### J-A24037-16

JOHN NOBLES

v. 2016 PA Super 240IN THE SUPERIORCOURT OF PENNSYLVANIA 

### Appellant

STAPLES, INC., STAPLES THE OFFICE SUPERSTORE EAST, STAPLES THE OFFICE SUPERSTORE, LLC Appellees No. 2939 EDA 2015 Appeal 

### fromtheOrder Dated 

### August 18, 2015 In the CourtofCommon Pleas 

### of Philadelphia County Civil Division 

### at No(s): March

### Term, 2013, No. 2406 BEFORE: BOWES, J., OTT,J., and SOLANO, J. OPINION BYSOLANO, J.: 

### FILED NOVEMBER

### 08, 

### 2016 Appellant John Nobles appeals 

### from the order entered on 

### August 18, 2015, 

### granting summary 

### judgment in 

### favor of Staples, 

### Inc.; Staples 

### the Office 

### Superstore East; and Staples the Office 

### Superstore, LLC 

### (collectively, "Staples"), in his action to 

### recover damages

### for personal 

### injuries. We 

### affirm. Nobles was a corporal in the Philadelphia Police 

### Department. On April 5, 2011, he was at his office desk when the chair on which he was 

### sitting snapped 

### at the base and fell to the 

### floor. Nobles 

### hit his head as he fell and sustained 

### injuries to his neck, back, and 

### right shoulder. Trial Court Opinion,

### 2/9/16, at 2. Ten 

### minutes 

### after the incident, Nobles photographed the chair. The base 

### ofthe chairwas still 

### upright, but the restofthe chair was on 

### the floor. A few days 

### later, another police 

### officer disposed of the chair, and, as a

### J-A24037-16
result, the chair was not available 

### for inspection during 

### this litigation. See Trial CourtOpinion, 

### 2/9/16, at 2. The chair was purchased in 2008, but 

### there is no 

### documentation 

### that memorializesthe purchase. Trial CourtOpinion, 

### 2/9/16, at 2. Nobles claims the chair was purchased 

### from Staples, Nobles' Brief, at 6, 8, but Staples denies

### that contention and claims 

### that it has not been able to 

### verify that it sold a chair ofthe type at issue. 

### SeeTrial Court Opinion, 

### 2/9/16, 8. There is no 

### documentation regarding the chair's specifications or its 

### history over the

### threeyears between its purchase and the incident.

### Id. at 2. In March 2013, Nobles filed 

### this personal 

### injury action 

### againstStaples, contending 

### thatthe chair had been purchased 

### from Staples and 

### that defects in

### thechair caused its collapse. Trial Court Opinion,

### 2/9/16, at 1, 6. On March 31, 2014, Staples moved 

### for summary

### judgment on the ground 

### that Nobles was unable to prove 

### thatthe chair had been purchased 

### from Staples. On May 30, 2014,1 in a 

### written order, the Honorable 

### Annette M. Rizzo denied 

### Staples' motion 

### without prejudice, "as the Motion
was filed 

### priortothe 

### expirationofthe discovery 

### period." On November 24, 2014, Staples again moved 

### for summary

### judgment, repeating the same ground as

### that in its 

### first motion. OnJanuary 20, 2015,

1The 

### orderwas entered onthedocket onJune 2, 2014. 

## -2

### J-A24037-16
the Honorable Frederica Massiah-Jackson entered an 

### order denying 

### that second 

### summary

### judgment motion,

### withoutfurther comment. On April 22, 2015, Staples filed two motions in limine. First, Staples moved 

### for "an 

### order from the 

### court barring 

### [Nobles], [Nobles'] expert, or any 

### other witnesses 

### from 

### testifying 

### that they were told 

### that the chair was purchased 

### from Staples." Second, Staples moved to bar the 

### testimony of Nobles' 

### liability expert, Keith A. Bergman, P.E. Nobles filed responses in oppositionto both 

### motions on May4, 2015. On May 18, 2015, 

### after

### jury selection but before 

### trial, the Honorable Mary D. Colins heard 

### argument on the two motions in limine and 

### granted both. N.T., 

### 5/18/15, at 11, 15, 20-21. In 

### light of those decisions, Judge Colins then granted Staples' motion to dismiss the action. 

### Id. at 22. The 

### court's dismissal was recorded onthe docket as

### entry of a 

### "non-suit," but, in

a Rule 

### 1925(a) opinion, the 

### trial court characterized its decision as 

### equivalentto 

### entry of

### summary

### judgment. Trial CourtOpinion, 

### 2/9/16, at 4. On 

### September 11, 2015, Nobles filed a notice of appeal, and he now presentsthe 

### following issues

### forour review: 1. May a 

### trial court grant a 

### defendant's motion for non

### -suit onthe eve 

### of

### trial wherethe 

### plaintiff has not had the

### opportunity to 

### present evidence and 

### only pre

### -trial motions had been ruled upon? 2. Is it a 

### violation of

### the coordinate

### jurisdiction rule 

### for a 

### trial court to 

### grant a 

### motion 

### for non

### -suit, which it deemed a 

### motion 

### for summary 

### judgment, after the court had 

### already denied a 

### motion

### forsummaryjudgment? 

## -3

### J-A24037-16

3. May a 

