Superior Court Overturns Trial Court's Allowance of Amendment of Complaint During Trial To Add Claim of Punitive Damages

UPDATE:  Under a July 31, 2025 Order, the Superior Court withdrew this decision and granted an argument en banc on the issues presented.

In the case of Bernavage v. Green Ridge Healthcare Group, LLC, No. 1576 MDA 2023 (Pa. Super. May 19, 2025 Bowes, J., Olson, J., and Stabile, J.)(Op. by Stabile, J.), the Pennsylvania Superior Court affirmed the entry of a compensatory damages award by a jury after a medical malpractice trial but vacated the jury's award of punitive damages after finding that the trial court erred by allowing the Plaintiff to amend the Complaint during the trial to add the claim for punitive damages.

According to the Opinion, the underlying case involved two (2) trials, one under compensatory damages aspect of the case and a second, later trial limited to consideration of whether punitive damages should be awarded against the Defendants.

It was noted that, during the course of the first trial, the Plaintiffs moved for a directed verdict on the issues of negligence and recklessness. At that time, the Plaintiff also made a request to file an Amended Complaint to conform the evidence elicited at trial to the pleadings. The request for a directed verdict was denied but the Plaintiff was allowed to file an Amended Complaint to add allegations of recklessness and to include a claim for punitive damages. The court also severed the issues related to the punitive damages claim to be resolved at a second, later trial with a different jury.

After the jury in the first trial entered an award in favor of the Plaintiff, the pleadings were reopened by the trial court and the parties proceeded to conduct punitive damages discovery prior to the second trial.

There was then a second trial at which the jury entered an award of punitive damages.

Following the punitive damages trial, the Defendants filed various post-trial motions and, eventually, this appeal. A central issue on appeal was whether the trial court abused its discretion in allowing, in the middle of a trial and after the expiration of the applicable statute of limitations, the Plaintiff to amend the Complaint to add allegations of recklessness and the claim for punitive damages.

The Superior Court ruled that the amendment of the Complaint to allow for claims of recklessness was not barred by the applicable statute of limitations. The main rationale for the appellate court’s decision in this regard was that recklessness and gross negligence are not to be considered distinct causes of action separate and apart from claims of ordinary negligence.

However, the appellate court did find that the trial court’s decision, during the course of trial, to allow the Plaintiff to add a claim for punitive damages was improper as that resulted in an unfair surprise to the Defendants at that late hour of the case.

The appellate court noted that the record revealed that the Plaintiffs did not pursue a claim of recklessness during the course of discovery and only introduced the concept of recklessness for the first time during the course of the trial.

The Superior Court noted that the Plaintiff’s failure to develop the specific theory of recovery in the form of recklessness during the course of discovery was not, in this case, a mere technicality subject to being cured by an amendment of the Complaint to conform to the evidence at any point.  Rather, the Superior Court noted that the record in this case revealed that the Plaintiff had developed a theory of liability at trial that was substantively different from the theory developed by the Plaintiff during the course of discovery and as alleged in the original Complaint.

The Superior Court additionally noted that the Plaintiff had solicited the word “reckless” from witnesses during the course of a trial, which witnesses, in the eyes of the Superior Court, could not be expected to understand the legal significance of that term. The Superior Court noted that the witnesses’ use of the word “reckless” in their testimony was of no legal significance until the trial court subsequently permitted the Plaintiff’s Amended Complaint in which recklessness was then alleged for the first time.

Accordingly, the appellate court found that this matter did not involve simply an amendment of the pleadings in order to conform the Complaint to the evidence produced at trial. Rather, the Superior Court viewed this matter as involving an introduction of a new theory of recovery at a late date in the proceedings, which action was of the type that is frowned upon by the courts and which often results in a violation of the statute of limitations.

While the court found that the statute of limitations did not serve to bar the addition of a claim of recklessness under this set of facts and given that recklessness is only considered a state of mind in regards to a negligence claim, the Superior Court found that the unfair surprise to the opposing party from the late amendment served as grounds that should have compelled the trial court to deny permission to amend the Complaint. 

The Superior Court concluded that unfair surprise existed in this case “where a negligence Plaintiff, without explanation, withholds the precise theory of recovery until the latest possible time.” 

