinson on ...


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