J-A11021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JOHN C. MALEY, ANNELIESE MALEY             :   IN THE SUPERIOR COURT OF
    & JOHN J. MALEY                            :        PENNSYLVANIA
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 874 MDA 2017
    SHELL WESTERN EXPLORATION AND              :
    PRODUCTION, LP (SWEPI, LP); EAST           :
    RESOURCES, INC., AND GRADY                 :
    AUSTIN                                     :

                Appeal from the Judgment Entered May 4, 2017
      In the Court of Common Pleas of Tioga County Civil Division at No(s):
                                 352-CV-2012

BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED DECEMBER 18, 2018

        Appellants John C. Maley, Anneliese Maley, and John J. Maley

(collectively, Maleys), appeal from the judgment entered in favor of Appellees

Shell Western Exploration and Production, LP, and East Resources, Inc.

(collectively, Shell), and against defendant Grady Austin. The Maleys raise

several issues regarding the authentication and admission of photocopied

documents purporting to grant Shell rights to oil and gas from the Maleys’

property, jury instructions, and an alleged request to have the trial court strike

the deed at issue. We affirm.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A11021-18


       We state the facts and procedural history as presented by the trial court:

       John J. and John C. Maley (father and son) are the owners of
       property consisting of approximately eighty acres in Wellsboro,
       Tioga County, Pennsylvania. John J. Maley’s wife Virginia Lee
       Maley was also a co-owner of the property prior to her passing
       during the pendency of this case and her interest transferred to
       John J. Maley. John C. Maley resides on the property with his wife
       Anneliese Maley and their children, as he did in 2005 when he was
       approached by Grady Austin regarding the possibility of entering
       into an oil and gas lease with East Resources, Inc. Mr. Austin was
       an independent landman working through Long Consulting Group,
       LLC [(Long)] which had been retained by East Resources, Inc. to
       obtain oil and gas leases in the Tioga County area. At first [John
       C.] Maley was reticent to enter into the gas lease but, after
       numerous meetings with Mr. Austin, [John C.] Maley and his
       parents ultimately did sign the gas lease along with a
       memorandum of lease [i.e., the “Shell” document1]. John J. and
       Virginia Maley never met with Mr. Austin and received all their
       information directly from their son prior to signing the lease and
       the memorandum. Shell Western Exploration and Production, LP
       (SWEPI) ultimately purchased the Maley[s’] lease, along with
       thousands of others, and are the current possessors of the lease.
       During the course of the litigation SWEPI became aware, and
       notified all other parties and the court, they were not in possession
       of the original lease and the document they believed to be the
       original lease was actually a copy.[2] They continue to be unable
       to produce the original lease signed by the Maleys.

____________________________________________


1 The Shell document actually consists of two separate documents: an oil and
gas lease and a memorandum of lease. Consistent with the record, we refer
to them as a singular document. We also refer to the memorandum of lease
as a “lease” in disposing of the Maleys’ fourth issue.
2 The parties do not dispute that the Shell document is a photocopy. N.T. Pre-
trial Hr’g, 10/7/16, at 29. Indeed, both parties acknowledged as such during
their respective opening arguments. R.R. at 297a, 298a (citing to the
reproduced record for the parties’ convenience). As discussed below, the
central issue in this case is whether the photocopy is an accurate copy of the
purported lease that the Maleys dispute signing.




                                           -2-
J-A11021-18


       The Maleys claim the lease they signed called for the lease to end
       after five years if East Resources, Inc. had not established a well
       producing gas on their property and they were not receiving free
       gas. They assert there was nothing in the lease allowing for
       pooling or unitization.[3] John C. Maley contends Grady Austin
       promised him the lease included these provisions and he would
       have neither signed the lease nor advised his parents to do the
       same if it did not. When John C. Maley received notice from East
       Resources, Inc. they planned to unitize his property and therefore
       triggered the automatic renewal clause of the lease he began
       contacting East Resources, Inc. employees to complain that his
       lease did not contain such a provision. John C. Maley was
       ultimately provided with a copy of his lease but does not believe
       that it is the document he signed. After SWEPI purchased the
       Maleys’ lease John C. Maley continued to insist the lease they had
       was not the document he signed. [John C.] Maley continues to
       insist he did not sign either the lease produced by SWEPI or the
       Memorandum of Lease recorded in the Tioga County Recorder of
       Deeds’ office in the Tioga County Courthouse. Both documents
       were notarized by the notary, Dale Tillinghast, who admits he
       notarized both documents without ever meeting any of the Maleys
       or personally observing them sign the documents. Mr. Tillinghast
       notarized the documents at a Long Consulting Group office at the
       request of Grady Austin.

       John C. Maley, John J. Maley, Virginia Lee Maley, and Anneliese
       Maley initiated the current litigation by filing a complaint in federal
       court in the Middle District of Pennsylvania. The case was
       ultimately removed back to state court and the Tioga County Court
____________________________________________


3 “Unitization refers to the consolidation of mineral or leasehold interests in oil
or gas covering a common source of supply.” Amoco Prod. Co. v. Heimann,
904 F.2d 1405, 1410 (10th Cir. 1990) (footnote and citations omitted). “While
frequently used interchangeably, the terms ‘pooling’ and ‘unitization’ refer to
separate procedures. Pooling involves the combination of several small tracts
of land to meet the spacing requirements for a single well. Unitization refers
to field-wide or partial field-wide operation of a producing reservoir involving
multiple adjoining land tracts.” Id. at n.3 (citations omitted). Generally, the
“unitization clause of an oil and gas lease grants the lessee the power to
unitize the lessors interest without further consent by the lessor.” Id. at 1411
(citations and footnote omitted).




                                           -3-
J-A11021-18


       of Common Pleas where the Maleys filed a multi-count complaint[4]
       against [SWEPI], Shell Energy Holding GP, LLC, Shell U.S. E&P
       Investments, LLC, Shell Exploration and Production Company,
       Shell Oil Company, East Resources, Inc., Jane and John Doe of
       East Resources in his/her individual and official capacity . . . , Long
       Consulting Group, LLC, Jane and John Doe of Long Consulting
       Group, LLC, Grady Austin, in his individual and official capacity,
       and Dale Til[l]inghast, in his individual and official capacity.[5]

Trial Ct. Op. at 1-3.

       During discovery, the court issued a scheduling order instructing the

parties to exchange expert reports by June 30, 2015, among other things.

Shell produced an initial report by its expert, Khody R. Detwiler, and served a

supplemental report on or about August 17, 2015.            The Maleys, however,

elected not to serve interrogatories on Shell regarding any proposed expert

testimony.

       Prior to trial, the Maleys sought to exclude the Shell document and

Shell’s expert testimony addressing whether the Maleys wrote the signatures

reproduced in the Shell document. On June 24, 2016, the trial court permitted

such testimony but precluded Detwiler from testifying as to whether the Shell

document was an authentic copy of the lease. R.R. at 323a (Order, 6/24/16


____________________________________________


4 The Maleys raised claims of fraud, fraud in the inducement, negligent
misrepresentation, interference with prospective contractual relations, loss of
consortium, breach of contract, and that the lease was void as a matter of
law, among others.
5 Long Consulting Group, LLC, Jane and John Doe of Long Consulting Group,
LLC, Grady Austin, and Dale Tillinghast (collectively “Long”), are not parties
to this appeal.


                                           -4-
J-A11021-18


(“[The Maleys’] motion requesting the exclusion of the testimony of [Shell’s]

expert witness is hereby DENIED as to testimony regarding the authenticity

of the signatures on the document and hereby GRANTED as to whether or not

the copy is an authentic copy of the original lease.”)). The court also denied

the motion to the extent the Maleys sought to exclude “any claim, assertion

or opinion testimony” regarding the Shell document. R.R. at 185a; see also

R.R. at 233a (Order, 6/24/16 (“[The Maleys’] motion seeking the exclusion of

testimony regarding the so called ‘Shell Document’ is hereby DENIED.”)).

        At a subsequent pretrial hearing, the trial court explained its June 24th

order as preventing Detwiler from testifying that the Shell document “is a true

and correct copy of the lease” signed by the Maleys.         N.T. Pre-trial Hr’g,

10/7/16, at 26. The trial court stated that Detwiler could still testify that the

Shell document “appears consistent with copies of other leases.” Id. at 27.6

        The trial court summarized the remainder of the procedural history as

follows:

        Trial was conducted October 18, 2016[,] through October 25,
        2016. After the close of [the Maleys’] case all participating
        [d]efendants moved for [non-suit, which the trial court granted in
        part and denied in part]. Claims went to the jury against [Shell],
        Long Consulting Group, LLC, and Grady Austin. The jury returned
        a verdict in John C. Maley’s favor as to Defendant Grady Austin in
        the amount of $80,000.00 for negligent misrepresentation and . .
        . against [the Maleys] as to all other counts. [The Maleys] and
        [SWEPI] filed post-trial motions.


____________________________________________


6   We discuss Detwiler’s expert reports and testimony in further detail, infra.


                                           -5-
J-A11021-18


Trial Ct. Op. at 3-4. The trial court denied all post-trial motions and entered

judgment on the verdict.

       The Maleys timely appealed from the judgment and filed a court-ordered

Pa.R.A.P. 1925(b) statement.          The trial court filed a responsive Pa.R.A.P.

1925(a) opinion.7

       The Maleys raise four issues:

       1. Did the trial court abuse its discretion and err as a matter of
       law in denying [the Maleys’] Motion in Limine and admitting the
       “Shell document” without requiring Shell to produce the original
       or authenticate the document as an accurate copy of the original
       lease the Maleys agreed to and signed?

       2. Did the trial court abuse its discretion and err as a matter of
       law in denying [the Maleys’] Motion in Limine to preclude [Shell’s]
       expert testimony, report and exhibits?

       3. Did the trial court err as a matter of law in instructing the jury
       on the “Uniform Photographic Copies of Business and Public
       Records as Evidence Act”?

       4. Did the trial court err as a matter of law in failing to direct the
       Recorder of Deeds to remove the fraudulently notarized
       Memorandum of Lease?

Maleys’ Brief at 4 (issues reordered to facilitate disposition).




____________________________________________


7  On June 7, 2017, the trial court ordered the Maleys to comply with Pa.R.A.P.
1925(b) on or before Wednesday, June 28, 2017. The trial court docketed the
Maleys’ Rule 1925(b) statement on Thursday, June 29, 2017. Although the
filing appears untimely on its face, the record includes the Maleys’ official
United States Postal Service Priority Mail envelope, which reflects a mailing
date of June 27, 2017. See Pa.R.A.P. 1925(b)(1).




