Appeal from order of Superior Court, April T., 1965, No. 282, affirming judgment of Court of Common Pleas of Butler County, Sept. T., 1965, No. 54, in case of Kersey Manufacturing Co. v. August Rozic.
William C. Robinson, with him Henninger & Robinson, for appellant.
Harry K. McNamee, with him Marshall, Marshall, McNamee & MacFarlane, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.
The sole question raised on this appeal*fn1 is whether the action of a trial judge in communicating with a
jury, through a court crier and in the absence of unnotified counsel, requires the grant of a new trial?
On April 10, 1959, Kersey Manufacturing Co. (Kersey) instituted an assumpsit action in the Court of Common Pleas of Butler County against August Rozic (Rozic). Suit was based upon a written conditional sales contract involving certain heavy machinery. After a jury trial, the jury returned a verdict against Kersey and in favor of Rozic. Motion for a new trial was refused, a judgment on the verdict entered and an appeal taken to the Superior Court.*fn2 The Superior Court affirmed the judgment*fn3 (207 Pa. Superior Ct. 182, 215 A.2d 323) and we granted an allocatur.
The factual background essential to a determination of the question raised on this appeal is as follows: after the jury had deliberated for approximately two hours, the trial judge left the court house and went out for dinner and, while at dinner, received a telephone call from the court crier who advised the trial judge that the jury had sent a note to the judge which read as follows: "We have taken quite a few ballots & just cannot agree. We all feel that both parties are at fault and each should share the loss. If you have any suggestions, please advise. [Signed by the foreman].": the trial judge, by telephone, instructed the court crier to write on the bottom of the note and return to the jury the following instruction: "Continue your deliberations. Review the evidence and come to a decision to the Best of your Judgment." When this instruction was given, neither attorney had been notified of the jury's request nor was either counsel present
when the instruction was given. Shortly after the instruction was given the jury returned its verdict. The next day Kersey's counsel learned of the incident.
When the trial judge was approached about the incident, the note -- which had not been made a part of the record -- was produced from the judge's desk*fn4 and it was the trial judge's recollection that the instruction ...