J-A24037-16 

JOHN NOBLES 

v. 

2016 PA Super 240 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

Appellant 

STAPLES, INC., STAPLES THE OFFICE 

SUPERSTORE EAST, STAPLES THE 

OFFICE SUPERSTORE, LLC 

Appellees No. 2939 EDA 2015 

Appeal from the Order Dated August 18, 2015 

In the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): March Term, 2013, No. 2406 

BEFORE: BOWES, J., OTT, J., and SOLANO, J. 

OPINION BY SOLANO, 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 of the chair was still upright, but the rest of the chair was on the floor. 

A few days later, another police officer disposed of the chair, and, as a 
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result, the chair was not available for inspection during this litigation. See 

Trial Court Opinion, 2/9/16, at 2. 

The chair was purchased in 2008, but there is no documentation that 

memorializes the purchase. Trial Court Opinion, 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 of the type at issue. See Trial Court Opinion, 2/9/16, 8. There 

is no documentation regarding the chair's specifications or its history over 

the three years between its purchase and the incident. Id. at 2. 

In March 2013, Nobles filed this personal injury action against Staples, 

contending that the chair had been purchased from Staples and that defects 

in the chair 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 that the 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 prior to the expiration of the discovery period." 

On November 24, 2014, Staples again moved for summary judgment, 

repeating the same ground as that in its first motion. On January 20, 2015, 

1 The order was entered on the docket on June 2, 2014. 

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the Honorable Frederica Massiah- Jackson entered an order denying that 

second summary judgment motion, without further 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 

opposition to both motions on May 4, 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 on the docket as entry of a "non- suit," but, in 

a Rule 1925(a) opinion, the trial court characterized its decision as 

equivalent to entry of summary judgment. Trial Court Opinion, 2/9/16, at 4. 

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

presents the following issues for our review: 

1. May a trial court grant a defendant's motion for non -suit 

on the eve of trial where the 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 for summary judgment? 

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3. May a trial court grant 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 to the plaintiff's case? 

Nobles' Brief, at 4 -5 ¶¶ 1 -5. We have reordered the sequence in which we 

address these issues. 

The Exclusion of Bergman'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 to the discretion of the 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 of discretion "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 admissibility of Nobles' proffered expert. 

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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, he would 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 

Summary Judgment). 

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 Court Opinion, 2/9/16, at 6 -9. The trial court explained: 

[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 of the standard is to ensure a chair's ability to withstand 

certain maximum impacts. The report also cites no facts in the 

record to support a conclusion that the 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 

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history. There was no evidence of this chair's structure, 

particularly at the joint where the break occurred. No evidence 

was available that would 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 expert opinion. 

Trial Court Opinion, 2/9/16, at 8 -9. The trial court therefore 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 is the job of the trial court to 'assess the expert's testimony to 

determine whether the expert's testimony reflects the application of 

expertise or strays into matters of common knowledge. ' Snizavich v. 

Rohm & Haas Co., 83 A.3d 191, 194 (Pa. Super. 2013) (citations to quoted 

authorities omitted). We have explained: 

Admissible expert testimony that reflects the application of 

expertise requires more than simply having an expert offer a lay 

opinion. "Testimony does not become scientific knowledge 

merely because it was 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." 

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Id. at 195 (citations to quoted authorities omitted). Accordingly, we have 

stated the following test to distinguish between admissible expert testimony 

and inadmissible lay testimony by an expert: 

The exercise of scientific expertise requires inclusion of scientific 

authority and application of the authority to the specific facts 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 point to, rely on or cite some scientific authority 

- whether facts, empirical studies, or the 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 

more than mere personal belief. 

Id. at 197. 

In Snizavich, Dr. Thomas Milby proffered evidence that the 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 on the nine documents he reviewed as well as his years of expertise 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: 

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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, 

rather than scientific 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 

development of 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 height of six inches to determine whether 

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the chair can "withstand heavy and abusive impact forces on the seat." Id. 

at 10. Mr. Bergman continues: 

The failure of the incident chair failed to comply with the BIFMA 

standard, resulting in this incident occurring. The structural 

components failed to withstand the weight of John Nobles sitting 

on the chair. Had the incident chair complied with the BIFMA 

standard, this incident would 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 

expertise to reach his conclusion that the chair was defective. Mr. Bergman 

did not inspect the chair at issue; he merely looked at a photograph taken 

after the chair broke. Nor did he examine an exemplar or any similar chair. 

As there was no evidence of the chair's structure, manufacture, 

specifications, materials, or features, it was impossible to identify such a 

similar chair. Mr. Bergman did not test the subject chair or 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, what the defect is" or how 

the chair broke, reporting only (on the basis of the post- accident 

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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 that the mere fact that the 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 

Court Opinion, 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 stark contrast 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 contrast to 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 

speculate about what caused the water line rupture. 

