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LISA R. HORNER v. ROBERT E. BERRY AND UNITED PARCEL SERVICE (02/03/86)

SUPERIOR COURT OF PENNSYLVANIA


February 3, 1986

LISA R. HORNER, ADMINISTRATRIX OF THE ESTATE OF RANDY L. HORNER, APPELLANT
v.
ROBERT E. BERRY AND UNITED PARCEL SERVICE, INC., APPELLEES

Appeal from the Order of the Court of Common Pleas, Civil Division, of Dauphin County at No. 2790 "S" 1983.

Before: Wickersham, Rowley and Olszewski, JJ.

Per Curiam:

Order affirmed.

OLSZEWSKI, J. files a dissenting memorandum.

Disposition

Order affirmed.

ING MEMORANDUM BY OLSZEWSKI, J.:

The majority relies on the able opinion of Judge Dowling to affirm the order of the trial court. l have the greatest respect for Judge Dowling, but must disagree with this resolution of the case because of the closing remarks of counsel for appellees.

The granting of a new trial because of improper remarks of counsel is largely in the discretion of the trial judge. Narciso v. Mauch Chunk. , Pa. , , 87 A.2d 233, 234 (1952). The determination is based upon "an examination of the remark made, the circumstances under which it was made and the precautions taken by court and counsel to remove its prejudicial effects." Narciso at 87 A.2d at 234-235 (1952). The first remark appellant complains of is appellees' use of the golden rule argument.*fn1 A golden rule argument asks the members of the jury to put themselves in the position of a party. It is error for either counsel to make such a statement. See e.g., Miller v. Miller, Pa. Super. , 308 A.2d 115 (1973). "(A) jury must never enter into the litigation as partisans." Hamilton v. Fean, Pa. , , 221 A.2d 309, 314 (1966). While discussing damages, counsel for appellees asked the jury: "Is this the type of calculation that we would like worked against us in our actions if we were involved?" (Reproduced Record, p. 390a). This question was an invitation to the jury to step out of its role as independent trier of fact and to step into the role of litigant with something more at stake in the outcome of the trial than discovery of the truth. To find this statement reversible error opposing counsel must have made "prompt and specific objection on such grounds to give the trial court the opportunity to caution the jury to disregard the comments." Miller, at , 308 A.2d at 118. Immediately following appellees' closing argument, counsel for the appellant objected to the use of the golden rule argument. (Reproduced Record, p. 393a).

The golden rule argument was made during appellees' closing remarks in the midst of a plea for reasonableness. There is nothing wrong with a party asking the jury to be reasonable, l hope and expect that all persons serving as jurors will act reasonably. The error appeared when appellees ceased to ask the jury to act as independent, reasonable persons and, instead, urged them to act as partisians, equating reasonableness with their own interests. l would find that the impropriety of appellees' statement when viewed in isolation, is not mitigated when the statement is examined within the context of appellees' closing argument.


*fn1 Appellant challenges a second statement by appellees as confusing and a misstatement of law. l agree with the court below that the remark, although confusing, did not rise to the level of reversible error.


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