Olup, T. v. Pennsylvania American Water

J-A16010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS V. OLUP AND CAROLE A. OLUP, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

PENNSYLVANIA AMERICAN WATER

COMPANY, A PENNSYLVANIA

CORPORATION,

Appellee No. 838 WDA 2015

Appeal from the Judgment July 28, 2015

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): No. GD 10-010764

BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 26, 2016

Thomas V. and Carole A. Olup (collectively, “the Olups”) appeal from

the judgment entered on July 28, 2015,1 in favor of Pennsylvania American

Water Company (“PAWC”). We affirm.

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

1

An appeal properly lies from the entry of judgment, not from the order

denying post-trial motions. Johnston the Florist, Inc. v. TEDCO Constr.

Corp., 657 A.2d 511, 516 (Pa. Super. 1995) (en banc). Nevertheless, a final

judgment entered during pendency of an appeal is sufficient to perfect

appellate jurisdiction. Drum v. Shaull Equipment and Supply, Co., 787

A.2d 1050 (Pa. Super. 2001). Here, the Olups filed a notice of appeal

prematurely on May 27, 2015, prior to the entry of judgment on July 28,

2015. Thus, the Olups’ notice of appeal relates forward to the date

judgment was entered. See Pa.R.A.P. 905(a) (stating notice of appeal filed

after court’s determination but before entry of appealable order shall be

(Footnote Continued Next Page)

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The Olups filed an action sounding in negligence, trespass, and private

nuisance2 against PAWC for property damage to the unoccupied dwelling at

719 Agnew Road (“the Property”), which was caused by a June 14, 2008

water line break near 741/745 Agnew Road in North Baldwin. PAWC owned

and/or maintained the water line. A water line break occurred in

approximately the same location in 1994, damaging the Property and

requiring the Olups to expend substantial sums for repairs.

The case went to trial. Mr. Olup, a retired professional engineer,

presented himself as an expert, relying on an updated 2010 report (the

“2010 Report”), which was based on a report he had prepared in 1996

regarding the 1994 water line break. The trial court refused to qualify

Mr. Olup as an expert because, inter alia, he “could not have reliably

informed the jury of safe practices or industry standards that controlled

waterlines or waterline distribution systems at times pertinent to this case.”

Trial Court Opinion, 8/20/15, at 5. Similarly, the trial court refused to allow

_______________________

(Footnote Continued)

treated as filed after such entry and on date of entry). Hence, no

jurisdictional defects impede our review, and we have amended the caption

accordingly.

2

The Olups’ complaint includes averments of res ipsa loquitur. As the trial

court instructs, res ipsa loquitur is not an independent cause of action but “a

rule of evidence that permits a jury to infer negligence and causation where

the injury at issue is one that does not ordinarily occur in the absence of

negligence.” Trial Court Opinion, 8/20/15, at 2 n.1 (citing Gilbert v.

Korvette, Inc., 327 A.2d 94 (Pa. 1974), and Fessenden v. Robert Packer

Hospital, 97 A.3d 1225 (Pa. Super. 2014)).

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Cyrus Wright, who purportedly contributed to the 2010 Report, to testify as

an expert witness. The trial court also excluded the Olups’ videotape

evidence—an editorialized account of a November 2014 French-drain

excavation at a neighboring residence on Agnew Road—because of its

remoteness in time and location to the Property. Id. at 6. Lastly, opining

that the Olups failed to establish tortious conduct by PAWC in relation to five

other water line breaks on Agnew Road over thirty-three years, the trial

court refused to instruct the jury on private nuisance and continuing

trespass.

At the conclusion of the trial, the jury entered a defense verdict. The

Olups filed a post-trial motion for a new trial, which the trial court denied.

This appeal followed. The Olups and the trial court have complied with

Pa.R.A.P. 1925.

The Olups present the following questions for our consideration:

1. Whether the trial court erred or abused its discretion in not

awarding [the] Olups a new trial as to all issues in the case.

2. Whether the trial court abused its discretion in not permitting

Plaintiff, Thomas V. Olup (a former Professional Engineer in

Pennsylvania, Ohio, and West Virginia) to testify as an expert,

and in not permitting Mr. Olup to offer opinion testimony as

to [PAWC’s] negligence in the design and construction of the

subject water line in and along Agnew Road, as well as the

causal connection between the water line break and [the]

Olups’ damages and losses.

