IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY

COMMONWEALTH OF PENNSYLVANIA CIVIL DIVISION - LAW

THOMAS ZIEGLER,

Plaintiff,

v.

EASTON SUBURBAN WATER AUTHORITY,

Defendant.

No.: C-48-CV-2008-1753

OPINION OF THE COURT

This case was assigned to the Honorable Michael J. Koury, Jr. from the

February 2011 Civil Jury Trial list. Plaintiff Thomas Ziegler, the owner of real

property located at 1027 Spruce Street in Easton, Pennsylvania (“the

Property”) sued Defendant Easton Suburban Water Authority (“ESWA”) for

damage to the Property caused by ESWA‟s negligent care and control of a

water main.

As established at trial, on February 19, 2007, Ziegler‟s neighbor,

George Knapp, discovered water in the alley between his house and the

Property. Upon further inspection, Knapp discovered that the water was

flowing from the foundation under Ziegler‟s house. Knapp immediately

called ESWA to report the incident and, later that day, ESWA employees

properly identified the source of the leak, shut off the water supply, and

repaired the faulty water main.

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On February 15, 2008, Ziegler filed suit in this matter, alleging that

ESWA‟s negligent care and control of the water main caused substantive

damage to the Property. As alleged by Ziegler, ESWA‟s negligence caused,

inter alia: (1) the foundation of his house to shift and/or settle; (2) plaster

walls within his house to crack; (3) the front door of his house to shift, thus

preventing ingress and egress to the house; (4) extensive soil erosion; and

(5) an external retaining wall to fail. Before trial, ESWA conceded its

negligence but contested Ziegler‟s assertions regarding causation and

damages.

Beginning on February 14, 2011, we presided over a jury trial in this

matter. On February 17, 2011, after approximately three days of testimony

and argument, a jury of twelve Northampton County residents returned a

verdict in favor of Ziegler and against ESWA, in the amount of $6,500.00.

On February 28, 2011, Ziegler timely filed the instant post-trial

motion. Ziegler argues that we abused our discretion and/or committed

errors of law by granting ESWA‟s “belated Motion[s] in Limine,” thus

precluding (1) “plaintiff, the property owner, from testifying that his home

had „sunk or settled‟ as the result of the water main break as to which ESWA

admitted negligence;” (2) “the testimony of Mr. Ferrone and the plot plan he

prepared;” and (3) “the testimony of plaintiff‟s witnesses Carl Rodriguez [of]

CMR Construction Corp., Leonard Marroni [of] Marroni Construction/Mason

Contractor Companies, and Jimmy Tomaino [of] Palmer Woodworking and

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Construction with respect to their repair estimates, etc.” Motion for Post-

trial Relief Raised Pursuant to Pa.R.Civ.P. [sic] 227.1 and Local Rule N227.1

by Plaintiff, Thomas Ziegler at ¶¶ 50-52, Ziegler v. Easton Suburban Water

Auth., C-48-CV-2008-1753 (C.P.Northampton, Feb. 28, 2011) [hereafter

“Post-trial Motion”]. Because of our alleged errors, Ziegler seeks to reverse

our evidentiary rulings, to vacate the jury‟s award, and to hold a new trial on

the issue of damages. Id. at ¶ 54.

The parties submitted briefs on Ziegler‟s post-trial motion and

appeared for argument on April 5, 2011. This matter is now ready for

disposition.

DISCUSSION

“Trial courts have broad discretion to grant or deny a new trial.”

Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1121 (Pa. 2000). “The

grant of a new trial is an effective instrumentality for seeking and achieving

justice in those instances where the original trial, because of taint,

unfairness or error, produces something other than a just and fair result

which, after all, is the primary goal of all legal proceedings.” Id. In Harman,

the Pennsylvania Supreme Court articulated a two-step process that trial

courts must follow when responding to a request for a new trial:

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 court concludes that a mistake (or mistakes) occurred, it must determine whether the

mistake was a sufficient basis for granting a new trial. The

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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; rather, the moving party must demonstrate to the trial court that he or she has suffered

prejudice from the mistake.

Id.

With this standard in mind, we now address Ziegler‟s arguments ad

seriatim.

1. This Court Properly Considered ESWA‟s Motion in Limine to Preclude

Certain Testimony of the Plaintiff, Thomas Ziegler, and Properly

Precluded Ziegler from Offering Such Testimony

As recited below, the parties agree to the facts and procedural

posture. On May 7, 2009, the parties appeared before the Honorable

Michael V. Franciosa, Senior Judge for a status conference. Following the

status conference, Judge Franciosa issued an Order of Court directing the

parties to complete written discovery within ninety days and depositions

within one hundred eighty days, and scheduling the case for a pre-trial

conference. Order of Court, Ziegler v. Easton Suburban Water Auth., C-48-

CV-2008-1753 (C.P.Northampton, May 7, 2009). Judge Franciosa‟s Order

did not, however, set deadlines by which the parties had to disclose the

identities of their expert witnesses or furnish expert reports. See id.

On June 28, 2010, the parties appeared for the pre-trial conference

before the Honorable Anthony S. Beltrami. At the conclusion of this pre-trial

conference, Judge Beltrami issued an Order granting the parties forty-five

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days to complete written discovery and supplement their expert reports,

scheduling the case for a February 2011 trial, and directing the defendants

to praecipe any motions in limine to the September 2010 or October 2010

Argument lists.1 Pretrial Conference Order at 1-2, Ziegler v. Easton

Suburban Water Auth., C-48-CV-2008-1753 (C.P.Northampton, July 9,

2010).

Finally, between June 28, 2010 and January 20, 2011, Ziegler filed a

“Pre-trial Memorandyum [sic],” an “Amended Pre-trial Memorandyum [sic],”

and Second, Third, Fourth, and Fifth Amended Pre-trial Memoranda.

Through these memoranda, Ziegler repeatedly identified himself as a fact

witness with respect to the issues of liability and damages. See Pre-trial

Memorandyum [sic] of Plaintiff, Thomas Ziegler at 7, Ziegler v. Easton

Suburban Water Auth., C-48-CV-2008-1753 (C.P.Northampton, June 28,

2010) [hereafter “Pre-trial Memorandyum [sic]”]; Amended Pre-trial

Memorandyum [sic] of Plaintiff, Thomas Ziegler at 7, Ziegler v. Easton

Suburban Water Auth., C-48-CV-2008-1753 (C.P.Northampton, Sept. 28,

2010) [hereafter “Amended Pre-trial Memorandyum [sic]”]; Second

Amended Pre-trial Memorandum of Plaintiff, Thomas Ziegler at 7, Ziegler v.

