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J. A15001/01
2001 PA Super 190
GLORIA HALL, EXECUTRIX OF THE :
IN THE SUPERIOR COURT OF
ESTATE OF LESTER D. SMALLWOOD
:
PENNSYLVANIA
:
Appellee
:
:
v.
:
:
OWENS CORNING FIBERGLASS CORP., :
PITTSBURGH-CORNING CORP., :
GREENE TWEED & CO., INC., AW :
CHESTERTON, INC., FLINTKOTE CO., :
GARLOCK, INC., PORTER-HAYDEN CO., :
FOSTER WHEELER CORP., INC., PARS :
MANUFACTURING CO., JH FRANCE :
REFRACTORIES CO., ANCHOR PACKING :
CO., AC & S CORP., CARLISLE CORP., :
UNIROYAL, INC., BICKLEY FURNACES, :
INC., RILEY STOKER CORP., HARBISON :
WALKER REFRACTORIES, DREVER :
FURNACES, SUPERIOR BOILER WORKS, :
INC., CLEAVER BROOKS, WR GRACE & :
CO., CRANE PACKING, INC., JOHN :
CRANE, INC., RAPID AMERICAN CORP., :
COMBUSTION ENGINEERING, INC., :
ALLIED SIGNAL, INC., BRAND :
INSULATION, INC., KEELER DORR- :
OLIVER BOILER CO., SELAS CORP. OF :
AMERICA,
:
:
Appellees
:
:
:
APPEAL OF: JOHN CRANE, INC.
:
No. 1892 EDA 2000
Appeal from the Judgment entered June 2,
2000, in the Court of Common Pleas of Philadelphia County, Civil
Division, at No. 0763, February Term, 1997.
BEFORE: JOHNSON, STEVENS, and LALLY-GREEN, JJ.
OPINION BY LALLY-GREEN, J.:
Filed: June 27, 2001

J. A15001/01
¶ 1
Appellant, John Crane, Inc., appeals from the judgment entered in
favor of Appellee, Gloria Hall, Executrix of the Estate of Lester D. Smallwood.
We reverse and remand for a new trial.
¶ 2
The trial court offered the following summary of procedural history:
[Appellant] filed post-trial motions in this matter
following a jury verdict in favor of [Appellee]
regarding the deceased's claims for injuries and
damages as a result of exposure to asbestos-
containing products. All of the other Defendants
settled prior to trial. A Phase I trial on damages was
held first and award of $200,000 was rendered. The
Phase II trial on liability was conducted from March
9-11, 1999 with a unanimous verdict of liability.
[Appellant] contends that numerous errors occurred
at trial and that they are entitled to a new trial on
both liability and damages. On May 5, 200,
[Appellant's] motion for post trial [sic] relief was
denied.
Trial Court Opinion at 1. Judgment was entered and this appeal followed.
¶ 3
Appellant presents the following issues for our review:
I. WHETHER THE DEFENDANT IS ENTITLED TO
JUDGMENT NOTWITHSTANDING THE VERDICT
[JNOV] WHERE THE PLAINTIFF FAILED TO OFFER
ANY ADMISSIBLE EVIDENCE TO CARRY HER BURDEN
OF PROVING EXPOSURE OF THE DECEDENT TO THE
DEFENDANT'S PRODUCT.
II. IN THE ALTERNATIVE, WHETHER THE
DEFENDANT IS ENTITLED TO A NEW TRIAL WHERE
THE TRIAL COURT ERRONEOUSLY ADMITTED
HEARSAY EVIDENCE, AND THAT EVIDENCE WAS THE
ONLY EVIDENCE OFFERED BY PLAINTIFF TO CARRY
HER BURDEN OF PROVING EXPOSURE TO THE
DEFENDANT'S PRODUCT.
Appellant's Brief at 5.
2

J. A15001/01
¶ 4
Appellant first argues that it is entitled to JNOV because Appellee failed
to prove that Appellant's products proximately caused Decedent's injuries.
The record reflects that the request for JNOV was not raised in Appellant's
post-trial motions. Thus, we face an initial issue of whether this issue was
preserved for our review.
¶ 5
Regarding preservation of issues in post-trial motions, Pennsylvania
Rule of Civil Procedure 227.1(b) provides:
(b) Post-trial relief may not be granted unless the
grounds therefor,
(1) if then available, were raised in pre-
trial proceedings or by motion, objection,
point for charge, request for findings of
fact or conclusions of law, offer of proof
or other appropriate method at trial; and
(2) are specified in the motion. The
motion shall state how the grounds were
asserted in pre-trial proceedings or at
trial. Grounds not specified are deemed
waived unless leave is granted upon
cause shown to specify additional
grounds.
Pa.R.C.P. 227.1(b). Essentially, post-trial relief may not be granted unless
the grounds for such relief are specified in the post-trial motion. Brindley
v. Woodland Village Restaurant, Inc., 652 A.2d 865, 867 (Pa. Super.
1995). Grounds not specified in the post-trial motion are deemed waived.
Id.
¶ 6
Our review of the record, specifically Appellant's motion for post-trial
relief dated March 19, 1999, reflects that Appellant did not request relief of a
3

