Piole, J. v. Pupich, C.

J-A05025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH A. PIOLE, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES J. PUPICH,
Appellant No. 1002 WDA 2016
Appeal from the Order Entered June 29, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): G.D. 06-23189
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 27, 2017
Appellant, Charles J. Pupich, appeals from the trial court’s June 29,
2016 order granting Appellee’s, Joseph A. Piole, motion for post-trial relief
and awarding a new trial. For the reasons stated herein, we affirm.
The trial court summarized the factual background and procedural
history of this case as follows:
Shortly after the jury in this civil trial rendered its verdict in
favor of Mr. Pupich, I received evidence that jurors improperly
searched the internet and found criminal charges of income tax
evasion against Mr. Piole. I held two hearings on this topic, from
which I determined that the jury had been prejudiced by this. I
therefore granted Mr. Piole’s request for a new trial. Mr. Pupich
has appealed my decision to the Superior Court of Pennsylvania,
and this Opinion explains why I ordered a new trial. See
Pennsylvania Rule of Appellate Procedure No. 1925(a).
Mr. Piole bought a building located at 1939 Babcock Boulevard in
1987, but in 1994 “lost the building” due to a debt owed [to] the
Internal Revenue Service. Jury Trial December 1-3, 2015
transcript (“T.” hereafter), p. 181. Mr. Pupich bought the
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building in 2000 and began leasing it to Mr. Piole in June of
2001. Early in the morning on September 29, 2004[,] much of
the building and its contents were damaged by a fire. Neither
Mr. Piole[,] nor Mr. Pupich[,] was determined to be at fault for
causing the fire.
If Mr. Pupich wanted to terminate the lease with Mr. Piole due to
the fire, the lease gave him the option to notify Mr. Piole of
termination of the lease within 45 days after the fire. This notice
was therefore required to be given by November 13, 2004, but
Mr. Pupich did not send it until December 23, 2004. In 2006[,]
Mr. Piole initiated this proceeding by suing Mr. Pupich for breach
of contract for not notifying him of the termination of the lease
within 45 days of the fire. Mr. Piole’s lawsuit also alleged that
Mr. Pupich breached an oral agreement to use insurance
proceeds to pay Mr. Piole for Mr. Piole’s furniture, equipment and
other personalty destroyed by the fire.
After the parties selected the jury, but before the trial began,
there was an on-the-record discussion of Mr. Piole’s motion in
limine to exclude all testimony and evidence regarding Mr.
Piole’s criminal record. With Mr. Piole’s convictions being more
than 20 years old, Mr. Pupich’s counsel agreed the criminal
proceedings were not relevant. See T., pp. 5-6. I, therefore,
ordered the exclusion of all evidence and testimony concerning
Mr. Piole’s criminal record.
There were no witnesses to the alleged oral agreement to pay
for Mr. Piole’s personalty, and Mr. Pupich denied ever having
made such an agreement. With Mr. Piole insisting Mr. Pupuch
told him that insurance proceeds would be used to pay for his
personalty that was destroyed by the fire, the jury had to
determine who was telling the truth. The jury’s written verdict
was that Mr. Pupich did not enter into such an oral agreement1.
[sic] Less than a week later, Mr. Piole filed a motion for post-
trial relief which alleged that jurors used a cell phone to search
the internet and find Mr. Piole was arrested for income tax
evasion. I presided over two evidentiary hearings concerning
this motion for post-trial relief. The witnesses at the hearings
were the jury’s foreman [Juror 5], two other jurors [Jurors 7 and
9] who allegedly found Mr. Piole’s tax evasion arrest on a cell
phone, a non-juror[, named Lori Sarver,] who allegedly
witnessed the two jurors searching the internet for Mr. Piole[,]
and a forensic computer and mobile device analyst hired as an
expert witness by Mr. Pupich. I gave considerable thought to
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the testimony from the five witnesses before reaching my
decision, which was to grant Mr. Piole a new trial.
1
The written verdict also contained the jury’s
determination that Mr. Pupich did not breach the written
lease.
Trial Court Opinion (TCO), 9/12/2016, at 1-3 (headings omitted).
On July 12, 2016, Mr. Pupich filed a timely notice of appeal from the
trial court’s order granting a new trial. Thereafter, he filed a timely concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b). On appeal, Mr. Pupich raises the following issues for our review:
A. Whether the trial court committed reversible error and
abused its discretion when it granted [Mr.] Piole’s request
for a new trial on the basis that juror’s [sic] allegedly
received extraneous information related to a tax evasion
arrest, when there was extensive trial testimony presented
by [Mr.] Piole that he owed the federal government in
excess of $750,000.00 in back taxes and lost the original
property due to failure to pay taxes.
