EVIDENCE
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The Pennsylvania Rules of Evidence shall be followed in all record hearings conducted in an action for support. Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).
The burden to establish the applicability of the attorney-client privilege rests on the party who invokes it. The privilege must be specifically asserted with respect to particular documents. The privilege is a question of fact and is to be determined in light of the purpose of the privilege and guided by judicial precedent. Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).
The proponent of the privilege must establish not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived. Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).
The question of applicability of the privilege regarding the drafting of documents by an attorney for his or her client depends on whether the client intended the drafting of the document to be a confidential matter. If so, then the privilege would apply. Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).
Courts have refused to apply the privilege to an attorney's preparation of documents when (1) the client intends the attorney to impart the information to others, or (2) the communications are made in the presence of third parties. Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).
The attorney-client privilege does not attach to documents when a client understands or intends that the substance of the document be revealed to others. Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).
Preliminary drafts or documents and communications made between an attorney and client during the drafting process are privileged and only those parts of the attorney-client that ultimately appear in a published document are outside of the privilege. Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).
Where the writing of a deed is part of the means employed to effect a reconciliation in a divorce suit, the communications relative to such deed are privileged. Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).
When an attorney draws a deed he is competent to testify to his acts as a scrivener in a transaction that was not considered confidential by his client. Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).
The attorney-client privilege applies to information received by an attorney from his client for the purpose of preparing a document which eventually is to be disclosed to third persons only to the extent that the information received by the attorney is not directly or by implication revealed by the publication of the document. Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).
To the extent that A.B. was believable, the jury was entitled to convict the Defendant solely based on that testimony. Commonwealth v. Davis, 64 Som.L.J. 224 (2009) (Klementik, J.).
Pennsylvania Rule of Evidence 404 (b) (4) provides that in criminal cases, the prosecution shall provide reasonable notice in advance of trial, or during trial, if the court excuses pretrial notice on good cause shown, of evidence of prior crimes, wrongs, or acts it intends to introduce at trial. Com. v. Unger, 58 Som.L.J. 413 (2001) (J. Gibson).
When an attorney draws a deed he is competent to testify to his acts as a scrivener in a transaction that was not considered confidential by his client. Ankney v. Farkas and Wenturine Brothers Lumber Co., Inc., 59 Som.L.J. 22 (2000) (P.J. Fike).
Rule 601 of the Pennsylvania Rules of Evidence states: a) General Rule-Every person is competent to be a witness except as provided by statute or in these rules. B) Disqualification for Specific Defects-A person is incompetent to testify if the Court finds that because of a mental condition or immaturity the person: 1) is, or was, at any relevant time, incapable of perceiving accurately; 2) is unable to express himself or herself so as to be understood either directly or through an interpreter; 3) has an impaired memory; or 4) does not sufficiently understand the duty to tell the truth. Johnson v. Dudenak & Geibig t/d/b/a Sassy's, 60 Som.L.J. 333 (2002) (Gibson, J.).
In a forgery case, statements regarding authorization made by an incompetent witness are admissible to prove state of mind at the time the statement was made. Commonwealth v. Nist, 64 Som.L.J. 113 (2009) (Cascio, P.J.)
Expert testimony becomes necessary when the subject matter of the inquiry is one involving special skills and training not common to the ordinary person. Joll, et al. V. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).
There is a need for expert testimony to explain the possible effect, if any, of low-tread tries. The extent of law knowledge about "bald" tires is that they may be less effective than tires with tread in adverse driving conditions. Joll, et al. V. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).
The need for expert testimony to connect low-tread tires to an accident is as great as plaintiffs' need for expert testimony on the effect of overloading a truck. Joll, et al. V. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).
To warrant the use of expert testimony, the subject of inference must be distinctly related to some science, profession, business or occupation and the witness must have sufficient skill, knowledge or experience in that field or calling as to make it appear that his opinion would help the trier of fact in his search for the truth. Joll, et al. v. Friedline, et al. 58 Som.L.J. 140 (1996) (P.J. Fike).
A party offering expert testimony is required to provide the necessary foundation for that testimony. Helmick v. Federal Pacific Electric Company, et al, 61 Som.L.J. (1995) (J. Gibson).
Details as to the qualifications of expert witnesses, the facts and opinions they are expected to testify to, and the grounds for their opinions, must be supplied. The necessary answers to these questions, however, need only state the substance of the requested facts and opinion, and a summary of the grounds for the opinions. Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.)
The detailed curriculum vitae of each expert, coupled with a list of cases which would lead to discoverable opinions regarding other cases with similar or parallel facts will generally suffice for identification purposes. Friedline v. Devinie, Administrator of the Estate of Scott Devine, 61 Som.L.J. 200 (2003) (Cascio, J.)
Frye only applies to determine if the relevant scientific community has generally accepted the principles and methodology the scientist employs not the conclusions the scientist reaches, before the court may allow the expert to testify. Trach v. Fellin, 2003 WL 282804, at 27. Helmick and Helmick v. Federal Pacific Electric Co., inter al., 61 Som.L.J. 1 (2003) (Gibson, J.)
