author: SPRECHER, J.,

text:
    R.B. Christel Inc v. Kirkpatrick

      Howard Lightman, for plaintiff.

      Ronald L. Clever, for defendant.
    May 27, 2010
   SPRECHER, J.,

Defendant appeals the order dated February 5, 2010, which entered judgment for plaintiff and against defendant in the amount of $5,956.94 following a bench trial. This opinion is filed pursuant to Pa.R.A.P. 1925.

FACTS

Plaintiff, R. B. Christel Inc., does excavating and hauling work. Plaintiff filed a complaint for money owed to it by defendant, Ericka Kirkpatrick. Plaintiff contends that it performed excavating and hauling work between June 2004 and March 2006 for defendant at her verbal requests and that defendant did not pay charges for those services in the amount of $5,956.94.

Defendant runs an environmental company under the name E.J. Consulting Incorporated which does business as Durham Environmental. Defendant is a real estate agent. Defendant maintains that any work that had been ordered by her was ordered as an officer of her corporation and that if she had ordered any work in her individual capacity, then she had already paid for the work. She also claimed that plaintiff’s bills are inaccurate because some bills were created after the fact with dates that prove their impossibility and that some bills are for materials and labor that were not supplied.

Plaintiff’s foreman, Paul L. Schoenly Jr., testified that he is responsible for invoicing the customers. Mr. Schoenly did approximately 90 percent of the work ordered by defendant for the jobs for which plaintiff did not receive complete payments. Plaintiff did not receive any complaints regarding the workmanship on the jobs. Mr. Schoenly further testified that defendant had told him that certain jobs were personal and not corporate, including the work done for the Allentown Road property, one of the unpaid jobs. Mr. Schoenly testified that plaintiff charged defendant the standard hourly rates.

Defendant testified that she had negotiated rates for the jobs with plaintiff’s owner, Rodney Christel, and that the work had been performed for her corporation. Defendant testified that she had not paid the invoice for the Allentown Road property because it was the wrong amount and the bill had arrived after the complaint had been filed. Defendant claimed that it was about a $500 job. She paid $808 and $345 on the second disputed bill. She was credited for her payments which were reflected on the invoice.

Based on this evidence, this court entered the disputed decision. Defendant filed a timely appeal. This court directed defendant to file a concise statement of errors complained of on appeal.

ISSUES

Defendant raises nine separate issues in her concise statement under 10 separate numbers. This court notes that defendant’s statement is not especially concise. It contains three pages of single-spaced typing. Therefore, this court restated defendant’s complaints which will be addressed seriatim.

(1) Whether this court erred in not granting defendant’s motion in limine to prevent plaintiff from having Paul L. Schoenly Jr. testify as a witness because Rodney A. Christel was the only person named as a witness in plaintiff’s answer to defendant’s interrogatories.

(2) This court erred in not making adverse inferences against plaintiff because the corporate president did not attend the trial.

(3) This court erred in admitting plaintiff’s documentary evidence because there was no back-up documentation to support the two account statements.

(4) This court erred in admitting plaintiff’s documentary evidence because this court erroneously overruled an objection to a leading question which became the basis for plaintiff’s offering the documents into evidence.

(5) This court erred in admitting plaintiff’s documentary evidence because it was contradictory in that one statement had a preparation date which pre-dated some of the work.

(6) This court erred by admitting plaintiff’s documentary evidence because the documents were attached to the complaint but not produced in discovery.

(7) This court erred in admitting plaintiff’s documentary evidence because the documents were not the invoices themselves, but statements.

(8) This court erred in not finding that a corporation of E. J. Kirkpatrick Consulting Inc. existed.

(9) This court erred in not admitting into evidence defendant’s exhibits number 5 through 8 which were plaintiff’s certificates of liability insurance which were offered into evidence not to prove that plaintiff had insurance, but to show that plaintiff knew that it was dealing with a corporation and not an individual.

DISCUSSION

Defendant’s first complaint that this court erred in not granting defendant’s motion in liminine to limit plaintiff to presenting only Rodney A. Christel instead of Paul L. Schoenly as a witness because only Mr. Christel was named as a potential witness in defendant’s interrogateries is without merit for several reasons. Plaintiff indicated in the answers to defendant’s interrogatories that possible witnesses were Rodney A. Christel and other representatives and employees of plaintiff, (emphasis added) Moreover, Mr. Schoenly testified at the arbitration hearing in this matter. Therefore, plaintiff was not surprised by this witness or his testimony. For these reasons, this court denied plaintiff’s motion in limine.

Defendant’s second contention is that this court erred in not making adverse inferences against plaintiff because the corporate president did not attend the trial. This complaint is meritless. The corporate president did not have to attend the trial to present plaintiff’s case. The foreman who performed the work and did the invoicing attended the trial and testified to the facts. Mr. Schoenly had more direct knowledge of the case than the corporate president had. The corporate president did not invoice or bill the customers. This case was about the fees that plaintiff sought from defendant. Therefore, this court did not err in not making adverse inferences against plaintiff.

Defendant next argues that this court should not have admitted plaintiff’s exhibits into evidence because there was no back-up evidence to support the statements. This complaint is frivolous. Plaintiff’s exhibit no. 1 consists of invoices for the jobs that defendant did not pay which are the subjects of this action. Mr. Schoenly did the invoicing for the jobs and testified about it. Defendant objected to the attachments to the invoices which plaintiff agreed to remove. Thus, this court admitted this exhibit without the attachments. Plaintiff’s exhibit 2 consists of an invoice and delivery documents. Defendant did not object to the admission of this exhibit so this court admitted it. Transcript, 33.

Defendant’s fourth complaint is that this court erred in admitting plaintiff’s documentary evidence because this court erroneously overruled an objection to a leading question which became the basis for plaintiff’s offering the documents into evidence. This objection is a frippery. Plaintiff asked Mr. Schoenly if he was responsible for invoicing as a prelude to questioning him about the invoices which he had prepared. This court does not consider this to be a leading question. It is general knowledge that most foremen do invoicing for their own jobs. Furthermore, it was a bench trial so there was no danger that a jury would be swayed by leading questions. Therefore, this court overruled defendant’s objection to the question.

Defendant’s next objection to the exhibits is that this court erred in admitting plaintiff’s exhibits because one had a preparation date which had pre-dated some of the work. This complaint is without merit.

Defendant contends that the exhibit pre-dates the work. Plaintiff does not. This case had to be resolved on the issue of credibility. In a bench trial, the trial court, as fact-finder, is free to believe all, part, or none of the evidence presented, and, therefore, assessments of credibility and conflicts in the evidence are for the trial court to resolve. Turney Media Fuel Inc. v. Toll Brothers Inc., 725 A.2d 836 (Pa. Super. 1999). This court found Mr. Schoenly to be a more credible witness than defendant. For this reason, it admitted the invoices. More significantly, no one disputes that the work was performed. Defendant received the benefit of the work and never complained about the workmanship.

Defendant also complains about the admission of plaintiff’s exhibits in her sixth contention. She asserts that this court erred by admitting these exhibits because the documents were attached to the complaint but not produced in discovery. This assertion has no merit. Plaintiff attached the documents to the complaint so they were already in the record. One of the purposes of discovery is to eliminate surprise. Defendant was not surprised by the documents. There was no reason for this court not to admit them.

Defendant’s last complaint concerning the admission of plaintiff’s exhibits is that this court erred in admitting plaintiff’s documentary evidence because it was not the invoices themselves that were admitted but statements made from the invoices. This contention is meritless. The exhibits state that they are invoices. They are clearly documents that are mailed to the customer. They state the terms of payment, the total payments made or credits, and the balance due. Mr. Schoenly did not testify that he re-wrote them. He stated that he prepared the invoices. Transcript, 12. For these reasons, this court admitted the exhibits.

Defendant’s eighth contention is that this court erred in not finding that a corporation of E. J. Kirkpatrick Consulting Inc. existed. This argument is without merit. The evidence that was produced for the existence of a corporation was cancelled checks from an account that is in the name of business that were signed by defendant. No articles of incorporation were presented to this court Thus, there was no evidence that an actual corporation existed. Any name can be put on a check. Plaintiff was under the impression that defendant’s business address was the same as her personal residence so all invoices were sent to the same address. Two of defendant’s defenses are that the expenses were for her corporation or that she had not received the invoices. The undisputed fact is that plaintiff performed the work in a workmanlike manner. This court decided therefore that defendant was obligated to pay plaintiff for the work performed.

The court notes that in this contention defendant requests the court to re-open the evidentiary record to take additional evidence or judicial notice that defendant’s articles of incorporation for her business can be found on a web site. This case is on appeal so this court does not have jurisdiction to comply with either of defendant’s requests. Defendant already had the opportunity to present his case. The record is closed unless later discovered evidence is found. That is not the situation in the case sub judice. Moreover, if there is a business, then the business may pay for the services instead of defendant personally. It would be inequitable for plaintiff not to receive the fees after it has performed the work. Plaintiff can no longer claim that she does not know that the fees are due.

