Colosimo v. Pennsylvania Elec. Co.

• Decision Date: 23 December 1986
• Citation: 518 A.2d 1206,513 Pa. 155
• Parties: James R. COLOSIMO, Individually and t/d/b/a Kinzua Korners and Safari Lounge, Appellee, v. PENNSYLVANIA ELECTRIC COMPANY, Appellant, v. Lamont E. EDEL and Frank Cardamone, Appellees. Lamont E. EDEL and Sandra Kay Edel, Appellees, v. PENNSYLVANIA ELECTRIC COMPANY, Appellant, v. Lamont E. EDEL, James R. Colosimo and Frank Cardamone, Appellees.
• Court: Pennsylvania Supreme Court

Page 1206

518 A.2d 1206

513 Pa. 155

James R. COLOSIMO, Individually and t/d/b/a Kinzua Korners and Safari Lounge, Appellee, v. PENNSYLVANIA ELECTRIC COMPANY, Appellant, v. Lamont E. EDEL and Frank Cardamone, Appellees.

Lamont E. EDEL and Sandra Kay Edel, Appellees, v. PENNSYLVANIA ELECTRIC COMPANY, Appellant, v. Lamont E. EDEL, James R. Colosimo and Frank Cardamone, Appellees.

Supreme Court of Pennsylvania.

Argued Sept. 17, 1986.

Decided Dec. 23, 1986.

John M. McLaughlin, Knox Graham McLaughlin Gornall & Sennett, Inc., Erie, William J. Kubiak, McDowell, McDowell, Wick & Daly, Bradford, for appellant.

Richard W. Mutzabaugh, Bradford, Paul H. Titus, Pittsburgh, for Colosimo & Edel.

William McVay, Bradford, for Lamont Edel.

David W. Swanson, Swanson, Bevevino and Millin, P.C., Warren, for appellees.

Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

HUTCHINSON, Justice.

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 ¹ 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. ² 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. ³

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. ⁴ 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, in plain and stern terms, instructed the jurors to avoid any and all contact with persons involved in the case. N.T. April 8, 1980 at 3; April 9, 1980 at 381; April 11, 1980 at 549. The jury found that the fire was caused by an accident and exonerated Penelec and all other parties of liability on April 25, 1980.

After the conclusion of the trial, Colosimo and the Edels learned about contact that occurred during the trial between Kahle and juror Chapman. During the trial, one of Kahle's employees, Rose Elliott, called Chapman and asked him to come to the office and sign some papers for his mother's estate. The papers were inheritance tax papers. Kahle thought they required filing during the trial if the estate were to qualify for the five percent discount granted for paying inheritance taxes within three months of death. 72 Pa.C.S. § 1742 (appendix). Chapman appeared at Kahle's office on April 18, 1980. He claims that Kahle met with him for a few minutes and explained the papers to him before he signed them. Deposition of Jay E. Chapman, Jr., September 10, 1980 at 8. However, he said they did not discuss this case. Chapman asked if their meeting was okay; Kahle told him that it was. Id. at 19. Kahle's version is somewhat different. He admitted that his secretary brought the approaching tax deadline to his attention, and he told her to ask Chapman to come to the office to sign the necessary papers. Deposition of Jay Paul Kahle, September 10, 1980 at 5. He remembers meeting Chapman on the sidewalk outside of his office on April 18 but said he did not talk with him. Id. at 10. He had no recollection of meeting with Chapman in his office to explain the papers on that day or any other time during the trial. Id. Kahle stated that he did not inform the court that Chapman came to his office to sign these papers because he did not think that it was necessary. Id. at 9, 11-12. Both of Kahle's secretaries corroborated his story. Neither could recall a meeting between the two men on April 18. Deposition of Bonnie Semmel, September 10, 1980 at 4; Deposition of Rose Elliott, September 10, 1980 at 14-15, 26. Chapman and Kahle were compensated by the estate for services rendered. Deposition of Jay E. Chapman, Jr. supra at 12-13; Deposition of Jay P. Kahle, supra at 7.

Colosimo and the Edels filed a supplemental motion for new trial on July 10, 1986. ⁵ They alleged that Kahle's contact with Chapman prejudiced the jury and the outcome of the trial. Common Pleas agreed and granted the motion. It relied on Printed Terry Finishing v. City of Lebanon, 247 Pa.Superior Ct. 277, 372 A.2d 460 (1977), and Disciplinary Rule 7-108(B) ⁶ of the Code of Professional Responsibility in reaching its decision.

On appeal, a divided Superior Court panel reversed Common Pleas. It cited the same authority but held that the contact was harmless and had no effect on the jury's verdict. Thus, it held that the lower court abused its discretion in granting the plaintiffs a new trial. The case was subsequently reargued before Superior Court sitting en banc. An equally divided court ⁷ affirmed the order granting a new trial. The opinion in support of affirmance stated that the contact between the attorney and the juror may not have been prejudicial. However, a new trial was necessary to protect the jury system from the appearance of impropriety. The Opinion in Support of Affirmance also relied on Printed Terry, supra, and Disciplinary Rule 7-108(B).

Contact between jurors and other parties, court officers, lawyers and judges is viewed with disfavor. The impartiality and integrity of the jury are critical to the properly functioning of our system. Indeed, the jury is its keystone. As we stated in Mix v. North American Co., 209 Pa. 636, 59 A. 272 (1904):

It has been said that the greatest object of civil government is to get twelve honest men in the jury box. If this is true, after they get there they must be kept there, hedged around not only with their own integrity, but with every precaution against evil communication which may corrupt them; and when they go to their room to deliberate upon an issue in which is involved the life, liberty or property of their fellowman, their conduct in the discharge of such solemn duty must comport with it, else confidence in the system which is the best achievement of civilization will be lost.

Id. at 645, 59 A. at 274-75. To this end, we go to great lengths to protect the jury and guard against juror bias. Through the voir dire process individuals with bias or a close relationship to the parties, lawyers or matters involved are ferreted out and excluded. Once chosen, jurors take an oath to decide the case based only on the evidence. 7 Pennsylvania...