J-A31034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARGLE LAW OFFICES, P.C.

 

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

WALTER GARRETT,

 Appellant No. 1327 EDA 2016

Appeal from the Judgment Dated April 4, 2016

in the Court of Common Pleas of Northampton County Civil Division

at No(s): C-48-CV-2014-8610

BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*

MEMORANDUM BY FITZGERALD, J.: Filed January 13, 2017

Appellant, Walter Garrett, appeals from the judgment entered in the 

Court of Common Pleas of Northampton County in favor of Appellee, Margle 

Law Offices, P.C., for $28,300.00 on Appellee’s claim for breach of contract. 

Appellant argues that the trial court abused its discretion in excluding 

multiple receipts that allegedly proved he paid Appellee in full and in 

instructing the jury to disregard the receipts. We conclude that the court 

properly excluded these receipts as inadmissible hearsay. Furthermore, 

Appellant waived his objection to the court’s jury instruction relating to the 

exclusion of the receipts by failing to object before the jury retired to 

deliberate. Accordingly, we affirm.

 

*

Former Justice specially assigned to the Superior Court.
J-A31034-16

- 2 -

Appellee filed an action against Appellant for breach of contract and 

unjust enrichment alleging that Appellant failed to pay $58,608.73 in legal 

fees. Appellant filed an answer claiming that he paid Appellee in full. 

The case proceeded to a compulsory arbitration hearing in which 

Appellant presented no evidence. The arbitration panel ruled in favor of 

Appellee in the amount of $42,000.00, and Appellant timely appealed the 

arbitration award to the trial court. 

Two months before trial, the parties submitted pre-trial statements in 

accordance with Northampton County Local Rule N212B(5). As one of his 

witnesses, Appellant listed Jenny Barret, a former employee of Appellee. 

The parties did not exchange discovery requests prior to trial. 

Appellant did not produce any documents until the afternoon before trial, 

when he served Appellee with copies of numerous receipts that purported to 

demonstrate that he paid $47,500.00 to Appellee in 2009 and early 2010. 

Appellant had not listed the receipts as exhibits on his pre-trial statement. 

At the beginning of the one-day trial, Appellant’s counsel produced 

sixteen originals of the receipts and grouped them together as Exhibit D-1. 

Counsel contended that Barret signed the receipts in the course of her 

employment as a receptionist for Appellee. The court permitted Appellant to 

submit the receipts into evidence based on counsel’s representation that 

Barret “was going to [come] in [as a witness] and would be available for 

questioning.” N.T., 1/19/16, at 202-03. 
J-A31034-16

- 3 -

During Appellee’s case in chief, Appellee’s sole shareholder, Stanley 

Margle III, testified that his office did not generate the receipts. Id. at 146. 

Margle suggested that the receipts were fabricated, because they “were 

supposed to be six years old” but actually looked “brand new.” Id. 

Appellant’s counsel cross-examined Appellee’s office manager, 

Rebecca Neith, with the receipts. Neith admitted that one receipt for 

$3,500.00 was authentic because she found a carbon copy of this receipt in 

Appellee’s records. Id. at 155-62. She emphasized, however, that she 

never saw the other receipts and could not find them in Appellee’s billing 

records. Id. Nor did she recognize the signature on the other receipts. Id. 

She noted that she fired Barret in 2009 or 2010. Id.

Appellant testified in his defense and insisted that he made the 

payments indicated on the receipts. He claimed that the receipts were 

authentic because he watched office employees fill them out and did not 

create them himself. Id. at 181-83.

Appellant rested his defense without calling Barret as a witness. The 

trial court asked Appellant when he had last seen Barret, and Appellant 

answered that he could not remember their last meeting, but that he might 

have “bumped into” her years ago at the Allentown Fair. Id. at 194. 

Appellant’s counsel admitted that he did not subpoena Barret. Id. at 197. 

Counsel stated that either his secretary or Appellant spoke with Barret one 

week before trial, and Barret advised that she had just suffered a heart 
J-A31034-16

- 4 -

attack.1 Id. at 200. On the day of trial, Barret texted Appellant’s counsel’s 

secretary that she was at the hospital for a test. Id. at 199-200. Counsel’s 

secretary texted back a request that Barret contact her after her test, but 

the record does not indicate that Barret ever responded. Id.

