A common exception to the hearsay rule is an admission of a party. An admission of an employee may be admissible against an employer, provided that the admission was made within the scope of the employee’s employment. Courts reviewing this issue are faced with the question of when and under what circumstance does an employee admission fall within the scope of that employee’s employment. This issue was addressed in a personal injury action against a well-known retail store.

In Harris v. Toys "R" Us-Penn, 880 A.2d 1270 (PA. Super. 2005), a store patron brought a negligence action against the store alleging that she suffered a head injury when struck by a child's motorized ride-on vehicle when it allegedly fell from a shelf. The Trial Court granted the Defendant's pre-trial Motion seeking to preclude an alleged admission of an unidentified employee witness. Plaintiff contended that the employee witness approached her shortly after the object struck her and in the presence of her daughter, "apologized, stating that he had just placed the unit in question back on the shelf after showing it to a customer and had not placed it back on the shelf correctly." Plaintiff filed a Post-Trial Motion seeking a new trial on the ground that the Court erred in granting the Defendant's pre-trial Motion. Plaintiff alleged that the statement in question was admissible based on the hearsay exception of an admission by a party opponent. The trial judge denied plaintiff’s Post-Trial Motion.

On appeal, the Superior Court affirmed the lower Court, stating:

"First and foremost, it is the proponent of hearsay statement, not the opponent, who bears the burden of proof and must convince the court that the hearsay statement is admissible as an admission of a party opponent. For an admission of a party opponent to be admissible as exception to hearsay rule, the proponent of the statement must establish three elements: (1) the declarant was an agent or employee of a party opponent; (2) the declarant made the statement while employed by the party opponent; and (3) the statement concerned a matter within the scope of agency or employment. Here, the unidentified declarant's hearsay statement that he had just placed the unit in question back on store shelf after showing it to customer and had not placed it back on the shelf correctly was not admissible under hearsay exception for admissions by a party opponent in negligence action brought against store by patron, who suffered a head injury when struck by child's motorized ride-on vehicle when it allegedly fell from shelf as plaintiff did not establish that declarant was an employee of store and that the statement concerned a matter within the scope of his employment.

A party who wishes to use an alleged employee statement must (a.) identify the witness; (b.) prove that they were, in fact an employee at the time the statement was made and (c.) that the statement was within the scope of that employee’s employment. For example, if the witness turned out to be a clerk who never stocked shelves, the manner in which items were placed on the shelf would probably not be within the scope of the clerk’s employment.