Lead Opinion
This appeal is from a civil judgment entered in the Court of Common Pleas of Allegheny County. We affirm.
On February 3, 1987, a residential building owned by appellant, Robert E. Wilson, was seriously damaged by fire. The property had been insured against fire loss by appellee. On March 26,1987, appellant submitted a claim for fire loss to appellee, who then commenced an investigation. As part of that investigation, appellant’s deposition was scheduled. Immediately after the deposition, on June 5, 1987, appellant was arrested on charges of arson. Appellant was tried for arson in the criminal division of the lower court and was acquitted. On September 25, 1989, appellee denied coverage to appellant for the fire loss on the grounds of arson.
Appellant then commenced a civil action against appellee by writ of summons. On May 6, 1988, when the complaint was filed, it contained three counts: Count I, breach of contract; Count II, trespass/fraud and deceit; and Count III, violations of the Consumer Protection Act. Appellant was given permission to amend the complaint in October, 1989. The amended complaint contained four additional counts: Count IV, deprivation of civil rights; Count V, false arrest; Count VI, false imprisonment; and Count VII, infliction of emotional distress.
A jury trial was held on May 23, 1990 in the lower court. After a motion in limine by appellee, the lower court dismissed counts III, IV, V, VI, and VII of the complaint. Before the jury retired for deliberations, the court entered a non-suit as to count II. The jury deliberated on count I and returned a verdict in favor of defendant appellee. Appellant’s post-trial motions were denied, and he then filed the instant timely appeal.
On appeal, appellant raises the following issues:
I. Whether the trial court erred when it denied a mistrial when defense counsel improperly questioned the plaintiff as to whether he had refused a polygraph examination;
*34 II. Whether the trial court erred when it granted a non-suit as to plaintiffs action for fraud and deceit against the defendant insurance company.
On the basis of these and other issues, appellant requested post-trial relief in the form of a new trial in the lower court. “Our standard of review of the denial of a new trial is to decide whether the trial court committed an error of law which controlled the outcome of the case or an abuse of discretion.” Robertson v. Atlantic Richfield Petroleum Products Company,
The appellant bears a heavy burden in persuading this court that such error occurred. In considering all of the evidence in the light most favorable to appellee we must, to reverse the trial court, conclude that the verdict would be changed if another trial were granted.
Id. When the basis of the request for a new trial is the lower court’s ruling(s) on evidence, to constitute reversible error, such ruling “must be shown not only to have been erroneous but harmful to the party complaining____” Hart v. W.H. Stewart, Inc.,
Appellant contends that the lower court erred in failing to grant him a new trial on the basis of testimony elicited from him on cross-examination concerning whether he had refused to take a polygraph examination in connection with the instant litigation. Specifically, the testimony objected to was:
Q. When I asked you to take a polygraph in this case you refused, didn’t you?
A. My attorney advised me to not take any sort of a polygraph test because they are not admissible and inaccurate.
At the trial, counsel for appellee indicated that he elicited this testimony from appellant for the purpose of impeachment. (N.T., May 24, 1990, at 112). A review of the record
The testimony at the deposition then addressed the reasons for appellant’s failure to call the fire department. These included the fact that there had been a prior legal action involving appellant and the Borough of Swissvale, which had caused some “bad relations” with the borough of Swissvale “in general.” In that legal action, appellant had requested that the court order the borough officials to take a polygraph test concerning certain of the circumstances involved in that case, which request the lower court refused. The testimony at trial then proceeded to the objected-to question, which appellant cites as the basis for a new trial. That question was immediately followed by testimony that appellant had been advised by his attorney prior to his June, 1987 deposition that he should refuse any request that he submit to a polygraph.
In ruling on appellant’s objection to the quoted question, the lower court held that it was admissible for the limited purpose of impeachment relative to the prior statement which appellant had made on the stand during trial, i.e., that he had contacted the fire department about the fire at issue the day after the fire’s occurrence. The question then is whether appellant’s testimony that he had refused appellee’s counsel’s request that he submit to a polygraph in regard to the instant proceeding was admissible for the
Rulings on evidence are within the discretion of the trial judge and will not be reversed on appeal absent a manifest abuse of that discretion. Capan v. Divine Providence Hospital,
Applying these principles to the facts of the instant case, we note first that the strict prohibition on reference to polygraph examinations, as set forth in Commonwealth v. Saunders, supra, has been eroded by the more recent cited cases. See Commonwealth v. Brinkley,
In Quigley, the Pennsylvania Supreme Court held that the numerous references to a polygraph examination taken by a witness at a hearing on dismissal charges against appellant, a police officer, were prejudicial as those references raised an impermissible inference of the test results.
