The opinion
STEVENS, J.,
dissenting:
¶ 1 I respectfully dissent from the Majority’s conclusion that Mr. Scanlon’s proffered testimony is inadmissible under Pa. R.E. 803(25)(D). In determining whether the statements qualified as an admission by a party opponent, the trial court interpreted Pa.R.E. 803(25)(D) according to the traditional rule of vicarious admission. (Trial Court Opinion dated 6/24/99 at 4-5). Under the traditional rule, hearsay statements by a party’s agent may be offered in evidence against him, if it is established that the agent had authority to make the statement. Accordingly, the trial court excluded the statements because it found no evidence of authority for the alleged de-clarant to make the statements.
¶ 2 The Majority is correct in finding that under Pa.R.E. 803(25)(D), Appellants need not prove the declarant was authorized to speak on behalf of DCL, but prove only that (1) the declarant was an agent or employee of the party against whom the statement was offered; (2) the declarant made the statement while he was an agent or employee; and (3) the statement concerned a matter within the scope of the declarant’s agency or employment. However, I disagree with the Majority’s conclusion that Mr. Scanlon’s testimony is inadmissible because it does not satisfy the third step in the analysis; that is, Mr. Kinworthy’s statements do not concern a matter within the scope of his employment.
¶ 3 Mr. Kinworthy was DCL’s delivery person. The undisputed testimony of Mr. Kinworthy was that Mr. Marsero, the president of DCL and the brother-in-law of Mr. Kinworthy, instructed Mr. Kinwor-thy to jointly service Vista Linen’s accounts including Scanlon in order to “take over” their accounts. Albert Kinworthy’s Deposition at 12-14, 17-18. He was instructed to use Vista Linen billing letterhead or “receipt” forms to obtain payments for DCL. Kinworthy’s Deposition at 12-14. On those forms, the name ‘Vista Linen” was scratched out and Delaware Valley Linen was substituted with Delaware Valley’s phone number and the name “Vince” (referring to Vince Marsero). Plaintiffs’ Exhibit 2. The precluded statements that Vista had been told to “change its name” because it was “taken over” by DCL directly concerned Mr. Kinworthy’s duties. Lane v. City of Kotzebue, 982 P.2d 1270, 1273 (Alaska 1999) (“An employee’s statements, to be admissible as nonhearsay admissions of party-opponent, do not have to be authorized by the employer; it is enough that they concern the employee’s duties.”).
¶ 4 Contrary to the Majority’s conclusion, Mr. Kinworthy need not participate in, or have knowledge of, the merger or acquisition negotiations of his employer in order for his statements to be deemed sufficiently trustworthy for admissibility. The federal rule of evidence upon which Pa.R.E. 803(25)(D) is based does not require that the declarant have personal knowledge of the facts underlying his statements. See F.R.E. 801(d)(2) & Advisory Committee note (“No guarantee of *866 trustworthiness is required in the case of an admission.Admissions have enjoyed [freedom] from ... restrictive influences of the opinion rule and the rule requiring first-hand knowledge.”). The majority of courts, including the Third Circuit, have not read a personal knowledge requirement into the vicarious admissions branch of F.R.E. Rule 801(d)(2). See Union Mutual Life Insurance, Co. v. Chrysler Corp., 793 F.2d 1, 8-9 (1st Cir.1986); United States v. Ammar, 714 F.2d 238, 254 (3rd Cir.1983); MCI Communications Corporation v. American Tel. & Tel. Co., 708 F.2d 1081, 1143 (7th Cir.); Mahlandt v. Wild Canid Survival & Research Center, 588 F.2d 626 , 630-631 (8th Cir.1978); In Re A.H. Robins Co., 575 F.Supp. 718, 723-725 (D.C.Kan.1983). 1 Accordingly, I would find that Mr. Kinworthy’s statements were within the scope of his duties as DCL’s delivery person, and thus he could acquire knowledge of the subject matter about which he spoke.
¶ 5 I further disagree with the Majority’s conclusion that the statements in controversy were not admissible because of Appellants’ inability to identify dispositively the declarant in this case. Both the Appellants and the Appellee state in then-briefs that the statements were made by either Mr. Kinworthy of DCL or Mr. O’Rouke of Vista.
¶ 6 Appellee contends that if the statements were made by Mr. O’Rourke, they would be inadmissible against DCL because Mr. O’Rourke is the principal of Vista. “Where two or more parties are joined, the admission of one party may be inadmissible hearsay as to the other party.” Packel and Poulin, Pennsylvania Evidence, Section 805.1(c), at 657 (1987).
