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JAMES R. COLOSIMO v. PENNSYLVANIA ELECTRIC COMPANY (12/31/84)

filed: December 31, 1984.

JAMES R. COLOSIMO, INDIVIDUALLY AND T/D/B/A KINZUA KORNERS AND SAFARI LOUNGE
v.
PENNSYLVANIA ELECTRIC COMPANY, APPELLANT, V. LAMONT E. EDEL AND FRANK CARDAMONE. LAMONT E. EDEL AND SANDRA KAY EDEL V. PENNSYLVANIA ELECTRIC COMPANY, APPELLANT, V. LAMONT E. EDEL, JAMES R. COLOSIMO AND FRANK CARDAMONE



Appeal from the Order of the Court of Common Pleas, Civil Division of McKean County at No. 263 June Term, 1978. Appeal from the Order of the Court of Common Pleas, Civil Division, of McKean County at No. 4 June Term, 1979.

COUNSEL

John M. McLaughlin, Erie, for appellant.

Paul H. Titus, Assistant District Attorney, Pittsburgh, for appellees.

Spaeth, President Judge, and Cavanaugh, Wieand, Cirillo, Montemuro, Popovich and Hoffman, JJ. Cirillo, J., filed an opinion in support of affirmance. Spaeth, President Judge, filed an opinion in support of remand. Wieand, J., filed an opinion in support of reversal in which Montemuro, J. and Popovich, J., joined. Popovich, J., filed an opinion in support of reversal.

Author: Per Curiam

[ 337 Pa. Super. Page 365]

The Court being equally divided, the Order of the Court of Common Pleas is AFFIRMED.

[ 337 Pa. Super. Page 366]

OPINION IN SUPPORT OF AFFIRMANCE

CIRILLO, Judge:

On June 17, 1977, fire destroyed a restaurant owned by appellee James R. Colosimo, and occupied by appellees, LaMont E. Edel and Sandra K. Edel. The Edels and Mr. Colosimo filed separate suits against the appellant, the Pennsylvania Electric Company. Appellant then joined Frank Cardamone and Mr. Edel as additional defendants in both suits, and joined Mr. Colosimo as an additional defendant in the Edel suit. The cases were consolidated for trial which commenced on April 7, 1980.

Following a jury verdict in favor of defendant-appellant, the trial court granted appellees' supplemental post-trial motions and entered an order for new trial. The trial court granted a new trial because undisclosed out-of-court communications occurred during the course of trial between the attorney for additional defendant Cardamone and one of the sitting jurors.

Sometime prior to the commencement of trial in this case, Jay Paul Kahle, Esquire, attorney for defendant Cardamone, had been retained by Jay Chapman, Jr., to probate the estate of Mr. Chapman's mother. This attorney-client relationship was made known to the court and to all counsel at the outset of trial. Neither the court nor the attorneys moved for a mistrial based on this disclosure, and Mr. Chapman was permitted to sit as a juror. However, contrary to the trial court's express instruction, attorney Kahle communicated and conducted business with juror Chapman during the course of trial. Specifically, appellees' counsel learned that on April 18, 1980, while trial was in progress, Chapman visited Kahle's office to sign inventory and appraisal papers for his mother's estate and to discuss other

[ 337 Pa. Super. Page 367]

    matters related to the estate.*fn1 One of the purposes of this meeting was to expedite the filing of the estate papers in order to secure a 5% inheritance tax discount for Chapman. At this meeting Chapman was first made aware of Kahle's legal fee. Also Chapman on that day wrote a check to Kahle for $1,990.54. The trial court granted appellees' motion for new trial primarily on the basis of the appearance of impropriety created by this meeting.

On appeal, appellant admits that the out-of-court communications took place, but denies that a new trial was required because of them. Appellant maintains that the trial court abused its discretion in ordering a new trial without considering the effect of the contact between Cardamone's attorney and the juror; that is, whether this out-of-court meeting in any way influenced the verdict.

We note that the decision to "grant or refuse a mistrial because of alleged improper conduct on the part of counsel is solely within the discretion of the trial judge." Printed Terry Finishing v. City of Lebanon, 247 Pa. Super. 277, 299, 372 A.2d 460, 471 (1977). After consideration of pertinent concerns, we conclude that the trial court acted within its discretion.

In the leading Pennsylvania case on attorney-juror contacts, we stated the general rule that a trial court should grant a new trial if an attorney communicates with a juror during the course of trial and the harmlessness of such contact is not shown. Printed Terry, supra, 247 Pa. Superior Ct. at 299-300, 372 A.2d at 471. See also, Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892). Our disposition in Printed Terry suggests that before granting a new trial, the trial court must assess the prejudicial impact of the contact between the attorney and the sitting jury, and determine whether such contact influenced

[ 337 Pa. Super. Page 368]

    the verdict.*fn2 However, we expressly reserved ruling on whether the trial court must always consider the effect of the contact, or whether some communications are so serious in nature that the appearance of impropriety alone may be sufficient to compel a new trial. We now have occasion to review this question.