The court noted that, if, as the Plaintiff asserted, the facts of the Plaintiff’s original Complaint were sufficient to support a recklessness theory of recovery, then the Plaintiff should have developed that theory during the course of discovery. The Superior Court noted that, while it ascribed no motive to the Plaintiff in this case, it felt that, to reach a different conclusion, would be to invite negligence plaintiffs to withhold their theory of recovery, whether it is a negligence, gross negligence, or recklessness claim, until the last possible minute for the specific purpose of creating an unfair surprise to the opposing party. 

For these reasons, the Superior Court concluded that the trial court abused its discretion in permitting the Plaintiff to amend their Complaint during the course of trial to add a claim for punitive damages.

As such, the Superior Court affirmed the jury’s verdict relative to the award of compensatory damages but vacated the second jury’s award of punitive damages. The case was remanded for further proceedings.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Joseph T. (“Jody”) Healey of the Scranton, PA law firm of Cipriani &Werner for bringing this case to my attention.

ARTICLE: Use of Exhibits in Opening Statements: Win Your Case Before Any Witness Even Takes the Stand

 

Here is a LINK to an article of mine that appeared in the May/June 2025 edition of The Pennsylvania Lawyer Magazine published by the Pennsylvania Bar Association.  

The article is entitled "Use of Exhibits in Opening Statements is Allowed" and analzyes the recent decision by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Webb v. Scranton Quincy Hosp. Co., LLC.  

In his Opinion in the Webb case, Judge Nealon laid out, for the first time, the law that supports the use of exhibits during Opening Statements in personal injury matters.  

Gone are now the days where lawyers could only utilize exhibits during Opening Statements if the opposing counsel has no objection to the same.  Now there is law that can support a desire to utilize exhibits during an Opening even if the opposing counsel objects.

I send thanks to Patricia Graybill, editor of The Pennsylvania Lawyer Magazine for agreeing to publish this article.

If A Defendant Fails to Appear For Trial, A Plaintiff Still Must Prove Case

In the case of Zappacosta v. McAvoy, No. 2024 Pa. Super. 225 (Pa. Super. Sept. 27, 2024 Panella, P.J.E., Beck, J., Colins, J.) (Op. by Colins, J.), the court addressed the entry of a default judgment against a Defendant in a breach of contract case, which default was entered due to the Defendant’s failure to appear at trial.

On appeal, the court noted that the trial court had erred in denying a motion by the Defendant to strike a default judgment.

In so ruling, the Superior Court reviewed the parameters of Pa.R.C.P. 218 which covers the actions a trial court may take if a party fails to appear at trial without a satisfactory excuse.   

The court noted that, since Pa. R.C.P. 218 did not permit a trial court to enter a judgment for failure of a Defendant to appear without requiring the Plaintiff to prove the Plaintiff’s case, it was an error of the trial court to deny the Defendant’s Motion to Strike the Default Judgment that was entered due to the Defendant’s failure to appear.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Court Summaries” by Timothy L. Clawges, Pennsylvania Bar News (Oct. 21, 2024).

Superior Court Affirms Grant of New Trial Based On Counsel Persistently Asking Questions About Inadmissible Matters

In the Non-Precedential decision by the Pennsylvania Superior Court in the case of Lopez v. Crown Equipment Corp., No. 3146 EDA 2022 (Pa. Super. May 21, 2024 Dubow, J., McLaughlin, J. and King, J.) (Op. by Dubow, J.), the Court affirmed a trial court’s granting of a new trial to a Plaintiff after a verdict was entered for a Defendant in a products liability case.

On appeal, the Superior Court noted that the defense counsel’s persistent questions about matters that were inadmissible in this strict liability matter served to prejudice the Plaintiff, thus requiring a new trial.

The Superior Court noted that the trial court judge was in the best position to observe how a trial is being conducted and to determine whether statements by counsel or a witness could have a prejudicial effect on the jury.

Anyone wishing to review a copy of this Non-Precedential decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Post-Koken Trial Order Out of Washington County on Evidentiary Issues--Plaintiff Precluded From Calling Claims Rep as Witness

In recent Orders issued by the Washington County Court of Commons Pleas of Cope v. State Farm, No. 2013-CV-2188 (C.P. Wash. Co. Oct. 21, 2015 Nalitz, J.), the court granted Defendant insurance company’s Motion In Limine and precluded the Plaintiff from offering any evidence at a Post-Koken trial related to the carrier’s evaluation of the claims, the carrier’s possible agreement to waive subrogation for the tortfeasor, any payment of benefits to the Plaintiff for any claims, including property and/or first party claims, and pertaining to settlement offers.  