¶ 7 The fact that Mr. O’Rourke was the principal of Vista does not mean ipso facto that Mr. O’Rourke was not also acting as an agent of DCL. Under Pennsylvania law, an agency relationship can be created under the doctrine of apparent authority. “Apparent authority exists when the principal, by words or conduct, leads people with whom the alleged agent deals to believe that the principal has granted the agent the authority he purports to exercise.” Volunteer Fire Co. of New Buffalo v. Hilltop Oil Co., 412 Pa.Super. 140 , 602 A.2d 1348, 1353 (1992). “The third party can rely on apparent authority of agent when this is a reasonable interpretation of the manifestations of principal.” Bolus v. United Penn Bank, 363 Pa.Super. 247 , 525 A.2d 1215, 1222 (1987). The record is clear that Mr. Scanlon believed that Mr. O’Rourke was an agent of DCL. Indeed, Mr. Scanlon testified that he continued to use DCL at all times believing them to be “the same people as Vista.” N.T. 12/22/98 at 34-35. Under the doctrine of apparent authority, we look to the acts of DCL’s principal, Mr. Marsero, in his dealings with Mr. Scanlon to determine whether Mr. Scanlon’s belief was reasonable. Id.
¶ 8 The record indicates that the restaurant employed Vista to provide linen service during the time Mr. Scanlon managed the restaurant. N.T. 12/22/98 at 7. Mr. Scanlon testified that he could identify Mr. O’Rourke and knew that he was the owner of Vista. N.T. 12/22/98 at 43-45. In June of 1996, Mr. Scanlon noticed that DCL began servicing Scanlon’s linen. However, Mr. Marsero did not notify Scanlon’s that DCL was a new or different business that was taking over Vista’s account. N.T. 12/22/98 at 189-190. Mr. Marsero testified that he continued to service Scanlon’s and other Vista customers without interruption and in the same manner as they had been serviced before. N.T. 12/22/98 at 34, 152-153, 189. He also testified that he recognized the importance of adequate and continuous service in order to acquire Vista’s accounts. N.T. 12/22/98 at 176. Mr. Marsero agreed that Mr. O’Rourke would accompany DCL’s driver to each of Vista’s *867 customers, including Scanlon’s, in an effort to salvage the accounts for DCL. N.T. 12/22/98 at 215-216, 221. Based on Mr. Marsero’s conduct, considered along with surrounding circumstances, it was reasonable for Mr. Scanlon to believe that Mr. O’Rourke was an agent of DCL. Accordingly, Mr. O’Rourke was an agent of DCL under the doctrine of apparent authority.
¶ 9 As such, I would find the statements in controversy, if spoken by Mr. O’Rourke, are admissible hearsay admissions against DCL, because they were made during the scope of his agency relationship with DCL. As Mr. O’Rouke did participate in the merger or acquisition negotiations with Mr. Marsero, there can be little doubt that the statements concerned a matter within the scope of his agency relationship with DCL.
¶ 10 Had the trial court not precluded Scanlon’s testimony, an evidentiary foundation would have been laid to support a charge by the trial court to the jury as to successor liability, which is Appellants’ second issue on review. Appellants argue that the trial court erred in failing to charge the jury as to three exceptions to the Commonwealth’s general rule that a successor company does not acquire the liabilities of the transferor’s assets. The exceptions are as follows: When a company sells or transfers its assets to another company, the successor company does not acquire the liabilities of the transferor’s assets, unless
(1) The sale transaction is, in effect, a consolidation or merger.
(2) The successor corporation is merely a continuation of the transferor corporation.
(3) The transaction is fraudulently entered into in order to escape liability.
Dawejko v. Jorgensen, 290 Pa.Super. 15 , 434 A.2d 106, 107-108 (1981)
¶ 11 The agent’s statements to Mr. Scanlon that Vista was told to “change its name” to DCL because Vista was being “taken over” by DCL, considered with other evidence adduced at trial, provides the evidentiary foundation for the charges of these three exceptions. Lockhart v. List, 542 Pa. 141, 148 , 665 A.2d 1176, 1179 (1995) (holding that in reviewing a jury instruction, this Court must review the entire instruction and look at all the evidence on the record to determine whether there was error and whether that error prejudiced the complaining party).
¶ 12 For all of the foregoing reasons, I would reverse, without reaching Appellants’ final issue regarding damages.
. The one exception is Litton Systems, Inc. v. American Tel. and Tel. Co., 700 F.2d 785, 816-817 (2nd Cir.1983).