                                           -6-
J-A11021-18


        Before addressing the Maleys’ arguments, we note our standard of

review of an order denying a motion for a new trial is whether the trial court

“committed an error of law or an abuse of discretion.” Joseph v. Scranton

Times L.P., 129 A.3d 404, 432 (Pa. 2015) (citation omitted); see also Braun

v. Wal-Mart Stores, Inc., 24 A.3d 875, 891-92 (Pa. Super. 2011) (per

curiam) (citation omitted).8

            I. Evidentiary Issues Regarding the Shell Document

        By way of background, on June 30, 2015, Detwiler prepared his initial

expert report. The report discussed his findings after comparing the Maleys’

signatures on the Shell document and their verified, authentic signatures on

other documents. R.R. at 69a. His report explicitly presumed that the copy

he reviewed was a true and accurate reproduction of the original. Id. at 71a.

____________________________________________


8   The Court has defined abuse of discretion as follows:

        An abuse of discretion may not be found simply because an
        appellate court might have reached a different conclusion than the
        trial court; rather, to constitute an abuse of discretion, the trial
        court ruling must be the product of manifest unreasonableness,
        or partiality, prejudice, bias, or ill-will, or such lack of support so
        as to be clearly erroneous. Consequently, when reviewing the trial
        court’s exercise of discretion, it is improper for an appellate court
        to step into the shoes of the trial judge and review the evidence
        de novo.        As we consistently have emphasized in our
        jurisprudence, where the record does not reflect an abuse of
        discretion by the trial court, the Superior Court may not disturb a
        trial court’s discretionary ruling by substituting its own judgment
        for that of the trial court.

Polett v. Pub. Comm’cns, Inc., 126 A.3d 895, 924 (Pa. 2015) (quotation
marks, brackets, and citations omitted).


                                           -7-
J-A11021-18


Detwiler essentially opined that the Maleys wrote the signatures reproduced

in the Shell document. Id. at 71a-72a.

        Detwiler further concluded that there was no evidence that the Maleys’

signatures were fraudulently placed on the Shell document. Id. at 72a.

        It should be further noted that I found no evidence to substantiate
        or support the position that the signatures . . . were produced
        onto the [Shell document] through some type of transposition
        method (i.e. a “Cut-and-Paste” fabrication - either manually or
        digitally). If the signatures would have been the product of a
        “Cut-and-Paste” fabrication one would normally expect to find
        indicia of the fabrication process such as copying artifacts (i.e
        “trash marks”) or alignment/misalignment issues. In addition, the
        signatures that appear on the [Shell] document are not [identical
        to each other]; as such, there would have to have been multiple
        signature models employed to complete a “Cut-and-Paste”
        fabrication . . . . However, the only way to confirm this position
        would be to conduct a thorough and complete forensic
        examination of the original [Shell document].

Id. at 72a. In other words, the alleged forger would have needed at least two

different original signatures by the same author. Id.

        On August 17, 2015, Detwiler prepared a supplemental report, which

noted that he was provided with several original oil and gas leases for

unrelated parties. R.R. at 123a. Detwiler was asked to determine whether

the layout and format of the Shell document was consistent with the layout

and format of the other original leases. Id. at 125a. He concluded that the

Shell document was consistent with those unrelated original leases. Id. at

126a.

        Detwiler testified about the foregoing at trial, see, e.g., R.R. at 651a,

684a-85a, 704a, 712a, and Shell moved the Shell document into evidence

                                       -8-
J-A11021-18


without objection. Id. at 653a. Copies of the pertinent exhibits were also

published to the jury, and they could compare the signatures.

      On appeal, the Maleys contend that Shell failed to establish that the

Shell document complied with all of the elements set forth in Pa.R.E. 803(6),

the hearsay exception for records of a regularly conducted activity.

Specifically, the Maleys argue that they presented “sufficient evidence to raise

a genuine issue of fact regarding the authenticity and trustworthiness of the

‘Shell document.’”   Maleys’ Brief at 33.    The Maleys note that the Shell

document (1) is a photocopy, (2) printed on paper sized differently than the

lease the Maleys actually signed, (3) contains notarized signatures contrary

to their undisputed testimony they did not sign before a notary, and (4) does

not contain handwritten notations, unlike the documents the Maleys claimed

they actually signed. Id. at 33-34. Additionally, the Maleys contend that the

photocopy lacks “information about the original from which it was copied,” and

point out that Shell never produced the original document. Id. at 33-35. The

Maleys separately fault the trial court for not requiring Shell to authenticate

the document under Pa.R.E. 902(11), and for accepting the representation of

Shell’s counsel that the document was authentic. Id. at 39.

      Shell counters that the testimony of Detwiler, its document expert,

established the Shell document’s authenticity. Shell’s Brief at 21-22. Shell

contends that the Shell document is not excluded as hearsay under Pa.R.E.

803(15), as it is a document affecting a property interest.      Id. at 22-23.


                                     -9-
J-A11021-18


Regardless, even if it was subject to Rule 803, Shell argues that the Shell

document was not admitted for the truth asserted therein, but as rebuttal

evidence to refute the Maleys’ testimony denying their signing of the

document. Id. at 23-24.9

       In reply, the Maleys contend that Rule 803(15) does not apply because

it is limited to statements within the document and not the document itself.

Maleys’ Reply Brief at 13.10 In their view, Rule 803(15) “does not exempt the

underlying document from satisfying admissibility requirements.” Id. at 13-

14.

       We review a trial court’s evidentiary ruling for an abuse of discretion.

Brady v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015). “To the degree the issue

of whether the law has been misapplied involves a purely legal question, it is

reviewed de novo.” Id. (citations omitted). We may also affirm on any basis.

Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 277 (Pa. Super.

2016).

       The Pennsylvania Rules of Evidence closely follow the Federal Rules of

Evidence.    Pa.R.E. 101 cmt.       Accordingly, we may rely on federal caselaw

____________________________________________


9 Shell also noted that the Shell document had to be admitted in order for the
Maleys to succeed on their claims for fraud, fraudulent inducement, and
negligent misrepresentation. The Maleys did not address this apparent
incongruity.
10We note that in support, the Maleys reference and purport to quote
comments to Rule 803(15). See Maleys’ Reply Brief at 13. Those comments,
however, are not in Rule 803(15).


                                          - 10 -
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construing the Federal Rules of Evidence to the extent they do not contradict

the Pennsylvania Rules of Evidence. See NASDAQ OMX PHLX, Inc. v.

PennMont Secs., 52 A.3d 296, 303 (Pa. Super. 2012). We may similarly be

guided by the decisions of other states’ courts “to the degree we find them

useful and not incompatible with Pennsylvania law.” Eckman v. Erie Ins.

Exch., 21 A.3d 1203, 1207 (Pa. Super. 2011) (citation omitted). Additionally,

we may rely on cases predating the enactment of the Pennsylvania Rules of

Evidence to the extent they are not contrary. Commonwealth v. Aikens,

990 A.2d 1181, 1185 n.2 (Pa. Super. 2010).

                                 A. Hearsay

      Pennsylvania Rule of Evidence 801 follows:

      (a) Statement. “Statement” means a person’s oral assertion,
      written assertion, or nonverbal conduct, if the person intended it
      as an assertion.

      (b) Declarant. “Declarant” means the person who made the
      statement.

      (c) Hearsay. “Hearsay” means 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. Thus, “hearsay” is “a person’s oral assertion, written assertion,

or nonverbal conduct, if the person intended it as an assertion,” made by that

person out of court and offered into “evidence to prove the truth of the matter

asserted in the statement.” Pa.R.E. 801(a), (c).

                                    - 11 -
J-A11021-18


       There are many situations in which evidence of a statement is
       offered for a purpose other than to prove the truth of the matter
       asserted.

       Sometimes a statement has direct legal significance, whether or
       not it is true. For example, one or more statements may
       constitute an offer, an acceptance, a promise, a guarantee, a
       notice, a representation, a misrepresentation, defamation,
       perjury, compliance with a contractual or statutory obligation, etc.

Pa.R.E. 801 cmt.11

____________________________________________


11 The note to Federal Rule of Evidence 801(c) similarly states that if “the
significance of an offered statement lies solely in the fact that it was made, no
issue is raised as to the truth of anything asserted, and the statement is not
hearsay.” Fed. R. Evid. 801(c) note (citation omitted). As the comment and
note states, a written contract has independent legal significance, regardless
of the veracity of any assertions or statements within the contract. See Fed.
R. Evid. 801(c) note; Pa.R.E. 801 cmt. In United States v. Iverson, 818
F.3d 1015 (10th Cir. 2016), the United States Court of Appeals for the Tenth
Circuit, reasoned as follows:

       The issue is whether evidence that the statement was made is in
       itself relevant to a material issue in the case. For example, the
       statement may be the predicate for a defamation claim; if so, the
       statement is not being offered for its truth (it is actionable because
       it is false) and is not hearsay. Or a promise to do something may
       be offered into evidence to prove the existence of a contract even
       if the promisor was insincere in making the promise. The promise
       is not offered into evidence to prove the “truth” of the promisor’s
       statement. The promise itself has independent legal significance,
       so there is no hearsay issue. In both circumstances, the evidence
       of the statement is not being used to prove the truth of some
       assertion but “merely to show that it was actually made.”

Id. at 1020 (citations omitted); Kepner-Tregoe, Inc. v. Leadership
Software, Inc., 12 F.3d 527, 540 (5th Cir. 1994) (holding a contract “has
legal reality independent of the truth of any statement contained in it. Under
the objective theory of contracts, the fact that two parties signed a contract
is enough to create legal rights, whatever the signatories might have been
thinking when they signed it. The admission of a contract to prove the