3. Whether the trial court erred or abused its discretion in

requiring Thomas V. Olup to produce a curriculum vitae or

resume at trial.

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4. Whether the trial court erred or abused its discretion in

requiring Thomas V. Olup to be presently licensed or

registered to qualify as an expert.

5. Whether the trial court erred or abused its discretion in

striking Thomas V. Olup’s expert report relative to the 2008

main line break, and accompanying 1996 water line break

reports, photographs, and supporting documentation.

6. Whether the trial court erred in not instructing the jury on

[the] Olups’ claims for private nuisance and trespass.

7. Whether the trial court erred or abused its discretion in not

permitting Cyrus Wright, P.E. to testify, in light of his co-

authorship of the 1996 report as well as his co-authorship of

[the] Olup[s’] expert report relative to the 2008 main line

break.

8. Whether the trial court erred or abused its discretion in

excluding [the] Olups’ proposed videotape of the dwelling at

719 Agnew Road and the excavation of a French drain system

at the next door property at 725 Agnew Road.

9. Whether the trial court was biased against [the] Olups for at

least the following reasons:

i. In that the trial court was hypercritical of Thomas

Olup’s expert report(s) referring to them as the

worst the Court has seen in 30 years;

ii. In interrupting [the] Olup’s [sic] counsel’s closing

argument ostensibly for the reason that a juror

was looking or asking for water, when no similar

interruption was made during the course of

[PAWC’s] counsel’s closing argument;

iii. In allowing and further enabling the defense’s

leading questioning of Robert Bielich, a defense

witness;

iv. In castigating [the] Olup’s [sic] counsel for

counsel’s innocuous inquiry as to whether the

exhibits (then sitting in the courtroom) were to be

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given to the jury for the purposes of

deliberations;

v. In that the atmosphere and tenor of the trial was

biased against [the] Olups, given the trial court’s

wholesale exclusion of Mr. Thomas V. Olup’s

expert reports and testimony.

The Olups’ Brief at 7–8.

The Olups’ first issue is a generalized claim that the trial court erred in

denying their motion for a new trial. The following standards guide our

review:

We will reverse a trial court’s decision to deny a motion for

a new trial only if the trial court abused its discretion. Stalsitz

v. Allentown Hosp., 814 A.2d 766, 771 (Pa.Super.2002). An

abuse of discretion exists when the trial court has rendered a

decision or a judgment which is “manifestly unreasonable,

arbitrary, or capricious, has failed to apply the law, or was

motivated by partiality, prejudice, bias or ill will.” Stalsitz, 814

A.2d at 771. This Court may not substitute its judgment for that

of the trial court. “A finding by an appellate court that it would

have reached a different result than the trial court does not

constitute a finding of an abuse of discretion.” Slappo v. J's

Dev. Assocs. Inc., 791 A.2d 409, 414 (Pa.Super.2002). If the

record adequately supports the trial court’s reasons and factual

basis, an abuse of discretion will not be found. Id. at 414.

Pratt v. St. Christopher’s Hosp., 824 A.2d 299, 302 (Pa. Super. 2003).

According to the Olups, “the trial was permeated with abuses of

discretion and legal errors.” The Olups’ Brief at 15. Upon review of the

specific claims of error raised in the Olups’ remaining issues, we conclude

that none of the Olups’ claims warrants relief.

The Olups specify in their second issue that the trial court erred in

refusing to permit Mr. Olup to testify as an expert. The Olups’ Brief at 16.

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At trial, Mr. Olup first testified as a fact witness and was recalled to undergo

voir dire as an expert witness. N.T., 3/24–30/15, at 150–236, 288–304.

Defense counsel objected to Mr. Olup testifying as an expert on three

grounds: failure to qualify as an expert under the Pennsylvania Rules of

Civil Procedure, bias as a plaintiff, and undermined credibility.3 Id. at 304,

312. Over a lunch break, the trial court reviewed the request to present

Mr. Olup as an expert and to accept the 2010 Report. Id. at 311. After

further discussion with counsel, the trial court rejected the expert report—as

“the worst engineer’s report [the court had] seen in 30 years”—and

precluded Mr. Olup from testifying as an expert, but allowed him to be

“recalled as a fact witness as an engineer.” Id. at 316, 331.