Defendant’s last salient issue is that this court erred in not admitting into evidence defendant’s exhibits number 5 through 8 which were plaintiff’s certificates of liability insurance because they were not offered to show that plaintiff had insurance but to demonstrate that plaintiff knew it was dealing with a corporation, not the defendant. This contention is meritless. The certificates are irrelevant. They do not show that plaintiff was dealing with a corporation. The certificates demonstrate that plaintiff was doing business for E. J. Kirkpatrick, an entity that could be an individual as well as a corporation.

In accordance with the foregoing opinion, this court submits that defendant’s appeal should be denied and its decision and verdict affirmed.


source: Caselaw Access Project

author: CARPENTER, J.,

license: Public Domain

text:
    Commonwealth v. Barnett

      Christopher E. Parisi, for Commonwealth.

      Gregory L. Nester, for defendant.
    June 11, 2010
   CARPENTER, J.,

FACTUAL AND PROCEDURAL HISTORY

Appellant, Darron Barnett, appeals from the March 29, 2010 judgment of sentence imposed following his conviction of possession with intent to deliver cocaine, possession with intent to deliver marijuana, two counts of possession of a controlled substance and possession of drug paraphernalia.

Appellant was involved in a large-scale drug operation along with his two co-defendants, Diyon Jefferson and Darrell Elmore, who are also his brothers. The drug operation, which involved the selling of cocaine, marijuana and heroin, was run out of two principal locations, 603 West Main Street, Norristown, apartment number 2 and 558 Chain Street, Norristown.

The facts at the bench trial established the following. On December 12, 2008, a search warrant was executed on 603 West Main Street, apartment number 2 at approximately 6 a.m. (Motion to suppress/bench trial 1/11/10 pp. 181-83.) Once inside, Detective David Holtzman, of the Montgomery County District Attorney’s Office, County Detective Bureau, encountered appellant, Jefferson, and Danielle Barfield. Id. at 183. Appellant was found in the living room of the apartment. Id. at 183. The search of appellant’s person uncovered $322 and two vials of marijuana. Id. at 185. (Bench trial, v. 2, 1/12/10 p. 25.)

In the kitchen area of the apartment were two Sentry safes. Id. at 185-86. The first Sentry safe concealed 33 bags of heroin with a Bently stamp, 191 bags of heroin, a nine millimeter Sardius handgun and an unloaded magazine for that handgun. Id. at 187-90. The second Sentry safe concealed 201 blue bags of crack cocaine, four knotted sandwich bags containing 201 individual bags of crack cocaine and $1,200 in U.S. currency. Id. at 191,193. Also in the kitchen, a Triton T2 digital scale, a blender and measuring cup, all with cocaine residue, were found. Id. at 192. A key to one of the Sentry safes was located on top of the refrigerator.

The search of the bedroom area revealed 12 small blue bags of crack cocaine, seven plastic vials of marijuana with a butterfly imprint, seven bags of heroin with a Bently imprint, an SKS assault rifle with a fully loaded magazine and a Taurus gun case for a .40 caliber weapon. Id. at 194-98.

Officer Christopher Lefebvre of the Norristown Police Department transported appellant and Barfield from the West Main Street location to the police station. (Bench trial, v. 2, 1/12/10 p. 32.) Appellant sat in the rear passenger seat of the vehicle. Id. at 33. After transporting appellant, the officer searched the police vehicle in accordance with standard police procedure and found 2.51 grams of crack cocaine contained in 23 small blue tinted bags in the back seat where appellant had been sitting. Id. at 34.

The investigation led officers to also conduct surveillance of 558 Chain Street later on in the afternoon on December 18, 2008. Id. at 51. A subsequent search of that location was executed, which uncovered in significant part, 80 yellow bags containing crack cocaine in the kitchen cabinet, 43 bags of crack cocaine in the kitchen, three bags of cocaine on the kitchen table, 42 blue bags of crack cocaine on the kitchen table, a chunk of crack cocaine on a glass plate along with a razor blade, box of sandwich bags, bag of rubber bands, a Triton T2 scale. Id. at 56-59.

On January 11, 2010, a three-day bench trial commenced in which appellant was tried along with his two co-defendants. At the conclusion of which, we found appellant guilty of the aforementioned charges.

On March 29, 2010, a sentencing hearing was conducted, in which the Commonwealth argued that 42 Pa.C.S. §9712.1 applied. We agreed, and sentenced appellant to an aggregate term of five to 10 years imprisonment. This, timely appeal followed.

ISSUES

I. Whether This Court Properly Applied the Mandatory Minimum Sentencing Provisions of 42 Pa.CS §9712.1

II. Whether a Challenge to the Constitutionality of the “In Close Proximity” Language of 42 Pa. C.S. §9712.1 Is Proper, When Appellant’s Conduct Falls Squarely Within the Statute

DISCUSSION

I. This Court Properly Applied the Mandatory Minimum Sentencing Provisions of 42Pa.C.S., §9712.1

On appeal, appellant argues that this court erred in sentencing him according to the mandatory sentencing provisions of 42 Pa.C.S.§9712.1. We disagree.

“Section 9712.1 reads in relevant part:

“Section 9712.1 Sentences for certain drug offenses committed with firearms
“(a) Mandatory sentence. — Any person who is convicted of a violation of section 13(a)(30) of the ... The Controlled Substance, Drug, Device and Cosmetic Act, when at the time of the offense the person or the person’s accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person’s accomplice or within the actor’s or accomplice’s reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.” 42 Pa.C.S. §9712.1(a). (emphasis added)

At the sentencing hearing, the Commonwealth and defense counsel agreed that following facts were apparent in the record and were agreed upon.

“That Mr. Barnett was located in the apartment on the sofa in the living room when the police entered to execute the search warrant. That the marijuana in issue was found on his person. That the cocaine at issue was later found in the police car which was used to transport him to the police station that day. That the SKS rifle was found in the bedroom in a closet; there was ammo also in that closet with that of another firearm. Counsel have agreed the SKS rifle is, in fact, a firearm pursuant to title 42. 9712.1. The handgun, a Sardius, was found in a safe in the kitchen, numbered C-9, which was locked. Mr. Barnett did not have a key to that safe on his person. There was a key to that safe on the top of the refrigerator in the kitchen.” (Sentencing hearing 3/29/10 p. 4.)

Also at the sentencing hearing, the Commonwealth presented the testimony of Detective Holtzman who in pertinent part testified that apartment number 2 at 603 West Main Street was not a very large apartment. From the spot where appellant was found in the living room, there was no door or barrier blocking access to the kitchen. Id. at 6. The den and kitchen comprised a wide open space. Id. The distance between appellant and the Sardius pistol found in the Sentry safe, in the kitchen, was no more than five feet. Id. at 6-7. Additionally the detective testified that there was a tiny little hallway separating appellant from the SKS rifle and ammunition for that rifle, located in the bedroom closet. Id. At most it was only 20 to 25 steps from where appellant was found; Id. at 8.

Although “close proximity” is not defined by statute, it has been interpreted in both Commonwealth v. Sanes, 955 A.2d 369 (Pa. Super. 2008) and in Commonwealth v. Zortman, 985 A.2d 238 (Pa. Super. 2009). In Sanes, our Superior Court gave the term an expansive meaning and held that a handgun found hidden in a closet was in close proximity to the drugs located in the same room, six to eight feet away. Id. at 376. In reaching its holding, the Sanes court in part looked to the meaning of the term “in close proximity” as used in the Forfeiture Act, 42 Pa.C.S. §6801 (a)(6)(H), which states that where money or negotiable instruments are found “in close proximity” to illegally possessed drugs, there is a rebuttable presumption that those items were the proceeds of unlawful drug sales and thus, subject to forfeiture. The Sanes court noted that the term “in close proximity” in the Forfeiture Act allowed for the court in Commonwealth v. Giffin, 407, Pa. Super. 15, 21, 595 A.2d 101 104 (Pa. Super. 1991) to hold that currency found in the living room was “in close proximity” to controlled substances found in another portion of the residence.

Building on the interpretation of “in close proximity” as set out in Sanes, the Zortman court held that drugs located in the kitchen as well as in a briefcase located in another room of the residence were in close proximity to the gun found in the bedroom of the residence. Id., 985 A.2d at 244. In reaching this holding, the Zortman court considered that section 9712.1 is designed to deter drug dealers who utilize weapons, and that the facts of the case indicated that the defendant was involved in a significant drug distribution scheme. Id.

After considering the evidence produced at the sentencing hearing and at the bench trial we found that the firearms were in close proximity to the marijuana, which were located on appellant’s person at the time the search warrant was executed, and in close proximity to the cocaine, which had been with appellant in the apartment before it was placed in the police vehicle by him. The detective testified that appellant, who had the drugs on his person,was within six to eight feet from the Sentry safe which concealed the Sardius handgun, and although the safe in the kitchen was locked, and appellant did not have a key, a key was readily accessible on top of the refrigerator to anyone familiar with the apartment. Additionally, the detective testified that appellant was within 20 to 25 steps from the bedroom where the SKS assault rifle, along with a fully loaded magazine, was found. Accordingly, we applied the mandatory sentencing provision of 42 Pa.C.S. §9712.1.

II. A Challenge to the Constitutionality of the “In Close Proximity” Language of 42 Pa.C.S. §9712.1 Is Not Proper, When Appellant’s Conduct Falls Squarely Within the Statute

Second, appellant contends that the “in close proximity” language of 42 Pa.C.S. §9712.1 is unconstitutionally vague.

