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12/09/97 TODD LEE v. SOUTHEASTERN PENNSYLVANIA

December 9, 1997

TODD LEE
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, APPELLANT



Appealed From No. 4465 August Term, 1994. Common Pleas Court of the County of Philadelphia. Judge RIBNER.

Before: Honorable Joseph T. Doyle, Judge, Honorable Jim Flaherty, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Judge Flaherty. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Flaherty

OPINION BY JUDGE FLAHERTY

FILED: December 9, 1997

The Southeastern Pennsylvania Transportation Authority (SEPTA) appeals from the July 22, 1996 order of the Court of Common Pleas of Philadelphia which granted Todd Lee's (Lee) post trial motion for a new trial based upon the conduct of SEPTA's counsel during the course of the trial. We affirm.

On September 8, 1992, Lee was aboard a SEPTA bus which was in an accident with another vehicle. Lee claims that as a result of the bus driver slamming on the brakes, Lee was injured when he was thrown forward and fell down. Lee instituted suit against SEPTA.

At trial, SEPTA's counsel attempted to bring before the jury that Lee had allegedly made prior false claims against SEPTA, including a claim that Lee was on a bus involved in an accident on August 20, 1992. Without introducing any evidence of this prior claim, SEPTA's counsel asked Lee upon cross examination:

Q. Now Mr. Lee isn't it true that you never pursued that claim against SEPTA for the August 20th, 1992 accident because SEPTA had information that you had boarded the bus after the accident took place?

(N.T. 10/18/95, p. 66). Following a prompt objection, the trial court declared a recess, sustained Lee's objection and asked SEPTA's counsel to explain the purpose of the question. After the jury was brought back into the courtroom, the trial Judge gave a cautionary instruction, directing the jury to disregard the last question asked.

Yet a second time, SEPTA's counsel attempted to ask substantially the same question of Lee. Lee's counsel objected again and moved for a mistrial. The trial court again instructed the jury to disregard the last question and caused the jury to leave the courtroom. The trial court then engaged in a colloquy with SEPTA's attorney, requesting that he explain to the court how this last question was any different from the first time. After arguments by attorneys for both SEPTA and Lee, the trial court addressed SEPTA's attorney as follows:

You deliberately tried to evade the ruling of the Court when I told you point blank I am not going to let information come in before the jury unless it becomes relevant for some other reason.

At this stage, I gave the jury a cautionary instruction to disregard the earlier question. I didn't want to mention what the question was because I didn't want to reaffirm it in their minds, but then you asked virtually the same question.

I don't know if that was done out of gross ignorance or whether it was a deliberate attempt to try and fool me. You are not going to fool me. I have been around a long time. I am not going to allow you to get away with something like that. Do you understand that? . . . I regard your conduct as being atrocious in that regard. It amounts to virtual contempt of court. I will give that some further thought.

(N.T., 10/18/95, pp. 135 - 137). The court adjourned for the day and reconvened the following day. The court denied Lee's outstanding motion for a mistrial but ordered SEPTA's counsel not to mention anything about a prior claim against SEPTA, cautioning SEPTA's counsel that "if you mention that without first getting clearance from me to do it, . . . I ...


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