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Thomas Bruckshaw, As v. the Frankford Hospital of the

December 18, 2012


Appeal from the judgment of the Superior Court, entered on 9/17/2010 (reargument denied on 11/22/2010) at No. 2638 EDA 2008, affirming the Judgment entered on 9/12/2008 in the Court of Common Pleas, Philadelphia County, Civil Division, at No. 2940 March Term, 2005

The opinion of the court was delivered by: Mr. Justice Baer


ARGUED: March 6, 2012


This appeal arises in the context of a medical malpractice action brought by Thomas Bruckshaw, (Appellant), as Administrator of the Estate of Patricia Bruckshaw

(Decedent) and in his own right, against Frankford Hospital of Philadelphia (Frankford Hospital), Jefferson Health System, Inc., Brian P. Priest, M.D., and Randy Metcalf, M.D. (collectively, Appellees). We granted review of the following issue, as stated by Appellant:

Whether a court is empowered to remove a principal juror without any reason and without any notice to the parties, and replace her with the last possible alternate, again without any notice to the parties, after all evidence was submitted and the jury had already retired to deliberate?

In re Bruckshaw v. Frankford Hosp., 24 A.3d 860 (Pa. 2011).

We conclude that the removal of a juror can only be done by a trial court, on the record, with notice to the parties, for cause. We further conclude that the trial court committed reversible error for which the aggrieved party is not required to demonstrate prejudice.

On April 27, 2003, Decedent died following heart valve surgery at Frankford Hospital two days earlier. Dr. Priest was the operating surgeon and Dr. Metcalf was involved in post-operative care. Appellant brought a medical malpractice, wrongful death/survival action against Appellees. Jury selection resulted in 20 jurors: 12 principal jurors and 8 alternate jurors (hereafter, "alternates"). Following jury selection,

Appellant's counsel requested the use of a larger courtroom than the trial court usually used to facilitate their use of audio and visual equipment, and the trial court granted the request, moving to another courtroom for the duration of trial.

Somewhat atypically, yet in accord with his usual practice, the trial judge declined information regarding which of the 20 jurors were principals and which were alternates. Moreover, the trial judge did not tell the jurors which of them were principals and which were alternates. Although the trial judge and the jurors were unaware of the identity of the alternates, the parties and a court officer were. In due course, one principal juror was dismissed and replaced with the first chosen alternate, and another of the alternates became unavailable and was dismissed.

At the end of the five-week trial, the principal jurors and the alternates left the courtroom together, and the court officer segregated the principal jurors and released the alternates. Although it is not clear what happened, the parties and the trial court agree that Juror 12 left the courtroom with the jury, but Juror 20 was in her place when the jury returned with its verdict.*fn1 The removal of the principal juror and replacement with an alternate was apparently done by a court officer, without notice to the parties or the trial court, and no record has ever been developed concerning this incident.

On February 21, 2008, after two days of deliberation, the jury returned to the courtroom with a verdict and Juror 20 identified herself as the foreperson. By a vote of ten to two, the jury found that Frankford Hospital and Dr. Metcalf were not negligent, and that Dr. Priest was negligent, but his negligence was not the cause of Decedent's injuries. The jury was polled, and Juror 20 indicated that she voted with the majority each time. Neither the trial court nor the parties were immediately aware that Juror 20 had replaced Juror 12.

Shortly after the February 21, 2008, delivery of the verdict, Appellant's counsel examined the verdict sheet, observed that it was signed by Juror 20 as jury foreperson, and realized that Juror 20 had been substituted for Juror 12. On February 28, 2008,

Appellant moved for post-trial relief in the form of a new trial, arguing, inter alia, that an error had occurred when Juror 20 was substituted for Juror 12 without notice to the parties. The trial court refused to grant a new trial and held that because Juror 20 was "acceptable to all parties" as an alternate, Appellant "cannot now complain that [Juror 20] was in the final jury panel." Trial Ct. Op. at 8. The trial court did not shed any light on why the court officer made the substitution. The court confirmed that it was unaware of the identity of the principal jurors and the alternate jurors, and it was the court officer who was responsible for knowing their identity. Although it did not address the juror removal or substitution, it indicated that there was confusion resulting from the use of a different courtroom, stating that "because of this new courtroom, the Court was unable to fit the jury in sequential order," and instead "fit the jury panel into the available space." Id.

