NORA S. EUGENIO AND ALFREDO Y. EUGENIO, PETITIONERS, VS. HON. COURT OF APPEALS AND PEPSI-COLA BOTTLING COMPANY OF THE PHILIPPINES, INC., RESPONDENTS.

Private respondent Pepsi-Cola Bottling Company of the
Philippines, Inc. is engaged in the business of manufacturing, making, bottling
and selling soft drinks and beverages to the general public. Petitioner Nora S. Eugenio was a dealer of
the soft drink products of
private respondent corporation. Although she had only one store located at 27 Diamond Street, Emerald
Village, Marikina, Metro Manila, Eugenio had a regular charge account in both
the Quezon City plant (under the name “Abigail Minimart”**) as well as in the Muntinlupa plant (under the
name “Nora Store”) of respondent corporation. Her husband and co-petitioner, Alfredo Y. Eugenio, used to be a route manager
of private respondent in its Quezon City plant.

On March 17, 1982, private respondent filed a complaint for a sum
of money against petitioners Nora S. Eugenio and Alfredo Y. Eugenio, docketed
as Civil Case No. Q-34718 of the then Court of First Instance of Quezon City,
Branch 9 (now Regional Trial Court, Quezon City, Branch 97). In its complaint, respondent corporation
alleged that on several occasions in 1979 and 1980, petitioners purchased and
received on credit various products from its Quezon City plant. As of December 31, 1980, petitioners
allegedly had an outstanding balance of P20,437.40 therein. Likewise, on various occasions in 1980,
petitioners also purchased and received on credit various products from
respondent’s Muntinlupa plant and, as of December 31, 1980, petitioners
supposedly had an outstanding balance of P38,357.20 there. In addition, it was claimed that petitioners
had an unpaid obligation for the loaned “empties” from the same plant
in the amount of P35,856.40 as of July 11, 1980. Altogether, petitioners had an outstanding account of P94,651.00
which, so the complaint alleged, they failed to pay despite oral and written
demands.^[1]

In their defense, petitioners presented four trade provisional
receipts (TPRs) allegedly issued to and received by them from private
respondent’s Route Manager Jovencio Estrada of its Malate Warehouse (Division
57), showing payments in the total sum of P80,500.00 made by Abigail’s
Store. Petitioners contended that had the amounts in the TPRs been
credited in their favor, they would not be indebted to Pepsi-Cola. The details of said receipts are as follows:

TPR No.                       Date of Issue       Amount

500320                 600 Fulls returned       5/ 6/80            P23,520.00

500326                 600 Fulls returned       5/10/80            P23,520.00

500344                 600 Fulls returned       5/14/80            P23,520.00

500346                 Cash               5/15/80 P10,000.00^[2]

Total                     P80,560.00

Further, petitioners maintain that the signature purporting to be
that of petitioner Nora S. Eugenio in Sales Invoice No. 85366 dated May 15,
1980 in the amount of P5,631.00,^[3] which
was included in the computation of their alleged debt, is a falsification. In sum, petitioners argue that if the
aforementioned amounts were credited in their favor, it would be respondent
corporation which would be indebted to them in the sum of P3,546.02 representing
overpayment.

After trial on the merits, the court a quo rendered a
decision on February 17, 1986, ordering petitioners, as defendants therein to
jointly and severally pay private respondent the amount of P74,849.00, plus 12% interest per annum until the principal
amount shall have been fully paid, as well as P20,000.00 as attorney’s fees.^[4]
On appeal in CA-G.R. CV No. 10623, the Court of Appeals declared said decision
a nullity for failure to comply with the requirement in Section 14, Article
VIII of the 1987 Constitution that decisions of courts should clearly and
distinctly state the facts and the law on which they are based. The Court of Appeals accordingly remanded
the records of the case to the trial court, directing it to render another
decision in accordance with the requirements of the Constitution.^[5]

In compliance with the directive of the Court of Appeals, the
lower court rendered a second decision on September 29, 1989. In this new decision, petitioners were this
time ordered to pay, jointly and severally, the reduced amount of P64,188.60,
plus legal interest of 6% per annum from the filing of the action until full
payment of the amount adjudged.^[6] On
appeal therefrom, the Court of Appeals affirmed the judgment of the trial court
in a decision promulgated on September 27, 1991.^[7] A motion
for the reconsideration of said judgment of respondent court was subsequently
denied in a resolution dated January 23, 1992.^[8]

