*1 co- pursuing with. Ms counsel and consulting operative action in tbe of this suit. prosecution plaintiff’s request open judgments tbe
Moreover, pros equita- of non is in tbe nature of an to tbe appeal familiar maxim powers ble of tbe court. It is an old depo- that be In the who seeks must do equity equity. plaintiff admitted two letters sitions, receiving least at- power from bis counsel to whom be bad given produce When asked to letters or torney. these their refused on tbe disclose to answer contents, information For one privileged. tbe ground nature conduct of this asking equitable who is relief, impel justice does not one to believe tbe certainly bis cause.
Order affirmed. Riggle, Appellant.
Wolfe v. Mus- C. J., 1962. Before Bell, March Argued Eagen JJ. and O’Brien, Cohen, manno, Jones, *2 H. Pa- him Francis with William A. Ghallener, Jr., for appellant. trono, and him L. O’Dea, James G. Porter,
William for appellee. оf the California Bar, Melvin M. Belli, Benjamin Opinion April B. Jones, Mr. Justice 1962: in granting discretion abuse its Did the court below trial? a new Pleas Court Common March 22, 1957, a instituted E. Wolfe Mary
of Washington County, Biggie.1 Dr. Paul P. against action malpractice a H. Weiner and D. Judge tried before matter was re- the jury a lasting week, well over after a trial and, against and Biggie in favor of Dr. verdict turned a Miss Wolfe. ver- hours2 after twenty-four than less
Within order granting made an Judge Weiner dict, appendec performed Riggle alleged Miss Wolfe improperly performance and, ad tomy upon thereof, her neglected and, post-operatively, spinal anesthesia ministered conduct, properly. a result As and advise her treat drop” serious, alleged “foot and other suffered a that Miss Wolfe injuries. disabling on November 1961 at about returned The verdict was exceptions p.m. 1961. In Decеmber The order dated 7:45 assigning therefor.3 This order reasons
entered ei- ex no parte: notice whatsoever was given ther to the parties or their counsel and no motion a new trial had been Miss made on Wolfe. behalf of
In forth order set Judge specifically he Weiner’s why granted a new trial: after rendition (1) verdict four jurors told court verdict did represent their true were led convictions, they believe could not verdict” they “compromise return recon- and wanted the court to call back to the jury sider failed to W. verdict; (2) juror, C. Engle, reveal to the court pending a lawsuit that, one same trial Mr. represented by Patrono, he was list, ju- of both the Miss Wolfe’s counsel and the failure ror and the to reveal such fact to the attorney to the court. improper a breach their duties *3 At that time no assigned. other reason was is with- upon
The first reason which the court relied 314 out merit. In Friedman v. Ralph Brothers, Inc., ac- “. . cannot Pa. 171 A. we said: . we 247, 249, 900, transpired cept the statement of as to what jurors of a room propriety impropriety as to the the secu- destroy conduct ... To do would juror’s so, weakening far toward of all verdicts and rity go impeach . . . cannot of trial Jurors efficacy by jury their See also: (Emphasis supplied). own verdict.” 128; 2d v. Pa. 59 A. Commonweаlth 359 Johnson, 287, Pa. Ct. Superior Commonwealth v. 183 Newcomer, A. 2d 731. A. 2d 344 Pa. In Havranek v. Pittsburgh, ex- four after rendition of a verdict, where jurors, did this court therewith, their dissatisfaction pressed ground. of a new trial on that the award sanction to their own permitted impeach must not be Jurors order, within <m the “order was . . it is averred that made . this (Emphasis supplied) . .” hour the verdict . . . was received . after Cummins, J., Carson, J., concurred and therein. P.
