*1 Id., in 506, 435. As we stated 429 A.2d at at Pa.Super. Edwards: of privacy expectation
An has a reasonable individual stopped by police and a vehicle an automobile when the Fourth meaning officer, a seizure within has occurred. Amendment least there is at situations
[E]xcept
those
that a motorist
suspicion
and reasonable
articulable
registered,
is not
or that an automobile
unlicensed
occupant
is otherwise
the vehicle or an
that either
law,
seizure
violation
subject
stopping
in order to check
detaining
and
the driver
automobile
under the Fourth
unreasonable
the automobile
...
[is]
added,
omitted).
citations
(Emphasis
Amendment.
Farms, Appellants, CLINICS, Joseph EQUINE Deleo. INC. Pennsylvania. Superior Court Argued Sept. 1987. Aug. Filed 1988. *3 Scott, Lauren Philadelphia, for appellants.
George McConchie, Media, J. for appellees. CIRILLO, Before Judge, President and TAMILIA and KELLY, JJ.
CIRILLO, President Judge: This appeal is an from an order of the Court of Common Pleas Delaware County denying a motion to remove Durkin, nonsuit compulsory appellants Edward Durkin, James and Herve Filion to collectively as [referred Durkins”], “the filed individually who suit and as Snow doing, Shoe Farms. so appellants appeal effect grant disallowing trial court’s decision to a motion in limine certain statements to be introduced as evidence at trial.
This
appeal arises out of the death
appellants’ stan-
stallion, Josiah,
died,
dardbred
apparently
who
of anaphy-
shock,
a
receiving
drug
appellee
lactic
after
dose from
DeLeo,
Joseph
Brandywine
D.V.M. Josiah was stabled at
Seeber, D.V.M.,
the care of Kenneth
a
Racetrack under
Clinics,
appellee Equine
shareholder and
Inc.
employee
regimen
was
a
prescribed
administering
Dr. Seeber had
enzyme, kymotrip-
included
drugs
to
horse which
sin,
had to
brand-name
Because Dr. Seeber
Kymar.
21st, he
in
away
August
from the racetrack on
left Josiah
DeLeo,
regimen
care of Dr.
him to
out the
asking
carry
airport
Dr. Seeber received a call at the
prescribed.
DeLeo,
Clinics,
Dr.
also an employee
Equine
from
who
him
informed
that Josiah had died within ten
allegedly
his administering
drugs.
minutes of
brought
damages arising
The Durkins
suit for
from the
of their horse. The matter went to trial on
death
December
trial,
that the
argued
1980. At
horse’s death was
drug
Butazolidin which had
caused
been adminis-
dosage. Equine
tered in twice the recommended
Clinics and
DeLeo,
in the
appellees
Dr.
introduced evidence to
produce
allergic
that Butazolidin could not
reaction
show
in
a
appellees,
a horse. The
returned
verdict for
jury
judge
judgment accordingly.
the trial
entered
A
appealed
panel
then
to this court.
of this
Appellants
court held that the trial court’s failure to instruct
the jury
administering
that Dr. DeLeo’s
Butazolidin in an amount in
dosage
excess of the manufacturer’s
recommended
was
appellees
evidence from which the
could infer that
had
jury
negligent.
been
The case was then remanded for
new
trial. 313
Before the second trial filed a begin, appellees motion in limine to bar admission of a statement made by Dr. Seeber to the Durkins the the death of day following horse, indicating drug their that the horse had died from a overdose, and a statement that Dr. Seeber had made taped in investigator February to an insurance carrier of 1972 employee while he was an and shareholder of Clin- ics. That included Dr. taped statement Seeber’s acknowl- edgment that he had instructed Dr. DeLeo to administer the same that he had administer- drug regimen Josiah been ing, prescribed regimen that the included for lame- Kymar leg, ness the left hind and that the could cause enzyme anaphylactic shock a horse. He also said his statement him in phone DeLeo told call that the horse had died anaphylactic shock after he had admin- immediately drug regimen Kymar. istered the which had included had testified to the taped the contents of statement *5 562 trial,
at the first and the statement was introduced into evidence by appellees.