Easton Suburban Water Auth., C-48-CV-2008-1753 (C.P.Northampton, Jan.

1 Because the October 2010 Argument List was called on September 28, 2010, Judge

Beltrami‟s Order effectively directed ESWA to praecipe any such motions in limine by

September 20, 2010. See Northampton Cnty. R.C.P. No. N211(b) (“Proceedings may be

listed for argument . . . by filing with the Clerk of Court an original and one copy of a

praecipe by counsel not later than twenty (20) days before the argument court.”)

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7, 2011) [hereafter “Second Amended Pre-trial Memorandum”]; Third

Amended Pre-trial Memorandum of Plaintiff, Thomas Ziegler at 7, Ziegler v.

Easton Suburban Water Auth., C-48-CV-2008-1753 (C.P.Northampton, Jan.

10, 2011) [hereafter “Third Amended Pre-trial Memorandum”]; Fourth

Amended Pre-trial Memorandum of Plaintiff, Thomas Ziegler at 7, Ziegler v.

Easton Suburban Water Auth., C-48-CV-2008-1753 (C.P.Northampton, Jan.

13, 2011) [hereafter “Fourth Amended Pre-trial Memorandum”]; Fifth

Amended Pre-trial Memorandum of Plaintiff, Thomas Ziegler at 7, Ziegler v.

Easton Suburban Water Auth., C-48-CV-2008-1753 (C.P.Northampton, Jan.

20, 2011) [hereafter “Fifth Amended Pre-trial Memorandum”].

Between January 21, 2011 and February 2, 2011, ESWA presented

this Court with several motions in limine, including, inter alia, a motion

seeking to preclude Ziegler from testifying that his home sank or settled as a

result of the February 19, 2007 water main break. Ziegler responded to that

motion on February 7, 2011 and the parties presented argument before us

at a February 11, 2011 pre-trial conference. On February 14, 2011, we

issued a written Order, stating that:

1. Defendant‟s Motion to prevent Plaintiff from testifying

about damages to the Spruce Street Property is DENIED. Pursuant to the Pennsylvania Rules of Evidence, Plaintiff

may testify about the condition of the Spruce Street property both prior and subsequent to February 19, 2007,

to the extent that such testimony is based upon personal knowledge and is relevant to his claim for damages. See

Pa.R.E. 401, 701.

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2. Defendant‟s Motion to prevent Plaintiff from testifying that

the water main break caused certain damages to the Spruce Street property – namely, that the house “sunk or

settled” as a result of the water main break – is GRANTED. Plaintiff is not testifying as an expert witness

and such testimony goes beyond the knowledge of a layperson. See Pa.R.E. 701, 702.

Order of Court at 1-2, Ziegler v. Easton Suburban Water Auth., C-48-CV-

2008-1753 (C.P.Northampton, Feb. 14, 2011) (footnote omitted).

Instantly, Ziegler claims that we committed an error of law by

“granting ESWA‟s belated Motion in Limine and precluding plaintiff, the

property owner, from testifying that his house had „sunk or settled‟ as the

result of the water main break as to which ESWA admitted negligence.”

Post-trial Motion at ¶ 50. Thus, we must examine whether: (1) we erred by

considering the merits of ESWA‟s “belated” motion in limine; and (2) we

erred by granting ESWA‟s motion, thus precluding Ziegler from testifying

that his house “sunk or settled” as a result of the water main break. See id.

If we conclude that we erred, we must determine whether such error is a

sufficient basis for granting a new trial. See Harman, 756 A.2d at 1121.

“A motion in limine is a procedure for obtaining a ruling on the

admissibility of evidence prior to or during trial, but before the evidence has

been offered.” Yacoub v. Lehigh Valley Medical Associates, Inc., 805 A.2d

579, 588 (Pa. Super. 2002) (en banc) (citation omitted); see Northeast

Fence & Iron Works, Inc. v. Murphy Quigley Co., Inc., 933 A.2d 664, 667

(Pa. Super. 2007). Such a motion “gives the trial judge the opportunity to

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weigh potentially prejudicial and harmful evidence before the trial occurs,

thus preventing the evidence from ever reaching the jury.” Commonwealth

v. King, 689 A.2d 918, 921 (Pa. Super. 1997).

In part, Ziegler argues that by ruling upon the merits of ESWA‟s

motion in limine, which was filed after the deadline set by Judge Beltrami,

we committed an error that warrants a new trial. We disagree and decree

that we did not abuse our discretion or commit an error of law by ruling

upon ESWA‟s untimely motion in limine.

When we ruled upon ESWA‟s untimely motion, we acted in the

interests of judicial economy. ESWA‟s motion was evidentiary in nature; it

sought a ruling on the admissibility of Ziegler‟s testimony that his house

“sunk or settled” as a result of the water main break, “prior to . . . trial[,]

before the evidence [was] offered.” See Yacoub, 805 A.2d at 588; Post-trial

Motion at ¶ 50. If we had not ruled upon ESWA‟s motion, ESWA could

simply have waited and presented the same issue, by trial objection, during

Ziegler‟s direct examination.2 As such, we immediately ruled upon ESWA‟s

motion for two reasons: (1) to ensure that the presentation of and argument

upon that motion did not disrupt the natural flow of trial or the jury‟s

understanding of the facts of consequence; and (2) because the outcome,

i.e., our ultimate decision upon ESWA‟s motion was not affected by its

2 At the February 11, 2011 pre-trial conference, Ziegler‟s attorney, Melissa Lang, Esq.,

acknowledged that ESWA could simply have re-presented its untimely motions in limine

during trial. See Notes of Motions in Limine at 62-63, Ziegler v. Easton Suburban Water

Auth., C-48-CV-2008-1753 (C.P.Northampton, Feb. 14, 2011) [hereafter “N.T. Vol. I”].

