65 Pa. Commw. 440 | Pa. Commw. Ct. | 1982
Opinion by
This case is before us on appeal by the Pennsylvania Department of Transportation (DOT) from an order of the Court of Common Pleas of Luzerne County granting a new trial to the appellees, Stanley and Carol Doknovitch.
The appellees, who own a single-family residence in Kingston Township, Luzerne County, brought an
' ,DOT contends that the lower court abused its discretion by. granting, another new trial. It argues that the testimony which the appellees sought to have admitted was properly excluded and that the lower court usurped the jury’s factfinding role and erred in considering the result reached by the Board of View and the first jury.
The appellees had' attempted to introduce the testimony of one. of their neighbors, a Mrs. Donnelly, to establish; that DOT’s attorney had called her two weeks before the second trial and asked what she thought .caused the damage to the appellees’ home. The inference from this question, according to the appellees, was that DOT itself had doubts, as expressed through its counsel, as. to its contention that the road
We believe that the trial judge was correct in his original ruling excluding Mrs. Donnelly’s testimony. Counsel for DOT had been engaged in trial preparation at the time when he questioned Mrs. Donnelly and was merely interviewing her as a witness as part of his investigation. Any inference adverse to DOT which could be drawn from the simple fact that certain questions were asked by him would be merely conjectural and speculative. Moreover, an attorney as an advocate for his client and as an officer of the court has a duty to uncover all the facts relevant to his case, and how else can he accomplish that task than by interviewing and questioning potential witnesses? We would seriously impede such investigative efforts if we were to hold that an attorney’s pre-trial questions raised inferences which were adverse to his client’s interests. We do not believe, therefore, that the fact that DOT’S counsel made the inquiries here concerned raises any legally admissible inference inconsistent with the theory of causation which DOT espoused at the trial.
Our resolution of this question, however, does not require that we reverse the lower court, for the granting of a new trial is within the discretion of the trial judge if he believes that such is necessary in order to
The question as to whether or not the water damage to the appellees ’ home was caused by the nearby road construction was admittedly a question of fact for the jury as to which conflicting evidence was presented. The lower court, however in granting the new trial, was influenced by the prior resolutions of the causation issue by the Board of View and the first jury. Our Supreme Court has held that a trial court in refusing to grant a new trial, may consider the decision of a prior jury which was consistent with that of the jury in question, O’Donnell v. Philadelphia Record Co., 356 Pa. 307, 51 A.2d 775 (1947), and we believe that such a consideration is also relevant where, as here, the resolution of a factual issue by two prior factfinders was at odds with that of the latest. See also Tinicum Real Estate Holding Corp. v. Department of Transportation, 480 Pa. 220, 389 A.2d 1034 (1978).
. This is an unusual case and we recognize that the trial judge by granting a new trial came perilously close to usurping the jury’s role as factfinder, but we cannot say that the decision of the court below rose to the level of a manifest abuse of its discretion. See United Novelty.
We will therefore affirm the granting of a new trial.
Order
And Now, this 25th day of March, 1982, the order of the Court of Common Pleas of Luzerne County in the above-captioned matter is affirmed.
We would note that a contrary resolution of this issue would compel an attorney to testify as to his reasons for ashing the questions in order to rebut the inference and-he might then be required to withdraw as counsel in that case if Disciplinary Rule 5-102(A) of the Code of Professional Responsibility, DR 5-102(A), was found to apply.