The motion in limine was granted
argument,
after
and the
matter proceeded to trial. The trial judge entered a compul-
sory nonsuit against appellants; their motion to remove the
nonsuit was denied. They then appealed to this court.
argue
Durkins
on appeal that the trial court erred in
refusing to remove the compulsory nonsuit
because
Seeber’s statements were admissible and therefore appel-
presented
lants had
sufficient
go
evidence to
to the jury.
Appellants
argue
further
that Dr. Seeber’s statements were
admissible because
fall under the
vicarious admission
rule,
exception
the
hearsay
judicial
excep-
rule,
tion to the
hearsay
prior
inconsistent state-
ment
articulated
our
in
recently
supreme court
(1986).
Commonwealth v.
On from nonsuit, record compulsory remove a we must consider the applied the trial court properly to determine whether compulsory standard for of a nonsuit. entry well-established cases, in and the only A nonsuit can be entered clear in of all evidence his plaintiff given must be benefit drawn along all favorable inferences favor with in the must be resolved Any from it. conflict evidence light in the most viewing If a the evidence jury, his favor. determine plaintiff, reasonably could not favorable cause of action have been all the elements of the established, proper. Kuriger Cram then nonsuit (1985). 595, 602, A.2d 1334-35 er, Pa.Super. the trial court determine whether we must In this We inadmissible. question holding the evidence erred for an abuse of the trial court ruling reverse will Investments, Gallagher, Inc. v. discretion. Concorde 49, 56, find Should we excluded, improperly grant- that the evidence was the order *6 ing the nonsuit would have to be reversed.
The Durkins that under the argue supreme recent court decision Commonwealth v. Brady, 510 Pa. (1986), the insurance statement given by permitted
should be into They argue evidence. that the Seeber’s at first trial was to the contradictory statement that he had given insurance some company death, six if months after Josiah’s and that he is called aas trial, at the second his testimony witness will continue to be inconsistent. Brady,
In
the
supreme
jettisoned
court
an entire area of
law, and
evidentiary
attempted to follow commentators
perhaps less
well-experienced
advocacy
trial
than the
justices of the
courts of this
appellate
Commonwealth. The
court held that where a declarant
is a witness at a judicial
cross-examination,
and is
proceeding
available
that de-
clarant’s out of court statements
be admitted
as sub-
stantive evidence for the truth of the matters asserted in
them.
Brady,
In
event,
Brady
any
we find that
is not
applicable in
this case. We note
holding
that the
of the supreme court
“otherwise admissible
reads
prior
inconsistent statements
... may be used as substantive evidence.”