B. Whether the trial court committed reversible error and
abused its discretion when it granted [Mr.] Piole’s request
for a new trial, when the alleged extraneous information of
an arrest for tax evasion did not relate to the central issue
of this case which was whether [Mr.] Pupich breached an
alleged oral contract to use his insurance money to pay for
a fire, after [Mr.] Piole allowed his insurance with a
subtenant to lapse.
C. Whether the trial court committed reversible error and
abused its discretion when it granted [Mr.] Piole’s request
for a new trial when the alleged extraneous information of
an arrest for tax evasion was not emotional, inflammatory
nor prejudicial in nature due to the evidence that [Mr.]
Piole owed in excess of $750,000.00 in back taxes and lost
the subject property due to failure to pay taxes.
D. Whether the trial court committed reversible error and
abused its discretion when the trial court ignored an
affidavit of Juror Number 5 which failed to indicate any
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information regarding any arrest or conviction for tax
evasion[.]
E. Whether the trial court committed reversible error and
abused its discretion when the trial court totally
disregarded uncontradicted expert testimony of a forensic
expert that Juror 9’s cell phone was not searched during
the relevant timeframe of December 1 to December 3,
2015[.]
Mr. Pupich’s Brief at 5-6 (unnecessary capitalization omitted). We address
these issues out of order for ease of disposition.
We apply the following standard of review:
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, 466, 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 Hosp., 831 A.2d 623, 627 (Pa. Super. 2003).
Initially, we determine that Mr. Pupich waived his issue regarding
“[w]hether the trial court committed reversible error and abused its
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discretion when the trial court ignored an affidavit of Juror Number 5 which
failed to indicate any information regarding any arrest or conviction for tax
evasion[.]” See Mr. Pupich’s Brief at 6 (unnecessary capitalization omitted).
This issue is not preserved in Mr. Pupich’s concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement … are waived.”); see
also Trial Court Order, 7/13/2016, at 1 (“Any issue not properly included in
the Concise Statement of the Errors Complained of on Appeal … shall be
deemed waived.”). We therefore do not consider it. Moreover, even if the
issue were properly preserved in Mr. Pupich’s concise statement, he would
not convince us that the trial court erred and/or abused its discretion by
purportedly ignoring the affidavit, given Juror 5’s testimony at the
evidentiary hearing on February 19, 2016.1
____________________________________________
1
Juror 5 testified to the following:
[Mr. Piole’s attorney:] Do you remember telling in that same
conversation, telling them, “Sorry, dude, but they were just up
against you from when they heard and found out about the taxes
and not paying back the government. The facts of the case
really didn’t matter in spite of the defendant lying the entire time
on the stand. Your IRS past history and criminal convictions
blew the whole case for you.”
[Juror 5:] Yes, sir.
…
[Mr. Piole’s attorney:] Now who was the one that told you about
criminal convictions?
(Footnote Continued Next Page)
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Next, Mr. Pupich argues that “[t]he expert testimony of the forensic
examiner was uncontradicted, therefore, the … trial court abused its
discretion in disregarding this testimony.” Mr. Pupich’s Brief at 18
(emphasis and unnecessary capitalization omitted). Specifically, Mr. Pupich
asserts that “the expert found no ‘hits’ using the term Piole on the cell
[phone,]” and that “this testimony was not contradicted and [Mr.] Piole had
the similar right to have the cell phone analyzed.” Id. at 20 (citations to
record omitted). In support, Mr. Pupich cites to Murphey v. Hatala, 504
A.2d 917 (Pa. Super. 1986), for the proposition that a trial court’s disregard
for uncontradicted expert testimony is an abuse of discretion. Mr. Pupich’s
Brief at 20-21. According to the Murphey Court, “[a]n abuse of discretion is
not merely an error of judgment, but if the court's judgment is manifestly
_______________________
(Footnote Continued)
[Juror 5:] It was discussed in the deliberation room. And it was
brought up amongst the discussion. To be honest, I can’t finger
exactly who it was. The key thing I do remember was the term
of three-quarters of a million dollars of debt was discussed, and
that [Mr. Piole] was convicted on charges, that he was a
criminal.
…
[Mr. Piole’s attorney:] But you recall them talking about
convictions?
[Juror 5]: I’m going to use the word crime, criminal, not
convictions. The word criminal, not convictions. Criminal, not
convictions.