Page 9 of 34

presentation. As such, our decision to rule upon ESWA‟s motion in limine

was neither an abuse of discretion nor an error of law.3

Ziegler also argues that our ruling upon the merits of ESWA‟s motion

in limine was an error of law. Specifically, Ziegler argues that we should

have allowed him to testify “as to his observations of the condition of his

home both prior to and following the water main break, and as to the

conclusions he drew based on such observations that the house settled,

shifted and/or sunk following the water main break.” See Brief in Support of

the Motion for Post-trial Relief Raised Pursuant to Pa.R.Civ.P. [sic] 227.1 and

Local Rule N227.1 by Plaintiff, Thomas Ziegler at 18-21, Ziegler v. Easton

Suburban Water Auth., C-48-CV-2008-1753 (C.P.Northampton, Feb. 28,

2011) [hereafter “Ziegler‟s Brief”].

The Pennsylvania Rules of Evidence limit the admissibility of opinion

testimony by a lay witness, i.e., a fact witness. If a witness is testifying as a

lay witness,

[t]he witness‟ testimony in the form of opinions or inferences is

limited to those opinions or inferences which are rationally based on the perception of the witness, helpful to a clear understanding

of the witness‟ testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.

Pa.R.E. 701 (emphasis added). Such “scientific, technical, or other

specialized knowledge” may arise out of formal education, licensing, training

3 We note that Ziegler‟s counsel, Melissa Lang, Esq., has complained of our ruling upon

ESWA‟s untimely motion but has failed to direct this Court toward any case law or other

source supporting the proposition that, by ruling upon the untimely motion, we somehow

erred.

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or any experience that bestows upon the witness “more knowledge than is

otherwise within the ordinary range of training, knowledge, intelligence or

experience.” See Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa.

1995).

Inasmuch as Ziegler now argues that he should have been allowed to

testify about the condition of his property, we agree. In fact, in our Order

ruling upon ESWA‟s motion, we stated that:

1. Pursuant to the Pennsylvania Rules of Evidence, Plaintiff

may testify about the condition of the Spruce Street

property both prior and subsequent to February 19, 2007, to the extent that such testimony is based upon personal

knowledge and is relevant to his claim for damages. See Pa. R.E. 401, 701.

Order of Court at 1, Ziegler v. Easton Suburban Water Auth., C-48-CV-2008

1753 (C.P.Northampton, Feb. 14, 2011). Thereafter, at trial, Ziegler

testified at length about the condition of the Property prior and subsequent

to the February 19, 2007 water main break. See Notes of Jury Trial Volume

II at 11-15, 18-23, 26-29, 30-35, 51-52, 54, 56-59, Ziegler v. Easton

Suburban Water Auth., C-48-CV-2008-1753 (C.P.Northampton, Feb. 15,

2011) [hereafter “N.T. Vol. II”]; Notes of Jury Trial Volume III at 10-18, 20,

22-37, Ziegler v. Easton Suburban Water Auth., C-48-CV-2008-1753

(C.P.Northampton, Feb. 16, 2011) [hereafter “N.T. Vol. III”].

However, inasmuch as Ziegler now argues that we erred by precluding

him from testifying that the water main break actually caused such damage

to the Property, we disagree. Such testimony, i.e., testimony as to the

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causation of damage to the Property, called for scientific or technical

knowledge beyond that of the average layperson. Ziegler did not personally

observe the water main break, the ensuing water flow, or the immediate

impact of that water upon the Property. As such, if we allowed him to

directly testify about causation, i.e., we would have allowed him to speculate

or opine that the water main break caused the damage to his Property and,

as such, would effectively have allowed him to improperly offer an expert

opinion. See Pa.R.E. 701, 702; see also LEONARD PACKEL & ANNE BOWEN

POULIN, WEST‟S PENNSYLVANIA PRACTICE: PENNSYLVANIA EVIDENCE at 14 (2007)

(“Lay witness opinion testimony on matters requiring scientific, technical or

other specialized knowledge would not be „helpful.‟”).

Ziegler nonetheless argues that we should have allowed him to testify

about causation because, based upon his particularized training and

experience, he was capable of testifying about causation. To support his

argument, he cites the knowledge, training, and on-the-job experience that

he attained through his thirty-seven year tenure as a property loss

consultant in the field of construction and also through his ownership and

maintenance of five rental properties. Ziegler‟s Brief at 20. We note,

however, that such training and experience demonstrate that the proposed

testimony would have stemmed from “scientific, technical, or other

specialized knowledge” arising out of specialized education, licensing,

training, and/or experience that bestowed upon him “more knowledge than

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is otherwise within the ordinary range of training, knowledge, intelligence or

experience.” See Miller, 664 A.2d at 528. As such, Ziegler‟s proposed

testimony would therefore have crossed the line separating layperson

opinion testimony and expert testimony. See id.; see also Pa.R.E. 701, 702.

Ziegler also argues that we should have allowed his testimony about

causation because it was supported by the testimony of his expert witness,

Brent R. Leisenring, P.E. See Ziegler‟s Brief at 19-20. Unlike Ziegler,

Leisenring was identified as an expert witness before trial and, during trial,

was qualified and admitted as an expert witness in the field of civil

engineering. N.T. Vol. II at 134-43. Based upon his specialized knowledge

and training, and based upon his examination of the Property, Leisenring

opined that the water main break caused certain damage to the Property,

including, inter alia, causing Ziegler‟s house to settle. Id. at 148-49, 151-

53; see also Trial Exhibit P-15 (Leisenring‟s Expert Report) (“The water main

break and ensuing flow of water through the ground caused soil to be

dislodged . . . in and around the house foundation. The movement of water

and soil caused shifting of the foundation.”).

To the extent that the identification and qualification of Leisenring as

an expert witness supported Leisenring‟s ability to testify about causation,

such identification and qualification undercut Ziegler‟s instant argument.

Leisenring, unlike Ziegler, could properly offer an expert opinion under

Pa.R.E. 702.

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For these reasons, we did not commit any error by considering ESWA‟s

motion to preclude Ziegler‟s testimony or by granting such motion.