Brady,
ed a statement made police officers that she had been Brady, with that their car had been ditch, wrecked in a and that she and had Brady walked from their car to a plant where Brady had scuffled with then stabbed a security guard. On direct examination she denied that they had entered plant. The Commonwealth then cross-examined using prior witness her inconsistent statement after the court ruled that she awas hostile witness. It was on these facts, facts which the trial court had called “the classic case prior illustrate statement why should be admitted id., substantively,” supreme court declared that prior inconsistent statements could fact be introduced for the truth of the matter asserted. *7 allowing
The benefits of the statement in as substantive trial, here are not so At the evidence clear. first Dr. Seeber testified on examination that he direct told Dr. DeLeo to the horse a give regimen drugs which did not include Kymar, phone that he asked Dr. DeLeo on the what he had horse, and that Dr. given responded DeLeo he had treated the horse as Dr. him. Seeber instructed His state- states, however, ment to the insurance that he company horse, asked Dr. DeLeo to treat the that he told Dr. DeLeo have, phone the horse and that on the Dr. what “immediately DeLeo told him the horse had died after the regimen consisting aziumycin, administration of this fe- The nylbutazone purpose and Karmar [sic].” to introduce the statement into substantive appellants wish himself did or proof evidence is not for of what are They to this case. did not do. He is not a Dr. De- indicate that concerned with the statements which to the Leo, Kymar contrary party, is a administered who point. he has taken to position Dr. DeLeo had administered statement that Dr. Seeber’s is a This blatant not “otherwise admissible.” Kymar is alleged Dr. DeLeo’s fit hearsay; within instance hearsay rule. exception to the under no statements akin to the case Commonwealth here is more situation Baez, (1981) Pa. A.2d 909 than to Common- wealth v. Brady, Baez, supra. Commonwealth attempted to cross-examine the defendant with a statement supposedly his, taken from a friend of one Reinaldo Castillo. Because the statements of Castillo were merely hearsay, adopted Baez, and not the witness whose credibility was impeached, to be permissible were not impeachment Id., evidence. 494 Pa. at case, A.2d at 912. In this Durkins, should Seeber be called he would clearly authenticate his statement. Ostensibly, he is the witness whose being impeached. It is probable also that, unlike the Baez Seeber would be extensively questioned concerning his statement. The substantive evi- dence, however, does any way indicate he what himself did or did not say. His statements not re- DeLeo, dounds but allows into evidence hearsay statements about DeLeo that he himself denied making. Allowing the statement in for substantive evidence would allow evidence he, that DeLeo told him DeLeo, drug. administered the Baez, As the court stated quot- ing eminent Justice Musmanno: “The primary object of a trial in American courts is to bring tribunal, which is on passing dispute involved, those persons who know their own knowl- edge the facts to which If it they testify. were not for non, this absolute sine qua trials could be conducted on paper presence without the single of a flesh and blood *8 witness. But pen-and-ink with such a procedure, there would no be to opportunity check on testimonial defects such as memory, observation, fallacious limited purpose- ful distortions, outright and great fabrication. The en- gine of cross-examination would lie unused while error and perjury would travel untrammeledly to an unreliable judgment. often-tainted Accordingly, nothing more adamantly established in American trial procedure than that no one may testify to what someone else told him. He may only relate what within his own memory brought to him by the couriers his own senses.” (Citation omitted). The question statement here is 566 the
precisely
type
unreliable out-of-court declaration
designed
Indeed,
the
rule was
to
hearsay
exclude.
here,
problems
hearsay
multiplied
associated with
are
presented
extrajudicial
we are
with an
written statement
incorporates an extrajudicial
oral statement.
Id.,
395-396,
567
to
to
prejudicial
Equine Classics
be allowed into the case.
Baez,
(cid:127)A admission is a a judicial by device which trial expedited through elimination of the need for proof certain facts are disputed: not all,
Judicial admissions are not evidence at but are formal case, written, or pleadings oral or a stipulations, or his withdrawing counsel which have the effect of a fact from and dispensing issue with the need for wholly admission, proof judicial of the Thus the unless it fact. withdrawn, should be court allowed to be conclusive whereas evidential admission is conclusive, subject to be or always but contradicted explained. Poulin, Evidence,
