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### -A15010-19
NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 PIERRETTE DUVLAIRE-STACKAND ROBERT MORTIMER, INDIVIDUALLYAND ASW/H, Appellants

v. ROBERT A. WILSON AND OLIVIA L. WILSON, Appellees IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 3518 EDA2018 Appeal 

### fromthe Order Entered November 15, 2018 Inthe Court of Common Pleas 

### of Delaware County Civil Division at No(s): 

### 2015-0055693

BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS, J.* MEMORANDUM BY BENDER, P.J.E.: 

### FILEDAUGUST 

### 12, 

### 2019 Appellants, Pierrette 

### Duvlaire-Stack and Robert 

### Mortimer, 

### individually and as wife and husband, appeal 

### from the 

### trial court's November 15, 2018 

### order granting summary

### judgment in 

### favor ofAppellee, Robert A. Wilson.1,2 We 

### affirm.

* Retired SeniorJudge assigned to the Superior Court.

1 

### Although Olivia L. Wilson remains in 

### the caption, the record indicates 

### that the parties entered a 

### stipulation on January 9, 2018, dismissing her

### from the case.

2 The

### trial court orally granted summary

### judgment in 

### favor of Mr. Wilson on November 7, 2018, but did not

### enter a corresponding 

### orderonthedocket until November 15, 2018. We have amended the caption accordingly. 

### See Pa.R.A.P. 

### 108(b) ("The date of 

### entry of an 

### order in a 

### matter subject to theJ

### -A15010-19
Although the Honorable Charles B. Burr, 

### II, SeniorJudge ofthe Court of Common Pleas 

### of Delaware County entered the November 15, 2018 

### order underlyingthis appeal, the Honorable Barry C. Dozor ofthe Court 

### of Common Pleas of Delaware County 

### authored the Pa.R.A.P. 

### 1925(a) opinion in 

### this 

### matter, due to Judge Burr's 

### retiring from

### judicial service. Judge Dozor's Rule 

### 1925(a) opinion sets 

### forth the procedural and 

### factual history of

### this case as 

### follows: 

### [Appellants,] on February 6, 

### 2015[,] filed a 

### [c]omplaint in the Courtof Common Pleas 

### of Philadelphia[] 

### County[,] which alleged 

### that[,] on February 7,

### 2013[,] [Ms.] Duvlaire-Stack was

### operating a 

### motor vehicle on City Avenue, Township of Lower Merlon, 

### Montgomery County, Pennsylvania, when [Mr. 

### Wilson], operating a 

### motorvehicle in the opposite 

### direction, negligently made a 

### left hand 

### turn 

### without yielding the 

### right of way to [Ms. 

### DuvlaireStack]. Count I 

### of the 

### [c]omplaint sought damages 

### for [Ms.] Duvlaire-Stack as 

### the operator ofthe 

### automobile[,] and Count 

### II submitted a claim by 

### [Mr.] Mortimer 

### for loss 

### ofconsortium. On May 13, 2015, the Philadelphia Court ofCommon Pleas sustained [Mr. 

### Wilson's] 

### [p]reliminary [o]bjections and 

### transferred 

### jurisdiction to this 

### [c]ourt. [Mr. 

### Wilson] answered the 

### complaint on July 20, 2015. [Mr. 

### Wilson,] in new 

### matter[,] submitted 

### that [Appellants'] claims were barred 

### and/or limited by the Motor Vehicle Financial 

### Responsib[ility] Law, (75 Pa.C.S.[] § 1701, 

### et 

### seq.[,]) and/orthe Pennsylvania MotorVehicle No

### -FaultInsurance Act, (75 Pa.C.S.[] § 1705). On April 18, 2016, this 

### [c]ourt approved [Mr. 

### Wilson's] 

### [p]etition to 

### [t]ransfer the 

### [a]ction to 

### [a]rbitration after [Appellants] failed to respond. Next, on December 7, 2016, 

### this 

### [c]ourt granted [Mr. 

### Wilson's] 

### [m]otion for 

### [p]artial [s]ummary [j]udgment and deemed 

### [Appellants] to be 

### subject to the limited 

### tort option (75 Pa.C.S.[] § 1705) 

### for Pennsylvania Rules of Civil Procedure shall be the day on which the 

### clerk makes the notation in the docket 

### that notice 

### of 

### entry of the 

### order has been given as required by Pa.R.C.P. 

### 236(b).").



## -2J

### -A15010-19

purposes 

