HomeMy WebLinkAbout2002-3110 Civil (2)
BENT CREEK LIMITED
PARTNERSHIP
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SILVER SPRING TOWNSHIP
AUTHORITY
NO. 2002-3110 CIVIL
CIVIL ACTION - LAW
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., July 1,2005
Plaintiff has filed a timely appeal from our order of April 13, 2005 denying its
Post Trial Motions. Plaintiff has raised numerous issues in its "Concise Statement of
Matters Complained of on Appeal." All of the issues, except one, were addressed in the
opinions accompanying our Orders of April 13, 2005 and October 19, 2004. We will
address the only remaining issue i. e. whether we erred in limiting the testimony of
plaintiff s expert Dr. Hugh Archer.
The record clearly shows that Dr. Archer was called as a rebuttal witness. 1
Rebuttal testimony is proper where it is offered to discredit the testimony of an
1 When Dr. Archer was not available during Plaintiff's case in chief, counsel asked to reserve him for
rebuttal. (Tr. II, 84). As she stated:
"But I thought that maybe I could rest my case and bring him back as a rebuttal witness,
if I deem it necessary, but I don't want to lose the opportunity - - and I think I'm going to
deem it necessary. I don't want to lose the opportunity if the Court's going to say no, you
can't have an expert in your rebuttal case or if [defense counsel] Mr. Warshaw's not
going to agree."
(Tr. II, 85). Defense counsel replied:
"I don't have no [sic] problem with her calling him as a rebuttal witness ifhe's treated as
a rebuttal witness. I don't think I should have to face her case in chief after my case is
concluded."
(Tr. II, 85). Assuming that the parties had an agreement, we proceeded with the trial. At the conclusion of
her case, plaintiff's counsel acknowledged that Dr. Archer would be called in rebuttal (Tr. II, 123), which
he was (Tr. III, 97).
opponent's witness, Remy v. Michael D's Carpet Outlets, 391 Pa.Super. 436, 443,571
A.2d 446 (1990). The admission or rejection of rebuttal evidence is within our sound
discretion. Mitchell v. Gravely Intern, Inc., 698 A.2d 618 (Pa.Super. 1997).
Furthermore, we may properly exclude rebuttal if the matter was something which the
offering party could have presented during its case in chief. Pittsburgh-Des Moines Steel
Co., Inc. v. McLaughlin, 77 Pa. Cmwlth. 565,466 A.2d 1092 (1983).
In the instant case, plaintiff had already presented expert testimony to the effect
that it should have been given a waiver. Defendant presented expert testimony to the
contrary. We did not want (or need) to hear Dr. Archer reiterate evidence which had
already been presented. Therefore, we limited his testimony to those matters which had
not previously been covered in plaintiff s case in chief.
JULY 1.2005
DATE
Edward E. Guido, 1.
Bridget E. Montgomery, Esquire
213 Market Street, Eighth Floor
P.O. Box 1248
Harrisburg, Pa. 17108-1248
Allen C. Warshaw, Esquire
240 North Third Street, Suite 700
Harrisburg, Pa. 17101-1503
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