                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-1995

Compass Tech., INC. v. Tseng Lab., INC.
Precedential or Non-Precedential:

Docket 95-1060




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                    UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                    ______________________________

                             NO. 95-1060
                    ______________________________

                      COMPASS TECHNOLOGY, INC.,

                                         Appellant

                                    v.

                       TSENG LABORATORIES, INC.
                                         WANG LABORATORIES, INC.

                          _________________

           On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                  (D.C. Civil Action No. 93-cv-1934)

                          _________________

                       Argued October 16, 1995

              Before: BECKER, ROTH, Circuit Judges, and
                       SHADUR,1 District Judge.

                  (Opinion filed December 13, l995)
                          _________________

F. Anthony Mooney, Esquire (Argued)
F. Anthony Mooney and Associates
20 Williams Street, Suite 110
Wellesley, MA 02181

            Attorney for Appellant

Lisa D. Stern, Esquire (Argued)
Miller, Turetsky, Rule, McLennan & Stern
300 Courthouse Plaza
18 West Airy Street
Norristown, PA 19401-4717

            Attorney for Appellee

1
    Milton I. Shadur, United States District Judge for the Northern
             District of Illinois, sitting by designation.

                                                                   1
                        ______________________

                         OPINION OF THE COURT
                        ______________________


SHADUR, District Judge.

     Compass Technology, Inc. ("Compass") appeals the district

court judgment, following a bench trial, that accepted the

position of defendant Tseng Laboratories, Inc. ("Tseng") in this

contract dispute.   Compass contends that the district court erred

(1) by admitting extrinsic evidence to interpret the contract

between Compass and Tseng and (2) by refusing to reopen the

evidence after a key witness had first been located within a few

days after the close of the 1-1/2 day bench trial.

     Jurisdiction in the district court was invoked on diversity-

of-citizenship grounds under 28 U.S.C. §1332 (originally-named

codefendant Wang Laboratories, Inc. ("Wang") was dismissed by the

district court for lack of jurisdiction).      We have jurisdiction

over this appeal from the district court's final judgment under

28 U.S.C. §1291.

     We hold that under any view of the evidentiary issues the

district court erred in refusing to hear the newly-located

witness.   And because that alone requires us to reverse the

district court's judgment and remand for a new trial, we then

address the related evidentiary issues as a guide to the handling

of that second trial.

                          Factual Background




                                                                      2
     This dispute arises out of a "Manufacturer's Rep Agreement"

(the "Agreement") entered into between Tseng and Compass

effective February 19, 1988.   Under the Agreement Compass was to

serve as the exclusive selling representative for Tseng, a

manufacturer of computer graphics chips, in six New England

states.   In return Compass was to receive a commission on the

Tseng products sold by Compass within the six-state region.

     Tseng's then Director of Sales and Marketing John Ciarlante

("Ciarlante") prepared the form of Manufacturer's Rep Agreement

based on his experience with a previous employer (Tseng not

having previously used such agreements).   It took the form of a

standard printed document, with blanks left to be filled in as

appropriate.   While the Agreement is quite straightforward in

most respects, its Paragraphs 3 and 4 give rise to the present

controversy:
     3.   PRODUCTS -- The Representative shall sell the
     "products" of the manufacturer set forth herein which
     may be changed by the Manufacturer upon sixty (60) days
     prior notice, subject further to Addendum #1, attached
     hereto:



     4.    AMOUNT OF COMPENSATION -- Representative's
     compensation for services performed hereunder shall be
     5%2 of the "net invoice price" defined herein below, of
     the Manufacturer's product for which an order is taken
     by Representative. However, when engineering,
     execution of the order, or shipment involve different
     territories the Manufacturer will split the full
     commission among the Representatives whose territories
     are involved. The Manufacturer will make this
     determination and advise the interested Representatives
     at the time the order is submitted to the Manufacturer.