### trial courtgrant a

### verbal motion 

### for non

### -suit on the eve 

### of 

### trial when witnesses are prepared to 

### testify as to the dispositive issue

### within the motion

### for non-suit? 4. Did the lower 

### court err in barring 

### the 

### trial testimony of [Nobles'] 

### expert, Keith Bergman, P.E., regarding the cause 

### of the chair's

### failure?[2] 5. May a 

### trial court bar 

### expert testimony submitted under a 

### malfunction 

### theory of 

### liability where it is 

### properly based on 

### fact and essential tothe 

### plaintiff's case? Nobles' Brief, at 4-5 ¶¶ 1-5. We have reordered the sequence in which we addressthese issues. 

### The 

### Exclusion

### ofBergman's

### Testimony We 

### first consider Nobles' 

### fourth and 

### fifth issues, in which he asserts 

### that the 

### trial court's exclusion 

### of Mr. Bergman's 

### testimony was erroneous. Nobles' Brief, at 5 ¶¶ 4-5.3 The admission of 

### expert testimony is a 

### matter committed tothe discretion ofthe

### trial court and will not be

### disturbed absent
an abuse of

### that discretion. 

### Commonwealth v. 

### Walker, 92 A.3d 766, 772 (Pa. 

### 2014). An abuse 

### ofdiscretion "is not 

### merely an 

### error of

### judgment, but if in reaching a conclusion the law is 

### overridden or misapplied, or the 

### judgment exercised is 

### manifestly unreasonable, or the result of 

### partiality,

2 Nobles does not appeal the 

### trial court's 

### grant of Staples' 

### other motion in 

### limine, which barred as hearsay any 

### testimony concerning where the chair was purchased.

3 

### Although Nobles lists these issues 

### separately, we deem 

### them to raise the same issue regarding the

### admissibilityof Nobles'proffered expert. 

## -4

### J-A24037-16 prejudice, bias or ill

### -will, as shown by 

### the evidence or

### the record, discretion is

### abused." 

### Id. at 772

### -73 (citation

### omitted). According to Mr. Bergman's 

### expert report, hewould have

### testified 

### that Nobles "did not cause this incident to 

### occur" and 

### that the 

### "failure of the connection of the bell and post column of the incident chair caused 

### this incident to 

### occur." Bergman Engineering Report, 

### 11/17/14, at 11 

### (attached
as Exhibit 

## "I" to Nobles' Response in Opposition to 

### Staples' Motion 

### for SummaryJudgment). In its 

### opinion, the 

### trial court thoroughly reviewed 

### this proffer and concluded 

### that Mr. Bergman's 

### report was based "on 

### little more than guess and 

### conjecture" and was 

### insufficient to 

### meet the standards 

### for expert evidence. Trial 

### CourtOpinion,

### 2/9/16, at 6-9. The

### trial courtexplained: [Mr. 

### Bergman's] 

### report is notable 

### for what it does not do. 

### It does not 

### state, even in general 

### terms, what the defect is. 

### It does not 

### state or even speculate about how the defect caused the break. 

### It does describe the [Business and 

### Institutional Furniture Manufacturers Association's] X5.1

### -2002 "standard

### "[, but it does 

### not] state how the 

### construction or 

### materials used would not have 

### met 

### that standard. He says 

### only 

### that the purpose ofthe standard isto ensure a chair's 

### abilityto

### withstand certain 

### maximum impacts. The 

### report also cites no facts in the record to 

### support a conclusion

### thatthe chair was 

### defective when it 

### left the seller in 2008, a necessary 

### element of the cause of action. The only physical evidence was the photo 

### [that Nobles 

### took of the chair 

### after it 

### broke,] and 

### the Staples 

### representative testified 

### that this photo did not allow her to 

### confirm 

### either the type or model 

### of the chair; the chair was not 

### otherwise identified. Pages 9

### -14, deposition 

### transcript of Jaclyn 

### Smith, Staples' chair buyer, attached as Exhibit F to 

### defendant's 

### 11/26/2014 motion 

### for summary

### judgment. Bergman's opinion, then, was 

### uninformed by any 

### information about the chair's 

### manufacture, specifications, materials, features, warnings, or 

# -5-

### J-A24037-16 history. There was no evidence 

### of this chair's 

### structure, particularly at the

### joint where the break occurred. No evidence was available 

### thatwould have enabled 

### examination or 

### testing of an 

### exemplar. Bergman cited no evidence

### that he 

### eliminated all 

### other possible causes of the break in the chair. In short, 

### there was no 

### defect evidence, 

### circumstantial or 

### otherwise, to 

### support an opinion. Nevertheless, Bergman opines

### that since the chair broke, it was defective. 