                                          - 12 -
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____________________________________________


operative fact of that contract’s existence thus cannot be the subject of a valid
hearsay objection.” (footnote omitted)). For example, in Consol. Rail Corp.
v. Thomas, 463 N.E. 2d 315 (Ind. Ct. App. 1984), the Court held the trial
court did not err by admitting a photocopied contract over a hearsay objection
because it was offered for “its independent legal significance” and therefore
was not hearsay. Id. at 320 (citation omitted); accord, e.g., Stuart v.
UNUM Life Ins. Co. of Am., 217 F.3d 1145, 1154 (9th Cir. 2000) (holding
district court erred by concluding contract was inadmissible hearsay because
“it is a legally operative document that defines the rights and liabilities of the
parties in this case.” (citation omitted)); Mueller v. Abdnor, 972 F.2d 931,
937 (8th Cir. 1992) (holding that a contract is not hearsay, particularly
“evidence of lost profits based on a contract . . . because such evidence
concerns the existence of the contractual terms rather than an assertion of
their ‘truth.’” (citation omitted)); United States v. Rubier, 651 F.2d 628,
630 (9th Cir. 1981) (“Facts of independent legal significance constituting a
contract which is at issue are not hearsay.” (citation omitted)); Padilla v.
United States, 58 Fed. Cl. 585, 593 (Fed. Cl. 2003) (holding that when “the
evidence offered has legal significance independent of the truth of any
statement contained in it, it is not hearsay.” (citations omitted)); Brooks v.
Firestone Polymers, LLC, 70 F. Supp. 3d 816, 825 n.2 (E.D. Tex. 2014)
(holding that a “contract, however, is not hearsay because it has independent
legal significance.” (citation omitted)); Crompton Greaves, Ltd. v. Shippers
Stevedoring Co., 776 F. Supp. 2d 375, 386 (S.D. Tex. 2011) (same); State
v. Villena, 400 P.3d 571, 579 (Haw. 2017) (construing identical Hawaii Rule
of Evidence 802 and holding licensing letter was not hearsay); Island
Directory Co. v. Iva’s Kinimaka Enters., Inc., 859 P.2d 935, 939 (Haw.
Ct. App. 1993) (holding that it “is well-settled that in a suit for breach of
contract, the contract allegedly breached is not hearsay and is thus admissible
into evidence.” (citations omitted)); Deep Keel, LLC v. Atl. Private Equity
Grp., 773 S.E.2d 607, 613 (S.C. Ct. App. 2015) (holding that because the
“loan documents were offered to establish the existence of a contract and the
terms of that contract,” they were not hearsay under substantially similar
South Carolina Rule of Evidence 801); McKelvey v. Hamilton, 211 P.3d 390,
396 (Utah Ct. App. 2009) (interpreting identical Utah Rule of Evidence 801
and rejecting argument that letter accepting offer was “inadmissible hearsay
because proof of the existence of a contract is based entirely upon the letter’s
truth,” because letter was non-hearsay act of contract); Bank of Am. NA v.
Neis, 835 N.W.2d 527, 541 (Wis. Ct. App. 2013) (citing numerous legal
authorities for the proposition of “a consensus rule that contracts . . . are not
hearsay when they are offered only for their legal effect, not ‘to prove the
truth of the matter asserted’” in construing similar Wisconsin equivalent to



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       A contract may be admitted to establish a claim of fraud, see generally

Rempel v. Nationwide Life Ins. Co., Inc., 370 A.2d 366, 372 (Pa. 1977),

which requires proof of the following:

       (1) a representation; (2) which is material to the transaction at
       hand; (3) made falsely, with knowledge of its falsity or
       recklessness as to whether it is true or false; (4) with the intent
       of misleading another into relying on it; (5) justifiable reliance on
       the misrepresentation; and (6) the resulting injury was
       proximately caused by the reliance.

Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994) (footnote omitted).

       A contract may also be evidence of fraud in the inducement, which

“claims that the representations were fraudulently made and that ‘but for

them’ he would never have entered into the agreement.” Blumenstock v.

Gibson, 811 A.2d 1029, 1036 (Pa. Super. 2002); see generally Rempel,

370 A.2d at 372. Similarly, a contract could establish a claim for negligent

misrepresentation,      which     requires     establishing   the   following:   “(1)   a

misrepresentation of a material fact; (2) made under circumstances in which

the misrepresenter ought to have known its falsity; (3) with an intent to induce

another to act on it; and (4) which results in injury to a party acting in




____________________________________________


Rule 801); see also Hydrite Chem. Co. v. Calumet Lubricants Co., 47
F.3d 887, 892 (7th Cir. 1995) (stating, “it is direct evidence, not hearsay,
when a party to a dispute over a contract testifies to the offer or the
acceptance made by the other contracting party.”); see generally David F.
Binder, Hearsay Handbook § 2:6 (4th ed. 2017) (citing cases for proposition
that a “written contract has independent legal significance”).


                                          - 14 -
J-A11021-18


justifiable reliance on the misrepresentation.” Bilt-Rite Contractors, Inc. v.

The Architectural Studio, 866 A.2d 270, 277 (Pa. 2005) (citation omitted).

      Here, the Shell document was not subject to the hearsay rule. The Shell

document is a lease that in and of itself has direct, independent legal

significance, regardless of any statements within the lease. See Pa.R.E. 801

cmt.; see, e.g., Iverson, 818 F.3d at 1020; Kepner-Tregoe, 12 F.3d at

540. Contrary to the Maleys’ protestations, Shell did not have to comply with

Pa.R.E. 803(6) or 803(15). Moreover, admission of the Shell document would

have assisted proving the Maleys’ claims for fraud, fraud in the inducement,

and negligent misrepresentation. See Bilt-Rite Contractors, 866 A.2d at

277; Blumenstock, 811 A.2d at 1036; Gibbs, 647 A.2d at 889; see

generally Rempel, 370 A.2d at 372. For these reasons, the trial court did

not abuse its discretion in permitting the introduction of the Shell document,

although we affirm on different reasoning. See Brady, 111 A.3d at 1161;

Mariner Chestnut Partners, 152 A.3d at 277.

                              B. Authentication

      The Maleys also challenge the authenticity of the Shell document, albeit

in the context of a hearsay exception for business records. We address their

arguments to the extent they can be construed as a general challenge to the

Shell document’s authenticity.

      Pennsylvania Rule of Evidence 901 addresses authentication:

      (a) In General. To satisfy the requirement of authenticating or
      identifying an item of evidence, the proponent must produce

                                    - 15 -
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        evidence sufficient to support a finding that the item is what the
        proponent claims it is.

Pa.R.E. 901(a).12

        Pennsylvania Rule of Evidence 901(b) lists several examples of evidence

fulfilling section 901(a), including 901(b)(3): “Comparison by an Expert

Witness or the Trier of Fact. A comparison with an authenticated specimen

by an expert witness or the trier of fact.” Pa.R.E. 901(b)(3). The comment

to Rule 901(b)(3) provides as follows:

        . . . When there is a question as to the authenticity of an exhibit,
        the trier of fact will have to resolve the issue. This may be done
        by comparing the exhibit to authenticated specimens. Under this
        rule, the court must decide whether the specimen used for
        comparison to the exhibit is authentic. If the court determines
        that there is sufficient evidence to support a finding that the
        specimen is authentic, the trier of fact is then permitted to
        compare the exhibit to the authenticated specimen.           Under
        Pennsylvania law, lay or expert testimony is admissible to assist
        the jury in resolving the question. See, e.g., 42 Pa.C.S. § 6111.



____________________________________________


12   In Crompton Greaves, the district court explained as follows:

        Because a contract is not hearsay, to be admissible it need only
        be authenticated.       The requirement of authentication or
        identification as a condition precedent to admissibility is satisfied
        by evidence sufficient to support a finding that the matter in
        question is what its proponent claims.           The standard for
        authenticating evidence is low and may be satisfied by evidence
        sufficient to support a finding that the matter in question is what
        its proponent claims.

Crompton Greaves, 776 F. Supp. 2d at 386 (citations and quotation marks
omitted).




                                          - 16 -
J-A11021-18


Pa.R.E. 901 cmt. (some citations omitted).13

       A statute also governs the admissibility of expert opinion evidence

regarding handwriting. 42 Pa.C.S. § 6111.

       (b) Comparison of handwriting.—It shall be competent for
       experts in giving their testimony, under the provisions of this
       section, to make comparison of documents and comparison of
       disputed handwriting with any documents or writing admitted to
       be genuine, or proven to the satisfaction of the judge to be
       genuine, and the evidence of such experts respecting the same
       shall be submitted to the jury as evidence of the genuineness or
       otherwise of the writing in dispute.

       (c) Comparison of signatures.—It shall be competent for
       experts in formulating their opinions to the court and jury to place
       the genuine and disputed signatures or writing in juxtaposition,
       and to draw the attention of the jury thereto; and it shall
       furthermore be competent for counsel to require of an expert a
       statement of the principles on which he has based his work, the
       details of his work, and his opinion that the results are important
       to the point at issue, or the reasoning, analysis and investigation
       by which he has arrived at his opinion.

       (d) Jury question.—The opinions of the witnesses to handwriting
       being submitted as competent testimony to the jury, the final
       determination as to whether any particular handwriting is genuine
       or simulated shall remain, as heretofore, a question for the jury
       on all the evidence submitted.

42 Pa.C.S. § 6111(b)-(d).




____________________________________________


13Pennsylvania Rule of Evidence 902(11), upon which the Maleys rely, states
that a document is self-authenticating if it fulfills the requirements of Pa.R.E.
803(6), which sets forth a hearsay exception for records of a regularly
conducted business activity. See Pa.R.E. 902(11); see also Pa.R.E. 803(6).
We note that self-authentication is not the only method of authentication.




                                          - 17 -
J-A11021-18


       Initially, no party disputes that the Shell document is a photocopy.14

The Maleys asserted they did not actually sign the original lease from which

the copy was purportedly made, i.e., the Shell document.          In contrast,

Detwiler opined both in his expert reports and at trial that assuming the Shell

document was an accurate reproduction, the Maleys actually signed the

original lease.    See, e.g., R.R. at 71a-72a, 651a.   Detwiler compared the

undisputed authentic signatures of the Maleys with the signatures on the Shell

document. See, e.g., R.R. at 651a. More critically, Detwiler testified that the

layout and format of the Shell document is comparable to the layout and

format of authentic leases. See, e.g., R.R. at 126a, 684a-85a.

       Given the low threshold for authentication evidence, see Crompton

Greaves, 776 F. Supp. 2d at 386, the trial court properly permitted the

evidence to be considered by the jury. See Brady, 111 A.3d at 1161. The

jury was aware of the parties’ respective positions regarding the Shell

document and the Maleys’ signatures.15 The Shell document was admitted

into evidence without objection and published to the jury for their evaluation.

R.R. at 653a. It was left to the jury to make the ultimate determination as to

the genuineness of the Maleys’ signatures and the Shell document. See 42


____________________________________________


14There was a brief discussion as to whether the Shell document is a first or
subsequent-generation copy, i.e., a copy of a copy.
15Because we conclude the Shell document was not hearsay, we need not
address the Maleys’ contention of error under Pa.R.E. 902(11).


                                          - 18 -
J-A11021-18


Pa.C.S. § 6111(d); Pa.R.E. 901 cmt. Accordingly, we perceive no abuse of

discretion by the trial court in letting the Shell document go to the jury.

                          C. The Best Evidence Rule

      The Maleys raise a third argument in support of their issue that the trial

court impermissibly admitted the Shell document. They posit that Shell was

required to produce the original document under Pa.R.E. 1002. Maleys’ Brief

at 40.   No statute, the Maleys insist, exempted Shell from producing the

original lease. Id. In the Maleys’ view, they presented sufficient evidence

that the Shell document should have been precluded under Pa.R.E. 1003. Id.

at 42. Such evidence, according to the Maleys, included their testimony that

the Shell document was not the lease they signed, id. at 43, and evidence

that the Shell document could have been altered without detection. Id. at 46.

The Maleys similarly argue that Shell failed to provide sufficient secondary

evidence that the photocopy was an accurate duplicate of the original. Id. at

48.

      Pennsylvania Rule of Evidence 1002 states that an “original writing,

recording, or photograph is required in order to prove its content unless these

rules, other rules prescribed by the Supreme Court, or a statute provides

otherwise.” Pa.R.E. 1002. The comment to Rule 1002 provides as follows:

      This rule corresponds to the common law “best evidence rule.”
      The rationale for the rule was not expressed in Pennsylvania
      cases, but commentators have mentioned four reasons justifying
      the rule.