The “void for vagueness” doctrine requires penal statutes to define criminal conduct with sufficient definiteness such that ordinary people can understand what conduct is prohibited and in such a manner to discourage arbitrary and discriminatory enforcement. Commonwealth v. Costa, 861 A.2d 358, 361 (Pa. Super. 2004) (citing, Commonwealth v. Mayfield, 574 Pa. 460, 467, 832 A.2d 418, 422 (2003)). A defendant who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. Costa, 861 A.2d at 362. Facial vagueness challenges may be rejected where an appellant’s conduct is clearly prohibited by the statute in question. Id.

In this case, appellant’s conduct falls squarely within the mandatory sentencing statute; therefore, we decline to address this constitutional challenge.

CONCLUSION

Based on the forgoing analysis, the March 29, 2010 judgment of sentence should be affirmed.

      . Prior to the commencement of the bench trial, this court held a suppression hearing on co-defendants’ motions to suppress.

      . The Commonwealth filed a notice of intent to seek the mandatory minimum pursuant to 42 Pa.C.S. §9712.1 on January 25, 2010.


author: SIBUM, J.,

text:
    Ucci v. Fedish

      Craig R. Levin, for plaintiff.

      Kathleen A. Walsh and Alicia Caridi Schweyer, for defendants.
    April 14, 2010
   SIBUM, J.,

Plaintiff commenced this action seeking to recover damages for injuries she sustained in an automobile accident. Plaintiff alleges that the accident happened on March 16, 2007 on the main driveway leading to the entrance of Great Wolf Lodge in Pocono Township. Plaintiff claims that defendant Fedish, an employee of Pocono Township, negligently operated a Township owned automobile and hit plaintiff’s vehicle. Defendants Fedish and Pocono Township filed a motion for summary judgment arguing that under the Pennsylvania Political Subdivision Tort Claims Act plaintiff is not entitled to recover any pain and suffering type damages since she did not sustain a permanent loss of a bodily function as a result of the accident. Plaintiff and moving defendants filed briefs and argued their positions before the court on March 1, 2010.

DISCUSSION

Pennsylvania Rule of Civil Procedure 1035.2 permits the trial court to dismiss an action after the close of pleadings where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 204, 412 A.2d 466, 468-69 (1979). Summary judgment may only be entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Brecher v. Cutler, 396 Pa. Super. 211, 578 A.2d 481 (1990).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., 522 Pa. 367, 562 A.2d 279, 280 (1989). Only when the facts are so clear that reasonable minds cannot differ may a trial court properly enter summary judgment. Basile v. H & R Block Inc., 563 Pa. 359, 761 A.2d 1115 (2000). The trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Potter v. Herman, 762 A.2d 1116 (Pa. Super. 2000). The moving party bears the burden of proving that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997).

In response to a motion for summary judgment, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). Failure to allege such specific facts will result in summary judgment, if appropriate, against the non-moving party. Pa.R.C.P. 1035.3; Overly v. Kass, 382 Pa. Super. 108, 554 A.2d 970 (1989). The court must also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employers Mutual Companies, 294 Pa. Super. 577, 440 A.2d 616 (1982). A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant. Elia v. Olszewski, 368 Pa. 578, 84 A.2d 188 (1951).

In the case now before the court, plaintiff filed an amended complaint seeking damages for injuries sustained in the automobile accident. The damages sought by plaintiff include compensation for pain and suffering she experienced as a result of the “serious and permanent internal and external painful injuries” she claims to have ■endured. Moving defendants argue that under the Pennsylvania Political Subdivision Tort Claims Act, plaintiff is not entitled to pain and suffering type damages since she did not sustain a permanent loss of a bodily function. We agree.

Under the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8553, damages for pain and suffering shall be recoverable “only in cases of permanent loss of a bodily function, permanent disfigurement or permanent dismemberment where the medical and dental expenses ... are in excess of $1,500.” Our Commonwealth’s appellate courts have previously addressed the issue of whether an injury constitutes a permanent loss of a bodily function.

In Walsh v. City of Philadelphia, 526 Pa. 227, 585 A.2d 445 (1991),a basketball player injured while playing on a municipal playground court brought suit against the city, alleging that his injuries constituted a permanent loss of a bodily function and permanent disfigurement under the Political Subdivision Tort Claims Act. According to the parties’ stipulation of facts, if the plaintiff had testified, he would have stated that he felt as if something was missing at the fracture level, that he still experienced achiness (sic) at the level of the fracture and had “charley horses” in the left calf. Further, he sometimes felt as if his left knee did not want to extend completely. Both parties’ physicians agreed that there were no objective findings to support plaintiff’s complaints, as the knee did fully extend and had full range of motion. Both parties’ physicians agreed that there was a half-inch atrophy of the left quadricep and calf. Dr. Nappi, the original treating physician, would have testified that the atrophy was permanent. The plaintiff had resumed employment in the same capacities as before the accident. Although plaintiff had chosen to no longer pursue athletics, none of the physicians who examined him recommended that he refrain from sports.

In that case, the Pennsylvania Supreme Court defined the phrase “permanent loss of a bodily function” to mean that as a proximate result of the accident, the injured claimant is unable to do or perform a bodily act or acts which the claimant was able to do or perform prior to sustaining the injury and that the loss of such ability is permanent. The Supreme Court held that despite his subjective complaints of pain, the plaintiff’s injuries did not constitute a permanent loss of a bodily function and permanent disfigurement under the Political Subdivision Tort Claims Act.

Similarly, in Smith v. Endless Mountain Transportation Authority, 878 A.2d 177 (Pa. Commw. 2005), the Pennsylvania Commonwealth Court held that a handicapped patron, who was injured when her wheelchair fell over inside a municipal transit authority’s van and she struck her head on a metal chair lift, was not entitled to damages for pain and suffering because she had not sustained a permanent loss of a bodily function.

In that case, deposition testimony established that as a result of the accident, plaintiff fractured her C-l vertebrae and was required to wear a halo device for several months to stabilize the fracture. The bone healed but plaintiff will always have an abnormality in the form of a callous. The deposition testimony also established that plaintiff continues to suffer neck pain associated with the fracture and voluntarily wears a neclc brace to alleviate that pain.

The court held that the facts of record did not raise material questions of fact regarding permanent loss. In so holding, the court noted that without evidence suggesting that the callus attributable to the accident somehow prevented plaintiff from performing a bodily function that she was able to perform before the injury, the testimony failed to raise a question of fact sufficient to survive summary judgment on the issue of damages. The court further held that absent evidence indicating that the pain experienced by plaintiff somehow interferes with her ability to perform a bodily function, the deposition testimony that she continues to suffer neck pain and voluntarily wears a neck brace to alleviate it, fails to meet the Walsh standard.

Applying the holdings of Walsh and Smith to the case now before the court, we find that plaintiff has not suffered a permanent loss of a bodily function and that moving defendants are entitled to summary judgment on the issue of damages for pain and suffering. In the present case, the record reveals that plaintiff injured her face, nose, lip, chest, right hand, both knees, left foot, back, neck and shoulders. The plaintiff underwent a surgical procedure to correct a deviated septum. Her symptoms with regard to the deviated septum injury cleared up after six months, and there is no scarring from the procedure. The plaintiff cut her lip in the accident, but it did not require any stitches, and she is not having any problems associated with that injury. The plaintiff struck her upper chest on something inside the car, which caused bruising and contusions, which resolved within three months of the accident.

The plaintiff cut and bruised her right hand, and these conditions cleared up within six months. The plaintiff bruised both of her knees by striking them on the interior of her car, and the bruising and swelling cleared up within three to six months post-accident. The plaintiff’s right knee bothers her occasionally. The plaintiff also experienced pain in her left foot as a result of the accident, and this pain has improved over time. Plaintiff now has only occasional pain. The plaintiff also experienced stiffness in her upper back in the vicinity of her shoulders and neck area, which has improved over time.

The record shows that plaintiff is a runner, and since June 2008 has been able to run one to two miles three to five days per week. She works out at a gym three to five times weekly, and runs and lifts weights each time. Plaintiff has been discharged from care by all of her medical providers and has not treated with any medical providers since sometime in 2008. None of plaintiff’s medical providers have restricted plaintiff’s activities in any way.

Additionally, at the time of argument in this matter on March 1,2010, as well as in plaintiff’s answer to defendants’ motion for summary judgment, plaintiff asserted that she is awaiting a report from Dr. Matthew Nagorsky which would demonstrate that plaintiff’s nasal septum injuries constitute a permanent loss of a bodily function. The court held this matter in abeyance for 30 days in order to allow plaintiff to submit any such medical reports. When no such reports were submitted by April 1, 2010, the court issued an order dated April 6, 2010 giving plaintiff an additional one week period in which to submit medical reports. None were submitted. Plaintiff’s complaints regarding occasional knee pain or inability to wear high heels are subjective in nature and not supported by any evidence of record nor do such complaints, based upon the standards set by the Walsh and Smith cases, warrant a finding that plaintiff has suffered an injury which would allow her to recover damages for pain and suffering.

In short, the record is devoid of any evidence that plaintiff sustained a permanent loss of a bodily function, permanent disfigurement or permanent dismemberment from any injuries sustained in this automobile accident. Moving defendants are entitled to judgment.