### Without saying 

### why or how, he presses the inference 

### that that since the chair broke, it must have been 

### defective 

### [in] its 

### weight bearing 

### properties. This is 

### circular reasoning 

### that rests on no 

### factual foundation and is 

### insufficient to 

### support expert analysis. At best, it is 

### ordinary res ipsa 

### loquitur dressed up as

### expertopinion. Trial Court Opinion, 

### 2/9/16, at 8-9. The

### trial courttherefore concluded 

### that it

### "properly barred 

### [Mr.] Bergman's

### testimony because it lacked

### foundation." 

### Id. at 6. We agree. Pennsylvania Rule of Evidence 702 

### "permits expert testimony on 

### subjects concerning 'knowledge beyond 

### that possessed by a 

### layperson.' 

### It isthe

### job ofthe

### trial courtto 'assess the 

### expert's

### testimonyto 

### determine whether the 

### expert's testimony reflects the application of expertise or strays into 

### matters of common knowledge.

# ' Snizavich v. 

### Rohm &

### HaasCo., 83A.3d 191, 194 (Pa. Super. 

### 2013) 

### (citations to quoted 

### authoritiesomitted). We have 

### explained: Admissible 

### expert testimony 

### that reflects the 

### application of 

### expertise requires morethan 

### simply having an 

### expertoffer a lay opinion. 

### "Testimony does not become 

### scientific knowledge merely because itwas 

### proffered by a 

### scientist." Likewise, 

### expert testimony must be "based on more than mere personal belief," and 

### "must be supported by reference to facts, 

### testimony or empirical 

### data." 

## -6

### J-A24037-16 

### Id. at 195 

### (citations to quoted 

### authorities omitted). Accordingly, we have stated the 

### following test to 

### distinguish between admissible 

### experttestimony and inadmissible lay

### testimony by an 

### expert: The exercise of 

### scientific expertise requires inclusion 

### of scientific 

### authority and 

### application ofthe 

### authority to the specificfacts at hand. Thus, the minimal threshold 

### that expert testimony must meet to 

### qualify as an 

### expert opinion 

### rather than 

### merely an opinion expressed by an 

### expert, is 

### this: the proffered 

### expert testimony must pointto, rely on or cite some 

### scientific 

### authority 

# - whetherfacts, empirical studies, orthe 

### expert's own research 

# - that the 

### expert has applied to the facts at hand and which 

### supports the 

### expert's ultimate conclusion. When an 

### expert opinion fails to include such 

### authority, the 

### trial court has no choice but to conclude 

### that the 

### expert opinion reflects nothing morethan mere personal belief. 

### Id. at 197. In Snizavich, Dr. Thomas Milby proffered evidence

### thatthe decedent, whose estate 

### brought the suit, developed brain cancer as a 

### result of exposure to chemicals while working at a chemical 

### facility. In 

### forming his 

### opinion, the doctor "reviewed nine 

### documents, 

### eight of which 

### dealt with Decedent's medical 

### history, work history, and 

### work conditions," and 

### the ninth of which was an inconclusive epidemiological 

### report about the statistical occurrence of brain cancer 

### at the 

### facility. He then "concluded, based onthe nine 

### documents he reviewed aswell as his yearsofexpertise in 

### epidemiology, toxicology and occupational medicine 

### that Decedent's brain
cancer had been caused by exposure to an unknown chemical or chemicals, while working at 

### [the 

### facility]." 83 A.3d at 197. This Court held the 

### testimony inadmissible, explaining:

- 7

### J-A24037-16 Missing 

### from Dr. Milby's 

### expert report is any 

### scientific 

### authority 

# - any facts, 

### testimony or 

### empirical data

# - that supports his conclusion.

. . . The Milby Report may, 

### therefore, be 

### aptly described as

. . . based 

### "entirely on 

### subjective assessments 

### of both cause and 

### effect," as it does not include any 

### "research, conducted by [Dr. Milby] or anyone else, to 

### support [his] assertion[] on 

### causation." 

### Id. (quoting 

### Checchio v. 

### Frankford Hosp.

# -Torresdale Div., 717 A.2d 1058, 1062 (Pa. Super. 1998) (excluding proffered 

### expert testimony about
cause of neurological 

### dysfunction because it was based on 

### subjective beliefs, 

### ratherthanscientific evidence)). Here, 

### similarly, Mr. Bergman's 

### report provides no reliable 

### scientific basis 

### for the views he propounds. The 

### first eight pages of his 

### twelve-page 

### report merely reiterate information found elsewhere in the record, including

a list of the 