J. A15001/01
JNOV. Appellant filed a post-trial motion for a new trial and listed multiple
grounds for support of the request. Accordingly, because the claim was not
specified in post-trial motions, this issue was not preserved and is,
therefore, waived.
¶ 7
Appellant next argues that the trial court erred in failing to grant a
new trial because the court erred in admitting deposition testimony of a
witness who had not been shown to be unavailable. The court conceded its
error in its opinion dated October 24, 2000.1 We agree.
¶ 8
Pennsylvania Rule of Civil Procedure 4020 regulates the use of
depositions at the time of trial. Rule 4020 provides:
Use of Depositions at Trial
(a) At the trial, any part or all of a deposition, so
far as admissible under the rules of evidence, may
be used against any party who was present or
represented at the taking of the deposition or who
had notice thereof if required, in accordance with any
one of the following provisions:

1 Appellee argues in her brief to this court that Appellant waived this issue for failing to
object in a timely fashion. Appellee's Brief at 21. Our review of the record reflects that
Appellant's counsel did, in fact, make a timely specific objection to the use of the deposition
testimony. Counsel stated:
I don't think that it's proper under Rule 4020, under the
rule Mr. Puriefor's [sic] deposition in lieu of the live testimony,
because, there hasn't been any proof that he has been served a
subpoena, as far as I know, he is not dead and there is no
proof that he is more than 100 miles outside of the jurisdiction
of this Court, Your Honor, so based upon that I'm going to
object to the use of his discovery deposition, today.
N.T., 3/9/1999, at 5. Thus, Appellee's argument that the issue is waived is not supported
by the record and fails.
4

J. A15001/01
(1) Any deposition may be used by any party for
the purpose of contradicting or impeaching the
testimony of a deponent as a witness.
(2) The deposition of a party or of any one who at
the time of taking the deposition was an officer,
director, or managing agent of a party or a person
designated under Rule 4004(a)(2) or 4007.1(e) to
testify on behalf of a public or private corporation,
partnership or association or governmental agency
which is a party, may be used by an adverse party
for any purpose.
(3) The deposition of a witness, whether or not a
party, may be used by any party for any purpose if
the court finds
(a) that the witness is dead, or
(b) that the witness is at a greater distance than
one hundred miles from the place of trial or is
outside the Commonwealth, unless it appears that
the absence of the witness was procured by the
party offering the deposition, or
(c) that the witness is unable to attend or testify
because of age, sickness, infirmity or imprisonment,
or
(d) that the party offering the deposition has
been unable to procure the attendance of the
witness by subpoena, or
(e) upon application and notice that such
exceptional circumstances exist as to make it
desirable, in the interest of justice and with due
regard to the importance of presenting the testimony
of witnesses orally in open court, to allow the
deposition to be used.
(4) If only part of a deposition is offered in
evidence by a party, any other party may require the
offering party to introduce all of it which is relevant
5

J. A15001/01
to the part introduced, and any party may introduce
any other parts.
(5) A deposition upon oral examination of a
medical witness, other than a party, may be used at
trial for any purpose whether or not the witness is
available to testify.
(b) Substitution of parties does not affect the right
to use depositions previously taken; and, when an
action has been dismissed and another action
involving the same subject is afterward brought
between the same parties or their representatives or
successors in interest, all depositions lawfully taken
in the former action may be used in the latter as if
originally taken therein.
(c) Subject to the provisions of Rule 4016(b),
objection may be made at the trial or hearing to
receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of
the evidence if the witness were then present and
testifying.
(d) A party shall not be deemed to make a person
his own witness for any purpose by taking the
person's deposition. The introduction in evidence of
the deposition or any part thereof for any purpose
other than that of contradicting or impeaching the
deponent makes the deponent the witness of the
party introducing the deposition, but this shall not
apply to the use by an adverse party of a deposition
as described in subdivision (a)(2) of this rule. At the
trial or hearing any party may rebut any relevant
evidence contained in a deposition whether
introduced by that party or by any other party.
Pa.R.C.P. 4020.
¶ 9
For our purposes, we are concerned with Rule 4020(a)(3) which
addresses the unavailability of a witness as grounds for permitting the use of
a deposition at trial. The proponent of a deposition at trial must
6