                                     - 19 -
J-A11021-18


       (1) The exact words of many documents, especially operative or
       dispositive documents, such as deeds, wills or contracts, are so
       important in determining a party’s rights accruing under those
       documents.

       (2) Secondary evidence of the contents of documents, whether
       copies or testimony, is susceptible to inaccuracy.

       (3) The rule inhibits fraud because it allows the parties to examine
       the original documents to detect alterations and erroneous
       testimony about the contents of the document.

       (4) The appearance of the original may furnish information as to
       its authenticity.

Pa.R.E. 1002 cmt. (citations omitted).16

       Pennsylvania Rule of Evidence 1004 states as follows, in relevant part:

       An original is not required and other evidence of the content of a
       writing, recording, or photograph is admissible if:

       (a) all the originals are lost or destroyed, and not by the proponent
       acting in bad faith;

Pa.R.E. 1004. The comment notes that “[w]hen the proponent of the evidence

alleges that it is lost, there should be evidence that a sufficient search was

made.” Id. cmt. (citation omitted).

       Pennsylvania Rule of Evidence 1008 discusses the role of the jury when

one or more of the following issues are raised:


____________________________________________


16 Pennsylvania Rule of Evidence 1003 provides that a “duplicate is admissible
to the same extent as the original unless a genuine question is raised about
the original’s authenticity or the circumstances make it unfair to admit the
duplicate.” Pa.R.E. 1003.




                                          - 20 -
J-A11021-18


       Ordinarily, the court determines whether the proponent has
       fulfilled the factual conditions for admitting other evidence of the
       content of a writing, recording, or photograph under Rule 1004 or
       1005.[17] But in a jury trial, the jury determines—in accordance
       with Rule 104(b)[18]—any issue about whether:

       (a) an asserted writing, recording, or photograph ever existed;

       (b) another one produced at the trial or hearing is the original; or

       (c) other evidence of content accurately reflects the content.

Pa.R.E. 1008.

       One treatise noted the following with respect to the interaction between

Rules 1002, 1003, and 1004.

       Pa.R.E. 1002 requires the party seeking to prove the content of a
       writing, recording or photograph to offer the original of the
       writing, recording or photograph. In some cases production of the
       original is excused. For example, under Pa.R.E. 1003 a duplicate
       is admissible to the same extent as the original. Pa.R.E. 1004 and
       1005 are exceptions to Pa.R.E. 1002.            Under these rules
       production of the original is excused and the contents of a writing,
       recording or photograph may be proven by other evidence
       provided that the requirements of these Rules are met. Ordinarily
       this is a preliminary question to be decided by the court under
       Pa.R.E. 104. But under Pa.R.E. 1008, in a jury trial, the jury
       determines—in accordance with Rule 104(b)—any issue about
       whether (a) the writing, recording or photograph ever existed; (b)
       the one produced at trial is the original; or (c) other evidence of
       content accurately reflects the content. This means that the court
       should make a preliminary determination of whether the
____________________________________________


17Pennsylvania Rule of Evidence 1005 discusses copies of public records. See
Pa.R.E. 1005. No party has argued the rule applies here.
18 Pennsylvania Rule of Evidence 104(b) follows: “(b) Relevance That
Depends on a Fact. When the relevance of evidence depends on whether a
fact exists, proof must be introduced sufficient to support a finding that the
fact does exist. The court may admit the proposed evidence on the condition
that the proof be introduced later.” Pa.R.E. 104(b).


                                          - 21 -
J-A11021-18


        proponent has offered sufficient evidence to support a finding of
        the facts required by Pa.R.E. 1004 or 1005. If not, the evidence
        is excluded. If the court finds that the evidence is sufficient to
        support a finding of the facts required by Pa.R.E. 1004 or 1005,
        the evidence is admitted and the jury decides whether the writing,
        recording or photograph ever existed, the one produced at trial is
        the original, or the evidence of content accurately reflects the
        content of the original.

Leonard Packel & Anne Bowen Poulin, 1 West’s Pa. Practice, Evidence § 1008-

1 (4th ed. 2013).

        The importance of the jury’s role in resolving authenticity was addressed

in United States v. Hatfield, 685 F. Supp. 2d 318 (E.D.N.Y. 2010).            In

Hatfield, a criminal case, the government wished to bar the defendant from

introducing a duplicate copy of a purportedly fraudulent original document,

citing Fed.R.Evid. 1003.19 Hatfield, 685 F. Supp. 2d at 319-20 (summarizing

the government’s position that because the original was fraudulent, the

defendant should be barred from introducing a copy at trial). The district court

disagreed, reasoning that because the government had expressly “den[ied]

that an authentic original [document] ever existed,” the copy must be

admitted. Id. at 320.20

____________________________________________


19 “A duplicate is admissible to the same extent as the original unless a
genuine question is raised about the original’s authenticity or the
circumstances make it unfair to admit the duplicate.” Fed.R.Evid. 1003.
20   The Hatfield court reasoned as follows:

        Under Federal Rule of Evidence 1008(a), “when an issue is raised”
        regarding “whether the asserted writing ever existed,” the “issue



                                          - 22 -
J-A11021-18


       Here, we agree with the discussion of the interaction of the Article X

evidentiary rules set forth in 1 West’s Pa. Practice, Evidence § 1008-1, as well

as the rationale of the courts that have addressed this precise evidentiary

issue: given the Maleys’ position that the Shell document was fabricated, the

question of whether the Shell document was an authentic copy was a fact


____________________________________________


       is for the trier of fact to determine.” This is because “it is often
       true that these questions determine outcome” and “few would
       doubt that the jury should decide whether a written [document]
       existed for purposes of deciding the case on the merits.”
       Christopher B. Mueller and Laird C. Kirkpatrick, 5 FED. EVID. §
       10:40 (3d ed.). Consequently, the jury, and not the Court, must
       determine whether the [document at issue] is genuine. And,
       accordingly, [the defendant] must be permitted to introduce both
       a copy of the [document], and any evidence he has supporting
       the [document’s] legitimacy. See Hill v. City of Houston, 235
       F.3d 1339 (Table), 2000 WL 1672663, *7 (5th Cir. 2000)
       (unpublished) (given Rule 1008, “the question of whether exhibit
       eight is a fake or rather, authentic copy was a fact question which
       was properly submitted to the jury”); Tinley v. Poly–Triplex
       Technologies, Inc., 07–CV–1136, 2009 WL 812150, *7 (D. Colo.
       Mar. 26, 2009) (permitting copy of agreement to be admitted into
       evidence, despite genuine questions concerning whether an
       original ever existed, because “evidence suggesting that the
       Tinley Agreement never existed, as well as the credibility of the
       parties’ testimony regarding the existence of the Tinley
       Agreement are questions for the jury to decide under Rule 1008”).
       The Government may, of course, attack the legitimacy of the
       [document], and the credibility of any evidence [the defendant]
       uses to try to substantiate it. But “these questions go to the
       weight, rather than the admissibility of the evidence.” Tinley,
       2009 WL 812150 at *7.

Hatfield, 685 F. Supp. 2d at 320; see Dietrich v. Bauer, 126 F. Supp. 2d
759, 764 (S.D.N.Y. 2001) (holding that conflicting expert witness testimony
regarding authenticity of exhibit established a “dispute of fact as to the
authenticity of the document,” which was properly left for the jury).


                                          - 23 -
J-A11021-18


question properly left for the jury. See, e.g., Hatfield, 685 F. Supp. 2d at

320; Dietrich, 126 F. Supp. 2d at 764. Shell could not produce the original

lease. The parties have not referred this Court to any evidence of record of

bad faith. See Pa.R.E. 1004(a).      Thus, without evidence of bad faith, the

mere fact that Shell (or one of its corporate predecessors who had possessed

the original) lost or destroyed the original lease at issue is insufficient to bar

Shell from attempting to introduce a photocopy, subject to applicable legal

authorities.

       In the case before us, Shell provided expert witness testimony on the

authenticity of the Maleys’ signatures and the format and layout of the Shell

document, as compared to other authentic leases.         Such expert testimony

conflicted with the Maleys’ testimony that they did not sign the original lease.

Thus, it was for the jury to weigh the credibility of the conflicting testimony.

See, e.g., Hatfield, 685 F. Supp. 2d at 320; Dietrich, 126 F. Supp. 2d at

764.   But that determination is necessarily a question of weight and not

admissibility. See Hatfield, 685 F. Supp. 2d at 320. Accordingly, we discern

no abuse of discretion with the trial court’s decision to admit the Shell

document and not exclude it under the best evidence rule, as well as permit

the jury to resolve the question of fact. See Pa.R.E. 1008; Brady, 111 A.3d

at 1161; see, e.g. Hatfield, 685 F. Supp. 2d at 320; Dietrich, 126 F. Supp.

2d at 764; R.R. at 651a, 684a-85a; Leonard Packel & Anne Bowen Poulin, 1

West’s Pa. Practice, Evidence § 1008-1 (4th ed. 2013).


                                      - 24 -
J-A11021-18


        II. Preclusion of the Testimony of Shell’s Expert Testimony

        Initially, we reiterate that the Maleys did not serve interrogatories on

Shell regarding any proposed expert testimony.         Shell produced Detwiler’s

reports and he testified at trial regarding his conclusions. We quote from the

disputed trial testimony, which was during Shell’s direct examination of

Detwiler:

        [Shell’s counsel]: Now, did you do anything else to determine
        whether there may have been any alterations to the questioned
        documents?

        [Detwiler]: One of the other things we did -- the rest of this chart
        goes through more illustrations like this, but one of the other
        things, in particular with the oil and gas lease, was when you
        examined the document from the reverse side, more specifically
        the signature page, some things copied through on the document
        that I looked at. Again, the document that I examined at Attorney
        Mercer’s office was a color photocopy. But when you examine the
        reverse side of the signature page, you can actually see that the
        bleed-through[21] bled through and it was copied over into the
        document that I examined. And I do have a brief illustration,
        which will help you understand that, but the other thing that
        copied through was also the notarial stamp; so, this is consistent
____________________________________________


21   Detwiler defined bleed-through as follows:

        Bleed-through is more of a generic term that we would use in the
        field; but bleed-through occurs when you write on the surface of
        a page. The best example I can give you is my five-year-old using
        a Sharpie on a coffee table. When you write through and you turn
        the page over you can see where it bled through and you’re just
        hoping that it didn’t get on something. So, that is what bleed-
        through is, in a generic sense. And when I examined this
        document, even though it was a photocopy, the photocopier
        picked up the presence of what appears to be bleed-through on
        the reverse side of the signature page.

R.R. at 693a.


                                          - 25 -
J-A11021-18


     with the document that I examined being a photocopy of a
     document that contained original writing with respect to the
     signatures, and the notarial stamp and the notarial act itself where
     the names were written in. But, again, like I said, I have an
     illustration that will help you understand this...

