Opinion by
Mr. Justice Benjamin B. Jones,
Did the court below abuse its discretion in granting a new trial?
On March 22, 1957, in the Court of Common Pleas of Washington County, Mary E. Wolfe instituted a malpractice action against Dr. Paul P. Biggie.1 The matter was tried before Judge D. H. Weiner and a jury and, after a trial lasting well over a week, the jury returned a verdict in favor of Dr. Biggie and against Miss Wolfe.
Within less than twenty-four hours2 after the verdict, Judge Weiner made an order granting a new trial [174]*174and assigning his reasons therefor.3 This order was entered ex parte: no notice whatsoever was given either to the parties or their counsel and no motion for a new trial had been made on behalf of Miss Wolfe.
In Judge Weiner’s order he specifically set forth why he granted a new trial: (1) after rendition of the verdict four jurors told the court the verdict did not represent their true convictions, that they were led to believe they could not return a “compromise verdict” and wanted the court to call the jury back to reconsider the verdict; (2) W. C. Engle, a juror, failed to reveal to the court that, in a lawsuit pending on the same trial list, he was represented by Mr. Patrono, one of Miss Wolfe’s counsel and the failure of both the juror and the attorney to reveal such fact to the court was improper and a breach of their duties to the court. At that time no other reason was assigned.
The first reason upon which the court relied is without merit. In Friedman v. Ralph Brothers, Inc., 314 Pa. 247, 249, 171 A. 900, we said: “. . . we cannot accept the statement of jurors as to what transpired in the jury room as to the propriety or impropriety of a juror’s conduct ... To do so, would destroy the security of all verdicts and go far toward weakening the efficacy of trial by jury . . . Jurors cannot impeach their own verdict.” (Emphasis supplied). See also: Commonwealth v. Johnson, 359 Pa. 287, 59 A. 2d 128; Commonwealth v. Newcomer, 183 Pa. Superior Ct. 432, 132 A. 2d 731.
In Havranek v. Pittsburgh, 344 Pa. 375, 25 A. 2d 703, where four jurors, after rendition of a verdict, expressed their dissatisfaction therewith, this court did not sanction the award of a new trial on that ground. Jurors must not be permitted to impeach their own [175]*175verdict. In this connection it may be noted that the better practice would have been for the trial court to have talked with the jurors only in the presence of counsel.
The second reason assigned for the award of the new trial was the failure of the juror Engle to reveal to the court — not to opposing counsel — Ms representation by Dr. Biggie’s counsel in another lawsuit. Wherein failure to reveal this fact to the court constitutes improper conduct is not clear: concealment of such fact from opposing counsel, of course, would be improper. In evaluating this reason, certain factual background must be considered. On the trial at the same term of court there was listed a trespass action of one Emil Sposato v. W. C. Engle (the juror) et al. In that action both Mr. Porter and Mr. Patrono represented Engle:4 thus, when Engle was selected, each counsel had full knowledge of the dual representation of Engle. Moreover, after the completion of the voir dire of the jurors5 and prior to the exercise of any peremptory challenges, Mr. Porter and Mr. Patrono conferred and agreed that, perhaps, it would be better if Engle did not serve as a juror and asked the court, through a message to the court crier, to have Engle excused as a possible juror: word was relayed to counsel, through the court crier, that, if either counsel desired, a peremptory challenge could be exercised and that the court did not deem it advisable to excuse Engle for cause.
[176]*176About a week after the trial had commenced and three days before rendition of the jury verdict, at a conference of counsel and the trial judge, the latter was directly informed that both Mr. Porter and Mr. Patrono represented Engle in the lawsuit pending on the current trial list. On being so informed, the court then stated that, had he known that fact, he would have excused Engle for cause, but that he “knows Mr. Engle and knows he would follow the instructions of the Court. . .”. A suggestion then made that Engle be excused and the trial proceed with eleven jurors was rejected by Dr. Biggie’s counsel.
