Boyle v. Steiman

631 A.2d 1025, 429 Pa. Super. 1, 1993 Pa. Super. LEXIS 3145

• Court: Superior Court of Pennsylvania
• Decided: September 23, 1993
• Docket: 02792
• Status: Published

Opinions

KELLY, Judge:

This is an appeal from the judgment in the amount of $23,475.00 entered in favor of the appellees, the administrators of the estate of Eugene F. Boyle. The appellant, Michael Steiman, Esquire, has raised three issues for our review: 1) whether the presiding motions court judge, in light of new evidence, committed error by lifting the sanctions order imposed by his predecessor in motions court, which precluded the appellee-decedent from presenting certain evidence for failing to comply with the appellant’s discovery requests; 2) whether the trial court committed error by admitting into evidence, pursuant to the Uniform Business Records as Evidence Act, 42 Pa.C.S.A, § 6108, business records prepared primarily by the appellee-decedent in the absence of authenticating testimony from the appellee-decedent; 3) whether the administrators of the appellee-decedent’s estate presented sufficient evidence to prove the existence of an oral contract between the appellant and the appellee-decedent. We affirm.

The relevant facts and procedural history as ascertained by the limited record are as follows. On April 7, 1989, the appellee-decedent, Eugene F. Boyle, a private investigate, filed a civil action complaint against the appellant, Michael Steiman, Esq., a personal injury attorney. In this complaint, the appellee-decedent alleged that the appellant had failed to pay him $27,250.00 in fees for investigations which the appellant had hired him to conduct in various personal injury cases. Attached to the complaint were two exhibits, Exhibit A and Exhibit B. Exhibit A contained a list of all unpaid invoices through June 4, 1988, while Exhibit B contained photocopies of all the unpaid investigations bills that had been submitted to the appellant. The photocopies of the unpaid investigation bills contained both the appellee-decedent’s file number and the names of the appellant’s clients on whose behalf the investigations were undertaken.

The appellant then served interrogatories upon the appellee-decedent requesting information concerning the appellee’s record keeping methods in his investigations. The appellant also sought the production of any notes, telephone calls, automobile mileage, photographs and details of each investigation. The appellee-decedent’s former counsel responded to the interrogatories by stating that all notes and records pertaining to the investigations were incorporated into the various investigation reports that were under the appellant’s control.

Despite receiving notice in the appellee-decedent’s answers to the interrogatories that all of the information and documents he sought to discover were already in his control, the appellant did not examine his files. Rather, he filed a “motion to compel full and complete answers to interrogatories and a response to request for production of documents.” When the appellee-decedent’s former counsel failed to contest this motion, the then-presiding motions court judge, the Honorable Bernard J. Avellino, entered an order on January 29, 1990, directing the appellee-decedent to file full and complete answers to all interrogatories and to comply with the appellant’s request for documents within twenty days or risk sanctions.

Upon being served with Judge Avellino’s January 29, 1990 order, the appellee-decedent’s former counsel submitted late answers to the interrogatories and stated that the documents sought by the appellant were already in the appellant’s possession. The appellant, once against without checking his own files, moved for sanctions alleging that the appellee-decedent’s response did not satisfy the requirements of the January 29, 1990 order. Although the appellant had always had in his own files the information and documents for which he sought sanction of the appellee-decedent for failing to produce, see N.T. 2/24/92 at 42-45 (the appellant admitted at trial that the information and the investigation reports pertaining to the disputed bill were contained in his files when he reviewed the files shortly before trial), the appellee-decedent’s former counsel did not contest the motion for sanctions. Judge Avellino subsequently entered an order on June 29, 1990, precluding the appellee-decedent from introducing evidence on any matter covered by the interrogatories.

Shortly after the preclusion order was entered, the appelleedecedent died. The administrators of the appellee-decedent’s estate, his sons and partners, Eugene T. Boyle and Michael P. Boyle, then retained new counsel to represent the estate in this matter. New counsel immediately filed a motion to rescind the preclusion order, bringing to the court’s attention for the first time that the appellant had been seeking production of documents which were already under his control. Because Judge Avellino had been rotated out of motions court, this new evidence was presented to his successor, Judge Maier. Judge Maier then entered an order stating the earlier preclusion order was being lifted in the “interests of justice.” This order also directed that supplemental answers to the appellant’s interrogatories be filed. The discovery process continued. On August 15, 1991, the administrators served interrogatories and a request for production of documents upon the appellant. After the appellant failed to answer the interrogatories or produce the requested documents, the administrators filed a motion to compel answers to interrogatories and request for production of documents. On December 20,1991, Judge Maier entered an order directing the appellant to file full and complete answers to the interrogatories and produce the requested documents within ten days or risk sanctions.

