J. A32037/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MANUEL D. BAHOQUE-DELEON : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee, :

:

v. : 

:

:

TIMOTHY KRAWCZUK AND :

GARDA CL ATLANTIC, INC., :

:

Appellants : No. 782 EDA 2014

Appeal from the Judgment Entered April 1, 2014

In the Court of Common Pleas of Philadelphia County 

Civil Division No(s).: April Term 2011 No. 00622

BEFORE: PANELLA, OLSON, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 17, 2015

Appellants, Timothy Kraczuk and Garda CL Atlantic, Inc., appeal from 

the judgment entered in the Philadelphia County Court of Common Pleas in 

favor of Appellee, Manuel D. Bahoque-Deleon. Appellants contend the trial 

court erred by, inter alia, not reducing the amount of Appellee’s hospital bill, 

permitting and precluding various testimony, holding that a fact witness was 

unavailable to testify at trial, and failing to charge the jury on 75 Pa.C.S. § 

3361, which addresses driving a vehicle at a safe speed. We hold Appellants 

are not entitled to relief.

 

*

Former Justice specially assigned to the Superior Court.
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We adopt the facts and procedural history set forth in the trial court’s 

opinion. Trial Ct. Op., 6/6/14, at 1-6. We add that the jury held Appellee 

was 20% negligent. Verdict Sheet, 1/30/14. Appellants timely appealed1

and timely filed a court-ordered Pa.R.A.P. 1925(b) statement raising sixteen 

issues.2 

 

1 Appellants prematurely appealed from the order denying their post-trial 

motion; the court’s subsequent entry of judgment perfected Appellants’ 

appeal. See generally Johnston the Florist, Inc. v. TEDCO Const. 

Corp., 657 A.2d 511, 514 (Pa. Super. 1995) (en banc).

2 We endorse the following:

With a decade and a half of federal appellate court 

experience behind me, I can say that even when we 

reverse a trial court it is rare that a brief successfully 

demonstrates that the trial court committed more than one 

or two reversible errors. I have said in open court that 

when I read an appellant’s brief that contains ten or twelve 

points, a presumption arises that there is no merit to any 

of them. I do not say that this is an irrebuttable 

presumption, but it is a presumption nevertheless that 

reduces the effectiveness of appellate advocacy. Appellate 

advocacy is measured by effectiveness, not

loquaciousness.

Andaloro v. Armstrong World Indus., Inc., 799 A.2d 71, 83-84 (Pa. 

Super. 2002) (quoting Ruggero J. Aldisert, The Appellate Bar: Professional 

Competence and Professional Responsibility—A View from the Jaundiced Eye 

of One Appellate Judge, 11 Cap. U. L. Rev. 445, 458 (1982)); accord 

Commonwealth v. Ellis, 626 A.2d 1137, 1140 (Pa. 1993) (“[T]he number 

of claims raised in an appeal is usually in inverse proportion to their merit 

and that a large number of claims raises the presumption that all are 

invalid.”).
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Appellants raise the following six issues:3

Whether the trial court abused its discretion and/or 

committed an error of law in failing to reduce the amount 

of . . . Appellee’s hospital bill as required by 75 Pa.C.S. § 

1797(a) prior to instructing the jury on damages, entitling 

Appellants to a new trial.

Whether the trial court abused its discretion and/or 

committed an error of law by allowing Appellee’s medical

expert to offer an opinion on the reasonableness of 

Appellee’s medical bills when such information was not 

contained within the expert’s reports, was not disclosed in 

Appellee’s discovery answers, and was otherwise outside 

the expert’s area of expertise, entitling Appellants to a new 

trial?

Whether the trial court abused its discretion and/or 

committed an error of law by precluding Appellants’ 

medical expert from testifying in rebuttal to the trial 

testimony of Appellee’s medical expert and precluding 

opinions which were otherwise admissible, entitling 

Appellants to a new trial?