The record clearly shows knowledge of Mr. Patrono’s representation of Engle by Mr. Porter, and vice versa: that, during the trial, the court was directly informed of the fact and did nothing about it: that there is not a scintilla of evidence that such fact had anything to do with the verdict rendered. This reason assigned by the court in its award of a new trial is completely without merit.
Not only was the award of a new trial for the assigned two reasons capricious and arbitrary but the manner in which the new trial was granted was highly improper. A court may, sua sponte, award a new trial: Stephenson v. Service Supply Corp., 164 Pa. Superior Ct. 31, 63 A. 2d 438; Jedwabny v. Philadelphia Trans. Co., 390 Pa. 231, 135 A. 2d 252; Fisher v. Dye, 386 Pa. 141, 125 A. 2d 472; Commonwealth v. Fox, 181 Pa. Superior Ct. 292, 124 A. 2d 628. Such a rule, however, does not sanction the award of a new trial in the manner in which the court below acted in the case at bar.
Within hours of the rendition of the verdict, the court interrogated four jurors without notice to counsel: the court then interrogated the juror Engle, with a stenographer present but again without notice to counsel: then, without any knowledge on counsels’ part [177]*177and without any motion for a new trial, the court granted a new trial solely on the conduct of the jurors. Such practice cannot be countenanced: it constitutes a basic misconception of the role a judge occupies in our judicial system. The language in Albert J. Hoppe, Inc. v. St. Louis Public Service Co., 361 Mo. 402, 406, 235 S.W. 2d 347, is appropriate: “The question instantly before us goes deeply into the underlying principles of due process. In our system of jurisprudence reasonable notice to a litigant (when there exists even the possibility of action adverse to his interests) is deemed to be of the essence of fairness and justice. Reasonable notice to parties whose interests are at stake in a contemplated order is a prerequisite to the lawful exercise of the court's power. Opportunity for a litigant to present his views as to the matters instantly before the court which may affect his rights is the very foundation stone of our procedure. The requirement of notice can result in no hardship. Nor is it restrictive of the trial court’s freedom of action in the exercise of its judicial discretion.”
After the award of the new trial (December 1, 1961), an appeal was taken to this Court (December 5,1961). Counsel for Dr. Riggle filed and served (December 16, 1961) a statement of the question to be raised on appeal, under Rule 22 of this Court, and of the evidence he did not intend to print, under Rule 40 of this Court. The question raised was whether the court below abused its discretion in awarding a new trial “for the reasons set forth in its order of December
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Opinion by
Mr. Justice Benjamin B. Jones,
Did the court below abuse its discretion in granting a new trial?
On March 22, 1957, in the Court of Common Pleas of Washington County, Mary E. Wolfe instituted a malpractice action against Dr. Paul P. Biggie.1 The matter was tried before Judge D. H. Weiner and a jury and, after a trial lasting well over a week, the jury returned a verdict in favor of Dr. Biggie and against Miss Wolfe.
Within less than twenty-four hours2 after the verdict, Judge Weiner made an order granting a new trial [174]*174and assigning his reasons therefor.3 This order was entered ex parte: no notice whatsoever was given either to the parties or their counsel and no motion for a new trial had been made on behalf of Miss Wolfe.
In Judge Weiner’s order he specifically set forth why he granted a new trial: (1) after rendition of the verdict four jurors told the court the verdict did not represent their true convictions, that they were led to believe they could not return a “compromise verdict” and wanted the court to call the jury back to reconsider the verdict; (2) W. C. Engle, a juror, failed to reveal to the court that, in a lawsuit pending on the same trial list, he was represented by Mr. Patrono, one of Miss Wolfe’s counsel and the failure of both the juror and the attorney to reveal such fact to the court was improper and a breach of their duties to the court. At that time no other reason was assigned.