N.T. Hearing, 2/19/2016, at 25, 26, 38.
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unreasonable as shown by the evidence of record, discretion is abused.”
Murphey, 504 A.2d at 920 (citations omitted). Further, the Murphey
opinion states that “[a]n abuse of discretion is also made out where it
appears from a review of the record that there is no evidence to support the
court’s findings or that there is a capricious disbelief of evidence.” Id.
(citations, brackets, and internal quotation marks omitted). Notably, in
Murphey, we found an abuse of discretion where “the hearing judge …
ignor[ed] or disbelie[ved] uncontradicted testimony from the parties’ three
expert witnesses and [made] findings that [were] not predicated on
competent evidence in the record.” Id. (emphasis added). That is not
the case here.
In the case sub judice, the trial court explained:
Mr. Pupich contends that my decision is not correct because
“there was uncontradicted forensic expert testimony that the
juror’s cell phone was not used to look up extraneous
information.” Concise Statement, ¶ no. 1(a). This is a reference
to the testimony of forensic computer and mobile device analyst
Luis Kay, who was hired by Mr. Pupich to be an expert witness
during the second evidentiary hearing on the motion for post-
trial relief. On direct examination[,] Mr. Kay opined that Juror 9
had not searched for Mr. Piole during the days of the trial on the
cell phone provided to him. I disagree with Mr. Pupich’s
assessment of Mr. Kay’s testimony as “uncontradicted.” On
cross examination, Mr. Kay acknowledged that programs or
applications exist that permanently delete cell phone files, but he
was not familiar with them2. [sic] Juror 9 was asked about
providing her cell phone for forensic examination on February
19, 2016[,] but did not deliver it to Mr. Kay until April 13, 2016.
Thus, there was ample opportunity for deleting a search for Mr.
Piole. Making deletion of the search more likely was Mr. Kay’s
testimony that the cell phone he examined showed absolutely no
internet searches during the five day period that he examined.
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In any event, Mr. Kay made no effort to verify forensically that
the particular cell phone he evaluated was the one that Juror 9
likely was using on December 3, 2015. Having also heard the
credible testimony of Ms. Sarver that Juror 9 looked up Mr. Piole
on her cell phone, I found Mr. Kay’s opinion that Juror 9 did not
use her cell phone to look up Mr. Piole was not credible 3. [sic]
Therefore, my decision not to accept Mr. Kay’s opinion was
correct.
2
While Mr. Kay later testified during redirect examination
that he would have found evidence of the use of such a
program or application, since he previously testified he
was not familiar with them, I did not believe him.
3
My assessment that Mr. Kay was not credible also was
based on the potential for bias resulting from his employer
being paid for his testimony by Mr. Pupich and Mr. Kay’s
lack of experience.
Even if my credibility evaluation is incorrect and Juror 9 did not
look up Mr. Piole on the internet on December 3, 2015, Juror 5,
the jury foreman, testified credibly that Mr. Piole’s tax evasion
conviction and/or Mr. Piole[’s] being a criminal was discussed in
the deliberations. Consistent with my order granting the motion
in limine, there was no testimony during the trial about any
criminal proceeding involving Mr. Piole. Therefore, even if Mr.
Kay’s opinion is correct and Juror 9 did not look up Mr. Piole on
her cell phone, the jury still used some other method to
improperly obtain and consider Mr. Piole’s criminal conduct.
TCO at 5-6.
Based on the trial court’s above analysis, we disagree that it abused its
discretion by discounting the expert’s opinion, as the trial court’s findings
were reasonable and had evidentiary support in the record.
Mr. Piole’s remaining issues relate to his argument that “[a]ssuming []
arguendo that extraneous information about an arrest for tax evasion was
presented to the jury[,] it does not violate the tripartite evaluation in Carter
[by Carter] v. United States Steel Corp., 604 A.2d 1010 (Pa. 1992)
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[(plurality opinion)].” Mr. Piole’s Brief at 21 (unnecessary capitalization
omitted).2 In Carter, our Supreme Court explained that:
Once the existence of a potentially prejudicial extraneous
influence has been established by competent testimony, the trial
judge must assess the prejudicial effect of such influence.
Because a trial judge is precluded from considering evidence
concerning the subjective impact of an extraneous influence on
any juror, it has been widely recognized that the test for
determining the prejudicial effect of an extraneous influence is
an objective one. In order to determine whether an extraneous
influence is prejudicial, a trial judge must determine how an
objective, typical juror would be affected by such an influence.
