Lenhart v. Naccarato

11 Pa. D. & C.4th 54, 1990 Pa. Dist. & Cnty. Dec. LEXIS 17
CourtPennsylvania Court of Common Pleas, Washington County
DecidedSeptember 27, 1990
Docketno. 2164 of 1988
StatusPublished

This text of 11 Pa. D. & C.4th 54 (Lenhart v. Naccarato) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Washington County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lenhart v. Naccarato, 11 Pa. D. & C.4th 54, 1990 Pa. Dist. & Cnty. Dec. LEXIS 17 (Pa. Super. Ct. 1990).

Opinion

RODGERS, J.,

This matter is before the court on motions for post-trial relief filed by both plaintiffs, Debra Smoke Lenhart and Randall Lenhart, her husband, and defendants, Filippo Naccarato and Nella Naccarato, t/d/b/a Filippo Beauty Salon and Hair Removal Clinic. Defendants request a new trial or judgment n.o.v. Plaintiffs request a new trial to determine whether [55]*55the Unfair Trade Practices and Consumer Protection Law should be applied in this case.

In this case, plaintiffs, Debra Smoke Lenhart and Randall Lenhart, her husband, sought money damages from defendants, Filippo Naccarato and Nella Naccarato, t/d/b/a Filippo Beauty Salon and Hair Removal Clinic, for personal injuries in the nature of scarring and disfigurement arising out of treatment of plaintiff Debra Smoke Lenhart by defendants to remove unwanted facial hair by electrolysis, beginning in May 1986 and continuing until about September 1987.

This case was tried before a jury on June 14, 15, and 18, 1990, before Judge Rodgers. The jury returned a verdict for plaintiff Debra Smoke Lenhart only in the amount of $20,000.

Defendants raise three issues in their post-trial motions. They are as follows:

(1) The trial court erred in refusing to grant defendants’ motion for continuance:

(2) The trial court erred in permitting Rebecca J. Caserio, M.D. to testify as an expert witness on behalf of plaintiffs; and,

(3) The trial court erred in refusing to grant defendants’ motion for withdrawal of a juror after counsel for plaintiffs made improper remarks in her closing argument.

Plaintiffs raise only one issue in their motion for post-trial relief. Plaintiffs allege that the court erred in refusing to apply the Unfair Trade Practices and Consumer Protection Law of this Commonwealth and in refusing to instruct the jury accordingly.

For the reasons hereinafter stated, the motions for post-trial relief filed by plaintiffs and defendants are denied.

Defendants claim that the court erred in refusing to grant their motion for continuance.

[56]*56In March 1988 defendant Nella Naccarato began living in Italy with her husband, who is an Italian citizen.

This case was first listed on the October 1989 trial list. Two joint motions for continuance were made by the parties and granted by the court, onfe on October 12, 1989 and the other on November 22, 1989. The November 22 motion asserted three grounds m support of the motion for continuance, one being that defendant Nella Naccarato was not expected to return to the United States in time for the December 1989 trial term.

At the pretrial conference which was held on April 23, 1990, counsel for defendants presented a motion for continuance requesting a continuance until the September 1990 trial list stating that defendant Nella Naccarato would not be returning to the United States until September 1990 because her husband was experiencing “immigration difficulties.” The trial court granted the motion, but continued the case to the June 1990 trial term, not to the September 1990 trial term, as requested by counsel.

On June 8, 1990, counsel for the parties took the telephone deposition of defendant Nella Naccarato for use at trial. During the deposition, Mrs. Naccarato stated, in response to a question from her counsel, that she did not know when she would return to the United States. (Nella Naccarato deposition at 6.)

Counsel for the defendants again made a motion for continuance on June 14, 1990 at the time this case was called for trial. The trial court denied the motion.

A continuance is discretionary and an inherent power of the trial court. Chester Housing Authority v. Nichola, 329 Pa. Super. 136, 477 A.2d 1391 (1984). Pa.R.C.P. 216(a)(4) also provides that under [57]*57special circumstances the court may, within its discretion, grant a continuance. The trial court clearly did not abuse its discretion in refusing defendants’ motion for continuance.

Defendants did not provide a satisfactory explanation as to why Mrs. Naccarato’s husband’s immigration problem prevented her from returning to the United States to attend trial. In addition, Mrs. Naccarato stated that she did not know when she would be returning to the United States. Therefore, it was uncertain that a continuance of the case to the September 1990 trial list would insure Mrs. Naccarato’s presence at trial. Further, Mrs.- Naccarato was afforded a full opportunity to testify through her deposition, and has failed to show that she was prejudiced by the manner in which her testimony was received. Three continuances had already been granted in this case when it was called to trial.

For these reasons, the court did not err in refusing to grant defendants’ motion for continuance.

Defendants also allege that the trial court erred in permitting Rebecca J. Caserio, M.D., to testify as an expert witness on behalf of the plaintiffs. Defendant raises two subissues in this regard: (a) that Dr. Caserio was not qualified to render an expert opinion in this case; and (b) that Dr. Caserio’s opinion lacked the decree of certainty required to be admissible.

First, defendants argue that Dr. Caserio, who was not an electrologist, was not qualified to give an opinion in this case, therefore, her testimony was inadmissible.

Pennsylvania law imposes a liberal standard for the qualification of an expert, allowing a witness to testify as an expert' if the witness has any “reasonable pretension to specialized knowledge on the subject under investigation.” Kuisis v. Baldwin-[58]*58Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974). See also, In re Glasser Bros. Inc., 382 Pa. Super. 177, 555 A.2d 129 (1989). Once a witness is qualified as an expert, the weight to be given to the expert’s testimony is for the jury. Kuisis, 457 Pa. at 338, 319 A.2d at 924. The decision as to whether a witness has the required knowledge to qualify as an expert witness is within the sound discretion of the trial court. Gottfried v. American Can Co., 339 Pa. Super. 403, 489 A.2d 222 (1985).

With this liberal standard in mind, Pennsylvania courts have allowed experts in one area to address other areas where specialties overlap. See, e.g., Ragan v. Steen, 229 Pa. Super. 515, 331 A.2d 724 (1974) (a surgeon was permitted to testify in a medical malpractice action as to causation against a radiologist where the surgeon was knowledgeable through experience as to X-ray treatments); McDaniel v. Merck, Sharp and Dohme, 367 Pa. Super. 600, 533 A.2d 436 (1987) (an expert witness was not required to" be a hematologist in order to present opinion evidence that a particular antibiotic caused decedent’s death where he was a board-certified specialist in internal medicine and infectious diseases who conducted a search of the literature on the drug and also prescribed the drug to patients).

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Bluebook (online)
11 Pa. D. & C.4th 54, 1990 Pa. Dist. & Cnty. Dec. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lenhart-v-naccarato-pactcomplwashin-1990.