Kersey Manufacturing Co. v. Rozic

222 A.2d 713, 422 Pa. 564, 1966 Pa. LEXIS 590

• Court: Supreme Court of Pennsylvania
• Decided: September 27, 1966
• Docket: Appeal, 155
• Status: Published

Opinions

Opinion by

Mr. Justice Jones,

The sole question raised on this appeal¹ is whether the action of a trial judge in communicating with a jury, through a court crier and in the absence of unnotified counsel, requires the grant of a new trial?

On April 10, 1959, Kersey Manufacturing Co. (Kersey) instituted an assumpsit action in the Court of Common Pleas of Butler County against August Rozic (Rozic). Suit was based upon a written conditional sales contract involving certain heavy machinery. After a jury trial, the jury returned a verdict against Kersey and in favor of Rozic. Motion for a new trial was refused, a judgment on the verdict entered and an appeal taken to the Superior Court.² The Superior Court affirmed the judgment³ (207 Pa. Superior Ct. 182, 215 A. 2d 323) and we granted an allocatur.

The factual background essential to a determination of the question raised on this appeal is as follows: after the jury had deliberated for approximately two hours, the trial judge left the court house and went out for dinner and, while at dinner, received a telephone call from the court crier who advised the trial judge that the jury had sent a note to the judge which read as follows: “We have taken quite a few ballots & just cannot agree. We all feel that both parties are at fault and each should share the loss. If you have any suggestions, please advise. [Signed by the foreman].”: the trial judge, by telephone, instructed the court crier to write on the bottom of the note and return to the jury the following instruction: “Continue your deliberations. Review the evidence and come to a decision to the Best of your Judgment.” When this instruction was given, neither attorney had been notified of the jury’s request nor was either counsel present when the instruction was given. Shortly after the instruction was given the jury returned its verdict. The next day Kersey’s counsel learned of the incident.

When the trial judge was approached about the incident, the note — which had not been made a part of the record — was produced from the judge’s desk⁴ and it was the trial judge’s recollection that the instruction placed on the note was “substantially” as given by him.

Over eighty years ago, this Court in Ear on v. Maolcey, 106 Pa. 452 (1884) stated: “It does appear, however, in a note, appended by the learned Judge to his charge, that after being out all night the jury in a paper signed by their foreman asked a question, which was answered by the court in the affirmative, but [the judge] does not say the answer was conveyed by a tipstave. If it was so communicated to the jury, not then in the presence of the court, the proceeding was irregular and erroneous; . . .” (at pp. 457, 458).⁵

In Hunsiolcer v. Waidelich, 302 Pa. 224, 232, 153 A. 335, we stated: “Instructions to the jury must be given in open court in the presence of the parties or their counsel. There may be no private communication of any kind or character between the judge and the jury, and if additional instructions are needed they must be given in open court.”

In Q-lendenning v. Sprowls, 405 Pa. 222, 174 A. 2d 865, Chief Justice Bell emphatically stated: “We cannot safely leave a Judge’s intrusion into a jury room to a consideration of his motives, or the language of a Judge’s private communication to the memory or to the subsequent recollection or interpretation of the trial Judge and a possibly different recollection or interpretation thereof by jurors. We strongly condemn any intrusion by a Judge into the jury room during the jury’s deliberations, or any communication by a Judge with the jury without prior notice to counsel, and such practice must be immediately stopped!” (at p. 226).

More recently, this Court in Gould v. Argiro, 422 Pa. 433, 434, 220 A. 2d 654 said: “The lower court’s opinion further discloses that at the time the questions were posed and answered neither counsel was present. Apparently, the trial judge made no effort to contact counsel before responding to the jury’s interrogatories. Although the responses were in writing, they were transmitted through a tipstaff and were not preserved. Neither the questions nor the answers appear in the official record. The questions and replies, therefore, were recorded only in the trial judge’s recollection.

“The potential impediments to a fair proceeding inherent in these practices necessitates the grant of a new trial.

“While the jury is deliberating, counsel must hold himself available to the court. Corresponding to the duty of counsel is that of the trial judge to have no intercourse with the jury in the absence of counsel. Thus, the court may have the suggestions of both counsel in preparing its additional charge, and prompt objection to the charge as given may be made. We have said this many times: Glendenning v. Sprowls, 405 Pa. 222, 174 A. 2d 865 (1961); Hunsicker v. Waidelich, 302 Pa. 224, 153 Atl. 335 (1931); Sommer v. Huber, 183 Pa. 162, 38 Atl. 595 (1897).

“Although we have in the past held that to warrant a new trial prejudice must arise from the trial court’s instruction in the absence of counsel, Sebastianelli v. Prudential Insurance Company of America, 337 Pa. , 12 A. 2d 113 (1940), we have more recently said: ‘In many cases no one can say with certainty that a litigant’s case has or has not been adversely affected by an intrusion of a Judge into the secrecy of the Jury room, even though the intrusion was worthily motivated. This Court has, on prior occasions, warned trial Judges that they are not to enter the jury room or privately communicate with the jury under any circumstances . . . .’ (Emphasis supplied). Glendenning v. Sprowls, supra, at 224. The error here committed, therefore, requires a new trial regardless of prejudice.

“There is another reason why this case must be remanded for a new trial. The additional instructions must be made a part of the record. That was not properly done here. The facts disclose that the written response of the trial judge was not preserved. Neither were the questions and responses immediately made a part of the record. As was also said in Glendenning v. Sprowls, supra, at 226, ‘We cannot safely leave . . . the language of a Judge’s private communication to the memory or to the subsequent recollection or interpretation of the trial Judge and a possibly different recollection or interpretation thereof by jurors.’ ”

In the case at bar, the trial judge — a jurist of great integrity — innocently and inadvertently, through the court crier, did communicate with the jury and no doubt the nature of that which was communicated was innocuous. However, the practice of trial judges in communicating with the jury or instructing the jury in any manner whatsoever, other than in open court and in the presence of counsel for all parties, must be terminated. The difficulty inherent in the rule enunciated in Sehastianelli v. Prudential Insurance Company of America, 337 Pa. 466, 12 A. 2d 113 — that in order to justify a new trial where communication between a trial judge and a jury has taken place, other than in open court and counsel’s presence, prejudice must be shown to have arisen from the trial court’s communication — was well expressed in Hunsicker, supra: “There is no way of determining the influence which such act might have on the minds of the jury, and the only safe course is to avoid all questions by strictly adhering to the long established practice which requires all deliberations by the jury to be conducted in the utmost privacy.” (at p. 232). It is the possibility, rather than the actual fact, of prejudice which leads us to condemn communication vis-a-vis the trial judge and the jury made other than in open court and counsels’ presence. The fact such communication, however innocent, took place in the case at bar requires a new trial.

Judgment reversed and a new trial granted.⁶

1 In the Superior Court an additional question — involving the parol evidence rule — was argued. That question is not before this Court.

2 One appeal, taken before tbe entry of judgment, was quashed (205 Pa. Superior Ot. 551). The second appeal was taken subsequent to the entry of judgment.

3 Judge Hoffman filed a concurring and dissenting opinion, in which Judge Jacobs joined.

4 Upon motion of Kersey’s counsel, the note was incorporated into the record approximately five months subsequent to the verdict.

5 This matter, however, was not properVy brought to the attention of this Court in Earon, hence, not decisive.

6 Tile distinction drawn in the court below between “additional instructions” and other communications and its conclusion that in the case at bar the jury was not requesting “additional instructions” is of no moment. The vice lies in my form of communication between court and jury other than in open court and counsels’ presence.