On appeal to the Commonwealth Court, that court rejected appellant’s argument that the numerous references at the hearing to Edgerton’s polygraph constituted reversible error. The Commonwealth Court reasoned that the references were not error because they did not discuss the results of the polygraph. On appeal, the Pennsylvania Supreme Court reversed. Justice Zappala, writing for the court, found that despite the fact that the test results were not explicitly disclosed, the numerous polygraph references had caused the Commission to infer that Edgerton had passed the test. He concluded that the references were prejudicial in that they unavoidably raised an impermissible inference of the test results.
We find the instant case distinguishable from Quigley. Unlike the witness in Quigley, appellant Wilson never submitted to a polygraph examination. Thus, the inference which our Supreme Court found so offensive in Quigley, that the witness had passed the examination, could not possibly have been drawn here. Since Wilson had not submitted to a test, together with his explanation that the results of such a test, if taken, are inadmissible at trial, no inference as to results was possible. In addition, in the instant case, there was only one reference to the fact that Wilson had refused to take a polygraph in regard to the present litigation; in Quigley, there were numerous references, a fact which our Supreme Court found significant in producing reversible error.
Because of these differences, we do not find Quigley controlling. In comparison to Quigley, the reference to polygraph in the case sub judice was so ineffectual and inconsequential that it could in no way have obstructed the jury from a fair determination of the issues in the case based on relevant factors. If we were to find otherwise, it would mean that a passive mention of any irrelevant statement, which, if pursued to its most extreme extent would constitute prejudicial evidence, could result in reversal. We
Continuing with our analysis of the particular facts of the instant case, we note that the fundamental consideration in determining the admissibility of any evidence is its relevance to the fact sought to be proved. Martin v. Soblotney,
Despite this conclusion, we must still determine whether the admission of the polygraph testimony was harmless error, or of such a magnitude that if a new trial were granted, a different verdict would result. See Robertson v. Atlantic Richfield, supra. We have reviewed the entire record of the trial and cannot conclude that a different outcome would ensue. We note that there was no reference to polygraph test results, since appellant did not actually submit to a polygraph. Therefore, the type of highly prejudicial polygraph testimony to which the courts have object
Appellant’s next contention on appeal is that the lower court erred in granting a non-suit as to Count II of his complaint, which alleged a cause of action in fraud and deceit against appellee. He contends that the appellee’s scheduling of a deposition of him by letter of May 20, 1987 as well as the communications of appellee’s field claims adjustor, Mr. Les Misko, to the police established a cause of action for fraud and deceit.
A motion for compulsory nonsuit will only be granted where it is clear that a cause of action has not been established. Storm v. Golden,
The essential elements of a cause of action for fraud or deceit are a misrepresentation, a fraudulent utterance thereof, an intention to induce action thereby, justifi
In the instant case, the evidence adduced at trial shows that it was standard policy for appellee to investigate insurance claims in excess of twenty thousand dollars, as was appellant’s claim. As part of the investigation, the company decided to take a statement under oath from the claimant, appellant, as is required under the terms of the insurance policy. Thus, the deposition of appellant was requested by letter of May 20, 1987, and subsequently scheduled for June 5, 1987. After the deposition had been scheduled, Mr. Misko contacted the Allegheny County Police to request some time with one of the detectives to discuss the police investigation of appellant.
On June 4, 1987, Mr. Misko met with the detectives and was told by them that they planned to arrest appellant the next day, June 5, 1987. Mr. Misko was not informed by them as to when the warrant for appellant’s arrest had been issued or when the criminal action against him had been filed. Misko also testified that he did inform the police officers that appellant would be in the Frick Building
We cannot conclude that these facts constituted a cause of action for fraud or deceit. The letter of May 20, 1987, despite appellant’s allegations, simply contained no misrepresentations. As to Misko’s “concealment” of the police plan to arrest appellant, this is not the type of concealment which would constitute the basis of a cause of action for fraud. Misko did not set up the deposition with knowledge of the impending arrest. Nor did the deposition’s scheduling have any connection with the criminal action. Misko only learned of the police’ plan to arrest appellant the day before its actual occurrence.