We note that “the standard for qualification of an expert witness is a

liberal one. When determining whether a witness is qualified as an expert

the court is to examine whether the witness has any reasonable pretension

to specialized knowledge on the subject under investigation.” Callahan v.

Nat’l R.R. Passenger Corp., 979 A.2d 866, 875–876 (Pa. Super. 2009)

(quoting Kovalev v. Sowell, 839 A.2d 359, 363 (Pa. Super. 2003)

(citations omitted)). If he does:

____________________________________________

3

PAWC’s voir dire examination highlighted Mr. Olup’s outdated license and

experience, lack of continuing education, his narrative report, and his use of

the fax cover sheet of an engineering company he never worked for to make

a right-to-know, public record request of Baldwin Borough. N.T., 3/24–

30/15, at 296–304.

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he may testify and the weight to be given to such testimony is

for the trier of fact to determine. It is also well established that

a witness may be qualified to render an expert opinion based on

training and experience. Formal education on the subject matter

of the testimony is not required.... It is not a necessary

prerequisite that the expert be possessed of all of the knowledge

in a given field, only that he possess more knowledge than is

otherwise within the ordinary range of training, knowledge,

intelligence or experience.

Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995) (citations

omitted). However, when considering the admission of expert evidence, our

standard of review is very narrow:

The admission or exclusion of evidence, including the admission

of testimony from an expert witness, is within the sound

discretion of the trial court.... [W]e may only reverse upon a

showing that the trial court clearly abused its discretion or

committed an error of law. To constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful

or prejudicial to the complaining party.

Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836, 839 (Pa.

Super. 1999); Pa.R.E. 702 cmt.

The Olups argue that Mr. Olup “clearly possessed the requisite

knowledge, skill, experience, training and education to qualify him as an

expert witness [and] for qualification to provide expert testimony relative to

waterlines, waterline distribution systems, and as to causation and

damages.” The Olups’ Brief at 16. In support of their position, the Olups

offer a summary of Mr. Olup’s employment as a professional engineer and

his “extensive experience in water, sewage, storm and sanitary line

problems, emergencies and line failures; planning, design and construction

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of water distribution systems; hydraulics, underdrain systems, and French

drain systems; and the impact of water breaks.” Id. at 17. The Olups

further argue that Mr. Olup “is well versed in the theories, principles,

practices, specifications and codes of engineering practice related to water

line construction and water distribution systems.” Id. Additionally, the

Olups compare and contrast Mr. Olup’s qualifications as an expert with those

of PAWC’s expert witness, Richard Bragg, an accident reconstruction expert

with no water distribution experience. Id. at 19.

PAWC counters that Mr. Olup’s personal accusations against PAWC, his

bias, lack of a professional license, and absence of any bases for his opinions

disqualified Mr. Olup as an expert. PAWC’s Brief at 9–10. Similarly, the trial

court opined:

[The Olups] contend that the court abused its discretion in

not permitting Thomas V. Olup, a former professional engineer,

to testify as an expert and proffer an opinion as to the

negligence of [PAWC] and the cause of the damage to the

residence. [The Olups] accurately assert that the standard of

qualification for an expert witness is a liberal one. A witness

with reasonable pretension to specialized knowledge on subject

[sic] under investigation may be permitted to give expert opinion

testimony. Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480,

664 A.2d 525, 528 (1995). In this instance, however, the

witness whom [the Olups] offered as an expert attempted to

resurrect an analysis he had authored in 1996 in connection with

water damage that had occurred to the [Property] in 1994. That

witness had predicated his earlier analysis substantially upon

standards expressed in the 1983 Standard Handbook for Civil

Engineers.

The report offered on [the Olups’] behalf in the instant

matter merely appended handwritten notes to the 1996 report.

Those notes do not purport to rely upon any more current

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external authority – or to set forth more current factual

determinations – than had the 1996 report. As problematically,

[the Olups’] proposed expert had neither worked as an engineer

nor taken any continuing education courses within that field for

over ten years.

* * *

If a proffered expert cannot provide reasonable assurance

that his or her knowledge or practical experience in a pertinent

area of claimed expertise is sufficient to assist a jury in

determining whether standards controlling at the time of the

events that gave rise to the case have been offended, then that

witness provides little that would be pertinent or helpful to the

jury’s deliberations. In this instance, [the Olups’] proposed

expert provided no assurances that his opinion was informed by

theories, principles, practices, specifications or codes that

remained pertinent and generally accepted at times proximate to

2008 and no assurance that his testimony as an expert would

enhance the jury’s comprehension or assessment of the

evidence.

