# Armbruster v. Horowitz > Superior Court of Pennsylvania · December 29, 1999 · 1999 Pa. Super. 333 URL: https://www.frixlaw.com/law-library/cases/9747209 ## Case - **Full name:** Charles ARMBRUSTER and Barbara Armbruster, Appellants, v. David HOROWITZ, DDS, Individually & T/A North Eastern PA Implant General Dentistry, Appellee - **Court:** Superior Court of Pennsylvania - **Decided:** December 29, 1999 - **Citations:** 1999 Pa. Super. 333; 744 A.2d 285; 1999 Pa. Super. LEXIS 4711 - **Precedential status:** Published - **Opinion:** Dissent by Cirillo - **Judges:** Sole, Stevens, Cirillo - **Cited by:** 40 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9747209 ## Opinion text *288 CIRILLO, President Judge Emeritus, dissenting: ¶ 1 Because the majority’s decision improperly infringes on the trial court’s function in weight of the evidence matters while impermissibly expanding our appellate review powers, I respectfully dissent. ¶ 2 As the majority notes, the Armbrus-ters filed a post-trial motion, claiming that the verdict was against the weight of the evidence. The trial court failed to rule upon such motion on the merits. Judgment on the verdict was entered ultimately by the prothonotary. See Pa.R.C.P. 227.4(l)(b) (“the prothonotary shall, upon praecipe of a party: enter judgment upon the verdict of a jury ..., if one or more timely post trial motions are filed and the court does not enter an order disposing of all motions within one hundred twenty days after the filing of the first motion.”). ¶ 3 At the time Horowitz praeciped to have judgment entered, the trial judge who presided over the trial had been appointed to the United States District Court for the Middle District of Pennsylvania. Due to this fact, the trial court failed to file, in accordance with Pa.R.A.P.1925(a), an opinion in support of the jury verdict. Based upon the nature of the issue raised by the Armbrusters, I heartily believe that we are unable to review the present appeal without the benefit of a trial court opinion. ¶4 With regard to weight of the evidence claims raised on appeal, our court has stated: In Commonwealth v. Brown, 538 Pa. 410, 434-38 , 648 A.2d 1177, 1189-91 (1994), the Pennsylvania Supreme Court made clear that challenges to the weight of the evidence must first be presented to the trial court. An appellate court may only review the trial court’s exercise of discretion in granting or denying a new trial on grounds that the verdict was contrary to the weight of the evidence; it may not address “the underlying question whether the verdict is against the weight of the evidence.” Id. at 435 , 648 A.2d at 1189 . In so holding, the [sjupreme [cjourt observed that: An allegation that the verdict is against the weight of the evidence is a matter to be resolved by the trial court: While there may be some legitimacy for a trial court, who [sic] has also observed the witnesses as they testified, to consider the weight of the evidence and to that extent review the jury’s determination of credibility, there is surely no justification for an appellate court, relying upon a cold record, to exercise such a function. [citations omitted]. The court in Brown further declared that: Unlike the challenge of legal sufficiency of the evidence, the complaint that the verdict was against the weight of the evidence requires an assessment of the credibility of the testimony offered by the Commonwealth. It is a rule of the Commonwealth that an appellate tribunal should not entertain a challenge to the weight of the evidence since their [sic] examination is confined to the “cold record.” [citation omitted]. In light of Brown, [Com. v.] Widmer, [ 446 Pa.Super. 408 , 667 A.2d 215 (1995)] and [Com. v.] Hodge, [ 441 Pa.Super. 653 , 658 A.2d 386 (1995)] we are precluded from addressing [the appellant’s] first issue. Commonwealth v. Tapper, 450 Pa.Super. 220 , 675 A.2d 740 (1996) (emphasis added). ¶ 5 The essence of the Armbrusters’ issue on appeal concerns which evidence is to be believed, or, if restated, the weight to be accorded the testimonial evidence. It requires an assessment of the credibility of witnesses. Brown, supra; Taylor, supra. ¶ 6 Specifically, the Armbrusters’ appellate argument hinges on the credibility of the four expert witnesses who testified as to: the proper standard of care for a den *289 tist placing implants in a patient’s mouth, any preventative measures and/or procedures taken by Horowitz in Armbruster’s case, the actual success/failure rate of the implants placed in Armbruster’s mouth, the reasons supporting removal of a failed implant, whether failing implants should be loaded, whether Armbruster suffered additional bone loss due to the replacement of the failed implants, and whether the lengthening of Armbruster’s replacement blade implants caused their ultimate failure. Additionally, the experts addressed the defense’s position that Arm-bruster’s poor dental hygiene was the ultimate cause of his implant failure and the resultant pain, suffering and damages. ¶ 7 Because the Armbrusters did elect to file post-trial motions, I do not find they have waived this claim on appeal. Thus, while acknowledging that the weight issue is deserving of review, I find it must first be presented to the trial court and addressed at that level. Despite the existence of filed post-trial motions, the trial court never addressed the weight claim. See Brown, supra; see also Tapper, supra. I reiterate that a weight of the evidence argument may be addressed only by a trial court. See Murray, supra at 119 (Popo-vich, J., concurring and dissenting) (“[t]he weight to be assigned to the testimony is for the finder-of-faet and not a matter of appellate scrutiny.”). ¶8 In Commonwealth v. Yogel, 307 Pa.Super. 241 , 453 A.2d 15 (1982), our court was faced with a predicament similar to that presented here. In Yogel , the defendant raised a challenge both to the weight of the evidence and to the proper standard of proof required by the Commonwealth in a case involving operation of a motor vehicle without a valid official certificate of inspection pursuant to 75 Pa. C.S.A. § 4703. In Yogel , the trial court’s Pa.R.A.P.1925 opinion was written by a judge other than the one who conducted the hearing and ultimately found the defendant guilty of violating section 4703. On appeal, our court acknowledged that: Where the issue involved is one purely of law, the fact that someone other than the hearing judge wrote the opinion would be of little significance. In the instant case, however, the lower court’s decision was founded solely on the defendant’s credibility because the defendant testified in his own defense.... The judge who authored the opinion stated therein that he had consulted with the hearing judge and had ascertained from him that he “did not believe the defendant’s story.” We find that the judge who saw and heard the witnesses and had the opportunity to observe their demeanor is the proper one to author an opinion in support of an order based solely upon the issue of credibility. Id. at 16 (emphasis added). 3 ¶ 9 According to the dictates of Yogel and established case law on the role of an appellate court when addressing a weight of the evidence issue based upon witness credibility, I believe that we are precluded from addressing the issue raised on appeal by the Armbrusters. Rather, the issue must first be considered by the judge who presided over the present case — that being Judge Munley. Because it would be pointless to remand this case to the court of common pleas for preparation of an opinion where Judge Munley no longer presides, see Commonwealth v. Wood, 432 Pa.Super. 183 , 637 A.2d 1335, 1343 (1994) and Commonwealth v. Blady, 298 Pa.Super. 82 , 444 A.2d 670 n. 1 (1982), I would vacate and remand for a new trial. . Despite its insistence that the trial court is first required to review a credibility issue, the Yogel court was able to dispose of the defendant’s appeal on the merits, based upon the other contention raised by the defendant in his appellate brief. Id. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747209. Public record. Not legal advice.