We agree with petitioners and respondent court that the crux of
the dispute in the case at bar is whether or not the amounts in the
aforementioned trade provisional receipts should be credited in favor of herein
petitioner spouses. In a so-called
encyclopedic sense, however, our course of action in this case and the
denouement of the controversy therein takes into account the jurisprudential
rule that in the present recourse we would normally have restricted ourselves
to questions of law and eschewed questions of fact were it not for our
perception that the lower courts manifestly overlooked certain relevant factual
considerations resulting in a misapprehension thereof. Consequentially, that position shall
necessarily affect our analysis of the rules on the burden of proof and the
burden of evidence, and ultimately, whether the proponent of the corresponding
claim has preponderated or rested on an equipoise or fallen short of
preponderance.

First, the backdrop. It
appears that on August 1, 1981, private respondent through the head of its
Legal Department, Atty. Antonio N. Rosario, sent an inter-office correspondence
to petitioner Alfredo Eugenio inviting him for an interview/interrogation on
August 3, 1981 regarding alleged “non-payment of debts to the company,
inefficiency, and loss of trust and confidence.”^[9]
The interview was reset to August 4, 1981 to enable said petitioner to bring
along with him their union president, Luis Isip. On said date, a statement of overdue accounts was prepared
showing that petitioners owed respondent corporation the following amounts:

Muntinlupa Plant

Nora’s Store

Trade Account           P38,357.20 (as of 12/3/80)^[10]

Loaned Empties         P35,856.40
(as of 7/11/81)^[11]

Quezon City Plant

Abigail Minimart

Regular Account          P20,437.40
(as of 1980)^[12]

Total                            P94,651.00

A reconciliation of petitioners’ account was then conducted. The liability of petitioners as to the
loaned empties (Muntinlupa plant, Nora Store) was reduced to P21,686.00 after a
reevaluation of the value of the loaned empties.^[13]
Likewise, the amount of P5,631.00 under Invoice No. 85366, which was a spurious
document, was deducted from their liability in their trade account with the
Muntinlupa plant.^[14]
Thereafter, Eugenio and Isip signed the reconciliation sheets reflecting these
items:

Muntinlupa Plant

Nora Store

Trade Account              P32,726.20^[15]

Loaned Empties           P21,686.00^[16]

Quezon City Plant

Abigail Minimart

Trade Account             P20,437.20^[17]

Total                 P74,849.40

After the meeting, private respondent alleged that petitioner
Alfredo Y. Eugenio requested that he be allowed to retire and the existing
accounts be deducted from his retirement pay, but that he later withdrew his
retirement plan. Said petitioner
disputed that allegation and, in fact, he subsequently filed a complaint for
illegal dismissal. The finding of the
labor arbiter, later affirmed by the Supreme Court, showed that this petitioner
was indeed illegally dismissed, and that he never filed an application for
retirement. In fact, this Court made a
finding that the retirement papers allegedly filed in the name of this
petitioner were forged.^[18] This
makes two falsified documents sought to be foisted against petitioners.

With their aforesaid accounts still unpaid, petitioner Alfredo Y.
Eugenio submitted to Atty. Rosario the aforementioned four TPRs. Thereafter, Atty. Rosario ordered Daniel
Azurin, assistant personnel manager, to conduct an investigation to verify this
claim of petitioners. According to
Azurin, during the investigation on December 4, 1981, Estrada allegedly denied
that he issued and signed the aforesaid TPRs.^[19] He
also presented a supposed affidavit which Estrada allegedly executed during
that investigation to affirm his verbal statements therein. Surprisingly, however, said supposed
affidavit is inexplicably dated February 5, 1982.^[20]
At this point, it should be noted that Estrada never testified thereafter in
court and what he is supposed to have done or said was merely related by
Azurin.

Now, on this point, respondent court disagreed with herein
petitioners that the testimony on the alleged denial of Jovencio Estrada
regarding his signatures on the disputed TPRs, as well as his affidavit dated
February 5, 1982^[21]
wherein he affirmed his denial, are hearsay evidence because Estrada was not
presented as a witness to testify and be cross-examined thereon. Except for the terse statement of respondent
court that since petitioner Alfredo Eugenio was supposedly present on December
4, 1981, “(t)he testimony of Jovencio Estrada at the aforementioned
investigation categorically denying that he issued and signed the disputed TPRs
is, therefore, not hearsay,”^[22]
there was no further explanation on this unusual doctrinal departure.

