Kersey Manufacturing Co. v. Rozic

Concurring and Dissenting Opinion by

Hoffman, J.:

I agree with the majority that the lower court did not err in permitting the introduction of letters and other evidence in connection with this case.

In my opinion, however, there is reason to believe that prejudice to appellant may very well have occurred, and that a new trial should be ordered.

First, it should be noted that Glendenning v. Sprowls, 405 Pa. 222, 226, 174 A. 2d 865, 867 (1961), did not simply warn trial judges about instructions with respect to law or facts. The court stated, rather, that, “We strongly condemn . . . any communication by a judge with the jury without prior notice to counsel and such practice must immediately be stopped!” (emphasis added).

Second, we are uncertain as to the exact nature of the communication with the jury, since the judge made no effort to insure that his message would be transmitted correctly and accurately. He dictated his message to the crier by phone, but never read the actual instructions before they were taken to the jury. In fact, when later asked to verify the contents of the message, he could only assert that he “. . . instructed [the crier] to convey to [the foreman] substantially the message that was written” (emphasis added). Wlien the lines of communication between judge and jury are established in such a haphazard fashion, the potential for misunderstanding, misapprehension and mistake is very great.

Third, the trial judge never informed counsel of the written request and instructions, nor did he originally make them a part of the record in this case. Only after a verdict had been rendered by the jury did appellant’s counsel become aware of this exchange of messages.

. Finally, the written request submitted by the jury clearly indicated that additional competent instruction was needed.' The request stated the jury’s belief that “. . . both parties are at fault and each should share the loss.” Yet, “fault” was never an issue in this case, nor was it ever raised in the court’s charge. As the majority recognizes, “Whether its lexical or legal meaning be consulted, ‘fault’ always connotes an act to which blame, censure, impropriety, shortcoming or culpability attaches.” Mills Unemployment Compensation Case, 164 Pa. Superior Ct. 421, 426-427, 65 A. 2d 436, 439 (1949). The jury was not required to find which of the parties was to blame or which had acted in a culpable manner. The task of the jury was simply to determine the intent of the parties to a contract.

The jury had been deliberating for at least two hours when their note was first communicated to the judge. Their message demonstrated that they were confused and required additional competent instruction. Yet these added instructions, of which they were in obvious need, were withheld from them. By ignoring the long-established principle that counsel be informed of all communications between judge and jury, both parties were denied the right to request that such additional competent instruction be given. Moreover, the court, in its added instructions did not indicate to the jury, in any way, that they were employing incorrect criteria in this case. Indeed, by simply telling them that they should continue their deliberations, he may have suggested that they were considering the evidence in a proper fashion. In this regard, it is perhaps significant that shortly after the jury received this message, they returned their verdict.

Whether prejudice is created in the minds of jurors is always in the realm of speculation. This question can rarely, if ever, be resolved by us with certainty. However, when a judge improperly communicates with the jury and, at the same time, ignores that jury’s obvious confusion, there is very strong reason for finding such prejudice. Communications between judge and jury without notice to counsel have been specifically condemned because of the great danger of prejudice. When, as here, the possibility of prejudice is so readily apparent, we should not hesitate to order a new trial.

I would reverse and grant a new trial.

Jacobs, J., joins in this opinion.