2
 This typed figure fills in a blank space in the printed form
Agreement.

                                                                    3
     No Addendum #1 is in the record, and that has proved to be

the focal point of the dispute between the parties.   Even though

Tseng was unable to produce a copy of any such addendum or to

provide any witness who could testify to its claimed contents or

could even recall seeing one, it nonetheless says that there was

such an animal and that the addendum specified that Compass was

to receive no commission whatever on any sales of Tseng products

to Wang.   For its part, Compass claims that no Addendum #1 ever

existed and that the Agreement is clear that Compass was to

receive a 5% commission on all sales within its territory,
including sales to Wang.   What is at stake, if Compass is indeed

entitled to such a commission on sales to Wang during the time

that the Agreement was in effect, is an amount close to $200,000

exclusive of prejudgment interest.

     Like most such catch phrases, the Chinese proverb that "One

picture is worth ten thousand words" is obviously not intended to
be taken literally as a universal rule.   In this instance,

however, the relevant picture is of the words themselves--the

Agreement's pages showing its standardized form, the placement of

the blanks and the filling in of the blanks (or perhaps more

importantly, the failure to fill in the blanks)--and that picture

is worth a good many words in the context of this case.   We have

therefore annexed a photocopy of the Agreement's most relevant

and most illustrative page, its page 1.




                                                                    4
      Ciarlante had been Tseng's sole participant in negotiating

and signing the Agreement on its behalf, while Compass was

represented by its President Donald Rheault ("Rheault").    At

trial Rheault testified that he could not recall whether or not

there was an Addendum #1 attached to the Agreement when he signed

it.   Because Ciarlante could not be located by either party

before the trial, Tseng's only witness who spoke to the issue at

all was John Gibbons, a founder, director and business consultant

for Tseng, who testified that he had instructed Ciarlante to

exclude sales to Wang from the Agreement.   But Gibbons admitted

on cross-examination that he did not actually see the Agreement

until March 1989--more than a year after it was executed and

delivered--and that he has never seen any Addendum #1.

      Early in the trial the district court determined as a matter

of law that the Agreement's reference to the missing Addendum #1

created an ambiguity (1994 WL 446853, at *1).   Over Compass'

objections the district court then allowed testimony about the

parties' intent as to what commission was to be paid on sales to

Wang.

      Although the district court's comments during the short

bench trial had reflected a healthy skepticism as to whether

there had ever been an Addendum #1 (let alone what its terms were

if it actually existed), the court ultimately reached the

following conclusion (id. at *2):
     On the basis of the credible evidence presented by the
     parties the Court finds that Addendum #1 provided that
     Compass would receive no commission on the sale of
     Tseng Products to house accounts and that, at the time
     the Agreement was executed, Tseng's only house account


                                                                   5
     was Wang. Compass knew and was aware that no
     commission was to be paid on house accounts and that
     Wang was Tseng's most substantial account and its only
     house account.   Compass knew and was aware of the fact
     that a commission would not be paid on the Wang
     account.


That holding was based, according to the district court, on three

strands of evidence presented at trial (id. at *2-3):

     1.   In addition to the stated awareness on Compass' part

          reflected in the last two quoted sentences, Compass was

          also aware that Tseng's previous manufacturer's

          representative had been dismissed for requesting

          commissions on the Wang account.3

     2.   Compass received two small commission statements for

          periods during which substantial sales were made to

          Wang, yet did not question Tseng or complain when those

          statements did not cover those sales to Wang.

     3.   In November 1988 (six months after the contract became

          effective) representatives of Compass and Tseng met to

          discuss a commission for servicing the Wang account and

          agreed that Compass would receive a 1% commission on

          sales to Wang after December 1, 1988.

Based on those findings the district court included in the total

damages it awarded to Compass only 1% of the sales to Wang

3
 Our examination of the record has disclosed no evidence whatever
to support this finding. As for the other findings by the
district court, both those quoted above and those summarized in
the text of this opinion, we make no effort to review either the
evidence tendered by Tseng or Compass' submission of point-by-
point evidence to the contrary, matters that we anticipate will
be re-evaluated by the district court in light of the Ciarlante
testimony and of what is said in this opinion.

