Opinion
No. 81-1804
Decided June 1, 1983.
Public Utilities Commission — Mobile telephone units — Allegation of improper charges and service — Evidence — Witnesses — "Lay witness" and "expert witness," defined — Evid. R. 702 and 703 — Commission rules governing admission of expert testimony — Tape recording properly excluded, when — Ohio Adm. Code 4901-1-23.
APPEAL from the Public Utilities Commission of Ohio.
On May 8, 1980, appellant, Lawrence A. Landskroner, filed a complaint with the Public Utilities Commission of Ohio ("commission") against intervening appellee, Ohio Bell Telephone Company ("Ohio Bell"), alleging improper service with respect to his mobile telephone unit. Appellant alleged that he was improperly charged for calls he did not make on his mobile telephone. He also alleged that Ohio Bell had failed to keep itemized records with respect to local mobile telephone usage, making it impossible to identify the disputed charges; that Ohio Bell had refused to provide a corrected billing; and that his service was terminated for non-payment of the disputed charges. Ohio Bell answered, generally denying the allegations of the complaint but admitting that it did not retain the itemized billing information appellant requested.
Subsequent to the filing of this complaint, Ohio Bell instituted new billing procedures for mobile telephones, itemizing all local and long-distance calls.
After publishing the appropriate notice, the commission scheduled the matter for public hearing on October 2, 1980. Several continuances were granted before the matter was ultimately heard on May 12, 1981, and continuous discovery problems arose during the pendency of the proceedings.
At the hearing, appellant sought to admit into evidence a tape recording he made of conversations between himself and Ohio Bell employees concerning the billing for his mobile telephone. Counsel for Ohio Bell objected to the admission of the tape because appellant had not complied with Ohio Bell's discovery request to produce the tape and on the ground that it was hearsay evidence. The objection was sustained but appellant was permitted to testify as to those conversations. Mr. Phillip Way, president of Two-Way Service Co., Inc., an electronic communications firm specializing in two-way radios, was called as a witness on behalf of appellant. Ohio Bell objected to the admission of his testimony because he had not been identified as an expert prior to hearing and his testimony had not been filed. Appellant then offered his testimony as a fact witness relative to the repair and maintenance of appellant's mobile telephone. The hearing examiner ruled that Way could testify as to facts he knew about appellant's mobile telephone, but that he could not make any conclusions as an expert because he had not been identified prior to trial and his testimony was not filed with the commission.
Ohio Bell rested without calling any witnesses.
In its opinion and order entered August 12, 1981, the commission found that appellant had not established that he had been improperly billed for mobile telephone service and dismissed the complaint. Appellant's motion for rehearing was denied and the cause is now before this court upon an appeal as of right.
The commission has also filed a motion to dismiss this appeal for the reason that copies of the tape recording sought to be admitted at the hearing were not included in appellant's record. We find, however, that the actual tape is unnecessary for a resolution of this appeal and accordingly, the commission's motion is denied.
Mr. Lawrence A. Landskroner, pro se. Mr. William J. Brown, attorney general, Mr. Marvin I. Resnik and Ms. Marsha Rockey Schermer, for appellee.
Mr. Ronald L. Orloff and Mr. Charles S. Rawlings, for intervening appellee.
In his first proposition of law, appellant argues that Phillip Way was a lay witness and therefore, it was unlawful and unreasonable for the commission to rule that his opinion testimony was inadmissible due to appellant's failure to identify him as an expert prior to the hearing. Essentially, it is appellant's contention that a witness who testifies from personal knowledge should be classified as a lay witness, even though the testimony is based upon the witness' expertise in a technical area.
A "lay witness" is defined as a "[p]erson called to give testimony who does not possess any expertise in the matters about which he testifies. * * *" Black's Law Dictionary (5 Ed. 1979) 799. In contrast, this court has defined an "expert witness" as one who testifies concerning "* * * matters of scientific, mechanical, professional or other like nature, requiring special study, experience or observation not within the common knowledge of laymen * * *." McKay Machine Co. v. Rodman (1967), 11 Ohio St.2d 77 [40 O.O.2d 87], paragraph one of the syllabus. Similar language is used in Evid. R. 702 describing expert testimony, and Evid. R. 703, governing the bases for expert opinion provides that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing." (Emphasis added.) Thus, the fact that an expert testifies from personal knowledge does not remove him from the classification of expert witness. It was established on direct examination that Way possessed particular expertise regarding mobile telephone units and the network of equipment necessary for their operation. Inasmuch as the opinions he sought to render were based upon his technical knowledge and experience, we find that he was properly characterized as an expert witness and subject to the commission's rules governing the admission of expert testimony.
In his remaining propositions of law, appellant challenges the commission's decision not to admit the tape recording in evidence. We find that the commission was authorized by Ohio Adm. Code 4901-1-23, to exclude the recording for the reason that it had been requested during discovery but was not provided. Moreover, appellant has shown no prejudice as a result of this ruling inasmuch as he was permitted to testify as to the contents of the tape recording.
The commission's order, being neither unreasonable nor unlawful, is hereby affirmed.
Order affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
J.P. CELEBREZZE, J., not participating.