Oblon v. Ludlow-Fourth Corp.

• Decision Date: 03 September 1991
• Docket Number: Nos. 1112,LUDLOW-FOURTH,B-K,s. 1112
• Citation: 595 A.2d 62,406 Pa.Super. 591
• Court: Pennsylvania Superior Court
• Parties: Charles OBLON and Bonnie Oblon, H/W, Appellants, v. TheCORP., Westinghouse Electric Corporation, Bressman & Carol, Philadelphia Electric CompanyElectrical (ASCO), Shaffer-Gordon Winmon, Inc. and Keystone Engineering Corporation. (Two Cases) Charles OBLON and Bonnie Oblon v. TheCORP., Westinghouse Electric Corp., Philadelphia Electric Co., Bressman & Carol, Ind. and t/a Richard Roe; Keystone Engineering Corp.; Shaffer-Gordon Associates and/ASCO. Charles OBLON and Bonnie Oblon, H/W v. TheCORP., Westinghouse Electric Corp., Philadelphia Electric Co., Bressman & Carol, Ind. and t/a Richard Roe; Keystone Engineering Corp.; /ASCO. Appeal of KEYSTONE ENGINEERING CORP. (Two Cases) PHIL. 1990, 1113 PHIL. 1990, 1114 PHIL. 1990, 1248 PHIL. 1990

Page 62

595 A.2d 62

406 Pa.Super. 591

Charles OBLON and Bonnie Oblon, H/W, Appellants, v. The LUDLOW-FOURTH CORP., Westinghouse Electric Corporation,

Bressman & Carol, Philadelphia Electric Company B-K

Electrical (ASCO), Shaffer-Gordon Winmon, Inc. and Keystone

Engineering Corporation. (Two Cases)

Charles OBLON and Bonnie Oblon v. The LUDLOW-FOURTH CORP., Westinghouse Electric Corp.,

Philadelphia Electric Co., Bressman & Carol, Ind.

and t/a Richard Roe; Keystone

Engineering Corp.;

Shaffer-Gordon

Associates

and B-K/ASCO.

Charles OBLON and Bonnie Oblon, H/W v. The LUDLOW-FOURTH CORP., Westinghouse Electric Corp.,

Philadelphia Electric Co., Bressman & Carol, Ind.

and t/a Richard Roe; Keystone

Engineering Corp.; B-K/ASCO.

Appeal of KEYSTONE ENGINEERING CORP. (Two Cases)

Nos. 1112 PHIL. 1990, 1113 PHIL. 1990, 1114 PHIL. 1990, 1248

PHIL. 1990

Superior Court of Pennsylvania.

Argued March 21, 1991.

Filed June 19, 1991.

Rearguments Denied Sept. 3, 1991.

Stephen Saltz, Philadelphia, for Oblon, appellants (at 1112 and 1113) and appellees (at 1248 and 1114).

Gordon Gelfond, Philadelphia, for Bressman & Carol, appellee (at 1112, 1113, 1114 and 1248).

James M. Marsh, Philadelphia, for Keystone Engineering, appellant (at 1248 and 1114) and appellee (at 1112 and 1113).

Robert A. Koons, Jr., Philadelphia, for Westinghouse Electric, appellee (at 1112, 1113, 1114 and 1248).

Before CIRILLO, OLSZEWSKI and CERCONE, JJ.

CIRILLO, Judge:

Charles and Bonnie Oblon and Keystone Engineering Company ("Keystone") have filed consolidated appeals from orders entered on March 8, 1990, and April 17, 1990 in the Philadelphia County Court of Common Pleas. We affirm.

On February 20, 1983, a fire occurred at the Ludlow Fourth Building at 400 Market Street in Philadelphia. Thereafter, Charles Oblon, an electrician, began working to repair the electrical equipment damaged by the fire. On February 22, 1983, multiple electrical explosions occurred causing burn injuries to Oblon's face, hands, arms and part of his back.

Thereafter, Oblon commenced two actions, based upon negligence and strict liability, see 402A Restatement of Torts (2d), against Bressman and Carol ("B & C"), designer of the electrical plans for the Ludlow Fourth Building; Westinghouse Electric Corporation ("Westinghouse"), designer and manufacturer of the equipment that Oblon was repairing when injured; Keystone, which assembled and installed the electrical equipment; and Philadelphia Electric Company, ("PECO"), which allegedly selected the type of fuse which protected the electrical equipment that Oblon had been repairing when he was injured.

The two actions were consolidated and a jury trial commenced on January 30, 1990. Following a seven week trial, the jury was given ten questions to answer. ¹ The jury however, was unable to reach a unanimous verdict. ² Subsequently, Oblon's request for a verdict to be entered on the issue of liability was denied. Oblon also filed a post-trial motion to mold the verdict which was accompanied by affidavits that Oblon's attorney had obtained ex parte from jurors eight and nine and an affidavit from Charles Oblon in which he stated that he would accept the jury award of $1,000,000.00. Oblon's motion to mold the verdict was denied. PECO's post-trial motion for judgment on the entire record was granted. Keystone's post-trial motions for judgment notwithstanding the verdict, judgment upon the entire record, and for indemnity against B & C and Westinghouse were denied. As such, the trial court granted a new trial on all issues between Oblon and Westinghouse, B & C, and Keystone. Oblon and Keystone filed timely appeals. We will initially address the claims asserted in Oblon's appeal.

I. The trial court erred in denying [Oblon's] motion to mold the verdict despite the affidavits of jurors [eight and nine] which unambiguously demonstrated that there was not an irreconcilable inconsistency in the jury verdict and that the jurors all agreed that appellees were negligent.