                                                                   6
between December 1, 1988 and May 24, 1989 (that figure came to

$18,402) plus prejudgment interest (id. at *3).4

     On August 16, 1994--after the trial had ended on August 11

but before the judge's August 15 decision was docketed and sent

to the parties on August 18--Compass' efforts to locate

Ciarlante, launched some months earlier, bore fruit.   Its counsel

immediately filed a Motion To Stay Issuance of Decision, or

Vacate Decision, and Re-Open Evidence to Permit the Testimony of

Previously Missing Witness.5   Then on August 22, after it had

received the district court's decision, Compass filed a second

motion--its Motion To Alter or Amend Judgment, or, Alternatively

for New Trial, or Re-Opening of the Evidence--under Fed.R.Civ.P

("Rule") 59(a).   Compass then supported that motion with an

affidavit from Ciarlante in which he stated what his testimony,

if it were credited at all, would be if the Court reopened the

evidence and allowed him to testify.

     Suffice it to say at this point that Ciarlante's testimony,

if it were credited at all, would have been devastating to

Tseng's position.   Among other sworn assertions that supported

Compass' position in its entirety, Ciarlante flatly controverted

Gibbons' testimony as to any discussions having taken place about

Wang sales being noncommissionable (or being commissionable at a

4
  As reflected in the text, December 1, 1988 was the date on which
the district court found that Tseng agreed to begin paying
Compass a 1% commission on Wang sales. As for the May 24, 1989
date, that came from the fact that Tseng notified Compass of the
Agreement's termination on April 24, 1989, and Agreement ¶9
called for any such termination to be effective 30 days later.
5
  Because of a mix-up in filing, that motion was not docketed
until September 12, 1994.

                                                                   7
reduced rate) and just as flatly negated the existence of the

mysterious Addendum #1:
     29. It was in this context that the manufacturers
     representative agreement with Compass Technology, Inc.,
     a copy of which is attached hereto as Exhibit C, was
     entered into in February of 1989.

     30. I prepared that contract and I dealt exclusively
     with Mr. Rheault in connection with its execution.

     31. There was never an Addendum #1 attached to the
     contract, nor was it ever intended that there would be
     an Addendum #1 attached to the contract.

     32. It was never the intent on the part of either
     Tseng or Compass that commissions on sales to Wang
     would be excluded from the contract or would be treated
     as subject to a reduced commission.

     33. One of Compass' responsibilities was to salvage
     the Wang account and develop the Wang business. Under
     those circumstances, it would have made no sense for
     Tseng to require that there be no commission paid on
     Wang sales through Compass Technology, Inc. or that
     there be a reduction of any commission earned on those
     sales.

     34. There were never any discussions within Tseng
     Laboratories, Inc. that there would be no commissions
     paid to Compass with respect to Wang sales and I was
     not instructed to include such a provision, or a
     provision calling for reduced commissions, in any
     contract, addendum or other arrangement entered into
     with Compass Technology, Inc. on behalf of Wang.

     35. I was never told that any manufacturers rep
     agreement I entered into on behalf of Tseng would have
     to be approved, initialed or countersigned by anyone,
     including John Gibbons or Jack Tseng.

     36. The form of agreement used in connection with the
     Compass Technology, Inc. contract was one I used while
     employed at Princeton Graphics and that form of
     agreement provided for an Addendum #1, which was
     occasionally used by Princeton Graphics to exclude
     certain products, not to list house accounts.




                                                                8
     37. I have never seen an Addendum #1 in connection
     with the Compass agreement or any other manufacturers
     rep agreement entered into during my tenure at Tseng.
     38. I was present at the breakfast meeting which took place
     on November 2, 1988 at which John Gibbons and Donald Rheault
     were present.

     39. I did not meet with Donald Rheault the night before
     that meeting to advise him that Compass Technology, Inc.
     would now be receiving a 1% commission on Wang sales, and I
     was not instructed by anyone at Tseng to have any such
     conversation with Mr. Rheault.