### of the claims to be asserted in this action.[3] The 

### [a]rbitration hearing was conducted on October 26, 2017. 

### [Appellants] appealed 

### that decision[,] and 

### trial was assigned to SeniorJudge Burr. The 

### docket[] disclose[s] certain discovery motions and 

### [o]rders entered

... which 

### ultimately resulted in 

### this case being listed 

### for 

### [j]ury trial on a 

### term commencing November 5, 2018. On November 5, 

### 2018[,] [Mr. Wilson] filed a 

### [m]otion in 

### [I]imine to preclude 

### experttestimony and 

### [the] report ofWilliam D. Emper, 

### M.D.[] [Mr. Wilson] averred 

### that Dr. Emper

### first examined [Ms.] 

### Duvlaire-Stack on November 14, 2017, which

... was 

### nearly five years 

### after the accident. [Mr. Wilson] averred 

### that Dr. Emper's 

### report and 

### deposition 

### trial transcript stated 

### that [Ms.] DuvlaireStack informed Dr. Emper

### that the accident occurred"a couple 

### of years 

### prior" to the evaluation and 

### that Dr. Emper did not know the date

### oftheaccident. [Mr. Wilson]

### submitted 

### thatthe proposed 

### trial testimony of Dr. Emper failed to establish an unequivocal connection between the accident and 

### the alleged 

### shoulder 

### injury to Ms. 

### Duvlaire-Stack. [Appellants] answered the motion on November 6, 

### 2018[,] and responded 

### that the 

### testimony of Dr. Emper 

### unequivocally related Ms. 

### Duvlaire-[Stack]'s injury to the 

### motorvehicle accident of 

### February[] 2013. 

### [Appellants] attached the November 1, 2018 video deposition 

### transcript of Dr. Emper along 

### with a 

### follow-up evaluation 

### report by Tricia M. 

### Beatty, 

### D.0.[,] dated October 11, 2017, conducted at the Rothman 

### Institute[,] where both Dr. 

### Beattyand Dr. Emperwere employed. 

### Afterfull review ofthe 

### motion, answer, deposition 

### transcript and 

### argument of counsel, Judge Burr entered an 

### [o]rder

... on November 7, 2018, 

### granting the 

### [m]otion in 

### [I]imine and precluding the 

### testimony of Dr. Emper.

3 When choosing car insurance in Pennsylvania, insureds have the option of electing

### 'limited

### tort' coverage or

### 'full

### tort'coverage. 

### See 75 Pa.C.S. § 1705. With the 

### 'limited 

### tort' option, an insured 

### "may seek 

### recovery 

### for all medical and 

### other 

### out-of-pocket expenses, but not 

### for pain and 

### suffering or 

### other nonmonetary damages unlessthe 

### injuries suffered fall

### withinthe 

### definition of 

### 'serious 

### injury' as set 

### forth in the policy or unless one of several 

### other exceptions noted in the policy 

### applies." 75 Pa.C.S. § 

### 1705(a)(1)(A). Conversely, 

### with the 

### 'full 

### tort' option, an insured 

### "may seek 

### recovery 

### for all medical and 

### other 

### out-of-pocket expenses and may also seek 

### financial compensation 

### for pain and 

### suffering and 

### other nonmonetary damages as a 

### result of injuries caused by 

### other

### drivers." 75 Pa.C.S. § 

### 1705(a)(1)(B).

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Trial Court Opinion (TCO), 

### 1/20/2019, at 1-3 

### (internal citationsomitted). Because of the preclusion of Dr. Emper's 

### testimony and 

### Appellants' consequential 

### failure to prove causation, the 

### trial court entered an 

### order granting summary 

### judgment in 

### favor of Mr. Wilson on November 15, 2018. On November 28, 2018, Appellants filed a 

### timely notice of appeal 

### from the 

### ordergranting summary

### judgment. The

### trial courtordered Appellants to file

a Pa.R.A.P. 