The court also agreed to grant the Defendant carrier’s Motion In Limine regarding the scope of and/or preclusion of the testimony of a corporate designee for the Defendant and thereby precluding the Plaintiff from calling any representative of State Farm to testify at trial on claims handling activities.  

According to the information secured in this matter, this case involved a trial against State Farm as the UIM carrier.  There was no tortfeasor defendant involved in this trial.  

Anyone desiring a copy of these Orders may contact me at dancummins@comcast.net.

ARTICLE: TO CALL OR NOT TO CALL: Dilemma Created by Unfavorable Expert Report

At times, a defense expert report unfavorable to the defense position comes in the mail that makes a case more troublesome, or in some cases, easier, to settle.  Where such a case instead proceeds to trial, a Defendant may choose not to call the IME doctor as a trial witness and issues arise over the extent to which a Plaintiff may attempt to utilize the defense expert's report to further the Plaintiff's case-in-chief.

An article of mine entitled "To Call or Not to Call: Dilemma Created by Unfavorable Expert Report" addressing these issues was recently published in the Spring 2015 edition of the Civil Litigation Update (Vol. 19, No. 2 Spring 2015) issued by the Civil Litigation Section of the Pennsylvania Bar Association.

Anyone wishing to review this article may click this LINK..

Judge Nealon Rules in Favor of Consolidation for Post-Koken Trials (And Also Rules on Appropriate Jury Instructions)

In his April 15, 2015 decision in the case of Kujawski v. Fogmeg and Allstate, No. 2012-CV-3395 (C.P. Lacka. Co. April 15, 2015, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued another notable post-Koken decision in which he became one of the first few judges from across the Commonwealth of Pennsylvania to address the issue of whether or not a post-Koken third party/UIM matter should proceed to trial in a consolidated or bifurcated fashion - - Judge Nealon came down on the side of the consolidation and against bifurcation.  

However, Judge Nealon did rule that separate coverage issues presented with respect to the UIM claim should and would be bifurcated from the liability and damages claims presented in the negligence and UIM matters.  

According to the Opinion, the issue before the court revolved around whether a Plaintiff’s third party liability claim and underinsured motorists (UIM) claim may be tried in a single proceeding before the same jury, and if so, what jury instructions should be provided regarding the named parties and the questions to be decided by the jury.

In this matter, the tortfeasor Defendant was objecting to a consolidated trial with an insurance company as a Co-Defendant.  According to the Opinion, the UIM carrier did not object to a consolidated trial. 

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon ruled that, since the potential liabilities of the tortfeasor and the UIM carrier for damages arose out of the same factual background and involved common questions of law in fact, the Plaintiff’s liability and UIM claims would be consolidated for a single trial pursuant to Pa. R.C.P. 2229(b).  

The court also ruled that, given that the identification of the UIM carrier as a real party in interest and as a potential provider of UIM coverage did not introduce evidence of the tortfeasor’s liability insurance in violation of Pa. R.E. 411, the UIM carrier would be identified to the jury as a named Defendant who was furnishing prospective UIM coverage.  Judge Nealon noted that this identification of the UIM carrier by name as well as the reason as to why that carrier was in the case was necessary so that the jury would understand the participating UIM insurance carrier’s status as an adverse party to the Plaintiff.  

As noted above, Judge Nealon separately ruled that the UIM coverage dispute involving the Plaintiff’s residency and her entitlement to UIM benefits from the UIM carrier did not arise out of the same occurrence or involve common questions of law or fact as the parties’ liability and damages disputes.  Accordingly, the court ruled that the trial would be bifurcated on that separate issue pursuant to Pa. R.C.P. 213(b).  The court noted that the jury would first address the merits of the Plaintiff’s personal injury claims and render a verdict on the liability and damages issues.  

Judge Nealon went on to note that, if the jury awarded damages in excess of the tortfeasor’s liability insurance policy limits, such that UIM coverage was triggered, the second phase of trial would be conducted on the coverage issue to determine whether the Plaintiff was a resident of her grandparents’ home at the time of the accident so as to be entitled to UIM benefits under that UIM policy at issue.