Packel & section at Pennsylvania 805.5 (1st 1987) McCormick, p. (quoting ed. Evidence § (3rd 1984) (citations omitted)). ed. also 4 Wigmore, See (Chadbourn 1972). Evidence 1059 at types rev. § facts as contemplated being through admitted judicial are, example, admissions for pleadings, party’s a rules, failure to respond required by the pleading responses to party’s respond requests failure admissions, interrogatories. or a party’s answers Tops Apparel Rothman, Manufacturing Co. v. Pa. *10 see 436, also Packel & 244 supra, (1968); A.2d 438 Poulin, at 805.5 667. The testimony of a party prior a trial or § deposition does not always have force of a judicial fact, admission. commentators are reluctant to label it as such. Some have characterized it as an “informal” admission, judicial (2nd 29 AmJur. 615 1967), at 669 ed. § supra, quasi-admission, or a Wigmore, 1058 at 26. Leon- § Poulin, ard Packel and Anne in their recent treatise on evidence, Pennsylvania state that testimony of a party may sometimes be supra, a judicial Poulin, admission. Packel & 805.1 at 656. The difference important becomes because § a by party facts testified in some may instances be a explained, judicial whereas true not may be contradicted it by party whom is offered. Pack- supra, § Poulin, el & 805.5 at 667. testimony by party
Because the a at a or prior trial does not deposition necessarily procedural pur- serve the pose eliminating proof of the need for of the facts to which it in the same that a fact way stipula- attests admitted a does, only testimony unequivocal tion which is and clear will judicial treated as a admission: plaintiff testimony The rule that a is bound his own party’s limited to situations in which a testimo- “has been or as to stipulation amounts to such a waiver have ny admission, apply force a and has been said to judicial of if is clear and testimony unequivocal a party’s conflicting.” it is inconsistent and not when Walker, Fowler, 294, Jerominski v. Dick & Pa. 93 Terminal Valley see also Greater (1953); A.2d Goodman, Corp. v. 605, 608, 405 Pa. unequivo- clear and
(1962) (where
testimony is not
witness’
treated
confusing,
it will not be
cal,
contradictory
but
See,
Thomas v.
e.g.,
admission).
judicial
as conclusive
Hutchinson, (1971) (deposition
118,
Confessions, concessions or voluntary acknowledgments made a by party existence of certain facts. More party, or regarded, they are statements a accurately interest, with someone him legal identified existence a fact which is relevant the cause of his adversary. 1979) (5th ed. Dictionary (emphasis added).
Black’s Law
third person
The statements
a
be considered
admissions
if
are bound to that
party
of agency,
interest,
having
because
or common
joint
*11
credibility
vouched for their
and
asserted that
impliedly
fact
v.
Zank West
calling
a
by
person
the third
as witness.
Co.,
Penn Power
164, 166-167,
Pa.Super.
82 A.2d
McDermott v.
Hoffman,
(1951).
(1871).
While it is that appellees true did in fact call Dr. trial, as Seeber a witness in the do agree first we with the Durkins that this enables them to introduce his testimo ny or the insurance statement judicial admissions: perilous, indeed,
It would be any party produce and court, examine a witness in if all he might said could afterwards be used in him evidence as an admis- admits, indeed, sion. He by producing him that he is a vice, hac pro credible witness but so far as that case is concerned. He does not admit that everything says he in true either that or other any proceeding. A in may same suit give evidence which his contradicts mistaken____ own or that he witness shows a [I]f party or his counsel in his defence make a of a concession fact his own knowledge, pertinent within which is in plaintiff, another issue with another the record of the first concession, suit as to evidence of the introductory and the concession itself ... are good evidence for the parties new record other plaintiff____ between [A] in be admissible evidence whenever it contains a solemn of such judicial by any parties declaration regard any particular to the fact. this existence But falls far that what is certainly holding short declared witness, a as a is to person, produced third be treated party producing and received as an admission him. McDermott, 52-53. We share the concerns of the above, regardless supreme court outlined find that as a appellees the fact called Dr. witness trial, falls the first his short of what was contem- in developing courts plated by the Commonwealth rule. Mere- judicial admissions effect, witness, person by, as a ly by calling *12 give one not that credibility, person for his does vouching facts, make to or to admissions. to bind one authority a consti testimony given by rule witness a that Accepting the has simply party admission because tutes a judicial accepted face in this flies in the of law called that witness Commonwealth, support it. principles and the witness, on of one’s own based against impeachment rule he for his if called a witness vouched party that a the notion it, discredited. long has been and could not attack credibility Further, party a Poulin, at 406-407. 607.3 See Packel & § witnesses, his offered the evidence bound 278, Wapner, Pa.Super. 244 Stack it. contradict may Co., Yellow Cab (1976); A.2d 296 Fetterolf v. 463, 471, must We also note the statutory requirement that the introduction of former testimony only permitted under the rule hearsay upon showing a of the witness’ unavailability. See Any Pa.C.S. application wholesale of the gener- § 5934. al that a an rule witness make for admission the party who has called him and thereby has vouched for his credibil- ity could only principles eviscerate the of law which have given tenets, rise to these well-established and would emas- culate them. hold, therefore,
We in that calling Dr. as a enough Seeber witness was not to transform him into a person able to make admission that DeLeo gave died, to Kymar the horse on the day horse particulary on a situation which Dr. Seeber was to unable make this admission based any principle community on of interest or agency relationship.