### materials submitted to Mr. Bergman 

### for review, summaries of the depositions, and a 

### photograph of the chair. 

### See Bergman Engineering Report at 1-8. 

### Another page 

### of the 

### report sets 

### forth a 

### history of the 

### developmentof

### furniture regulations in the United States. 

### See

### id. at 9. On page 10, Mr. Bergman describes the X5.1

### -2002 standard of the Business and 

### Institutional Furniture Manufacturers Association ("BIFMA

### "), which, he says, 

### "was intended to provide 

### manufacturers, specifiers, and users 

### with a common basis 

### for evaluating the safety, 

### durability, and 

### structural adequacy of general-purpose office 

### chairs." Mr. Bergman states 

### that the standard employs a 

### "Drop 

### Test," in which 

### test bags weighing 225 to 300 pounds are dropped on the chair's seat

### from a 

### heightofsix inches to

### determine whether 

## -8

### J-A24037-16
the chair can 

### "withstand heavy and abusive 

### impact forces on the 

### seat." Id. at 10. Mr. Bergman 

### continues: The 

### failure ofthe incident chairfailed to 

### comply

### with the BIFMA 

### standard, resulting in 

### this incident occurring. The 

### structural componentsfailed to

### withstand the

### weight ofJohn Nobles 

### sitting on the chair. Had the incident chair complied 

### with the BIFMA 

### standard,this incidentwould have been avoided.
Id. The 

### remaining two pages 

### of Mr. Bergman's 

### report summarize his conclusions, 

### state 

### that 

### "[t]his report may be 

### supplemented if additional 

### information becomes 

### available," and contain Mr. Bergman's 

### signature. Id. at 11-12. As the

### trial court stated and as Staples 

### elaborates in its 

### brief, there is nothing in Mr. Bergman's 

### report to show 

### that he applied any 

### scientific expertiseto reach his conclusion

### thatthe chair was 

### defective. Mr. Bergman did not inspect the chair at issue; he 

### merely looked at a 

### photograph taken 

### afterthe chair broke. Nor did he examine an 

### exemplar or any 

### similarchair. As 

### there was no evidence 

### of the chair's 

### structure, manufacture, specifications, materials, or features, it was impossible to 

### identify such a 

### similarchair. Mr. Bergman did not

### test the 

### subject chairor any 

### other chair. Thus, as the 

### trial court observed, Trial Court Opinion, 

### 2/9/16, at 8, Mr. Bergman does not

### state, "even in general 

### terms, whatthe defect is"or how the chair broke, reporting only (on the basis of the post-accident



## -9

### J-A24037-16 photograph) 

### that the chair broke at 

### "the connection of the bell and post 

### column." Bergman Engineering Report at 4.4 Mr. Bergman does reference the BIFMA X5.1

### -2002 standard, but he provides no facts, studies, or 

### independent research to show 

### that the chair failed to 

### meet 

### that standard when it was made, which was at least 

### three years before it broke. Nobles argues

### thatthe mere

### fact

### thatthe chair broke 

### after three years suggests 

### that it was not as 

### durable as the X5.1

### -2002 standard requires, but 

### that argument says no more than if a chair breaks 

### after three years, it 

### must be 

### defective. The 

### trial court aptly characterized such reasoning as 

### "res ipsa 

### loquitur dressed up as 

### expert opinion." Trial CourtOpinion, 

### 2/9/16, at 9. Nobles responds 

### that, although 

### "there is no 

### direct evidence as to

### what caused the chair's 

### malfunction," Mr. Bergman's 

### expert opinion "was still

4 Mr. Bergman's 

### failure to 

### state how the chair was 

### defective or how it broke presents a 

### starkcontrast between this case and the main decision on which Nobles relies, 

### Duquesne 

### Light Co. v. 

### Woodland 

### Hills Sch. 

### Dist., 700 A.2d 1038 (Pa. Cmwlth. 1997). In 

### Duquesne, a school 

### built on a 

### hilltop was damaged by a landslide. A proposed geotechnical 

### expert studied the landslide and opined 

### that it was caused by the 

### failure of a 

### water line 

### built into an 

### embankment 

### that was created to 

### support the school 

### structure, as well as 

### "by absence 

### of a proper 

### embankment toe 

### key." 700 A.2d at 1047. 

### Although the 

### expert was unable to explain

# - and 

### therefore did not seek to 

### testify about

# - why the 

### water line failed 

### (the line had been destroyed and was unavailable 

### for study by the 

### expert after the landslide) the 

### court held 

### that the opinion 

### that the 

### rupture caused the landslide should have been allowed. 

### Id. at 1047-48. Here, in 

### contrastto 

### Duquesne, Mr. Bergman did not 

### study the chair or opine on 

### what caused it to break. 

### Permitting his 

### testimony would be 

### equivalent to allowing the 

### Duquesne expert to speculateabout

### what caused the

### water line 

### rupture.

- 10 -

### J-A24037-16
based on a 

