Easter v. Hancock , 237 Pa. Super. 31 ( 1975 )

Concurring and Dissenting Opinion by

Spaeth, J.:

I agree with Judge Jacobs’s opinion so far as it rejects the argument by appellants Finkler and Hodgins, that as mere assistants they could not be held liable, and the argument by appellant Finkler, that he was not properly served; I cannot agree, however, that the jury was not distracted by the issue of punitive damages.

Judge Van der Voort in his dissenting opinion has quoted the colloquy between the trial judge and the jury regarding the first set of verdicts. To me, the colloquy shows that despite the judge’s best efforts, the jury did intend to punish appellants and not simply to award compensation. At the beginning of the colloquy, the fore-lady said, “We felt that the damages didn’t warrant a high monetary settlement.” That this was the case was precisely appellants’ contention. However, when the judge then pressed her as to why the jury had nevertheless awarded a high settlement, she replied: “We thought the case as far as the doctors being negligent and irresponsible, I will use the word was greater than what Mr. Easter had suffered. That is why we did it.” I cannot read this as meaning anything except that the jury had awarded punitive damages, despite the judge’s instruction not to. Furthermore, it is apparent that the judge understood the reply in the same way, for upon hearing it, he asked, “Do you mean that you were putting it in the sense of punitive damages, that you feel they should be punished?” Unfortunately, he did not get an answer to his question.

In ruling on the post-trial motions, the court below recognized the significance of this conversation between the trial judge and the forelady: “But in the present case we have an abortive verdict slip and the collogue [sic] . . . from which it can be reasonably argued that the final verdict was only slightly for proper legal compensation and overwhelmingly on account of the extraordinary nature of the tort.” The court below felt nonetheless, that the confusion of the jury was remedied by the trial judge’s reinstruction of the jury that punitive damages could not be awarded. (R. 769a.) Since, however, it can be “reasonably argued” that the jury was confused, as the court below recognizes, it would be the better course of action, in my judgment, to award a new trial.

It is true that the jury “corrected” its verdicts, and Judge Jacobs may be right that from this “[i]t would seem more likely that the jury was attempting [to obey the judge’s instructions].” However, I am uneasy with such a more likely than not test. Given all the circumstances, I remain fearful that the jury was not fair, or at least, remained confused.

I would award a new trial.