Boyle v. Steiman

• Decision Date: 23 September 1993
• Citation: 631 A.2d 1025,429 Pa.Super. 1
• Parties: Eugene T. BOYLE and Michael P. Boyle Administrators of the Estate of Eugene F. Boyle, t/a Eugene Boyle Associates, v. Michael STEIMAN, Esquire, Appellant.
• Court: Pennsylvania Superior Court

Page 1025

631 A.2d 1025

429 Pa.Super. 1

Eugene T. BOYLE and Michael P. Boyle Administrators of the Estate of Eugene F. Boyle, t/a Eugene Boyle Associates, v. Michael STEIMAN, Esquire, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 7, 1993.

Filed Sept. 23, 1993.

Thomas E. Coval, Willow Grove, for appellant.

Joseph R. Glancey, Philadelphia, for appellees.

Before CIRILLO, BECK and KELLY, JJ.

KELLY, Judge:

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

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

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

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

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

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

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

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

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

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

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

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

(The appellant's brief at 2).

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

A party may not remain silent and take his chances on the verdict then complain if it is adverse. Carter by Carter v. U.S. Steel Corp., 529 Pa. 409, 424, 604 A.2d 1010, 1018 (1992); Zeman v. Canonsburg Borough, 423 Pa. 450, 453, 223 A.2d 728, 729 (1966). In order to preserve an issue for appellate review a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Taylor v. Celotex Corp., 393 Pa.Super. 566, 583, 574 A.2d...