Appeal from the Judgment Entered February 8, 2006, In the Court of Common Pleas of Philadelphia County, Civil at No. January Term, 2004, No. 2988.
The opinion of the court was delivered by: Freedberg, J.
BEFORE: BENDER, DONOHUE, and FREEDBERG, JJ.
¶ 1 In this asbestos personal injury action, Appellant Donna Bednar, individually and as administratrix of the estate of her late husband James R. Bednar, appeals from judgment entered following a verdict in favor of Dana Corporation. We reverse and remand for a new trial.
¶ 2 James R. Bednar was diagnosed with mesothelioma, a cancer caused by exposure to asbestos. Mr. Bednar and his wife filed suit against a number of parties, including Dana Corporation, alleging that Mr. Bednar's exposure to asbestos caused his mesothelioma. During the pendency of the action, Mr. Bednar died from the disease. The Bednar case was consolidated for trial with two other mesothelioma cases.
¶ 3 On June 2, 2005, counsel appeared for jury selection. The administrative judge for asbestos litigation became involved in a dispute regarding whether the trial jury would consist of twelve or eight jurors. He ultimately determined that the trial jury would consist of eight jurors. At that point the administrative judge stated that all parties would be afforded three peremptory challenges each. The following exchange occurred between Appellant's counsel and the administrative judge:
COUNSEL: Your Honor, with regards to the number of strikes, the state rules say four, and - -
COURT: State rules say four in the event that there's a jury of twelve. We have a jury of eight. Using the courts discretion, three, you're getting three strikes. Plaintiff's and defense will share three. Is there anything further? So ordered by the court. Is there anything further by anybody? We have learned counsel sitting in the audience. Thank you very much. Court's in recess.
N.T., 6/2/2005, at 21-22. A jury of eight was selected with each side limited to three peremptory strikes. The cases were set to commence trial June 6, 2005, before the assigned trial judge.
¶ 4 At the time set for trial, Appellant presented the trial judge with a motion, supported by reference to the Rules of Civil Procedure and other legal authority, objecting to the seating of the jury as comprised and requesting continued jury selection by allowing each side to exercise a fourth peremptory challenge against two of the eight selected jurors, and then by selecting two replacement jurors from a small supplemental panel of prospective jurors. This suggested manner of proceeding was met with no objection. The trial judge granted the motion and called for a small supplemental panel of prospective jurors.
¶ 5 After time spent on motions matters and in recess, the trial judge, apparently concluding that he was constrained by the prior ruling of the administrative judge, announced that he was reversing himself as to the grant of a fourth peremptory challenge for each side. The trial judge determined that the jury of eight would be seated as comprised; he permitted counsel to make a record as to which of the eight jurors each side would have peremptorily challenged if afforded a fourth peremptory challenge.
¶ 6 The case proceeded to trial in a reverse bifurcated fashion. In the first phase the jury found in favor of Dana Corporation, concluding that Mr. Bednar's mesothelioma was not caused by asbestos exposure. Appellant filed post-trial motions seeking a new trial on the sole ground that the court erroneously afforded only three peremptory challenges. The post-trial motions were denied. Appellant filed notice of appeal December 20, 2005, but judgment was not entered in the trial court. As judgment was subsequently entered February 8, 2006, we consider the initial appeal filed after entry of judgment and properly before us jurisdictionally. Dominick v. Hanson, 753 A.2d 824, 825 n. 1 (Pa. Super. 2000). See also Pa.R.A.P. 905(a). Appellant filed a statement in compliance with Pennsylvania Rule of Appellate Procedure 1925, and the trial court issued an opinion pursuant to Rule 1925.
¶ 7 Our review of a trial court's denial of a post-trial motion seeking award of a new trial is governed by the following standards:
In reviewing a trial court's decision to grant or deny a motion for a new trial, "it is well-established law that, absent a clear abuse of discretion by the trial court, appellate courts must not interfere with the trial court's authority to grant or deny a new trial." Harman v. Borah, 562 Pa. 455, 756 A.2d 1116, 1121-22 (2000). Moreover, "[a] new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must ...