Judge Nealon further noted that, in the event a jury awards damages in an amount less than the tortfeasor’s liability insurance limits, the issue of the Plaintiff’s residency and the applicability of her grandparents’ UIM coverage would be rendered moot.

In his thorough Opinion on the issue of joinder or bifurcation of post-Koken claims at trial, Judge Nealon confirmed that he had reviewed the law of other jurisdictions in this case as well as in his prior decision in the case of Bingham v. Poswistilo, 24 Pa. D. & C. 5^th 17 (C.P. Lacka. Co. 2011 Nealon, J.), which research revealed that of the decisions on the separate, but similar, issue of consolidation/severance at the commencement of the case arising out of 33 other states, 27 jurisdictions allowed for the joinder of UM/UIM claims with civil actions against tortfeasors, while six (6) states favored severance of UM/UIM claims from tort actions.  

In ruling that liability in UIM claims may be joined for a single trial, Judge Nealon relied in part on the Pennsylvania Superior Court decision in Stepanovich v. McGraw and State Farm, 78 A.3d 1147 (Pa. Super. 2013), appeal denied, 89 A.3d 1286 (Pa. 2014).

 

On the separate issue of the content of the jury instructions for a Post-Koken trial, the Plaintiff requested the court to utilize those instructions Judge Nealon had crafted in his prior decision in the case of Moritz v. Horace Mann Property and Casualty Insurance Company, 2014 W.L. 5817681 (C.P. Lacka. Co. 2014 Nealon, J.).  The court noted that Allstate objected to certain portions of those jury instructions set forth in the Moritz case.  

The tortfeasor Defendant was additionally arguing that neither the identity of the UIM carrier as a party, nor the question of the Plaintiff’s UIM claims, should be disclosed to the jury in the jury instructions.  

Judge Nealon agreed that the entirety of his proposed jury instructions as crafted in the Moritz case should not be read to the jury in this matter as the jury instructions drafted in the Moritz case were “appropriate only a case in which the Plaintiff has sued the UIM insurer alone after having secured payment of the tortfeasor’s insurance policy limits.”  

For this reason, Judge Nealon agreed to somewhat limit the extent of his jury instructions in this case involving both a negligence claim against the third party tortfeasor and a UIM claim against the Plaintiff’s own carrier.  The court also tailored its jury instructions in this matter in light of the separate coverage dispute that was still pending with regards to the potential UIM claim.  

Overall, Judge Nealon agreed that the jury instructions in this matter should not reference the existence or amount of the tortfeasor’s liability insurance coverage as that would prejudice the tortfeasor in violation of the mandate under Pa. R.E. 411 prohibiting any reference to a tortfeasor's liability coverage at trial.  

In this Kujawski case, Judge Nealon stated that he would instruct the jury that the Plaintiff was required by law to establish by a preponderance of the evidence that the tortfeasor was negligent, that the tortfeasor’s negligence caused harm to the Plaintiff, and that the Plaintiff suffered damages as a result of her injuries.  

The court noted that the jury would also be informed in this Post-Koken matter that the policy of the UIM carrier (referenced by name in the instructions) provided underinsured motorists coverage, which may be available to pay some of the damages that may be awarded. 

Judge Nealon also planned to instruct the jury that the UIM carrier (again, referenced by name) should not be treated “any differently than any other Defendant in a civil action simply because [name of the UIM carrier] is an insurance company.”  

Judge Nealon also ruled that, given his ruling in favor of bifurcation on the separate coverage issue, the jury would also be advised that, depending upon its verdict at the conclusion of the liability and damages portion of the trial, the jury may be required to hear additional evidence and render a second verdict with regards to the Plaintiff’s residency at the time of the accident.    

Anyone wishing to review this Opinion may click this LINK. 

I send thanks to Attorneys Chad DeFelice and Joseph Pulcini, Jr. of the Bethlehem, PA office of the Thomas, Thomas & Hafer law firm for bringing this case to my attention.

Pa.R.E. 611(c)(2) Amended, Effective Immediately

Here is a LINK to the amended Pa.R.E. 611(c)(2) which governs the court's discretion to control the direct and cross-examinations of witnesses at trial.  The amendment is effective immediately.

The amendments pertain to the scope of the court's discretion to allow leading questions to be posed to a hostile witness.