The rule is clear and explicit. Under the hearsay evidence rule, a witness can testify only to those
facts which he knows of his personal knowledge; that is, which are derived from
his own perception, except as otherwise provided in the Rules.^[23]
In the present case, Estrada failed to appear as a witness at the trial. It was only Azurin who testified that during
the investigation he conducted, Estrada supposedly denied having signed the
TPRs. It is elementary that under the
measure on hearsay evidence, Azurin’s testimony cannot constitute legal proof
as to the truth of Estrada’s denial. For that matter, it is not admissible in evidence, petitioners’ counsel
having seasonably objected at the trial to such testimony of Azurin as
hearsay. And, even if not objected to
and thereby admissible, such hearsay evidence has no probative value
whatsoever.^[24]

It is true that the testimony or deposition of a witness deceased
or unable to testify, given in a former case or proceeding, judicial or
administrative, involving the same parties and subject matter, may be given in
evidence against the adverse party who had the opportunity to cross-examine
him.^[25]
Private respondent cannot, however, seek sanctuary in this exception to the
hearsay evidence rule.

Firstly, the supposed investigation conducted by Azurin was
neither a judicial trial nor an administrative hearing under statutory
regulations and safeguards. It was
merely an inter-office interview conducted by a personnel officer through an ad
hoc arrangement. Secondly, a
perusal of the alleged stenographic notes, assuming arguendo that these
notes are admissible in evidence, would show that the “investigation”
was more of a free-flowing question and answer type of discussion wherein
Estrada was asked some questions, after which Eugenio was likewise asked other
questions. Indeed, there was no
opportunity for Eugenio to object, much less to cross-examine Estrada. Even in a formal prior trial itself, if the
opportunity for cross-examination did not exist therein or if the accused was
not afforded opportunity to fully cross-examine the witness when the testimony
was offered, evidence relating to the testimony given therein is thereafter
inadmissible in another proceeding, absent any conduct on the part of the
accused amounting to a waiver of his right to cross-examine.^[26]

Thirdly, the stenographer was not even presented to authenticate
the stenographic notes submitted to the trial court. A copy of the stenographic report of the entire testimony at the
former trial must be supported by the oath of the stenographer that it is a
correct transcript of his notes of the testimony of the witness as a sine qua non for its competency
and admissibility in evidence.^[27] The
supposed stenographic notes on which respondent corporation relies is
unauthenticated and necessarily inadmissible for the purpose intended.

Lastly, although herein private respondent insinuated that
Estrada was not presented as a witness because he had disappeared, no evidence
whatsoever was offered to show or even intimate that this was due to any
machination or instigation of petitioners. There is no showing that his absence was procured, or that he was
eloigned, through acts imputable to petitioners. In the case at bar, except for the self-serving statement that
Estrada had disappeared, no plausible explanation was given by respondent
corporation. Estrada was an employee of
private respondent, hence it can be assumed that it could easily trace or
ascertain his whereabouts. It had the
resources to do so, in contradistinction to petitioners who even had to seek
the help of the Public Attorney’s Office to defend them here. Private respondent could not have been
unaware of the importance of Estrada’s testimony and the consequent legal
necessity for presenting him in the trial court, through coercive process if
necessary.

Obviously, neither is the affidavit of Estrada admissible; it is
likewise barred as evidence by the hearsay evidence rule.^[28]
This is aside from the fact that, by their nature, affidavits are generally not
prepared by the affiants themselves but by another who uses his own language in
writing the affiant’s statements, which may thus be either omitted or
misunderstood by the one writing them.^[29] The
dubiety of that affidavit, as earlier explained, is further underscored by the
fact that it was executed more than two months after the investigation,
presumably for curative purposes as it were.