### 1925(b) concise 

### statementoferrors complainedof on appeal, and 

### they

### timely complied. Presently,Appellants raise a single issue

### for our review: Did the lower

### courterr in precludingthe

### testimony of

### [Appellants'] expertwitness and 

### granting summary

### judgment as a 

### result when the 

### expert's 

### testimony was unequivocal and he opined to a reasonable degreeof medical

### certaintythat [Ms. 

### Duvlaire-Stack's] injuries were caused by 

### the motor vehicle accident and she had suffered a serious 

### impairment of bodily function to her 

### right shoulder in said accident

### and[,] as a 

### result[,] therewas a genuine issue of 

### material fact as to 

### whether she had suffered a serious 

### injuryentitling [Ms. 

### Duvlaire-Stack] to bring anaction

### for painand 

### suffering? Appellants' Briefat 5 (emphasis and unnecessary 

### capitalization 

### omitted). At the 

### outset,we acknowledge: A 

### trial court's decision to 

### grant or deny a 

### motion in 

### limine is 

### subject to an 

### evidentiary abuse of 

### discretion standard of review. Questions concerning the 

### admissibility of evidence lie 

### within the sound 

### discretion of the 

### trial court, and we will not reverse the 

### court's decision absent a clear abuse 

### of discretion. An abuse 

### of discretion may not be found 

### merely because an 

### appellate court 

### might have reached a

### differentconclusion, but requires a 

### manifest unreasonableness, or 

### partiality, prejudice, bias, or ill

### -will, or such lack of 

### support so as to be 

### clearly erroneous. In 

### addition, to 

### constitute reversible

### error, an 

### evidentiary ruling 

### must not only be 

### erroneous, but also 

### harmful or prejudicial to the complaining party. 

## -4J

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### Dibish v. 