Further, testimony far question falls short of the accepted judicial Again, definition a admission. a judicial necessity proving removes facts because has, effect, stipulated to them. Dr. Seeber’s testimony attempt explain was an to earlier remarks made in the insurance statement. A reading of transcript his it testimony makes clear that testifing Seeber was not to statement, facts in that specifically to whether not Dr. told horse, DeLeo him he had administered Kymar but rather he attempting was to its explain inaccuracies. his During testimony, Dr. attempted to that explain he had made concerning mistakes types amounts and drugs to administered Josiah in his to statements the insur- ance company, and these mistakes had be- occurred cause he did not have with him the records of what he had given he Josiah when made the He in statement. way no testified unequivocally that Kymar given the horse on it day died, or that Dr. DeLeo told him that he had done so. portion
In the appellants attempt introduce, Dr. Seeber testified that Josiah *13 onwas a regimen including Kymar, that he had to leave the racetrack on the died, the horse
day requested that he Dr. DeLeo to adminis- regimen ter the prescribed, and that Dr. DeLeo had done so. in his testimony Nowhere did Dr. Seeber state that Dr. DeLeo told him he Kymar administered to the horse. fact, Dr. Seeber testified that the horse had not had Kymar during seventy-two hours preceding its death. No- in the offered testimony, portion where other than in the the insurance statement the Durkins to attempted introduce, any is there reference to Dr. DeLeo might what said to Dr. their during telephone have Seeber conversation on the the horse died. such day testimony How is now to an admission that Dr. DeLeo did in fact incontrovertable give Kymar escapes Josiah this court. The as it seen the facts in that insur- given was cannot be to assert incontrovertably ance statement as admissions and conclu- sively appellees2. admissible given next that the statements argue Durkins Dr. were admissible into company by insurance Seeber party. of a contend They vicarious admissions evidence agent Equine an Clinics at time Seeber was Dr. and that company, he made the statement to insurance Although so. we are aware of he authorized to do was admission of the vicarious interpretation narrow 23, 31, Murray Siegal, see Commonwealth, 413 Pa. this Makransky, Yubas v. (1963), (1930), agree that Dr. Seeber was 511,150 A. we he spoke at the time with Classics agent that sufficient evi- and company investigator, insurance adduced principal for his was authority speak to dence of into however, not insure the admission This, does case. the insurance While statements. Seeber’s evidence the state- exception, fits into a itself statement he had DeLeo told him that Dr. ments do not slide hearsay, are also Kymar administered explain statement his was allowed Dr. Seeber also note that 2. We sense for would make no trial. It company at the first the insurance judicial statement was that insurance to hold that us therefore, explained at the second be contradicted could neither trial, permitted at the first one. contradiction when that *14 into evidence under an easily exception hearsay rule.
The Durkins
attempted
side-step
problem
have
to
of the
statements of Dr.
by arguing
DeLeo
that
they may come into evidence as
admissions.
This
does
problem.
question
not solve the
We
whether
insurance statement can be admissible against Dr. DeLeo.