Í75 may noted that the verdict. In this connection be practice to better for the trial have been would presence only have talked with counsel. assigned
The second reason for the award juror Engle to new trial the failure of the reveal representa opposing to court—not to counsel—Ms Biggie’s Where tion Dr. lawsuit. counsel another constitutes im in failure to this fact to the court reveal proper of such fact conduct is clear: concealment improper. opposing be counsel, of course, background evaluating In certain factual this reason, trial at same term must considered. trespass Emil listed action of one court there was Sposato Engle juror) (the In ac v. C. al. W. et represented tion both Mr. Porter Mr. Patrono and Engle Engle:4 counsel each when thus, selected, Engle. representation knowledge of had full dual completion of dire of the after the the voir Moreover, prior any peremptory jurors5 and the exercise challenges, Mr. Porter and Mr. Patrono conferred Engle agreed perhaps, did if it would better that, through court, not serve as a asked message have excused as a the court crier, through juror: relayed possible counsel, word peremp if either counsel desired, the court crier, that, tory challenge and that the court could be exercised Engle for cause. not deem it advisable to excuse did *4 4 Actually represented the and Patrono Messrs. Porter both represented Engle company: Patrono insurance Mr. as same Engle represented counterclaimant Porter as a and Mr. defendant Engle’s son. as well 5 practice Washington Apparently, County, under the in voir by judge. conducted the court сrier the trial and dire Engle crier, the voir dire of court stated he knew both On court, Porter Patrono. the voir Messrs. dire of the Bngle inquire Patrono, whether Messrs. court did Porter and represented them, had ever him. either About a week after trial had commenced three days before rendition con- at a jury verdict, ference of counsel and the trial the latter judge, directly informed that Pa- both Mr. and Mr. Porter trono represented in Engle the lawsuit on the pending current trial list. On so the court then being informed, stated had he that, known that ex- he would have fact, cused Engle Engle but that he Mr. cause, “knows and knows he would follow the instructions Court. .”. A . suggestion then made that be ex- cused and the trial re- proceed with eleven jurors was jected by Biggie’s counsel.
The record Pa- clearly shows of Mr. knowledge representation trono’s of Engle Mr. by and vice Porter, versa: in- that, during the the court was directly formed of the fact and did about it: that there nothing is not a scintilla of evidence that such fact had any- to do thing with the verdict rendered. This reason as- signed court its award of a new trial is com- pletely without merit.
Not only was the award of a new trial
for the as
signed two reasons capricious and
but
arbitrary
manner in which the new trial was
granted
highly
A
improper.
court
sua
may,
award a new
sponte,
trial: Stephenson v. Service
164 Pa. Su
Supply Corp.,
perior Ct.
63 A. 2d
31,
438;
v.
Jedwabny
Philadelphia
Trans.
390 Pa.
A.
Co.,
2d
Fisher
252;
v. Dye,
386 Pa.
Within hours of the rendition of the verdict, four interrogated jurors without notice to coun- sel: the court then interrogated Engle, but stenographer again without notice to counsel: without then, any knowledge on counsels’ part
177 court a and without motion new any for jurors. of the conduct granted a new trial solely constitutes practice Such cannot be countenanced: in occupies a basic role judge of the a misconception our in Albert J. judicial language Hoppe, The system. Mo. 406, Inc. v. Louis 361 402, St. Public Service Co., in question 2d “The appropriate: 235 S.W. is 347, prin us into the stantly underlying before goes deеply jurisprudence In of ciples process. system of due our even exists notice there litigant (when reasonable to a interests) of action adverse possibility justice. of of fairness and deemed to be the essence interests are parties Reasonable notice to whose to the in order is a contemplated prerequisite stake Opportunity of power. lawful exercise the court's in as to the matters his views litigant rights court which affect his stantly may before the re The our procedure. foundation stone of very Nor is hardship. of notice can no result quirement freedom of of action it restrictive court’s discretion.” judicial the exercise its (December new trial After the award of the (December taken to this Court appeal 1961), (De and served Riggle Counsel for filed 5,1961). to be question a statement cember 16, 1961) 22 of under Rule this Court, on appeal, raised Rule under he did intend print, the evidence raised whether question this Court. its discretion awarding abused court below in its order December reasons set forth “for evid counsel desired other Wolfe’s 1,1961."* Miss for that went before purpose, printed and, ence6 be Judge December Judge Weiner. Weiner * supplied. Emphasis several beside examination The voir dire on Decem counsel and сonference between
a record of 12, 1961. ber enlargement printed record
directed the *6 date other it clear that on evidence. is Therefore, appeal question Judge and on raised knew the Weiner presented record to this Court would that the be only relating the of consist of evidence to the conduct jurors. trial after of the trial,