### proper factual foundation as he was able to 

### study a 

### photograph ofthe chair 

### after it failed and 

### form an opinion on the reason 

### for the

### failure based upon his specialized knowledge of recognized 

### industry standards." Nobles' Brief, at 29. This Court's decisions in 

### Snizavich and 

### Checchio make clear, however, 

### that such knowledge and references are not 

### sufficient to 

### support an 

### expert opinion where the 

### expert fails to 

### "point to, rely on or cite some 

### scientific 

### authority

# - whether facts, empirical studies, or the 

### expert'sown research

# - thatthe 

### expert has applied tothe factsat hand and which 

### supports the 

### expert's ultimate conclusion." 

### Snizavich, 83 A.3d at 197. In sum, asthe

### trial courtheld, Mr. Bergman's

### testimony would provide
no more than an 

### "inference 

### that since the chair broke, it 

### must have been 

### defective in its

### weight bearing 

### properties." Trial Court Opinion,

### 2/9/16, at 9. Such an inference is no morethan speculation

# - a 

### "subjective assessment[] of cause and 

### effect,"

### Snizavich, 83 A.3d at 197

# - and, as in

### Snizavich, it is 

### insufficientto

### satisfythe 

### requirementsforexpertevidence. The 

### trial court's analysis 

### of this issue was 

### methodical, well-reasoned, and not 

### "manifestly unreasonable." 

### Walker, 92 A.3d at 772. As the admission of 

### expert testimony is 

### committed to the discretion of the 

### trial court, and as we perceive no abuse of 

### thatdiscretion in the exclusionof Mr. Bergman's 

### testimony, we 

### affirm the

### trial court's decision 

### with respect to Mr. Bergman.

### J-A24037-16


### The 

### Procedural 

### ProprietyofDismissal The 

### following colloquy occurred at 

### the 

### time the 

### trial court granted Staples' motion in

### limine to exclude Mr. Bergman's

### testimony: THE COURT: I am going to 

### grant your motion. I believe the 

### foundation is 

### exceedingly weak, not 

### supportive of expert testimony, for all the reasons

### that counsel has stated. So I am going to 

### grantthe motion and exclude the

### testimony of Bergman inthis case. 

### That leavesyou 

### with basically a products 

### liability casewhich you plead 

### against Staples and no 

### expert. [COUNSEL FOR NOBLES]: I

### think, in 

### effect, the Court has put us 

### outof court because underthe 

### malfunction theory I still have to have some 

### expert testimony to indicate the absence. So, in 

### effect,you have put us 

### outofthe courtroom. THE COURT: I

### think so. N.T., 

### 5/18/15, at 20-21. The

### trial courtthen asked 

### whetherStaples had any 

### further motion. Counsel 

### for Staples responded, "We would like to file a 

### motion to dismiss

### the case. There is going to be noevidence

### that is going to be able to 

### support the case." 

## Id. at 21. Counsel 

### for Nobles made no 

### argument in 

### opposition to

### this motion to dismiss, butstated only, 

### "I take an exception 

### for the record, Your 

### Honor." 

### Id. at 22. The 

### trial court then stated, "The 

### motion to dismiss is 

### granted," and 

### adjourned the proceedings. 

### Id. The 

### trial worksheet and the docket then recorded the dismissal as the 

### grantingof a 

### motionfor 

### "non-

### suit."

- 12 -

### J-A24037-16
In the

### first issue listed in his 

### brief, Nobles contends 

### thatthe 

### trial court erred in 

### granting the motion to dismiss because itwas 

### procedurallyimproper to 

### grant a 

### "non-suit"when Nobles had not

### yet presented evidence and 

### only pre

### -trial motions had been decided.5 We disagree. As the 

### trial court observed, a 

### motion to dispose 

### of a case 

### after a

### jury is empaneled but before evidence is adduced may be 

### treated under a

### variety of procedural devices, including a 

### motion 

### for summary 

### judgment or 

### for 

### judgment on the pleadings. Trial Court Opinion, 

### 2/9/16, at 4. Forexample, in 

### DiGregorio v. 

### Keystone Health Plan E., 840 A.2d 361, 366-67 (Pa. Super. 

### 2003), the defendant made a 

### motion to dismissthe day 

### after a

### jury
was empaneled but beforethe 

### presentation ofany evidence. The 

### trial court granted the motion and dismissed the case On appeal, 

### the parties disputed which procedural rules applied to 

### the 

### trial court's disposition. We resolved 

### that issue as

### follows: Since the 

### trial court disposed 

### of the motion in chambers and since the

### jury heard no evidence, we cannot construe the 

### trial court'sdisposition as a

### verdict, discharge duetothe

### jury'sfailure to agree, or nonsuit. Rather, we conclude 

### that the purported motion to dismiss 

### either was a 

### motion 

### for 

### judgment on the pleadings or a 

### motion 

### for summaryjudgment. See 

### Bostick [v. 

### Schall'sBrakes

### andRepairs,

### Inc., 725 A.2d 1232 (Pa. Super. 

### 1999)]; cf. 

### Lewis v. 

### UnitedHospitals,

### Inc., 547 Pa. 626, 692 A.2d 1055 

### (1997) (improper 

### entry of nonsuit prior to 

### plaintiff's evidence 

### treated as 

### judgment on the pleadings or 

### summary

5