The first reason upon which the court relied is without merit. In Friedman v. Ralph Brothers, Inc., 314 Pa. 247, 249, 171 A. 900, we said: “. . . we cannot accept the statement of jurors as to what transpired in the jury room as to the propriety or impropriety of a juror’s conduct ... To do so, would destroy the security of all verdicts and go far toward weakening the efficacy of trial by jury . . . Jurors cannot impeach their own verdict.” (Emphasis supplied). See also: Commonwealth v. Johnson, 359 Pa. 287, 59 A. 2d 128; Commonwealth v. Newcomer, 183 Pa. Superior Ct. 432, 132 A. 2d 731.
In Havranek v. Pittsburgh, 344 Pa. 375, 25 A. 2d 703, where four jurors, after rendition of a verdict, expressed their dissatisfaction therewith, this court did not sanction the award of a new trial on that ground. Jurors must not be permitted to impeach their own [175]*175verdict. In this connection it may be noted that the better practice would have been for the trial court to have talked with the jurors only in the presence of counsel.
The second reason assigned for the award of the new trial was the failure of the juror Engle to reveal to the court — not to opposing counsel — Ms representation by Dr. Biggie’s counsel in another lawsuit. Wherein failure to reveal this fact to the court constitutes improper conduct is not clear: concealment of such fact from opposing counsel, of course, would be improper. In evaluating this reason, certain factual background must be considered. On the trial at the same term of court there was listed a trespass action of one Emil Sposato v. W. C. Engle (the juror) et al. In that action both Mr. Porter and Mr. Patrono represented Engle:4 thus, when Engle was selected, each counsel had full knowledge of the dual representation of Engle. Moreover, after the completion of the voir dire of the jurors5 and prior to the exercise of any peremptory challenges, Mr. Porter and Mr. Patrono conferred and agreed that, perhaps, it would be better if Engle did not serve as a juror and asked the court, through a message to the court crier, to have Engle excused as a possible juror: word was relayed to counsel, through the court crier, that, if either counsel desired, a peremptory challenge could be exercised and that the court did not deem it advisable to excuse Engle for cause.
[176]*176About a week after the trial had commenced and three days before rendition of the jury verdict, at a conference of counsel and the trial judge, the latter was directly informed that both Mr. Porter and Mr. Patrono represented Engle in the lawsuit pending on the current trial list. On being so informed, the court then stated that, had he known that fact, he would have excused Engle for cause, but that he “knows Mr. Engle and knows he would follow the instructions of the Court. . .”. A suggestion then made that Engle be excused and the trial proceed with eleven jurors was rejected by Dr. Biggie’s counsel.
The record clearly shows knowledge of Mr. Patrono’s representation of Engle by Mr. Porter, and vice versa: that, during the trial, the court was directly informed of the fact and did nothing about it: that there is not a scintilla of evidence that such fact had anything to do with the verdict rendered. This reason assigned by the court in its award of a new trial is completely without merit.
Not only was the award of a new trial for the assigned two reasons capricious and arbitrary but the manner in which the new trial was granted was highly improper. A court may, sua sponte, award a new trial: Stephenson v. Service Supply Corp., 164 Pa. Superior Ct. 31, 63 A. 2d 438; Jedwabny v. Philadelphia Trans. Co., 390 Pa. 231, 135 A. 2d 252; Fisher v. Dye, 386 Pa. 141, 125 A. 2d 472; Commonwealth v. Fox, 181 Pa. Superior Ct. 292, 124 A. 2d 628. Such a rule, however, does not sanction the award of a new trial in the manner in which the court below acted in the case at bar.
Within hours of the rendition of the verdict, the court interrogated four jurors without notice to counsel: the court then interrogated the juror Engle, with a stenographer present but again without notice to counsel: then, without any knowledge on counsels’ part [177]*177and without any motion for a new trial, the court granted a new trial solely on the conduct of the jurors. Such practice cannot be countenanced: it constitutes a basic misconception of the role a judge occupies in our judicial system. The language in Albert J. Hoppe, Inc. v. St. Louis Public Service Co., 361 Mo. 402, 406, 235 S.W. 2d 347, is appropriate: “The question instantly before us goes deeply into the underlying principles of due process. In our system of jurisprudence reasonable notice to a litigant (when there exists even the possibility of action adverse to his interests) is deemed to be of the essence of fairness and justice. Reasonable notice to parties whose interests are at stake in a contemplated order is a prerequisite to the lawful exercise of the court's power. Opportunity for a litigant to present his views as to the matters instantly before the court which may affect his rights is the very foundation stone of our procedure. The requirement of notice can result in no hardship. Nor is it restrictive of the trial court’s freedom of action in the exercise of its judicial discretion.”