On appeal to the Superior Court, all parties agreed that the court officer wrongly replaced Juror 12 with Juror 20 after trial and either before or during deliberations. However, they disagreed about the effect this error had on the jury verdict. Appellant argued that the replacement of a principal juror with the last selected alternate without notice to the court or parties and without any record evidence concerning the substitution required a new trial. The Superior Court disagreed with Appellant and affirmed the denial of a new trial, focusing on the fact that Juror 20 was accepted as an alternate during jury selection. The Superior Court suggested that to obtain relief on this issue, Appellant would have to prove that the result of the trial would have been different had another alternate juror been selected instead of Juror 20. Because he had failed to meet this burden, the Superior Court held that the seating of Juror 20 was harmless error.

We granted Appellant's petition for allowance of appeal limited solely to the issue of Juror 20's substitution, as stated above. Our standard of review in an appeal analyzing the trial court's decision to deny a new trial is whether the trial court abused its discretion. See Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000). Similarly, the trial court's decision to discharge a juror will not be reversed absent an abuse of discretion. See Commonwealth v. Treiber, 874 A.2d 26, 31 (Pa. 2005); Commonwealth v. Jacobs, 639 A.2d 786, 790 (Pa. 1994); Commonwealth v. Saxton, 353 A.2d 434, 435 (Pa. 1976); see also In re DeFacto Condemnation & Taking of Lands of WBF Assocs.,

L.P., 972 A.2d 576, 589 (Pa. Cmwlth. 2009); Rural Area Concerned Citizens Inc., v. Fayette Cnty. Zoning Hearing Bd., 646 A.2d 717, 726 (Pa. Cmwlth. 1994); Starr v. Allegheny Gen. Hosp., 451 A.2d 499, 506 (Pa. Super. 1982).

Appellant argues that the removal of Juror 12 and substitution of Juror 20 was reversible error for four reasons. First, there was no adequate reason of record to support the removal of Juror 12. Appellant relies on established precedent that once a principal juror is seated and sworn, that juror cannot be removed without good cause on the record. See Commonwealth v. Abu-Jamal, 720 A.2d 79, 115 (Pa. 1998) (holding that a trial court may seat an alternate juror whenever a principal juror becomes unable or disqualified to perform his or her duties); Saxton, 353 A.2d at 435-36 (providing that the trial court's decision to remove a seated juror must be based on a sufficient record of competent evidence to sustain removal). According to Appellant, there is nothing in the record to indicate that Juror 12 was disqualified or unable to serve. Appellant observes that the trial court offered no explanation for what happened. To the extent the trial court attempted to blame the use of a different courtroom for its confusion about the composition of the jury, Appellant argues that the court's confusion does not explain or excuse what transpired. Therefore, Appellant argues that the court officer's substitution of Juror 20 for Juror 12 without any record support was reversible error.

Although no court has addressed the particular scenario presented by the facts of this case, Appellant forwards support for his position in the decisions of other courts that have awarded new trials when the trial court impermissibly dismissed a principal juror. See United States v. Hanno, 21 F.3d 42, 44 (4th Cir. 1994); Hobbs v. United States, 18 A.3d 796 (D.C. 2011); Hinton v. United States, 979 A.2d 663, 670 (D.C. 2009); Grimstead v. Brockington, 10 A.3d 168, 179 (Md. 2010); Commonwealth v. Conner, 467 N.E.2d 1340, 1345 (Mass. 1984); Territory v. Prather, 135 P. 83, 84 (N.M. 1913); People v. Washington, 550 N.E.2d 451, 452 (N.Y. 1989); McDaniel v. Yarborough, 898 S.W.2d 251, 253 (Tex. 1995); State v. Lehman, 321 N.W.2d 212, 213 (Wis. 1982).

Second, recognizing that it was not the trial court that exercised its discretion to remove Juror 12, but the court officer, Appellant continues that only the judge has authority to remove a juror. See State v. Lynn, 924 S.W.2d 892, 894, 898 (Tenn. 1996) (reversing and remanding a case because the court clerk, not the judge, drew names out of a box to replenish the venire without notice to the parties and not in open court).

Third, assuming arguendo there was a legitimate reason to remove Juror 12, Appellant argues that the removal and substitution was reversible error because it occurred without notice to the parties. Fourth, Appellant argues that if there was a reason to support the removal of Juror 12, and he had notice in this regard, he would have insisted that the next available alternate take her seat. Appellant posits that in the course of jury selection, counsel knows that the last alternate juror chosen by the parties has little chance of being seated on the final jury, and counsel will be less likely to reserve peremptory challenges to use on an individual who has ...

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