### Ameriprise Financial, 

### Inc., 134 A.3d 1079, 1095 (Pa. Super. 2016) 

### (citation 

### omitted). Further: Our scope 

### of review of an 

### order granting summary

### judgment is plenary. We 

### applythesamestandard asthe

### trialcourt, reviewing all the evidence of record to 

### determine whether there exists a genuine issue 

### of material fact. We 

### view the record in the 

### light mostfavorable to 

### the non-moving party, and all doubts as to the existence of a genuine issue 

### of material fact must be resolved 

### against the moving party. Only where 

### there is no genuine issue as to any 

### material fact and it is clear 

### that the moving 

### party is 

### entitled to a

### judgment as a 

### matter of law will 

### summary

### judgment be entered. Motions

### forsummary

### judgment necessarily and 

### directly implicate the 

### plaintiff's proof ofthe 

### elements of his cause 

### ofaction. Thus, a record

### thatsupports 

### summary

### judgmentwill 

### either (1)showthe 

### material facts are undisputed or 

### (2) contain 

### insufficient evidence offacts to make 

### out a

### prima facie cause 

### ofactionor defense and, 

### therefore, there is no issue to be 

### submitted to the fact

### -finder. Upon 

### appellate review, we are not bound by 

### the 

### trial court's conclusions 

### of law, but may reach our own conclusions. The appellate 

### court may 

### disturb the 

### trial court's order only upon an 

### error of law or an abuse 

### ofdiscretion. 

### Id. at 

### 1084-85 (citation 

### omitted). In precluding Dr. Emper's 

### testimony, the 

### trial court 

### initially observed 

### that, 

### "[i]n personal 

### injury proceedings, unequivocal medical 

### testimony is necessary to establish a causal connection between anaccident and an 

### injury
in 

### the absence of an obvious 

### relationship." TCO at 3 

### (citing

### Albertv.

### Alter, 381 A.2d 

### 459, 470 (Pa. Super. 

### 1977)).4 

### It then described the deposition 

### testimony of Dr. Emper as 

### follows:

4 The 

### trial court noted 

### that Appellants "agree with this standard but assert 

### that Dr. Emper's

### testimony meets

### that

### burden[.]" TCO

### at 3 

### (citation

### omitted).

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The accident in 

### this proceeding[] occurred on February 7, 2013. Dr. Emper 

### first evaluated [Ms.] 

### Duvlaire-Stack on November 14, 2017. The video deposition of Dr. Emper occurred on November 1, 2018. Dr. Emper 

### initially testified as to his education and professional background. Dr. Emper is a board 

### certified orthopedic surgeon. Dr. Emper isthe ChiefofOrthopedic 

### Surgery at Bryn Mawr Hospital and teaches at Thomas Jefferson 

### University. Dr. Emper 

### initially responded 

### that allopinions

### that he would provide at his deposition would be 

### within a reasonable degree 

### of medical 

### certainty and 

### that in his practice, he 

### regularly relies on 

### reports of other physician[s] and medical 

### providers in making his diagnosis and prognosis. Dr. Emper 

### testified 

### that[,] after his 

### initial examination of Ms. 

### Duvlaire-Stack, his 

### treatment plan was to 

### perform surgery 

### for a 

### rotator cufftear. Dr. Emper 

### testified 

### that he conducted a second

### surgery dueto 

### stiffness in his 

### patient's shoulder in an

### effort to regain 

### proper motion. Dr. Emper stated

### that his

### firstvisitwith Ms. 

### Duvlaire-Stackwas on November 14, 2017. The 

### patient informed Dr. Emper at 

### that examination 

### that her 

### injury was the result of an 

### automobile accident. 

### [Appellants'] counsel then requested Dr. Emper to opine as to 

### whether he had 

### formed an opinion as to 

### whether Ms. 

### DuvlaireStack suffered a serious 

### injury as a 

### result of the accident. [Mr. Wilson] objected to the question but Dr. Emper responded in the 

### affirmative. [Mr. Wilson] then proceeded to 

### cross-examination. [Mr. Wilson] 

### initially reviewed the file

### that Dr. Emper had in his possession in regards to Ms. 

