J-A11021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN C. MALEY, ANNELIESE MALEY 

& JOHN J. MALEY 

Appellants

v.

SHELL WESTERN EXPLORATION AND 

PRODUCTION, LP (SWEPI, LP); EAST 

RESOURCES, INC., AND GRADY 

AUSTIN

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 874 MDA 2017

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.
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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. Pretrial 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.
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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).
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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.
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(“[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.
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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). 
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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).
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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 
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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. 
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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.

10 We 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).
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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).
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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 
J-A11021-18

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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”).
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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 
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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).
J-A11021-18

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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).

____________________________________________

13 Pennsylvania 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.
J-A11021-18

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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 

____________________________________________

14 There was a brief discussion as to whether the Shell document is a first or 

subsequent-generation copy, i.e., a copy of a copy. 

15 Because we conclude the Shell document was not hearsay, we need not 

address the Maleys’ contention of error under Pa.R.E. 902(11).
J-A11021-18

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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.
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(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.
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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 

____________________________________________

17 Pennsylvania 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).
J-A11021-18

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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 
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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).
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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). 
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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 bleedthrough 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.
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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:
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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.
J-A11021-18

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[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, 
J-A11021-18

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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 
J-A11021-18

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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 
J-A11021-18

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

testimony, Detwiler used a demonstrative exhibit and testified about “bleedthrough”, 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 courtordered 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.
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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.
J-A11021-18

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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).

24 This subdivision pertains to privileged communications not pertinent here. 

See Pa.R.C.P. 4003.5(a)(4).
J-A11021-18

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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).

26 As 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.
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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 
J-A11021-18

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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 
J-A11021-18

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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, 
J-A11021-18

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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 
J-A11021-18

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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 
J-A11021-18

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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. 
J-A11021-18

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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.

____________________________________________

27 We 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.
J-A11021-18

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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 
J-A11021-18

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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. 
J-A11021-18

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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 
J-A11021-18

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[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.
J-A11021-18

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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.
J-A11021-18

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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. 
J-A11021-18

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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 
J-A11021-18

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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 
J-A11021-18

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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.
J-A11021-18

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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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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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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.