It would appear that this amendment may have more impact in criminal trials, but would also be applicable in a civil trial whenever a witness may properly be deemed to be hostile to the questioning attorney's client.

ARTICLE: TRIAL TIPS 101

Here is a LINK to my recent article published in the Pennsylvania Lawyer Magazine entitled "Trial Tips 101" which reviews fundamental tips offered in order to try to help make your next trial a bit smoother in terms of preparation and presentation.  Hope you find it somewhat helpful, either as new information or a refresher. 

I send thanks to the editors of the Pennsylvania Lawyer Magazine, Don Sarvey and Geoff Yuda, for agreeing to publish the piece.

PA Superior Court Affirms Right of Defendant to Ask Plaintiff's Doctor at Trial if Plaintiff's Attorney Referred Plaintiff (Non-Precedential)

Tort Talkers may recall a previous blog post on the Philadelphia County trial court's decision in the case of Fullam v. Miller Bros., et al. in which that court upheld a Defendant's right in a personal injury matter to cross-examine the Plaintiff's doctor on the fact that the Plaintiff was referred to the doctor by Plaintiff's attorney.  To review that blog post, click HERE.


UPDATE:  In its April 30, 2014 "non-precedential" Memorandum Opinion, the Pennsylvania Superior Court affirmed the trial court's decision.  See Fullam v. Miller Bros, et al., No. 106 EDA 2014 (Pa.Super. 2014 Bender, P.J, Ott, J., Strassburger, J.)(mem. op. by Ott, J.)(dissenting op. by Strassburger, J.).

Concisely, the Pennsylvania Superior Court agreed  that cross-examination of the Plaintiff's doctor as to the source from which the Plaintiff obtained the name of the doctor was relevant to the potential bias of the doctor.

The Superior Court's majority non-precedential memorandum opinion may be viewed HERE.  Judge Strassburger's dissenting opinion may be viewed HERE.


Source:  Supplement to 32nd Annual Pennsylvania Auto Insurance Law Book (2014) issued by the Pennsylvania Association for Justice.

Big Post-Koken Question Of How to Handle "Insurance" At Trial Will Remain Unanswered For Now

The Pennsylvania Supreme Court has denied the Petition for Appeal in the Post-Koken case of Stepanovich v. McGraw and State Farm.  Click HERE to review the Court's Order.

Too bad....another opportunity for much-desired appellate guidance on important and novel Post-Koken issues is lost.

Tort Talkers may recall that, at the Superior Court level, that appellate court found no error in allowing two defense attorneys to participate in the trial, one for the tortfeasor Defendant and one for  the UIM carrier Defendant, in a case where the jury was not advised as to the identity of the insurance company Defendant or why there were two defense attorneys.  The double-team defense against the Plaintiff in that matter resulted in a defense verdict.

For more details on the import of the Pennsylvania Superior Court's decision in Stepanovich, which the Pennsylvania Supreme Court has now refused to review, click HERE to review my November 19, 2013 Pennsylvania Law Weekly article on the case entitled "Superior Court Leaves Big Post-Koken Question Unanswered."

Police Reports Generally Not Admissible in Auto Accident Litigations

In its recent decision in the case of Phillips v. Lock, 2014 PA Super 38, No. 1634 EDA 2013 (Pa. Super. Feb. 28, 2014 Shogan, J., Ott, J., and Platt, J.) (Opinion by Platt, J.), the Pennsylvania Superior Court found that a trial court properly denied a Motion to Amend a Complaint to add a new and distinct party on the morning of trial after the statute of limitations had run in a motor vehicle accident litigation.   The Plaintiff was attempting to join an alleged owner of a vehicle under an negligent entrustment theory. 

 

This decision is also notable for the Court’s Opinion that a police report containing statements made at the accident scene were not admissible under Pa. R.E. 803(8) or as an official record exception to the hearsay rule at 42 Pa. C.S. § 6104.

 

In addition to essentially finding that the Plaintiff had waived the evidentiary issue regarding the police report, the appellate court nevertheless noted that Section 3751 of the Vehicle Code specifically provides that a police report “shall not be admissible as evidence in any action for damages… arising out of a motor vehicle accident.”   75 Pa. C.S. §3751(b)(4).  