ORDER

And now, April 14, 2010, the motion for summary judgment of defendants, John Fedish and Pocono Township a/k/a Pocono Township Supervisors a/k/a Pocono Township Board of Supervisors, is granted as to damages only. Plaintiff, Jean Marie Ucci, may not recover any pain and suffering type damages against defendants John Fedish and Pocono Township a/k/a Pocono Township Supervisors a/k/a Pocono Township Board of Supervisors.


author: BURR, J,

text:
    Commonwealth Financial Systems v. Smith

      C.P. of Delaware County,
    no. 06-53273.

      Edwin M. Matzkin, for plaintiff.

      Lawrence S. Rubin, for defendant.
    January 26, 2010
   BURR, J,

The plaintiff, Commonwealth Financial Systems, has appealed from the order of this court denying the plaintiff’s motion for post-trial relief in this action to collect a credit card debt allegedly due and owing by the defendant, Larry Smith. The plaintiff asserted error in the sort of evidentiary rulings that have become a growing subject in recent case law involving the collection efforts of second and third party purchasers of bundles of credit card debts against the customers of the original lenders. The issuer of the credit card at the core of this action was Citibank. In this case of apparent first impression, plaintiff failed to satisfy the requirements for the admissibility of business records under Pa.R.E. 803(6), and particularly the requirement that a business record be created “by, or from information transmitted by, a person with knowledge ____” Therefore, the chain of evidence presented did not adequately authenticate the computerized business records necessary to establish their trustworthiness and reliability sufficient to permit their admission into evidence.

The plaintiff also failed to present to the court a signed credit card application or an original contractual agreement between Citibank and the defendant; instead, the agreement proffered by the plaintiff post-dated the contract alleged to have been entered into by the defendant by seven years. This failure of the plaintiff to establish even the first element of its action for breach of contract against the defendant is equally fatal to any and all claims raised in this appeal.

The above-captioned matter was assigned to this court on plaintiff’s appeal from a finding in favor of the defendant on December 23,2008 by a panel of arbitrators. The complaint filed by the plaintiff alleged that plaintiff’s predecessor, Citibank, had issued the defendant a revolving credit card under account number **************** on or about November of 1989, and that the defendant had defaulted on her payments to Citibank both sometime in January of2002 and on February 7,2002. (Complaint, paragraphs 5 and 4, respectively.) The plaintiff appended, as “exhibit A” to its complaint, two monthly billing statements from that time period, but no listing or description of expenditures over the long term on which this debt was purportedly based. The first of these statements was issued to the defendant on February 25, 2002 and reflected receipt of a last payment posted by Citibank on February 7, 2002. (N.T. 24, 29-31; trial exhibit P-2.) That billing statement asserted that defendant’s next payment of $44 on a balance of $2,157.01 was due as of March 20,2002. The second billing statement appended to the complaint was issued to the defendant on March 26, 2002 and reflected a late fee of $35 on a past due payment that had not yet been received. (N.T. 32, 36-37; trial exhibit P-2.)

A thorough perusal of the relevant exhibits appended to the complaint, which was filed on March 7,2006, adduces that, if defendant’s default could be dated from March 20,2002, the complaint had been filed within the applicable four-year statute of limitations for a cause of action alleging breach of contract. 42 Pa.C.S. §5525(a). Nevertheless, inartful and inconsistent pleadings by the plaintiff created unnecessary tensions in resolving the question as to when the defendant’s alleged default on this account had actually taken place, whether in January of2002 or February 7,2002, as alleged in the complaint, or by the failure to make a payment by March 20,2002, or on March 26,2002 when Citibank charged defendant a late fee for missing that payment according to the exhibits appended to the complaint.

The plaintiff appended, as “exhibit B” to its complaint, a standard form copy of a 1996 “Citibank card agreement”, formulated nearly seven years following the initiation of the defendant’s Citibank credit card account and showing no signature of the defendant. This document reflects an identification number of “********/ *******”, a number bearing no relationship to the account number at issue, plus the dates: “Rev. 9/96 Pr. 7/97” reflecting the dates of the agreement’s revisions. (N.T. 17; trial exhibit P-1.) The allegation of 23.99 percent interest per annum alleged to be due and owing by the defendant in paragraphs 6 and 9 of the complaint, on an account that had been originated in 1989, is clouded by the 1996 card agreement’s statement that its per annum interest percentage would be raised from 12.9 percent to an amount “not... lower than 19.8 percent” in the event of default in payments on the account, and not the 23.99 percent therefor that was alleged in the complaint. (N.T. 65.) This latter figure is said to include the extant prime interest rate as of the year 1996 or 1997, a rate that would surely differ from that in existence in 1989.

Statements in this document also leave open the questions as to whether or not the defendant had been allowed a variable annual rate of interest on the account in addition to the actual escalated rate of interest that could be charged upon default, besides the quantum of attorney fees that assertedly could be recovered in that event. Citibank’s billing notices to the defendant stated a 12.150 percent “annual percentage rate” of interest owing on standard purchases in the amount of $ 1,767.64 and 2.900 percent on “Balance 1” purchases in the amount of $398.03, plus “periodic rates” of interest on both groups of purchases respectively of0.03329 percent and 0.00795 percent as of February 25, 2002 and March 26, 2002. It is here noted that the defendant apparently did not use the card for cash advances prior to the relevant time, as none appear as due and owing on either of the proffered billing statements. And clearly, any rates of interest reflected in a 1996 standard form unsigned Citibank card agreement cannot be alleged as being in effect for a Citibank credit card issued to the defendant in 1989.

The plaintiff appended, as “exhibit C” to the complaint, a “bill of sale, assignment and assumption agreement” dated July 14, 2004 between Citibank and NCOP Capital Inc., wherein Citibank, as seller, conveyed to NCOP Capital Inc. and to its successors and assigns “the accounts described in section 1.2 of the agreement.” (N.T. 3 8; trial exhibit P-3.) S ection 1.2 was not attached to the plaintiff’s complaint, but was presented and discussed during the trial, albeit not for purposes of admission as an exhibit. (N.T. 41-45.) Citibank’s signatory on this “bill of sale” was its CFO, Douglas C. Morrison, andNCOP’s signatory was Michael B. Meringolo, as senior vice-president of that company.

The plaintiff appended, as “exhibit D” to the complaint, a “bill of sale, assignment and assumption agreement” dated July 19, 2004 between NCOP Capital Inc. and the plaintiff, Commonwealth Financial Systems Inc., wherein NCOP, as seller, conveyed to the plaintiff and to its successors and assigns “the accounts described in section 1.2 of the agreement.” (N.T. 40; trial exhibit P-4.) Here again, section 1.2 was not attached to the plaintiff’s complaint, but was presented and discussed at trial, albeit not for purposes of admission as an exhibit. (N.T. 41-45.) The plaintiff’s signatory on this “bill of sale, assignment and purchase agreement” was its president, JohnKotula, andNCOP’s signatory was, again, Michael B. Meringolo, as senior vice-president of that company.

The plaintiff appended, as “exhibit E” to the complaint, the following notarized affidavit of one Michael Chiodo, of “NCO Portfolio Management Inc.; its subsidiaries and affiliates”, signed on September 24,2004, and referencing the foregoing Citibank account number of the defendant, Larry Smith, and Smith’s Social Security number in the heading:

“Michael Chiodo, being sworn, deposes and says that the affiant making this affidavit is an employee of NCO Portfolio Management Inc.; it’s [sic] subsidiaries and affiliates, (the company), which is located at 507 Prudential Road, Horsham, PA 19044. The affiant is authorized to make the statements and representations herein. The company’s business records show that as of July 19, 2004, there was due and payable from account no. **************** amount of $2,780.04. The company’s business records show that this account was opened on 11/1/89. The affiant states that to the best of affiant’s knowledge, information and belief there are no uncredited payments against said debt.”

The court here notes that Mr. Chiodo’s testimony was not presented at the trial of this case on July 16, 2009.

Plaintiff pleaded the amount of $5,435.93, plus interest at 23.99 percent per annum commencing on the file date of the complaint on March 7, 2006, plus attorney fees at a rate of 20 percent (now “reasonable” attorney fees) and costs in Count I thereof, arising from the defendant’s alleged breach of Citibank’s card agreement, and these same damages in a Count II alleging quantum meruit or quasi contract. (N.T. 49; trial exhibit P-6, available in the record.) At the trial, the plaintiff presented, as its only witness, its vice-president, Daniel Venditti, who said he was responsible for overseeing the company’s portfolio collection division. (N.T. 13, 15.) Mr. Venditti indicated that the plaintiff’s sole business is debt purchasing and debt collection; that he became involved with debt buyers who purchase accounts from Citibank in 2001; and that he had never been directly employed by Citibank or any other issuer of credit cards. (N.T. 14, 21-22, 34-36.) This witness said that, in a debt purchasing arrangement, the records of the seller become those of the buyer and that the documents associated with particular accounts were provided to the plaintiff electronically in a form known in the jargon of the industry as “media” by NCOP Capital Inc., the first broker that had purchased the bundle of Citibank credit card debts in which the defendant’s was included. (N.T. 23, 26-29, 38-39.)

