Appeal from the Order of Superior Court at No. 1072 Pittsburgh 1981, Dated December 31, 1984, Affirming the Granting of a New Trial by the Court of Common Pleas, Civil Action-Law, of McKean County, at No. 263, June Term, 1978, Dated october 5, 1981. Appeal from the Order of Superior Court at No. 1073 Pittsburgh 1981, Dated December 31, 1984, Affirming the Granting of a New Trial by the Court of Common Pleas, Civil Action-Law, of Mckean County, at No. 4, June Term, 1979, Dated October 5, 1981. 337 Pa. Superior Ct. 363,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., joins in this opinion and files a concurring opinion. McDermott, J., files a concurring opinion. Zappala, J., concurs in the result.
Appellant, Pennsylvania Electric Company (Penelec), appeals by allowance an order of Superior Court sitting en banc which affirmed a McKean County Common Pleas order granting appellee's motion for a new trial. 337 Pa. Super. 363, 486 A.2d 1378. Common Pleas granted the new trial because one of the jurors selected had previously retained counsel for additional defendant Cardamone in an independent matter and met with counsel on that matter during the trial in violation of the trial judge's express prohibition of such contacts. We disapprove the empaneling of any juror who is currently represented by trial counsel in any matter without regard to contact between trial counsel and that juror during the trial. Any contact under such circumstances must be viewed as highly improper and the basis for a new trial if there is any likelihood of prejudice. On this record, we cannot conclude that the
attorney's client, Cardamone, in whose favor the jury returned a general verdict of no liability, did not benefit from his lawyer's relation with the juror. Therefore, we cannot rule out prejudice to the plaintiffs, whose case against Penelec was rejected by the jury. Accordingly, we hold that the trial court did not abuse its discretion by granting a new trial and we affirm Superior Court.
On June 17, 1977, a commercial complex*fn1 located in Lafayette Township, McKean County, owned by appellee James R. Colosimo and occupied by appellees Lamont E. Edel and Sandra Kay Edel, burned down. It was completely destroyed. In separate suits, Colosimo and the Edels sued Penelec. They alleged that the fire was caused by the negligence of Penelec's employees. Penelec, in turn, joined Frank Cardamone, the electrician who wired part of the complex, as an additional defendant.*fn2 Penelec claimed that the fire was caused, at least in part, by the negligence of Cardamone and the appellees themselves. The cases were consolidated for trial.
Cardamone was represented by Jay Paul Kahle. Kahle is a well known local attorney; he is also the elected district attorney of McKean County. Appellant argues that Cardamone had a close relation with the plaintiffs from which he infers Cardamone and the plaintiffs had a common interest hostile to appellant. The record shows some evidence of a relation between Cardamone and the plaintiff and cooperation between them in the litigation. Cardamone was friendly with the Edels and Colosimo, and Colosimo hired him to do electrical work at the complex from time to time. Colosimo and the Edels had not chosen to sue Cardamone; Penelec joined him as an additional defendant. Accordingly, all parties except Penelec and their attorneys met in Kahle's office to plan trial strategy after each day's proceedings.
Despite these meetings, it is obvious that Cardamone had a common interest with Penelec in obtaining a verdict against plaintiffs which would obviate any secondary liability on its part. The jury rendered a general verdict against the plaintiffs for both the defendant and the additional defendants.
Twelve jurors and two alternates were chosen on October 2, 1979 for the trial which began on April 8, 1980. It is normal practice in McKean and other rural counties to choose the jury long before trial. When the case was called, two jurors were excused and replaced by the alternates. This left the empaneled jury without alternates.*fn3
In late January or early February, after the jury was selected but before the trial began, one of the jurors, Jay E Chapman, Jr., retained Kahle to administer the estate of his recently deceased mother. Chapman was the executor. He had consulted with Kahle when his father died a year earlier. Apparently neither man associated the other with the trial.
At the conclusion of the trial's first day, April 8, Kahle informed the court, parties and counsel about his representation of Chapman. He stated that he did not realize that Chapman had been chosen as a juror in this matter until the trial began. In spite of this relationship, the parties agreed to go forward with the trial.*fn4 Had any party objected, the trial would have been continued until the next term because the complement of alternate jurors had been exhausted. This delay, in part, influenced the decision to go ahead. On April 8, 9 and 11 the court, ...