Misko was under no duty to advise appellant of the knowledge he had acquired. The police investigation was a separate one from the claims investigation of which the deposition was a part. The coincidence of appellant’s arrest at the site of the deposition due to considerations of police convenience was not the type of information that Misko was required to disclose. Had the arrest not occurred there, it is certain to have occurred elsewhere, and Misko would not have been required to advise appellant of such a fact. In addition, the deposition was scheduled because the policy under which appellant claimed benefits required such a proceeding. Thus, Misko’s actions did not induce appellant to submit to deposition; he was required to do so under the terms of the policy if he wished to proceed with his claim for fire loss benefits. For all of these reasons, we conclude that the lower court did not err when it granted appellee’s motion for a non-suit on the cause of action based on fraud and deceit.
Judgment affirmed.
Dissenting Opinion
dissenting:
I would grant a new trial on the ground that the trial court erred in failing to declare a mistrial after Appellee’s counsel intentionally introduced evidence of Appellant’s refusal to take a polygraph examination upon the request of Donegal Mutual’s attorney.
Although the majority holds that the testimony elicited concerning Appellant’s refusal to take a polygraph was irrelevant,
I disagree. A trial court is required to grant a mistrial when the prejudicial admission of information may reasonably be said to have deprived a party of a fair and impartial trial. Commonwealth v. Rolison,
In the recent decision by the Pennsylvania Supreme Court, Quigley v. Philadelphia Civil Service Commission,
Silver Spring also reaffirmed the unreliability of lie detector tests, noting that there was no concrete evidence of developments in this field which would make polygraph results any more scientifically reliable than when the court held in Johnson, supra,
The Quigley decision also narrowed the holding in McMullin Appeal, 41 Pa.Commonwealth Court. 474,
The majority, in distinguishing the instant case from Quigley, states that because Mr. Wilson refused to take the exam, “the inference which our Supreme Court found so offensive in Quigley, that the witness had passed the examination could not possibly have been drawn here.” However, it is clear that the fact-finder would equally draw the opposite inference, that Appellant refused to take the exam because he was lying, which would be equally offensive. A references to a witness’ willingness or unwillingness to take a lie detector test raises an inference as to the test result,
Nor am I persuaded that Appellant’s explanation for his refusal to take the test reduced the inference that he was lying. In Johnson, supra.,
Justice Larsen, who concurred in the finding that the appellant had been deprived of due process by the introduction of the polygraph evidence in the administrative proceeding, stated, “We must be scrupulous in insuring that every person who is accused of wrongdoing and whose liberty and/or substantial property interests are at risk is afforded a fair trial before a fair and impartial tribunal.” Quigley, supra., (Justice Larsen concurring and dissenting) (emphasis added).
I believe that we must be equally scrupulous in the present action. In the context of personal injury actions, the supreme court held in Cook v. Philadelphia Transportation Co.,
[T]he ‘Crazy Bar’ was wholly alien to the accident, in no way contributed to the happening or an explanation of the accident, and the only possible advantage the defendant could have obtained by filling the jury’s ears with the cry of ‘Crazy Bar,’ would have been an advantage it was not entitled to, but which might well have brought about a mistrial. Id.,414 Pa. at 158 ,199 A.2d 446 .
See also, Morreale v. Prince,
In the present case the intentional reference to Appellant’s refusal to submit to a polygraph gave the defendant/insurance company an advantage to which it was not entitled. It is certainly no less prejudicial to refer to a refusal to submit to a lie-detector test than it is to mention the name of a bar.
Furthermore, the testimony concerning this refusal was not, as the majority holds, “a passive mention” of Wilson’s refusal to take a lie detector test, [citation omitted] On the contrary, it was responsive to a direct question posed by the defendant’s attorney. Furthermore, it is unlike Commonwealth v. Brinkley,
Notes
. The majority states, "whether or not to admit evidence is within the discretion of the trial court and will not be reversed absent a manifest abuse of discretion” [citation omitted]. I agree with my colleague, Judge Wieand, in Commonwealth v. Wagner,