Trial Court Opinion, 8/20/15, at 2–3.

We note that even a cursory review of Mr. Olup’s education, training,

and experience reveals that he had a reasonable pretension to specialized

knowledge on the subject of water distribution systems. He possessed more

knowledge than is otherwise within the ordinary range of training,

knowledge, intelligence, or experience of the jury. As for Mr. Olup’s retired

status, personal accusations, bias, credibility, and lack of a current

professional license, such factors would affect the weight of his testimony.

Miller, 664 A.2d at 528.

Nevertheless, we affirm the trial court’s exclusionary ruling. The 2010

Report does not include any bases for the opinions set forth therein.

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Moreover, the opinions expressed in the 2010 Report did not include the

requisite degree of engineering certainty to support the Olups’ claims. Also,

as the trial court observed, Mr. Olup “could not speak to operational or

design-safety standards that might have been in place at the time of events

pertinent to this case.” Trial Court Opinion, 8/20/15, at 4–5. In fact, the

2010 Report reads like an injured party’s educated narrative, not like an

expert’s objective reasoning and analysis. Although Mr. Olup included

industry terms of art in the 2010 Report, e.g., clamp, thrust blocks, and

useful life, he did not address water distribution protocols, leak prevention

standards, or other relevant topics post-dating the 1994 water line break

that would have assisted the jury in determining if PAWC’s alleged

negligence was responsible for the 2008 water line break. Given our narrow

standard of review, we discern no abuse of the trial court’s discretion in not

permitting Mr. Olup to testify as an expert based on his substandard expert

report. Pa.R.E. 212.2(c)(1)(ii).

In their third and fourth issues, the Olups allege the trial court erred in

requiring Mr. Olup to produce a curriculum vitae (“CV”) or resume at trial

and in requiring Mr. Olup to be licensed or registered. The Olups’ Brief at

20, 21. We note that the trial court did not address these claims of error in

its Pa.R.A.P. 1925(a) opinion.

Our review of the record reveals that, following voir dire examination

of Mr. Olup, defense counsel objected to Mr. Olup being called as an expert.

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N.T., 3/24–30/15, at 304. During a sidebar discussion, the trial court

questioned whether Mr. Olup had a CV. When informed that he did not, the

trial court queried, “So how is it that I’m going to define him as an expert

witness?” Id. at 305. The trial court further questioned Mr. Olup’s

qualifications being based on “books he wrote . . . an expired license” and

his work as a volunteer municipal engineer. Id. at 305–306.

Upon review of the entire voir dire examination and sidebar discussion,

we conclude the trial court did not require Mr. Olup to produce a CV or

resumé or to be licensed or certified. Rather, as we discussed in resolving

the Olups’ first two issues, the trial court properly exercised its discretion in

concluding that the deficiencies in the contents of his expert report

precluded him from testifying. Thus, the Olups’ third and fourth claims lack

merit.

Next, the Olups complain that the trial court erred or abused its

discretion in striking Mr. Olup’s reports, photographs, and supporting

documentation, and that the ruling resulted in prejudice to the Olups’ case.

The Olups’ Brief at 22. We disagree.

The admission or exclusion of evidence is a matter left to the sound

discretion of the trial court. Harris v. Toys “R” Us, 880 A.2d 1270, 1274

(Pa. Super. 2005). “To constitute reversible error, an evidentiary ruling

must not only be erroneous, but also harmful or prejudicial to the

complaining party.” Id.

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According to the trial court:

In this instance, however, the witness whom [the Olups] offered

as an expert attempted to resurrect an analysis he had authored

in 1996 in connection with water damage that had occurred to

the 719 Agnew Road property in 1994. That witness had

predicated his earlier analysis substantially upon standards

expressed in the 1983 Standard Handbook for Civil Engineers.

The report offered on [the Olups’] behalf in the instant

matter merely appended handwritten notes to the 1996 report.

Those notes did not purport to rely upon any more current

external authority — or to set forth more current factual

determinations — than had the 1996 report.

Trial Court Opinion, 8/20/15, at 2–3.

As stated above, the 2010 Report is substandard. Moreover, although

the pretrial statement provided in the certified record does not contain

photographs, the notes of testimony indicate that the Olups submitted

approximately fourteen photographs which were admitted into evidence.

