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EDWARD DURKIN v. EQUINE CLINICS (08/10/88)

filed: August 10, 1988.

EDWARD DURKIN, JAMES DURKIN, JR. AND HERVE FILION, INDIVIDUALLY AND DOING BUSINESS AS SNOW SHOE FARMS, APPELLANTS,
v.
EQUINE CLINICS, INC. AND JOSEPH DELEO



APPEAL FROM THE ORDER DATED JANUARY 30, 1987 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CIVIL NO. 73-8022

COUNSEL

Lauren Scott, Philadelphia, for appellants.

George J. McConchie, Media, for appellees.

Cirillo, President Judge, and Tamilia and Kelly, JJ. Kelly, J., concurs and dissents.

Author: Cirillo

[ 376 Pa. Super. Page 560]

This is an appeal from an order of the Court of Common Pleas of Delaware County denying a motion to remove a compulsory non-suit against appellants Edward Durkin, James Durkin, and Herve Filion [referred to collectively as "the Durkins"], who filed suit individually and as Snow Shoe Farms. In so doing, appellants in effect appeal the trial court's decision to grant a motion in limine disallowing certain statements to be introduced as evidence at trial.

This appeal arises out of the death of appellants' standardbred stallion, Josiah, who died, apparently of anaphylactic shock, after receiving a drug dose from appellee Joseph DeLeo, D.V.M. Josiah was stabled at Brandywine Racetrack under the care of Kenneth Seeber, D.V.M., a shareholder and employee of appellee Equine Clinics, Inc. Dr. Seeber had prescribed and was administering a regimen of drugs to the horse which included the enzyme, kymotripsin, brand-name Kymar. Because Dr. Seeber had to be away from the racetrack on August 21st, he left Josiah in

[ 376 Pa. Super. Page 561]

    the care of Dr. DeLeo, asking him to carry out the regimen as prescribed. Dr. Seeber received a call at the airport from Dr. DeLeo, also an employee of Equine Clinics, who allegedly informed him that Josiah had died within ten minutes of his administering the drugs.

The Durkins brought suit for damages arising from the death of their horse. The matter went to trial on December 16, 1980. At trial, they argued that the horse's death was caused by the drug Butazolidin which had been administered in twice the recommended dosage. Equine Clinics and Dr. DeLeo, appellees in the case, introduced evidence to show that Butazolidin could not produce an allergic reaction in a horse. The jury returned a verdict for appellees, and the trial judge entered judgment accordingly.

Appellants then appealed to this court. A panel of this court held that the trial court's failure to instruct the jury that Dr. DeLeo's administering Butazolidin in an amount in excess of the manufacturer's recommended dosage was evidence from which the jury could infer that appellees had been negligent. The case was then remanded for a new trial. 313 Pa. Super. 75, 459 A.2d 417.

Before the second trial was to begin, appellees filed a motion in limine to bar admission of a statement made by Dr. Seeber to the Durkins the day following the death of their horse, indicating that the horse had died from a drug overdose, and a taped statement that Dr. Seeber had made to an insurance carrier investigator in February of 1972 while he was an employee and shareholder of Equine Clinics. That taped statement included Dr. Seeber's acknowledgment that he had instructed Dr. DeLeo to administer the same drug regimen to Josiah that he had been administering, that the prescribed regimen included Kymar for lameness in the left hind leg, and that the enzyme could cause anaphylactic shock in a horse. He also said in his statement that Dr. DeLeo told him in the phone call that the horse had died of anaphylactic shock immediately after he had administered the drug regimen which had included Kymar. Dr. Seeber had testified to the contents of the taped statement

[ 376 Pa. Super. Page 562]

    at the first trial, and the statement was introduced into evidence by appellees.

The motion in limine was granted after argument, and the matter proceeded to trial. The trial judge entered a compulsory non-suit against appellants; their motion to remove the non-suit was denied. They then appealed to this court.

The Durkins argue on appeal that the trial court erred in refusing to remove the compulsory non-suit because Dr. Seeber's statements were admissible and therefore appellants had presented sufficient evidence to go to the jury. Appellants further argue that Dr. Seeber's statements were admissible because they fall under the vicarious admission exception to the hearsay rule, the judicial admission exception to the hearsay rule, and the prior inconsistent statement exception recently articulated by our supreme court in Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). They also contend that the trial court erred in refusing to admit the statements on the basis that those statements were ostensibly based on inadmissible hearsay -- Dr. DeLeo's supposed statements to Dr. Seeber that he did in fact administer Kymar to the horse.

On appeal from an order denying a motion to remove a compulsory non-suit, we must consider the record to determine whether the trial court properly applied the well-established standard for entry of a compulsory non-suit. A non-suit can only be entered in clear cases, and the plaintiff must be given the benefit of all evidence in his favor along with all favorable inferences that may be drawn from it. Any conflict in the evidence must be resolved in his favor. If a jury, viewing the evidence in the light most favorable to the plaintiff, could not reasonably determine that all the elements of the cause of action have been established, then the non-suit is proper. Kuriger v. Cramer, 345 Pa. Super. 595, 602, 498 A.2d 1331, 1334-35 (1985). In this case, we must determine whether the trial court erred in holding the evidence in question inadmissible. We will reverse the ruling of the trial court only for an abuse of discretion. Concorde Investments, Inc. v. Gallagher, 345 Pa. Super. 49, 56,

[ 376 Pa. Super. Page 563497]

A.2d 637, 641 (1985). Should we find that the evidence was improperly excluded, the order granting the non-suit would have to be reversed.