Now, the authenticity of a handwriting may be proven, among other
means, by its comparison made by the witness or the court with writings
admitted or treated as genuine by the party against whom the evidence is
offered or proved to be genuine to the satisfaction of the judge.^[30]
The alleged affidavit of Estrada states “x x x that the comparison that was made as to the authenticity of
the signature appearing in the TPRs and that of my signature showed that there
was an apparent dissimilarity between the two signatures, xerox copy of my 201
File is attached hereto as Annex ‘F’ of this affidavit.”^[31]
However, a search of the Folder of Exhibits in this case does not reveal that
private respondent ever submitted any document, not even the aforementioned 201
File, containing a specimen of the signature of Estrada which the Court can use
as a basis for comparison. Neither was
any document containing a specimen of Estrada’s signature presented by private
respondent in the formal offer of its exhibits.^[32]

Respondent court made the further observation that “Estrada was
even asked by Atty. Azurin at said investigation to sign three times to provide
specimens of his genuine signature.”^[33]
There is, however, no showing that he did, but assuming that Estrada signed the
stenographic notes, the Court would still be unable to make the necessary
comparison because two signatures appear on the right margin of each and every
page of the stenographic notes, without any indication whatsoever as to which
of the signatures is Estrada’s. The whole
document was marked for identification but the signatures were not. In fact, although formally offered, it was
merely introduced by the private respondent “in order to show that
Jovencio Estrada had been investigated and categorically denied having
collected from Abigail Minimart and denying having signed the receipts claimed
by Alfredo Eugenio to be his payment,”^[34] and
not for the purpose of presenting any alleged signature of Estrada on the
document as a basis for comparison.

This is a situation that irresistibly arouses judicial curiosity,
if not suspicion. Respondent
corporation was fully aware that its case rested, as it were, on the issue of
whether the TPRs were authentic and which issue, in turn, turned on the
genuineness of Estrada’s signatures thereon. Yet, aside from cursorily dismissing the non-presentation of Estrada in
court by the glib assertion that he could not be found, and necessarily aware
that his alleged denial of his signatures on said TPRs and his affidavit
rendered the same vulnerable to the challenge that they are hearsay and
inadmissible, respondent corporation did nothing more. In fact, Estrada’s disappearance has not
been explained up to the present.

The next inquiry then would be as to what exactly is the nature
of the TPRs insofar as they are used in the day-to-day business transactions of
the company. These trade provisional
receipts are bound and given in booklets to the company sales representatives,
under proper acknowledgment by them and with a record of the distribution
thereof. After every transaction, when
a collection is made the customer is given by the sales representative a copy
of the trade provisional receipt, that is, the triplicate copy or customer’s
copy, properly filled up to reflect the completed transaction. All unused TPRs, as well as the collections
made, are turned over by the sales representative to the appropriate company
officer.^[35]

According to respondent court, “the questioned TPR’s are
merely ‘provisional’ and were, as printed at the bottom of said receipts, to be
officially confirmed by plaintiff within fifteen (15) days by delivering the
original copy thereof stamped paid and signed by its cashier to the
customer. x x x Defendants-appellants
(herein petitioners) failed to present the original copies of the TPRs in
question, showing that they were never confirmed by the plaintiff, nor did they
demand from plaintiff the confirmed original copies thereof.”^[36]

We do not agree with the strained implication intended to be
adverse to petitioners. The TPRs
presented in evidence by petitioners are disputably presumed as evidentiary of
payments made on the account of petitioners. There are presumptions juris
tantum in law that private transactions have been fair and regular
and that the ordinary course of business has been followed.^[37]
The role of presumptions in the law on evidence is to relieve the party
enjoying the same of the evidential burden to prove the proposition that he
contends for, and to shift the burden of evidence to the adverse party. Private respondent having failed to rebut
the aforestated presumptions in favor of valid payment by petitioners, these
would necessarily continue to stand in their favor in this case.

Besides, even assuming arguendo
that herein private respondent’s cashier never received the amounts
reflected in the TPRs, still private respondent failed to prove that Estrada,
who is its duly authorized agent with respect to petitioners, did not receive
those amounts from the latter. As
correctly explained by petitioners, “in so far as the private respondent’s
customers are concerned, for as long as they pay their obligations to the sales
representative of the private respondent using the latter’s official receipt,
said payment extinguishes their obligations.”^[38]
Otherwise, it would unreasonably cast the burden of supervision over its
employees from respondent corporation to its customers.

