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Cordes v. Associates of Internal Medicine

Superior Court of Pennsylvania

March 12, 2014

SUSANNE CORDES, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF EDWARD D. CORDES, SR., Appellant
v.
ASSOCIATES OF INTERNAL MEDICINE; TRI-STATE MEDICAL GROUP, P.C.; TRI-STATE MEDICAL GROUP, P.C. D/B/A ASSOCIATES OF INTERNAL MEDICINE, ANN MARIE RAY, M.D.; AND MARTHA LOUISE NEWMAN, P.A.,

Appeal from the Judgment Entered October 20, 2011 In the Court of Common Pleas of Beaver County Civil Division at No.: 10763-2009.

BEFORE: STEVENS, P.J.[*], BENDER, J., BOWES, J., GANTMAN, J., DONOHUE, J., ALLEN, J., OLSON, J., OTT, J., and WECHT, J.

OPINION IN SUPPORT OF REVERSAL

DONOHUE, J.:

I join in Judge Wecht's Opinion in Support of Reversal's (W.O.S.R.) holding that Juror Snowden should have been presumed prejudiced and replaced with an alternate juror based upon the physician-patient relationship between Juror Snowden's wife and the defendant Dr. Ray. Further, while I agree with Judge Wecht that the trial court erred by failing to discharge, for cause, Juror Kaelin and Juror Majors, I respectfully disagree in part with the rationale advanced by Judge Wecht in support of his decision. I write separately to set forth my reasoning and points of divergence.

Legal Standard

I begin by voicing my emphatic agreement with Judge Wecht that "[t]he critical consideration that animates our ruling regarding all three jurors in this case is the importance of ensuring not only a jury that is impartial in fact, but one that appears to be free of the taint of partiality to a disinterested observer[.]" W.O.S.R. at 31 (emphasis in the original). Contrary to this overarching consideration, too often trial courts almost inexplicably find it necessary to shoehorn certain prospective jurors into the jury box when faced with information that at the very least gives the appearance of an inability to be impartial.[1]

In my view, we must be guided by the jury selection principle articulated by our Supreme Court that "no person should be permitted to serve on a jury who stands in any relation to a party to the cause that would carry with it prima facie evident marks of suspicion of favor." Seeherman v. Wilkes-Barre Co., 255 Pa. 11, 14, 99 A. 174, __ (1916) (emphasis added) (internal quotation marks omitted). As succinctly stated by the Seeherman Court: "[T]he cause should be tried by persons free even from the suspicion of partiality." Id. at 14-15, 99 A. at __.[2]

Standard of Review

I agree with Judge Wecht that the appropriate standard of review in this case is not driven by the direct/indirect relationship analysis suggested by the learned Dissent. See Diss. Op. at 2-25.

The test for determining whether a prospective juror should be disqualified is whether he is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor.... A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct and answers to questions.

McHugh v. Proctor & Gamble Paper Products Co., 776 A.2d 266, 270 (Pa.Super. 2001) (citation omitted). Therefore, there are two circumstances that warrant removal of a juror from the venire for cause: (1) the juror has a close familial, financial, or situational relationship with a case participant such that a presumption of prejudice exists ("the first category"), or (2) the juror exhibits a likelihood of prejudice through his or her conduct and answers to questions during voir dire ("the second category"). See Commonwealth v. Colon, 299 A.2d 326, 327 (Pa.Super. 1992) (en banc). "Our standard of review of a denial of a challenge for cause differs, depending upon which of these two situations is presented." McHugh, 776 A.2d at 270. Critically for this discussion, as in every case that comes before us, the standard of review we employ is determined by how the appellant frames and argues the issue. See, e.g., Lanning v. West, 803 A.2d 753, 766 (Pa.Super. 2002) (although listed as a weight of the evidence claim, argument was a challenge to the sufficiency of the evidence, which required a different standard of review); Commonwealth v. Howard, 540 A.2d 960, 961 (Pa.Super. 1988) ("[a] contention that the sentence imposed constitutes cruel and unusual punishment is a challenge to the legality of sentence which may be appealed as of right on direct appeal") (emphasis added).

Here, Appellant unquestionably raises and argues trial court error based upon its failure to presume prejudice because of the relationships the jurors had with a case participant pursuant to the first category of challenges for cause. Therefore, "[our] determination is practically one of law, and as such, is subject to ordinary review, " which the McHugh Court defined as "whether the trial court abused its discretion or erred as a matter of law." McHugh, 776 A.2d at 270, 270 n.3. Both Judge Wecht and the Dissent agree that our standard of review under the first category is de novo. See W.O.S.R. at 7; Diss. Op. at 4. This is akin to "ordinary review" as defined in McHugh, as both are premised on determining whether the trial court committed an error of law. See McEwing v. Lititz Mut. Ins. Co., 77 A.3d 639, 646 (Pa.Super. 2013) ("To the extent that the trial court's findings are predicated on errors of law, we review the court's findings de novo."); see also In re Doe, 613 Pa. 339, 355-56, 33 A.3d 615, 625-26 (2011) (a court abuses its discretion, in relevant part, by misapplying or overriding the law).

By not recognizing the requirement that this Court conduct a de novo review, in my assessment, the learned Dissent conflates our standard of review with what the Dissent believes is the appropriate outcome of our review which, according to the Dissent, is that the trial court did not err as a matter of law or abuse its discretion by failing to find a presumption of prejudice that warranted the exclusion of the jurors at issue. The Dissent repeatedly asserts that because none of the jurors in question had a direct relationship with a case participant, it is improper for this Court to apply a de novo standard of review pursuant to the first category of challenges for cause. However, the evidence presented regarding the relationship between the juror and a case participant determines whether the trial court should have presumed prejudice because of the relationship. The parameters of the juror's alleged disqualifying relationship do not determine the standard of review we employ to decide whether prejudice should have been presumed. If the Dissent is correct in the determination of our standard of review, we would never have new case law recognizing additional relationships that warrant a presumption of prejudice and, of course, our jurisprudence is to the contrary.[3]

As a result, I agree with Judge Wecht's conclusion that a potential juror's familial, financial or situational relationship with a party, victim, witness, or attorney involved in the case need not be direct in order to warrant his or her disqualification as a matter of law. See W.O.S.R. at 13-20. A potential juror may testify to a relationship with a party or case participant that, on its face, does not appear to be sufficiently close to warrant a presumption of prejudice, but when the juror reveals more information, a presumption of prejudice arises. As the situational relationship is flushed out, striking the juror for cause is required regardless of whether the juror believes the relationship would affect his or her ability to be fair and irrespective of whether there is a direct relationship between the potential juror and the party, participant or the case. See, e.g., ...


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