     40. Had such an instruction been given to me, I would
     remember it, because it would have been directly contrary to
     the arrangement which Tseng had with Compass Technology,
     Inc. for the payment of a 5% commission on sales in Compass'
     New England territory, and it would have represented a
     drastic change in what had been agreed upon, namely, that
     Compass would receive a full commission on all sales in its
     territory.

     41. There was no conversation at the breakfast meeting on
     November 2 in which Donald Rheault thanked John Gibbons for
     allowing Compass Technology, Inc. a 1% commission. Again, I
     would have a definite recollection of any such comment
     because it would have been inconsistent with what I knew to
     be the arrangement between Compass Technology, Inc. and
     Tseng, namely, that Compass was to receive a 5% commission
     on all sales in its territory, including sales to Wang. The
     breakfast meeting was to discuss protocol and the agenda of
     a meeting scheduled to take place at Wang immediately
     following breakfast.


     On December 20, 1994 the district court denied both of

Compass' motions, finding that Ciarlante could have been located

earlier had Compass exercised "reasonable diligence," that

Ciarlante's testimony about Addendum #1 would be "merely

cumulative" and that at any rate his testimony would not change

the outcome (1994 WL 719616).   That decision tied up the last

loose ends before the district court and set the stage for this

appeal.



                                                                   9
                   Refusal To Reopen Judgment

     We begin where the factual account has just ended--with the

district court's rejection of Compass' motion, brought under this

portion of Rule 59(a):
     A new trial may be granted to all or any of the parties
     and on all or part of the issues . . . in an action
     tried without a jury, for any of the reasons for which
     rehearings have heretofore been granted in suits in
     equity in the courts of the United States.


Although that provision does not in terms speak of such relief

being based on new evidence, Rule 60(b)(2) provides that "newly

discovered evidence which by due diligence could not have been

discovered in time to move for a new trial" can give rise to

relief from a judgment or order.   Rule 59 and Rule 60(b)(2) share

the same standard for granting relief on the basis of newly

discovered evidence (11 Charles Wright, Arthur Miller and Mary

Kay Kane, Federal Practice and Procedure:    Civil 2d § 2808, at 86

(2d ed. 1995).

     That standard requires that the new evidence (1) be material

and not merely cumulative, (2) could not have been discovered
before trial through the exercise of reasonable diligence and (3)

would probably have changed the outcome of the trial (Bohus v.

Beloff, 950 F.2d 919, 930 (3d Cir. 1991)).   Any party requesting

such relief "bears a heavy burden" (id., quoting Pilsco v. Union

R. Co., 379 F.2d 15, 17 (3d Cir. 1967)).    Though we consequently

review a district court's decision in that respect for an abuse

of discretion (cf. Olefins Trading, Inc. v. Han Yang Chem Corp.,

9 F.3d 282, 290 (3d Cir. 1993), dealing with the other side of



                                                                  10
the coin--the erroneous admission of evidence), in this instance

we hold that the district court did indeed abuse its discretion

by refusing to reopen the evidence to allow Ciarlante to testify.

     First, the district court held that Compass could have

located Ciarlante had it exercised "reasonable diligence."    But

that determination gives insufficient credence to the affidavit

of Compass' counsel F. Anthony Mooney ("Mooney") that accompanied

its motion.   Mooney there chronicled Compass' continuing efforts

to locate Ciarlante, which began as soon as Mooney learned

through discovery in the case about the vital position of

Ciarlante as Tseng's only participant in the negotiations with

Compass that resulted in the Agreement (as well as Ciarlante's

having been Tseng's signatory to the Agreement).