Six weeks the award Judge opinion “Opinion judge an filed entitled of Trial Support Granting in of In that Order Trial”.7 New already opinion judge the trial he “had states that opinion of in favor been the that the verdict returned Biggie] contrary of as [Dr. was so to the evidence justice”. judge then to shock his sense of trial proceeded assign this as an additional reason op- though bolster the award of a no new even portunity Biggie’s was afforded to Dr. counsel to though in heard the matter even the of a award specifically jurors’ new on based the conduct. In Clеwell v. Pa. Court, 388 this Plummer, 592, 598, speaking through (now Justice) Justice Chief Bell, quoted approval Pa. Coward v. Ruckert, “ 113 A. 2d 388, 393, 287: ‘One of the least assailable grounds power grant for the exercise new [to trial] is the trial court’s conclusion that the verdict against weight the the evidence and inter that the justice require ests therefore that a trial be new especially appellate awarded; such a case is an reluctant to intеrfere’ ”. The essential soundness question. beyond posture that rule is the However, completely the instant record any relieves us of re luctance to interfere case bar. days prior opinion, Judge Five to this President filed Carson opinion concurring in the order of December 1961. His .con grounds: is on two currence concealed from the court relationship to Mr. Higgles. Patrono and the fact he Knew Dr. significant grant In this concurrence is of a new trial ground against
based weight verdict evidence. nothing us before record there is
upon court below which can determine whether the we against deciding abused its the verdict was discretion nothing weight on this of the evidence. There is negligence negligence concerning record lack and the fault for the of such evidence lies absence party. with counsel either appeal on two,
This taken from an order based only grounds. grant of a new It was two, grounds only challenged on those and the which was printed necessary as bore evidence was such relationship grounds. to those The court below, well as was aware of that. counsel, opinion obviously January be-
The a 1962, is attempt justify un- trial lated to an award a new tenable both in and in the manner in which was law The at bar a situation made. case does belatedly portunity assigns a new and ad- to be heard, wrong on a the of a trial was based where award new proper ground ground con- existed. On the a whereas assigned trary, this reasons is a situation where the entirely new are without merit for the award of a op- parties giving an the without the below, court propriety be deter- the which cannot ditional reason diminuted record. mined this parte grant belated and the The ex of a new trial attempt support grant by a additional new and appeal grant after of the new trial and the the reason, process deprived Biggie Dr. due of the therefrom, have clearly entitled. to which granting reversing the order a new we must
In rights. preserve as to Wolfe’s in such manner Miss do so judgment on this Miss Wolfe verdict we enter Were right deprived motion of her file a for be would weight against the verdiсt was the trial because new To some other valid reason. evidence of the given right to a motion for be Wolfe Miss must the file parties if both trial,8 such motion be and, filed, impartial given opportunity must be fair hearing upon on such motion. the return To that end, right record to the court should below, pro granted motion nunc tunc to Wolfe to file a Miss receipt days for a new within four of the record below.
Order to the reversed. The record is remanded proceed in court below and the court below directed to opinion. consistent with manner this Dissenting by Opinion Mr. Musmanno: Justice Mary plaintiff Emma case, in this Wolfe, brought trespass against Big- an action in Dr. Paul P. gie, alleging negligence performance of a sur- gical operation. in favor returned a verdict of the defendant. After trial it ascertained jurors, that one of Engle, William O. was a friend Biggie, Biggiе, Dr. defendant, and that he, Engle’s was one customers his motorboat busi- ness. Engle, juror,
It was also learned that him- up during self a defendant in a case which was to come the same term of court and his decided case very jurors with whom he would associate and *8 during fraternize the term of the court.
With this revelation it should be obvious that Engle’s participation present in trial vitiated utterly Leaving entire trial and rendered it void. aside Biggie the fact that Dr. was a client of thе involved filing Whether the time a motion for a new can be extended, Bonnell, 46; Hestonville, see: Lance v. 105 Pa. Fisher v. Passenger Railway Mantua & Company, Fairmount 185 Pa. Philadelphia Transportation DiFrancesco, A. 97. Sub. Co. v. clearly distinguishable 362 Pa. 66 A. 2d from the in stant factual situation.
Í8Í juror impartial juror, knew could when how that litigant court, same that he himself was during jurors who the same and before the same term, present contrary collеagues? were his It would be throughout the Wolfe human nature that to assume litigant. forgot any that he was a time participation im- that of an His in the trial partisan- partial partisan. judge, His but that of the per- ship destroyed neutrality his bos, supposedly justice interest the scales sonal wrecked always in balance. portrayed as- it is
Justice is because blindfolded nothing judge juror or look at sumed will may way other or the induce him to decide one which advantage. personal gain, But the or because juror favor, stripped to see this case off his blindfold trying cus- was his defendant in the he was case him told to look at the trial list which tomer and also possibly litigant party it that he was soon to be curry his fellow- favor be to his interests to would jurors his cause. to be the who were later appalling before this disclosure With this Majority that the trial decide how cаn the Court, plaintiff, Mary proper Emma and fair and juror process A of law? accorded due Wolfe, unprejudiced impartial sunlight, as as be as should angel falling truth. as unbiased as snow, Engle was not such. say I do assert but dishonest,
I that he was do personal that he could interests were that his consciously unconsciously, swayed, to- been have Biggie’s own of his of the case because side ward private A has business. in the court’s interеsts litigation re- right which is to be to be involved no poi- fellow-jurors. kind of interest This solved justice, very it contaminates the fountain sons destroys play, the scalebeam which fair waters *9 intended to hold both sides an even level of consid- mockery eration, makes of the courts.