N.T., 3/24–30/15, at 356–357. Also, the supporting documentation consists

of pages from technical books with little or no explanation, analysis, or

application to the 2008 water line break. In sum, the Olups have not

persuaded us that the trial court abused its discretion in precluding the 2010

Report. Thus, no relief is due.

In the Olups’ sixth issue, they argue that the trial court erred in not

instructing the jury on private nuisance and trespass. The Olups’ Brief at

26. PAWC argues that this issue is waived. PAWC’s Brief at 13. We agree.

Objections to jury instructions must be made before the jury retires to

deliberate. Pa.R.C.P. 227(b). However, we have held, “An exception to the

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trial court’s refusal to charge the jury as requested is sufficient to preserve

the issue for appeal even if there is no specific objection to the charge at

trial.” Caldwell v. City of Philadelphia, 517 A.2d 1296 (Pa. Super. 1986)

(citations omitted).

Here, the trial court disposed of this claim, in relevant part, as follows:

In this case, the [the Olups] relied upon the allegation that

five water main breaks had occurred along Agnew Road over an

approximate thirty-three (33) year period as sufficient evidence

of a private nuisance and continuing trespass. [The Olups’]

burden, however, is to demonstrate continuing or recurrent

tortious activity that could [be] attributed to [PAWC] and that

resulted in actual harm to [the Olups]. [The Olups’] proof of

prior breaks did not provide proof of negligence.

[The Olups] proposed and I initially considered an

instruction to the jury regarding private nuisance and continuing

trespass. At the close of evidence, however, [PAWC] argued and

I agreed that the charge was not supported by the record.

Accordingly, that instruction was not contained in the final draft

of points for charge that I provided to counsel before their

closings and before charging the jury. If [the Olups] disagreed

with the exclusion of a proposed charge, an exception should

have been taken before the jury received its instructions.

Trial Court Opinion, 8/20/15, at 8 (emphasis in original).

Our review of the record confirms that the Olups did not object to the

court’s jury charge, which did not include their proposed private nuisance

and trespass instructions, before the jury retired. N.T., 3/24–30/15, at 609.

Moreover, nothing in the record refutes the trial court’s conclusions that the

case did not warrant the Olups’ proposed instructions and that the Olups did

not preserve this issue by taking exception to the trial court’s proposed

charge. Indeed, the Olups acknowledge that, because “the lower court had

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already eliminated the Olups’ case on private nuisance and continuing

trespass, [a]n ‘exception’ was pointless as there was no ‘case’ for nuisance

or trespass for the jury to consider.” The Olups’ Brief at 28. The Olups

further observe that the trial court did not hold a charging conference;

rather, “the court staff simply presented its instructions to counsel.” Id.

Yet, there is no indication in the certified docket entries that the Olups filed

an exception to the proposed charge. Thus, we conclude that the Olups

waived their jury instruction challenge.

Next, the Olups complain that the trial court erred in disqualifying Mr.

Wright as an expert witness. The Olups’ Brief at 28. PAWC argues that Mr.

Wright’s undisclosed contribution to the 2010 Report is insufficient to qualify

him as an expert witness. PAWC’s Brief at 11. We reiterate that the

standard for qualification of an expert witness is a liberal one. Callahan,

979 A.2d at 875. The trial court must “examine whether the witness has

any reasonable pretension to specialized knowledge on the subject under

investigation.” Id. at 876.

According to the record, the Olups’ counsel offered Mr. Wright as a fact

witness to the 1994 water line break and as “limited purpose expert”

regarding the 2008 water line break. N.T., 3/24–30/15, at 252. Defense

counsel objected because Mr. Wright did not submit an expert report. Id.

Defense counsel further argued there was no evidence that Mr. Wright was

involved in assessing the 2008 break, and any involvement he had with the

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1994 break was irrelevant. Id. at 253. The trial court suggested that, if

Mr. Wright were called as a fact witness, his testimony would be redundant.

Id. In response, the Olups’ counsel argued that Mr. Wright would

corroborate and support Mr. Olup’s testimony as a disinterested third party.

Id. at 253–254. Ultimately, the trial court ruled that Mr. Wright could not

testify as a fact witness because his testimony would be redundant, and he

could not testify as an expert witness because he did not prepare an expert

report. Id. at 254.