Whether the trial court abused its discretion and/or 

committed an error of law by precluding an eyewitness to 

the accident from providing permissible testimony 

regarding personal observations made by him at the time 

of the collision, entitling Appellants to a new trial?

Whether the trial court abused its discretion and/or 

committed an error of law for deeming a fact witness 

 

3 Appellants’ brief exceeds the 14,000 word limit set forth in Pa.R.A.P. 2135. 

We decline to find waiver, however. See generally Commonwealth v. 

Briggs, 12 A.3d 291, 343 (Pa. 2011) (“The briefing requirements 

scrupulously delineated in our appellate rules are not mere trifling matters of 

stylistic preference; rather, they represent a studied determination by our 

Court and its rules committee of the most efficacious manner by which 

appellate review may be conducted so that a litigant’s right to judicial review 

as guaranteed by Article V, Section 9 of our Commonwealth’s Constitution 

may be properly exercised.”).
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“unavailable” for trial and permitting . . . Appellee to use 

the witness’s deposition testimony where . . . Appellee did 

not even attempt to procure the witness’s attendance at 

trial, and in denying Appellants’ Motion in Limine to 

preclude the testimony of the witness without even 

considering the grounds set forth in the motion, entitling 

Appellants to a new trial?

Whether the trial court abused its discretion and/or 

committed an error of law by failing to charge the jury with 

respect to 75 Pa.C.S. § 3361 when evidence was 

presented at trial from which the jury could have inferred 

that Appellee was comparatively negligent per his violation 

of this statute, entitling Appellants to a new trial?

Appellants’ Brief at 5-6.

Appellants, in support of their first issue, argue that 75 Pa.C.S. § 

1797(a) of the Motor Vehicle Financial Responsibility Law (“MVFRL”) applies. 

They reason that Appellee did not suffer any life-threatening or urgent 

injuries. Appellants refer this Court to medical records purportedly 

establishing the absence of “acute injury” and testimony that Appellee “only” 

suffered “(1) a cervical sprain/strain and (2) a bone bruise, aggravation of 

arthritic changes, and joint fluid in the left knee.” Id. at 9. Accordingly, 

Appellants maintain that Appellee’s medical bill “was subject to reduction” 

under the MVFRL. Id. at 10. We hold Appellants are not entitled to relief. 

With respect to an order resolving a motion for a new trial, the 

standard of review is abuse of discretion. Harman v. Borah, 756 A.2d 

1116, 1122 (Pa. 2000). The analysis has two stages.

First, the trial court must decide whether one or more 

mistakes occurred at trial. These mistakes might involve 

factual, legal, or discretionary matters. Second, if the trial 
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court concludes that a mistake (or mistakes) occurred, it 

must determine whether the mistake was a sufficient basis 

for granting a new trial. The harmless error doctrine 

underlies every decision to grant or deny a new trial. A 

new trial is not warranted merely because some 

irregularity occurred during the trial or another trial judge 

would have ruled differently; the moving party must 

demonstrate to the trial court that he or she has suffered 

prejudice from the mistake.

Id. (citations omitted). If the alleged mistake involved a discretionary 

matter, then our standard of review is abuse of discretion; if the alleged 

mistake involved an error of law, then our standard of review is de novo. 

Id. at 1123 (citations omitted).

Our standard of review for statutory interpretation is de 

novo. 

The object of interpretation and construction of all statutes 

is to ascertain and effectuate the intention of the General 

Assembly. When the words of a statute are clear and free 

from all ambiguity, their plain language is generally the 

best indication of legislative intent. A reviewing court 

should resort to other considerations to determine 

legislative intent only when the words of the statute are 

not explicit. In ascertaining legislative intent, this Court is 

guided by, among other things, the primary purpose of the 

statute, and the consequences of a particular 

interpretation.

Moreover, it is axiomatic that in determining legislative 

intent, all sections of a statute must be read together and 

in conjunction with each other, and construed with 

reference to the entire statute.

