Missing testimony notes leads to dismissal of car wreck lawsuit

By Nicholas Malfitano | Jan 17, 2017

HARRISBURG – The Superior Court of Pennsylvania said a complaint brought by a pair of plaintiffs in a motor vehicle accident is missing mandatory testimony notes, which then led the judiciary to dismiss the complaint entirely.

Judges Anne E. Lazarus, Victor P. Stabile and Alice Beck Dubow ruled Jan. 13 to waive and dismiss the claims brought by plaintiffs Richard Raymond and Khristian Greytock against defendant Craig Krouse, due to the official record being incomplete and missing notes of testimony.

The case arises out of a May 30, 2012, motor vehicle accident. The plaintiffs filed a complaint against Krouse on Jan. 9, 2014, but Krouse was not served until Dec. 8, 2015 – 23 months after the complaint was filed, and 19 months after the statute of limitations had expired.

The defendant filed preliminary objections to that end and in response, the plaintiffs filed an amended complaint – which led Krouse to again file preliminary objections to the amended complaint and raise an objection to the delay in service.

The trial court convened an evidentiary hearing on the preliminary objections on April 21, 2016, and the trial court filed an order and opinion sustaining the preliminary objections and dismissing the plaintiffs’ complaint with prejudice. They filed a motion for reconsideration, which was not entertained by the trial court, and this led the plaintiffs then appealed this decision.

In their appeal, the plaintiffs brought forth four allegations of error, one of which the defendant claims was not preserved in the trial court below. The other alleged errors include factual averments, i.e., that defendant’s counsel held “extensive discovery” prior to service.

Such a review of those issues and their preservation requires a review of the notes of testimony, according to Dubow.

“Case law and the Pennsylvania Rules of Appellate Procedure clearly mandate the inclusion of all relevant documents, including the notes of testimony, in the official certified record. Pennsylvania Rule of Appellate Procedure 1911 addresses the mandatory request for transcript, and Pennsylvania Rule of Appellate Procedure 1921 specifically includes the transcripts of any proceedings as a part of the official record. There are numerous cases stating it is the appellant’s responsibility to provide the appellate court with a complete record for review. Further, the failure of the appellant to ensure the original record contains sufficient information to conduct a proper review may constitute waiver of the issues,” Dubow stated.

“The official record provided to this Court contains no transcript of, or reference to, the notes of testimony. It was plaintiffs’ duty to make sure the notes of testimony were transcribed and included in the official record. Because the notes were not included in the certified record, we cannot review the claims. Accordingly, the claims are waived,” Dubow said.

The plaintiffs are represented by Marc I. Simon of Simon & Simon, in Philadelphia.

The defendant is represented by Paul M. Schaffer in Bethlehem.

Superior Court of Pennsylvania case 963 MDA 2016

Schuylkill County Court of Common Pleas S-31-2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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