J-A13022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RODNEY L. O’DONNELL AND TINA M. 

O’DONNELL, HIS WIFE

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

THERESA J. MORTIMER,

ADMINISTRATOR OF THE ESTATE OF 

MICHELLE A. SCHNUR

Appellee No. 1058 WDA 2015

Appeal from the Order Dated June 12, 2015

In the Court of Common Pleas of Butler County

Civil Division at No: No. AD14-10978

BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 29, 2016

Rodney L. O’Donnell and Tina M. O’Donnell, his wife (collectively 

“Appellants”) appeal from the order entered June 12, 2105, following the 

Court of Common Pleas of Butler County’s (“trial court”) grant of Appellee 

Theresa J. Mortimer’s, Administrator of the Estate of Michelle A. Schnur, 

motion for summary judgment. For the reasons set forth below, we affirm.

The facts and procedural history of this case are undisputed. 1 On 

December 4, 2012, Mr. O’Donnell’s and Ms. Schnur’s cars collided at the 

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1 Unless otherwise specified, these facts come from the trial court’s June 12, 

2015 opinion.
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intersection of State Routes 68 and 38.2 On November 14, 2014, Appellants 

filed a complaint in negligence against Ms. Schnur. Because Ms. Schnur 

passed away on May 3, 2014, approximately six months prior to the filing of 

the complaint, Appellants amended the complaint on December 10, 2014 to 

include the estate of Ms. Schnur. Appellants alleged:

13. On December 4, 2012, at approximately 5:50 p.m., 

[Mr. O’Donnell] was traveling South on State Route 68, near the 

intersection of State Route 38.

14. When [Mr. O’Donnell] came to the intersection of State 

Route 68 and State Route 38, the traffic signal was green and 

[Mr. O’Donnell] proceeded through the intersection with the right 

of way.

15. At the same time and place, [Ms. Schnur] was traveling 

North on State Route 68.

16. It was raining and the road surface was wet.

17. When [Ms. Schnur] came to the intersection of State Route 

68 and State Route 38, she proceeded through the intersection 

and attempted to turn left onto State Route 38.

18. [Ms. Schnur] failed to yield the right of way and drove 

directly into left front area of the O’Donnell vehicle. The violent 

force of the impact caused the O’Donnell vehicle to rotate in a 

clockwise position; it came to rest in a westerly direction in the 

intersection of State Route 68 and State Route 38. The 

O’Donnell vehicle was towed from the scene.

Appellants’ Amended Complaint, 12/10/14, ¶¶ 13-18. Appellants alleged 

that, as a result of Ms. Schnur’s action, Mr. O’Donnell sustained extensive 

injuries and damages. Id. at ¶ 19, 22-23. Appellee filed an answer to the 

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2 Mr. O’Donnell’s father-in-law was a passenger in Mr. O’Donnell’s vehicle at 

the time of the accident. For reasons not relevant sub judice, the father-inlaw has passed away. N.T. Argument, 5/8/15, at 6.
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complaint, generally denying Appellants’ averments and raising new matter, 

in which Appellee asserted, inter alia, a defense under the Dead Man’s Act, 

42 Pa.C.S.A. § 5930. See Answer and New Matter, 1/26/15, ¶¶ 26-34. 

On March 13, 2015, Appellee moved for summary judgment against 

Appellants on the basis that Mr. O’Donnell was not competent under the 

Dead Man’s Act to testify at trial regarding the circumstances surrounding 

the motor vehicle accident. The Dead Man’s Act provides in pertinent part:

Except as otherwise provided in this subchapter, in any civil 

action or proceeding, where any party to a thing or contract in 

action is dead, . . . and his right thereto or therein has passed 

. . . to a party on the record who represents his interest in the 

subject in controversy, neither any surviving or remaining party 

to such thing or contract, nor any other person whose interest 

shall be adverse to the said right of such deceased . . . party, 

shall be a competent witness to any matter occurring before the 

death of said party[.]

42 Pa.C.S.A. § 5930. Appellee specifically argued that Mr. O’Donnell’s 

“interests in this litigation are directly adverse to those of [Appellee,]” acting 

on behalf of the estate of Ms. Schnur. 3 Appellee’s Motion for Summary 

Judgment, 3/13/15, at ¶ 15.

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3 Appellee did not waive the protections of the Dead Man’s Act because it did 

not conduct discovery. See Anderson v. Hughes, 208 A.2d 789, 791 (Pa. 