2. This Court Properly Considered ESWA‟s Motion in Limine to Preclude Louis Ferrone, P.E. from Testifying and, Further, Properly Precluded

Ferrone from Actually Testifying

Again, as recited below, the parties agree to the facts and procedural

posture. On March 8, 2008, ESWA served Interrogatories and a Request for

Production of Documents upon Ziegler. Through its Interrogatories, ESWA

sought, inter alia, the identity of all witnesses whom Ziegler expected to call

at trial (Interrogatory No. 8), the substance of each potential witness‟s

testimony (Interrogatory No. 9), and information specific to each identified

expert witness (Interrogatory No. 10), including the expert‟s area of

expertise (Interrogatory No. 11), the expert‟s qualifications (Interrogatory

No. 12), and the subject matter about which the expert would testify

(Interrogatory No. 13). See Defendant Easton Suburban Water Authority‟s

Interrogatories Adressed [sic] to Plaintiff at ¶¶ 8, 10-11, Ziegler v. Easton

Suburban Water Auth., C-48-CV-2008-1753 (C.P.Northampton, Feb. 16,

2011) [hereafter “ESWA Interrogatories”].4 ESWA also requested:

. . . a statement by each expert identified [as a potential expert witness at trial], which should contain:

(a) the substances of the facts and opinions to

which the expert is expected to testify; and

4 ESWA‟s Interrogatories were attached as Appendix C-4 to our February 16, 2011 Opinion

and Order of Court.

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(b) a summary of grounds of each opinion. If any

opinion is based in whole or part upon a test, book, article or other writing, identifying [sic] the writing by the name of the

publication, its author, the edition or date of publication and the page at which the relevant materials can be found.

and

(a) the name and address of each professional or

trade association of which the expert is a member;

(b) the title or description of every office or position held in each association identified in (a) above;

(c) the title, date of publication and name of the

publisher for each book, paper or article written by the expert;

(d) any honors or awards received in connection

with the expert‟s professional or academic endeavors.

Id. at ¶¶ 12-13.

In its Request for Production of Documents, ESWA sought:

5. Reports of any and all experts who will testify at trial.

6. All documents identified in or relating to your

answers to Interrogatories.

* * * * *

8. Any and all records, reports and repair bills or

records or abstracts of same which relate in any way to the damages allegedly sustained by plaintiff, as well as the repair of

any similar damages prior or subsequent to the occurrence in question.

9. All documents which demonstrate that you sustained

damages or financial loss as a result of the incident identified in the complaint.

10. A C.V. or resume [sic] for all experts who will testify

at the trial or arbitration of this matter.

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Defendant Easton Suburban Water Authority‟s Request for Production of

Documents at ¶¶ 5-10, Ziegler v. Easton Suburban Water Auth., C-48-CV-

2008-1753 (C.P.Northampton, Feb. 16, 2011) [hereafter “ESWA‟s Requests

for Production”].5

In response to ESWA‟s interrogatories regarding all witnesses that

Ziegler intended to call at trial, Ziegler submitted the following objections

and responses:

8. Objection, unduly burdensome, as plaintiff has not

yet had a full and fair opportunity to take discovery of the

defendant such that he might identify at this time each and every witness whom he might call at time of trial of this action.

Without waiver of the foregoing Objection, plaintiff responds that he presently anticipates calling the following witnesses at time of

trial of this action:

i. himself as to the condition of the home at the time he purchased it; and the damage it suffered due to

the negligence of the defendant on February 19, 2007, and the present condition of the home; his investigation of the

occurrence underlying this claim; efforts he made to secure insurance benefits to indemnify the loss; his efforts to secure the

cooperation of the defendant in the repair and indemnification of the damage it caused to the home, and his out of pocket

damages to as the result [sic] of the negligence of the

defendant;

* * * * *

iii. Carl Rodriguez, CMR Construction Corp., 11 Moonshadow Court, Kinnelon, NJ 07405, as to his inspection

of the home and the creation of a repair estimate;

5 ESWA‟s Requests for Production were also attached as Appendix C-4 to our February 16,

2011 Opinion and Order of Court.

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iii. [sic] a designee of State Farm Fire and

Casualty, Concordville Operations Center, P.O. Box 172, Concordville, PA 19331-0172 as to its

refusal to indemnify the losses suffered by plaintiff as the result of the negligence of the

defendant on February 19, 2007, and thereafter in its efforts to repair the damaged,

[sic] curbing, sidewalk and street adjacent to the home;

iv. Brent R. Leisening [sic], P.E., Robson

Forensic, Inc., 354 North Prince ST [sic], Lancaster, PA 17603, as to his retention by

State Farm Fire and Casualty Company, and consequent investigation of the loss to the

home caused by the negligence of the

defendant on February 19, 2007, and thereafter in its efforts to repair the damaged,

[sic] curbing, sidewalk and street adjacent to the home[.]

Objections and Responses of Plaintiff to Defendant‟s Interrogatories at

¶ 8, Ziegler v. Easton Suburban Water Auth., C-48-CV-2008-1753

(C.P.Northampton, Feb. 16, 2011) [hereafter “Responses to ESWA‟s

Interrogatories”]. In response to ESWA‟s interrogatories regarding all

expert witnesses that Ziegler intended to call at trial, Ziegler

submitted the following objections and responses

10. Objection, overly broad and unduly burdensome, as fact discovery has not yet closed. . . .

Without waiver of the foregoing objection, plaintiff responds that it [sic] will call Brent R.

Leisening [sic], P.E., Robson Forensic, Inc., the engineer retained by State Farm Fire and Casualty

Company, to investigate the reason for the damage suffered by plaintiff‟s home as the result of the

negligence of the defendant. . . .

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By way of further response, plaintiff will

supplement this response by service of the reports of any other expert witnesses he retains to provide

opinion testimony at the time of trial. . . .

11. Objection, overly broad, unduly burdensome, and seeking disclosure of information outside the scope

of expert witness documents required by Pa.R.Civ.P. [sic] 4003.5. Without waiver of this objection,

plaintiff responds, see Mr. Leisening‟ [sic] June 6, 2007 report. By way of further response, plaintiff

will supplement this response by service of the reports of any other expert witnesses he retains to

provide opinion testimony at the time of trial. . . .

12. Objection, overly broad, unduly burdensome, and

seeking disclosure of information outside the scope of expert witness disclosures required by Pa.R.Civ.P.

[sic] 4003.5. Without waiver of this objection, plaintiff responds, see Mr. Leisening‟ [sic] June 6,

2007 report. By way of further response, plaintiff will supplement this response by service of the

reports of any other expert witnesses he retains to provide opinion testimony at the time of trial.

13. Objection, overly broad, unduly burdensome, and

seeking disclosure of information outside the scope of expert witness disclosures required by Pa.R.Civ.P.