Only years ago three this Court had before it case of Com. ex rel. Fletcher v. 395 Pa. Cavell, where the defendant who was convicted of murder sought chаrg degree, corpus, the first a writ of habeas ing that he had been denied a fair trial because the foreman of the which convicted him son- was a in-law of the detective investi who had conducted the gation prosecution. for the Court This refused Opinion Dissenting I writ. wrote a in which I said: carrying “It seems like coals to or trans Newcastle porting spaghetti Naples say to that a should personal apart never havе a from the evidence reason, case, desire a verdict for one side or the saying I other ... am not the son-in-law here, jury, foreman of the re was influenced his marital lationship detective-prosecutor to the the extent favoring he overlooked evidence the defendant and em phasized supporting prosecution. the evidence I saying am not but at I the same time am also not that, saying that he wаs not so influenced. And if ex there only probability isted that he could have been so unquestionably the defendant influenced, denied a fair trial.” sought
After Fletcher had lost in this Court, corpus writ of habeas in the United District States appealed Court which also refused him relief. He Appeals the United States Court of which reversed the saying: district court and ordered a new “We trial, ground Stephenson rest our decision on the firm impar- juror] declaring [the son-in-law himself to be prejudice, revealing tial and without while not that he County was the son-in-law of the Detective who was investigative very one officers matter to who was to be a tried, material witness testimony Stephenson and whose created believe, *10 an intolerable situation that resulted in a fundamental unfair States Amer ly appellant.” (United ica ex rel. James F. 2d Fletcher v. A. Cavell, 792.)
The Court of could have further: “It Appeals said Stephen- been with this in mind general thought that son (as he also a prior being selected testified) de- the juryman think ‘. . . we didn’t that remarked, relation fendant would me as a accept juror by being left to him.’ He (stet) surprised being he said was on the He had examined jury. being also said while on his voir was impartial’; dire that he was ‘perfectly solely prejudice bias; free could render verdict from the adduced frоm evidence the stand.”
The that a im- juror “perfectly fact feels he may not as to partial” question determinative involve- personal whether he can be impartial, given in ment the trial. noted that it will be Moreover, left on Stephenson surprised himself that was he the jury. in Opinion
It noted will be reading Majority that at the case at bar was made suggestion that on the serving excused Engle the sug- that the trial eleven but proceed jurors, for Dr. rejected Higgle, counsel gestion by in the trial. ultimate verdict-winner not a says The that “there Majority Opinion presence that such fact [Engle’s scintilla of evidence ren- had to do verdict with the jury] anything that Majority suppose dered.” Does the on the was influenced his deliberations he say contemplating fact to or was that he sold by case as I Higgle? Moreover, a motorboat selling it is actu- Fletcher not what the case, said there probability the fact that existed “the did but ally denied have so influenced” which been could a fair trial. defendant agree Judge I Majority with the the Trial should attorneys have summoned the in the case before prior ordering him but whether he called them or the fact not, that the trial remains envisaged the hind in accordance with the traditions Anglo-Saxon justice. The fact no by remains, which one denies; thаt Miss Wolfe’s case was decided impartial jurors, jurors twelve but eleven and one person whose interests could an well have made him justice advocate not for even-handed verdict but advantage in which he saw for himself. fact litigant remains that one of Miss Wolfe’s was a *11 passed up- eventually in another case which by companions jury some these same now the sanctity jury box him with and later to inbe of the box on а be a defendant. which would How case, Majority being can the evaluate such a as situation jury guaranteed by consonant trial Con- with stitution? presence
Engle’s jury jurors in the room where improper considering were Miss Wolfe’s case was as stranger. as if he were a total Court This decided, recently judge may as November 1961 that a go jury give juror glass into the room to water.* justify can it How now its decision al which jury person pаssing lows room a around drink ing private from in water drawn the well of his own terests? justifiably support
One of the reasons advanced in famed Sacco-Yanzetti the thesis that the trial was juror fair that a not a trial is man summoned as a veniremen who fraternized with the who later became against took the stand aas witness case, Attorney jury District ac- Sacco and the asked the greater cept they confidence because this witness something “in common with him”! had
* Glendenning
Sprowls,
v.
Hunsberger v. Bender, *12 1962. Argued January Before J., Mus- C. Bell, Eagen JJ. manno, Jones, Cohen, O’Brien,