J-A31034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARGLE LAW OFFICES, P.C.                          IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

                      v.

WALTER GARRETT,

                             Appellant                No. 1327 EDA 2016


                 Appeal from the Judgment Dated April 4, 2016
       in the Court of Common Pleas of Northampton County Civil Division
                          at No(s): C-48-CV-2014-8610

BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*

MEMORANDUM BY FITZGERALD, J.:                        Filed January 13, 2017

        Appellant, Walter Garrett, appeals from the judgment entered in the

Court of Common Pleas of Northampton County in favor of Appellee, Margle

Law Offices, P.C., for $28,300.00 on Appellee’s claim for breach of contract.

Appellant argues that the trial court abused its discretion in excluding

multiple receipts that allegedly proved he paid Appellee in full and in

instructing the jury to disregard the receipts.    We conclude that the court

properly excluded these receipts as inadmissible hearsay.       Furthermore,

Appellant waived his objection to the court’s jury instruction relating to the

exclusion of the receipts by failing to object before the jury retired to

deliberate. Accordingly, we affirm.



*
    Former Justice specially assigned to the Superior Court.
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      Appellee filed an action against Appellant for breach of contract and

unjust enrichment alleging that Appellant failed to pay $58,608.73 in legal

fees. Appellant filed an answer claiming that he paid Appellee in full.

      The case proceeded to a compulsory arbitration hearing in which

Appellant presented no evidence.        The arbitration panel ruled in favor of

Appellee in the amount of $42,000.00, and Appellant timely appealed the

arbitration award to the trial court.

      Two months before trial, the parties submitted pre-trial statements in

accordance with Northampton County Local Rule N212B(5).          As one of his

witnesses, Appellant listed Jenny Barret, a former employee of Appellee.

      The parties did not exchange discovery requests prior to trial.

Appellant did not produce any documents until the afternoon before trial,

when he served Appellee with copies of numerous receipts that purported to

demonstrate that he paid $47,500.00 to Appellee in 2009 and early 2010.

Appellant had not listed the receipts as exhibits on his pre-trial statement.

      At the beginning of the one-day trial, Appellant’s counsel produced

sixteen originals of the receipts and grouped them together as Exhibit D-1.

Counsel contended that Barret signed the receipts in the course of her

employment as a receptionist for Appellee. The court permitted Appellant to

submit the receipts into evidence based on counsel’s representation that

Barret “was going to [come] in [as a witness] and would be available for

questioning.” N.T., 1/19/16, at 202-03.



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      During Appellee’s case in chief, Appellee’s sole shareholder, Stanley

Margle III, testified that his office did not generate the receipts. Id. at 146.

Margle suggested that the receipts were fabricated, because they “were

supposed to be six years old” but actually looked “brand new.” Id.

      Appellant’s   counsel   cross-examined     Appellee’s   office   manager,

Rebecca Neith, with the receipts.       Neith admitted that one receipt for

$3,500.00 was authentic because she found a carbon copy of this receipt in

Appellee’s records.   Id. at 155-62.    She emphasized, however, that she

never saw the other receipts and could not find them in Appellee’s billing

records. Id. Nor did she recognize the signature on the other receipts. Id.

She noted that she fired Barret in 2009 or 2010. Id.

      Appellant testified in his defense and insisted that he made the

payments indicated on the receipts.       He claimed that the receipts were

authentic because he watched office employees fill them out and did not

create them himself. Id. at 181-83.

      Appellant rested his defense without calling Barret as a witness. The

trial court asked Appellant when he had last seen Barret, and Appellant

answered that he could not remember their last meeting, but that he might

have “bumped into” her years ago at the Allentown Fair.            Id. at 194.

Appellant’s counsel admitted that he did not subpoena Barret. Id. at 197.

Counsel stated that either his secretary or Appellant spoke with Barret one

week before trial, and Barret advised that she had just suffered a heart



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attack.1 Id. at 200. On the day of trial, Barret texted Appellant’s counsel’s

secretary that she was at the hospital for a test. Id. at 199-200. Counsel’s

secretary texted back a request that Barret contact her after her test, but

the record does not indicate that Barret ever responded. Id.