Pa.R.C.P. 207.1 delineates the requirements and procedure for hearing a motion to exclude expert testimony which relies upon novel scientific evidence while granting the reviewing court discretion in the manner of determining the Rule 207.1 Motion. Helmick and Helmick v. Federal Pacific Electric Co., inter al., 61 Som.L.J. 1 (2003) (Gibson, J.)
A party offering expert testimony is required to provide the necessary foundation for that testimony. Helmick and Helmick v. Federal Pacific Electric Co., inter al., 61 Som.L.J. 1 (2003) (Gibson, J.)
In Pennsylvania the standard for qualifying an expert witness is a liberal one where if the witness possesses knowledge with regard to the subject matter that is beyond the knowledge, information, or skill possessed by the ordinary juror, and that knowledge will assist the jury in understanding the evidence of in determining a fact in issue, the witness may testify as an expert. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som.L.J. 167 (2009) (J. Cascio)
Pennsylvania has adopted the Frye Standard regarding the admissibility of scientific evidence. As an exclusionary rule of evidence Frye must be construed narrowly as to not impede the admissibility of evidence which would aide the trier of fact in the search for the truth. Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64 Som.L.J. 167 (2009) (J. Cascio)
Arguments that simply challenge the evidence supporting an
expert’s opinion, are a basis for cross examination, not preclusion under Frye.
Hale v. American Honda Motor Co., Inc., and Z&M Cycle Sales, Inc., 64
Som.L.J. 167 (2009) (J. Cascio)
A verified petition affidavit or document, and any document incorporated by reference therein which would not be excluded under the hearsay rule if given shall be admitted into evidence if: at least 20 days written notice of the intention to offer them into evidence was given to the adverse party accompanied by a copy of each document to be offered; the other party does not object to their admission into evidence; the evidence is offered under oath by the party or witness. Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio)
An objection must be in writing and served on the proponent of the document within 10 days of the date of service of the notice of intention to offer the evidence. Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).
When an objection is properly made, the Rules of Evidence shall apply to determine the admissibility of the document into evidence. Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).
Hearsay is not admissible except as provided by the Rules of Evidence, by other rules prescribed by the Pennsylvania Supreme Court, or by statute. Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).
The hearsay exception embodied in Pa. R.C.P. 1910.20 was enacted by the Legislature in 1997 as part of 23 Pa. C.S.A. § 4342 to provide for expedited procedures for the determination and enforcement of support. Thus, it was created substantively by statute and procedurally by Rule. Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).
The legislature and the Supreme Court intended the hearsay exception to apply only when a verified writing is offered into evidence. Lake v. Lake, 58 Som.L.J. 413 (2002) (J. Cascio).
The Pennsylvania Supreme Court, in Schroeder v. Commonwealth, adopted the following three-prong test for determining the proper penalty to impose in spoliation cases: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that will protect the opposing party's rights and deter future similar conduct. In doing so, the Schroeder Court observed that fashioning a sanction for the spoliation of evidence based upon fault, prejudice, and other available sanctions will discourage intentional destruction. Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)
Fault is comprised of two components: responsibility, and the presence or absence of bad faith. Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)
The plaintiff's power to control the scene and to exercise authority over the preservation or destruction of evidence is a relevant factor in determining responsibility. At a minimum, a plaintiff is obliged to inform a potentially responsible party of his or her right to inspect relevant evidence. Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)
Where the plaintiff was aware that the evidence was in the possession of an expert retained by the plaintiff's family's homeowners insurance company, and could have exerted control over the evidence by calling, faxing or writing to the expert to ensure its continued preservation, but failed. The plaintiff should bear some of the blame for spoliation, especially given the importance of the propane tanks in proving her case. Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)
Prejudice resulting from spoliation of evidence is much less severe in design defect cases, since, although a faulty product is destroyed, an entire line of products bearing the same defect is often accessible. Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)
Prejudice is often much greater when the plaintiff's entire claim hinges on a specific defect of a particular product, since spoliation cannot be remedied by examining another similarly flawed product. Because the plaintiff in the instant matter alleges that the defendant acted negligently in regard to a particular product, the spare propane tank, and because the defense does not have the luxury of examining and testing a similar tank, prejudice to the defendant is severe. Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)
The types of sanctions that may be imposed for spoliation of evidence range from those that are less onerous, such as jury instructions (i.e., the jury should infer that the missing or destroyed evidence would have been unfavorable to the party responsible for its loss or destruction), to those that are more severe, such as preclusion of expert testimony, to summary judgment. Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)
Attributing some fault to the plaintiff for failing to exert control over and preserve the subject tanks, and finding the decedent to be severely prejudiced by the unavailability of the evidence, the proper remedy is to preclude the testimony or the plaintiff's expert. Shull v. Rhoads, 63 Som.L.J. 120 (2005) (Fike, P.J.)