 

The Court additionally noted that “[a] police report prepared by an officer who is not a witness to the accident is inadmissible hearsay evidence and should not be admitted into evidence.  Nor should a party be able to get such a report into evidence in an indirect manner.”   Phillips at p. 23 citing Rox Coal Co. v. WCAB (Snizaski), 807 A.2d 906, 914 (Pa. 2002) (other citations omitted).  

 

Here, the Court found no abuse of discretion by the trial court in precluding the police report given that the police report did not witness the accident and the Motor Vehicle Code otherwise precludes the admission of such a report into evidence.  

 

The Court in Phillips additionally precluded evidence of a Social Security Disability award as such information was found not to be admissible under Pa. R.E. 803 (pertaining to a declarant’s then-existing state of mind exception; medical diagnosis of treatment exception).

 

The Plaintiffs in this matter were asserting that their medical expert should have been permitted to testify to records reviewed from the Social Security Administration Disability record and from a disability insurance carrier.  

 

In so ruling, the Court noted that the records at issue did not reference the subject motor vehicle accident.   Moreover, according to the disability records, the first date of disability was not until nine (9) months after the accident and it was indicated in those records that the Plaintiff’s symptoms had developed the night before that date of the onset of the disability.  

 

This decision is also notable for the court's reiteration of the rule that a  party must present a Motion for a Directed Verdict at the close of the case or a proposed binding jury instruction in order to support the presentation of a motion for judgment notwithstanding the verdict (JNOV) after the entry of an adverse verdict.

Anyone wishing to review this Opinion may click HERE.



Source: "Court Summaries" by Timothy L. Clawges in the Pennsylvania Bar News (4/7/14).

Source of image:  www.orlandocriminaldefenseattorneyblog.com

Repeat of Yesterday's Blog Post on Joyce v. Jack Locker Constr. (Trial Continuance Request) WITH CORRECTED LINK TO OPINION

Lackawanna County Courthouse (Right)
Scranton Electric Building (Left)

In his recent decision in the case of Joyce v. Jack Locker Const., Inc., 2013 WL 6437917 (C.P. Lacka. Co. Dec. 2, 2013 Nealon, J.), Judge Terrence R. Nealon denied a defendant's request for a continuance of a trial on the basis of the unavailability of a defense expert.


In so ruling, the court noted that the notice for the original status conference cautioned counsel to secure the availability of the parties and any expert witnesses for trial as once a trial is set in Lackawanna County "no continuances will be granted due to the unavailability of counsel or a party or expert witness."  Judge Nealon otherwise noted that, under Pa.R.C.P. 216 a trial continuance could be secured for other reasons not applicable to this matter such as, for example illness of an attorney or material witness or where circumstances beyond a party's control make it impossible or fundamentally unfair to proceed to trial.


In this matter, the motion for continuance was filed one week before trial and 2 1/2 months after the trial date was set.  Here the court noted that there had been ample time to complete the videotaped trial testimony of the expert if necessary.


Based on the above the motion for a trial continuance was denied.


Anyone wishing to review a copy of this Opinion by Judge Nealon may click this LINK

Last-Minute Motion for Continuance of Trial Due to Unavailability of Expert Denied in Lackawanna County

Lackawanna County Courthouse (Right)
Scranton Electric Building (Left)

In his recent decision in the case of Joyce v. Jack Locker Const., Inc., 2013 WL 6437917 (C.P. Lacka. Co. Dec. 2, 2013 Nealon, J.), Judge Terrence R. Nealon denied a defendant's request for a continuance of a trial on the basis of the unavailability of a defense expert.


In so ruling, the court noted that the notice for the original status conference cautioned counsel to secure the availability of the parties and any expert witnesses for trial as once a trial is set in Lackawanna County "no continuances will be granted due to the unavailability of counsel or a party or expert witness."  Judge Nealon otherwise noted that, under Pa.R.C.P. 216 a trial continuance could be secured for other reasons not applicable to this matter such as, for example illness of an attorney or material witness or where circumstances beyond a party's control make it impossible or fundamentally unfair to proceed to trial.


In this matter, the motion for continuance was filed one week before trial and 2 1/2 months after the trial date was set.  Here the court noted that there had been ample time to complete the videotaped trial testimony of the expert if necessary.


Based on the above the motion for a trial continuance was denied.


Anyone wishing to review a copy of this Opinion by Judge Nealon may click this LINK