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based on a proper factual foundation as he was able to study a photograph 

of the 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's own research - that the expert has applied to the facts at hand and 

which supports the expert's ultimate conclusion." Snizavich, 83 A.3d at 

197. 

In sum, as the trial court held, 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 more than speculation - a "subjective assessment[] 

of cause and effect," Snizavich, 83 A.3d at 197 - and, as in Snizavich, it 

is insufficient to satisfy the requirements for expert evidence. 

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 that discretion in the exclusion of Mr. 

Bergman's testimony, we affirm the trial court's decision with respect to Mr. 

Bergman. 
J-A24037-16 

The Procedural Propriety of Dismissal 

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 grant the motion and exclude the testimony of 

Bergman in this case. 

That leaves you with basically a products liability case which you 

plead against Staples and no expert. 

[COUNSEL FOR NOBLES]: 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. 

THE COURT: I think so. 

N.T., 5/18/15, at 20 -21. The trial court then asked whether Staples had any 

further motion. Counsel for Staples responded, "We would like to file a 

motion to dismiss the case. There is going to be no evidence 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, but stated 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 

granting of a motion for "non- suit." 

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In the first issue listed in his brief, Nobles contends that the trial court 

erred in granting the motion to dismiss because it was procedurally improper 

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. For example, 

in DiGregorio v. Keystone Health Plan E., 840 A.2d 361, 366 -67 (Pa. 

Super. 2003), the defendant made a motion to dismiss the day after a jury 

was empaneled but before the presentation of any 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's disposition as a verdict, discharge due to the jury's failure 

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 summary judgment. See Bostick [v. 

Schall's Brakes and Repairs, Inc., 725 A.2d 1232 (Pa. Super. 

1999)]; cf. Lewis v. United Hospitals, 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, at the close of 

the plaintiff's case on liability, the plaintiff has failed to establish a right 

to relief" (emphasis added)). 

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judgment which did not require post -trial motions); Wujcik v. 

Yorktowne Dental Associates, 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 court treated 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 

effectively determines the case, and the parties decide not to 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). We observed 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 for appeal. 

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 Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). 

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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 

evidence to present on the issues of 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 of the case in this way.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 for determining the propriety of an eleventh -hour grant 

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 of appeal. In this situation, the trial court did not err in 

treating its dismissal order as 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). 

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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 judgment without written 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 supplement the record and to oppose the motion "). 

Where the non -moving party has sufficient notice of the issues raised by the 

summary judgment motion and a full 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 ultimately was 

granted; thus, Nobles had ample notice. See Robertson v. Port Auth. 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 

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testimony. However, when presented with that opportunity, 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 judgment was appropriate.9 

The trial court therefore did not err in dismissing the case. 

The Coordinate Jurisdiction Rule 

In his second listed issue, Nobles argues that the trial court's grant of 

summary judgment violated the coordinate jurisdiction rule. Nobles' Brief, 

at 4 ¶ 2. "[T]he coordinate jurisdiction rule ... provides that judges 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); accord Bersani by Bersani v. Sch. Dist. of 

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

lower court judge 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 that the trial court allow the parties to submit briefs before ruling 

on that motion, but he did not do so. 

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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 of the case changed materially. Therefore, the basis upon 

which Judge Colins granted the final motion for summary judgment was very 

different from 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 trial court did not violate the coordinate jurisdiction rule. 

The Substantive Propriety of the Dismissal 

The remaining issue raised by Nobles is that the trial court erred when 

it granted Staples' motion to dismiss because Nobles' fact witnesses were 

prepared to testify as to the lack of any misuse of the chair on Nobles' part. 

Nobles' Brief, at 4 ¶ 3. 

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The trial court treated Staples' motion to dismiss as a motion for 

summary judgment. Our standard of review with respect to a trial court's 

decision to grant or to 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 that the 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 bears the 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 

establishes the entitlement of the moving party to 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 

against the 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 for the grant of summary judgment is plenary; the trial court's order 

will be reversed only where it is established that court committed an error of 

law or clearly abused its discretion). 

Nobles contends that his case was based on a malfunction theory of 

liability, Nobles' Brief, at 13, which permits "a plaintiff to prove a defect in a 

product with evidence of the occurrence of a malfunction and with evidence 

eliminating abnormal use or reasonable, secondary causes for the 

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malfunction." Beard v. 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 

dismissing the case in the absence of such 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 expert testimony. See Wiggins v. Synthes 

(U.S.A.), 29 A.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. See Trial 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. 

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Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 11/8/2016 

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