     Due to Appellant’s failure to present Barret’s testimony, the court

excluded all receipts in Exhibit D-1 from evidence except for the $3,500.00

receipt that the office manager admitted was in Appellee’s records. Id. at

222-24. The court instructed the jury that it could not consider the stricken

exhibits due to Barret’s failure to testify and subject herself to cross-

examination. Id.

     The jury returned a verdict in favor of Appellee for breach of contract

in the amount of $28,300.00. On January 29, 2016, Appellant filed timely

post-verdict motions challenging the exclusion of the receipts. On February

18, 2016, Appellant filed a premature appeal that this Court quashed as

interlocutory on March 28, 2016.

     In an opinion and order on April 4, 2016, the court denied Appellant’s

post-verdict   motions   and   entered    judgment   against   Appellant   for

$28,300.00. The court entered judgment in favor of Appellant and against




1
 Barrett was only in her late thirties at the time of her heart attack. Id. at
200.




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Appellee on the unjust enrichment claim.2         The April 4, 2016 order

constitutes a final order because it disposes of all claims and all parties.

Pa.R.A.P. 341(b)(1).

      On May 2, 2016, Appellant timely appealed. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following issues in this appeal, which we have re-

ordered for the sake of disposition:

      1. WHETHER IT WAS PROPER TO COMPLETELY EXCLUDE FROM
      EVIDENCE AND JURY CONSIDERATION IN ANY FORM,
      INCLUDING ALL TESTIMONY RELATED THERETO, THE FIFTEEN
      (15) RECEIPTS PROFFERED BY THE DEFENDANT.

      2. WHETHER NORTHAMPTON COUNTY LOCAL RULE N212B(5)
      REQUIRED THE EXTREME AND OVERBROAD SANCTION AGAINST
      THE DEFENDANT OF EXCLUDING FIFTEEN (15) RECEIPTS FROM
      EVIDENCE.

      3. WHETHER A CURATIVE INSTRUCTION SHOULD HAVE BEEN
      RENDERED REGARDING THE EXCLUSION OF FIFTEEN (15)
      RECEIPTS AS WELL AS THE TESTIMONY RELATED THERETO AT
      TRIAL.



2
   The trial court did not rule on Appellee’s equitable claim of unjust
enrichment. On February 9, 2016, Appellee filed timely post-verdict motions
objecting to the court’s failure to decide its unjust enrichment claim.
Despite acknowledging its failure to decide the unjust enrichment claim, the
court reasoned that the verdict in favor of Appellee on the breach of contract
claim precluded recovery for unjust enrichment. Trial Ct. Op., 4/4/16, at 10
(Appellee’s claims for breach of contract and unjust enrichment “are
mutually exclusive … recovery for unjust enrichment is predicated upon the
absence of a contract … we may not award [Appellee] damages for unjust
enrichment where a jury has found that a contract existed and award[ed]
[Appellee] damages for breach of said contract”). Appellee did not appeal
this decision.



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      4. WHETHER NORTHAMPTON COUNTY LOCAL RULE N212B(5)
      REQUIRED AN ADDITIONAL SANCTION VIA JURY INSTRUCTION
      WHICH ORDERED THE JURY TO DISREGARD COMPLETELY ANY
      EVIDENTIARY OR TESTIMONIAL REFERENCE TO THE (15)
      RECEIPTS.

      5. WHETHER APPELLANT WAIVED HIS RIGHT TO SEEK POST–
      TRIAL RELIEF FOR FAILING TO PRESERVE GROUNDS FOR
      APPEAL PURSUANT TO PA R.C.P 227.1.

Appellant’s Brief, at 4.

      We review the first two issues together, because they boil down to the

same issue: whether the trial court properly excluded the fifteen receipts

from evidence. The trial court based its decision to exclude the receipts on

Northampton County Local Rule N212B(5), which authorizes the court to

impose “such penalty or sanction as the court may in its discretion impose”

when a party fails to call a listed witness without seven days’ advance notice

to the opposing party. We agree with this ruling for a different reason: the

receipts are inadmissible hearsay. See In re Estate of Strahsmeier, 54

A.3d 359, 364 n. 17 (Pa. Super. 2012) (Superior Court may affirm for any

reason and is not constrained to affirm on grounds relied upon by trial

court).