Referring to the “bills of sale and assignment and assumption” agreements appended to the plaintiff’s complaint as exhibits C and D, respectively, Mr. Venditti said that NCOP Capital Inc. purchased the spread of accounts, which, according to the witness, could be 10 accounts or 5,000 accounts, from Citibank and that the plaintiff had, in turn, purchased that spread of accounts that included the defendant’s from NCOP Capital Inc. (N.T. 38-41; trial exhibits P-3 and P-4.) Mr. Venditti went on to discuss the “debt spread” for the within bundle of accounts that apparently comprised the “section 1.2” referenced in the foregoing “bills of sale and assignment and assumption” agreements. (N.T. 41-45; trial exhibit P-4.) Information regarding the defendant that was set forth in this document included the defendant’s address, town, state, zip code, home and work telephone numbers, the original credit card account number, Social Security number, default interest rate, the date the account was opened (November 1,1989), the date of the last payment, principal balance, balance with accrued interest, the date of the charge off, and the final balance due and owing, an amount reflected in the document as “$4,215.01” as of September 25, 2002. (N.T. 44-45.) The witness said that interest at a rate of 23.99 percent has continued to accrue on the defendant’s account since the time of default in March of 2002. (N.T. 46-47.)

The defendant’s trial counsel questioned Mr. Venditti regarding the chain of the available evidence as well as Mr. Venditti’s qualifications to present that evidence. The witness again stated that Citibank had sold the defendant’s account to NCOP Capital Inc., and that NCOP Capital Inc. had sold the debt to the plaintiff. (N.T. 50.) Mr. Venditti admitted that he had no knowledge as to Citibank’s records and how Citibank handles those records, such as when they had this specific account. (N.T. 50.) Mr. Venditti also admitted that he possessed no such knowledge with regard to NCOP’s method of record keeping or business model. (N.T. 51.) This witness stated that NCOP’s business records are kept on computers, but admitted that he had no knowledge of how NCOP keeps their computers, how they back up their computers, nor intimate knowledge of the workings of NCOP’s Internet Technology (IT) department, and could not say for certain whether the relevant data in NCOP’s computers was protected. (N.T. 51-52.) Mr. Venditti, while emphasizing that he had no such personal knowledge, lamely offered that “NCO [sic] is SAS-70 qualified ... [and has, therefore,] passed a very rigorous examination of their internal technology system in order to protect their data... [t]hat is the extent of my knowledge.” (N.T. 52-54.) When asked by the court to define SAS-70, Mr. Venditti explained that it “is a test on multiple levels and multiple fields of a computer system to ensure data integrity in all aspects; data protection, virus corruption protection and everything else.” (N.T. 77.) Nevertheless, plaintiff never showed that Mr. Venditti’s reliance upon a fulfillment of this requirement by Citibank and NCOP Capital Inc. was well founded and, indeed, fully justified.

The witness said that he never asked, but merely assumed, that the electronically transmitted spreadsheet for the accounts purchased from Citibank and passed on to the plaintiff by NCOP Capital Inc. was protected. (N.T. 54-55.) Mr. Venditti said he had no personal knowledge as to whether that data was inaccurate or had been corrupted at any time prior to plaintiff’s receiving it, nor knowledge that the same wasn’t so when Citibank transmitted the data to NCOP Capital Inc. in the first instance. (N.T. 55-56.) Moving to Mr. Venditti’s qualifications to discuss the data in question, the witness answered plaintiff’s counsel’s questions as to whether or not he possessed personal knowledge that the entries on the alleged statements were made at or near the time of the events, and whether the data was transmitted by someone with knowledge, in the negative. (N.T. 55.)

In the matter of the last revision date of “7/97” reflected on the proffered 1996 Citibank card agreement, Mr. Venditti said that the agreements are not revised every year and that the last revision before defendant’s alleged default took place was in 1999, with the last ever revision thereof being made in 2004. (N.T. 60-61; trial exhibit P-1.) When pressed to answer whether or not the much revised Citibank card agreement in question applied to the defendant, Mr. Venditti could offer no clear response. (N.T. 61-63.) The witness, however, admitted that the agreement bears no mention of a 23.99 interest rate, and that it states only that “we may immediately increase your variable annual percentage rate, including any introductory or promotional rate on any existing purchase, cash advance, balances or higher rate of 12.9 plus the prime rate determined above [and that] [t]his higher rate will not be lower than 19.8 percent.” (N.T. 63-65; trial exhibit P-1.) Mr. Venditti testified that 19.8 percent would be the minimum rate in the event of default, but that he did not know what the prime rate of interest was in 2002. (N.T. 66.) Mr. Venditti also related that the relevant section of the Citibank card agreement bears no mention of the “20 percent counsel fees” sought by the plaintiff in this action. (N.T. 66-68.)

At the close of the trial, defendant, through counsel, objected to the admission of all of the plaintiff’s exhibits on grounds that they were not qualified under Pa.R.E. 803(6) inasmuch as plaintiff had not shown that they were created at or near the time of the events in question, nor transmitted by a person with knowledge, nor, indeed, that the proffered Citibank card agreement was the agreement extant at the time of defendant’s assumption of this credit card account. (N.T. 81-82.) Plaintiff’s counsel initially replied “yes” when the court commented:

“[Djon’t you need to have a custodian or other qualified witness, which seems to me could be from Citibank ... or Citibank Platinum ... to comply with 803(6), the records exception to the hearsay rule?”

The court continued:

“Because data compilation in that rule does include, according to the comments, includes records in any form and it encompasses computerized data storage. This gentleman as knowledgeable as he is with his work with Commonwealth Financial Systems, doesn’t work— wasn’t employed by Citi Platinum regarding this particular account it seems to me. And I question whether you have the testimony of a custodian or other qualified witnesses — witness to indicate the trustworthiness of these documents.” (N.T. 82.)

Plaintiff’s counsel argued in return that, in this new computer age and according to emerging case law, NCOP Capital Inc. had the right to rely upon Citibank’s representations as to the accuracy of the within data, and that the plaintiff had the right to rely upon the same representations from NCOP Capital Inc. and to accept it as the output of Citibank, noting that it would be impossible for Citibank to provide a records custodian to testify in every one of the hundreds of thousands of its credit card debt collection cases like this one flooding into the nation’s courts right now. (N.T. 82-86.) Plaintiff’s counsel also indicated that debts such as the defendant’s are written off by Citibank and sold to nothing more than debt collections agencies like the plaintiff to attempt to collect them. (N.T. 84-85.) Besides reflecting that the enormous interest rates charged by Citibank might be used by its attorneys to seek collection of these debts, the court replied, “I’m just not sure that Mr. Venditti... is the right person to establish the Citibank records.” (N.T. 88.)

The court subsequently issued a verdict in favor of the defendant and the plaintiff’s timely filed motion for post-trial relief was denied. The court appended the following footnote to the verdict noting that it was “based, inter alia, upon the inadequate authentication of computerized business records as required by Pa.R.E. 803(6).” The plaintiff has submitted the following concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b):

“(a) The court made an error of law in failing to award sanctions in favor of [plaintiff] and against defendant pursuant to Pa.R.C.P. 234.5 andPa.R.C.P. 4019(c)(2), or order the appearance of the defendant despite her counsel having been provided with a notice to attend within a reasonable time prior to trial, once the parties were assigned a trial date and for allowing the defendant to support her defenses, by and through statements and questioning by her counsel, despite her willful disregard of the notice to attend.

“(b) The court made an error of law by denying into evidence [plaintiff’s] exhibits including cardmember agreement, representative monthly statements from the original creditor, Citibank, documents supporting the chain of title from original creditor to [plaintiff] and affidavit of intermediary as to defendant’s name, identification numbers and balance due as “business records” pursuant to Pa.R.E. 803(6).

“(c) The court made an error of law by denying into evidence [plaintiff’s] exhibits including the cardmember agreement, representative monthly statements from [the] original creditor, Citibank, documents supporting the chain of title from [the] original creditor to [plaintiff] and affidavit of intermediary as to defendant’s name, identification numbers and balance due despite testimony of a ‘witness with knowledge’ pursuant to Pa.R.E. 901(b)(1).

“(d) The court made an error of law by denying into evidence [plaintiff’s] exhibits including the cardmember agreement, representative monthly statements from [the] original creditor, Citibank, even though said documents are self-authenticating pursuant to Pa.R.E. 902(7), containing trademarks and inscriptions affixed by Citibank.

“(e) The court abused its discretion in denying into evidence the documents stated above without any reference to their trustworthiness or untrustworthiness pursuant to the standards established in Fauceglia v. Harry, [409 Pa. 155], 185 A.2d 598 (1962) and Ganster v. Western Pennsylvania Water Co., [349 Pa. Super. 561], 504 A.2d 186 [(1985)].” (Plaintiff’s concise statement of matters complained of on appeal, pp. 1-2.)

The plaintiff’s contentions, which can be summarized as arising from the defendant’s absence from the trial and the preclusion of plaintiff’s trial evidence, are discussed under the appropriate headings below.