     Indeed, it is plain that both sides were searching for

Ciarlante as a possible witness:   When Tseng's counsel was asked

by the district court about his whereabouts, she replied, "Heaven

only knows.   Neither party has found him."   Based on Compass'

counsel's pursuit of several possible avenues to trace

Ciarlante's whereabouts, on counsel's ultimate success in

locating him through the lawyer who represented Ciarlante in his

lawsuit against Tseng (with whom Ciarlante had a falling out),

and on counsel's immediate request to the district court to

reopen proofs (before counsel knew that the judge had issued his

written ruling a day earlier), it must be concluded that Compass

made the appropriate showing of diligence.6

6
 One matter that the district judge mentioned in ruling otherwise
was that Compass had twice (on July 27 and August 5, 1994)

                                                                    11
     More critically for Rule 59 purposes, the district court's

characterization of Ciarlante's proposed testimony as "merely

cumulative" is unacceptable.    That surprising label was ascribed

to Ciarlante's affidavit because Rheault had testified that there

was no Addendum #1 that excluded products sold to Wang.    But it

is plainly different in both degree and kind to have such

testimony emanating from the sole representative of Tseng in the

negotiation and signing of the Agreement.     Moreover, Ciarlante's

affidavit expressly contradicts the testimony of Tseng's witness

(Gibbons), who had said that such an exclusion of Wang sales had

been intended, and other previously-quoted portions of the

affidavit (its Paragraphs 38-41) are also wholly at odds with

Gibbons' testimony as to the asserted post-contract negotiation

of a lower commission rate on Wang sales.

     We do not of course rule on which witness or witnesses are

ultimately to be credited--that is a matter for the district

court to decide on remand.     But the point at this stage of the

proceedings is that if Ciarlante's testimony were to be believed

in any material respect, it could not fairly be viewed as "merely

cumulative."   One thing should be added in that regard,

occasioned by the district court's comment (just after another

use of the term "merely cumulative") that Tseng would challenge

Ciarlante's credibility because he had been terminated by Tseng

opposed Tseng's requests to continue the trial date because
Tseng's key witness was scheduled to be out of the country.
Whatever else might be said on that score, of course it would be
inappropriate to turn down Compass' motion as some sort of
penalty for its not having consented to Tseng's request for a
continuance.


                                                                    12
and had later sued it for wrongful discharge.   Just as this court

does not make credibility determinations as to witnesses whom we

have not seen and heard (else we might review district court

credibility findings de novo, rather than according them the

respect that we do), so it would be improper for the district

court to consider discrediting Ciarlante sight unseen.

     Lastly in Rule 59(a) terms, the district court ruled that

Ciarlante's testimony would not change the outcome of the trial.

But that is closely linked to the point we have just made.     At a

minimum such a determination cannot be made without the prior--

and impermissible--determination that Ciarlante would be

disbelieved without ever seeing and hearing him testify.   Indeed,

even on that premise it cannot safely be said that the prior

trial outcome should stand in any event--and that is so for other

reasons to be discussed in the next section.

     Our conclusion is additionally fortified by the posture of

the case before the district court.   What we have said would call

for the granting even of a conventional Rule 59(a) (or Rule

60(b)(2)) motion for a new trial.   But that result obtains a

fortiori where what had taken place here was a short bench trial,

with the district court facing only the need to reassemble

counsel (and their clients, if they desired) to hear Ciarlante

out through direct and cross-examination, and with no need to

recall the other witnesses to testify anew (except perhaps to

amplify their testimony in light of Ciarlante's)--let alone any

need to reconvene with a new jury for a full-blown rerun, as a

new trial most often requires.


                                                                  13
     In sum, a new trial must be ordered because of the district

court's erroneous ruling on Compass' Rule 59(a) motion.     That

conclusion logically leads to a brief discussion of some of the

evidentiary ground rules for that new trial, as called into

question by this appeal.

                  Evidence and Burden of Proof

     Both before the district court and before us, the litigants

have focused their principal fire on issues of parol evidence:

whether under Pennsylvania law (which is specified by Agreement

¶12 to provide the rules of decision, a designation that both

parties to this diversity-of-citizenship action have honored) it

is proper to resort to matters outside of the Agreement itself

that assertedly bear on the intent of the contracting parties.

Analysis demonstrates that another aspect of Pennsylvania law

calls for those issues to be scrutinized in conjunction with

considering what constitutes the appropriate level of proof on

the evidentiary issues.

     It is of course familiar and noncontroversial doctrine that

the fundamental object in interpreting a contract is to ascertain

the intent of the parties (Z&L Lumber Co. of Atlasburg v.

