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STOUGH v. DICKMANN (03/29/76)

decided: March 29, 1976.

STOUGH, APPELLANT,
v.
DICKMANN



Appeal from judgment of Court of Common Pleas of Westmoreland County, April T., 1971, No. 608, in case of Robert A. Stough v. F. F. Dickmann.

COUNSEL

Richard H. Albert, with him Bernard Redlich, Robert Y. Cassol, and Redlich, Cassol, Redlich & Morocco, for appellant.

Edgar P. Herrington, Jr., with him Stewart, Belden, Sensenich & Herrington, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Dissenting Opinion by Price, J.

Author: Cercone

[ 238 Pa. Super. Page 620]

This is a personal injury action arising from an automobile accident, the facts of which are not relevant to this appeal. The case was tried on February 4, 5 and 6, 1974 and, on the morning of February 6, 1974 the case was submitted to the jury. Sometime later that morning the jury notified the court that it had some questions. These questions were answered by the court and the jury continued with its deliberation. Around the noon hour the judge, the parties, and counsel went to lunch. Shortly thereafter the jury signaled the tipstaff and stated that a decision had been reached. Since the judge, parties, and counsel were all at lunch the tipstaff told the jury foreman to note the decision and to then seal the verdict slip. After having done this the jury was permitted by the tipstaff to separately leave the jury room and go to lunch. Approximately one hour and a half later the jury returned to the jury box and the sealed verdict was announced. The verdict was in favor of plaintiff, Robert A. Stough, in the sum of $8,000.00. At the request of plaintiff's counsel the jury was then polled and each of the twelve jurors verbally indicated that the verdict announced was the verdict which they had unanimously

[ 238 Pa. Super. Page 621]

    agreed upon. Plaintiff filed a motion for a new trial arguing that the separation of the jury prior to the announcement of its verdict to the court required a new trial. Such motion was rejected by the court en banc and plaintiff has now appealed to this court.

Plaintiff argues here, as he did in the court below, that since the jury was permitted to separate prior to announcing its verdict to the court a new trial is required. In support of this contention plaintiff cites several cases in which the Pennsylvania courts have shown their disapproval of the practice of allowing jurors to seal their verdict and separate before their verdict is announced to the court. The case of Kramer v. Kister, 187 Pa. 227 (1898) involves the traditional problem which arises from the use of a sealed verdict. In that case the jury reached a decision, sealed the verdict and then separated. The next morning the verdict was announced; however, when the jury was polled one juror dissented. The trial judge at this point sent the jurors out again and in a short time the jurors returned with a unanimous verdict. The defendant then appealed and the problem was resolved by our Supreme Court as follows: "When a juror dissents from a sealed verdict there is a necessary choice of evils, a mistrial or a verdict finally delivered under circumstances that justly subject it to suspicion of coercion or improper influences. We are of opinion that the former is the lesser evil." Kramer v. Kister, 187 Pa. at 236.

The problem of jurors dissenting from a sealed verdict again arose in Eastley v. Glenn, 313 Pa. 130 (1933). There the jury reached a verdict at 5:00 P.M. on a Friday. They sealed their verdict, separated and returned on Monday morning. When polled two of the jurors dissented from the sealed verdict. The jurors were sent back and returned without any dissenters. After appeal to our Supreme Court a new trial was granted and the following statement as to sealed verdicts was set forth:

[ 238 Pa. Super. Page 622]

"In closing, we are moved to deprecate the growing practice in trial courts of permitting juries to seal their verdicts, disperse and remain at large for several days before their verdict is taken in open court; the efficacy and strength of jury trial is in grave danger of being weakened and its high position in judicial procedure seriously endangered. Difficulties such as have arisen in the instant case can be avoided without undue effort. If the trial judge cannot be present to receive a verdict, he may have another member of his court present to receive it. Historically, it was the practice to compel juries to remain together until their verdict was announced. Convenience and the demands of modern life have caused a change in this custom. While we do not wish to be understood as holding such procedure necessary in every case, it is our judgment that every effort should be made by the trial judge to receive the verdict when the jury is ready to announce it, rather than to permit the jury to seal their verdict, disband, and risk the chance of an interference before they reassemble." Eastley v. Glenn, 313 Pa. at 134.

Another problem which can arise with the use of sealed verdicts is demonstrated by the case of Wellitz v. Thomas, 122 Pa. Superior Ct. 438 (1936). After having sealed the verdict the night before, the jury returned the next morning. The foreman, however, was absent due to illness. The verdict nevertheless was recorded. On appeal this court granted a new trial stating: "Until the actual announcement and recording of the verdict, in the presence of the court, anyone of the jurors had the right to dissent from it, and the unanimous ...


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