Id. at 1016 (citations omitted). Further, “[i]n determining the reasonable
likelihood of prejudice, the trial judge should consider 1) whether the
extraneous influence relates to a central issue in the case or merely involves
a collateral issue; 2) whether the extraneous influence provided the jury
with information they did not have before them at trial; and 3) whether the
extraneous influence was emotional or inflammatory in nature.” Id. at
1016-17 (footnote omitted).
First, Mr. Piole argues that, “[t]he extraneous influence of an arrest for
tax evasion is a collateral issue and does not relate to the central issue of
____________________________________________
2
We note that “[i]t is well-settled that plurality opinions do not have
precedential authority.” See Commonwealth v. Minor, 647 A.2d 229, 231
n.3 (Pa. Super. 1994) (citations omitted). However, in Pratt v. St.
Christopher’s Hosp., 866 A.2d 313 (Pa. 2005), our Supreme Court stated
that, “in instances of post-verdict allegations of extraneous information
and/or outside influence affecting jury deliberations, we adopt the objective
test for prejudice as well as the associated guidelines that are set forth in
the lead opinion in Carter, 529 Pa. 421-22, 604 A.2d at 1016-17.” Id. at
324.
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this case which is formation and breach of an oral contract.” Mr. Piole’s Brief
at 23 (unnecessary capitalization and emphasis omitted). Mr. Piole contends
that, “[t]o establish an oral contract, it must be established that (a) both
parties manifested an intent to be bound by the terms of the oral contract,
(b) the terms of the oral contract were sufficiently definite to be specifically
enforced, and (c) there was mutuality of consideration.” Id. at 24 (citing
York Excavating Co. v. Employers Ins. of Wausau, 834 F. Supp. 733,
740 (M.D. Pa. 1993)). He asserts that, “an arrest for tax evasion does not
relate to the central issue of the elements required for an oral contract[,]”
id. at 24, and “[w]hether [Mr.] Piole fails to pay taxes or is arrested for tax
evasion does not make it more or less likely that an oral contract existed or
that it was breached.” Id. at 25.
The trial court observed, however, that “during the closing argument
to the jury[,] Mr. Pupich’s counsel actually described Mr. Piole’s credibility as
the ‘central issue[,’] and it is well known that a criminal conviction is the
most devastating method for destroying a witness’s credibility.” TCO at 7
(citation omitted). Specifically, the trial court noted that, “[t]hroughout the
trial, the existence of the oral contract that Mr. Pupich allegedly made to pay
for the lost personalty was made to depend on Mr. Piole’s credibility.” Id.
(citations to record omitted). See N.T. Jury Trial, 12/1/2015-12/3/2015, at
73-74 (“Now, Mr. Pupich will testify. And you’re going to hear him testify,
and you’ll be the individual who will weigh the factors. You’ll weigh the
credibility of evidence. You’ll weigh the testimony. You’ll listen to these two
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gentlemen. You’ll determine who is the truth-teller.”); id. at 399 (“It’s a
balance of credibility. We leave that -- that’s what you’re going to be doing
for us is to weigh those issues of credibility. And I submit that because of
that central issue that there is no oral contract. There never was any oral
agreement in this case.”); id. at 407-08 (“You listened to cross-
examinations. You know who the truth-tellers are here. And based on that,
my client and I are asking you, because you’re going to get this verdict slip
… Was there an oral contract between Mr. Piole and Mr. Pupich? No. That’s
what we’re asking here today.”). Thus, we agree with the trial court that
“the tax evasion arrest/conviction relates to Mr. Piole’s credibility by
destroying it, and Mr. Piole’s credibility undoubtedly was a central issue in
the case.” TCO at 8 (footnote omitted).3 We therefore conclude that the
first guideline from Carter and Pratt is satisfied.
Next, Mr. Pupich argues that, “[t]he extraneous influence of [Mr.]
Piole’s failure to pay taxes was information that was discussed throughout
the trial and therefore was not prejudicial.” Mr. Pupich’s Brief at 26
____________________________________________
3
The trial court also noted that:
While Juror 9 apparently found on the internet, before
deliberations began, that Mr. Piole was ‘arrested,’ Juror 5 heard
‘criminal convictions’ being discussed by the Jury during
deliberations. It is inconsequential whether the extraneous
influence was Mr. Piole’s arrest or conviction as the destructive
effect of Mr. Piole’s credibility would be the same.
TCO at 8 n.4. We concur.
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(unnecessary capitalization and emphasis omitted). While Mr. Pupich
acknowledges that the trial court “granted a [m]otion in [l]imine that [Mr.]