[sic] 4003.5. Without waiver of this objection, plaintiff responds that he will supplement this

response by service of the curricula vitae of the

expert witnesses he retains to provide opinion testimony at the time of trial.

Id. at ¶¶ 10-13.6

On January 3, 2011, over five months after the expiration of Judge

Beltrami‟s forty-five day extension for the completion of written discovery

and supplementation of expert reports, Ziegler filed his Second Amended

6 The Responses to ESWA‟s Interrogatories were attached as Appendix C-5 to our February

16, 2011 Opinion and Order of Court.

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Pre-trial Memorandum. In it, he identified Louis A. Ferrone, P.E. as a

witness with respect to liability and damages. Second Amended Pre-trial

Memorandum 8. Ziegler appended the Second Amended Pre-trial

Memorandum with, inter alia, a plot plan for a new retaining wall prepared

by Ferrone and a photocopy of Ferrone‟s business card. Id. On January 3,

2011, Ziegler filed his Third Amended Pre-trial Memorandum, which he

appended with Ferrone‟s curriculum vitae. Third Amended Pre-trial

Memorandum at Appendices.

Although Ziegler identified Ferrone as a witness (without specifying

whether Ferrone was a lay witness or expert witness) with respect to liability

and damages in his Second, Third, Fourth, and Fifth Amended Pre-trial

Memoranda, and although he appended several of those memoranda with

documents created by or relating to Ferrone, he failed to respond to ESWA‟s

Interrogatories or ESWA‟s Requests for Production. As detailed above, both

the Interrogatories and Requests for Production sought specific information

from Ziegler‟s proposed expert witnesses, including, inter alia, expert

reports.

On January 21, 2011, ESWA presented this Court with a motion in

limine seeking to preclude Ziegler from introducing Ferrone‟s testimony and

the plot plan he prepared. ESWA argued that: (1) Ferrone would be offered

at trial as an expert witness who would testify based upon specialized

knowledge and/or training, i.e., his knowledge and/or training as a

Page 19 of 34

professional engineer; (2) Ziegler failed to properly identify Ferrone as an

expert witness; and (3) Ziegler failed to produce a related expert report.

Ziegler responded to ESWA‟s motion on February 2, 2011 and the parties

presented argument at the February 11, 2011 pre-trial conference.

During that pre-trial conference, we asked Attorney Lang to describe

the nature of Ferrone‟s proposed testimony. She responded that Ferrone

was scheduled to testify as a fact witness, i.e., not as an expert witness.

N.T. Vol. I at 3-4. Then, the following dialogue took place:

MS. LANG: . . . Mr. Ziegler's masonry contractor went to the City of Easton to secure a permit to start rebuilding

a retaining wall which was adversely impacted by the water flow. The city required an engineer drawing in order to get the permit.

Mr. Ferrone did the engineering drawing. All he's going to testify to is this is a drawing he created and this is the work that was

required to rebuild the wall to code.

THE COURT: Split this up for me. He's going to testify that he, in fact, created the document for authentication

purposes to have a document entered as an exhibit, is that correct?

MS. LANG: Well, he created it so that Mr. Ziegler

could get the permit to rebuild the wall. In other words, the city

would not issue the permit without a design drawing.

THE COURT: What's the purpose of his testimony?

MS. LANG: The purpose of his testimony is to show the jury that this wall needs to be rebuilt in this manner.

* * * * *

MS. LANG: Mr. Ferrone was brought in to examine

the wall, see what needed to be done to put it back where it was before. When he went to go back for the permit, the City of

Easton wanted an engineering drawing. So Mr. Ziegler had to

Page 20 of 34

retain Mr. Ferrone to provide the engineering drawing to repair

the wall.

THE COURT: So, specifically, Mr. Ferrone is going to testify as to what?

MS. LANG: As to his creation of the drawing.

THE COURT: He created a drawing.

MS. LANG: To show what is needed to be done to

repair the wall.

THE COURT: He's not going to testify that the wall was damaged?

MS. LANG: He has no involvement in that whatsoever, he did not investigate that.

See id. at 4, 9. Following this dialogue, after considering the parties‟

arguments, we issued a written Order on February 14, 2011, granting

ESWA‟s motion and precluding Ferrone from testifying. See Order of Court,

Ziegler v. Easton Suburban Water Auth., C-48-CV-2008-1753

(C.P.Northampton, Feb. 14, 2011).

Instantly, Ziegler argues that we erred by “granting ESWA‟s belated

Motion in Limine and precluding the testimony of Mr. Ferrone and the plot

plan he prepared.” Post-trial Motion at ¶ 51. Accordingly, we must examine

whether: (1) we erred by considering the issues raised by ESWA‟s “belated”

motion in limine; and (2) we erred by granting ESWA‟s motion, thus

precluding Ferrone from testifying and further precluding Ziegler from

introducing into evidence the plot plan prepared by Ferrone. If we find some

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error, we must determine whether it warrants granting a new trial. See

Harman, 756 A.2d at 1121.

In part, Ziegler argues that because ESWA filed its motion in limine

after the deadline set by Judge Beltrami, and because we considered the

merits of that motion, we committed an error that warrants a new trial. For

the reasons discussed in Subsection 1 of this Opinion, supra, we disagree.

Here, as above, ESWA‟s motion in limine was evidentiary in nature. By

ruling immediately upon ESWA‟s untimely motion in limine, we acted in the

interests of judicial economy and, in so doing, came to the same ruling that

we would have reached if ESWA had otherwise presented its motion during

trial, immediately before or during Ferrone‟s direct examination. In fact, if

we had not ruled upon ESWA‟s motion, ESWA could simply have waited and

presented the same issue, by trial objection, during Ferrone‟s direct

examination.7

Ziegler also argues that we committed an error of law when we ruled

upon the merits of ESWA‟s motion in limine and precluded Ziegler from

introducing Ferrone‟s testimony and the plot plan he prepared. See Ziegler‟s

Brief at ¶ 51. Again, we disagree. Upon review of the record and the

parties‟ arguments, we have determined that: (1) we properly precluded

Ferrone from testifying as a fact witness because, as a fact witness,

7 At discussed at n.2, supra, Attorney Lang acknowledged at the February 11, 2011 pre-trial

conference that ESWA could simply have re-presented its untimely motions in limine during

trial. See N.T. Vol. I at 62-63.