J. A15001/01
demonstrate the unavailability of the witness or the exercise of due diligence
on his part in attempting to locate the witness. Kuntz v. Firth, 264 A.2d
432, 433 (Pa. Super. 1970). The determination of "the sufficiency of proof
of unavailability is within the trial court's discretion, and, once the trial court
is satisfied that the witness is unavailable, the witness's deposition may be
admitted as substantive evidence." Williams v. A-Treat Bottling
Company, 551 A.2d 297, 300 (Pa. Super. 1988); Beaumont v. Etl
Services, Inc., 761 A.2d 166, 172 (Pa. Super. 2000).
¶ 10 The phrase "exceptional circumstances" has not been defined by
caselaw in this Commonwealth. However, we find the following commentary
by Goodrich-Amram insightful:
This subdivision of Rule 4020, which permits
depositions of an outside witness or a nonadverse
party to be used as substantive evidence without a
showing of unavailability, must be sparingly invoked.
In order to warrant application of this provision, the
circumstances must be truly "exceptional" since the
admission of the deposition in the absence of proof
of unavailability of the witness goes contrary to the
well-established rule that the testimony of witnesses
should be given orally in open court. Thus, two
situations might constitute exceptional circumstances
justifying application of this provision: (1) where the
witness is absent for some unusual reason not
included in the four categories listed in the
proceeding paragraphs of this subdivision; and (2)
where the witness is present in court at the trial but
cannot testify for some unusual reason, such as the
loss of speech or memory, or simply refuses to
testify.
Goodrich-Amram 2d § 4020(a):16.
7

J. A15001/01
¶ 11 The record reflects the following. Mr. Smallwood, the decedent, died
prior to trial. N.T., 3/9/1999, at 24. His videotaped depositions were played
for the jury. Id. The decedent described the asbestos-related products with
which he worked. Deposition of Smallwood, August 19, 1997, at 67-68.
Decedent was, however, unable to identify the names of the product or the
packaging of the product except that the product of pipe fittings was called
"Gypsum." Id. The decedent did not identify Appellant as the manufacturer
of the asbestos containing products which he used.
¶ 12 Appellee sought to call, as a product identification witness, Mr. David
Puriefoy, who was one of the decedent's co-workers. Mr. Puriefoy would
have testified regarding the decedent's use of Appellant's products. See,
N.T., 3/9/1998, at 5-8. Shortly before Mr. Puriefoy was to testify, Appellee
was unable to locate Mr. Puriefoy to have him present in court to testify. Id.
at 5-8. Consequently, Appellee requested permission to use Mr. Puriefoy's
deposition testimony. Id. at 6. Appellant objected that the use of the
deposition was not proper under Rule 4020. Id. at 5. Appellee's counsel
explained that he was unable to track down Mr. Puriefoy and, because Mr.
Puriefoy was a client of Appellee's counsel, a subpoena had not been issued.
Id. at 6-7. Counsel argued that this situation was an "exceptional
circumstance" under 4020(a)(3)(e). Id. The trial court agreed and
permitted the deposition testimony of Mr. Puriefoy to be read to the jury.
Id. at 7-8.
8

J. A15001/01
¶ 13 The trial court explained in its 1925(b) opinion that it committed an
error when it permitted the use of the deposition testimony:
Presently, Puriefoy's unanticipated
disappearance does not justify the admission of his
deposition. Although counsel attested to the efforts
made to contact him, issuing a subpoena would have
eliminated this problem. The witness would have
been aware of the trial and perhaps notified counsel
of his need to leave town or his whereabouts. With
that precaution, the testimony would have been
permitted by Rule 4020(3)(b) or (d) [sic]. The
circumstances were not exceptional, at least no
exceptional reason was given. It was incorrect to
rule on this issue on the basis of prejudice to the
opposing party. Had that been the proper standard,
it is clear that there was no prejudice to Crane sine
they were present at Puriefoy's deposition in
September 1997 and had an opportunity to question
him.
Because this ruling directly affected the
outcome of the case by permitting the only crucial
product identification testimony, Crane is entitled to
a new trial on liability...
Trial Court Opinion at 6.
¶ 14 We agree with the thoughtful reasoning of the trial court. Our review
of the record shows that Appellee failed to prove that Mr. Puriefoy's
unavailability was due: to his death; to his being more than 100 miles from
the court house; to age, sickness, infirmity or imprisonment; or, to the
ineffectiveness of a subpoena. In addition, Appellee's reasons for not
subpoenaing Mr. Puriefoy do not amount to exceptional circumstances.
Thus, because Appellee failed to meet the burden under Rule 4020 for the
use of deposition testimony at trial, the court erred in permitting its use.
9

J. A15001/01
Accordingly, we reverse and remand for a new Phase II trial on the issue of
liability.
¶ 15 Judgment vacated. Case remanded for new Phase II trial. Jurisdiction
relinquished.
10