Sehl v. Vista Linen Rental Serv. Inc.

Decision Date06 November 2000
Citation763 A.2d 858
PartiesBette SEHL and Carl Sehl, h/w, Appellants, v. VISTA LINEN RENTAL SERV. INC. and Delaware Valley Linen Service, Inc., t/a D.C.L. and/or Delaware County Linen, Appellees.
CourtPennsylvania Superior Court

Ruben Honik, Philadelphia, for appellants.

William J. McKee, Philadelphia, for appellees.

Before McEWEN, President Judge, STEVENS and ORIE MELVIN, JJ.

ORIE MELVIN, J.:

¶ 1 Appellants, Betty and Carl Sehl, appeal from the judgment entered in the Court of Common Pleas of Philadelphia County following the denial of their motion for post-trial relief. Appellants challenge the trial court's preclusion of certain testimony on hearsay grounds, its charge concerning successor liability, and the inadequacy of the verdict. We affirm.

¶ 2 The procedural background and relevant facts may be summarized as follows. Mrs. Sehl while working as a waitress at the Scanlon Family Restaurant slipped and fell on a wet rug, which had been laundered and delivered by Appellee, Vista Linen Rental Service, Inc. (Vista). Mrs. Sehl sustained a fractured right wrist, which required surgery to repair. Subsequent to the accident, Vista went out of business and Appellee Delaware Valley Linen Services t/a D.C.L. and/or Delaware County Linen (DCL) began providing linen services to the restaurant. Appellants instituted a trespass action alleging the negligent maintenance of the rug by Vista caused Mrs. Sehl's injuries. The Appellants further alleged DCL was a successor in interest to Vista and thus liable for the prior negligent acts of Vista. After a three-day trial, the jury returned a verdict in favor of the Appellants and against Vista only and awarded damages in the amount of sixty-two thousand dollars ($62,000.00). The jury determined by way of special interrogatory that DCL was not liable as a predecessor in interest to Vista. After denying the Appellants post-trial motions, judgment was entered on the verdict. This appeal followed.

¶ 3 On appeal Appellants assert entitlement to a new trial on the basis the trial court erred in precluding certain testimony of Tom Scanlon; in charging the jury regarding successor liability; and in refusing to set aside the verdict as inadequate.

¶ 4 Initially, we note the standard for reviewing the trial court's denial of a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law that affected the outcome of the case. Chanthavong v. Tran, 452 Pa.Super. 378, 682 A.2d 334, 337 (1996) (citing Melso v. Sun Pipe Line Co., 394 Pa.Super. 578, 576 A.2d 999 (1990), appeal denied, 527 Pa. 667, 593 A.2d 842 (1991)). Discretion is abused when the trial court misapplies the law or when it reaches a manifestly unreasonable, biased or prejudiced result. Id. at 338 (citation omitted).

¶ 5 In their first issue Appellants assert error in precluding certain testimony from Tom Scanlon, the owner of Scanlon's Restaurant. Specifically, Appellants claim Mr. Scanlon's proposed testimony regarding statements made by the carpet delivery person to him that Vista had been told to "change its name" because it was "taken over" by DCL should have been admitted as a hearsay exception pursuant to Pa.R.E. 803(25)(D).

¶ 6 This issue presents this Court with its first opportunity to examine the application of Rule 803(25)(D), which represents a new exception to the hearsay rule regarding admissions by a party opponent under the recently codified Pennsylvania Rules of Evidence. Rule 803 in relevant part, provides:

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial.

The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * * *
(25) Admission by a Party Opponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by a party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

¶ 7 Mr. Scanlon testified that the week after the accident when the delivery person for Vista made his next regular delivery he informed him about Mrs. Sehl's fall on the wet rug. Mr. Scanlon was precluded from further testifying that one of the delivery persons told him Vista had been told to "change its name to DCL" because it was "taken over" by DCL. Later testimony reflected the only persons who could have made such statements were either Patrick O'Rourke, owner of Vista, or Al Kinworthy, an employee of DCL, while they were delivering rugs to Scanlon's Family Restaurant as part of DCL's regular laundry service to the restaurant. N.T. 12/22/98 at 215-216.