Clearly, although
Seeber can be said to
an
of
agent
Classics,
there is no evidence in
indicating
the case
that he
in fact an agent
Again,
was
Dr. DeLeo.
of
strict construction of the vicarious
in
requires
this Commonwealth
that for a statement
to be
admissible,
offering
party must show that the declarant
agent
was an
the party against whom the admission
he
offered,
was
and that
had the authority
speak
to
for that
Yubas,
511,
party.
at
In DeFrancesco,
question
court considered the
whether statements made by
persons
various
at the scene
a fire
were
properly admissible into evidence
an
attempt
to determine
responsible
who was
for an inade-
quate
supply.
water
Two statements were
involved
case, one
person
made
an unidentified
to the fire chief at
fire,
the scene of the
appellees,
and one made to one of the
allegedly by
employee
the Water
The fire
Company.
chief
person approached
testified that a
him and identified
himself as an
of the
employee
Company.
alleg-
Water
He
edly told the fire chief that the mains were four inches as
opposed
eight
inches,
or twelve
and that the water had
turned
been
down because the line
being repaired.
fire chief testified
he
had called the fire alarm operator
requested
that someone
get
touch with the appellant,
and that he assumed that
person
approached
who
him
response
had come in
operator’s
call. The chief
uniform,
testified that the man had
papers
no
and that he
get
did not see him
out of any of the Water Company’s
DeFrancesco,
trucks.
The trial court also permitted the one of the appellees, who stated that an “old Italian ap- fellow” proached him at the scene and said “I guess you think I played a dirty trick on you. We weren’t allowed to work Id. The appellee testified that he had seen this overtime.” person in the Water Company’s truck that morning, had seen him in before, the truck and had talked with him and Id. sold him tires.
On appeal, an en banc panel of this court reversed the *15 trial court’s decision to allow testimony into evidence. Holding the testimony offered was hearsay, we noted that the admission of that evidence would not be improper if it fit Id. Considering the into any hearsay exception. nature of the vicarious rule, concluded, we how- ever, the testimony had been improperly admitted. if the requirement of agency proven, was “[E]ven there is no indication that either of the declarants had authority to Id., make his declaration.” 518, 329 Pa.Superior Ct. at 478 A.2d at 1300. See also Eerie, Watkins v. Sharon No. 327 Fraternal Order Eagles, 396, 401, 742, 223 A.2d (1966) (woman 745 who had fallen outside lodge could not prove governor, or officer secretary, lodge were persons promised who to take problem, care of or that persons those Mackleer, Adams v. had authority lodge); to bind (1976) (appellant-moth- er’s note to owner of bike that lamp did not work and brakes failed was not appellant-son; admission of mother agent). was son’s
Similarly, we can find no evidence of in the agency Dr. relationship between Seeber and Dr. DeLeo. Dr. See ber was a shareholder as well as an employee Classics; Dr. Dr. merely co-employee. DeLeo was Seeber’s Further, there no that Dr. autho evidence Seeber was rized to for Dr. DeLeo. It is clear from the cases speak required discussed above that the amount of evidence formidable, authority show this Commonwealth is here, cannot be met if Dr. were to take possibly even Seeber DeLeo; the stand. Dr. was not Dr. employed by again, Dr. DeLeo employee corporation. I hold that if the would insurance statement were to be Classics, against Equine offered into evidence it could not considered against be DeLeo. Accord Mahlandt v. Center, (8th Cir.1978). F.2d Wild Canid Research Once the insurance inadmissibility statement against Dr. DeLeo is the error in the grasped, arguments of appellants Although obvious. the insurance becomes statement itself hearsay excep- be offered within an Classics, tion against Equine that document contains hear- statements that Dr. DeLeo say allegedly made which must exception also fit within an to the rule in order hearsay accepted into evidence. The Durkins would have us label those statements as admissions party because Dr. action, DeLeo is a to this allow them into evidence exception under that rule. This is not a wise course of action. It must be remembered that the overall statement made to the company insurance cannot be con- sidered as evidence DeLeo because it fits no agent. as to him. Dr. Seeber is not his is it How possible to admit allegedly into evidence statements made *16 by Dr. DeLeo that are contained within a statement which is against not admissible him? the problems Consider confusion and prejudice that admission of such evidence would entail. The jury upon would be called to hear evi- dence DeLeo’s statements and consider them against the company. They cannot hold those clearly state- against ments by DeLeo since the vehicle which they are introduced is not admissible him.
