In Re: Order Amending Rules 803(6), 803(8) and 803(10) Approving the Revision of the Comments to Rules 802, 803(7) and 803(9), and Adopting New Rule 902(13) of the Pennsylvania Rules of Evidence, 715 Supreme Court Rules Docket

Background

Pennsylvania Rule of Evidence 802 establishes hearsay is inadmissible except as provided by the Rules, other rules prescribed by the Pennsylvania Supreme Court, or by statute.
Pennsylvania organizes hearsay exceptions differently from the Federal Rules; primary exceptions appear in Pa.R.E. 803, 803.1, and 804.
Pa.R.E. 803(6) (business records) allows records of acts/events/conditions made near the time by someone with knowledge, kept in a regular activity, made by regular practice, authenticated by custodian or certification, and not undermined by untrustworthiness. It excludes opinions/diagnoses.
Pennsylvania declined to adopt several federal exceptions (F.R.E. 803(7), 803(8), 803(9), 803(10) in their federal forms), instead relying on statutes (notably 42 Pa.C.S. § 6104 and § 5328) and existing rules to cover public records, vital statistics, and certificates of non-existence.
Pa.R.E. 902(13) provides self-authentication for certificates of non-existence of a public record, reflecting statutory mechanisms for proving lack of a public record.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of Pa.R.E. 802 — hearsay admissibility sources	Hearsay admissible only when covered by Pa.R.E., other Supreme Court rules, or statute	Broader admission would undermine rule	Court: Limits admissibility to Pa.R.E., other Court-prescribed rules, or statutes; cites differences from federal rule text and coverage
Business-records exception (Pa.R.E. 803(6)) — contents and limits	Proponent: Business records admissible if made near time, by knowledgeable person, regularly kept, and properly authenticated	Opponent: May challenge trustworthiness or contend opinions/diagnoses excluded	Court: Admits records meeting (A)-(E); excludes opinions/diagnoses; allows exclusion if source or circumstances indicate lack of trustworthiness; constitutional confrontation concerns for criminal defendants (Melendez-Diaz) apply
Absence of entry in a business record (F.R.E. 803(7)) — adopt or reject	Proponent: Absence should be an exception because it proves nonoccurrence when records would normally show it	Opponent: Absence is not hearsay and should be evaluated under relevance	Court: Rejected F.R.E. 803(7); treats absence as non-hearsay circumstantial evidence governed by relevance (Pa.R.E. 401 et seq.)
Public records exception (F.R.E. 803(8)) — adoption and scope	Proponent: Adopt federal public-records exception	Opponent: Use state statute (42 Pa.C.S. § 6104) and existing rules rather than adopting F.R.E. 803(8) text	Court: Did not adopt F.R.E. 803(8); relies on 42 Pa.C.S. § 6104 and authentication rules; limits to facts (not opinions/diagnoses)
Certificate of non-existence / proof of no public record (Pa.R.E. 803(10) / 902(13))	Proponent: Allow certified statements of non-existence, self-authenticating	Opponent: Concern about confrontation rights in criminal cases without testimony	Court: Did not adopt federal 803(10) verbatim but provided mechanisms via statutes and Pa.R.E. 902(13); preserves confrontation considerations and Pa.R.Crim.P. procedures (e.g., defendant’s rights to demand testimony)

Key Cases Cited

Williams v. McClain, 520 A.2d 1374 (Pa. 1987) (supports exclusion of opinions/diagnoses from business-records exception)
Commonwealth v. DiGiacomo, 345 A.2d 605 (Pa. 1975) (historical Pennsylvania treatment of business records and hearsay exceptions)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (confrontation-clause concerns when admitting forensic reports without testimony)
Klein v. F.W. Woolworth Co., 163 A. 532 (Pa. 1932) (absence of entry in records admissible to prove nonexistence where records regularly kept)
Stack v. Wapner, 368 A.2d 292 (Pa. Super. 1976) (absence of record treated as circumstantial, relevant evidence rather than hearsay)