Absent a definition, statutes are presumed to employ 

words in their popular and plain everyday sense, and 

popular meanings of such words must prevail.
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Prieto Corp. v. Gambone Const. Co., 100 A.3d 602, 606-07 (Pa. Super. 

2014) (citations omitted).

Section 1797(a) of the MVFRL states as follows, in relevant part:

(a) General rule.— . . . If acute care is provided in an 

acute care facility to a patient with an immediately lifethreatening or urgent injury by a Level I or Level II trauma 

center accredited by the Pennsylvania Trauma Systems 

Foundation under the act of July 3, 1985 (P.L. 164, No. 

45), known as the Emergency Medical Services Act, or to a 

major burn injury patient by a burn facility which meets all 

the service standards of the American Burn Association, 

the amount of payment may not exceed the usual and 

customary charge. Providers subject to this section may 

not bill the insured directly but must bill the insurer for a 

determination of the amount payable. The provider shall 

not bill or otherwise attempt to collect from the insured the 

difference between the provider’s full charge and the 

amount paid by the insurer.

75 Pa.C.S. § 1797(a) (footnote omitted). “[T]he MVFRL is to be construed 

liberally to afford the greatest possible coverage to injured claimants.” 

Sturkie v. Erie Ins. Group, 595 A.2d 152, 157 (Pa. Super. 1991).

“The Insurance Commissioner’s regulations, as set forth at 31 Pa. 

Code §§ 69.1–69.55 implement and interpret § 1797 of the MVFRL.” 

Pittsburgh Neurosurgery Associates, Inc. v. Danner, 733 A.2d 1279, 

1283 (Pa. Super. 1999) (citation omitted). Section 69.3 of the Pennsylvania 

Code defines “life-threatening injury” and “urgent injury” as follows:

Life-threatening injury—The term shall be as defined by 

the American College of Surgeons’ triage guidelines 

regarding the use of trauma centers for the region where 

the services are provided.
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Urgent injury—The term shall be as defined by the 

American College of Surgeons’ triage guidelines regarding 

use of trauma centers for the region where the services 

are provided.

31 Pa. Code. § 69.3. Section 69.12 of the Pennsylvania Code expands upon 

Section 1797:

(a) Acute care treatment and services for life-threatening 

or urgent injuries, and services for burn injury patients 

rendered by providers during transport to and while at a 

trauma center or a burn facility, shall be paid at the usual 

and customary charge when the insured’s condition meets 

the definition of urgent or life-threatening injury, based 

upon information available at the time of the insured’s 

assessment. When the initial assessment at the trauma 

center determines that the insured’s injuries are not 

urgent or life-threatening, the exemption shall apply only 

to the initial assessment and the transportation to the 

facility. A decision by ambulance personnel that an injury 

is urgent or life[-]threatening shall be presumptive of the 

reasonableness and necessity of the transport to a trauma 

center or burn facility unless there is clear evidence of a 

violation of the American College of Surgeons’ Triage 

Guidelines.

31 Pa. Code. § 69.12.

As a prefatory note, we observe that Appellants’ argument collaterally 

attacks the necessity of Appellee’s medical treatment. See Appellants’ Brief 

at 9-10. This Court is not in a position to address, as an initial finder of fact, 

whether Appellee actually suffered a life-threatening or urgent injury. See 

generally Morin v. Brassington, 871 A.2d 844, 852 (Pa. Super. 2005). 

Instantly, as the trial court observed, Appellee’s medical expert testified that 

due to his “significant trauma, he was admitted to what they call the trauma 

unit, which is a very expensive operation at a University Hospital.” Trial Ct. 
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Op. (quoting N.T., 6/21/13, at 33). Accordingly, because the fact-finder 

found in Appellee’s favor, we discern no error in the trial court’s application 

of the statute.4 See Harman, 756 A.2d at 1123.

Appellants, for their second issue, argue the trial court erred by 

permitting Dr. Abraham to testify outside the scope of his expert report. 

