J-A19020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK, N.A. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
GORDON FISHER A/K/A GORDON DAVID
FISHER A/K/A GORDON D. FISHER,
INDIVIDUALLY T/D/B/A THE MAERLIN
COMPANY, A SOLE PROPRIETORSHIP
AND THE UNITED STATES OF AMERICA
APPEAL OF: GORDON FISHER A/K/A
GORDON DAVID FISHER A/K/A GORDON
D. FISHER, INDIVIDUALLY T/D/B/A THE
MAERLIN COMPANY, A SOLE
PROPRIETORSHIP No. 1405 WDA 2013
Appeal from the Judgment Entered October 10, 2013
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): MG-10-00943
BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 24, 2014
Appellant, Gordon Fisher a/k/a Gordon David Fisher a/k/a Gordon D.
Fisher, individually and t/d/b/a The Maerlin Company, a sole proprietorship,
appeals from the judgment entered on October 10, 2013. We affirm.
The esteemed trial judge has provided us with a thorough and well-
written explanation of the underlying facts in the case. We quote, in part,
from the trial court’s factual summary:
On May 9, 1996, [Appellant] executed a promissory note in
favor of Community Savings Bank in the principal sum of
$310,000.00. Community Savings Bank is a purported
predecessor in interest to Wells Fargo Bank, N.A., trustee
[(hereinafter “Wells Fargo”). Wells Fargo is the underlying
* Former Justice specially assigned to the Superior Court.
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p]laintiff in this matter, and the most recent of a series of
assignees of the original note. [Also on May 9, 1996,
Appellant] made, executed[,] and delivered a mortgage on
real estate situated at 5124-5126 Westminster Place[,] in
Pittsburgh, Pennsylvania, as collateral for the promissory
note. . . .
According to the [a]mended [c]omplaint filed in this matter,
beginning on October 1, 2005, [Appellant] failed to make
any payments of principal and interest due under the note,
the terms of which required monthly payments in the
amount of $2,917.96 on a monthly basis from July 1, 1996
through June 1, 2011.
By order dated June 16, 2011, following argument, [the trial
court entered] summary judgment in favor of [Wells Fargo]
and against [Appellant] as to liability . . . , “with damages
to be determined at a later date.” Subsequently, by order
dated June 13, 2012, [the trial court] denied a motion for
an in rem judgment in favor of [Wells Fargo] in the amount
of $464,139.77. The matter thereafter proceeded to trial
solely on the matter of damages.
Trial Court Opinion, 11/21/13, at 1-2.
On the morning of trial, Appellant presented an oral pre-trial motion in
limine, wherein Appellant sought to preclude the testimony of Wells Fargo’s
only witness in the case: Roger Martin. N.T. Trial, 5/28/13, at 4. At the
time, Mr. Martin was the vice-president of the loan’s servicing company,
Rushmore Loan Management Services, LLC (hereinafter “Rushmore”).
Further, before Mr. Martin was employed at Rushmore, Mr. Martin was
employed by Quantum Servicing Corporation (hereinafter “Quantum”), which
was the corporation that serviced the loan immediately prior to Rushmore.
See id. at 24-25.
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According to Appellant’s motion in limine, Wells Fargo intended to call
Mr. Martin as a witness primarily to authenticate various business records in
the case (such as the loan and payment histories), pursuant to Pennsylvania
Rule of Evidence 803(6). Id. at 5. Rule 803(6), entitled “Records of a
Regularly Conducted Activity,” provides:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a
witness:
...
(6) Records of a Regularly Conducted Activity. A
record (which includes a memorandum, report, or data
compilation in any form) of an act, event or condition if,
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a “business”, which term includes
business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for
profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of
the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and
(E) neither the source of information nor other
circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6) (effective March 18, 2013).
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Appellant anticipated that the business records would constitute Wells
Fargo’s sole evidence to prove the amount of damages it sustained from
Appellant’s default. Appellant claimed, however, that the loan and payment
histories generated by Wells Fargo and its servicer, Rushmore, were based
upon the business records of prior mortgagees and prior servicers of the
loan. N.T. Trial, 5/28/13, at 5. Appellant argued that, since Mr. Martin was
never employed by the prior banks, institutions, and servicers, Mr. Martin
could not authenticate those prior business records under Rule 803(6);
therefore, the prior loan and payment histories constituted inadmissible
hearsay. Id. Appellant further argued that, since Rushmore’s own loan and
payments histories were based upon such inadmissible hearsay, Mr. Martin
was incompetent to authenticate any and all loan and payment histories that
Wells Fargo might proffer – even those generated by Rushmore itself. Id.