The substantive law is that payment shall be made to the person
in whose favor the obligation has been constituted, or his
successor-in-interest or any person authorized to receive it.^[39]
As far as third persons are concerned, an act is deemed to have been performed
within the scope of the agent’s authority, if such is within the terms of the
power of attorney, as written, even if the agent has in fact exceeded the
limits of his authority according to an understanding between the principal and
his agent.^[40]
In fact, Atty. Rosario, private respondent’s own witness, admitted that
“it is the responsibility of the collector to turn over the
collection.”^[41]

Still pursuing its ruling in favor of respondent corporation, the
Court of Appeals makes the following observation:

“x x x Having allegedly returned 600
Fulls to plaintiff’s representative on May 6, 10, and 14, 1980,
appellant-wife’s Abigail Store must have received more than 1,800 cases of soft
drinks from plaintiff before those dates. Yet the Statement of Overdue Account pertaining to Abigail Minimart
(Exhs. ‘D’, ‘D-1’ to ‘D-3’) which appellant-husband and his representative Luis
Isip signed on August 3, 1981 does not show more than 1,800 cases of soft
drinks were delivered to Abigail Minimart by plaintiff’s Quezon City Plant
(which supposedly issued the disputed TPRs) in May, 1980 or the month
before.”^[42]

We regret the inaccuracy in said theory of respondent court which
was impelled by its sole and limited reliance on a mere statement of overdue amounts. Unlike a statement of account which truly
reflects the day-to-day movement of an account, a statement of an overdue
amount is only a summary of the account, simply reflecting the balance due
thereon. A statement of account, being
more specific and detailed in nature, allows one to readily see and verify if
indeed deliveries were made during a specific period of time, unlike a bare
statement of overdue payments. Respondent court cannot make its aforequoted categorical deduction
unless supporting documents accompanying the statement of overdue amounts were
submitted to enable easy and accurate verification of the facts.

A perusal of the statement of overdue accounts shows that, except
for a reference number given for each entry, no further details were
volunteered nor offered. It is entirely
possible that the statement of overdue account merely reflects the outstanding
debt of a particular client, and not the specific particulars, such as
deliveries made, particularly since the entries therein were surprisingly
entered irrespective of their chronological order. Obviously, therefore, one can not use the statement of overdue
amounts as conclusive proof of deliveries done within a particular time frame.

Except for its speculation that petitioner Alfredo Y. Eugenio
could have had easy access to blank forms of the TPRs because he was a former
route manager no evidence whatsoever was presented by private respondent in
support of that theory. We are accordingly
intrigued by such an unkind assertion of respondent corporation since Azurin
himself admitted that their accounting department could not even inform them
regarding the persons to whom the TPRs were issued.^[43]
In addition, it is significant that respondent corporation did not take proper
action if indeed some receipts were actually lost, such as the publication of
the fact of loss of the receipts, with the corresponding investigation into the
matter.

We, therefore, reject as attenuated the comment of the trial
court that the TPRs, which Eugenio submitted after the reconciliation meeting,
“smacks too much of an afterthought.”^[44] The
reconciliation meeting was held on August 4, 1981. Three months later, on November, 1981, petitioner Alfredo Y.
Eugenio submitted the four TPRs. He
explained, and this was not disputed, that at the time the reconciliation
meeting was held, his daughter Nanette, who was helping his wife manage the
store, had eloped and she had possession of the TPRs.^[45]
It was only in November, 1981 when petitioners were able to talk to Nanette
that they were able to find and retrieve said TPRs. He added that during the reconciliation meeting, Atty. Rosario
assured him that any receipt he may submit later will be credited in his favor, hence he signed
the reconciliation documents. Accordingly, when he presented the TPRs to private respondent, Atty.
Rosario directed Mr. Azurin to verify the TPRs. Thus, the amount stated in the reconciliation sheet was not
final, as it was still subject to such receipts as may thereafter be presented
by petitioners.

On the other hand, petitioners claimed that the signature of
petitioner Nora S. Eugenio in Sales Invoice No. 85366, in the amount of
P5,631.00 is spurious and should accordingly be deducted from the disputed
amount of P74,849.40. A scrutiny of the
reconciliation sheet shows that said amount had already been deducted upon the
instruction of one Mr. Coloma, Plant Controller of Pepsi-Cola, Muntinlupa
Plant.^[46]
That amount is not disputed by respondent corporation and should no longer be
deducted from the total liability of petitioner in the sum of P74,849.40. Since petitioners had made a payment of
P80,560.00, there was consequently an overpayment of P5,710.60.