In its opinion to this Court, the trial court described the context of this

claim as follows:

[The Olups] additionally argue that the court improperly

excluded Cyrus Wright as an expert witness. Mr. Wright,

however, had merely been listed among those whom Mr. Olup

had prepared his 1996 report “in concert with”. Although [the

Olups] asserted that Mr. Wright contributed to the 2010 report,

[the Olups] did not assert that Mr. Wright could render

Mr. Olup’s report current or inform it with pertinent authority.

Trial Court Opinion, 8/20/15, at 5–6.

Upon review, we discern no abuse of the trial court’s discretion. The

Pennsylvania Rules of Civil Procedure require that a party’s pretrial

statement include “a copy of the written report, or answer to written

interrogatory consistent with Rule 4003.5, containing the opinion and the

basis for the opinion of any person who may be called as an expert

witness[.]” Pa.R.C.P. 212.2(a)(5). The trial court may preclude or limit the

testimony of “any expert witness whose opinions have not been set forth in

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the report submitted with the pre-trial statement or otherwise specifically

referred to in the pre-trial statement, consistent with Rule 4003.5[.]”

Pa.R.C.P. 212.2(c)(1)(ii).

Here, Mr. Wright did not submit an expert report; rather, his name

appears in Mr. Olup’s handwriting on the 2010 report drafted by Mr. Olup,

which the trial court precluded. Nothing in the record demonstrates that

Mr. Wright had any reasonable pretension to specialized knowledge on the

subject under investigation. Callahan, 979 A.2d at 876. Moreover, the

Olups have failed to explain how the 2010 report, which failed to qualify

Mr. Olup as an expert would, nevertheless, qualify Mr. Wright as an expert.

Thus, we conclude that this challenge does not warrant relief.

In their eighth issue, the Olups object to the trial court’s exclusion of

their videotape evidence. The Olups’ Brief at 29. In November of 2014,

Mr. Olup and his son, Kenneth, filmed a thirteen-minute video of the interior

and exterior of the basement and garage of the Property, a French-drain

excavation on the neighboring property located at 725 Agnew Road, and the

surrounding geographic area, homes, and path of the water inundations.

Id. The video represented Mr. Olup’s observations on the subject matter.

Id. at 30. A purpose of the video was to present “the jury with a site ‘view’:

that instead of transporting the jury to the site, the Olups were bringing the

site to the jury, via the videotape.” Id.

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PAWC sought exclusion of the video “on the grounds that it was

irrelevant, prejudicial, and inflammatory.” PAWC’s Brief at 12; Motion in

Limine, 3/19/15. PAWC maintains on appeal that “[a] video of property that

is not even the subject of the litigation would have added nothing to the

jurors [sic] understanding of the legal issues in this case.” Id.

We reiterate that the admission or exclusion of evidence is a matter

left to the sound discretion of the trial court. Harris, 880 A.2d at 1274. “To

constitute reversible error, an evidentiary ruling must not only be erroneous,

but also harmful or prejudicial to the complaining party.” Id.

The trial court resolved this issue with the following analysis:

[The Olups] assert that the court erred in excluding

videotape evidence. That evidence was an editorialized account

of a November 2014 french-drain excavation undertaken at

another property on Agnew [Road]. [The Olups] state that the

video was offered to illustrate site conditions. Of course, site

conditions may be more reliably demonstrated by photographs

or videotape that is not so remote in time from the incident and

is of the site itself and not of another property. See,

Commonwealth v. Yachymiak, 351 Pa Super. 361, 505 A.2d

1024 (1986); Burch v. Sears, Roebuck and Co., 320 Pa. Super.

444, 454-55; 467 A 2d 615, 621 (1983).

When defense counsel raised objections to the video, [the

Olups] offered to show the video to the jury without playing the

recorded commentary. That offer of compromise did not resolve

the concern that the videotape was of work that had been

performed at a neighboring property several years removed from

the incident that [the Olups] had sued upon. The video was a

record of matters remote in time and place from any 2008 event

affecting [the Olups’] property. Exclusion of the recorded

commentary would not lend any greater relevance to the video.