Further, it that if Dr. follows Seeber testified to Dr. stand, DeLeo’s statements on the would not be admis- against Equine sible They Classics. would be admissible as admissions not as by party, but admissions made by that is, particular party, that A limiting Classics. in- here, struction above, the situation outlined would be quite useless. How is the jury to segregate this informa- tion?
To fully understand the implications situation, of the we would do well to consider the hearsay rule and the excep- tions which confront us—the party admission exception, and the vicarious admission exception. The most frequently cited reason for admitting the party admission into evidence is that it is a natural outgrowth of the adversary system: is too obvious for comment
[I]t the party whose declarations are offered against him inis no position to object on the score of lack of confrontation or of lack of opportunity cross-examination. It seems quite as clear ought that he not be heard to complain that he was not under oath.
Morgan, Admissions as an Exception to the Hearsay Rule, 30 Yale (1921). L.J. At least one commenta- tor argued has that this rationale is no longer viable in a modern adversarial setting: presuppose[s] an adversary system that prefers to
[This] (or, least, award victory best the most consist- ent) person, rather than the person with best times, cause---- modern adversarial presentation is thought (1) desirable because: it facilitates the truth-find- ing function of if the trial proof presented found and interest; (2) those with self the moral acceptability of the ultimate judgment is enhanced by allowing partic- ipation by antagonists psychologically op- committed to posing views. Admissions, Parties’
Bein, Agents’ Admissions: Hearsay Sheep’s Wolves in 12 Hofstra Clothing, L.Rev. argues allowing Bein admissions does not function, facilitate necessarily truth-finding because the of the fact finder is not aided such job miraculously important play statements. most role that admissions Bein, according enabling in the the fact finder system, are committed to parties emotionally to determine which *17 decisions in cases to Awarding only their cases. favorable those committed to their causes can have a truly only 421. Id. at resources. impact upon judicial positive cause, is, he his own party does believe “Where wrong purpose. for the using system definition door, he could him at the identifying there a means of Were ignore cannot afford to away. turned But we rightly be the thresh- past because he is deception simply of his proof old.” Id. 422. to take if Dr. Seeber were
According analysis, to Bein’s Dr. DeLeo made certain testify stand and the witness Josiah, administered to drugs to him about the statements action, party in a case where DeLeo was hearsay under normal statements would be admissible those Bein’s analysis, admissions. Under analysis DeLeo’s emotional commit- an indication of Dr. would be to the jury. to his and so would be valuable ment however, considered, vicariously made as statements When fails, indeed Classics, as Bein Equine analysis supra Bein, at 431-38. Dr. DeLeo’s state- it to. expects of the level of commitment give ments cannot indication any argu- This is one of the Classics has for its case. vicarious admissions ments Bein makes broader Federal Rules of Evidence. See exception espoused by 801(d)(2). commentators Rule of Evidence Other Federal argue concerns. that statements They have similar probative or necessarily trustworthy are not employees could employee case. an employer’s Obviously actual lie, mistaken, things like to talk merely loosely See, Vica- Falknor, e.g., nothing. he about which knows Rules, 14 Vand.L.Rev. Admissions and the rious Uniform the Agency Comment, Elimination (1961); Exception, Admissions 54 Wash. Fiction in the Vicarious L.Rev. Commonwealth, logic and fairness problems proceed excep- from the broad vicarious admissions our up point by
tions have been avoided to this refusal rules. accept of the federal As broad above, discussed the courts of this Commonwealth require stringent proof agency authority of both and of
speak before vicarious admissions can accepted be into evidence. Under the in Commonwealth, law this Dr. DeLeo is not a speaking agent of Equine Classics. For that reason, his alleged statements cannot be allowed into evi- dence against Equine Classics the under vicarious admis- sions exception, regardless of whether the attempt is made to introduce them through testimony from the witness stand or through an insurance statement of which are part. a Were we to his allow statements party admis- sions because he is a party Equine and hold Classics liable them, for it would of no persuasive be value. What can Dr. DeLeo’s statement tell us Equine about Classics’ commit- ment to its case? Nothing. They merely are the state- ments of employee speak not authorized to compa- a To ny. allow such by co-party statements a into evidence as against admissions to be used company the is at best illogical, worst, unjust.
