Case Provides Lessons On The Business Records Exception to the Hearsay Rule

As identified by Attorney Jon Bruno on his excellent Pa. Super Blog, the Pennsylvania Superior Court provided an excellent analysis of the business records exception to the rule against hearsay in the case of Commonwealth v. Thomas, No. 429 WDA 2025 (Pa. Super. Sept. 21, 2026 Neuman, J., Lazarus, P.J., and Stabile, J.) (Op. by Stabile, J.).

This is another example of an appellate court decision in a criminal court case having possible applicability to the civil litigation arena.

At pags. 28-37 of the Opinion, the Superior Court reviewed the parameters of Pa. R.E. 803(6) regarding the business records exception.

The appellate court held that it was error to admit into evidence under the business records exception, a Pennsylvania State Police record that contained multiple layers of hearsay.

At a minimum, the Superior Court held that the business records exception was improperly applied because the law enforcement officer who testified about the record was not the custodian of the record or other qualified witness capable of laying the type of foundation required by Rule 803(6) for the exception to apply.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Jon Bruno of the Pittsburgh law firm of Bruno Litigation, LLC for publicizing this Opinion on his excellent Pa. Super blog.

Issues of Fact Preclude Summary Judgment In Uninsured Motorist Case on Question of Whether Hit And Run Accident Was Reported to Police

In the case of Smart v. Allstate Ins. Co., No. 2:21-CV-03910-WB (E.D. Pa. Jan. 12, 2023 Beetlestone, J.), the court denied the carrier’s Motion for Partial Summary Judgment relative to the Plaintiff’s breach of contract claims in this uninsured motorist hit and run accident case.

According to the Opinion, Allstate was seeking summary judgment on the grounds that the Plaintiff had not confirmed that he had notified both Allstate and the police about this hit and run accident immediately following the same.

According to the Opinion, while the Plaintiff and his attorney initially indicated that the accident was not reported to the police, thereafter, the Plaintiff clarified his response to indicate that the police were called immediately after the incident but did not respond.

The court denied the Motion for Partial Summary Judgment filed by the insurance company after finding that credibility issues relative to the Plaintiff rendered the questions presented to represent disputed issues to be decided by a jury.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Scott B. Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

Issues of Material Fact Exist On Whether Plaintiff Properly Reported Uninsured Motorist Accident to Police

In the case of Calestini v. State Farm Mut. Auto. Ins. Co., No. 3:19-CV-01995 (M.D. Pa. April 13, 2021 Saporito, M.J.), the court addressed a Motion for Summary Judgment filed by the carrier in an uninsured motorist case on the issue of whether or not the underlying motor vehicle accident had been properly reported to the police as required under the policy.

According to the Opinion, the Plaintiff did not report the accident to the police on the date of the incident. The Plaintiff did report the accident, in person, to his insurance agent within six (6) days of the accident.

The Opinion also confirms that Plaintiff’s counsel reported the accident to the police after meeting with his client, which was approximately 106 days after the accident.

The court denied the carrier’s Motion for Summary Judgment after finding that there genuine issues of material fact presented on the issue of whether the Plaintiff reported the accident to the police in light of the evidence that the Plaintiff had reported the incident to his insurance agent and in consideration of the Plaintiff’s alleged learning disability and associated issues.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James J. Conaboy, of the Scranton, Pennsylvania law firm of Abrahamsen, Conaboy & Abrahamsen for bringing this case to my attention.

Court Addresses Issues With Complaint in an Uninsured Motorist (UM) Claim

In the case of Kleinhans v. John Doe and Chubb Limited Ins. Co., et.al., No. CV-20-0678 (C.P. Lycoming Co. Oct. 2, 2020 Tyra, J.), the court addressed Preliminary Objections filed by an insurance carrier in a hit and run uninsured motorist case. 

According to the Opinion, the Plaintiff’s wife was finishing checking out in a retail store while the Plaintiff-husband went out to get the couple’s vehicle. When the wife came out of the store, she saw her husband laying on the ground surrounded by a puddle of blood. A bystander had already called 911 and the Plaintiff was taken to hospital by ambulance. The identity of the driver who allegedly struck the Plaintiff was never discovered and, according to the Opinion, the Plaintiff did not have any memory of the details of the accident.