All told, we are constrained to hold that respondent corporation
has dismally failed to comply with the pertinent rules for the admission of the
evidence by which it sought to prove its contentions. Furthermore, there are questions left unanswered and begging for cogent
explanations why said respondent did not or could not comply with the
evidentiary rules. Its default
inevitably depletes the weight of its evidence which cannot just be taken in
vacuo, with the result that for lack of the requisite quantum of evidence,
it has not discharged the burden of preponderant proof necessary to prevail in
this case.

WHEREFORE, the judgment of respondent Court of
Appeals in C.A. G.R. CV No. 26901, affirming that of the trial court in Civil
Case No. Q-34718, is ANNULLED and
SET ASIDE. Private respondent Pepsi-Cola Bottling Company of the
Philippines, Inc. is hereby ORDERED to
pay petitioners Nora and Alfredo Eugenio the amount of P5,710.60 representing
overpayment made to the former.

SO ORDERED.

Narvasa, C.J., (Chairman), and
Puno, JJ., concur.

Mendoza, J., no part.

** Also spelled
“Abegail” or Abigael” in some parts of the records of the case.

^[1]
Original Record, 1-3.

^[2]
Exhs. L, L-1, L-2, and L-3 for
private respondent; Exhs. 1-4 for petitioners; Folder of Exhibits, 25-27.

^[3]
Exh. E-6; ibid., 11.

^[4]
Original Record, 251.

^[5]
Rollo, 39; Justice Celso L. Magsino, ponente; Justices Nathanael
P. de Paño, Jr. and Abelardo M. Dayrit, concurring.

^[6]
Original Record, 269; per Judge Oscar L. Leviste.

^[7]
Rollo, 109; penned by Justice Alicia V. Sempio-Diy, with the concurrence
of Justices Vicente V. Mendoza and Regina G. Ordoñez-Benitez.

^[8]
Rollo, 116.

^[9]
Exh. A, Folder of Exhibits, 1.

^[10]
Exhs. B, B-1; ibid., 3-4.

^[11]
Exhs. C, C-1; ibid., 5-6.

^[12]
Exhs. D, D-1 to D-3; ibid., 7-10.

^[13]
Exh. F-1; ibid., 1-12.

^[14]
Exh. E-6; ibid., 11.

^[15]
Exh. E-2; ibid., 11.

^[16]
Exh. F-1; ibid., 12.

^[17]
Exh. E-1; ibid., 11.

^[18]
TSN, May 6, 1984, 16.

^[19]
Ibid., April 5, 1984, 6; TSN, July
12, 1984, 5-6, 8-9.

^[20]
Ibid., July 12, 1984.

^[21]
Exh. J, Folder of Exhibits, 19.

^[22]
Rollo, 96.

^[23]
Sec. 36, Rule 130, Rules of Court.

^[24]
People vs. Valero, L-45283-84, March 19, 1982, 112 SCRA 661; 3 Jones on
Evidence, 2nd Ed., 745.

^[25]
Sec. 47, Rule 130, Rules of Court.

^[26]
20 Am. Jur., Evidence 586; see also People vs. Ola, L-47147, July 3,
1987, 152 SCRA 1.

^[27]
20 Am. Jur., Evidence 595-597.

^[28]
Paa vs. Chan, L-25945, October 31, 1967, 21 SCRA 753; see also People vs.
Alacar, et al., 211 SCRA 580.

^[29]
People vs. Brioso, et al., L-28482, January 30, 1971, 37 SCRA 336.

^[30]
Sec. 22, Rule 132, Rules of Court; see also Underhill’s Criminal Evidence, 5th
Ed., Vol. 11, 805-808.

^[31]
Exhibit J, Fn 21.

^[32]
Original Record, 166-168.

^[33]
Rollo, 96.

^[34]
Formal Offer of Exhibits, 3; Original Record, 168.

^[35]
TSN, January 17, 1985, 7-8; TSN, May 10, 1984, 16-18.

^[36]
Rollo, 97.

^[37]
Sec. 3 (p) and (q), Rule 131, Rules of Court.

^[38]
Rollo, 14.

^[39]
Art. 1240, Civil Code.

^[40]
Art. 1900, id.

^[41]
TSN, May 10, 1984, 15.

^[42]
Rollo, 97.

^[43]
TSN, January 17, 1985, 9.

^[44]
Original Record, 268.

^[45]
TSN, October 31, 1985, 11.

^[46]
Exhibit E-6, Folder of Exhibits, 11; TSN, May 10, 1984, 13-14.