Specifically, they assert Dr. Abraham should not have been able to testify 

“that the charges set forth in the hospital bill were necess[a]ry and 

reasonable.” Appellants’ Brief at 13. Appellants reason that Dr. Abraham 

was not qualified to opine on the charges and such testimony was outside 

the fair scope of his report. Appellants, we hold, are due no relief.

By way of background, Appellants had objected to a line of questioning 

regarding the amount of the medical bills from the Hospital of the University 

of Pennsylvania. N.T. Trial Dep. of Dr. Abraham, 6/21/13, at 33-36. 

Appellants’ counsel objected as follows:

[Appellants’ counsel]: I don’t believe [Dr. Abraham] is 

capable of testifying to the reasonableness of the bills for 

an entity that’s not his. Further, these bills have not been 

reduced by Act 6,[5] nor have they been reduced per 

insurance . . . . [T]herefore, I don’t think his testimony 

with respect to the amount of these bills or the 

reasonableness is appropriate for this witness.

 

4 Regardless, even if we could address, in the first instance, whether 

Appellee’s medical treatment was justified, we are bound to construe the 

MVFRL in his favor. See 31 Pa. Code. § 69.12; Sturkie, 595 A.2d at 157.

5

I.e., the MVFRL.
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* * *

[Appellee’s counsel]. Doctor, do you find that those bills 

from the University of Pennsylvania emergency 

department were fair and reasonable?

[Dr. Abraham]. Yes.

Id. at 34-36.

Before presenting the video of Dr. Abraham’s trial deposition to the 

jury, the parties raised their various objections with the court for its rulings. 

The trial court overruled the above objection, and both counsel responded 

for the record. N.T., 1/24/14, at 49-52. The substance of the responses 

was whether Act 6 operated to reduce the monetary values set forth in 

Appellee’s medical bills; no party challenged whether Dr. Abraham could 

opine on whether the bills were fair and reasonable. See id. In its Rule 

1925(a) opinion, the trial court held that Dr. Abraham was qualified to opine 

on the reasonableness of Appellee’s medical bills. Trial Ct. Op. at 14-15.

“It is axiomatic that questions concerning the admission or exclusion 

of evidence are within the sound discretion of the lower court and will be 

reversed on appeal only where a clear abuse of discretion exists.” 

Bucchianeri v. Equitable Gas Co., 491 A.2d 835, 838 (Pa. Super. 1985).6

Before a court will order a new trial, it must conclude that 

the errors at trial led to an incorrect result. Unless there is 

 

6 We may rely on cases predating the adoption of the Pennsylvania Rules of 

Evidence to the extent those cases do not contradict the rules. See 

Commonwealth v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010).
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a substantial reason therefor, a new trial should not be 

granted in a negligence case. In an appeal from a jury 

trial, where the moving party alleges reversible error he 

must show not only the existence of the error, but also 

that the jury was misled by this error to his detriment. It 

is only when improperly admitted evidence may have 

affected a verdict that a new trial will be the correct 

remedy.

Warren v. Mosites Const. Co., 385 A.2d 397, 401 (Pa. Super. 1978) 

(citations omitted). Further, “a physician has been held to be qualified 

generally to testify on the reasonableness of medical charges for services 

rendered by other doctors and hospitals.” Ratay v. Liu, 260 A.2d 484, 486 

(Pa. Super. 1969) (citation omitted). We may also affirm on any basis. In 

re Strahsmeier, 54 A.3d 359, 364 n.17 (Pa. Super. 2012).

Instantly, Appellants waived their objection that Dr. Abraham was not 

qualified to opine on the reasonableness of the medical bills. As noted 

above, the parties’ objections focused on the applicability of Act 6. See 

N.T., 1/24/14, at 49-52; see also Pa.R.A.P. 302. Regardless, Appellants 

cite no case for the proposition that a physician must be qualified as an 

expert in emergency medicine in order to opine on the reasonableness of an 

emergency room bill. Cf. Ratay, 260 A.2d at 486. Accordingly, having 

discerned no abuse of discretion, see Bucchianeri, 491 A.2d at 838, we 

affirm Appellants’ second issue, albeit on other grounds. See In re 

Strahsmeier, 54 A.3d at 364 n.17.