Specifically, Appellant argued:
Our motion is based upon the fact that the sole witness in
this case, who is [Mr. Martin] of [Rushmore], cannot
authenticate the payment histories of the prior banks,
institutions, and servicers, as exceptions under the business
records exception to the hearsay rule. And since his value
testimony is based upon those records, it’s based upon
inadmissible hearsay, and therefore would be inadmissible
of itself.
. . . This is not just a one or two assignment case. The
mortgage went from Community Savings Bank to Three
Rivers Bank and Trust. Three Rivers Bank and Trust
merged with Sky Bank, Sky Bank merged with Huntington
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[National] Bank. . . . Huntington assigned the mortgage to
Roosevelt Mortgage Acquisition Company,[1] and Roosevelt
Mortgage Acquisition Company assigned the mortgage to
Wells Fargo, the plaintiff in this case.
There have been at least four mortgage servicers that we’re
aware of, Standard Mortgage Corporation, Huntington
Mortgage Group, Quantum Servicing Corporation[,] and
Rushmore Loan Management Services. We also, and I will
have testimony if necessary to the effect that Sky Bank did
its own servicing and that Standard Mortgage Corporation
did its own servicing on this loan.
So we have at least four predecessor banks, at least three
predecessor servicing companies. Since this witness must
testify based upon the hearsay information received from
those facilities and cannot overcome the hearsay rule,
because he cannot qualify the documents for the business
records exception, [Wells Fargo] cannot establish a prima
facie case.
N.T. Trial, 5/28/13, at 4-6.
Moreover, Appellant cited to Commonwealth Financial Systems v.
Smith, 15 A.3d 492 (Pa. Super. 2011), wherein a panel from this Court
refused “to adopt the federal ‘rule of incorporation[,]’ which provides that
the record a business takes custody of is ‘made’ by the [acquiring] business”
for purposes of the business records exception to the hearsay rule.
Commonwealth Fin. Sys., 15 A.3d at 496 and 500. According to
Appellant, since the Commonwealth Financial Systems Court refused to
adopt the “rule of incorporation,” neither Wells Fargo nor Rushmore could
authenticate the loan and payment histories that were generated by third
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1
Mr. Martin testified that Roosevelt Mortgage Acquisition Company is the
parent company of Rushmore. N.T. Trial, 5/28/13, at 50.
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parties – even if Wells Fargo and Rushmore integrated those histories into
their own records and then relied upon those histories in the course of their
businesses. N.T. Trial, 5/28/13, at 6-7.
The learned trial judge noted that the case was going to be tried non-
jury. Therefore, the trial court deferred ruling on Appellant’s hearsay
objection until after the trial and declared that, in rendering its verdict, it
would ignore any hearsay proffered by the parties. Id. at 7 and 11-12. The
trial court thus denied Appellant’s motion in limine, but granted Appellant a
standing hearsay objection for all evidence that Wells Fargo presented
during the trial. Id. at 7 and 10-12.
The non-jury trial then commenced. During the trial, Wells Fargo
presented the testimony of Mr. Martin to authenticate a number of different
business records, including Plaintiff’s Exhibits 7, 9, and 11. We summarize
the three exhibits below.2
____________________________________________
2
We note that the exhibits introduced at trial were not contained in the
certified record to this Court. Accordingly, we could have found the issues
raised by Appellant to be waived, as it is Appellant’s obligation to see that all
pertinent documents filed with the trial court are contained within the
certified record forwarded to the Superior Court. Commonwealth v.
Whitaker, 878 A.2d 914, 922-923 (Pa. Super. 2005) (“[i]t is [a]ppellant’s
responsibility to ensure that this Court is provided a complete certified
record to ensure proper appellate review; a failure to ensure a complete
certified record may render the issue [raised on appeal] waived”).
Moreover, the fact that the exhibits may be part of the reproduced record is
of no moment, as we look only to those documents contained within the
certified record in rendering our decisions. McEwing v. Lititz Mut. Ins.
Co., 77 A.3d 639, 644 n.2 (Pa. Super. 2013) (“[i]t is well-established that
this Court may only consider items which have been included in the certified
(Footnote Continued Next Page)
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Plaintiff’s Exhibit 7 is a document that itemizes Appellant’s loan history
from 2003 until May 2013; included amongst the papers are business
records from not only Rushmore and Quantum, but also from Huntington
Mortgage Group and Sky Bank.
Plaintiff’s Exhibit 9 is a document entitled “Payoff Statement;” the
document is dated May 21, 2013, addressed to Appellant, and written on
Rushmore letterhead. The document itemizes all of Rushmore’s claimed
damages and reads:
These figures are due to May 28, 2013.
This loan is due for the October 01, 2005 payment.