TEE DEFENDANT’S ABSENCE FROM TEE TRIAL

The plaintiff contended error in the court’s failure “to award sanctions in favor of [plaintiff] and against defendant pursuant to Pa.R.C.P. 234.5 andPa.R.CR. 4019(c) (2), or order the appearance of the defendant despite her counsel having been provided with a notice to attend within a reasonable time prior to trial, once the parties were assigned atrial date and for allowing the defendant to support her defenses, by and through statements and questioning by her counsel, despite her willful disregard of the notice to attend.” (Concise statement, paragraph (a).) The record, however, reflects that the plaintiff’s notice to attend was not timely sent and that plaintiff did not request the court to order the appearance of the defendant at the trial.

The plaintiff appended, as exhibit “A” to its motion for post-trial relief, a copy of the aforesaid “notice to attend” directing the defendant to appear for trial in this matter scheduled for July 16, 2009, and a facsimile cover sheet evincing that the said notice was sent to defendant through her counsel on July 14,2009. (Plaintiff’s motion for post-trial relief, exhibit “A”.) At the commencement of the trial, the following dialogue ensued between plaintiffs and defendant’s counsel and the court:

“Plaintiff’s Counsel: I note that the defendant isn’t here. I did file a motion [sic] to attend pursuant to Rule 234.3 and she is not here. I would therefore ask for . . . appropriate sanctions pursuant to 4019(c), that the defense will not be permitted to support or oppose any claims or defenses [and] prohibiting the party from introducing into evidence any documents, things or testimony.

“Defense Counsel: Your honor with — to respond to that, Mr. Matzlcin waited until the day before trial to serve that notice. I received it yesterday. 234.2 or 4 I believe he’s referring to talks about reasonable notice. Now I don’t think the day before trial is reasonable notice in light of the fact that my client wasn’t even there during the arbitration and he knew she wasn’t there and he complained that he wasn’t able to cross-examine her. Now it has been months and months and months since the arbitration. He knew that she was an elderly person. He knew that I wasn’t going to bring her. And yet he waits until the day before trial to send the notice. I was —on that day I had a hearing in bankruptcy court. How could I possibly bring in an elderly woman with medical problems and prepare her and go and do my bankruptcy hearing the day before trial? I don’t think the statute thinks that’s a reasonable notice. I think reasonable notice is 30 days, but even if it’s not 30 days I don’t think it’s one day.

“The Court: Why did you wait, Mr. Matzkin?

“Plaintiff’s Counsel: ... We received — my office received a telephone call on July 10 assigning the matter for today.

“The Court: And you were — before that you knew you were on the June 22 trial list.

“Plaintiff’s Counsel: We clearly were on the list. However the notice to appear, which is a prescribed form from the state, tells the person that they have to appear in such and such courthouse, such and such [c]ourtroom at such and such time.

“The Court: Well you can put [TBA] in there.

“Plaintiff’s Counsel: I didn’t have that information.

“The Court: Well, you knew it was going to trial. You wanted [the defendant] at trial. You could have even written Mr. Rubin a letter saying, ‘Please produce your client.’

“Plaintiff’s Counsel: I did.

“The Court: Let me just indicate... so the record and the court reporter isn’t [confused] that the defendant is Larry Smith, but I understand Larry Smith is a female.

“Defendant’s Counsel: Larry Smith is an elderly woman.

“The Court: Okay. So somebody isn’t confused when we’re referring to ‘her’ or ‘she’ that that’s the defendant, Larry Smith.

“Plaintiff’s Counsel: Since she did not appear at arbitration, I don’t know how old she is and I have no idea of her health condition, nor do I care to be perfectly frank. I filed a notice pursuant to a rule. I believe based upon the advice of when the matter was going to trial it was timely because Mr. Rubin, in my opinion, should have known that he would have to produce his defendant, his client to appear at a trial.

“The Court: No he doesn’t. It could be his trial strategy that he decides not to produce his client. If you want her there, you should file a notice. . . [reading from Pa.R.C.P. 234.3] ‘The notice shall be served reasonably in advance of the date upon which attendance is required. It may also require the party to produce documents or things.”’(N.T. 4-9.)

Following additional discussion adducing that defendant’s attorney did not plan to produce his client as a trial witness, the court denied plaintiff’s motion for sanctions in the nature of prohibiting the defendant from supporting or opposing any claims or defenses and from introducing into evidence any documents, things or testimony on grounds that the notice to appear at the trial was untimely sent by the plaintiff to the defendant through her counsel. (N.T. 4-5, 9-11.) The court here again notes that plaintiff’s counsel never asked the court to order the defendant’s appearance at that proceeding. Most crucially for the viability of this contention, however, is the fact that plaintiff’s counsel raised no objection of record to the court’s denial of its motion for sanctions on grounds that the notice to attend was untimely. (N.T. 10-11.) This contention, therefore, must be deemed waived. Pa.R.C.P. 227.1(b)(1); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

PRECLUSION OF PLAINTIFF’S TRIAL EVIDENCE

The plaintiff contended error in the preclusion of its five trial exhibits: P-1 (1996 Citibank card agreement (Rev. 7/97)); P-2 (four Citi Platinum Select Card billing statements purportedly sent to the defendant bearing closing dates of December 26, 2001, January 25, 2002, February 25, 2002 and March 26, 2002 — with the third of these evincing a last payment received from the defendant on February 7, 2002); P-3 (bill of sale, assignment and assumption of agreement adducing a sale of the defendant’s account by Citibank to NCOP Capital Inc. on July 14,2004); P-4 (bill of sale, assignment and assumption of agreement adducing a sale of the defendant’s account by NCOP Capital Inc. to the plaintiff on July 19, 2004, attached to which is a heavily redacted document without headings delineating notations on an unredacted line assertedly showing the defendant’s Citibank account number, Social Security number, an unexplained rate of interest reported as “23.99 percent”, a notation of “11/01/1989”, presumably indicating the date of the opening of the account, a notation of “02/07/02” which could be taken as the date of a receipt of a payment listed as “$45” from the defendant, whose address, zip code and telephone number plus notations of“$3,988.64”, “$4,215.01”, “09/25/2002” and “$4,215.01” that follow the defendant’s telephone number); and P-5 (the signed and notarized affidavit of NCOP’s representative, Michael Chiodo, stating thatNCOP’s business records show that the defendant opened the subject account on “11/1/89” and that, as of July 19, 2003, the sum of $2,780.04 was due and owing on the account.

The plaintiff raised a number of grounds in the following respective paragraphs of its concise statement in contending error in the preclusion of the foregoing evidence, to wit: (b) that the evidence was admissible under the business records exception to the hearsay rule set forth in Pa.R.E. 803(6); (c) that Mr. Venditti’s testimony regarding the plaintiff’s trial exhibits was that of a “witness with knowledge” pursuant to Pa.R.E. 901(b)(1); (d) that the exhibits are self-authenticating pursuant to Pa.R.E. 902(7), because they bear trademarks and inscriptions affixed by Citibank; and (e) that the court abused its discretion in precluding the exhibits without any reference to their trustworthiness or untrustworthiness pursuant to the standards established in Fauceglia v. Harry, 409 Pa. 155, 185 A.2d 598 (1962), and Ganster v. Western Pennsylvania Water Co., 349 Pa. Super. 561, 504 A.2d 186 (1985).

The plaintiff submitted post-trial argument in a brief submitted on October 9,2009, or some two months following the submission of its memorandum of law in support of the motion for post-trial relief, to which were appended the above-listed five exhibits the plaintiff had proffered at the trial. It is here recalled that the plaintiff also provided in its brief a correction of plaintiff’s prior assertion in the said memorandum of law that Citibank had initially sold the defendant’s account to a purchaser other than NCOP Capital Inc., a mistake belying the integrity repeatedly asserted by the plaintiff in urging that an unbroken chain in plaintiff’s receipt of this evidence guaranteed its reliability in and of itself (Plaintiff’s brief in support of motion for post-trial relief, unnumbered p. 2.)

Defendant contended in the within brief that rule 803(6)’s inclusion of “data compilation, in any form” as a hearsay exception necessarily encompassed the computerized records or statements submitted at the trial because today’s business climate demands a “high degree of accuracy” therein; because the said records are customarily checked for correctness; and because those who keep those records are trained in habits of “precision”, with citation to the case authority of Papach v. Mercy Suburban Hospital, 887 A.2d 233, 246 (Pa. Super. 2005). (Id., unnumbered p. 4.) The plaintiff further stated that all persons, including its trial witness, Mr. Venditti, who were involved in the alleged “compilation” of the submitted media acted in the course of a regularly conducted business activity and not as bystanders to that event. (Id.) In plaintiff’s view, Mr. Venditti, who clearly testified that he had never been directly employed by Citibank or by any other issuer of credit cards; that he possessed absolutely no knowledge of Citibank’s, nor of NCOP’s record-keeping schemes and could not personally attest to their trustworthiness, accuracy, freedom from corruption, nor how they were maintained or backed up; and that he could not show whether or not they were protected from corruption or hacking, was not an “outsider” or “bystander” to that record-keeping process because he was “an experienced corporate officer with years of experience in the credit industry” acting within the scope of his duties. (Id.; N.T. 34-36, 50-56.) In fact, all this witness could offer in the way of personal knowledge regarding the within business records was a bald-faced presumption that the records proffered as plaintiff’s trial exhibits had been “SAS-70 qualified”, and the statement that this presumption was the “extent of his knowledge” of those records. (N.T. 52-54.) Yet, when pressed by the court to define what was meant by “SAS-70”, Mr. Venditti offered a mere boilerplate explanation that it “is a test on multiple levels and multiple fields of a computer system to ensure data integrity in all aspects; data protection, virus corruption protection and everything else” and nothing more. (N.T. 77.)