### Duvlaire-Stack's care. Dr. Emper responded 

### that his record included his office notes, his physician 

### assistant's office notes and a record 

### of some 

### visits his 

### patient had 

### with other physicians in his practice. [Mr. Wilson] then inquired as to 

### whether Ms. 

### Duvlaire-Stack told 

### [Dr.] Emper at the 

### first evaluation asto

### whether she had 

### shoulder pain 

### immediatelyafter the accident. Dr. Emper responded 

### that Ms. 

### Duvlaire-Stack reported 

### that she had pain 

### after the accident, but continued 

### "I don't know how 

### immediate it was, at least I 

### don't have itdown in my note

### there." [Mr.Wilson] then asked ifMs. 

### Duvlaire-Stack had told Dr. Emper

### that the accident had occurred a couple ofyears before she came to thedoctor's 

### office[.] Dr. Emper responded in the 

### affirmative. Thevideo 

### transcriptthen 

### provides[:] [Mr. Wilson's 

### counsel]: Do you know when 

### this accident happened? [Dr. Emper]: I 

### don't have a date down, no.

- 6 -J

### -A15010-19
[Mr. Wilson's 

### counsel]: So as we 

### sit here 

### right now, areyou certain when

### this occurred? [Dr. 

### Emper]: 

### I'm sorry? [Mr. Wilson's 

### counsel]: The accident

### that brings us here, do you know when itoccurred? [Dr. Emper]: No. [Mr. Wilson's 

### counsel]: Would knowing 

### the date of an accident be 

### important toyou in 

### determining whetheror not an 

### injury is

### from a 

### certain event

### that is being claimed? [Dr. 

### Emper]: I

### think it would be 

### relevant, yeah. [Mr. Wilson's 

### counsel]: And according to 

### your report, the only documents you reviewed again, or in 

### your earlier 

### testimony; is the 

### paperworkfrom anyone she saw here at Rothman, correct? [Dr. 

### Emper]: Yes. On 

### redirect examination, [Appellants'] counsel introduced Dr. 

### Beatty's[] October 11, 2017 

### follow[-]up evaluation report and asked Dr. Emper if the 

### report indicated the date of the accident. Dr. Emper responded inthe 

### affirmative and 

### identified February[] 2013 asthe date ofthe accident.[5] 

### Id. at 3-5 

### (internal citationsomitted). Afterthis thorough discussion 

### of Dr. Emper's 

### deposition 

### testimony, the 

### trial court explained 

### that "[Appellants'] medical 

### expert could not 

### identify the exactdate

### ofthe accident northedate whenshoulder pain

### first surfaced 

### after the 

### accident." 

### Id. at 5. Further, the

### trial court discerned 

### that

### "[t]he medical records and 

### testimony of Dr. Emper at his video deposition failed to contain
or review any of Ms. 

### Duvlaire-Stack's medical 

### history or 

### shoulder

5 However, when 

### Appellants' counsel asked if Dr. Emper remembered reviewing the October 11, 2017 

### report, Dr. Emper 

### testified, 

### "I may have in this instance, but I 

### don't recall reviewing 

### it." N.T., 

### 11/1/2018, at 30.

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### -A15010-19
diagnosis/treatment fromthe February 7, 2013 accidentto

### April[] 2017 when she 

### first reported to the Rothman 

### Institute." 

### Id. at 5-6. Consequently, it concluded 

### that Dr. Emper's 

### testimony "failed to establish unequivocal causation between

### the accidentand the 

### diagnosis." 

### Id. at 5. 

### Appellants do not 

### dispute 

### that unequivocal medical 

### testimony is necessary to establish causation in 

### this case. 

### Appellants' Brief at 14.6 However, 

### they argue 

### that "Dr. Emper 

### testified unequivocally 

### that the 

### injury
was caused by 

### the 

### motorvehicle accident. That he was unsure of the date the accident occurred in no way affects the opinion as to 

### causation." 

### Id. Appellants contend 

### that

### "[t]here is 

### absolutely no evidence

### thatthere was any 

### other precipitating event and no 

### testimony as to 

### whether the date of the accident alonewas an 

### importantfactor in 

### determining causation." 

### Id. at 15. They assert 

### that, 

### "[w]hile Dr. Emper agreed the date of the accident was 

### relevant, he never

### testified it was 

### the 

### determative [sic] 

### factor in 

### determining causation. When reminded ofthe date ofthe accident as it appeared in the medical records upon which he relied, Dr. Emper rendered unequivocal 