The Plaintiff filed an uninsured motorist claim. The carrier filed Preliminary Objections to the Plaintiff’s claim for breach of contract, uninsured motorist benefits, medical payments, bad faith, and under the Unfair Trade Practices and Consumer Protection Law.

In part, the court rejected the UM carrier’s assertion that the Plaintiff’s Complaint failed in that the Plaintiff neglected to attach a copy of the police report to his Complaint. The court noted that, in uninsured motorist cases, Pennsylvania law requires that in order for the claim to proceed, the injured party must report the accident to the police or a proper governmental authority and notify his carrier within thirty (30) days of the accident, or as soon as practicably thereafter. See 75 Pa. C.S.A. §1702.

The court emphasized that the statute only requires that the Plaintiff report the accident to the police or another governmental agency as well as his carrier. There is no requirement in that statute that a police report be attached to the Complaint.

The court otherwise denied the Defendant carrier’s Preliminary Objections to the Plaintiff’s Unfair Trade Practices and Consumer Protection Law claims. After reviewing Pennsylvania law on the requirements of this type of claim, the court found that the Plaintiff only generally pled the claim and provided only legal conclusions as to the Defendant’s conduct and the Plaintiff’s reliance upon this conduct. As such, the court granted these Preliminary Objections but allowed the Plaintiff the right to amend the Complaint.

With respect to the Defendant’s assertion that the Plaintiff failed to attach a copy of the insurance policy to this Complaint which allege, in part, a breach of contract, the court found that the Plaintiff was required to do so. As such, these Preliminary Objections were granted but the Plaintiff was allowed the right to file an Amended Complaint with a copy of the insurance policy attached.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 24, 2020).

Pennsylvania Superior Court's Latest Take on the Dead Man's Rule

For the Pennsylvania Superior Court’s latest take on the Dead Man’s Statute, 42, Pa. C.S.A. 5930 in the case of Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

In this matter, arising out of a fatal motor vehicle accident, the Pennsylvania Superior Court found that Dead Man’s Statute was not waived by the Defendant’s participation in discovery when no depositions or Interrogatories were completed.  

The court additionally noted that this defense under the Dead Man’s Statute did not need to be raised as an affirmative defense in a New Matter pursuant to Pa. R.C.P. 1030 in order to be preserved.  

Moreover, the court otherwise noted that the issues of negligence in this automobile accident case could not be established by the testimony of a police officer who did the accident report but who had no independent recollection of the incident.  

 

Anyone wishing to review a copy of this decision may click this LINK.

 

Source: “Case Summaries” by Timothy L. Clawges, Pennsylvania Bar News (March 20, 2017).

Reference to Opinions in Police Report Prohibited at an Auto Accident Trial

In the case of Harris v. Phila. Facilities Mgmt. Corp., No. 39 C.D. 2014 (Pa. Cmwlth. Dec. 2, 2014 Simpson, McCullough, and Covey, J.J.)(Op. by McCullough, J.), the Pennsylvania Commonwealth Court addressed the propriety of a reference to a police report in a jury trial arising out of a motor vehicle accident.

In this matter, the Plaintiff motorcyclists wished to make reference a police officer's observations in his police report concerning a pothole in the area of the accident, which was allegedly a central fact and/or issue in the happening of the accident.  While the trial court noted that some basic facts contained in a police report may be referenced at trial under appropriate circumstances, since the pothole issue was central to this matter, the trial court excluded the police report as a whole.

In this matter, on cross-examination by Plaintiff's counsel, a police officer witness admitted that, prior to taking the witness stand, he had referred to the police report another officer wrote up.  The testifying officer did this to refresh his recollection but stated, on the stand, that he was otherwise testifying from his memory and without reference to the report while sitting on the stand.

In Harris, the Commonwealth Court reiterated the general rule that a police accident report is inadmissible in an auto accident case as hearsay evidence. 