N.T. Detwiler, 10/21/16, at 62. The Maleys did not object.

     Shell subsequently asked Detwiler to discuss an addendum he had

prepared—specifically,   a   document        comparison   chart—to   Detwiler’s

supplemental report. The addendum purports to be a pristine and marked-up

copies of the signature page of the lease at issue, as reproduced below:




                                    - 26 -
J-A11021-18




       In response to a query by the Maleys’ counsel, Shell’s counsel stated

the above addendum was prepared “earlier this month,” N.T. Detwiler,

10/21/16, at 67, i.e., a few weeks before trial began.22 The Maleys objected

as follows:

       [Maleys’ counsel]: I would object it’s not timely. The deadline for
       the expert reports was a certain time and clearly, I mean, asking
       questions about this, and I object to the additional information.
       The expert reports should be the four corners of what was
       produced in June and August 2015.

       The court: Do you want to respond [Shell’s counsel]?
____________________________________________


22 Detwiler later testified it was prepared sometime in the week before trial.
N.T. Detwiler, 10/21/16, at 82. Shell should have, but did not, file an
amended or supplemental pretrial memorandum referencing this exhibit,
given its use during Detwiler’s direct examination.


                                          - 27 -
J-A11021-18



     [Shell’s counsel]: Your Honor, it, it is – it’s not going beyond the
     scope of the expert report. It is additional explanation to the Jury
     to support the conclusion of the supplemental report.

     The court: I’ll allow it.

N.T. Detwiler, 10/21/16, at 68.

     Detwiler then testified that bleed-through on the photocopy was

evidence that the Maleys’ signatures were not fraudulently placed on the

original source of the photocopy:

     [Shell’s counsel]: Well, before we get into an analysis of of [sic]
     that bleed-through, what does the presence of bleed-through tell
     you?

     [Detwiler]: The presence of bleed-through, even on a photocopy,
     tells you that, even though you can’t say it’s a true and accurate
     reproduction of the original, you can certainly say that the
     document itself that was copied, it copied a document that
     contained original writing at some point in time. So, that’s what
     the bleed-through tells you is that there was original writing on
     whatever it was that was copied.

     Q: Now, can you explain for the Jury that bleed-through that you
     were talking about using [the addendum]?

     A: Sure. If you look at the very first page; what I’ve done here is
     just a reproduction on the left-hand side of the signature page. I
     just -- more or less the bottom half, it’s not the entire page, on
     the left-hand side. On the right-hand side is actually an image of
     the reverse of that signature page. And then if you turn to page
     two; again, on the left-hand side is a reproduction of the reverse
     side, and I’ve highlighted three boxes in gray and I’ve enlarged
     them off to the right. And I’ve placed a bunch of small red arrows
     that show, on this document, which would actually be toner, but
     it was a reproduction of what appears to be consistent with bleed
     -through based on where the document demonstrated these
     characteristics. Again, surrounding the signatures, surrounding
     the texts and the notarial act, where their names were written
     out; and then, again, with the actual notary stamp on the bottom,

                                    - 28 -
J-A11021-18


         where it was stamped through and you can see it coming through.
         ...

                                    *     *      *

         Q: Now, what -- how does this support a conclusion that the
         signature block wasn’t somehow cut out of one document and and
         [sic] pasted on to the memorandum of lease?

         A: Sure. If the memorandum of lease would have been a a [sic]
         cut and paste fabrication and these signatures were cut out of
         something else, they would have been cut out in original format,
         because we do have bleed-through coming through, so you can
         see that. If the signatures were cut out in original format from
         the original document then pasted together, because it’s a color
         photocopy, that’s a very good quality, the document that I
         examined, you would certainly be able to see either tape marks
         or Wite-Out or anything else where those marks would be. So,
         again, this just provides further evidence that I could find no
         evidence to support the proposition that the documents could
         have been a cut and paste.

Id. at 69-72.     The Maleys did not object to the addendum’s admission as

Shell’s exhibit nine. Id. at 78; see also R.R. at 877a-79a (Shell’s exhibit

nine).

         Subsequently, on cross-examination, Detwiler testified that he found no

evidence that the Shell document was not a true and accurate reproduction of

the original lease at issue, but he could not confirm that without examining

the lost original:

         [Maleys’ counsel]: And your assumption that those photocopies
         were a true and accurate reproduction of the original document,
         that’s what your report is clarifying; isn’t that correct?

         [Detwiler]: No, I could find no evidence that they weren’t. But,
         again, without access to the original there’s no way to confirm
         that, which is what it says on the following page [of his initial
         expert report]. Page 4 [of] 7: However, the only way to confirm

                                        - 29 -
J-A11021-18


      this position would be to conduct a thorough and complete
      forensic examination of the original [Shell] document[].

N.T. Detwiler, 10/21/16, at 83.         Detwiler also reiterated that he was

comparing signatures, id. at 84, could only testify that the signatures were

written on a document, id. at 85, and found no evidence that the signatures

were artificially placed. Id. at 86.

      On appeal, the Maleys raise several arguments regarding the trial

court’s decision to permit Detwiler to testify based on the original and

supplemental reports. Maleys’ Brief at 63. In the Maleys’ view, the original

report was prejudicial and confusing for two reasons. First, the Maleys argue

the report presumed that the Shell document was an accurate reproduction of

the original. Id. at 64. Second, the report, according to the Maleys, was

substantially limited to evaluating the signature page. Id. at 65-66. Thus, in

the Maleys’ view, the report “was unfairly prejudicial and confusing to the jury

to permit Detwiler to give testimony on the ‘Shell document’ without first

establishing it was a relevant and authentic copy of the original lease the

Maleys’ signed.” Id. at 66.

      The Maleys similarly assail the foundations of Detwiler’s supplemental

report.   Specifically, the Maleys claim that because the report merely

compared the margins and spacing of the Shell document against other

comparable leases, an expert report was unnecessary. Id. at 66-67.

      In addition, the Maleys argue that the trial court erred by permitting

Detwiler to testify beyond the fair scope of both of his reports.     Id. at 69

                                       - 30 -
J-A11021-18


(citing Pa.R.C.P. 4003.5(c)). Specifically, the Maleys allege that during his

testimony, Detwiler used a demonstrative exhibit and testified about “bleed-

through”, which the Maleys claim was not discussed in Detwiler’s reports. Id.

at 73-74.   The Maleys therefore conclude they were prejudiced by unfair

surprise.

      Shell counters by initially arguing that Detwiler’s testimony assisted the

jury because it pertained directly to the Maleys’ claim that their signatures

were improperly placed on the lease at issue. Shell’s Brief at 47. In any

event, Shell contends that Detwiler’s testimony did not violate the fair scope

requirement of Pa.R.C.P. 4003.5(c), because the rule does not apply. Shell

explains that in their view, Rule 4003.5(c)’s fair scope restriction “applies only

when an expert’s report has been developed” via interrogatories or court-

ordered discovery.    Id. at 48.   Because the Maleys did not pursue either

option, Shell argues Rule 4003.5(c) does not apply. Id. at 49.

      But even presuming Rule 4003.5(c) applied, Shell continues, Detwiler’s

bleed-through testimony fell within the scope of his supplemental report. Id.

at 51. Shell argues that Detwiler was retained to identify any evidence that

the Maleys’ signatures were fabricated.        Id. at 52. Detwiler’s testimony

regarding the bleed-through, Shell concludes, falls within that scope. Id. at

53-54.




                                      - 31 -
J-A11021-18


        The standard of review is whether the trial court abused its discretion

by permitting the expert testimony. See Brady, 111 A.3d at 1161; accord

Rost v. Ford Motor Co., 151 A.3d 1032, 1042 (Pa. 2016).

        Pennsylvania Rule of Evidence 702 addresses expert testimony:

        A witness who is qualified as an expert by knowledge, skill,
        experience, training, or education may testify in the form of an
        opinion or otherwise if:

          (a) the expert’s scientific, technical, or other specialized
        knowledge is beyond that possessed by the average layperson;

           (b) the expert’s scientific, technical, or other specialized
        knowledge will help the trier of fact to understand the evidence or
        to determine a fact in issue; and

           (c) the expert’s methodology is generally accepted in the
        relevant field.

Pa.R.E. 702. “An opinion is not objectionable just because it embraces an

ultimate issue.”     Pa.R.E. 704.      A “trial court may exclude expert opinion

testimony if the probative value of the testimony is outweighed by the

potential to cause confusion or prejudice.”23 Green v. Pa. Hosp., 123 A.3d

____________________________________________


23   One treatise explains:

        Prejudice, of course does not mean detrimental to a party’s case
        but rather an undue tendency to suggest decision on an improper
        basis. Exclusion is based on the concern that the evidence would
        cause the jury to base its decision on something other than the
        legal propositions relevant to the case or would divert the jury’s
        attention away from their duty of weighing the evidence
        impartially. Evidence may be admitted despite its prejudicial
        character if its probative value and importance to the case warrant
        it.



                                          - 32 -
J-A11021-18


310, 325 (Pa. 2015) (citations omitted); see Pa.R.E. 403. This Court has also

held that “the trial court will not be reversed in ruling upon the admissibility

of testimony to the ultimate issue in the case unless the trial court clearly

abused its discretion and actual prejudice occurred.” Childers v. Power Line

Equip. Rentals, Inc., 681 A.2d 201, 210 (Pa. Super. 1996) (internal brackets

and citation omitted).

       Pennsylvania Rule of Civil Procedure 4003.5 addresses discovery of

expert testimony:

       Rule 4003.5. Discovery                  of   Expert   Testimony.   Trial
       Preparation Material

       (a) Discovery of facts known and opinions held by an expert,
       otherwise discoverable under the provisions of Rule 4003.1 and
       acquired or developed in anticipation of litigation or for trial, may
       be obtained as follows:

          (1) A party may through interrogatories require

                 (A) any other party to identify each person whom the
                 other party expects to call as an expert witness at trial
                 and to state the subject matter on which the expert is
                 expected to testify and

                 (B) subject to the provisions of subdivision (a)(4),[24] the
                 other party to have each expert so identified state the
                 substance of the facts and opinions to which the expert
                 is expected to testify and a summary of the grounds for
                 each opinion. The party answering the interrogatories
____________________________________________




Leonard Packel & Anne Bowen Poulin, 1 West’s Pa. Practice, Evidence § 403-
1 (4th ed. 2013) (internal quotation marks and footnotes omitted).
24This subdivision pertains to privileged communications not pertinent here.
See Pa.R.C.P. 4003.5(a)(4).


                                          - 33 -
J-A11021-18


                 may file as his or her answer a report of the expert or
                 have the interrogatories answered by the expert. The
                 answer or separate report shall be signed by the expert.