Nordquist, 348 Pa. Super. 580, 585, 502 A.2d 697, 699 (1985). And

if their intent can be cleanly extracted from the clear and

unambiguous words that the parties have used, it is equally

conventional wisdom that they are held to those words contained

in the contract (Mellon Bank, N.A. v. Aetna Business Credit, 619

F.2d 1001, 1013 (3d Cir. 1980)).   Those clear waters become

murkier when an issue is raised as to a lack of clarity or a


                                                                   14
claimed ambiguity in the contractual language--in that event the

court "should hear the evidence presented by both parties and

then decide whether `there is objective indicia that, from the

linguistic reference point of the parties, the terms of the

contract are susceptible of different meanings'" (Z&L Lumber, 348

Pa. Super. at 586, 502 A.D. at 700, quoting Mellon Bank, 619 F.2d

at 1011).   In doing so the court must consider the words of the

contract, the alternative meaning proffered by the challenging

party, and the nature of the evidence that party could provide

(Mellon Bank, 619 F.2d at 1011).   It is up to the party claiming

that an ambiguity exists to show that a contract (Metzger v.

Clifford Realty Corp., 327 Pa. Super. 377, 388, 476 A.2d 1

(1984):
     is reasonably or fairly susceptible of different
     constructions and is capable of being understood in
     more senses than one and is obscure in meaning through
     indefiniteness of expression or has a double meaning.


     In this instance, Agreement ¶11 contains the conventional

integration clause prohibiting resort to other discussions and

agreements between the parties:
     GENERAL -- This Agreement contains the entire
     understanding of the parties, shall supersede any other
     oral or written agreements, and shall be binding upon
     and inure to the benefit of the parties' successors and
     assigns. It may not be modified in any way without the
     written consent of both parties.


Nonetheless the Agreement itself poses an obvious question on its

face:   Does the reference in Paragraph 3 of the standard form

Agreement to "Addendum #1, attached hereto" match up with an

actual document, or is it simply a part of that standard form



                                                                   15
that has no real significance (in somewhat the same way that, for

example, a printed standard form of real estate contract may

often contain a boilerplate reference "See also rider(s)

attached" whether or not a particular contract has any riders at

all)?   And that basic question subsumes a whole set of such

subsidiary questions as:

     Is it likely that if an Addendum #1--containing a special

           provision as to Tseng's single largest account

        (Wang)--had in fact existed and had been

        "attached," neither contracting party would have

        anywhere in its possession any Agreement other than

        the version that was wholly lacking in any Addendum

        #1 or any other attachment?

     Is it likely that if an Addendum #1 had in fact existed, it

           would have contained a provision dealing, not

        with some exception to Tseng's "products" that were

        to be sold by Compass ("products" are, after all,

        the subject to which the reference to any such

        addendum in Agreement ¶3 relates), but rather with

        a claimed exception to the totality of Tseng's

        customers to whom commissionable sales were to be

        made?

     In the same respect, is it likely that if an Addendum #1 had

           in fact existed, no further explanatory

        reference to the subject matter of that addendum

        would have been inserted in the space following the




                                                                 16
      colon in Agreement #3, rather than the parties

      having left that space totally blank?

     As a variant on those last two questions, is it likely

             that if an Addendum #1 had in fact existed, and

      had dealt with an exception to the flat 5%

      commission rate prescribed in Agreement ¶4, no

      exception to that rate (or at least no cross-

      reference to Addendum #1) would have been referred

      to in the Agreement's blank space that immediately

      followed that printed Agreement ¶4?

     There may be other questions that bear on the issue, and we

do not suggest the answers to any of them (again that is

something for the trier of fact)--but clearly all of those

matters call for the district court to do more than to limit

itself in terms of the sometime arcane questions of what

separates "patent" from "latent" ambiguities (see Metzger, 327

Penn. Super. at 386, 476 A.2d at 5) or of what constitutes an

"internal" as contrasted with an "external" ambiguity.     Certainly

the potential tyranny of such labels made it appropriate for the

district court to have considered the testimony of Gibbons as to

the alleged content of a meeting between the parties that took

place well after the Agreement was entered into.    And with that

testimony before the trier of fact, it was just as plainly

necessary for the district court to consider the testimony of

Ciarlante that directly challenged Gibbons' statement as to the

holding of any meeting having the content to which Gibbons

testified.