For their third issue, Appellants argue that the trial court erred by 

precluding Dr. Anthony Salem from testifying on five discrete areas: (1) 
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whether Appellee suffered a concussion; (2) what he considered important in 

his review of Appellee’s medical records; (3) whether Appellee was disabled; 

(4) whether Dr. Abraham’s treatment was reasonable and necessary; and 

(5) whether the Hospital of the University of Pennsylvania bill was 

reasonable. Appellant’s Brief at 20. We hold Appellants waived this issue on 

appeal for failure to explain how or why the trial court abused its discretion. 

See Connor v. Crozer Keystone Health Sys., 832 A.2d 1112, 1119 (Pa. 

Super. 2003) (holding appellant’s failure to develop legal claim meaningfully 

results in waiver). Appellants simply failed to identify with sufficient 

particularity how they suffered prejudice by not having Dr. Salem testify on 

each of the five prohibited topics. Appellants’ bald assertion of prejudice 

results in waiver of their claim. See id.

In support of their fourth issue, Appellants contend the trial court 

should have permitted a lay witness to testify whether he observed anyone 

was injured after the accident. Appellants referred this court generally to 

nineteen pages of testimony, within which at least thirteen objections were 

raised. See N.T., 1/29/14, at 29-48. Because Appellants have not 

specifically identified which objections are at issue, they have waived it on 

appeal.7 See Pa.R.A.P. 2117(c)(4).

 

7 Even if Appellants had preserved their claims, we would have found waiver 

based on an undeveloped claim of prejudice. See Connor, 832 A.2d at 

1119.
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Appellants’ penultimate claim is that the trial court erred by holding 

Joes Gomez, a fact witness, was unavailable to testify and thus the court 

should not have permitted Appellee to use Mr. Gomez’s deposition testimony 

at trial. They argue Appellee’s counsel did not sufficiently establish his 

attempts to contact Mr. Gomez to testify. Appellee’s counsel countered that 

Mr. Gomez, at the time of his deposition, resided in Jersey City, New Jersey, 

outside this Commonwealth. Appellee’s counsel also represented to the 

court that he did not advise Mr. Gomez to leave the Commonwealth. N.T., 

1/23/14, at 7-8. Appellants, we hold, are not entitled to relief.8

Pennsylvania Rule of Civil Procedure 4020 governs use of depositions 

at trial when the witness is unavailable:

(a) At the trial, any part or all of a deposition, so far as 

admissible under the rules of evidence, may be used 

against any party who was present or represented at the 

taking of the deposition or who had notice thereof if 

required, in accordance with any one of the following 

provisions:

* * *

 

8 To the extent Appellants argued Mr. Gomez’s deposition transcript was 

inadmissible hearsay, that argument was not raised in their post-trial 

motion, at trial, or in their motion in limine; thus, it is waived. See Hall v. 

Owens Corning Fiberglass Corp., 779 A.2d 1167, 1169 (Pa. Super. 2001) 

(“Essentially, post-trial relief may not be granted unless the grounds for 

such relief are specified in the post-trial motion. Grounds not specified in 

the post-trial motion are deemed waived.” (citation omitted)); see 

generally Pa.R.A.P. 302.
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(3) The deposition of a witness, whether or not a 

party, may be used by any party for any purpose if 

the court finds

* * *

(b) that the witness is at a greater distance than 

one hundred miles from the place of trial or is 

outside the Commonwealth, unless it appears that 

the absence of the witness was procured by the 

party offering the deposition . . . .

Pa.R.C.P. 4020 (emphases added).

The proponent of a deposition at trial must demonstrate 

the unavailability of the witness or the exercise of due 

diligence on his part in attempting to locate the witness. 

The determination of the sufficiency of proof of 

unavailability is within the trial court’s discretion, and, 

once the trial court is satisfied that the witness is 

unavailable, the witness’s deposition may be admitted as 

substantive evidence.