### testimony asto 

### causation." 

### Id. We 

### rejectAppellants' argument. Mr. Wilson 

### persuasively asserts: In

### this

### matter, Dr. Emper's

### testimony isvague and unfocused. He 

### attempts to relate [Ms. 

### Duvlaire-Stack's] alleged 

### shoulder 

### injury and 

### surgery of

### January 31, 

### 2018[,] to the 

### motorvehicle accident of February 7, 2013. However, he has no knowledge ofthe date of the accident or her 

### complaints in the years between the

6 As the parties agree 

### that this standard applies, we will 

### employ it. Consequently, we do not delve into it

### further. See

### alsofootnote 4, 

### supra.

- 8 -J

### -A15010-19
accidentand when he

### first saw her. His opinion is

### contrary to the evidence inthe record, and as such, Dr. Emper's opinion does not have an adequate

### foundation in fact. [Ms. 

### Duvlaire-Stack] filed a 

### lawsuit in

### thiscase in 2015,twoyears 

### afterthe accident. In her 

### [c]omplaint, she makes no 

### mention of a

### shoulder

### injury. [Ms. 

### Duvlaire-Stack]testified at

### depositionover three years 

### after the accident. When she was asked 

### about her 

### injuries from the 

### accident[,] she made no 

### mention 

### [of] her 

### right shoulder. Her medical records 

### immediatelyfollowingtheaccident make no 

### mention ofshoulder issues.['] Dr. Emper's 

### only knowledge of the 

### motor vehicle accident was [Ms. 

### Duvlaire-Stack's] representations 

### that she had been in a 

### motor vehicle accident and had 

### shoulder pain 

### "for the last few 

### years." Dr. Emper saw no medical records 

### from any 

### provider otherthanthoseof hiscolleagues

### fromthe Rothman 

### Institute. He 

### admitted he did not know when the accident occurred, and he conceded 

### that knowing the date ofthe accident would be 

### relevant in 

### forming his opinion. He 

### admitted he did not know when [Ms. 

### Duvlaire-Stack] 

### first had 

### shoulder pain 

### following the accident. Notably, hestated acuteshoulder 

### injuriesdo not

### start manifesting pain years 

### after an accident.[8] He 

### testified he never saw any 

### treatment records 

### from the emergency room or 

### from [Medical 

### Rehabilitation Centers 

### of Pennsylvania] where [Ms. 

### DuvlaireStack] underwent 

### therapy in the months following the accident. He did not read [Ms. 

### Duvlaire-Stack's] deposition 

### testimonyfrom 

### 2016[,] and was unaware of her 

### complaintsfrom the accidentat 

### that time. Dr. Emper 

### admitted all of the 

### above[

### -]listed information would have been helpful to him in coming to his conclusions. 

### Id. at 12-13. We agree

### with Mr. Wilson and the

### trial court

### that Dr. Emper's

### testimony should be precluded. His medical 

### testimony did not 

### demonstrate,

Appellants do notspecifically address nor 

### counterthese claims in

### their reply brief.

8 Dr. Emper also acknowledged 

### that a 

### shoulder 

### tear can be a 

### "degenerative 

### condition[.]" N.T. 

### at 25. 

## -9J

### -A15010-19
unequivocally, a causal connection between the accident and Ms. 

### DuvlaireStack's 

### right shoulder 

### injury. Dr. Emper 

### admitted 

### that his opinion was 

### only

as good as the 

### information he relied on to 

### form it, 

### that he lacked knowledge ofvarious 

### relevant medical records andfacts, and

### thatsuch 

### informationwould have been useful in 

### formulating his opinion. 

### See N.T. at 

### 25-28. We also keep in mind 

### that a 

### trial court's decision to 

### grant a 

### motion in 

### limine is 

### subject to an abuse of 

### discretion standard of review, and 

### Appellants have not convinced us 

### that the 

### trial court abused its 

### discretion here. 

### See 

### Dibish, supra. The 

### crux of

### Appellants' argument is 

### that Dr. Emper did not know the 

### exact date of

### the accident, and 

### that this lapse does not 

### undermine his opinion as to causation. However, aside 

### from not knowing when the accident occurred, the record shows Dr. Emper had no knowledge of Ms. 

### Duvlaire-Stack's condition and 

### treatment betweenthe 

### time ofthe accident in 2013 andApril of2017. Appellants do not account 

### forthis unawareness, nor explain

# - by discussing 

### relevant legal 

### authority

# - why it does not 

### affect Dr. Emper's 

### abilityto 

### provide unequivocal medical

### testimony asto causation. We will not develop 

### arguments on 

### their behalf. 

### See 

### Coulter v. 

### Ramsden, 94 A.3d 1080, 

### 1088-89 (Pa. Super. 

### 2014) 

### ("[A]rguments which are not 

### appropriately developed are waived. 

### Arguments not

### appropriatelydeveloped include those where the 

### party has failed to cite any

### authority in 

### support of a 

### contention. This Courtwill notact as counsel and will notdevelop

### arguments
on behalf of an 

### appellant.

... 

### [M]ere issue 

### spotting 

### without analysis or legal 

### citation to 

### support an assertion precludes ourappellate review of a 

### matter.")

- 10 -J

### -A15010-19
(internal citations, quotation marks, and brackets 

### omitted). Based on our review ofthe record, it appearsto us

### that Dr. Emper's only basis

### for believing 

### thattheaccidentcaused Ms. 

### Duvlaire-Stack's shoulder

### injurywas because she suggested it did, not because he applied his medical 

### expertise to her medical 

### history to establish a causal connection. 

### See 

### Albert, 381 A.2d 

### at 470 ("Pennsylvania case law is clear

### that in a personal 

### injury case when 

### there is
no obvious causal 

### relationship between the accident and the 

### injury, unequivocal medical 

### testimony is necessary to establish the causal 

### connection."). Accordingly,we conclude 

### that the 

### trial court did not abuse its 

### discretion in 

### granting Mr. Wilson's

### motion in 

### limine, and 

### consequentlyentering summary

### judgment in his 

### favor. Orderaffirmed. Judgment Entered.

J seph D. 

### Seletyn, Prothonotary

Date: 

### 8/12/19