                                                                    17
     But to return to the point of beginning, the central focus

of the parties' dispute is clearly on the question whether or not

Addendum #1 truly existed--a question that bears not only on the

meaning of the Agreement to begin with but also on whether the

testimony of Gibbons or Ciarlante as to the claimed post-

Agreement negotiation is to be credited.   Because Tseng bears the

burden of proving the existence of an ambiguity (under Metzger

and like cases), and because it hangs its ambiguity argument on

an addendum that the parties do not agree even exists and that

Tseng cannot produce, this case bears a substantial resemblance

to the "lost instrument" issue that arises from time to time in

contract cases.   And in that context the Pennsylvania courts have

imposed a stringent standard of proof on the party that seeks to

rely on a document that it cannot produce.

     Thus the plaintiff in Hacker v. Price, 166 Pa. Super. 404,

407, 71 A.2d 851, 853 (1950) claimed that a written agreement

gave him the right to purchase three shares of stock.   Although

the original Agreement was lost, plaintiff was allowed to

introduce secondary evidence to show the content of the agreement

and was ultimately successful in forcing specific performance. In

affirming that decision, the Pennsylvania Superior Court set out

the following requirements for recovering on a lost instrument

(id., citations omitted):
     To recover on an instrument, the original of which has
     been lost, the burden of proving the loss of the
     original and that a diligent, bona fide and thorough
     search was made without success is upon the one
     offering secondary evidence. He is also required to
     prove its former existence, execution, delivery and
     contents. The evidence to sustain these averments must


                                                                   18
     be clear and convincing. Whether the party offering
     secondary evidence has met this burden of proof
     successfully is a matter to be determined by the trial
     Court and rests largely in the Court's discretion which
     will not be disturbed on appeal unless there is a
     manifest abuse thereof.

That "clear and convincing evidence" requirement echoes

established Pennsylvania doctrine.   See, e.g., Mahoney v.

Collman, 293 Pa. 478, 482, 143 A. 186, 187 (1928) (imposing a

"very heavy burden" on the party seeking to rely on a lost

instrument, as well as announcing the "clear and convincing"

evidentiary standard); In re Greggerson's Estate 344 Pa. Super.

498, 500-01, 25 A.2d 711, 713 (1942) (following Mahoney).

     We recognize of course that those Pennsylvania cases have

dealt with the "lost instrument" approach in a somewhat different

context, applying it to plaintiffs who attempt to recover on such

a missing document, rather than to a defendant who needs to prove

such a document to satisfy its burden of establishing an

ambiguity (in that respect only Haagen v. Patton, 193 Pa. Super.

186, 190, 164 A.2d 33, 34-35 (1960) is factually parallel to this

case, and that opinion had no occasion to discuss the required
standard of proof).   Accordingly we do not opine on the level of

proof to be applied by the district court on remand.   Instead we

leave it to that court to determine in the first instance whether

the same considerations that have called for the higher "clear

and convincing" standard of proof in the Pennsylvania "lost

document" cases apply with like force to the situation involved

in this case.

                            Conclusion



                                                                  19
     On remand, then, the district court is required to hear and

consider the testimony of Ciarlante as to all of the matters

dealt with in his affidavit.   And in the district court's

reconsideration of all of the evidence in light of that

testimony, it should give consideration to whether Tseng's burden

of proving:

          1.   that Addendum #1 existed;

          2.   that the claimed addendum could not be found after

     a bona fide search; and

          3.   that Addendum #1 excluded sales to Wang from the

     across-the-board 5% commission provision set out in

     Agreement ¶4;

should be scrutinized through a more demanding "clear and

convincing evidence" lens.   We reverse and remand the case for

proceedings consistent with this opinion.



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