The current total unpaid Principal Balance is: $ 251,746.30
Interest at 7.75000% 151,022.35
Escrow/Impound Overdraft 82,847.24
Recoverable Corporate Advances 28,745.84
Foreclosure Fees 795.00
Foreclosure Costs 10.00
_______________________
(Footnote Continued)
record and those items which do not appear of record do not exist for
appellate purposes. The failure to include a document in the certified record
is a deficiency which cannot be remedied merely by including copies of the
missing documents in a brief or in the reproduced record”) (internal
quotations and citations omitted). However, rather than finding the issues
waived, we contacted the trial court and we were able to obtain the exhibits
which had been retained by the trial judge. We remind Appellant’s counsel
to be certain that all pertinent documents are contained within the certified
record in any future appeals.
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Recon/Recording Fee 160.00
Property Inspection 16.50
* * TOTAL AMOUNT TO PAY LOAN IN FULL * * 515,343.23
Plaintiff’s Exhibit 9 at 1.
Plaintiff’s Exhibit 11 is a document that itemizes Wells Fargo’s claimed
damages through May 28, 2013. The first page of the document declares
that Wells Fargo’s claimed damages total $514,361.73. The total figure was
calculated by utilizing the loan and payment histories from Plaintiff’s Exhibit
7, and adding taxes, insurance, fees, and costs to the principal balance and
interest. See Plaintiff’s Exhibit 11 at 1.
During trial, Mr. Martin testified that, with respect to Plaintiff’s Exhibit
7, any record that originated from either Rushmore or Quantum: was made
at or near the time of the acts and events appearing on the record; was
made by a person with knowledge of or made from information transmitted
by a person with knowledge of the acts and events appearing on it; was kept
in the course of a regularly conducted business activity; and, was a record
that either Rushmore or Quantum was in the regular practice of making.
N.T. Trial, 5/28/13, at 24-27; see also Pa.R.E. 803(6). However, Mr. Martin
admitted that he never worked for either Huntington Mortgage Group or Sky
Bank and that he was not familiar with how the latter two corporations kept
or prepared their records. N.T. Trial, 5/28/13, at 47-48.
Mr. Martin also authenticated Plaintiff’s Exhibit 9 (the “Payoff
Statement”) as a business record and testified that the record: was made at
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or near the time of the acts and events appearing on the record; was made
by a person with knowledge of or made from information transmitted by a
person with knowledge of the acts and events appearing on it; was kept in
the course of a regularly conducted business activity; and, was a record that
Rushmore was in the regular practice of making. Id. at 40.
Following Mr. Martin’s testimony, Wells Fargo called Appellant as a
witness, as though on cross. Appellant admitted that he did not make a
mortgage payment in either 2012 or 2011. Appellant also testified that he
attempted to make a mortgage payment in 2010 (which was after the
default), but that the bank refused to accept payment. Id. at 82-83. The
trial then concluded.
On May 30, 2013, the trial court entered its non-jury verdict, finding in
favor of Wells Fargo and against Appellant in the amount of $514,361.73.3
Appellant filed a timely post-trial motion, wherein Appellant claimed
that the trial court erred in admitting Plaintiff’s Exhibits 7 and 11, as the
documents contained inadmissible hearsay.4 Moreover, Appellant claimed
that the trial court erred in allowing Mr. Martin to authenticate Plaintiff’s
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3
The Allegheny County Department of Court Records noted that notice of
the verdict was sent to the parties on May 31, 2013. Non-Jury Verdict,
5/30/13, at 1; Docket Entry, 5/30/13, at 1.
4
Within the trial court’s later-filed Rule 1925(a) opinion, the trial court
declared that it had determined that the challenged evidence was not
hearsay and that it was properly admitted into evidence. See Trial Court
Opinion, 11/21/13, at 7-9.
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Exhibits 7 and 11, as “Exhibit [7] contained loan histories prepared by Sky
Bank and Huntington Mortgage Group [and] Mr. Martin admitted that he had
no personal knowledge of how either Sky Bank or Huntington Mortgage
Group prepared, stored or maintained their records” and Plaintiff’s Exhibit 11
was simply based upon the calculations and loan histories contained in
Plaintiff’s Exhibit 7. Appellant’s Post-Trial Motion, 6/10/13, at 3-6.
The trial court denied Appellant’s post-trial motion and, on October 10,
2013, judgment was entered on the verdict. Appellant filed a timely notice
of appeal and Appellant now raises the following two claims:
1. Did the [trial c]ourt err as a matter of law in relying on
the testimony of Roger Martin to authenticate Plaintiff’s
Exhibit “7” and Plaintiff’s Exhibit “11”?