Were Equine case, Classics the party involved there argument could be no for admission here. Were Dr. DeLeo the only party the there argu- could no ment for admission of the insurance transcript containing statements, argument the and so no for the admission of through the statements that channel. We should not allow joining parties the in this situation to lead to scenario in which the evidence which against is inadmissible separately against together. each becomes admissible both find the connections between the insurance statement We only against Equine that admissible Classics and De- only against that are Dr. party admissions admissible admissibility in too general, Leo to be too tenuous for their admissibility promote justice. tenuous for limited committed no Because we find that the trial court abuse refusing to admit into evidence testimo- of discretion Seeber, statement made Dr. we also of and insurance ny refusing not err in to remove trial court did find that the compulsory nonsuit. Affirmed. J.,
KELLY,
and dissents.
concurs
concurring
dissenting:
KELLY, Judge,
Dr.
conclusion that
Seeber’s
majority’s
I
agree with
defendant,
insurance
Clinics’
recorded statement
Kymar,
had administered
DeLeo
company, stating
I dis-
DeLeo.
into evidence
admissible
however,
conclusion
majority’s
with
agree,
I
against Equine Clinics.
not admissible
statement was
evidence was
find that
sufficient
circumstantial
would
*19
authorized
agent
was an
to show that
Seeber
presented
I
statement.
gave
when he
the recorded
Equine Clinics
in excluding
court erred
find that the trial
therefore
would
recorded statement.
Seeber’s
admitted,
defendants/appellees
alleged, and
Appellants
insurance
Equine’s
from
carrier
representative
its
part
from Seeber as
obtained the recorded statement
a
loss.
order for
loss to
investigation
reported
into
covered,
it to
required
cooper-
insurance
Equine’s
policy
be
losses;
coopera-
investigation
reported
ate with the
providing
included
the carrier with evidence
specifically
tion
Although
loss.
there is no
regarding
and witnesses
direct evidence
requested
to make
Equine,
appellants
on
I would find that
statement
behalf
provided ample circumstantial
evidence to show that See-
part
Equine’s duty
the statement as
under
gave
ber
investiga-
cooperate
insurance contract to
with the carrier’s
loss. This circumstantial
tion into the circumstances of the
his
authority
showed that Seeber acted within
evidence
recorded
I would therefore conclude
giving the
statement.
insurance carrier
that Dr. Seeber’s statement
to the
would
as to
under
the vicarious
be admissible
Clinics
Binder,
See
rule.
Hear-
(2nd
1983); McCormick,
say Handbook
28.04
ed.
Evidence
§
DeFrancesco v.
(3rd
1984);
Pennsylva-
Western
ed.
§
nia
focuses on prejudice to Dr. DeLeo if the statement admitted, is misplaced. The established if remedy such prejudice could be shown would the trial judge to order a bifurcation; in that way any prejudice to Dr. DeLeo would be avoided.
Accordingly, I would reverse the granting order the com- pulsory non-suit and remand case for trial.
Superior of Pennsylvania. Court
Argued April 1988. Filed Aug. 1988.