On February 24, 1992, a bench trial was conducted before the Honorable Pamela Pryor Cohen. At this trial, Michael P. Boyle presented photocopies of a ledger made in the appelleedecedent’s handwriting pertaining to the firms’ business with the appellant. Michael P. Boyle also testified that prior to the filing of this lawsuit he, his late father, and his brother met with the appellant in 1988 regarding the unpaid bills. Michael P. Boyle also testified that at the meeting the appellant agreed that he would pay these outstanding bills.

The appellant then testified in his own behalf stating that the pre-lawsuit meeting did occur, however only the appelleedecedent and one of his sons was present. (N.T. 2/24/92 at 38). The appellant then testified that at this meeting he did not agree to pay all of the outstanding bills. The appellant also testified that his position at the meeting was that many of these bills had already been resolved and that the billing rate was excessive on the other bills. (N.T. 2/24/92 at 40). Finally, the appellant testified that at the meeting he explained for the benefit of the appellee-decedent’s two sons that he had a special working relationship with the appellee-decedent. (N.T. 2/24/92 at 43). In this special working relationship, when a case was assigned to the appellee-decedent for investígation, the appellee-decedent was to conduct the investigation and submit the report and bill to the appellant. If, on the basis of the report, the case was the type of case with which the appellant wished to proceed, the appellee-decedent would be paid. However, based on the result of the appelleedecedent’s investigation, or for any other reason, if the appellant did not wish to proceed with the case, the appelleedecedent was to forego payment for the investigation. (N.T. 2/24/92 at p. 44). The trial court found the appellant’s testimony to be incredible and held for the administrators in the amount of $23,475.00. Post-trial motions were denied. This timely appeal followed.

On appeal, the appellant raised the following issues for our review.

1. WAS IT ERROR FOR ONE PRETRIAL JUDGE TO OVERRULE THE INTERLOCUTORY ORDER OF ANOTHER PRETRIAL JUDGE CONCERNING SANCTIONS FOR REPEATED VIOLATIONS OF ORDERS DIRECTING PLAINTIFF TO COMPLY WITH DISCOVERY REQUESTS?

2. DID THE COURT ERR IN ADMITTING DOCUMENTARY EVIDENCE WHICH WAS HEARSAY AND NOT PROPERLY AUTHENTICATED AS A BUSINESS RECORD?

3. DID THE LOWER COURT ERRONEOUSLY DETERMINE THAT PLAINTIFFS PROVED THE EXISTENCE OF A CONTRACTUAL RELATIONSHIP BETWEEN THE PARTIES AND CONTRADICTED EVIDENCE CONCERNING IT WHEN NO PLAINTIFF WHO TESTIFIED HAD ANY PERSONAL KNOWLEDGE OF THE CONTRACTUAL RELATIONS?

(The appellant’s brief at 2).

In his first issue on appeal, the appellant claims that Judge Maier erred when he overruled Judge Avellino’s order precluding the appellee-decedent from introducing evidence of any subject covered by the interrogatories due to his failure to answer the interrogatories. The appellant argues that Judge Maier acted improperly by reversing an interlocutory order entered by another judge of coordinate jurisdiction in the same litigation. Thus, the appellant asserts that he is entitled to a new trial in which the administrators of the appelleedecedent’s estate are precluded from introducing any evidence covered by Judge Avellino’s June 29, 1990 preclusion order.

A party may not remain silent and take his chances on the verdict then complain if it is adverse. Carter by Carter v. U.S. Steel Corp., 529 Pa. 409, 424, 604 A.2d 1010, 1018 (1992); Zeman v. Canonsburg Borough, 423 Pa. 450, 453, 223 A.2d 728, 729 (1966). In order to preserve an issue for appellate review a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Taylor v. Celotex Corp., 393 Pa.Super. 566, 583, 574 A.2d 1084, 1093 (1990). Where a thorough review of the record discloses no basis to conclude that an appellant preserved an issue raised in his motion for new trial by a timely or specific objection at trial, such an issue is waived for the purposes of appellate review. Piernikowski v. Cardillo, 263 Pa.Super. 202, 397 A.2d 817 (1979). See also East Texas Motor Freight, Diamond Div. v. Lloyd, 335 Pa.Super. 464, 484 A.2d 797 (1984) (it is unnecessary for this Court on appeal to address an argument not presented at trial but subsequently presented in opposition to a motion for directed verdict and in post-verdict motions).

