Appeal from judgment of Court of Common Pleas of Washington County, March T., 1966, No. 257, in case of Paul Ciaffoni v. W. R. Ford.
James A. Ashton, with him Ashton, Stitt & Valaw, for appellant.
Robert L. Ceisler, with him Patrono, Ceisler & Edwards, for appellee.
Ervin, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Wright, J., absent). Opinion by Montgomery, J.
[ 211 Pa. Super. Page 473]
This is an appeal by the plaintiff in an action in replevin from a judgment in the defendant's favor entered in the Common Pleas Court of Washington County. The subject matter of the action was the ownership and identification of 22 head of cattle located on defendant's farm in Washington County, which farm was adjacent to that of the plaintiff. The case was tried initially before President Judge Charles G. Sweet without a jury from July 8, 1966 to July 26,
[ 211 Pa. Super. Page 4741966]
, with a decision (verdict) in the defendant's favor being entered by Judge Sweet on September 28, 1966. On October 7, 1966 a motion for a new trial was made by the plaintiff in which he asserted, as one of his reasons, that the trial judge had failed to reveal to the plaintiff before or during the trial that defendant's attorney, Robert L. Ceisler, Esq., was also Judge Sweet's personal attorney in a lawsuit then pending in the Court of Common Pleas of Washington County.
The motion for a new trial was argued before the court en banc, consisting of President Judge Sweet, Judge McCune and Judge Curran, on November 10, 1966, with the result that the decision (verdict) was set aside and ". . . the record is referred to Judge Alexander R. Curran for further action consistent with the Act of 1874,*fn1 supra."
In setting aside the decision of Judge Sweet the court en banc said that such action was being taken ". . . as a matter of grace and not as a matter of right." We agree. This record is entirely free from even the slightest suggestion of prejudice or impropriety on the part of the trial judge. We note also his statement that prior to the commencement of the trial he had disclosed that he was represented by Mr. Ceisler in another matter. Unfortunately this disclosure was not made part of the record in this case.*fn2 We see no good reason for the action of the court en banc in setting aside Judge Sweet's decision although he agreed to such action. However, since no appeal was taken by either party we must accept it as binding.
The sole issue now before us is whether Judge Curran was privileged to make his own independent decision on the record made before Judge Sweet. Although
[ 211 Pa. Super. Page 475]
the opinion of the court en banc clearly indicates its intention,*fn3 the order of January 10, 1967 merely sets aside Judge Sweet's verdict and refers the record to Judge Curran ". . . for further action consistent with the Act of 1874, supra." Thus we have the opinion indicating that Judge Curran might use the original record in coming to his independent decision, and the order, as we interpret it, authorizing him to disregard it and dispose of the case consistently with the Act of 1874. In Hyman v. Borock, 211 Pa. Superior Ct. 126, 235 A.2d 621 (1967), which was not available to the lower court or counsel when the order under consideration was made, we declared that without the consent of the parties "the substitution of another judge for the trial judge may not be approved where the testimony has been heard without a jury and the trial judge has not yet rendered a decision on the factual issues." The same principle would ...