The Durkins argue that under the recent supreme court decision of Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), the insurance statement given by Dr. Seeber should be permitted into evidence. They argue that Dr. Seeber's testimony at the first trial was contradictory to the statement that he had given to the insurance company some six months after Josiah's death, and that if he is called as a witness at the second trial, his testimony will continue to be inconsistent.

In Brady, the supreme court jettisoned an entire area of evidentiary law, and attempted to follow commentators perhaps less well-experienced in trial advocacy than the justices of the appellate courts of this Commonwealth. The court held that where a declarant is a witness at a judicial proceeding and is available for cross-examination, that declarant's out of court statements may be admitted as substantive evidence for the truth of the matters asserted in them. Brady, 510 Pa. at 131, 507 A.2d at 70. Brady is now the law of this Commonwealth, although it should be noted that not even the Federal Rules of Evidence have taken as liberal a stance; under the Federal Rules, the prior inconsistent statement must have been given under oath before it can be accepted as substantive evidence. See F.R.E. 801(d)(1)(A).

In any event, we find that Brady is not applicable in this case. We note that the holding of the supreme court reads " otherwise admissible prior inconsistent statements . . . may be used as substantive evidence." Brady, 510 Pa. at 131, 507 A.2d at 70. Because we find that the facts in Brady differ substantially from those confronting us, and because we do not find that the insurance statement in question would be otherwise admissible considering the double hearsay with which it is riddled, we find that the statement is not admissible under Brady.

[ 376 Pa. Super. Page 564]

In Brady, a witness called by the Commonwealth recanted a previous statement made to police officers that she had been with Brady, that their car had been wrecked in a ditch, and that she and Brady had walked from their car to a plant where Brady had scuffled with and then stabbed a security guard. On direct examination she denied that they had entered the plant. The Commonwealth then cross-examined the witness using her prior inconsistent statement after the court ruled that she was a hostile witness. It was on these facts, facts which the trial court had called "the classic case to illustrate why the prior statement should be admitted substantively," id., that the supreme court declared that prior inconsistent statements could in fact be introduced for the truth of the matter asserted.

The benefits of allowing the statement in as substantive evidence here are not so clear. At the first trial, Dr. Seeber testified on direct examination that he told Dr. DeLeo to give the horse a regimen of drugs which did not include Kymar, that he asked Dr. DeLeo on the phone what he had given the horse, and that Dr. DeLeo responded he had treated the horse as Dr. Seeber instructed him. His statement to the insurance company states, however, that he asked Dr. DeLeo to treat the horse, that he told Dr. DeLeo what the horse was to have, and that on the phone Dr. DeLeo told him the horse had died "immediately after the administration of this regimen consisting of aziumycin, fenylbutazone and Karmar [sic]." The purpose for which the appellants wish to introduce the statement into substantive evidence is not for proof of what Dr. Seeber himself did or did not do. He is not a party to this case. They are concerned with the statements which indicate that Dr. DeLeo, who is a party, administered Kymar contrary to the position he has taken to this point.

[ 376 Pa. Super. Page 565]

Dr. Seeber's statement that Dr. DeLeo had administered Kymar is not "otherwise admissible." This is a blatant instance of hearsay within hearsay; fit Dr. DeLeo's alleged statements under no exception to the hearsay rule. The situation here is more akin to the case of Commonwealth v. Page 565} Baez, 494 Pa. 388, 431 A.2d 909 (1981) than to Commonwealth v. Brady, supra. In Baez, the Commonwealth attempted to cross-examine the defendant with a statement supposedly taken from a friend of his, one Reinaldo Castillo. Because the statements of Castillo were merely hearsay, and not adopted by Baez, the witness whose credibility was to be impeached, they were not permissible impeachment evidence. Id., 494 Pa. at 394, 431 A.2d at 912. In this case, should Seeber be called by the Durkins, he would clearly authenticate his statement. Ostensibly, he is the witness whose testimony is being impeached. It is also probable that, unlike the Baez case, Seeber would be extensively questioned concerning his statement. The substantive evidence, however, does not in any way indicate what he himself did or did not say. His statements not only redounds against Dr. DeLeo, but allows into evidence hearsay statements about DeLeo that he himself denied making. Allowing the statement in for substantive evidence would allow in evidence that DeLeo told him that he, DeLeo, administered the drug. As the court stated in Baez, quoting the eminent Justice Musmanno:

"The primary object of a trial in American courts is to bring to the tribunal, which is passing on the dispute involved, those persons who know of their own knowledge the facts to which they testify. If it were not for this absolute sine qua non, trials could be conducted on paper without the presence of a single flesh and blood witness. But with such a pen-and-ink procedure, there would be no opportunity to check on testimonial defects such as fallacious memory, limited observation, purposeful distortions, and outright fabrication. The great engine of cross-examination would lie unused while error and perjury would travel untrammeledly to an unreliable and often-tainted judgment. Accordingly, nothing is more adamantly established in American trial procedure than that no one may testify to what someone else told him. He may only relate what is within his own memory brought to him by the couriers of his own senses." (Citation omitted). The statement in question here is

[ 376 Pa. Super. Page 566]

    precisely the type of unreliable out-of-court declaration the hearsay rule was designed to exclude. Indeed, the problems associated with hearsay are multiplied here, as we are presented with an extra-judicial written ...


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