      We examine evidentiary rulings for abuse of discretion. Zieber v.

Bogert, 773 A.2d 758, 760 n. 3 (Pa. 2001). A ruling on evidence does not

constitute reversible error unless it is harmful or prejudicial to the

complaining party. Yenchi v. Ameriprise Financial, Inc., 123 A.3d 1071,

1082 (Pa. Super. 2015).



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        Hearsay is “a statement that (1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted in the statement.”     Pa.R.E. 801(c). A

document itself qualifies as hearsay when it contains such hearsay

statements. Rissi v. Cappella, 918 A.2d 131, 138–39 (Pa. Super. 2007).

Anything qualifying as hearsay is inadmissible as evidence unless an

exception applies. Pa.R.E. 802.

        The business records exception in Pa.R.E. 803 provides in pertinent

part:

          Rule 803. Exception to the Rule Against Hearsay
          Regardless of Whether the Declarant is Available as
          a Witness

                                     ***

          (6) Records of a Regularly Conducted Activity. A
          record (which includes a memorandum, report, or data
          compilation in any form) of an act, event or condition if,

          (A) the record was made at or near the time by—or from
          information transmitted by—someone with knowledge;

          (B) the record was kept in the course of a regularly
          conducted activity of a ‘business’, which term includes
          business, institution, association, profession, occupation,
          and calling of every kind, whether or not conducted for
          profit;

          (C) making the record was a regular practice of that
          activity;

          (D) all these conditions are shown by the testimony of the
          custodian or another qualified witness, or by a certification
          that complies with Rule 902(11) or (12) or with a statute
          permitting certification; and


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J-A31034-16



          (E) neither the source of information nor            other
          circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6).      While a qualified witness need not have personal

knowledge, the individual must be able to “provide sufficient information

relating to the preparation and maintenance of the records to justify a

presumption of trustworthiness . . .” Boyle v. Steiman, 631 A.2d 1025,

1032 (Pa. Super. 1993).

     “[Rule 803(6)(D)’s] requirement that a custodian or other qualified

witness testify to establish that the requirements of the rule have been met

establishes [one] technique for authenticating the record” under Rule

803(6).    1 West’s Pa. Prac., Evidence § 803(6)-1 (4th ed.).         Failure to

authenticate a record in accordance with this subsection renders the record

inadmissible. Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d

492, 499 (Pa. Super. 2011).

     Furthermore, under Rule 803(6)(E), the court may exclude an

otherwise qualified memorandum, report, record, or data compilation if “the

sources    of   information   or   other   circumstances   indicate    lack    of

trustworthiness.” The court may exclude a record as untrustworthy where

there was motive or opportunity to prepare an inaccurate record.              See

Commonwealth v. Zimmerman, 571 A.2d 1062, 1068-69 (Pa. Super.

1990) (defendant attempted to introduce alibi evidence of job order ticket

notations regarding deliveries to show he made specific telephone calls or



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J-A31034-16


was actually in locations stated in notations; court properly excluded this

evidence as untrustworthy, because authenticating witness was not same

person who received telephone calls in question, so that reliability of

telephone call recipient’s identification of defendant as caller was not

established, and defendant had opportunity and possible motive to cause

entries to be made on tickets that did not accurately reflect his actual

whereabouts).

       This Court’s decision in Commonwealth Financial Systems is also

instructive.         There,    the    appellant,     Commonwealth        Financial     Systems

(“Commonwealth”), allegedly purchased the appellee’s debt to Citibank from

NCOP Capital. Commonwealth Financial Systems, 15 A.3d at 494. To

verify the transfer of debt ownership, Commonwealth attempted to admit

records of business transactions between Citibank and NCOP Capital, both

separate       entities     from      Commonwealth,         through     the     testimony     of

Commonwealth’s own vice president of portfolio collection.                      Id.    The trial

court denied admission on the ground that the documents were improperly

authenticated under Pa.R.E. 803(6).                 Id. at 494-95.      This Court affirmed,

holding that vice president of portfolio collection did not have sufficient

knowledge       of    the     records    and      could   not   establish     the   documents’

trustworthiness. Id. at 499–500.

