Ch',drer,s m

[.r 10- -2018] [rvro. Donohue J.]
rN THE suPRErer couRT oF PENNsYr_vANrA
rverDLE DrsTchT

 

|N REZ A.J.R.-H. AND l.G.R.-H. : NO. 38 |\/lAP 2017

: Appea| from the Order of Superior
APPEAL OF: K.J.R., l\/|OTHER : Court at No. 1564 l\/|DA 2016 dated
' l\/|ay 1, 2017 Affirming the Decree of
the Berks County Court of Common
P|eas7 O_rphans’ Court, dated August
23, 2016 at Nos. 84695 and 84696.

ARGUED: l\/larch 6, 2018

CONCURR|NG OPlNlON

JUST|CE MUNDY DEC|DED: Ju|y 18, 2018
l join that portion of the l\/lajority Opinion that holds Berks County Children and

Youth Services (“CYS”) failed to establish the prerequisites for admissibility of the 167
exhibits the orphans’ court admitted under the business records exception to the hearsay
doctrine | write separately to emphasize that the exhibits may indeed have been
admissible had the proper foundation been established

The Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108(b), codifies

the following exception to the rule against hearsay.

§ 6108. Business records

(b) General ru|e.--A record of an act, condition or event sha||,
insofar as relevant, be competent evidence if the custodian or
other qualified Witness testifies to its identity and the mode of
its preparation, and if it Was made in the regular course of
business at or near the time of the act, condition or event, and
if, in the opinion of the tribunal, the sources of information,

method and time of preparation were such as to justify its
admission

42 Pa.C.S. §6108(b). Further, Pennsylvania Rule of Evidence 803 provides the following.

Rule 803. Exceptions to the Rule Against Hearsay--
Regard|ess of Whether the Declarant ls Avai|ab|e as a
Witness

The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:

(6) Records of a Regu|ar|y 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

(E) the opponent does not show that the source of information
or other circumstances indicate a lack of trustworthiness
Pa.R.E. 803(6).

Accordingly, to properly admit an exhibit under the business records exception, the
abovementioned factors must be met. As noted by the I\/lajority, this Court addressed this
question in /n Re /nvo/untary Term/'nation of Parental Rights (Jones), 297 A.2d 117 (Pa.
1972), where we held “[w]e cannot invoke the ‘business records’ exception, though it may

be factually applicab|e, because the record is void of the necessary accompanying

[J-10-2018] [|\/lO: Donohue, J.] - 2

evidence respecting the reliability of the source of information from which the ‘facts’ are
drawn. Without evidence of the sources of information and the time and manner of
preparation, the ‘business records’ exception does not apply.” /d. at 117. Similarly, the
record here is bare of any foundational support for the admission of the exhibits under the
business records exception. Rather, in response to an objection, the orphans’ court
queried CYS regarding the admission of the exhibits pursuant to the business records
exception, and CYS merely responded that the proffered evidence met the exception.
However, CYS failed to explain how or when the records were prepared, and how they
were maintained Nor did CYS attempt in any meaningful way to satisfy the prerequisites
of the business records exception Nevertheless, the orphans‘ court allowed all 167
exhibits to be admitted in bulk as a business record simply because they were contained
in the CYS fi|e.

Beyond this fundamental and dispositive holding, l find it unnecessary, for the
purpose of our instant review, to dissect the contents of the 167 exhibits and the
information contained in them. Because they were not prepared by the testifying
witnesses, and CYS laid no foundation with regard to the mode of preparation, they were
inadmissible The failure to properly establish the admissibility of the documents as
business records ends our inquiry.

l am sympathetic to the necessity of utilizing the business records exception in
termination cases due to the length of time such cases can |ast, the various agencies
typically involved, and the inevitable turnover of personnel within the agencies This is
the purpose of the business records exception7 and in this case the very documents we
hold inadmissible may be admissible with proper foundation. However, more than merely

stating the documents are business records is necessary prior to their admission into

[J-10-2018] [l\/lO: Donohue, J.] - 3

evidence. Accordingly, l agree with the l\/lajority that the trial court abused its discretion
in admitting the 167 exhibits

Finally, although it is possible that in a future case with a similar set of facts a
business record admitted without the proper foundation may be deemed harmless error,
in the instant matter, the sheer volume and comingling of testimony with references to the
167 exhibits, precludes a harmless error finding. Each of the witnesses who testified had
first-hand knowledge of l\/lother, Father, and the Children. Howeverl each witness
testified to information based on the documents which were not properly admitted
Furthermore, the trial court stated its findings were based on the testimony and exhibits
entered into evidence Because of the oven/vhelming consideration given to the

inadmissible exhibits, a finding of harmless error is inappropriate in this case

Justice Doughertyjoins this concurring opinion.

[J-10-2018] [l\/lO: Donohue, J.] - 4