Due to Appellant’s failure to present Barret’s testimony, the court 

excluded all receipts in Exhibit D-1 from evidence except for the $3,500.00 

receipt that the office manager admitted was in Appellee’s records. Id. at 

222-24. The court instructed the jury that it could not consider the stricken 

exhibits due to Barret’s failure to testify and subject herself to crossexamination. Id. 

The jury returned a verdict in favor of Appellee for breach of contract 

in the amount of $28,300.00. On January 29, 2016, Appellant filed timely 

post-verdict motions challenging the exclusion of the receipts. On February 

18, 2016, Appellant filed a premature appeal that this Court quashed as 

interlocutory on March 28, 2016. 

In an opinion and order on April 4, 2016, the court denied Appellant’s 

post-verdict motions and entered judgment against Appellant for 

$28,300.00. The court entered judgment in favor of Appellant and against 

 

1 Barrett was only in her late thirties at the time of her heart attack. Id. at 

200.
J-A31034-16

- 5 -

Appellee on the unjust enrichment claim.2 The April 4, 2016 order 

constitutes a final order because it disposes of all claims and all parties. 

Pa.R.A.P. 341(b)(1).

On May 2, 2016, Appellant timely appealed. Both Appellant and the 

trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues in this appeal, which we have reordered for the sake of disposition:

1. WHETHER IT WAS PROPER TO COMPLETELY EXCLUDE FROM 

EVIDENCE AND JURY CONSIDERATION IN ANY FORM, 

INCLUDING ALL TESTIMONY RELATED THERETO, THE FIFTEEN 

(15) RECEIPTS PROFFERED BY THE DEFENDANT.

2. WHETHER NORTHAMPTON COUNTY LOCAL RULE N212B(5) 

REQUIRED THE EXTREME AND OVERBROAD SANCTION AGAINST 

THE DEFENDANT OF EXCLUDING FIFTEEN (15) RECEIPTS FROM 

EVIDENCE.

3. WHETHER A CURATIVE INSTRUCTION SHOULD HAVE BEEN 

RENDERED REGARDING THE EXCLUSION OF FIFTEEN (15) 

RECEIPTS AS WELL AS THE TESTIMONY RELATED THERETO AT 

TRIAL.

 

2 The trial court did not rule on Appellee’s equitable claim of unjust 

enrichment. On February 9, 2016, Appellee filed timely post-verdict motions 

objecting to the court’s failure to decide its unjust enrichment claim. 

Despite acknowledging its failure to decide the unjust enrichment claim, the 

court reasoned that the verdict in favor of Appellee on the breach of contract 

claim precluded recovery for unjust enrichment. Trial Ct. Op., 4/4/16, at 10 

(Appellee’s claims for breach of contract and unjust enrichment “are 

mutually exclusive ... recovery for unjust enrichment is predicated upon the 

absence of a contract ... we may not award [Appellee] damages for unjust 

enrichment where a jury has found that a contract existed and award[ed] 

[Appellee] damages for breach of said contract”). Appellee did not appeal 

this decision. 
J-A31034-16

- 6 -

4. WHETHER NORTHAMPTON COUNTY LOCAL RULE N212B(5) 

REQUIRED AN ADDITIONAL SANCTION VIA JURY INSTRUCTION 

WHICH ORDERED THE JURY TO DISREGARD COMPLETELY ANY 

EVIDENTIARY OR TESTIMONIAL REFERENCE TO THE (15) 

RECEIPTS. 

5. WHETHER APPELLANT WAIVED HIS RIGHT TO SEEK POST–

TRIAL RELIEF FOR FAILING TO PRESERVE GROUNDS FOR 

APPEAL PURSUANT TO PA R.C.P 227.1.

Appellant’s Brief, at 4. 