The limits of Mr. Venditti’s knowledge were vast. He could offer no clear response as to whether the 1996-1997 Citibank card agreement proffered by the plaintiff applied to the defendant, and admitted that there is no sign of a “23.99 percent” interest rate on the face of that document. (N.T. 61-65.) Plaintiff’s counsel also acknowledged that the debts sought to be collected by the plaintiff had been “written off’ as uncollectible by Citibank, for reasons arguably including the problem of proving them due and owing, as was the issue underlying the preclusion of plaintiff’s evidence in the instant case. (N.T. 84-85.) Nevertheless, even if plaintiff had submitted a valid contract upon which to sue the defendant for collection of the alleged debt, plaintiff never provided a sufficient foundation through a qualified witness to show that a reliance on Citibank’s business records and those submitted through NCOP Capital Inc. was justified. Nonetheless, plaintiff has submitted a plethora of reasons as to why its evidence should be unquestioningly admitted, including boilerplate claims that the banking industry is required to adhere to policies of honest, trustworthy and meticulous record keeping according to public policy as well as state and federal statutory schemes. However, Mr. Venditti could not say for certain whether those requirements had actually been followed in the preparation and maintenance of these records because, simply put, he was never in a position to know.

It is the law of this Commonwealth that, so long as a witness can provide sufficient information relating to their preparation and maintenance to justify a presumption of the trustworthiness of the business records of a company, a basis is provided to offset the hearsay character of the evidence presented. In re Estate of Indyk, 488 Pa. 567, 413 A.2d 371 (1979); Fauceglia v. Harry, 409 Pa. 155, 185 A.2d 598 (1962); and Ganster v. Western Pennsylvania Water Company, 349 Pa. Super. 561, 504 A.2d 186 (1986). Pennsylvania’s Uniform Business Records as Evidence Act, 42 Pa.C.S. §6108 provides, in relevant part, as follows:

“A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of it preparation, and if it was made in the regular course of business at or near the time of the act, condition or event and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such to justify its admission.” 42 Pa.C.S. §6108.

The question of whether documents should be admitted under the “business records” exception to the hearsay rule is within the discretionary power of the trial court, provided that such discretion is exercised within the Uniform Business Records as Evidence Act. Boyle v. Steiman, 429 Pa. Super. 1, 15, 631 A.2d 1025, 1032 (1993). It is not essential under the Act to produce either the person who made the entries or custodian of the record at the time the entries were made, nor does the law require that a witness qualifying business records have personal knowledge of the facts reported in the business record. In re Estate of Indyk, supra, 488 Pa. at 573, 413 A.2d at 373; Boyle v. Steiman, supra, 429 Pa. Super, at 15, 631 A.2d at 1032. As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of records to justify a presumption of trustworthiness for the business records of a company, or in this case, companies, a sufficient basis is provided to offset the hearsay character of the evidence. Id. Mr. Venditti’s admission to knowing nothing regarding any of the foregoing regarding Citibank’s and NCOP’s business records utterly disallowed him from attesting to their trustworthiness, and hence, precluded their admission as evidence into the record.

With regard to the plantiff’s urging of the unquestioning admission of computerized records by dint of their purportedly mythical status of dominating the current business record keeping environment, Professor Edward Ohlbaum teaches us that computer generated records are admissible as records of a regularly conducted activity if: (1) the entries justify the four foundational requirements of business records; (2) there is evidence that that computer process produces an accurate result when correctly used and properly operated; and (3) it was used and operated properly with respect to the records presented. Ohlbaum, Pennsylvania Rules of Evidence (2008-2009 edition), section 803.07(18). The plaintiff presented no evidence or testimony describing the computer processes of Citibank and NCOP Capital Inc., nor credible testimony from Mr. Venditti as to whether or not they produced accurate results or were properly operated so as to produce the exhibits presented. All the plaintiff has ever proffered as reasoning for the admission of its trial exhibits has been the boilerplate contention that, since plaintiff uncritically accepts these records as accurate, and adheres to its self-serving belief that Mr. Venditti is an “insider” with adequate knowledge of the regularity of the record-keeping process to qualify the challenged records as reliable and trustworthy, the court should also accept them uncritically. In re Estate of Indyk, supra, 488, Pa. at 573, 413 A.2d at 373. Nevertheless, even plaintiff’s own proffered legal case authorities require that an actual insider to the instant record-keeping process, and not an admitted outsider like Mr. Venditti, must attest to the authenticity of business records so as to remove the taint of hearsay necessary for warranting their admission into evidence by a court.

The Pennsylvania Supreme Court, writing in 1962 in Fauceglia v. Harry, supra, 409 Pa. at 158-59, 185 A.2d at 600, in terms that seem terribly quaint in 2010 about why Pa.R.E. 803(6) and the Business Records as Evidence Act, supra, do not require that a person who testifies have personal knowledge of the matter recorded (as distinguished from personal knowledge of the manner in which such matters are recorded and kept, a difference gone largely unregarded by the plaintiff), stated:

“The general purpose of the Business Entry Statute was to enlarge the old common-law shopbook exception to the hearsay rule by eliminating the many illogical distinctions which had evolved during the period when the one-man type of business enterprise was the predominant form of business organization. Today, instead of a single shopkeeper who transacts and records the sale, there are a myriad of sales girls, department heads, bookkeepers, etc., etc., etc., who compile summaries and consolidate the records made by others. Quite often, different individuals have personal knowledge of the various phases of a transaction so that no one individual has knowledge of the entire transaction. In addition, the frequent turnover of personnel often makes it impossible to identify the employee — if it were only one — who took part in the transaction. Under these circumstances, to require the entrant to have personal knowledge of the event recorded, and to require proof of the identity of the recorder, would exclude almost all evidence concerning the activities of large business organizations — a result diametrically opposed to the purpose and spirit of the Uniform Business Records as Evidence Act.

“In Panama Canal Co. v. Stockard & Co., 391 Pa. 374, 381-82, 137 A.2d 793, 798 (1958), we indicated the necessity for admitting business records where the recorder did not have personal knowledge and where those who did have personal knowledge were not identified, we said: ‘. . . the . . . [checkers] have in many cases changed and the former ones cannot be found; in the next place, it cannot always be ascertained accurately which ... [checker] was concerned in each of the transactions represented by hundreds of entries; in the third place, even if they could be ascertained, the production of scores of... [checkers], to attend court and identify in tedious succession the detailed items of transactions would interrupt and derange the work of the. . . [carrier], and the evidence would usually be obtained at a cost practically prohibitory; and finally, the memory of such persons, when summoned, would afford little real aid. 5 Wigmore Evidence §1530____’ Therefore, as long as someone in the organization has personally observed the event recorded, the evidence should be admitted. ” Id. (emphasis added) (footnotes ommited)

Accord: Commonwealth v. Bardolph, 123 Pa. Super. 34, 43, 186 A. 421 (1936), aff’d, 326 Pa. 513, 192 A. 916 (1937) (holding it sufficient if books were verified by one in control, although the entries therein were not made by him, if he knew them to be regular entries); Fauceglia v. Harry, supra, cited by the plaintiff as a gold standard in this regard (custodian of statutorily self-authenticating U.S. military medical records testified that all entries had been made by those with personal knowledge of the material they were adding to those records); Boyle v. Steiman, supra, (private detective agency’s business records were admissible when a witness was able to describe the process by which the records were made by himself, his brother and his father).

Conversely, as noted by the Honorable Mark I. Bernstein in section 803(6)[5] on p. 721 of the 2008 edition of Pennsylvania Rules of Evidence with comments and annotations (Gann Law Books, Newark, N.J.), the courts of this Commonwealth have held that where there is no witness available with the ability to testify as to the mode of preparation of a purported business record, it will be deemed inadmissible. Peled v. Meridian Bank, 710 A.2d 620, 626 (Pa. Super. 1998), appeal denied, 556 Pa. 711, 729 A.2d 1130 (1998) (business records of a bank inadmissible because the witness did not work for that bank and had no knowledge of the method of preparation and maintenance of its records). Further, a 2001 amendment to Pa.R.E. 803(6) permits business records to be authenticated by certification in a writing complying with the mandates of Pa.R.E. 902(11) or 902(12) by a custodian or other qualified person subject to penalties for false statements as to all of the facts necessary for admission of that evidence at trial. Plaintiff has presented no such certification authenticating its evidence before this court.

Plaintiff’s continued insistence that Mr. Venditti’s knowledge and experience in the field of collecting outstanding credit card debt makes him an “insider” with the requisite credibility and information to remove the taint of double hearsay from his testimony about Plaintiff’s exhibits cannot make him so. The presence of Citibank trademarks on the card agreement and billing statements cannot overcome this deficit. The simple fact is that no proper foundation for the evidence sought to be admitted by plaintiff was ever properly laid.