2. Did the [trial c]ourt err as a matter of law in determining
that Roger Martin met the requirements of Pa.R.E. 803(6)
and [42 Pa.C.S.A. § 6108] for the purpose of admitting
records under the business records exception to the hearsay
rule?
Appellant’s Brief at 4.
Appellant’s claims on appeal challenge the trial court’s admission of
evidence. We have explained:
Admission of evidence is within the sound discretion of the
trial court and a trial court’s rulings on the admission of
evidence will not be overturned absent an abuse of
discretion or misapplication of law. An abuse of discretion is
not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will, as shown by
the evidence or the record, discretion is abused.
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To constitute reversible error, an evidentiary ruling must
not only be erroneous, but also harmful or prejudicial to the
complaining party. . . . A party suffers prejudice when the
trial court's error could have affected the verdict.
Schuenemann v. Dreemz, LLC, 34 A.3d 94, 100-101 (Pa. Super. 2011)
(internal quotations and citations omitted); see also B & L Asphalt Indus.
v. Fusco, 753 A.2d 264, (Pa. Super. 2000) (“[a]n evidentiary ruling which
[does] not affect the verdict will not provide a basis for disturbing the fact-
finder’s judgment”) (internal quotations, citations, and corrections omitted).
Appellant’s claims on appeal are essentially identical. According to
Appellant, the trial court erred in concluding that Mr. Martin was competent
to authenticate Plaintiff’s Exhibits 7 and 11; and, since Mr. Martin was not
competent to authenticate Plaintiff’s Exhibits 7 and 11, Appellant claims that
the trial court erred in admitting and considering the two exhibits. Further,
Appellant claims that Plaintiff’s Exhibits 7 and 11 constitute the entirety of
Wells Fargo’s evidence regarding damages and that, “[w]ithout Plaintiff’s
Exhibit 7 and Plaintiff’s Exhibit 11, Wells Fargo is unable to prove its case.”
Appellant’s Brief at 15.
Appellant’s claims on appeal do not entitle Appellant to a new trial.
Indeed, even assuming, arguendo, that the trial court erred in admitting
Plaintiff’s Exhibits 7 and 11, the error would be harmless, as Plaintiff’s
Exhibits 7 and 11 are cumulative of Plaintiff’s Exhibit 9 – and, on appeal,
Appellant has not claimed that the trial court erred when it admitted
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Plaintiff’s Exhibit 9.5 Therefore, since Plaintiff’s Exhibit 9 provided an
independent basis for the trial court’s damages award, and since Appellant
does not claim that the trial court erred in admitting Plaintiff’s Exhibit 9,
Appellant’s claims on appeal immediately, and necessarily, fail.6 See
Blumer v. Ford Motor Co., 20 A.3d 1222, 1232 (Pa. Super. 2011) (holding
that, even though the trial court erred in admitting certain reports, “the
content of the inadmissible [r]eports was cumulative in nature to the
admissible [r]eports and, consequently, the evidentiary error was
harmless”); Potochnick v. Perry, 861 A.2d 277, 282-283 (Pa. Super.
2004) (holding that, even if the trial court erred in excluding certain
evidence, the error was harmless, as the proffered testimony was
cumulative of other evidence); Reading Radio, Inc. v. Fink, 833 A.2d 199,
216 (Pa. Super. 2003) (holding that the trial court erred in admitting
evidence of prior settlements at trial; nevertheless, the error was harmless,
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5
We note that Plaintiff’s Exhibit 9 supports an even greater damages award
than the trial court’s actual verdict. See Plaintiff’s Exhibit 9 at 1 (calculating
the total amount of damages as $515,343.23); Non-Jury Verdict, 5/30/13,
at 1 (finding in favor of Wells Fargo and against Appellant in the amount of
$514,361.73).
6
We also note that Appellant does not argue on appeal that either Wells
Fargo’s damages calculation or the trial court’s damages award was
somehow incorrect or inaccurate. Instead, Appellant’s claim on appeal is a
formal challenge to the admission of evidence. Given this fact, and given
the absence of any challenge to Plaintiff’s Exhibit 9, Appellant essentially
concedes on appeal that the allegedly erroneous admission of Plaintiff’s
Exhibits 7 and 11 did not affect the trial court’s verdict.
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as the appellant did not object to similar testimony at another point during
the trial; therefore, since the erroneously admitted evidence was cumulative
to other, unchallenged evidence in the case, the evidentiary error was
harmless); see also Shamis v. Moon, 81 A.3d 962, 970 (Pa. Super. 2013)
(Superior Court may affirm a trial court’s decision on any grounds that are
supported by the record).
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2014
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Wells Fargo Bank v. Fisher, G.
Combined Opinion