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Ferrone‟s proposed testimony violated Pa.R.E. 701 because it was opinion

testimony premised upon specialized knowledge and/or training; and,

alternatively, (2) we properly precluded Ferrone from testifying as an expert

witness because Ziegler, by and through Attorney Lang‟s action and/or

inaction, failed to comply with Pa.R.C.P. Nos. 212.2(a)(5) and 4003.5(1).

Attorney Lang‟s representations to this Court demonstrate that,

despite Attorney Lang‟s statements to the contrary, Ferrone was being called

to offer expert opinion testimony. Tellingly, Attorney Lang did not represent

that Ferrone would testify regarding his first-hand observations or

knowledge of the retaining wall. See N.T. Vol. I. at 9. Instead, Ferrone‟s

proposed testimony consisted only of opinion testimony that was based on

his experience as a professional engineer, i.e., that Ziegler‟s retaining wall

required repairs and that, as detailed in his plot plan, the wall required

specific repairs to comply with local code provisions. See N.T. Vol. I at 3-5.

Thus, we properly precluded the introduction of such testimony because:

(1) the testimony was based on Ferrone‟s experience as a professional

engineer, which we determined was “scientific, technical, or specialized

knowledge within the meaning of [Pa.R.E.] 702,” and (2) Ferrone‟s

testimony would be introduced to assist the jury‟s understanding of matters

beyond the knowledge of a layperson, i.e., the scope and necessity of

proposed repairs to the retaining wall. See id. at 4-5; Pa.R.E. 701; Miller,

664 A.2d at 528.

Page 23 of 34

Alternatively, we properly precluded Ferrone from testifying as an

expert witness because Ziegler, by and through Attorney Lang, failed to

satisfy the requirements set forth by Pa.R.C.P. Nos. 212(a)(5) and 4003.5

by failing to properly identify Ferrone as an expert witness and failing to

provide an expert report. Rule 4003.5 provides that:

(a) Discovery of facts known and opinions held by an

expert, otherwise discoverable under the provisions of Rule 4003.1 and required or developed in anticipation of litigation or

for trial, may be obtained as follows:

(1) A party may through interrogatories require

(a) any other party to identify each person whom the other

party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and

(b) the other party to have each expert so identified state

the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each

opinion. The party answering the interrogatories may file as his or her answer a report of the expert or have the interrogatories

answered by the expert. The answer or separate report shall be signed by the expert.

Pa.R.C.P. No. 4003.5(a)(1)(a)-(b). The Rule further states that “[a]n expert

witness whose identity is not disclosed in compliance with subdivision (a)(1)

of this rule shall not be permitted to testify on behalf of the defaulting party

at the trial of the action.” Pa.R.C.P. No. 4003.5(b).

The Pennsylvania Superior Court has provided further guidance

regarding Rule 4003.5, stating:

Rule 4003.5 governs the disclosure of an expert's facts and opinions otherwise discoverable under the provisions of Rule

4003.1 and acquired or developed in anticipation of litigation or

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for trial. Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d

525 (1995). The Rule requires a party to disclose his expert's opinion prior to trial via answers to interrogatories or by

providing a report. The answers or report must be signed by the expert. Pa.R.Civ.P. 4003.5(a)(1)(b). Furthermore, if the

identity of an expert witness is not disclosed, Rule 4003.5 authorizes sanctions, such as preclusion of the proposed expert's

testimony. Pa.R.Civ.P. 4003.5(b). The sanction authorized by Rule 4003.5 is not mandatory. Toogood v. Rogal, 764 A.2d 552,

557 (Pa.Super.2000). Rather, when a discovery violation occurs as a result of a failure to identify an expert witness, “the

presiding court must balance the facts and circumstances of each case to determine the prejudice to each party.” Id.

(quoting Feingold v. SEPTA, 512 Pa. 567, 573, 517 A.2d 1270, 1273 (1986)). The court considers the following factors:

(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have

testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule

against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other

cases in the court, and (4) bad faith or willfulness in failing to comply with the court's order.

Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1032 (Pa. Super.

2001) (citation omitted). The Superior Court has also noted that trial courts

may preclude an expert witness from testifying where the party seeking to

introduce the expert witness‟s testimony fails to provide the opposing party

with an expert report. Freeman v. Maple Point, Inc., 574 A.2d 684, 688 (Pa.

Super. 1990) (“the court erred in admitting the testimony of . . . an expert

when his written report was not given to counsel for the appellants until the

day trial began. This resulted in prejudice to the [opposing party].”).

Similarly, Rule 212.2(a)(5) requires each party to file a pre-trial

memorandum that must contain either “a copy of the written report, or

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answer to written interrogatory consistent with Rule 4003.5, containing the

opinion and the basis for the opinion of any person who may be called as an

expert witness.” Pa.R.C.P. No. 212.2(a)(5). If the trial court determines

that a party failed to comply with Rule 212.2(a)(5), and that such failure

resulted in unfair prejudice to the adverse party, the trial court may preclude

or limit the testimony of “any expert witness whose opinions have not been

set forth in the report submitted with the pre-trial statement or otherwise

specifically referred to in the pre-trial statement, consistent with Rule

4003.5.” Pa.R.C.P. No. 212.2(c)(1)(ii).

During pre-trial discovery, ESWA served its Interrogatories upon

Ziegler‟s attorney, Melissa Lang, Esq. Pursuant to Rule 4003.5, ESWA‟s

eighth Interrogatory requested the identity of each witness that Ziegler

intended to call at trial. Further, ESWA‟s tenth and eleventh Interrogatories

requested: (1) the identity of Ziegler‟s expert witnesses; (2) the

qualifications of any such expert witnesses; (3) the subject matter of any

expert witness‟ testimony; and (4) an expert report, summarizing the facts

and opinions to which each expert would testify, and a summary of the

grounds for each opinion.

Although Ziegler, through Attorney Lang, responded to ESWA‟s tenth

and eleventh Interrogatories with information pertaining to one expert

witness, Brent Leisenring, P.E., Ziegler did not identify Ferrone as an expert

witness in his initial responses or in any supplemental response. As such, he

Page 26 of 34

also did not disclose Ferrone‟s qualifications or the subject matter of his

proposed testimony, and he did not provide ESWA with a copy of any expert

report from Ferrone. Ziegler also failed to identify Ferrone as a potential lay

witness until the filing of his January 3, 2011 Second Amended Pre-trial

Memorandum, thus leaving ESWA hardly any time to react and to prepare

for any testimony that he might provide.