[ 337 Pa. Super. Page 369]

In Printed Terry we recognized the fundamental impropriety of lawyer-juror communications during the course of trial,*fn3 but noted that certain accidental and casual contacts were inevitable. We stated that where such unavoidable and momentary contacts occur "'it is not required that [the parties] be curt or lacking in the customary amenities of social intercourse . . .'" Printed Terry, supra, 247 Pa. Super. at 299, 372 A.2d at 471, (quoting Pessin v. Kenneland Association, 298 F.Supp. 593, 599 (E.D.Ky. 1969)). Certainly a new trial is not warranted where an attorney acknowledges a juror in an elevator or says hello at a ball game. Where the contact is minimal and discreet, the trial court rightly should consider whether the juror has been influenced before granting a new trial.*fn4 See Printed Page 369} Terry, supra. Numerous jurisdictions have held that such insignificant contact is not ground for mistrial in the absence of prejudice. See e.g., Potts v. Krey, 362 S.W.2d 726 (Ky. 1962); Safeway Trails, Inc. v. Smith, 222 Md. 206, 159 A.2d 823 (1960); Atwood v. Lever, 274 So.2d 146 (Miss. 1973); O'Berry v. Perry, 266 N.C. 77, 145 S.E.2d 321 (1965); Landes v. Faella, 106 R.I. 23, 255 A.2d 724 (1969). See generally, 62 A.L.R.2d 298 (1958).

However, we believe that a prejudice standard is not always appropriate. There are certain attorney-juror contacts which happen during trial, "which if permitted to stand would shake the confidence of laymen in the fairness of judicial proceedings." Baker v. Ohio Ferro-Alloys Corp., 23 Ohio App.2d 25, 261 N.E.2d 157, 164 (1970); Omaha Bank, Etc. v. Siouxland Cattle Co-Op., 305 N.W.2d 458 (Iowa 1981). In such circumstances we must find reversible error regardless of a showing of actual prejudice. In cases of such gross impropriety, our concern is not with the contact's potential influence on a discrete verdict; rather we seek to protect against the "confidenceshaking effect upon future cases, which would result from appellate disregard of such events." Baker v. Ohio Ferro-Alloys Corp., supra, 23 Ohio App.2d 25, 261 N.E.2d at 164.

After all, trial by jury is among the unique and fundamental institutions of our democratic government. Mix v. North America Co., 209 Pa. 636, 59 A. 272 (1904); Alexis de Tocqueville, Democracy in America (1840). Therefore, it is imperative that we promote public confidence in our judicial system by vigilantly protecting the integrity of our jury system. "Trial by jury presupposes that the jury works in a controlled environment, untouched by any influence other than that properly permitted by the trial judge." Hobson v. Wilson, supra. To safeguard zealously this controlled environment, we must see to it that "each juror enters a case impartial, and throughout trial remains uncontaminated by outside pressures." Id.; Code of Professional

[ 337 Pa. Super. Page 370]

Responsibility EC 7-29. We must take every "precaution against evil communication which may corrupt [the jury]." Mix v. North America Co., supra, 209 Pa. at 645, 59 A. at 274-75.

In the instant case, the contact between attorney Kahle and juror Chapman was not insignificant, and certainly far more substantial than the mere social amenity contemplated in Printed Terry. We agree with the trial court that the possible prejudicial effect on the verdict of the Kahle-Chapman business meeting is not especially relevant. Indeed, we subscribe to the trial court's position that the appearance of impropriety here is alone sufficient to warrant a new trial. Both Chapman and Kahle were admonished by the court to cease out-of-court communication during the course of trial. In direct defiance of this caveat, Chapman and Kahle met to discuss business. Here, the fact that this meeting directly or indirectly resulted in a considerable tax savings to Chapman adds to the appearance of impropriety.

We simply cannot allow a sitting member of a jury (here, the jury foreman) to consult or conduct business with an attorney for one of the parties during the course of trial without permission of the court. Thus, we hold that where, as here, substantial undisclosed business is conducted between an attorney and a juror during trial, democratic principles compel a new trial. While we are not certain that Chapman, as juror, was in fact contaminated, the appearance of outside influence is inescapable.

Order affirmed.

Opinion IN SUPPORT OF REMAND

SPAETH, President Judge:

The issue in this case is whether a new trial should be granted as to the defendant, Pennsylvania Electric Company

[ 337 Pa. Super. Page 371]

(PECO), where the attorney for the additional defendant, Cardamone, initiated a communication with a juror.*fn1 In my view this issue cannot be resolved without findings of fact by the trial court. Since the trial court made no findings, I should remand for further proceedings.

This case is difficult because the trial court granted a new trial as to PECO despite the fact that PECO's attorney did nothing wrong. I think, however, that we may dissolve this difficulty if we put it aside for the moment, and approach it step by step.

Suppose a case involving only two parties -- plaintiff and defendant. If it appears that during the trial there was a communication between the defendant's attorney and a juror, and if the jury finds for the defendant, is the plaintiff entitled to a new trial? In answering this question, the first inquiry should be, "What were the contents of the communication?"

In the very unusual case the contents of the communication will not be known. That was the case in Printed Terry Finishing Co. v. City of Lebanon, 247 Pa. Super. 277, 372 A.2d 460 (1977), because there, while the trial judge received testimony showing that there had been a communication, he refused to receive testimony regarding the contents of the communication. We held that in these circumstances

[ 337 Pa. Super. Page 372]

    a new trial was required.*fn2 I agree with my colleagues that much that we said in Printed Terry Finishing Co. is relevant to our consideration here, but it was nevertheless ...


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