Here, there is nothing in the record to indicate that the appellant voiced an objection to Judge Maier’s consideration of the administrator’s motion to lift the preclusion order imposed by Judge Avellino. Our review of the record does not reveal that the appellant even filed an answer in opposition to the administrators’ motion to lift the preclusion order. Additionally, the appellant has not made available to this Court a transcript of the proceeding before Judge Maier which might permit us to determine whether he voiced an objection to Judge Maier’s consideration of the administrators’ motion to lift the preclusion order. Accordingly, because we have nothing to indicate, other than his bald assertion in his post-trial motions, that he actually opposed the administrators’ motion to lift the preclusion order, we are constrained to hold that the appellant failed to properly preserve this issue for appellate review.

Moreover, we note that it is the duty of the appellant to supply this Court with a record which is sufficient to permit a meaningful appellate review. School District of Aliquippa, et al. v. Maryland Casualty Company, 402 Pa.Super. 569, 575, 587 A.2d 765, 768-69 (1991). A failure by the appellant to insure that the original record certified for appeal contains sufficient information to conduct a meaningful appellate review constitutes a waiver of the issue sought to be reviewed. Burns v. Kabboul, 407 Pa.Super. 289, 313 n. 1, 595 A.2d 1153, 1165 n. 1 (1991). The Pennsylvania Rules of Appellate Procedure provide specific steps that are to be taken in absence of a transcript to a proceeding which is the subject of an appeal. Pa.R.App.P. 1923 instructs an appellant as follows:

If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.

The purpose of Pa.R.A.P. 1923 is to provide a reviewing court with an “equivalent picture” of the proceedings when there is no transcript of the proceedings. Oblon v. Ludlow-Fourth Corp., 406 Pa.Super. 591, 604-05 n. 9, 595 A.2d 62, 69 n. 9 (1991); Commonwealth v. Buehl, 403 Pa.Super. 143, 148 n. 7, 588 A.2d 522, 524 n. 7 (1991).

Here, the appellant never attempted to reconstruct for the purposes of appellate review the proceeding before Judge Maier in accordance with Pa.R.App.P. 1923. Thus, this Court is without a clue as to what actually transpired at the oral argument of the administrators’ motion for the recision of the preclusion order. Accordingly, absent a Pa.R.App.P. 1923 statement, this Court is without an adequate record to conclude that Judge Maier erred in lifting the preclusion order. See Oblon v. Ludlow-Fourth Corp., supra at 605, 595 A.2d at 69.

Finally, the limited record presented to this Court supports Judge Maier’s order lifting the sanctions imposed against the appellee-decedent by the predecessor in motions court, Judge Avellino. We reach this result for the following reasons.

It is a well recognized principle that “... judges of coordinate jurisdiction sitting in the same court and in the same case should not overrule the decisions of each other.” Golden v. Dion & Rosenau, 410 Pa.Super. 506, 510, 600 A.2d 568, 570 (1991) (quoting Okkerse v. Howe, 521 Pa. 509, 516, 556 A.2d 827, 831 (1989)). The purpose of this rule is to ensure a degree of pretrial finality “so that judicial economy and efficiency can be maintained”. Salerno v. Philadelphia Newspapers, Inc., 377 Pa.Super. 83, 87, 546 A.2d 1168, 1170 (1988) (quoting Commonwealth v. Eck, 272 Pa.Super. 406, 409, 416 A.2d 520 522 (1979)). Absent some new evidence, it is improper for a trial judge to overrule an interlocutory order of another judge of the same court in the same case. Reifinger v. Holiday Inns Inc., 315 Pa.Super. 147, 461 A.2d 839 (1983). However, an exception exists where new evidence is placed on the record in the interim between the first trial court judge’s ruling and the second trial court judge’s reassessment. Gabovitz v. State Auto Ins. Assn., 362 Pa.Super. 17, 21 n. 2, 523 A.2d 403, 405 n. 2 (1987), appeal denied, 516 Pa. 634, 533 A.2d 92 (1987); Melendez by Melendez v. City of Philadelphia, 320 Pa.Super. 59, 62 n. 2, 466 A.2d 1060, 1062 n. 2 (1983). Where the record is materially different from the record that was before the preceding judge, it is not improper for the succeeding judge to reach a different result. Hutchison by Hutchison v. Luddy, 417 Pa.Super. 93, 110, 611 A.2d 1280, 1289 (1992); McNally v. Dagney, 353 Pa.Super. 402, 405, 510 A.2d 722, 724 (1986).