Upon review of the record, and guided by the plain language of Pa.

R.C.P. Nos. 212(a)(5) and 4003.5, and the related case law, this Court has

determined that we properly precluded Ferrone from testifying as an expert

witness for two reasons. First, Ziegler‟s failure to provide ESWA with a copy

of an expert report from Ferrone warranted such preclusion. See Freeman,

574 A.2d at 688. Second, the factors espoused by the Pennsylvania

Superior Court in Corrado also support such preclusion, i.e.: (1) because

Ziegler failed to identify Ferrone as a potential witness until January 3, 2011,

and failed to properly identify Ferrone as an expert witness, ESWA was

subjected to unfair prejudice and/or surprise; (2) because Ziegler failed to

provide notice to ESWA of the content of Ferrone‟s proposed testimony,

ESWA had little or no opportunity to meaningfully cure such prejudice; and

(3) it appears that Ziegler willfully failed to comply with discovery, i.e., his

ongoing responsibility to respond to the ESWA Interrogatories and ESWA

Requests for Production by failing to provide the above-mentioned

information. See Corrado, 790 A.2d at 1032.

Page 27 of 34

Accordingly, we did not err by precluding Ferrone‟s testimony

including, inter alia, any authentication of the plot plan he prepared.

3. This Court Properly Considered ESWA‟s Motion in Limine to Preclude Carl Rodriguez, Leonard Marroni, and Jimmy Tomaino from Testifying

with Respect to the Repair Estimates they Individually Prepared, and Properly Precluded Such Testimony

Again, as recited below, the parties agree to the facts and procedural

posture. As noted above, ESWA sought, through its Interrogatories and

Requests for Production, the identity of all witnesses whom Ziegler expected

to call at trial, the substance of each proposed witness‟s testimony, and

information specific to each identified expert witness, including the expert‟s

area of expertise, the expert‟s qualifications, and the subject matter upon

which the expert would testify. See ESWA Interrogatories at ¶¶ 8, 10-13;

ESWA Requests for Production; ESWA‟s Requests for Production at ¶¶ 5-10.

Through his responses to ESWA‟s Interrogatories and Requests for

Production, Ziegler failed to identify Rodriguez, Marroni, or Tomaino

(collectively, the “Contractors”) as potential expert witnesses and failed to

disclose the nature of their testimony or the basis for their expert opinions.

Ziegler also failed, as of the first full day of trial, to provide ESWA with their

expert reports. See generally Responses to ESWA‟s Interrogatories.

On June 28, 2010, Ziegler filed his initial Pre-trial Memorandyum [sic],

identifying Rodriguez as a potential witness as to liability and damages and

providing Rodriguez‟s estimate for repairs to the Property. See Pre-trial

Page 28 of 34

Memorandyum [sic] at 7, Appendix. On August 12-13, 2010, Ziegler

amended this information by serving upon ESWA‟s attorney, Christine

Munion, Esq. copies of additional repair estimates prepared by Marroni and

Tomaino. On September 28, 2010, Ziegler also identified Marroni and

Tomaino as additional potential witnesses as to liability and damages.

Amended Pre-trial Memorandyum [sic] at 7. By contrast, in those and future

pre-trial memoranda, Ziegler identified Leisenring as his only expert witness

as to liability and damages. See, e.g., id. at 7.

On February 15, 2011, the first full day of trial, ESWA presented this

Court with an oral motion in limine, seeking to preclude the Contractors from

testifying on the basis that Ziegler had not complied with Pa.R.C.P. Nos.

212(a)(5) and 4003.5 by failing to properly identify them as expert

witnesses in advance of trial. ESWA argued that it had been prejudiced by

Ziegler‟s failures to disclose the information at issue, as such failures

prevented ESWA from offering rebuttal experts or otherwise preparing a

meaningful response. Ziegler responded that he properly identified the

Contractors as witnesses through his several amended pre-trial memoranda

and that, further, the Contractors‟ respective repair estimates served as

expert reports.

Upon consideration of the parties‟ arguments and the discovery

materials entered into the record, presented outside the presence of the

Page 29 of 34

jury, we granted ESWA‟s motion. Notably, in granting ESWA‟s motion, we

ordered that:

pursuant to [Pa.R.E.] 701, these witnesses may testify

as lay witnesses. To the extent that such testimony is otherwise permitted by the Rules of Evidence, they may

testify about matters of which they have personal knowledge, including, but not limited to the following:

o their interactions with Plaintiff; and o their observations of damage to the property.

pursuant to [Pa.R.E.] 701 and 702, however, these

witnesses may not offer any expert testimony, including, but not limited to, the following:

o the possible cause of damage to Plaintiff‟s

property; o what repairs, if any, are necessary to fix the

damage to Plaintiff‟s property; o the scope of such repairs; and

o the cost of such repairs.

Order of Court at 1-2, Ziegler v. Easton Suburban Water Auth., C-48-CV-

2008-1753 (C.P.Northampton, Feb. 16, 2011) (emphasis in original).

Instantly, Ziegler argues that we erred by “granting ESWA‟s belated

oral Motion in Limine to preclude the testimony of plaintiff‟s witnesses Carl

Rodriguez [of] CMR Construction Corp., Leonard Marroni [of] Marroni

Construction/Mason Contractor Companies, and Jimmy Tomaino [of] Palmer

Woodworking and Construction with respect to their repair estimates. . . .”

Post-trial Motion at ¶ 52. Accordingly, we must examine whether: (1) we

erred by considering the issues raised by ESWA‟s “belated” oral motion in

limine; and (2) we erred by granting ESWA‟s motion, thus precluding the

Contractors from testifying as expert witnesses. If we find some error, we

Page 30 of 34

must determine whether it warrants granting a new trial. See Harman, 756

A.2d at 1121.

In part, Ziegler argues that because ESWA filed its motion in limine

after the deadline set by Judge Beltrami, and because we considered the

merits of that motion, we committed an error that warrants a new trial. For

the reasons discussed in Subsection 1 of this Opinion, supra, we disagree.