Hall, 779 A.2d at 1171 (emphasis added and citations and quotation marks 

omitted).

Instantly, Mr. Gomez, at the time of his deposition, resided outside the 

Commonwealth. We discern no error in the trial court’s determination that 

Appellee established the unavailability of Mr. Gomez. See Pa.R.C.P. 4020; 

Hall, 779 A.2d at 1171. Appellee’s counsel, moreover, attempted to 

telephone Mr. Gomez several times but was unable to reach him. We need 

not, however, ascertain whether Appellee’s counsel’s efforts to contact Mr. 

Gomez constituted due diligence. See Hall, 779 A.2d at 1171. 

Lastly, Appellants argue the court erred by not instructing the jury 

regarding 75 Pa.C.S. § 3361, which states:
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§ 3361. Driving vehicle at safe speed

No person shall drive a vehicle at a speed greater than is 

reasonable and prudent under the conditions and having 

regard to the actual and potential hazards then existing, 

nor at a speed greater than will permit the driver to bring 

his vehicle to a stop within the assured clear distance 

ahead. Consistent with the foregoing, every person shall 

drive at a safe and appropriate speed when approaching 

and crossing an intersection or railroad grade crossing, 

when approaching and going around curve, when 

approaching a hill crest, when traveling upon any narrow 

or winding roadway and when special hazards exist with 

respect to pedestrians or other traffic or by reason of 

weather or highway conditions.

75 Pa.C.S. § 3361. Appellants reference testimony that Appellee’s vehicle 

was traveling at least as twice as fast as their vehicle prior to the collision. 

Appellant’s Brief at 39. Appellants claim that if the jury was instructed on 

Section 3361, they could have established Appellee’s comparative 

negligence for the accident because he failed to drive at a safe speed. We 

hold Appellants are due no relief.

As noted above, the standard of review for an order resolving a motion 

for a new trial is abuse of discretion. Harman, 756 A.2d at 1122. With 

respect to an allegation of trial court error regarding a jury charge:

[T]he standard of review for this issue is one of abuse of 

discretion. [O]ur courts have made clear that an appellant 

must make a timely and specific objection to a jury 

instruction to preserve for review a claim that the jury 

charge was legally or factually flawed.

In reviewing a claim regarding error with respect to a 

specific jury charge, we must view the charge in its 

entirety, taking into consideration all the evidence of 

record to determine whether or not error was committed. 
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If we find that error was committed, we must then 

determine whether that error was prejudicial to the 

complaining party. Error will be found where the jury was 

probably misled by what the trial judge charged or where 

there was an omission in the charge which amounts to 

fundamental error.

* * *

The court is vested with substantial discretion in fashioning 

the charge and may select its own language cognizant of 

the need to adequately apprise the jury of the law as it 

applies to the evidence adduced at trial. Unless the 

language the court chose incorrectly states the law or 

mischaracterizes the evidence in a way that prejudiced the 

jury’s consideration and thereby undermined the accuracy 

of the verdict, we will not interfere with the court's 

exercise of discretion.

Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 968 (Pa. Super. 2011) 

(citations omitted and emphasis added), aff’d, 106 A.3d 656 (Pa. 2014).

Instantly, Appellants timely preserved their objection. N.T., 1/29/14, 

at 88. Upon review of the record, the parties’ briefs, and the decision of 

Judge Overton, we discern no basis for granting relief on this issue. See

Trial Ct. Op. at 24-25 (discussing conflicting testimony about the parties’ 

speed). Regardless, the jury found Appellee was 20% negligent. See 

Verdict Sheet. Thus, we cannot say that the court’s omission of Section 

3361 amounted to a fundamental error undermining the accuracy of the 

verdict. See Braun, 24 A.3d at 968; Warren, 385 A.2d at 401. 

Accordingly, we affirm.

Judgment affirmed.
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Judge Panella joins the memorandum. 

Judge Olson concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/2015