Unemployment Compensation Referee’s hearings, due to their nature as administrative hearings and of limited scope, traditionally have allowed a somewhat lax application of the Pennsylvania Rules of Evidence. For the most part, this tends toward keeping the hearings fast moving, relatively inexpensive to litigate, efficient, and to the point. I stress the word “lax,” as opposed to say “eliminated,” as the rules of evidence are not disposed of or vitiated, but simply given common sense application to a quasi-judicial hearing regarding the very narrow issue of whether one is entitled to receive government benefits during one’s unemployment.
For the most part, easing up on the rules makes a lot of sense as litigants, especially the newly cash strapped claimant, has not got the money to call in experts, subœna extensive records, or find and secure multiple witnesses. Indeed, such an approach would seem to only serve to mud up the gears of an already overburdened Department of Labor regarding such generally simple issues. So, for example, some flexibility on hearsay is allowed, as well as allowing the admission of medical records without a medical expert, or even allowing some “narrative” testimony, if only for the practical purpose of bringing these matters to a relatively speedy and efficient close.
I think the general flexibility on the rules of evidence makes some sense and I generally do not have a problem with it, especially since I have never had an experience where the flexibility in the rules centered on the main issues or any dispostive aspect of the many cases I have handled. Actually, allow me one caveat on that statement: when a Referee’s laxity on the rules on a central issue causes me to lose a case, I have had pretty consistent success in having the decision overturned by the Board of Review on appeal.
So, why am I writing all of this? Let us focus on a specific rule of evidence, specifically Rule 1002, which reads as follows:
An original writing, recording, or photograph is required in order to prove its content unless these rules, other rules prescribed by the Supreme Court, or a statute provides otherwise.
Comment: Pa.R.E. 1002 differs from F.R.E. 1002 to eliminate the reference to Federal law. This rule corresponds to the common law “best evidence rule.” See Hera v. McCormick, 425 Pa. Super. 432, 625 A.2d 682 (1993). The rationale for the rule was not expressed in Pennsylvania cases, but commentators have mentioned four reasons justifying the rule. (1) The exact words of many documents, especially operative or dispositive documents, such as deeds, wills or contracts, are so important in determining a party’s rights accruing under those documents. (2) Secondary evidence of the contents of documents, whether copies or testimony, is susceptible to inaccuracy. (3) The rule inhibits fraud because it allows the parties to examine the original documents to detect alterations and erroneous testimony about the contents of the document. (4) The appearance of the original may furnish information as to its authenticity.
5 Weinstein & Berger, Weinstein’s Evidence § 1002(2) (Sandra D. Katz rev. 1994).
The common law formulation of the rule provided that the rule was applicable when the terms of the document were “material.” The materiality requirement has not been eliminated, but is now dealt with in Pa. R.E. 1004(d). That rule provides that the original is not required when the writing, recording or photograph is not closely related to a controlling issue. The case law has not been entirely clear as to when a party is trying “to prove the content of a writing, recording, or photograph.” However, writings that are viewed as operative or dispositive have usually been considered to be subject to the operation of the rule. On the other hand, writings are not usually treated as subject to the rule if they are only evidence of the transaction, thing or event. See Hamill-Quinlan, Inc. v. Fisher, 404 Pa. Super. 482, 591 A.2d 309 (1991); Noble C. Quandel Co. v. Slough Flooring, Inc., 384 Pa. Super. 236, 558 A.2d 99 (1989). Thus, testimony as to a person’s age may be offered; it is not necessary to produce a birth certificate. See Commonwealth ex rel. Park v. Joyce, 316 Pa. 434, 175 A. 422 (1934). Or, a party’s earnings may be proven by testimony; it is not necessary to offer business records. See Noble C. Quandel Co., supra. Traditionally, the best evidence rule applied only to writings, but Pa.R.E. 1002 may be applicable to recordings or photographs. However, recordings and photographs are usually only evidence of the transaction, thing or event. It is rare that a recording or photograph would be operative or dispositive, but in cases involving matters such as infringement of copyright, defamation, pornography and invasion of privacy, the requirement for the production of the original should be applicable. There is support for this approach in Pennsylvania law. See Commonwealth v. Lewis, 424 Pa. Super. 531, 623 A.2d 355 (1993) (video tape); Anderson v. Commonwealth, 121 Pa. Cmwlth. 521, 550 A.2d 1049 (1988) (film).
This rule is commonly known as “the best evidence rule,” and, as you can see it, more or less, requires the best available version or copy (or what have you) of a piece of evidence is to be produced at a hearing as opposed to a duplicate. So, for example, an original signed copy of a contract is always preferred to a duplicate. The way this rule would be employed is if an attorney, through his witness, attempts to introduce that copy as evidence. The opposing attorney would object on the basis that the copy is not “the best evidence” and the judge would rule on whether it was. If it was not the best evidence, the objection would generally be sustained and the document would be inadmissible.
I recently had a case before an Unemployment Compensation Referee in Philadelphia. The opposition (the employer) attempted to introduce a Collective Bargaining Agreement (which laid out relevant issues to the case I was handling) into evidence. The copy of aforesaid Agreement presented by the employer did not contain a signature from the employer! I objected to the admission of the Agreement on the basis that it was not the best evidence; a contract with no signature is hardly a contract!
The Referee’s ruling on my objection was quite startling and is the inspiration of this article. I would not have been surprised if my objection was overruled on the basis of the above-mentioned need for efficiency or something like that; for example, the Referee could have said that the employer’s testimony identified the copy of Agreement as being a true and accurate copy of the original Agreement executed by, and applicable to, both parties regardless of whether the signatures were present. Unfortunately, that is not what the Referee ruled. He ruled that, by order of his superiors within the Department of Labor, the best evidence rule will no longer be applied at unemployment compensation hearings and, therefore, any objections made on that basis will be overruled.
I was absolutely shocked! Suddenly practical laxity has declined into total abdication and ignorance of clearly established rules of evidence.
So, let this article forewarn any of you who practice Unemployment Compensation Law: the best evidence rule is currently, and indefinitely, in abeyance at Referee’s hearings in Pennsylvania.