Here, as above, ESWA‟s motion in limine was evidentiary in nature. By

ruling immediately upon ESWA‟s untimely motion in limine, we acted in the

interests of judicial economy and, in so doing, came to the same ruling that

we would have reached if ESWA had otherwise presented its motion during

trial, immediately before or during each of the Contractors‟ direct

examinations. In fact, if we had not ruled upon ESWA‟s motion, ESWA could

simply have waited and presented the same issue, by trial objection, during

the direct examination of the Contractors.8

Ziegler also argues that we committed an error of law when we ruled

upon the merits of ESWA‟s motion in limine and precluded Ziegler from

introducing the Contractors‟ testimony. See Ziegler‟s Brief at ¶ 52. Again,

we disagree. Upon review of the record and the parties‟ arguments, we

have determined that we properly precluded the Contractors from testifying

as expert witnesses because Ziegler, by and through Attorney Lang‟s action

8 At discussed at n.2, supra, Attorney Lang acknowledged at the February 11, 2011 pre-trial

conference that ESWA could simply have re-presented its untimely motions in limine during

trial. See N.T. Vol. I at 62-63.

Page 31 of 34

and/or inaction, failed to comply with Pa.R.C.P. Nos. 212.2(a)(5) and

4003.5(1).

Initially, we determined that the Contractors were called to detail the

need for, nature of, and cost of their proposed repairs to the Property. Such

testimony, by its very nature, called for expert testimony. Each of the

Contractors would necessarily have relied upon their trade-related

knowledge, education, and/or training to offer such testimony. Because

such knowledge, education, and/or training bestowed upon them knowledge

beyond that of a layperson, we determined that their opinions were expert

opinions.9 See Pa.R.E. 701 and 702; Miller, 664 A.2d at 528.

Because each contractor was testifying, at least in part, as an expert

witness, we properly precluded such expert testimony based upon Ziegler‟s

failure, by and through Attorney Lang, to comply with Pa.R.C.P. Nos.

212(a)(5) and 4003.5.

As with Ferrone, Ziegler failed to meaningfully disclose that he

intended to call the Contractors as expert witnesses.10 Ziegler, through

Attorney Lang‟s actions and/or inaction, failed to indicate in his responses to

the ESWA Interrogatories, in supplemental responses to the ESWA

9 Certainly, the need for, scope of, and cost of repairs in this case were not matters of

common knowledge, such that a lay person could recognize and understand them without

the assistance of an expert witness. In reaching our decision that the Contractors were

called, in part, to offer expert opinion testimony, we determined that the recognition and

treatment of issues such as shifted foundations and damaged retaining walls were matters

for professionals.

10 In fact, until and through trial, Ziegler‟s attorney, Attorney Lang, insisted that the

Contractors were not experts based, in part, on their lack of formal education. For the

reasons stated above, we disagree.

Page 32 of 34

Interrogatories, in his response to ESWA‟s Requests for Production, or

elsewhere that the Contractors would testify at expert witnesses.

Accordingly, the factors espoused by the Pennsylvania Superior Court in

Corrado support our decision to preclude the Contractors‟ expert opinion

testimony: (1) because ESWA was subjected to unfair prejudice and/or

surprise when, during trial, it became clear that the Contractors would

testify as expert witnesses; (2) because ESWA had little or no opportunity to

meaningfully cure such prejudice; and (3) because it appears that Ziegler

willfully failed to comply with discovery, i.e., his ongoing responsibility to

respond to the ESWA Interrogatories and ESWA Requests for Production by

failing to provide the above-mentioned information. See Corrado, 790 A.2d

at 1032.

We note, however, that we did not wholly preclude the Contractors

from testifying. The Contractors, unlike Ferrone, had actually seen the

Property after the water main break occurred and the alleged damages had

set in. As such, as part of our February 16, 2011 Order, we noted that the

Contractors were permitted to testify as lay witnesses, i.e., fact witnesses in

accordance with Pa.R.E. 701.

Alternatively, we note that we properly excluded the Contractors from

offering expert opinion testimony because Ziegler, through Attorney Lang,

failed to procure and serve upon ESWA copies of each of the Contractors‟

expert reports. See Freeman, 574 A.2d at 688. At trial, Attorney Lang

Page 33 of 34

argued that the Contractors‟ estimates were “the functional equivalent of the

report[s].” See N.T. Vol. II at 73. We determined, however, that Attorney

Lang was incorrect. The estimates at issue did not disclose the basis of the

Contractors‟ opinions and, in the only instance where the estimate claimed

some degree of certainty, noted that the repairs might not be necessary.

See Exhibit P-33 (Palmer Woodworking and Construction Estimate), Ziegler

v. Easton Suburban Water Auth., C-48-CV-2008-1753 (C.P.Northampton,

Feb. 14, 2011) (“If the work is necessary, I feel the numbers are in check.”).

As such, the Contractors‟ estimates were simply that, estimates, and were

not expert reports of the kind that an adverse party might expect and rely

upon in anticipation of trial.

4. Conclusion

Upon consideration of the issues presented by Ziegler‟s post-trial

motion, we have concluded that, with respect to those issues, we did not

commit any errors during trial. As such, we do not reach the question of

whether a new trial is warranted.

In closing, we note that the Pennsylvania Rules of Civil Procedure,

particularly those rules relating to pre-trial discovery, are not merely

suggestions. When a litigant or the attorney of his choosing fails to comply

with these Rules, we are constrained to preclude the introduction of the

related evidence if its introduction would impose undue prejudice upon the

Page 34 of 34

adverse party. See Corrado, 790 A.2d at 1032; Freeman, 574 A.2d at 688.

The sting of such preclusion can only be categorized as self-inflicted.

WHEREFORE, we enter the following:

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY

COMMONWEALTH OF PENNSYLVANIA CIVIL DIVISION - LAW

THOMAS ZIEGLER,

Plaintiff,

v.

EASTON SUBURBAN WATER AUTHORITY,

Defendant.

No.: C-48-CV-2008-1753

ORDER OF COURT

AND NOW, this 7th day of June, 2011, upon consideration of

Plaintiff‟s “Motion for Post-Trial Relief Raised Pursuant to Pa.R.Civ.P. 227.1

and Local Rule N227.1 by Plaintiff, Thomas Ziegler,” and the parties‟ briefs

and argument thereon, it is hereby ORDERED that said motion is DENIED.

BY THE COURT:

________________________

MICHAEL J. KOURY, JR., J.