Piole’s prior convictions would not enter into evidence[,]” and that “[i]t is
undisputed that counsel for [Mr.] Pupich did not submit any evidence of
[Mr.] Piole relating to any arrest or conviction for tax evasion[,]” he
advances that “the knowledge of [Mr.] Piole’s failure to pay taxes was
obvious throughout the trial.” Id. at 26-27 (citations to record omitted).
Specifically, according to Mr. Pupich, “[Mr.] Piole’s recalcitrant disregard for
his obligation to pay taxes was presented when he ‘opened the door’ and
stated he filed bankruptcy due to breach of the oral contract[,]” and, “[i]n
response, [Mr.] Pupich’s counsel was permitted to cross-examine based on
the bankruptcy filing that [Mr.] Piole owed over $750,000.00 in back taxes,
which triggered his bankruptcy.” Id. at 26-27 (citations to record omitted).
Thus, Mr. Pupich claims that “[t]he fact an ‘arrest’ for failure to pay taxes
may have been submitted to the jury, does not place a significant new fact
in front of the jury.” Id. at 27.
The trial court, in contrast, concluded that “testimony as to Mr. Piole’s
debt to the Internal Revenue Service obviously does not equate to the
jury[’s] receiving evidence of his arrest or conviction for tax evasion during
the trial.” TCO at 9. Moreover, the court pointed out that if the jury had
received information on Mr. Piole’s tax evasion arrest/conviction during the
course of trial, “it would have violated my pre-trial order that excluded all
evidence and testimony concerning Mr. Piole’s criminal record. But, there
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was no objection, motion for a mistrial or other reference to that pre-trial
order during the course of the trial because that order was not violated.”
Id. As such, the court concluded that “the information the jury received
about Mr. Piole’s tax evasion arrest/conviction was not provided at trial,
which satisfies the second guideline from the Carter and Pratt cases.” Id.
at 10. Again, we agree. As the trial court discerned, there is a distinction
between having a debt owed to the Internal Revenue Service and being
arrested for/convicted of tax evasion. Accordingly, we conclude that the jury
did not have the information regarding Mr. Pupich’s arrest/conviction before
them at trial.
Finally, Mr. Pupich states that, “[t]he extraneous influence of an arrest
for tax evasion is neither[] inflammatory nor prejudicial.” Mr. Pupich’s Brief
at 27 (unnecessary capitalization and emphasis omitted). Mr. Pupich
reiterates that, “[t]he jury was aware of [Mr.] Piole’s failure to pay taxes in
the sum of [$]767,461.00. Given the presentation of evidence of failure to
pay taxes, the assertion that the arrest for tax evasion was ‘inflammatory’ or
‘prejudicial’ cannot be supported.” Id. (citation to record omitted).
Furthermore, relying on the Carter case, Mr. Pupich insists that “[t]he Trial
Judge gave clear jury instructions at the beginning of trial that the jurors
were not to look at the internet or communicate on any of these matters on
the internet or e-mail[,]” and that “[t]hese clear instructions prevent any
prejudice from extraneous influence.” Id. at 29-30 (citations to record
omitted).
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Despite Mr. Pupich’s contentions, we deem the trial court’s reasoning
to be more compelling. Ultimately, the court concluded that, “Mr. Piole’s
arrest/conviction for tax evasion is emotional or inflammatory in nature,
which satisfies the third guideline from Carter and Pratt.” TCO at 10. The
court also explained that the reaction of Juror 9, when she discovered the
arrest, proved Mr. Pupich’s argument was meritless; the trial court found
that Juror 9 “said ‘oh, my God, he was arrested for tax evasion[,]’” which
the trial court said “undoubtedly was an expression of emotion.” TCO at 10
(citation to record omitted). Additionally, the trial court suggests that an
objective, typical juror would have also been affected by this type of
information, noting that, “since a leading commentator describes the
admission into evidence at trial of a criminal conviction as ‘prejudicial’ …, it is
obvious that finding out about Mr. Piole’s arrest/conviction for tax evasion
outside of the trial also is prejudicial.” TCO at 10 (citing Bernstein,
Pennsylvania Rules of Evidence (2016 Edition), Rule 609, p. 492).
In conclusion, we agree with the trial court that the three guidelines
set forth in Carter and Pratt support a reasonable likelihood of jury
prejudice, and that the trial court did not abuse its discretion in granting Mr.
Piole a new trial under these circumstances.
Order affirmed. Case remanded for a new trial. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2017
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