After the award of the new trial (December 1, 1961), an appeal was taken to this Court (December 5,1961). Counsel for Dr. Riggle filed and served (December 16, 1961) a statement of the question to be raised on appeal, under Rule 22 of this Court, and of the evidence he did not intend to print, under Rule 40 of this Court. The question raised was whether the court below abused its discretion in awarding a new trial “for the reasons set forth in its order of December 1,1961."
Six weeks after the award of a new trial, the trial judge filed an opinion entitled “Opinion of Trial Judge in Support of Order Granting a New Trial”.7 In that opinion the trial judge states that he “had already been of the opinion that the verdict returned in favor of [Dr. Biggie] was so contrary to the evidence as to shock his sense of justice”. The trial judge then proceeded to assign this as an additional reason to bolster the award of a new trial, even though no opportunity was afforded to Dr. Biggie’s counsel to be heard in the matter and even though the award of a new trial was specifically based on the jurors’ conduct.
In Clewell v. Plummer, 388 Pa. 592, 598, this Court, speaking through Justice (now Chief Justice) Bell, quoted with approval from Coward v. Ruckert, 381 Pa. 388, 393, 113 A. 2d 287: “ ‘One of the least assailable grounds for the exercise of such power [to grant a new trial] is the trial court’s conclusion that the verdict was against the weight of the evidence and that the interests of justice therefore require that a new trial be awarded; especially in such a case is an appellate court reluctant to interfere’ ”. The essential soundness of that rule is beyond question. However, the posture of the instant record completely relieves us of any reluctance to interfere in the case at bar.
[179]*179On the present record there is nothing before us upon which we can determine whether the court below abused its discretion in deciding the verdict was against the weight of the evidence. There is nothing on this record concerning the negligence or lack of negligence and the fault for the absence of such evidence lies not with counsel for either party.
This appeal was taken from an order based on two, and only two, grounds. It was the grant of a new trial on those grounds which was challenged and the only evidence necessary to be printed was such as bore a relationship to those grounds. The court below, as well as counsel, was aware of that.
The opinion of January 17, 1962, is obviously a belated attempt to justify an award of a new trial untenable both in law and in the manner in which it was made. The case at bar does not present a situation portunity to be heard, belatedly assigns a new and ad-where the award of a new trial was based on a wrong ground whereas a proper ground existed. On the contrary, this is a situation where the reasons assigned for the award of a new trial are entirely without merit and the court below, without giving the parties an opditional reason the propriety of which cannot be determined on this diminuted record.
The grant ex parte of a new trial and the belated attempt to support such grant by a new and additional reason, after the grant of the new trial and the appeal therefrom, have deprived Dr. Biggie of the due process to which he is clearly entitled.
In reversing the order granting a new trial, we must do so in such manner as to preserve Miss Wolfe’s rights. Were we to enter judgment on this verdict Miss Wolfe would be deprived of her right to file a motion for a new trial because the verdict was against the weight of the evidence or for some other valid reason. To Miss Wolfe must be given the right to file a motion for [180]*180a new trial,8 and, if such motion be filed, both parties must be given an opportunity to a fair and impartial hearing on such motion. To that end, upon the return of the record to the court below, the right should be granted nunc pro tunc to Miss Wolfe to file a motion for a new trial within four days of the receipt of the record in the court below.
Order reversed. The record is remanded to the court below and the court below directed to proceed in a manner consistent with this opinion.
Emphasis supplied.