### See Pa.R.C.P. 

### 230.1(a)(1) (a 

### nonsuit may be entered 

### "if, 

### atthe close

### of the 

### plaintiff's case on 

### liability, the 

### plaintiff has failed to establish a 

### right to 

### relief" (emphasis added)).

- 13 -

### J-A24037-16 

### judgment which did not require post

### -trial motions); 

### Wujcik v. 

### Yorktowne

### DentalAssociates,

### Inc., 701 A.2d 581 (Pa. Super. 1997) 

### (noting 

### that trial court should have 

### treated objection to 

### plaintiff's offer of proof before 

### trial as 

### summary 

### judgment or 

### motion

### for

### judgment on pleadings). 

### Id. at 365-66. Here, 

### although the 

### trial court's granting of

### Staples' 

### "motion to 

### dismiss"was docketed as a 

### "non-

### suit,"the

### trial courttreated it as a 

### grant of

### summary

### judgment, citing 

### DiGregorio. Trial Court Opinion, 

### 2/9/16, at 4. The 

### situation presented here is not uncommon. We have 

### previously commented on 

### "the murky quagmire often created when a 

### pretrial ruling 

### effectivelydeterminesthe case, and 

### the partiesdecide notto go 

### through the 

### fruitless 

### effort and expense of 

### putting on a 

### trial when the 

### result has 

### already been 

### determined." 

### Rivera v. 

### Home 

### Depot USA, 

### Inc., 832 A.2d 487, 489 (Pa. Super. 

### 2003). Weobserved in 

### Rivera: One common example 

### [of this 

### situation] is when a 

### pretrial motion is decided 

### against a 

### party, such as a 

### motion to preclude an 

### expert under 

### Frye[6] or 

### for failure to include a 

### critical 

### factor in the 

### expert report. In 

### that instance, the parties 

### want to save the 

### time and expense 

### of a 

### trial but also 

### want to preserve the issue

### forappeal. 

### Id. This 

### current case presents precisely the same 

### situation 

### that was discussed in 

### Rivera, in which we approved of the

### trial court's ending 

### of the
case at 

### this same point, 

### through what we deemed to be a 

### summary

6 

### Fryev. 

### U.S., 293 F. 1013 (D.C. Cir. 

### 1923).

- 14 -

### J-A24037-16 

### judgment motion. 

### Id. at 489

### -90;' see 

### also Liles v. 

### Balmer, 653 A.2d 1237, 1240 (Pa. Super. 1994) 

### (permitting nonsuit 

### after preclusion of key 

### testimony because 

### plaintiff "had no remaining 

### competent and 

### relevant evidenceto 

### presentonthe issuesof negligence and causation

# ... [and her]
case was 

### essentially complete prior to the 

### entry of 

### nonsuit

### "), 

### appeal denied, 663 A.2d 692 (Pa. 1995). We perceive no 

### error in the 

### trial court's handling ofthe case in 

### thisway.8 In a 

### reply brief, Nobles 

### maintains 

### that, although a 

### court may 

### grant a 

### motion 

### for summary 

### judgment on the day of 

### trial, it may not do so if 

### entertaining the motion would cause undue 

### prejudice to the non

### -moving party. The standard 

### fordetermining the 

### propriety of an 

### eleventh

### -hourgrant of 

### summary

### judgment is 

### whether the non

### -moving party had notice 

### that he 

### must respond to the legal issue on which the 

### motion is based and was afforded a full and 

### fair opportunity to argue his position. 

### Cagnoli v.

7 We observed in 

### Rivera that a preferred procedure in 

### this situation is 

### for the parties to agree to 

### treat the motion 

### for dismissal as a 

### motion for 

### summary 

### judgment, but we did not say 

### that such an 

### agreement on 

### terminology is 

### mandatory. See 832 A.2d at 490. Here, the record shows 

### that Nobles agreed 

### that dismissal was preordained once 

### Staples' motion in 

### limine was 

### granted, and he

### therefore made no 

### argument in 

### opposition to the motion to dismiss. 

### Instead, Nobles 

### merely recorded an 

### "exception" that would 

### permit a 

### right ofappeal. 

### In this

### situation,the

### trial court did not 

### err in 

### treating its dismissal 

### orderas an 

### entry of

### summary

### judgment.

8 

### Furthermore, if 

### this appeal 

### actually stemmed from a 

### nonsuit, we would have to dismiss it, because Nobles failed to file a post

### -trial motion under Pa.R.C.P. 

### 237.1(c).

- 15 -