¶ 8 The trial court excluded the statements due to the Appellants' "inability to positively identify the declarant...." Trial Court Opinion, 6/23/99, at 4. The trial court further opined:

Without the identity of the declarant, this Court is unable to determine whether the declarant was indeed a person authorized to make the statement under subsection (C) or an agent under subsection (D).... Even if the court were to assume that the declarant was a driver for DCL, it does not logically follow that the statements made by the driver were within the scope of the driver's agency or employment. There was no evidence or offer of proof that the driver for a linen service would have as part of his job description the authority to issue such statements.

Id. at 4-5. Appellants' argue the trial court improperly excluded this evidence by applying the traditional vicarious admission rule, which is now codified in clause (C) of Rule 803 requiring the agent to have "speaking authority," rather than the less restrictive rule provided for in clause (D). Whether the trial court based its decision on Rule 803(25)(C) or (D) is of no moment as appellants have failed to satisfy their burden under either rule.

¶ 9 Under Pa.R.E. 803(25)(D) in order for the statements to be admissible the proponent must establish three elements: (1) the declarant was an agent or employee of the party opponent; (2) the declarant made the statement while employed by the principal; and (3) the statement concerned a matter within the scope of the agency or employment. Here, Appellants' proffer failed to satisfy the third element. Merely because the agent made the statement while performing within the scope of his employment does not satisfy the requirement that the statement also concerns a matter within the scope of the employment. The difference between clause (C) and (D) of Rule 803(25) is aptly described in the following commentary on the corresponding federal rule:

Previously courts applied the traditional agency test in determining admissibility of statements by agents or servants, i.e., whether the particular statement was authorized by the principal. Courts generally decided that damaging statements were not within the scope of authority, even of relatively high level employees. The obvious difficulty with applying strict agency principles is that agents or servants are very rarely authorized to make damaging statements—the truck driver is hired to drive, not to talk. However as a result of the fact that it also seemed unreasonable to deny admission to inculpatory statements by the driver about the driving he was hired to do in light of the probable reliability of such statements, courts often stretched to find a basis for admissibility. In recognition of the reliability and reasonableness of admitting such statements, Rule 801(d)(2)(D) now declares statements of an agent or servant concerning a matter within the scope of his agency or employment to be defined as not hearsay if made during the existence of the relationship. Authority to speak is thus no longer of concern; all that is required [in addition to proof of agency] is that the statement concern a matter within the scope of the agency or employment, and that the agent or servant still be employed at the time of making the statement.

Michael H. Graham, Handbook of Fed. Evid. § 801.23 (4th ed.1996) (emphasis added). Moreover, as noted in McCormick on Evidence the modern approach under federal rule 801(d)(2)(D) "allows in statements from a well-informed source, with the continuing employment relationship as a guarantee of trustworthiness." E. Cleary, McCormick on Evidence § 267 at 641 (2d ed.1972) (emphasis added).

¶ 10 We recognize that clause (D) of Pa.R.E. 803(25) broadens the "traditional" rule embodied by clause (C) and thus specific authorization to speak need not be shown; nonetheless, the statement must still concern a subject matter within the declarant's scope of employment or agency. See Vojas v. K mart Corp., 312 Ill. App.3d 544, 245 Ill.Dec. 144, 727 N.E.2d 397 (2000) (holding the principal's grant of authority to speak is not the main concern in applying the party-admission exception to the hearsay rule; instead, the test is whether the statement concerns matters within the scope of the employment); Lane v. City of Kotzebue, 982 P.2d 1270, 1273 (Alaska 1999) (stating "An employee's statements, to be admissible as nonhearsay admissions of party-opponent, do not have to be authorized by the employer; it is enough that they concern the employees' duties."). Applied instantly, a delivery person's scope of employment does not ordinarily involve participation in, or even knowledge of, the merger or acquisition negotiations of his employer. Moreover, it is the proponent of the statement who bears the burden of establishing the declarant's scope of...

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