We review the first two issues together, because they boil down to the 

same issue: whether the trial court properly excluded the fifteen receipts 

from evidence. The trial court based its decision to exclude the receipts on 

Northampton County Local Rule N212B(5), which authorizes the court to 

impose “such penalty or sanction as the court may in its discretion impose” 

when a party fails to call a listed witness without seven days’ advance notice 

to the opposing party. We agree with this ruling for a different reason: the 

receipts are inadmissible hearsay. See In re Estate of Strahsmeier, 54 

A.3d 359, 364 n. 17 (Pa. Super. 2012) (Superior Court may affirm for any 

reason and is not constrained to affirm on grounds relied upon by trial 

court).

We examine evidentiary rulings for abuse of discretion. Zieber v. 

Bogert, 773 A.2d 758, 760 n. 3 (Pa. 2001). A ruling on evidence does not 

constitute reversible error unless it is harmful or prejudicial to the 

complaining party. Yenchi v. Ameriprise Financial, Inc., 123 A.3d 1071, 

1082 (Pa. Super. 2015).
J-A31034-16

- 7 -

Hearsay is “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(c). A 

document itself qualifies as hearsay when it contains such hearsay 

statements. Rissi v. Cappella, 918 A.2d 131, 138–39 (Pa. Super. 2007). 

Anything qualifying as hearsay is inadmissible as evidence unless an 

exception applies. Pa.R.E. 802.

The business records exception in Pa.R.E. 803 provides in pertinent 

part:

Rule 803. Exception to the Rule Against Hearsay 

Regardless of Whether the Declarant is Available as 

a Witness

* * *

(6) Records of a Regularly Conducted Activity. A 

record (which includes a memorandum, report, or data 

compilation in any form) of an act, event or condition if,

(A) the record was made at or near the time by—or from 

information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly 

conducted activity of a ‘business’, which term includes 

business, institution, association, profession, occupation, 

and calling of every kind, whether or not conducted for 

profit;

(C) making the record was a regular practice of that 

activity;

(D) all these conditions are shown by the testimony of the 

custodian or another qualified witness, or by a certification 

that complies with Rule 902(11) or (12) or with a statute 

permitting certification; and
J-A31034-16

- 8 -

(E) neither the source of information nor other 

circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6). While a qualified witness need not have personal 

knowledge, the individual must be able to “provide sufficient information 

relating to the preparation and maintenance of the records to justify a 

presumption of trustworthiness . . .” Boyle v. Steiman, 631 A.2d 1025, 

1032 (Pa. Super. 1993). 

“[Rule 803(6)(D)’s] requirement that a custodian or other qualified 

witness testify to establish that the requirements of the rule have been met 

establishes [one] technique for authenticating the record” under Rule 

803(6). 1 West’s Pa. Prac., Evidence § 803(6)-1 (4th ed.). Failure to 

authenticate a record in accordance with this subsection renders the record 

inadmissible. Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d 

492, 499 (Pa. Super. 2011). 

Furthermore, under Rule 803(6)(E), the court may exclude an 

otherwise qualified memorandum, report, record, or data compilation if “the 

sources of information or other circumstances indicate lack of 

trustworthiness.” The court may exclude a record as untrustworthy where 

there was motive or opportunity to prepare an inaccurate record. See 

Commonwealth v. Zimmerman, 571 A.2d 1062, 1068-69 (Pa. Super. 

1990) (defendant attempted to introduce alibi evidence of job order ticket 

notations regarding deliveries to show he made specific telephone calls or 
J-A31034-16

- 9 -

was actually in locations stated in notations; court properly excluded this 

evidence as untrustworthy, because authenticating witness was not same 

person who received telephone calls in question, so that reliability of 

telephone call recipient’s identification of defendant as caller was not 

established, and defendant had opportunity and possible motive to cause 

entries to be made on tickets that did not accurately reflect his actual 

whereabouts).

This Court’s decision in Commonwealth Financial Systems is also 

instructive. There, the appellant, Commonwealth Financial Systems 

(“Commonwealth”), allegedly purchased the appellee’s debt to Citibank from 

NCOP Capital. Commonwealth Financial Systems, 15 A.3d at 494. To 

verify the transfer of debt ownership, Commonwealth attempted to admit 

records of business transactions between Citibank and NCOP Capital, both 

separate entities from Commonwealth, through the testimony of 

Commonwealth’s own vice president of portfolio collection. Id. The trial 

court denied admission on the ground that the documents were improperly 

authenticated under Pa.R.E. 803(6). Id. at 494-95. This Court affirmed, 

holding that vice president of portfolio collection did not have sufficient 

knowledge of the records and could not establish the documents’ 

trustworthiness. Id. at 499–500.

