Sindler v. Goldman

¶1dissents and would reverse and enter judgment on the verdict for appellant. The local rule involved cannot bar a party’s testimony.

¶2concurring:

¶3I join in the majority’s disposition of this case, including its remand to give the court below the opportunity to consider the applicability of Allegheny County’s Local Rule of Civil Procedure, Rule 212 VI(C)(l)(d). On this latter point, however, I agree reluctantly. Ordinarily, if the court’s refusal to apply the rule to Dr. Goldman’s testimony as an expert were error, we could employ that rule to affirm the court’s awarding plaintiffs a new trial. See generally 3 Vale’s Pa. Digest, Appeal & Error § 854(a) (1966). On the other hand, if that ground did not provide a basis for a new trial, we could simply reverse the court’s order in this case and order that judgment be entered for defendant. Unfortunately, not only did the lower court not treat the issue involving the local rule in its opinion in the instant case, appellant did not allude to it in his brief. Only appellees offer any discussion of the issue, and even they only request a remand on that issue rather than an affirmance of the *423court’s order.* Although a remand may be a wasteful and temporizing procedure likely to provoke another appeal in this case, given the tack the parties have taken I see no other alternative.