                                       *       *    *

       (c) To the extent that the facts known or opinions held by an
       expert have been developed in discovery proceedings under
       subdivision (a)(1) or (2)[25] of this rule, the direct testimony of
       the expert at the trial may not be inconsistent with or go beyond
       the fair scope of his or her testimony in the discovery proceedings
       as set forth in the deposition, answer to an interrogatory,
       separate report, or supplement thereto. However, the expert
       shall not be prevented from testifying as to facts or
       opinions on matters on which the expert has not been
       interrogated in the discovery proceedings.

Pa.R.C.P. 4003.5(a), (c) (emphasis added). 26           “The purpose of [Pa.R.C.P.

4300.5(a)(1)(B)] is to avoid unfair surprise by enabling the adversary to

prepare a response to the expert testimony.” Woodard v. Chatterjee, 827

A.2d 433, 441 (Pa. Super. 2003) (citation omitted).

       The purpose of Pa.R.C.P. 4003.5(c) “is to prevent incomplete or fudging

of reports which would fail to reveal fully the facts and opinions of the expert

or his grounds therefor. In other words, the fair scope rule favors the liberal


____________________________________________


25 This subdivision provides that “[u]pon cause shown, the court may order
further discovery by other means, subject to such restrictions as to scope and
such provisions concerning fees and expenses as the court may deem
appropriate.” Pa.R.C.P. 4003.5(a)(2).
26As the comment to the rule states, counsel “may be well advised to
conduct his discovery broadly, by paraphrasing the language of 4003.5(a),
which will require the expert to state all his opinions and grounds, thus
preventing surprise testimony at trial concerning grounds never raised
during the discovery.” Pa.R.C.P. 4003.5(a) cmt.


                                           - 34 -
J-A11021-18


discovery of expert witnesses and disfavors unfair and prejudicial surprise.”

Id. (brackets, internal quotation marks, and citations omitted). The comment

to Rule 4003.5(c) provides:

     Where the full scope of the expert’s testimony is presented in the
     answer to interrogatories or the separate report, as provided in
     subdivisions (a)(1) and (2), this will fix the permissible limits of
     his testimony at the trial. But, if the inquirer limits his inquiry to
     one or more specific issues only, the expert is free to testify at
     trial as to any other relevant issues not included in the discovery.
     Therefore, what happens at the trial may depend upon the
     manner in which the expert is interrogated. The inquirer
     may be well advised to conduct his discovery broadly, by
     paraphrasing the language of 4003.5(a), which will require the
     expert to state all his opinions and grounds, thus preventing
     surprise testimony at trial concerning grounds never raised during
     the discovery.

Pa.R.C.P. 4003.5 cmt. (emphasis added).

     In Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity,

32 A.3d 800, 810 (Pa. Super. 2011) (en banc), this Court explained the strict

scope of non-party expert interrogatories:

     Our Supreme Court has interpreted how Pa.R.C.P. 4003.5
     interacts with the general scope of discovery, announcing that
     Pa.R.C.P. 4003.5 should be read to restrict the scope of all
     discovery from non-party witnesses retained as experts in trial
     preparation. Thus, according to our Supreme Court, any request
     for discovery not covered under Pa.R.C.P. 4003.5(a)(1) shall be
     channeled through the Rule’s cause shown criterion.

     Under Pa.R.C.P. 4003.5(a)(1), the rule allows a party to submit
     interrogatories to any other party, requiring the opposition to
     identify each of their expert witnesses as well as “to have each
     expert so identified state the substance of the facts and opinions
     to which the expert is expected to testify and a summary of the
     grounds for each opinion.” Pa.R.C.P. 4003.5(a)(1). . . . We also
     underscore that Pa.R.C.P. 4003.5(a)(1) narrowly defines the
     substantive inquiries that a party may require an opposing expert

                                    - 35 -
J-A11021-18


      to answer in an interrogatory. As this section of the rule specifies,
      a party may only require opposing experts to state the facts and
      opinions to which they are expected to testify and to summarize
      the grounds for each such opinion. Any other interrogatory, aside
      from these two specific inquiries, exceeds the scope of the plain
      language contained within Pa.R.C.P. 4003.5(a)(1). Consequently,
      as indicated by our Supreme Court’s construction of Pa.R.C.P.
      4003.5, to obtain further discovery regarding the testimony of an
      expert witness by means other than this narrowly defined set of
      interrogatories, a party must show cause and acquire a court order
      for the additional discovery.

Barrick, 32 A.3d at 809-10 (emphases in original and internal quotation

marks and citations omitted).

      Initially, the Maleys’ argument, at heart, is that Detwiler should have

been precluded from testifying because the reports forming the basis of his

expert conclusions were purportedly prejudicial and confusing. All parties, the

trial court, and the jury were well aware that one of the issues was whether

the Maleys’ signatures were fraudulently placed on the Shell document.

Detwiler’s reports, which formed the basis of his expert testimony, addressed

the former. See Pa.R.E. 704. Indeed, as we discussed above, 42 Pa.C.S. §

6111 permitted Detwiler’s expert testimony on handwriting. See 42 Pa.C.S.

§ 6111. Based on the foregoing, we decline to hold that the trial court abused

its discretion by holding that the Maleys’ allegations of undue prejudice would

have caused the jury to base its decision on an improper basis. See Childers,

681 A.2d at 210.

      Further, we decline to address whether Detwiler’s bleed-through

testimony fell within the fair scope of either of his reports. We do so because


                                     - 36 -
J-A11021-18


the Maleys failed to propound any interrogatories appropriately directed to

Shell’s experts, such as Detwiler. See Pa.R.C.P. 4003.5 & cmt. Absent court

order, interrogatories are the only means to discover the facts and opinions

of an expert’s testimony. See Barrick, 32 A.3d at 809-10. Thus, the Maleys’

decision to not send expert interrogatories meant Detwiler was not precluded

from testifying about bleed-through—a matter “on which the expert has not

been interrogated in the discovery proceeding.”     See Pa.R.C.P. 4003.5(c).

Further, to the extent the Maleys challenge the addendum, they failed to

object to its admission.   N.T. Detwiler, 10/21/16, at 78. For these reasons,

no relief is due.

    III. Instructing the Jury on the Uniform Photograph Copies of
   Business and Public Records as Evidence Act, 42 Pa.C.S. § 6109

      The Maleys next claim that the trial court erred in issuing a jury

instruction based on Section 6109. Shell responds that the Maleys waived this

issue because they failed to contemporaneously object when the instruction

was given, but regardless, the claim lacks merit.

                       A. Waiver of Jury Charge Issue

      “Whether [a party] waived their challenge to the jury instruction

presents a question of law for which our standard of review is de novo; our

scope of review is plenary.” Passarello v. Grumbine, 87 A.3d 285, 291 n.4

(Pa. 2014) (citations omitted). “Our courts have made clear that an appellant

must make a timely and specific objection to a jury instruction to preserve for

review a claim that the jury charge was legally or factually flawed.” Braun,

                                    - 37 -
J-A11021-18


24 A.3d at 968 (citation omitted); see generally Pa.R.C.P. 227.            As the

Pennsylvania Supreme Court noted:

      It has long been the law in this Commonwealth that in order to
      preserve for appellate review an issue concerning the correctness
      of a trial court’s charge to the jury, the complaining party must
      submit a specific point for charge or make a timely, specific
      objection to the charge as given.

Broxie v. Household Fin. Co., 372 A.2d 741, 743 (Pa. 1977).

      In Shinal v. Toms, 162 A.3d 429 (Pa. 2017) (plurality), the plaintiffs

filed a brief in opposition to the defendant’s proposed jury charge. Id. at 451

n.26. The court overruled the objection. Id. Following a defense verdict, the

plaintiffs “again raised the issue in a timely post-trial motion.” Id. A majority

of the Shinal Court held that by “lodging a specific objection to the proposed

charge, and challenging the charge in their post-trial motion, the [plaintiffs]

preserved their objection.” Id. Furthermore, according to the Shinal Court,

at the hearing on the plaintiffs’ post-trial motion, the trial court addressed the

jury charge issue, considered the issue preserved, and held it lacked merit.

Id. (citing Jones v. Montefiore Hosp., 431 A.2d 920, 923 n.5 (Pa. 1981),

in support of the proposition that “[a]lthough no specific objection was made

at trial to the charge given, appellants’ exception to the trial court’s refusal to

charge as requested . . . was sufficient to put that charge before us for

appellate review.”); accord Jones v. Ott, 191 A.3d 782, 791 n.13 (Pa. 2018)

(plurality) (majority of Court agrees jury charge issue preserved when party




                                      - 38 -
J-A11021-18


files proposed jury instructions, obtains trial court ruling, and raises issue in a

post-trial motion).

      Here, similar to the plaintiffs in Shinal, the Maleys objected to the

instruction at issue at the charging conference. N.T. Trial Anneliese Maley,

10/18/16, at 81 (“I strongly oppose any ruling or any instruction that says

Pennsylvania says a copy’s acceptable”), 85; see also id. at 90. Although

the Maleys did not explicitly object when the court actually issued the disputed

instruction or before the jury began its deliberations, identical to the plaintiffs

in Shinal, the Maleys also filed a post-trial motion reiterating their challenge

to the jury instruction. See Shinal, 162 A.3d at 451 n.26; R.R. at 907a-08a;

accord Jones, 191 A.3d at 791 n.13. Identical to the trial court in Shinal,

the instant trial court addressed it on the merits in its Rule 1925(a) decision.

See id.   Moreover, Shell has not referred this Court to any binding legal

authority requiring counsel to not only object at the charging conference, but

also object “contemporaneously,” i.e., at the time “the instruction is given to

the jury.” Shell’s Brief at 40. For these reasons, we decline to find waiver.

                         B. Merits of Jury Charge Issue

      Before summarizing the Maleys’ arguments, we reproduce the following

exchange from the parties’ charging conference:

      [Maleys’ counsel]: Your Honor, I’m wondering if you could explain
      to me how putting a charge about Pennsylvania Law says a copy’s
      acceptable, when the issue in this case is that the Plaintiffs are
      saying the copy that you produced is not the document I signed.
      You’re sending the message that the copy is something that can


                                      - 39 -
J-A11021-18


     be used to enforce an agreement that these people say they never
     entered. So, I’m, I’m really --

     The court: -- well, the law does allow that. If, if this Jury
     determines -- they’re going to determine credibility, they’re going
     to determine who they believe, they’re going to determine
     whether the Maleys were fraudulently induced to enter into this -
     -

     [Maleys’ counsel]: -- okay --

     The court: -- what is purported to be this lease?

     [Maleys’ counsel]: Yes.

     The court: All right?

     [Maleys’ counsel]: So, how does the instruction that says
     Pennsylvania allows copies going to assist in that? Or because –

     The court: -- I’ll tell you what, if you can assure me you’re not
     going to argue to the Jury that the absence of the copy supports
     the fraud, then I don’t have to advise the Jury of the law.

     [Maleys’ counsel]: I don’t understand. The, the absence of the
     copy?