### J-A24037-16 

### Bonnell, 611 A.2d 1194, 1196 (Pa. 

### 1992); 

### Phi

### lips v. 

### Lock, 86 A.3d 906, 914-15 (Pa. Super. 

### 2014); see

### also Pa.R.C.P. 

### 1035.3(e)(1) (

### "Nothing in

### this rule is intended to 

### prohibit a 

### court, at any 

### time prior to 

### trial, from ruling upon a 

### motion 

### for summary

### judgmentwithoutwritten responses or briefs if

no 

### party is 

### prejudiced. A 

### party is prejudiced if he or she is not given a full and 

### fair opportunity to 

### supplementthe record and to oppose the motion"). Where the non

### -moving 

### party has 

### sufficient notice ofthe issues raised by the 

### summary

### judgment motion and afull 

### opportunity to respond, the 

### granting of 

### summary

### judgment on a 

### motion made on the day of 

### trial is not 

### reversible error. 

### Phillips, 86 A.3d at 911-15 

### (affirming grant of motion 

### for summary 

### judgment made by

### defendant on the morning of

### trial). According to the record, Nobles received 

### Staples' motions in 

### limine
over

### three weeks before

### trial. These 

### filings included 

### the precise legal issues, along 

### with case law and facts, on which 

### summary

### judgment ultimatelywas 

### granted; thus, Nobles had ample notice. 

### See 

### Robertson v. 

### PortAuth.

## of Allegheny County, 144 A.3d 980, 983-84 (Pa. Cmwlth. 2016) 

### (plaintiff received notice of the precise legal issue upon which 

### summary

### judgment
was 

### later based in a 

### motion in 

### limine filed 

### about a 

### week before an oral 

### motion for 

### summary

### judgment on the day 

### of

### trial, and these circumstances provided

### "ample notice

### "). 

### Additionally, Nobles was given an 

### opportunity to argue his position 

### immediately after the 

### trial court decided the motion to exclude his 

### expert's

- 16 -

### J-A24037-16 testimony. However, when presented 

### with 

### thatopportunity, Nobles' counsel 

### stated: 

### "I think, in 

### effect, 

### the Court has 

### put us 

### out of court because under the 

### malfunction 

### theory I still have to have some 

### expert testimony to indicate the absence. So, 

### in 

### effect, you have 

### put us 

### out of the courtroom." N.T., 

### 5/18/15, at 21 (emphasis added). Hence, Nobles' own counsel 

### essentially acknowledged

### that summary

### judgmentwas 

### appropriate.9 The

### trial courttherefore did not

### err in dismissing thecase. 

### The

### Coordinate

### Jurisdiction Rule In his second listed issue, Nobles argues 

### thatthe

### trial court's grant of 

### summary

### judgment violated the coordinate

### jurisdiction rule. Nobles' Brief, at 4 ¶ 2. 

### "[T]he coordinate

### jurisdiction rule

# ... provides

### thatjudges sitting
on the same 

### court in the same case should not 

### overrule each 

### other's decisions." 

### Commonwealth v. 

### Daniels, 104 A.3d 267, 278 (Pa. 

### 2014). However, "a

### trial court may reconsider a 

### summary

### judgment motion, already decided by a colleague 

### of the same 

### court when the motion contains new evidence or facts 

### of 

### record." Elec. Lab. 

### Supply Co. v. 

### Cullen, 712 A.2d 304, 308 (Pa. Super. 

### 1998); 

### accordBersani

### byBersani v. 

### Sch. 

### Dist. 

## of Phila., 456 A.2d 151, 153 (Pa. Super. 1982) ("The action of the second lower 

### courtjudge in considering a second 

### motion 

### for summary

### judgment,

9 

### Furthermore, if Nobles' counsel believed 

### that he did not have 

### sufficient 

### opportunity to respond 

### after Staples moved to dismiss, he could have requested 

### thatthe 

### trial court allow the parties to 

### submit briefs before ruling on

### that motion, but he did not do so.

- 17 -

### J-A24037-16

even 

### though the prior motion had been denied, is 

### justified by the large 

### amount of new 

### information added to the record in the 

### time period between the two motions"). In the 

### current action, once Judge Colins 

### granted Staples' motions in 

### limine, the status ofthe case changed 

### materially. Therefore,the basis upon which Judge Colins

### granted thefinal motion 

### forsummary

### judgmentwas

### very differentfrom the bases upon which Judge Rizzo and Judge Massiah-Jackson relied when 

### they denied 

### Staples' 

### first and second 

### motions 

### for summary 

### judgment several 

### months earlier. Once Judge Colins held 

### that Nobles' 

### expert would not be allowed to 

### testify, it became clear 

### that there was no viable way in which Nobles could 

### recover

# - as Nobles' counsel 

### himself admitted when he told Judge Colins

### that she had 

### "put us 

### out of

### court." See Trial Court Opinion, 

### 2/9/16, at 5-6. 

### Accordingly, it was 

### appropriate for Judge Colins to then 

### grant Staples' motion to dismiss 

### the case, even if

### that motion was the 

### equivalent of a 

### third motion for summary 

### judgment. In doing so, the

### trialcourt did not

### violate the coordinate

### jurisdiction rule. 

### The 

### SubstantivePropriety

### oftheDismissal The remaining issue raised by Nobles is

### thatthe

### trial court erred when it granted Staples' motion to dismiss because Nobles' 

### fact witnesses were prepared to 

### testify as tothe lack of any misuse 

### ofthe chair on Nobles' part. Nobles' Brief, at 4 ¶ 3.

- 18 -