CONCLUSION

The standard for appellate review of a trial court’s decision regarding the admissibility or preclusion of trial evidence is extremely narrow, necessitating that such a ruling will not be reversed absent a manifest abuse of discretion. Eichman v. McKeon, 824 A.2d 305, 319 (Pa. Super. 2003). To constitute reversible error, an evidentiary ruling must be shown by an appellant to be not only erroneous, but also harmful or prejudicial to its interests. Ettinger v. Triangle-Pacific Corporation, 799 A.2d 95, 110 (Pa. Super. 2002). Further, a trial court’s decision regarding the grant or refusal to grant a new trial will not be reversed absent an abuse of discretion or error of law, and if the rulings in question in an appeal were on the evidence, those which did not affect the verdict will not provide a basis for disturbing it. Antoniotti v. Eckels, 840 A.2d 1013, 1015-16 (Pa. Super. 2003). In making such a determination, the appellate court must consider whether a new trial would have produced a different verdict from the original. Gunn v. Grossman, 748 A.2d 1235, 1239 (Pa. Super. 2000). If there is any support in the record for the trial court’s denial of a new trial, its order will be affirmed. Folger ex rel. Folger v. Dugan, 876 A.2d 1049, 1054 (Pa. Super. 2005).

Three elements are necessary to properly plead and prove a cause of action for breach of contract: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages. Omicron Systems Inc. v. Weiner, 860 A.2d 554, 564 (Pa. Super. 2004). It has been shown that there was neither error nor abuse of discretion in the court’s preclusion of the plaintiff’s five trial exhibits, and where the plaintiff has claimed harm or prejudice resulting therefrom, such is of no moment inasmuch as the plaintiff never met its threshold burden of proving the existence of a contract that the defendant allegedly breached. In such an instance, a new trial could not have resulted in a verdict for the plaintiff. Cf., Capital One Bank (USA) NA v. Clevenstine, 7 D.&C.5th 153 (Centre Cty, 2009) (dismissing complaint and allowing more specific pleading on ground that an unsigned credit card agreement pre-dating the initiation of a credit card account by four years cannot be enforced by the original lender); and Chase Bank USA v. Rader, 8 D.&C.5th 297 (Lancaster Cty, 2009) (original credit card lender’s failure to produce a signed and dated credit card agreement and complete statement of charges allegedly owed by the defendant merited dismissal of the plaintiff’s motion for summary judgment).

Moreover, based on plaintiff’s failure to establish the trustworthiness and reliability of the proffered computerized business records, by authenticating them through the testimony of “a person with knowledge...”, the court did not manifestly abuse its discretion when it precluded their admissibility under the business records exception to the hearsay rule set forth in Pa.R.E. 803(6).

For all of the foregoing reasons, the court’s verdict in this action, and the evidentiary rulings that gave rise to that verdict, must not be disturbed on appeal.

      . These averments indicate a maddening inexactitude in an inartfully constructed complaint. In the complaint, plaintiff alleged a contracting date for defendant with Citibank of 1989, but at the trial of this case that took place on July 16,2009, plaintiff’s counsel stated, apparently for the first and only time, that the defendant got the Citibank credit card in “1999.” (Complaint, ¶3; 7/16/09 N.T. 20.) Nevertheless, an affidavit appended as “exhibit E” to the complaint and the plaintiff’s own trial witness, Daniel Venditti, testifying about a document listing the particulars surrounding the within debt, gave the date of the opening of this account as “November 1, 1989.” (N.T. 44.) (emphasis added) Lastly, apparently realizing the mistake, plaintiff asserted in argument supporting its post-trial motion that the date of this contract was in November of 1989. (Plaintiff’s memorandum of law and subsequently filed brief in support of motion for post-trial relief, pp. 1, respectively.) Plaintiff has yet to explain or elucidate how and why it concluded that it was acceptable to pursue a claim in our courts based on a contract the plaintiff neither saw nor signed.
      Plaintiff’s unfocused presentation of this matter to this court took an even odder turn with an averment in the memorandum in support of its post-trial motion filed July 30, 2009, that Citibank had sold the defendant’s debt to “Unifund CCR Partners”, a debt purchasing entity that purportedly then sold the debt to the plaintiff. (Id, p. 2.) Here again, having realized the mistake, the name of the first purchaser of this debt was changed to NCOP Capital Inc. in the above-mentioned subsequently filed brief in support of plaintiff’s post-trial motion filed October 9. 2009. (Id, p. 2.)

      . The defendant moved for dismissal of this case at the beginning of the trial on grounds that plaintiff’s suit was filed outside of the applicable statute of limitations. (N.T. 11-12.) That motion was denied. (N.T. 11.) The defendant’s claim that plaintiff had failed to timely sue rested on the above-stated internally inconsistent averments in paragraph 4 of the complaint that defendant’s default occurred “on February 7, 2002” and in paragraph 5 thereof that plaintiff’s default had occurred following a “last payment during January of 2002.” However, again, the exhibits appended to the complaint suggested the time of default as occurring when the defendant failed to remit a demanded payment on March 20, 2002 following a payment posted as having been received on February 7, 2002. (Complaint, ¶¶ 4 and 5; N.T. 37, 58-59.)

      . When the issue was revisited at the close of the trial with the court noting that the inconsistencies in allegations of the date of default posed a conundrum that still needed to be resolved, plaintiff’s counsel admitted that pleadings contradictory to a default date of March 20, 2002 had been entered in error by himself and mistakenly verified by an officer of the plaintiff company. (N.T. 88-98.) The defendant has filed no cross-appeal to again raise a statute of limitations defense to this action.

      . This is another instance of inconsistency in plaintiff’s pleadings. Plaintiff asserted in the complaint that “20 percent attorney fees” plus costs were warranted in this action to collect upon the defendant’s debt, an amount that later became “reasonable attorney fees” after plaintiff’s counsel apparently determined that no such percentage rate for attorney fees appeared — even in the 1996 Citibank card agreement, (complaint, ab damnum clauses for Counts I and II; Citibank card agreement, appended as “exhibit B” to the complaint and trial exhibit P-1.)

      . Although the Chiodo affidavit appended as “exhibit E” to the complaint refers to NCOP as “NCO Portfolio Management Inc.”, plaintiff’s counsel and Mr. Venditti consistently employed the nomenclature of “NCO Capital Inc.” seen in the “bills of sale, assignment and assumption agreements” that operated to transfer the bundles of Citibank’s credit card debts from one broker and then to the plaintiff. Plaintiff’s consistent inexactitude in litigating this action has left open the question as to whether NCO Capital Inc. is a subsidiary of NCO Portfolio Management Inc., or vice versa, or whether they are separate business entities altogether.

      . “Pa.R.C.P. 234.5. Failure to comply with subpoena. Notice to attend or notice to produce.
      “(a) If a witness fails to comply with a subpoena, the court may issue a bench warrant and if the failure to comply is wilful [sic] may adjudge the witness to be in contempt. No bench warrant may be issued and no adjudication of contempt may be made for the nonappearance of a witness served by ordinary mail pursuant to Rule 234.2(b)(3) unless the witness has returned the signed form of acknowledgment prescribed by Rule 234.9 [setting forth the form ‘Notice and acknowledgment of receipt of subpoena by mail’].
      “(b) If a party fails to comply with a subpoena, a notice to attend or a notice to produce, the court may enter any order imposing appropriate sanctions authorized by Rule 4019(c) and, if the failure to comply is for the purpose of delay or in bad faith, the court may impose on that party the reasonable expenses actually incurred by the opposing party by reason of such delay or bad faith, including attorney’s fees. If the failure is wilful [sic] the court, after hearing, may adjudge the party to be in contempt.” (Pa.R.C.P. 234.5.)

      . “Pa.R.C.P. 4019. Sanctions ...
      “(c) The court, when acting under subdivision (a) [listing sanctions for violations of the discovery rules] of this rule, may make ...
      “(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition[.]” Pa.R.C.P. 4019(c)(2).

      . Pa.R.E. 803, Hearsay exceptions, availability of declarant immaterial ...
      “(6) Records of regularly conducted activity. A memorandum, report, record or data compilation, in any form, of acts, events or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11) [self-authentication of certified domestic records of regularly conducted activity evinced by written declaration of custodian or other qualified person certifying their compliance with Rule 803(6) upon prior notice of the intention to introduce such evidence and of its availability for inspection], Rule 902(12) [self-authentication of certified foreign records by the same means], or a statute permitting certification, unless the sources of information or other circumstances indicate a lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit.” Pa.R.E. 803(6).

      . Pa.R.E. 901(b)(1) provides the illustration or example that the testimony of a witness with knowledge that a matter is what it is claimed to be may meet the requirement of authentication or identification of evidence as a condition precedent to its admissibility by supplying sufficient support for a finding that it is what its proponent claims it to be. Pa.R.E. 901(a) and (b)(1).

      . Pa.R.E. 902(7) provides that extrinsic evidence of authenticity is not required with respect to “[t]rade inscriptions and the like . . . purporting to have been affixed in the course of business and indicating ownership, control or origin.” Pa.R.E. 902(7).

      . Plaintiff’s counsel is mistaken in this regard, apparently having forgotten or disregarded his dialogue with the court during the trial wherein the court questioned whether plaintiff’s counsel had presented the testimony of a custodian or other qualified witnesses who could establish the trustworthiness of those documents. (N.T. 82.)