The purpose of discovery is to expedite litigation and not to provide an intermediate arena for jousting in the time between the pleadings and the actual trial. Williams v. Triangle Publications, 19 D. & C.2d 226 (1957). It is not a purpose of discovery for a party to supply, at its own expense, information already under the control or readily available to the opposing party. See Brown v. Lower Allen Township, 2 Pa.D. & C.3d 368 (1977); 1958 Asses, of Glen Alden Corp., 17 Pa.D. & C.2d 624 (1958). A plaintiff will not be compelled to answer a defendant’s interrogatories when the matters contained in the interrogatories are at least equally within the defendant’s knowledge. Blum v. Parkview Hospital, 2 Pa.D. & C.3d 345 (1976).

Instantly, Exhibits A and B of the appellee-decedent’s complaint contained sufficient information to alert the appellant as to which cases in his files the appellee-decedent was alleging that appellant had not paid the appellee-decedent’s investigation fees. Additionally, the appellee-decedent’s initial answers to the interrogatories informed the appellant that the information he sought to discover was contained in the original investigation reports that were part of the appellant’s own files. However, without any assertion that he had reviewed his own files and found that the information he sought was not there, the appellant filed a motion to compel this information from the appellee-decedent. The appellant’s insistence that the appellee-decedent compile information that he subsequently was able to retrieve from his own files amounted to discovery gamesmanship1. Former counsel’s laxity in alerting the trial court to this fact by failing to answer either the appellant’s motion to compel or motion for sanctions permitted this charade to proceed.

Therefore, the state of the record at the time Judge Avellino issued the preclusion order consisted only of the appellant’s assertions that the appellee-decedent had failed to respond satisfactorily to the interrogatories or to produce the documents that the appellant required. Judge Avellino was not aware that the information and documents which the appellant sought were already under appellant’s control. The first time the court became aware that the appellant already had the requested information in his files was when the succeeding motions judge, Judge Maier, entertained new counsel’s motion for recision of the preclusion order. Thus, new counsel’s motion to rescind the preclusion order and whatever evidence was offered at the subsequent non-transcribed oral argument represented a material change in the record and thereby permitted Judge Maier to reexamine and rescind the preclusion order entered by his predecessor in motions court.

In his second argument on appeal, the appellant contends that the trial court erred by admitting into evidence photocopies of the appellee-decedent’s business ledgers pursuant to the business record exception to the hearsay rule (42 Pa.C.S.A. § 6108). The appellant argues that the appellee-decedent’s son, Michael P. Boyle, the authenticating witness, had no involvement in the preparation of the business ledgers admitted into evidence by the trial court. Thus, the appellant asserts, Michael P. Boyle’s testimony was insufficient to establish a proper foundation for the admission of the photocopies of the business ledgers into evidence pursuant to 42 Pa.C.S.A. § 6108. We disagree.

The Uniform Business Records as Evidence Act, 42 Pa. C.S.A. § 6108 provides, in the pertinent part, as follows:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

42 Pa.C.S.A. § 6108 (emphasis added).

The purpose of Uniform Business Records as Evidence Act is to create an additional exception to the hearsay rule in circumstances where a record of an act, a condition or an event was made in the regular course of business, at or near the time of the act, condition or event and where the sources of information, method and time of preparation were such as to justify its admission. Joseph v. Krull Wholesale Drug Co., 147 F.Supp. 250 (E.D.Pa.1956), affirmed, 245 F.2d 231 (3d Cir.1957). The question of whether documents should be admitted under the “business records” exception to the hearsay rule is within the discretionary power of the trial court provided such discretion is exercised within the Uniform Business Records as Evidence Act. Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Super. 333, 340, 455 A.2d 637, 640 (1982). It is not essential under the Uniform Business Records as Evidence Act to produce either the person who made the entries or the custodian of the record at the time the entries were made. In re Indyk’s Estate, 488 Pa. 567, 573, 413 A.2d 371, 373 (1979). Moreover, the law does not require that a witness qualifying business records even have a personal knowledge of the facts reported in the business record. Wayne County Bd. of Assessment v. Federation of Jewish Philanthropies, 43 Pa.Cmwlth. 508, 403 A.2d 613 (1979). As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness for the business records of a company, a sufficient basis is provided to offset the hearsay character of the evidence. In re Indyk’s Estate, supra, at 573, 413 A.2d at 373.