[The Olups] assert, however, that the videotape was

offered in substitution of a formal viewing. A view is typically

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limited to the particular premises involved in the litigation. Even

if [the Olups] could plausibly assert that a view of the Agnew

Road area in general would have been appropriate to inform the

jury as to the lay of the land and the path of the water, it

certainly does not follow that a videotape confined, as [the

Olups’] was, to work performed on an [sic] single parcel six

years beyond the date of the water line break would serve as

substitution for a view of the area. Whatever relevance [the

Olups’] videotape might have had to the proceedings was greatly

outweighed by the risk of confusing and misleading the jury.

Trial Court Opinion, 8/20/15, at 6–7.

Upon review of the record, we discern no basis for disturbing the trial

court’s exercise of discretion. The Olups’ complaint averred, inter alia, that

PAWC’s negligence caused the 2008 water line break and, therefore, PAWC

was liable for damages to the Property. Amended Complaint, 1/21/15, at ¶¶

16–19. Yet, the videotape showed the condition of the Property and the

excavation of a neighbor’s French drain in 2014, six years after the 2008

water line break. Such evidence was not relevant to the Olups’ averments in

that it would not tend to make PAWC’s alleged negligence more or less

probable. See Zeffiro v. Gillen, 788 A.2d 1009, 1015 (Pa. Super. 2001)

(“Evidence is relevant if it tends to make a fact at issue more or less

probable.”).

Even if the contents of the videotape were relevant, the Olups cannot

show how they were prejudiced by the trial court’s ruling. The videotape

would have been cumulative of the testimony of Mr. Olup, Alex Bennett, Jr.,

the neighbors, Kenneth Olup, and Philip Tompkins; these witnesses testified

at trial regarding the condition of the Property, the French drain system, the

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PAWC water line on Agnew Road, the 2008 water line break, and the

surrounding area. See Pa.R.E. 403 (“The court may exclude relevant

evidence if its probative value is outweighed by a danger of one or more of

the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”).

There is no error here.

Lastly, the Olups allege judicial bias in the form of, inter alia, criticism,

commentaries, interruptions, and the overall atmosphere and tenor of the

trial. The Olups’ Brief at 35–45. PAWC argues that this issue is waived.

PAWC’s Brief at 14. We agree.

Judicial bias may not be raised for the first time during post-trial

proceedings. Crawford v. Crawford, 633 A.2d 155, 160 (Pa. Super. 1993)

(citation omitted). “The proper practice on a plea of prejudice is to address

an application by petition to the judge before whom the proceedings are

being tried. He may determine the question in the first instance, and

ordinarily his disposition of it will not be disturbed unless there is an abuse

of discretion.” Ware v. U.S. Fid. & Guar. Co., 577 A.2d 902, 905 (Pa.

Super. 1990) (quoting Reilly v. SEPTA, 489 A.2d 1291, 1299 (Pa. 1985)

(citations omitted)). “A party seeking recusal must assert specific grounds

in support of the recusal motion before the trial judge has issued a ruling on

the substantive matter before him or her.” Reilly, 489 A.2d at 1300.

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Here, the Olups did not question the trial court’s conduct until their

post-trial motion for a new trial. Motion for Post-Trial Relief, 4/9/15, at ¶

(xxix). Thus, the Olups waited too long to challenge the impartiality of the

trial court. See Reilly, 489 A.2d at 1300 (disapproving the practice of

subjecting every case to unlimited questioning of the trial judge’s

impartiality and finding waiver of such claims when they have not been

raised before entry of the verdict). Thus, their claim of judicial bias is

waived because they failed to preserve it in the trial court with a timely

petition for recusal or disqualification. See Crawford, 633 A.2d 15 (“[I]t is

still the duty of the party, who asserts that a judge should be disqualified, to

allege by petition the bias, prejudice or unfairness necessitating recusal.”).

Even if not waived, this claim lacks merit. In their brief, the Olups

merely recite a string of instances, often taken out of context, in which—

they assert—the trial judge exhibited bias. The Olups’ Brief at 35–45. “This

is not enough to satisfy the requirement that charges of judicial partiality

must be set forth with specificity and supported by evidence establishing

bias, prejudice or unfairness necessitating recusal.” Ware, 577 A.2d at 905.

Moreover, our review of the certified record finds support for the trial court’s

denial of prejudicial conduct toward the Olups and the trial court’s

explanation that its remarks were made outside the hearing of the jury and

in the context of argument and conducting the trial. Trial Court Opinion,

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8/20/15, at 8–9. Under the circumstances presented by the record in the

case at hand, the Olups’ final claim does not warrant relief.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/26/2016

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