     The court: If you’re not -- if you’re telling me you’re not going to
     argue -- essentially, [Shell’s counsel], I assume, is making a
     preemptive argument that you’re going to argue, to the Ladies
     and Gentleman of the Jury, that because [Shell] doesn’t have the
     original document, they should find in favor of your client.

     [Maleys’ counsel]: Right.

     The court: That does not fairly represent the law. That, in fact,
     leaves the Jury without the appropriate law and invites them to
     make a decision that is directly counter to the law in Pennsylvania.

     [Maleys’ counsel]: Wait a second, I don’t - I, I -- I am not following
     how instructing the Jury that says, the law in Pennsylvania says a
     copy is okay – my clients are saying the copy that has been
     produced is not the copy they signed. It’s not the document they
     signed. It’s not a copy that belongs to their efforts and their ways.

                                     - 40 -
J-A11021-18


       To say that a copy is okay implies that the copy is something my
       client signed. If the Jury’s role is to decide whether or not my
       clients prevailed or not --

       The court: -- which it is --

       [Maleys’ counsel]: -- stating that Pennsylvania Law does not
       require an original; is that what -- can you read it out to me,
       because I think --

       The court: -- it is based -- it’s based on the statute.

       [Maley’s counsel]: The Business Record Statute?

       The court: It’s based on the statute of Title 42 § 6109(b):
       “Pennsylvania Law allows a company to make a photocopy of a
       document and use that photocopy to the same extent as it would
       use the original. A company that has made such a photocopy is
       not required to keep the original document. Moreover, the
       photocopy is as admissible in evidence as the original itself.”

       [Maley’s counsel]: Except, Your Honor --

       The court: -- now, that’s not been admitted,[27] so I won’t give the
       last part of that.

       [Maleys’ counsel]: But, Your Honor, the issue with that is there’s
       nothing in there about authenticity. When a company destroys
       the original, they got some kind of record of authenticity,
       something that shows that the document that they’ve got is
       authentic. So, you know, that’s talking about invoices and, you
       know, large volumes of things where there’s not a lot of question
       about the terms. This particular document is term sensitive.
       Every single word matters. And to imply that a copy is the same
       as, or can replace the original, as if the original can be destroyed
       -- basically saying: well, [Shell’s corporate designee] testified to
       that that’s an appropriate business practice. I find that -- it causes
       me a huge amount of concern, Your Honor.

____________________________________________


27We presume the court misspoke or was referencing the original lease
because the Shell document was admitted into evidence. See Maleys’ Trial
Ex. 4; Shell’s Trial Ex. 5.


                                          - 41 -
J-A11021-18



      The court: And I understand that, but, honestly, that’s not the
      question before the -- that’s a question for the legislature. That’s
      not a question for this Court, nor a question for the Jury.

      [Maleys’ counsel]: I think that the instruction that you’re about to
      give will give the wrong impression, because it sounds like it
      doesn’t matter -- if a company keeps the original document, it’s
      okay to just show up with something that’s in their file, so that
      someone in Mr. Maley’s position can never ever succeed, because
      the company just has to have the original. I mean, excuse me --

      [The court]: -- that’s not true, he can, he can -- your clients can
      prevail, if you can convince the Jury that, in fact, the fraud that
      you’ve alleged occurred. . . . -- the fraud that you’ve alleged is
      that the lease -- is that this, the document they purport to be the
      lease is not the lease.

      [Maley’s counsel]: Right.

      [The court]: All right?

      [Maleys’ counsel]: Right.

      [The court]: You’re entitled to present whatever evidence you can,
      but you’re not entitled to argue to the Jury: because they don’t
      have the original, you should find that they have defrauded my
      clients and then hoodwink the Jury, or prevent the Jury from
      acquiring – or expect me to prevent the Jury from having the
      knowledge that, in fact, there is a statute that provides, that
      permits companies to do this.

R.R. at 748a-52a.

      Subsequently, the trial court reiterated that it was going to prevent the

Maleys from arguing that because Shell was unable to provide the original

“wet ink” document, the jury could presume a fraud occurred. Id. at 754a.

(“I will not couch the situation of arguing to the Jury that: because we didn’t

get the lease -- because you can’t see the wet ink lease, you can just, Ladies


                                     - 42 -
J-A11021-18


and Gentleman, go down there and presume that a fraud occurred. That,

that’s your burden. You’ve got to prove that.”). Maleys’ counsel responded

as follows:

         [Maleys’ counsel]: Your Honor, what about the fact that there’s
         no, nothing in these instructions that requires there to be any
         authenticity involved with the business record? In other words,
         will you include something that at least says the business records
         need to be authentic first before they’re copied and destroyed?

         The court: What do you mean authentic?

         [Maleys’ counsel]: I mean original documents that are connected
         to the action and the person they purport to be connected to.
         Once a business has a way to establish authenticity, I can see
         making, you know, doing a copy and having their chain of, your
         chain of custody, or something like that, that shows what they
         did. That would make sense. But to just do an -- you know, like,
         you don’t have to have a -- a copy works -- it leaves a whole piece
         out where my clients are really prejudiced by that instruction.

         The court: Okay.

         [Maleys’ counsel]: So, I would like there to be something about
         the authenticity of these, Your Honor.

         The court: All right. I appreciate your remarks. I will consider
         them as we, as we go through this.

Id. at 755a.

         Following the conference, the parties gave their closing arguments. The

Maleys argued that the Shell document is a photocopy and emphasized the

importance of having an original. N.T. Closing Arguments, 10/21/16, at 6, 9-

10. The Maleys emphasized that they did not sign the Shell document. Id.

at 13.




                                       - 43 -
J-A11021-18


      The trial court instructed the jury that “Pennsylvania law does allow a

company to make a photocopy of a document and use the photocopy to the

same extent as it would use the original.       A company that has made a

photocopy is not required to keep the original document.”           N.T. Jury

Instructions, 10/21/16, at 24, R.R. at 791a.

      The Maleys contend that the court erred by overruling their objections

to the jury instruction regarding the Photographic Copies Act. Maleys’ Brief at

52.   In their view, there was insufficient basis to invoke the act and thus

instruct the jury. Id. Specifically, the Maleys contend that under the Uniform

Business Records as Evidence Act, 42 Pa.C.S. § 6108, Shell had the burden of

establishing the trustworthiness of the photocopy, but failed to fulfill that

burden.   Id. at 54-55.   The Maleys reiterate that the lease was notarized

without the notary witnessing the signatures and that the original lease was

printed on the letter-sized paper. Id. at 56.

      In sum, the Maleys insist as follows:

      [the charge] went to the most fundamental issues in the case:
      that Shell did not have the original lease and the “Shell document”
      was not the original lease the Maleys’ agreed to and signed. The
      trial court essentially told the jury that [Shell] had no
      responsibility to preserve the Maleys’ lease in its original
      condition. [Shell was] not required to explain why they did not
      produce the original lease document. Nor were they required to
      prove that the photocopy was an accurate reproduction of the
      Maleys’ original lease. The erroneous instruction misled the jury
      to believe that the “Shell document” was equivalent to the Maleys’
      original lease. The jury was further misled to believe that the
      “Shell document” which contains inter alia fraudulent
      notarizations, was not a basis to find fraud or negligence against


                                    - 44 -
J-A11021-18


      [Shell]. Since the photocopy is considered the same as the
      original there can be no harm.

Id. at 61-62.

      Shell counters that the trial court’s instruction was proper and even

assuming otherwise, the issuance of the instruction was harmless error.

Shell’s Brief at 43. Shell explains the instruction was proper because it had

overcome the Maleys’ prior arguments that the lease was hearsay and lacked

proper authentication. Id. As for harmless error, Shell points out that the

court did not order “the jury that it had to accept the [l]ease as valid or

enforceable.”   Id.    Rather, according to Shell, the instruction properly

conveyed to the jury that the absence of an original lease did not permit the

jury to presume liability. Id. at 44-45.

      The standard of review follows:

      In reviewing a claim regarding error with respect to a specific jury
      charge, we must view the charge in its entirety, taking into
      consideration all the evidence of record to determine whether or
      not error was committed. If we find that error was committed,
      we must then determine whether that error was prejudicial to the
      complaining party. Error will be found where the jury was
      probably misled by what the trial judge charged or where there
      was an omission in the charge which amounts to fundamental
      error.

      Error in a charge is sufficient ground for a new trial, if the charge
      as a whole is inadequate or not clear or has a tendency to mislead
      or confuse rather than clarify a material issue. A charge will be
      found adequate unless the issues are not made clear to the jury
      or the jury was palpably misled by what the trial judge said or
      unless there is an omission in the charge which amounts to
      fundamental error. A reviewing court will not grant a new trial on
      the ground of inadequacy of the charge unless there is a
      prejudicial omission of something basic or fundamental.

                                     - 45 -
J-A11021-18



      The court is vested with substantial discretion in fashioning the
      charge and may select its own language cognizant of the need to
      adequately apprise the jury of the law as it applies to the evidence
      adduced at trial. Unless the language the court chose incorrectly
      states the law or mischaracterizes the evidence in a way that
      prejudiced the jury’s consideration and thereby undermined the
      accuracy of the verdict, we will not interfere with the court’s
      exercise of discretion.

Braun, 24 A.3d at 968 (citations omitted). “The purpose of a jury charge is

to clarify the legal principles at issue. Thus, a jury instruction will be upheld

if it accurately reflects the law and is sufficient to guide the jury in its

deliberations.” Machado v. Kunkel, 804 A.2d 1238, 1244 (Pa. Super. 2002)

(citation omitted).

      The instruction was based on the Photographic Copies Act, which follows

in pertinent part:

      If any business institution . . . in the regular course of business or
      activity, has kept or recorded any memorandum, writing, entry,
      print, representation, or combination thereof, of any act,
      transaction, occurrence or event, and in the regular course of
      business has caused any or all of the same to be recorded, copied
      or reproduced by any photographic, photostatic, microfilm,
      microcard, miniature photographic, or other process which
      accurately reproduces or forms a durable medium for so
      reproducing the original, the original may be destroyed, in the
      regular course of business, unless its preservation is required by
      law. Any such reproduction in order to comply with this section
      must accurately reproduce all lines and markings which appear on
      the original. Such reproduction, when satisfactorily identified, is
      as admissible in evidence as the original itself in any judicial or
      administrative proceeding, whether the original is in existence or
      not, and an enlargement or facsimile of such reproduction is
      likewise admissible in evidence if the original reproduction is in
      existence and available for inspection under direction of the
      tribunal. The introduction of a reproduced record, enlargement or
      facsimile does not preclude admission of the original.

                                     - 46 -
J-A11021-18



42 Pa.C.S. § 6109(b).28

       Section 6109 is a statutory analogue to Pa.R.E. 1002, as each permits

the use of a copy in place of an original. See Pa.R.E. 1002; see generally

Leonard Packel & Anne Bowen Poulin, 1 West’s Pa. Practice, Evidence § 1002-

1 (4th ed. 2013).       Just because section 6109 permits the admission of a

duplicate does not mean the duplicate is not subject to Pennsylvania Rule of

Evidence 1003.