Instantly, the testimony of Michael P. Boyle reveals that the records were primarily created by his father and secondarily by himself and his brother in the regular course of business. Michael P. Boyle also testified that the entries were made in the ledger, at or near the time information became available and that the records required accurate entries. Thus, the testimony of the authenticating witness, Michael P. Boyle, was sufficient to establish a proper foundation for the admission of the records. Accordingly, the trial court did not abuse its discretion in directing that the records be admitted into evidence.²

The appellant’s final argument on appeal is that the administrators failed to prove the existence of a contractual relationship between the parties. The appellant contends that, because the administrators admitted there was never a written investigational services contract between the parties, they bore the burden of proving the existence of an oral contract for investigational services. The appellant argues that the administrators failed to meet this burden because they failed to prove either that specific investigative services were rendered by the appellee-decedent on his behalf or that the fees for these investigative services were fair and reasonable. The appellant further argues that the administrators failed to present any evidence which contradicted his testimony that, pursuant to their understanding, the appellee-decedent was not entitled to be paid for his investigative services if the appellant failed to proceed with the personal injury case that was the subject of the investigation. Thus, the appellant asserts that the trial court erred in failing to grant his motion for judgment notwithstanding the verdict. We disagree.

The burden of proving an oral contract is on the party seeking to establish it. Zinnel v. Bergdoll, 9 Pa.Super. 522, 7 Del. 369 (1899); Smith v. McLane, 75 F.Supp. 219 (W.D.Pa.1948), affirmed, 174 F.2d 819 (3d Cir.1949). A verbal agreement differs from a written one in that when construing a written contract all negotiations leading up to the contract are presumed to be merged in the writing; moreover, oral testimony is not admissible to explain the written document in the absence of an ambiguity requiring such an explanation. McCormack v. Jermyn, 351 Pa. 161, 166, 40 A.2d 477, 480 (1945). However, when construing an oral contract the words constituting the agreement are merely parts of and imbedded in a general conversation, and the meaning must be interpreted with reference to the circumstances under which the parties contracted in light of the objectives to be accomplished. Id. In cases involving contracts wholly or partially composed of oral communications, the precise content of which are not of record, courts must look to surrounding circumstances and course of dealing between the parties in order to ascertain their intent. Westinghouse Electric Co. v. Murphy, Inc., 425 Pa. 166, 171, 228 A.2d 656, 659 (1967); see also, Silverstein v. Hornick, 376 Pa. 536, 103 A.2d 734 (1954).

Instantly, the evidence presented by the administrators was more than sufficient to meet their burden of proving the existence of an oral contract between the appellee-decedent and the appellant. The administrators’ testimony reveals that the appellant would contact the appellee-decedent or the administrators with personal injury cases and these cases would be investigated and results of the investigations would be submitted to the appellant together with a bill. The appellant then paid every bill submitted to him. This course of dealing continued until 1983 when the appellant began to fail to pay some of the bills submitted to him by the appelleedecedent. Thus, the evidence presented by the administrators was sufficient to meet their burden of establishing the existence of an oral contract for investigative services between the parties. Additionally, the evidence established a course of dealings between the parties that proved that the appelleedecedent expected to be paid for his investigative services and was not accepting the investigation assignments on a contingency basis as alleged by the appellant. Finally, the appellant’s own testimony establishes the existence of an oral contract between the parties for investigative services and that these services were provided by the appellee-decedent on all of the disputed bills. However, the trial court found incredible the appellant’s assertion that under this oral contract or as it was called by the appellant, “special working relationship,” appellant’s obligation to pay for investigative services was contingent upon whether he proceeded with the personal injury case that the appellee-decedent had been assigned to investigate. See Summit Fasteners v. Harleysville Nat., 410 Pa.Super. 56, 66, 599 A.2d 203, 208 (1991) (evidence is no less effective in support of a party’s case merely because it came into the case through an adversary rather than through the party.)

Based upon the foregoing, the judgment entered by the Honorable Pamela Pryor Cohen in favor of the administrator of the estate of Eugene F. Boyle in the amount of $23,475.00 is affirmed.

Judgment Affirmed.

CIRILLO, J., files a dissenting opinion.

1 . We note that the appellant's own dilatory behavior during discovery was subsequently the subject of a December 20, 1991 order issued by Judge Maier instructing him to file full and complete answers to the administrators' interrogatories and produce the documents called for in their request for production of documents.

2 . We note that photographic copies of business and public records are admissible evidence pursuant to 42 Pa.C.S.A. § 6109 even if the original records are available.