       In this case, as in Commonwealth Financial Systems, the receipts

were    inadmissible          under     Pa.R.E.     803(6)(D)     due    to    their   lack   of



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J-A31034-16


authentication by a “custodian or another qualified witness.”         Margle,

Appellee’s sole shareholder, and Neith, the office manager, declined to admit

that the receipts were authentic. Indeed, Margle suggested that they were

fabricated.   Barret did not testify and therefore did not authenticate the

receipts. While Appellant claimed that the receipts were authentic, he was

not an employee of Appellee.         Like the witness in Commonwealth

Financial Systems, Appellant had no knowledge of the preparation and

maintenance of these records.

       Furthermore, the receipts were inadmissible under Rule 803(6)(E) due

to their lack of trustworthiness.      Appellant’s uncorroborated claim of

authenticity was self-serving testimony designed to eliminate his debt to

Appellee. Moreover, as Margle testified, the receipts appeared to be phony

because they looked brand new even though they were supposed to be six

years old. Further undermining confidence in the receipts’ authenticity was

counsel’s failure to subpoena Barret and Barret’s failure to appear for trial.

In short, as in Zimmerman, the receipts were untrustworthy because

Appellant had the motive and the opportunity to create inaccurate records.

       For these reasons, the trial court properly exercised its discretion by

excluding the receipts from evidence due to Appellant’s failure to satisfy the

authentication and trustworthiness requisites within Pa.R.E. 803(6)(D) and

(E).




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J-A31034-16


      We review Appellant’s third and fourth issues together, because they

concern the same issue: whether the trial court properly instructed the jury

to disregard the receipts.   The trial court held that Appellant waived this

argument by failing to raise a timely objection during trial. We agree.

      A party must object to jury instructions before the jury retires to

deliberate, unless the trial court specifically allows otherwise. Passarello v.

Grumbine, 87 A.3d 285, 292 (Pa. 2014). If a party fails to raise a specific

objection to a jury instruction, he waives the objection and cannot raise it in

a subsequent appeal. Cruz v. Northeastern Hospital, 801 A.2d 602, 610-

11 (Pa. Super. 2002). We will not consider a claim on appeal which a party

did not call to the trial court’s attention at a time when the court could have

corrected any error. Keffer v. Bob Nolan’s Auto Service, Inc., 59 A.3d

621, 645 (Pa. Super. 2012). “[O]ne must object to errors, improprieties or

irregularities at the earliest possible stage of the adjudicatory process to

afford the jurist hearing the case the first occasion to remedy the wrong and

possibly avoid an unnecessary appeal to complain of the matter.”           Id.

(citation omitted).

      After the trial court instructed the jury to disregard the receipts, and

immediately before the jury retired to deliberate, the court inquired whether

counsel had any objections, corrections or additions.      Appellant’s counsel

answered:




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J-A31034-16


         No. I would just add, when your Honor had explained your
         Honor’s ruling, and I understand why you explained it,
         it was pretty tough but you had to explain it that
         way, if you could just give them an instruction that when
         you were explaining your ruling that you were in no way
         giving way to either side --

N.T. at 249 (emphasis added). Through this response, Appellant’s counsel

conceded that the instruction was proper, thus waiving his right to object to

the instruction on appeal. See Cruz, 801 A.2d at 610-11.

      Even if Appellant had preserved these issues for appeal, we have held

above that the trial court’s decision to exclude the receipts from evidence

was proper. Consequently, its directive for the jury to disregard the receipts

was proper as well.

      Appellant’s final argument is that he preserved all issues by raising

them in his post-verdict motions. This issue is moot in view of our decisions

above that the court properly excluded the receipts from evidence, and that

Appellant waived his objection to the court’s instruction relating to the

receipts by failing to object before jury deliberations.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2017




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