       Pennsylvania Rule of Evidence 1003 states that a “duplicate is

admissible to the same extent as the original unless a genuine question is

raised about the original’s authenticity or the circumstances make it unfair to

admit the duplicate.”       Pa.R.E. 1003.      As the comment to the rule notes,

“various Pennsylvania statutes have treated some accurate copies as

admissible,” including copies of business records under Section 6109.           Id.

cmt.

       The extension of similar treatment to all accurate copies seems
       justified in light of modern practice. . . . As a result, Pa.R.E. 1003
       should tend to eliminate purely technical objections and
       unnecessary delay. In those cases where the opposing party
       raises a genuine question as to authenticity or the fairness of using
       a duplicate, the trial court may require the production of the
       original under this rule.


____________________________________________


28 The statute was enacted in 1976, prior to the 1998 adoption of the
Pennsylvania Rules of Evidence. The comment to Section 6109 states that it
is substantially similar to 28 P.S. §§ 141 and 143, the statutory predecessors,
which were enacted in 1951. 42 Pa.C.S. § 6109 cmt.


                                          - 47 -
J-A11021-18


Id. cmt.

      One treatise discusses the interplay between Rule 1003, i.e., under the

facts of this case, 42 Pa.C.S. § 6109, and Rule 1008:

      There is some question about how the rule will operate, at least
      in some situations. Assume that a witness testifies that a
      document is a photocopy of the original document. The photocopy
      would be admissible as a duplicate under Pa.R.E. 1003. But
      assume that the opposing party objects and offers a witness who
      will testify that the alleged original document never existed or that
      the alleged duplicate’s content is different than the original. The
      photocopy would not be admissible under the common law rule,
      but the outcome is not clear under Pa.R.E. 1003. If this testimony
      presents a genuine question as to the authenticity of the original,
      Pa.R.E. 1003 seems to suggest that the photocopy is not
      admissible. However, Pa.R.E. 1008 seems to suggest that this
      type of issue is to be resolved by the jury. Probably, the court
      should follow the approach provided in Pa.R.E. 1008 and decide
      only whether there is sufficient evidence to support a finding that
      the photocopy is a duplicate of the original. If not, the alleged
      duplicate should be excluded. If the court finds there is sufficient
      evidence to support a finding that it is a duplicate, the court should
      admit the alleged duplicate and leave the question of authenticity
      to the jury. This result would be consistent with Pa.R.E. 104(b).

Leonard Packel & Anne Bowen Poulin, 1 West’s Pa. Practice, Evidence § 1003-

1 (4th ed. 2013); see also id. § 1008-1.

      Here, no party disputes that the Shell document was a copy. All parties,

the court, and the jury were aware that the original lease was lost and the key

issue was whether the photocopied Shell document accurately depicted the

original lease. See, e.g., N.T. Closing Arguments, 10/21/16, at 6, 9-10, 13;

Maleys’ Trial Ex. 4; Shell’s Trial Ex. 5. The disputed jury instruction generally

tracks the language of section 6109.          Compare N.T. Jury Instructions,

10/21/16, at 24, with 42 Pa.C.S. § 6109. Because it accurately reflects the

                                     - 48 -
J-A11021-18


law, we cannot conclude the trial court erred in its framing of the jury charge

on the Photographic Copies Act. See Machado, 804 A.2d at 1244.

      Additionally, the instruction did not mislead the jury into believing it

must accept the photocopy as authentic. The instruction advised the jury that

a company is permitted to use a photocopy and is not required to keep an

original.   See N.T. Jury Instructions, 10/21/16, at 24, R.R. at 791a.     The

disputed instruction did not—contrary to the Maleys’ arguments—instruct the

jury that the Shell document was “equivalent to the Maleys’ original lease.”

See Maleys’ Brief at 61-62.

      Moreover, even assuming the court erred by either issuing the

instruction or by omitting an additional instruction about authenticity, we

discern nothing in the charge that ultimately undermined the accuracy of the

jury’s verdict.    See Braun, 24 A.3d at 968.    Both parties introduced the

photocopied Shell document into evidence. See Maleys’ Trial Ex. 4; Shell’s

Trial Ex. 5.      Both parties presented testimony and evidence addressing

whether the Shell document was an accurate, authentic duplicate of the

original.   See, e.g., R.R. at 651a, 684a-85a.     It was left for the jury to

ascertain whether the Shell document was, in fact, an accurate depiction of

the original lease.    See Pa.R.E. 1008; Hatfield, 685 F. Supp. 2d at 320;

Dietrich, 126 F. Supp. 2d at 764; Leonard Packel & Anne Bowen Poulin, 1

West’s Pa. Practice, Evidence §§ 1004-1, 1008-1 (4th ed. 2013). The jury

elected to reject the Maleys’ claim that the Shell document was not the lease


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the Maleys signed and that their signatures were fraudulently placed on the

Shell document. For these reasons, we perceive no error, let alone prejudicial

error, that would warrant the grant of a new trial. See Braun, 24 A.3d at

968.

  IV. Failure to Order the Recorder of Deeds to Remove Fraudulent
                                Lease

       Briefly, by way of background, following the jury’s verdict, the Maleys’

counsel stated the following:

       [Maleys’ counsel]: Your Honor, I have a question with regard to
       the equitable relief that we’ve asked for in this case; and, in
       particular, the, the underlying Shell document that we, we would
       ask this Court to recognize the Jury’s finding and make a
       determination as to whether the [pertinent Shell document] that
       have been filed in the Recorder of Deeds Office can be removed,
       or found to -- I’m not sure of the exact terminology, but to have
       that record corrected.

R.R. at 802a. The court deferred its ruling pending the filing of a formal motion

and response by the parties. Id.

       The Maleys subsequently filed a post-trial motion requesting, among

other things, that the trial court award equitable relief in the form of

compelling Shell to execute the following:

       a) surrender the “[S]hell document”; (b) file appropriate
       documentation with the Tioga County Recorder of Deeds
       confirming that any oil and gas lease (including “units”) between
       the [Maleys] and [Shell] is void; and (c) file appropriate
       documentation with the Tioga County Recorder of Deeds
       withdrawing the memorandum of lease filed February 9, 2006,
       which was falsely notarized by Dale Tillinghast and which the
       [Maleys] denied signing.




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J-A11021-18


R.R. at 881a; id. at 888a. The Maleys requested a new trial in the alternative.

Id. The Maleys did not request the trial court to order the Recorder of Deeds

to strike the documents. Id.

        On appeal, the Maleys claim that Tillinghast admitted to violating the

Uniform Acknowledgement Act (UAA) 29 —by not personally observing the

Maleys sign the lease. Thus, for the first time on appeal, the Maleys assert

the trial court should have ordered the Recorder of Deeds to remove it.

Maleys’ Brief at 78-79. According to the Maleys, the trial court denied their




____________________________________________


29   21 P.S. § 351. The UAA states in pertinent part:

        All deeds, conveyances, contracts, and other instruments of
        writing wherein it shall be the intention of the parties executing
        the same to grant, bargain, sell, and convey any lands,
        tenements, or hereditaments situate in this Commonwealth, upon
        being acknowledged by the parties executing the same or proved
        in the manner provided by the laws of this Commonwealth, shall
        be recorded in the office for the recording of deeds in the county
        where such lands, tenements, and hereditaments are situate.
        Every such deed, conveyance, contract, or other instrument of
        writing which shall not be acknowledged or proved and recorded,
        as aforesaid, shall be adjudged fraudulent and void as to any
        subsequent bona fide purchaser or mortgagee or holder of any
        judgment, duly entered in the prothonotary’s office of the county
        in which the lands, tenements, or hereditaments are situate,
        without actual or constructive notice unless such deed,
        conveyance, contract, or instrument of writing shall be recorded,
        as aforesaid, before the recording of the deed or conveyance or
        the entry of the judgment under which such subsequent
        purchaser, mortgagee, or judgment creditor shall claim.

21 P.S. § 351.


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J-A11021-18


alleged request because Shell was a bona fide purchaser, but they identify

several reasons that Shell is not a bona fide purchaser. Id. at 79-81.

        Pennsylvania Rule of Appellate Procedure 302 states that “[i]ssues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.” Pa.R.A.P. 302(a). “It is well settled that issues not raised below

cannot be advanced for the first time in a 1925(b) statement.” Irwin Union

Nat’l. Bank & Trust Co. v. Famous, 4 A.3d 1099, 1104 (Pa. Super. 2010).

Similarly, a failure to present authority demonstrating entitlement to relief

results in waiver. Price v. Pa. Prop. & Cas. Ins. Guar. Ass’n, 795 A.2d

407, 412 (Pa. Super. 2002); see also Pa.R.A.P. 2119(a).

        Here, the Maleys have argued that the trial court erred by not ordering

the Recorder of Deeds to remove the alleged fraudulent deed. Maleys’ Brief

at 78-79. The Maleys did not raise that request for relief with the trial court

below. Rather, the Maleys contended that the trial court compel Shell to file

appropriate documents to have the Recorder of Deeds void the lease. R.R. at

881a, 888a. It is one thing for a trial court to order a party to file appropriate

documents. It is a different thing entirely for a trial court to directly compel

another governmental entity to remove a public record. 30         Therefore, the

Maleys waived this issue because they are requesting relief for the first time


____________________________________________


30   This is not an action to quiet title.




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J-A11021-18


on appeal that they did not seek from the trial court. See Famous, 4 A.3d

at 1104.31 In any event, the Maleys have not identified any legal authority in

their brief permitting the trial court to order the Recorder of Deeds to strike

the lease at issue. See Price, 795 A.2d at 412. For these reasons, the Maleys

have not established entitlement to relief for this issue. 32      Based on the

foregoing, we perceive no abuse of discretion by the trial court and therefore

affirm the judgment below.

       Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2018



____________________________________________


31 We acknowledge that the trial court addressed the issue on its merits in its
Pa.R.A.P. 1925(a) decision. But a trial court’s decision to address an
unpreserved issue does not save it for appellate review. See Dilliplaine v.
Lehigh, 322 A.2d 114, 116 (Pa. 1974) (“Appellate court consideration of
issues not raised in the trial court results in the trial becoming merely a dress
rehearsal.”).
32 Moreover, the Maleys have not identified where in the record that the court
held the lease was void. Thus, it remains unclear to this Court whether the
Maleys have fulfilled the predicates for requesting the trial court to order the
Recorder of Deeds to strike a deed. Further, even assuming the lease is “void”
as to John C. Maley, the Maleys have not addressed the validity of the lease
as to John J. Maley, the other lessor. The rights and liabilities, if any, of John
J. Maley have not been addressed. No trier of fact has concluded that John J.
Maley was improperly compelled or induced to sign the lease.


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