However the appellate court went on to find that, under Pa.R.E. 612, it was within the trial court's discretion to allow for the witness to review the police report as part of an effort to refresh the witness's recollection.  Such a refreshing of a witness's recollection could be accomplished by presenting the witness with documents to review either before the witness takes the stand, or during the time the witness is on the stand.

This decision also supports the long-standing proposition that an expert accident reconstructionist may rely upon, and refer to, a police report in reconstructing an accident.  Citing to Pa.R.E. 703, the court noted that a police report is the type of data that such an expert witness is permitted to rely upon in formulating is opinion.  Here, the defense expert merely stated that he had relied upon the police report in formulating his opinion and there was no effort on the part of that expert to simply, and impermissibly restate, opinions contained in the police report on central issues to the case.

The Harris court likewise upheld the trial court's rejection of the efforts by the Plaintiff to introduce favorable opinions contained in the police report through the testimony of the Plaintiff's experts.  The appellate court cited to 75 Pa.C.S.A. Section 3751(b)(4) to support the ruling that a police report prepared by a police officer who did not witness the accident is inadmissible hearsay evidence and should not be admitted into evidence.  The court also noted that a party is not allowed to get such a report into evidence in an indirect manner.

Accordingly, based upon these rulings the appellate court did not find any errors that would require the granting of a new trial as requested.

The Harris decision can be viewed online HERE.

Police Reports Generally Not Admissible in Auto Accident Litigations

In its recent decision in the case of Phillips v. Lock, 2014 PA Super 38, No. 1634 EDA 2013 (Pa. Super. Feb. 28, 2014 Shogan, J., Ott, J., and Platt, J.) (Opinion by Platt, J.), the Pennsylvania Superior Court found that a trial court properly denied a Motion to Amend a Complaint to add a new and distinct party on the morning of trial after the statute of limitations had run in a motor vehicle accident litigation.   The Plaintiff was attempting to join an alleged owner of a vehicle under an negligent entrustment theory. 

 

This decision is also notable for the Court’s Opinion that a police report containing statements made at the accident scene were not admissible under Pa. R.E. 803(8) or as an official record exception to the hearsay rule at 42 Pa. C.S. § 6104.

 

In addition to essentially finding that the Plaintiff had waived the evidentiary issue regarding the police report, the appellate court nevertheless noted that Section 3751 of the Vehicle Code specifically provides that a police report “shall not be admissible as evidence in any action for damages… arising out of a motor vehicle accident.”   75 Pa. C.S. §3751(b)(4).  

 

The Court additionally noted that “[a] police report prepared by an officer who is not a witness to the accident is inadmissible hearsay evidence and should not be admitted into evidence.  Nor should a party be able to get such a report into evidence in an indirect manner.”   Phillips at p. 23 citing Rox Coal Co. v. WCAB (Snizaski), 807 A.2d 906, 914 (Pa. 2002) (other citations omitted).  

 

Here, the Court found no abuse of discretion by the trial court in precluding the police report given that the police report did not witness the accident and the Motor Vehicle Code otherwise precludes the admission of such a report into evidence.  

 

The Court in Phillips additionally precluded evidence of a Social Security Disability award as such information was found not to be admissible under Pa. R.E. 803 (pertaining to a declarant’s then-existing state of mind exception; medical diagnosis of treatment exception).

 

The Plaintiffs in this matter were asserting that their medical expert should have been permitted to testify to records reviewed from the Social Security Administration Disability record and from a disability insurance carrier.  

 

In so ruling, the Court noted that the records at issue did not reference the subject motor vehicle accident.   Moreover, according to the disability records, the first date of disability was not until nine (9) months after the accident and it was indicated in those records that the Plaintiff’s symptoms had developed the night before that date of the onset of the disability.  

 

This decision is also notable for the court's reiteration of the rule that a  party must present a Motion for a Directed Verdict at the close of the case or a proposed binding jury instruction in order to support the presentation of a motion for judgment notwithstanding the verdict (JNOV) after the entry of an adverse verdict.

Anyone wishing to review this Opinion may click HERE.



Source: "Court Summaries" by Timothy L. Clawges in the Pennsylvania Bar News (4/7/14).

Source of image:  www.orlandocriminaldefenseattorneyblog.com