1965) (noting that when a decedent before he died or a decedent’s 

representative has required an adverse party to be deposed or to answer 

interrogatories, any objection based upon the Dead Man’s Act to the 

competency of such a party to testify at the trial is waived, even though the 

discovery is not offered in evidence).
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Objecting to Appellee’s summary judgment motion, Appellants noted 

that they were permitted to offer other evidence under the Dead Man’s Act. 

In this regard, they attached, inter alia, to their response to Appellee’s 

summary judgment motion an expert report regarding the motor vehicle 

accident.4 See Appellants’ Response to Summary Judgment, 5/1/15. 

On May 8, 2015, the day arguments were scheduled on the summary 

judgment motion, Appellee filed a reply brief, addressing the issues raised in 

Appellants’ response to the summary judgment motion. Appellee argued, 

inter alia, that the conclusions contained in Appellants’ expert report lacked 

proper factual foundation because they were rooted in speculation. 

Appellee’s Reply Brief, 5/8/15, at 4. Particularly, Appellee argued that 

Appellants’ expert’s conclusion were based on an investigation of the 

accident scene, specifically the traffic signal, that occurred more than two 

and one-half years after the accident. See id. (“The alleged investigation 

occurred on April 21, 2015, nearly two and a half years after the December 

4, 2012 incident date.”). 

At argument, Appellee’s counsel repeated, among other things, that 

Appellants’ expert report lacked proper foundation. Specifically, counsel 

argued:

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4 The expert report was dated April 23, 2015 and was prepared more than a 

month after Appellee moved for summary judgment. 
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And, your Honor, this is purely speculation and a bold 

conclusion. The investigation of the traffic signal happened on 

April 21st, 2015. This accident occurred on December 4, 2012. 

This is two-and-a-half years later. And we would not have an 

issue with this if there was any basis or foundation within the 

expert report that establishes a correlation or a link to say that 

the traffic signals were the same that day or were similar, but 

instead what we are left with is just “we looked at the light in 

2015.” . . . . I mean, for all we know the light could have, in 

theory, been changed 20 times pattern[-]wise or seconds or how 

they operated the light. There is no causal connection to that.

N.T. Argument, 5/8/15, at 5-6. In response, Appellants’ counsel argued that 

the adequacy of the expert report was an issue of fact to be decided by the 

jury. Id. at 7. Appellants’ counsel also mentioned in passing that he 

received Appellee’s reply brief late on the previous day. 5 Id. Finally, 

Appellants’ counsel acknowledged that Mr. O’Donnell would be incompetent 

to testify under the Dead Man’s Act. See id. at 8 (“So the Dead Man’s Act 

only applies to . . . O’Donnell[.]”). 

On June 12, 2015, the trial court issued an opinion and order granting 

Appellee’s summary judgment motion. The trial court concluded, among 

other things, that Appellants could not establish a prima facie case of 

negligence because its expert report did not capture the timing and phasing 

of the traffic signal at the time of the accident in 2012. Appellants timely 

appealed to this Court. Following Appellants’ filing of a Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal, the trial court issued a 

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5 Appellants’ counsel failed to object to the submission of the reply brief or 

the trial court’s consideration of issues raised therein. 
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Pa.R.A.P. 1925(a) opinion, wherein the court largely adopted the findings 

and conclusions set forth in its June 12, 2015 opinion.

On appeal,6 Appellants raise only two issues for our review:

I. Whether the trial court erred in granting summary judgment 

when the court’s decision was based on an issue raised in 

[Appellee’s] reply brief filed the day of the summary 

judgment argument and when [Appellants were] not given 

any opportunity to file a sur-reply brief and/or submit 

additional evidence to address the issue on which the court 

ultimately granted summary judgment[.] 

II. Whether the [trial c]ourt erred in finding that [Appellants’] 

expert report was insufficient evidence to establish a prima 

facie case of negligence against [Ms. Schnur.]

Appellants’ Brief at 4.

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6

It is well-settled that 

[o]ur scope of review of a trial court’s order granting or denying 

summary judgment is plenary, and our standard of review is 

clear: the trial court’s order will be reversed only where it is 

established that the court committed an error of law or abused 

its discretion.

Summary judgment is appropriate only when the record clearly 

shows that there is no genuine issue of material fact and that 

the moving party is entitled to judgment as a matter of law. The 

reviewing court must view the record in the light most favorable 

to the nonmoving party and resolve all doubts as to the 

existence of a genuine issue of material fact against the moving 

party. Only when the facts are so clear that reasonable minds 

could not differ can a trial court properly enter summary 

judgment.

Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (quoting 

Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa. Super. 2012)). Moreover, 

“[w]here the non-moving party bears the burden of proof on an issue, he 

may not merely rely on his pleadings or answers to survive summary 

judgment.” Krauss v. Trane U.S. Inc., 104 A.3d 556, 563 (Pa. Super. 

2014) (citation omitted). “Failure of a non-moving party to adduce sufficient 

evidence on an issue essential to his case and on which he bears the burden 

of proof establishes the entitlement of the moving party to judgment as a 

matter of law.” Id. 
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At the outset, we note that we need not address Appellants’ first issue. 

Our review of the record, specifically the May 8, 2015 hearing transcript, 

reveals that Appellants have waived this issue by failing to object to 

Appellee’s reply brief at any time before the trial court prior to filing their 

Rule 1925(b) statement. Accordingly, Appellants are not entitled to relief on 

the first issue.7 See Pa.R.A.P. 302(a) (“Issues not raised in the lower court 

are waived and cannot be raised for the first time on appeal.”). 

We now turn to Appellants’ second argument that the trial court erred 

in concluding that their expert report was inadequate or insufficient to 

establish a prima facie case for negligence against Appellee.

It is settled that:

[E]xpert testimony is incompetent if it lacks an adequate basis in 

fact. While an expert’s opinion need not be based on absolute 

certainty, an opinion based on mere possibilities is not 

competent evidence. This means that expert testimony cannot 

be based solely upon conjecture or surmise. Rather, an expert’s 

assumptions must be based upon such facts as the jury would be 

warranted in finding from the evidence. 

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7 To the extent Appellants argue that the trial court erred in failing to grant 

them an opportunity to file a sur-reply brief, we disagree. As the trial court 

aptly explained:

Appellants did not request, at oral argument or at any time 

thereafter, any leave to file a sur-reply to [Appellee’s] reply 

brief, or to supplement the record or their expert’s report, or for 

re-argument. Absent any request to file a [sur-]reply, or to 

supplement the record or the expert’s report, or for reargument, [the trial court] decided the motion for summary 

judgment based upon the record before it.

Trial Court Opinion, 8/26/15, at 2. Moreover, Appellants also did not invoke 

Pa.R.C.P. No. 1035.3(c) to supplement the record through affidavits, 

depositions, or other additional discovery. See Pa.R.C.P. No. 1035.3(c). 
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Helpin v. Trs. of the Univ. of Pa, 969 A.2d 601, 617 (Pa. Super. 2009) 

(internal citations and quotation marks omitted). 

Here, the parties agree that, because the Dead Man’s Act renders 

Mr. O’Donnell incompetent to testify about the accident, the only way 

Appellants may be able to establish negligence is by offering an expert 

report that demonstrates that Ms. Schnur likely failed to yield to 

Mr. O’Donnell’s southbound vehicle prior to turning left onto State Route 38. 

To do that, Appellants had to establish that the traffic signal was functioning 

properly at the time of the accident and that Mr. O’Donnell had the 

right-of-way. They, however, failed to do so. 

As the trial court reasoned:

In this instance, the light’s signal phasing and timing as of the 

time of the accident are critical to the accuracy and reliability of 

the conclusions in [the expert’s] report.[ 8 ] However, [the 

expert’s] opinion does not state that the light’s signal phasing 

and timing in 2015 were the same as the signal phasing and 

timing as of the time of the accident. Moreover, [Appellants] 

have not offered into the record, or requested to supplement the 

record with any other facts that would support an assumption 

that the light’s signal phasing and timing at the time of the 

investigation [in 2015] were the same as those at the time of 

the accident [in 2012]. Absent a connection between the signal 

phasing and timing of the light at the two relevant time periods, 

[the expert’s] conclusions, regarding causation, lack adequate 

factual foundation.

 . . . . 

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8

It is the law in Pennsylvania that an expert’s conclusions that are not 

supported by the record may be disputed at the summary judgment 

juncture, while credibility and weight attributed to those conclusions may 

not. Summers v. Certainteed Corp., 997 A.2d 1152, 1161 (Pa. 2010). 
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Therefore, as [Appellants’] expert’s report lacks an adequate 

foundation, and [Appellants have] not produced other evidence 

to establish said foundation, the expert’s report is inadmissible. 

As a result, the remaining record in this case is devoid of 

evidence to establish a prima facie case of negligence.

Trial Court Opinion, 6/12/15, at 10-11. Thus, viewing the record in the light 

most favorable to Appellants, as the nonmoving party, and resolving all 

doubts as to the existence of a genuine issue of material fact against 

Appellee, as the moving party, we conclude that the trial court did not err in 

granting Appellee’s motion for summary judgment. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2016