### J-A24037-16
The 

### trial court treated Staples' motion to dismiss as a 

### motion 

### for summaryjudgment. Our standard of review 

### with respect to a 

### trial court's decisionto 

### grantorto deny a 

### motion

### for summary

### judgment is as 

### follows: A reviewing 

### court may 

### disturb the 

### order of the 

### trial court only where it is established 

### thatthe 

### court committed an 

### error of law or abused its 

### discretion. As

### with all questions of law, our review is plenary. In evaluating the 

### trial court's decision to 

### enter summary 

### judgment, we focus on 

### the legal standard 

### articulated in the 

### summary

### judgment rule. Pa.R.C.P. 

### 1035.2. The rule states 

### that where 

### there is no genuine issue of 

### material fact and the moving 

### party is 

### entitled to 

### relief as a 

### matter of law, 

### summary

### judgment may be

### entered. Where the non

### -moving party bearsthe burden of

### proof on an issue, he may not 

### merely rely on his pleadings or answers in 

### order to 

### survive summary 

### judgment. Failure 

### of a non

### -moving party to adduce 

### sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishesthe 

### entitlement ofthe moving 

### partyto

### judgment as a 

### matter of law. Lastly, we will view the record in the light most favorable to the non

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

### of material fact must be resolved 

### againstthe moving party. 

### WFIC, LLC v. 

### Labarre, -- A.3d --, 2016 PA Super 209 

### (2016). 

### Accord Gilbert v. 

### Synagro Cent., LLC, 131 A.3d 1, 10 (Pa. 

### 2015) (the scope of review 

### forthe 

### grant of

### summary

### judgment is 

### plenary; the

### trial court's order will be reversed 

### onlywhere it is established 

### thatcourt committed an 

### error of law or 

### clearlyabused its

### discretion). Nobles contends 

### that his case was based on a 

### malfunction 

### theory of 

### liability, Nobles' Brief, at 13, which 

### permits "a 

### plaintiffto prove a 

### defect in a 

### product with evidence ofthe occurrence of a 

### malfunction and 

### with evidence 

### eliminating abnormal use or reasonable, secondary causes 

### for the

- 19 -

### J-A24037-16 

### malfunction." 

### Beardv. 

### Johnson &

### Johnson, 

### Inc., 41 A.3d 823, 825 (Pa. 

### 2012). Nobles' witnesses were prepared to 

### testify on the second of these 

### evidentiary requirements (elimination of 

### other causes), but the exclusion of Nobles' 

### expert made it impossible 

### for Nobles to prove the 

### first requirement 

# - the occurrence of a 

### "malfunction.i10 Thus, the 

### trial court did not 

### err in dismissingthe case in

### the absence

### ofsuch required proof. Nobles appears to concede as much. His 

### argument of

### this issue in his 

### brief relates 

### entirely to the 

### contention 

### that, if Mr. Bergman's 

### expert testimony had not been excluded, he would have been able to establish a 

### prima facie case 

### of a defect and 

### survive summary

### judgment. See Nobles' Brief, at 32

### -34; Nobles' Reply Brief, at 11-12. Nobles does not contend

### that he could 

### survive summary

### judgment once the Bergman Engineering Report
was excluded, and, in 

### fact, he made a 

### contrary admission at the 

### time 

### that the 

### trial court granted dismissal. Accordingly, the 

### trial court's grant of 

### Staples' motion to dismiss, which it 

### treated as a 

### motion 

### for summary 

### judgment, was proper. 

### Judgment affirmed.

to We have held 

### that a 

### manufacturing defect sometimes can be proven by 

### circumstantial evidence

### without experttestimony. See

### Wiggins v.

### Synthes (U.S.A.), 29A.3d 9, 15 (Pa. Super. 

### 2011). The 

### trial court held

### that Nobles could not 

### satisfy any of the non

### -expert ways of proving a 

### malfunction or defect. 

### SeeTrial Court Opinion, 

### 2/9/16, at 11. 

### Although Nobles challenges some 

### of the 

### trial court's conclusions regarding the evidence 

### that he could present, Nobles does not argue 

### that he could have proven his case 

### without expert evidence.

- 20 -

### J-A24037-16

Judgment Entered.

J seph D. 

### Seletyn, Prothonotary

Date: 

### 11/8/2016

- 21 -