In this case, as in Commonwealth Financial Systems, the receipts 

were inadmissible under Pa.R.E. 803(6)(D) due to their lack of 
J-A31034-16

- 10 -

authentication by a “custodian or another qualified witness.” Margle, 

Appellee’s sole shareholder, and Neith, the office manager, declined to admit 

that the receipts were authentic. Indeed, Margle suggested that they were 

fabricated. Barret did not testify and therefore did not authenticate the 

receipts. While Appellant claimed that the receipts were authentic, he was 

not an employee of Appellee. Like the witness in Commonwealth 

Financial Systems, Appellant had no knowledge of the preparation and 

maintenance of these records. 

Furthermore, the receipts were inadmissible under Rule 803(6)(E) due 

to their lack of trustworthiness. Appellant’s uncorroborated claim of 

authenticity was self-serving testimony designed to eliminate his debt to 

Appellee. Moreover, as Margle testified, the receipts appeared to be phony 

because they looked brand new even though they were supposed to be six 

years old. Further undermining confidence in the receipts’ authenticity was 

counsel’s failure to subpoena Barret and Barret’s failure to appear for trial. 

In short, as in Zimmerman, the receipts were untrustworthy because 

Appellant had the motive and the opportunity to create inaccurate records. 

For these reasons, the trial court properly exercised its discretion by 

excluding the receipts from evidence due to Appellant’s failure to satisfy the 

authentication and trustworthiness requisites within Pa.R.E. 803(6)(D) and 

(E).
J-A31034-16

- 11 -

We review Appellant’s third and fourth issues together, because they 

concern the same issue: whether the trial court properly instructed the jury 

to disregard the receipts. The trial court held that Appellant waived this

argument by failing to raise a timely objection during trial. We agree. 

A party must object to jury instructions before the jury retires to 

deliberate, unless the trial court specifically allows otherwise. Passarello v. 

Grumbine, 87 A.3d 285, 292 (Pa. 2014). If a party fails to raise a specific 

objection to a jury instruction, he waives the objection and cannot raise it in 

a subsequent appeal. Cruz v. Northeastern Hospital, 801 A.2d 602, 610-

11 (Pa. Super. 2002). We will not consider a claim on appeal which a party 

did not call to the trial court’s attention at a time when the court could have 

corrected any error. Keffer v. Bob Nolan’s Auto Service, Inc., 59 A.3d 

621, 645 (Pa. Super. 2012). “[O]ne must object to errors, improprieties or 

irregularities at the earliest possible stage of the adjudicatory process to 

afford the jurist hearing the case the first occasion to remedy the wrong and 

possibly avoid an unnecessary appeal to complain of the matter.” Id. 

(citation omitted).

After the trial court instructed the jury to disregard the receipts, and 

immediately before the jury retired to deliberate, the court inquired whether 

counsel had any objections, corrections or additions. Appellant’s counsel 

answered: 
J-A31034-16

- 12 -

No. I would just add, when your Honor had explained your 

Honor’s ruling, and I understand why you explained it, 

it was pretty tough but you had to explain it that 

way, if you could just give them an instruction that when 

you were explaining your ruling that you were in no way 

giving way to either side --

N.T. at 249 (emphasis added). Through this response, Appellant’s counsel 

conceded that the instruction was proper, thus waiving his right to object to 

the instruction on appeal. See Cruz, 801 A.2d at 610-11.

Even if Appellant had preserved these issues for appeal, we have held 

above that the trial court’s decision to exclude the receipts from evidence 

was proper. Consequently, its directive for the jury to disregard the receipts 

was proper as well.

Appellant’s final argument is that he preserved all issues by raising 

them in his post-verdict motions. This issue is moot in view of our decisions 

above that the court properly excluded the receipts from evidence, and that 

Appellant waived his objection to the court’s instruction relating to the 

receipts by failing to object before jury deliberations. 

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/13/2017