Commonwealth, Department of Environmental Resources v. Al Hamilton Contracting Co.

PELLEGRINI, Judge,

dissenting.

I respectfully dissent from the majority’s affirmance of the Environmental Hearing Board’s (Board) July 27, 1994 Order sustaining the appeal of A1 Hamilton Contracting Company (Hamilton) because it agreed that the Board properly excluded a map offered into evidence. I disagree because I believe that the map was properly authenticated and should have been admitted.

The Department of Environmental Resources (Department) issued a compliance order and administrative order when it found that Hamilton caused or allowed a discharge of acid mine drainage from six different discharge areas from a mine it operated in Clearfield County. Hamilton appealed both orders to the Board.

To establish Hamilton’s violation, the Department sought to introduce into evidence Exhibit C-10. Exhibit C-10 is a computer-generated structure contour map which purportedly illustrates the inclination and elevation of the geologic strata of a coal seam that lies beneath the ground’s surface. The purpose of Exhibit C-10 was to show the location and character of the sites from which the acid mine drainage occurred. Exhibit C-10 was critical to the Department’s case because it was the only document which demonstrated the location of the mine site and the discharge areas.

Exhibit C-10 was created by Mr. John Scott Berry, a Bureau of Mining and Reclamation hydrogeologist. It was based on a photocopy of the Hamilton permit map, submitted to the Department by Hamilton as part of his application for a surface mining permit, with the addition of specific information which Berry gathered from his investigations of the mine site and the surrounding area. Berry, through the use of the photocopy of the permit map, a digitizer, a plotter and a computer program entitled “SURFER”, created Exhibit C-10 to purportedly show the mine site, its surface contour lines, and discharge areas. Hamilton objected to the admission of Exhibit C-10 because the creator of the exhibit could not testify how the digitizer, computer and plotter changed the information he “fed” into the system to graphically represent that information.

The Board sustained Hamilton’s objection to the admission of Exhibit C-10 into evidence for two reasons. First, it found that its admission would violate the “best evidence rule”1 because the Exhibit was based on a photocopy of the original permit map. It also excluded Exhibit C-10 because it did not comply with the requirement set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923),2 that scientific evidence must have *855gained general acceptance in the particular field in which it belongs to be admissible, because the Department did not introduce any evidence indicating the use of computer-generated structure contour models to be generally accepted among hydrogeologists. Because Exhibit C-10 was not admissible, the Board found that the Department failed to establish that there was acid mine drainage from these sites and sustained Hamilton’s appeal.

In affirming the Board, the majority does not apply the Frye rule nor the best evidence rule. While stating that it accepts the Department’s contention that if the map is a fair and accurate portrayal of what it seeks to depict, the way in which it was developed is of no consequence, the majority’s analysis is otherwise. It holds that because Berry could not explain the functions and particulars of the digitizer, computer and plotter used to develop the structure contour portion of Exhibit C-10, it was not admissible into evidence.

Exhibit C-10 is nothing more than a photocopy of an original map submitted by Hamilton, to which the Department, with the assistance of a computer graphics program and other mechanical devices, added specific information based upon the mine site and the surrounding area. Although Exhibit C-10 was created with the assistance of a computer software package, that Berry cannot explain how it turns the data provided into a graphical representation (i.e., the map), so long as it accurately represents the site it purports to represent, this alone cannot be the basis for the denial of its admission into evidence. Albig v. Municipal Authority of Westmoreland County, 348 Pa.Superior Ct. 505, 502 A.2d 658 (1985).3

Berry, qualified as an expert in hydrogeol-ogy and water quality, verified the structure contour map produced with the assistance of the computer program “SURFER”, as well as the information upon which the structure contour lines were based. He verified the map by comparing it with calculations and information he gathered when he visited the mine site between 10 and 12 times. He verified the accuracy of the structure contour lines drawn by “SURFER” by comparing the contour lines with test holes and coal elevation at those holes, and found there to be good correspondence. Berry is familiar with the software used to generate the contour map and has testified that such software and related equipment produces reliable maps. Berry concluded that the computer-generated structure contour map is an accurate plot and is basically the same as he would have created had he done so by hand.

His testimony that Exhibit C-10 is a fair and accurate portrayal of the mine site was uncontradicted and uncontested by Hamilton, whose only objection was that the photocopied map on which C-10 was based was distorted by photocopying and was not the best evidence. To say that Exhibit C-10 was inadmissible is like saying a photograph cannot be introduced into evidence, even though it accurately portrays the scene because the witness cannot expound on the dye sublimation process in photo developing. Regardless of the manner in which the Exhibit was prepared, it was adequately authenticated and verified and should have been admitted *856into evidence. Accordingly, I respectfully dissent.

. The Best Evidence Rule is a common law rule which requires that the admission of the original document be used to prove the contents of a writing. Noble C. Quandel Co. v. Slough Flooring, Inc., 384 Pa.Superior Ct. 236, 558 A.2d 99 (1989). The Best Evidence Rule applies where the terms of the instrument are material to the issue involved and limits the manner by which those terms may be proven to the presentation of the original instrument, unless it can be proven that the original is unavailable through no fault of the proponent. Warren v. Mosites Construction Co., 253 Pa.Superior Ct. 395, 402, 385 A.2d 397, 400 (1978).

. Frye is no longer good law. In 1993, the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, — U.S. -, 113 *855S.Ct. 2786, 125 L.Ed.2d 469 (1993), held that the Federal Rules of Evidence, not Frye, set forth the standard for the admission of expert scientific testimony. The critical issue in the determination of whether scientific evidence should be admissible became whether the expert's testimony is based on a reliable foundation and is relevant to the task at hand. Daubert at -, 113 S.Ct. at 2798-99, 125 L.Ed.2d at 485.

. The law governing the admissibility of computer-generated evidence in the form of maps and models is sparse. However, in Perma Research & Development v. Singer Co., 542 F.2d 111 (2d Cir.), cert. denied, 429 U.S. 987, 97 S.Ct. 507, 50 L.Ed.2d 598 (1976), the court permitted the testimony of experts concerning a critical issue where such testimony was based upon a computer model which the experts had prepared for litigation. In that case, the widely-cited dissent argued that the testimony should not have been permissible because the computer technique used was experimental, the model did not take into account a wide range of factors, the testimony was based solely on hearsay, the plaintiff did not supply the data, program and output to the defendant in advance of the trial, nor would the experts disclose the manner in which the computer was programmed. Berry’s testimony complies with even the dissent’s strictures.