Bednar v. Dana Corp.

962 A.2d 1232, 2008 Pa. Super. 283, 2008 Pa. Super. LEXIS 4372
CourtSuperior Court of Pennsylvania
DecidedDecember 16, 2008
StatusPublished
Cited by5 cases

This text of 962 A.2d 1232 (Bednar v. Dana Corp.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bednar v. Dana Corp., 962 A.2d 1232, 2008 Pa. Super. 283, 2008 Pa. Super. LEXIS 4372 (Pa. Ct. App. 2008).

Opinion

OPINION BY

FREEDBERG, J.:

¶ 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. Plaintiffs 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 [1235]*1235challenged 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 demonstrate to the trial court that he or she has suffered prejudice from the mistake.” Id. at 467, 756 A.2d at 1122 (citations omitted).
Under Harman, we must first determine whether we agree with the trial court that a factual, legal or discretionary mistake was, or was not, made. Id. If we agree with the trial court’s determination that there were no prejudicial mistakes at trial, then the decision to deny a new trial must stand. If we discern that a mistake was made at trial, however, we must then determine whether the trial court abused its discretion in ruling on the motion for a new trial. Id. at 468, 756 A.2d at 1123. A trial court abuses its discretion by rendering a judgment that is manifestly unreasonable, arbitrary or capricious, or has failed to apply the law, or was motivated by partiality, prejudice, bias or ill will. Id. at 469, 756 A.2d at 1123 (citations omitted).

Boucher v. Pennsylvania Hospital, 831 A.2d 623, 627 (Pa.Super.2003) quoting Harman v. Borah, 562 Pa. 455, 756 A.2d 1116, 1121-1123 (2000).

¶ 8 Appellant raises a single issue on appeal, ie., whether the trial court committed reversible error in affording only three peremptory challenges. Rule 221 of the Pennsylvania Rules of Civil Procedure provides as follows:

Rule 221. Peremptory Challenges
Each party shall be entitled to four peremptory challenges, which shall be exercised in turn beginning with the plaintiff and following in the order in which the party was named or became a party to the action. In order to achieve a fair distribution of challenges, the court in any case may
(a) allow additional peremptory challenges and allocate them among the parties;
(b) where there is more than one plaintiff or more than one defendant or more than one additional defendant, consider [1236]*1236any one or more of such groups as a single party.

Pa.R.C.P. 221.

¶ 9 Rule 221 was last amended in 1976. The comment to Rule 221, primarily explaining the amendment but also delineating proper application of the Rule, provides, in pertinent part, as follows:

The amendment provides a general rule that each party shall be entitled to four peremptory challenges, but gives the Court two alternatives to achieve “a fair distribution of challenges”.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Midwest Financial Acceptance Corp. v. Lopez
78 A.3d 614 (Superior Court of Pennsylvania, 2013)
Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity
32 A.3d 800 (Superior Court of Pennsylvania, 2011)
Moore v. Ericsson, Inc.
7 A.3d 820 (Superior Court of Pennsylvania, 2010)
Callahan v. National Railroad Passenger Corp.
979 A.2d 866 (Superior Court of Pennsylvania, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
962 A.2d 1232, 2008 Pa. Super. 283, 2008 Pa. Super. LEXIS 4372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bednar-v-dana-corp-pasuperct-2008.