A. The trial court erred in refusing to consider the affidavits of jurors [eight and nine].

B. There was not an irreconcilable inconsistency in the jury verdict and the verdict should have been molded to reflect the intent of the jurors.

C. The trial court erred in failing to enter judgment against appellees on the issue of negligence.

II. The trial court erred in granting defendant, [PECO's] motion for judgment based on the record after the jury found [PECO] negligent.

When reading issues I, I(a) and I(b), Oblon's argument is essentially that since the juror affidavits were used merely to explain and clarify their responses to the answers contained in the jury verdict questionnaire, the trial court erred in refusing to consider the affidavits and in refusing to mold the verdicts based upon the statements in the affidavits. Specifically, Oblon argues that a combination of the information contained in the affidavits and the information set forth in the jury verdict questionnaire demonstrates a consensus among the jurors that Oblon was no more than twenty-nine percent negligent.

Here, although the jury verdict questionnaire evidenced a consensus, a poll of the jurors revealed that there was in fact no agreement as to percentages of fault and amount of damages that Oblon should be awarded. In Pennsylvania, for a verdict to be valid five-sixth's of the jury must agree. 42 Pa.C.S. § 5104(b). In the instant case, a polling of the jury revealed that only seven of the nine jurors agreed to the verdict. As such, there was no verdict.

It has long been the rule in Pennsylvania that the only verdict is that which is announced orally in court by the jury, and if at that time any juror disagrees, with or without poll, before the verdict is recorded then there is no verdict.

Barefoot v. Penn. Central Transp. Co., 226 Pa.Super. 558, 323 A.2d 271 (1974); see also Havranek v. Pittsburgh, 344 Pa. 375, 25 A.2d 703 (1942); Friedman v. Ralph Bros., Inc., 314 Pa. 247, 171 A. 900 (1934); Eastley v. Glenn, 313 Pa. 130, 169 A. 433 (1933); Scott v. Scott, 110 Pa. 387, 2 A. 531 (1885). Consequently, since jurors number eight and nine disagreed with the verdict as stated before it was recorded, there was no verdict. Barefoot, supra.

Moreover, the trial court properly refused to consider the affidavits of jurors number eight and nine obtained ex parte three weeks after the jury had been discharged. It is well settled that unless there is evidence which would indicate the existence of extraneous influences which may have affected the jury's deliberations, affidavits of jurors, if introduced to impeach a jury verdict, may not be considered by a court in deciding a motion for a new trial. Pittsburgh National Bank v. Mutual Life Ins. Co. of New York, 493 Pa. 96, 425 A.2d 383 (1981); Fink v. Commonwealth, 85 Pa.Commw. 290, 482 A.2d 281 (1984). The rationale underlying the above rule is as follows:

The only act performed by the jury to which any legal significance is attached is the rendering of the verdict. "[T]he verdict as uttered is the sole embodiment of the jury's act ... The policy which requires this is the same which forbids a consideration of the negotiations of parties to a contract leading up to the final terms ..., namely, the loss of all certainty in the verdict, the impracticability of seeking for definitiveness in the preliminary views, the risk of misrepresentation after disclosure of the verdict, and the impossibility of expecting any end to trials...."

Commonwealth v. Zlatovich, 440 Pa. 388, 396-397, 269 A.2d 469, 473 (1970) (emphasis original, citations omitted). Oblon cites a number of cases from other jurisdictions which allowed juror affidavits to explain a jury verdict. Here, however, no verdict was reached. Indeed, to manufacture a jury verdict, the trial court would have had to consider the jurors' affidavits, a request which it properly denied. Our supreme court in Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960), cogently stated:

The practice of interviewing jurors after a verdict and obtaining from them ex parte, unsworn statements in answer to undisclosed questions and representations by the interviewers is highly unethical and improper and was long ago condemned by this court in Cluggage's Lessee v. Swan, 1811, 4 bin. 150, 158, reiterated and reaffirmed in Friedman v. Ralph Bros., Inc., 314 Pa. 247, 249, 171 A. 900, 901 [ (1934) ], and again quoted from at length in Redmond v. Pittsburgh Railways Co., 329 Pa. 302, 303-304, 198 A. 71, 72 [ (1938) ]. It is forbidden by public policy: Commonwealth v. Greevy, 271 Pa. 95, 99, 114 A. 511, 512 [ (1921) ]. Certainly such post-trial statements by jurors are not to be given weight on even an application for a new trial, much less a petition for a writ of habeas corpus.

Id. at 223, 161 A.2d at 873 (quoting Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 133-134, 79 A.2d 785, 786 (1951)) (emphasis original). Here, although the statements given by jurors eight and nine were in the form of a sworn affidavit, we do not feel that this, without more, requires the trial court to give any consideration to the statements. Indeed, Kravitz plainly states that obtaining statements from jurors ex parte is "highly unethical and improper." Id. (quoting Claudy, 367 Pa. at 133, 79 A.2d at 785 (emphasis original)). Simply because the instant statements were submitted in the form of a sworn affidavit does not convert otherwise improper behavior into clever post-trial stewardship.

As stated earlier "the verdict, as uttered, is the sole embodiment of the jury's act." Zlatovich, 440 Pa. at 396, 269 A.2d at 473. Likewise, where the jury does not reach a verdict, that is also the sole embodiment of their act. It is the process which resulted in their failure to agree, or in their agreement, that is inviolable and must be protected. In the absence of extraneous influences, the jury's verdict, or their failure to reach one, cannot, and...