[J - 85 - 2019] [MO: Todd, J.] IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

MENDY TRIGG, INDIVIDUALLY AND SMITHFIELD TRUST, INC., AS THE GUARDIAN OF THE ESTATE OF J. T., A MINOR, Appellees

v.

CHILDREN'S HOSPITAL OF PITTSBURGH OF UPMC, Appellant : : : : : : : : : : : : : : : No. 3 WAP 2019 Appeal from the Order of the Superior Court dated May 14, 2018 at No. 1041 WDA 2017, vacating the Judgment of the Court of Common Pleas of Allegheny County entered June 28, 2017 at No. GD 13

- 002322 and remanding ARGUED: October 15, 2019

CONCURRING OPINION

JUSTICE DONOHUE DECIDED: APRIL 22, 2020
Pursuant to the procedure for civil case voir dire in the Allegheny County Court of Common Pleas in place at the time of the underlying proceedings , the voir dire in this matter was conducted by a court clerk. See A.C.L.R.C.P. 220.1. 1 D uring that process, Appellees asserted for

- cause challenges to particular jurors , i ncluding Juror 29, but did
not request the presence of, or object to the absence of , a judge for the questioning of the potential ve niremen

. The record confirms that at no point prior to the commencement of voir dire or during voir dire did Appellees sound an object ion to the absence of a judge

1 The Allegheny County Local Rule s of Civil Procedure have since been amended to provide that a party or parties may request that a judge preside over the voir dire proceedings. See A.C.L.R.C.P. 212.2(d) ( effective February 18 , 2020 )

.[J

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from the process

. Subsequently, i n their post

- trial motion, Appellees argued that it was error for the calendar control judge, the Honorable Ronald W. Folino, to deny their challenge for cause as to Juror 29 because Judge Folino did not have the opportunity to “observe the demeanor or tenor of the challenged venireman’s answers[,]” and therefore should have presumed that the challenged v enireman exhibited extre me bias . Post

- Trial Motion, 4/3/2017, ¶ 36. Even if we are to assu m e that this pointed claim encompasses a challenge to the voir dire procedure generally, pursuant to Rule of Civil Procedure 227.1(b) , Appellees were required to raise the objection during the voir dire proceedings
in orde r to preserve it as a basis for post

- trial relief. See Pa.R.C.P. 227.1(b). Thus, I reluctantly agree with the Majority’s conclusion that Appellees waived their challenge to Allegheny County’s civil voir dire procedure.
P ursuant to our issue preservation requirements, Appell ees sho uld have object ed to the judge’s absence at the outset of voir dire e ven though, as the local rule provide d that the judge would not be present for questioning of the ju ry pool , an objection at that point wou l d likely have been futile . Moreover, as Appellee s explained, they ha d no need to object to the absence of a judge until Juror 29 gave a response that caused Appellees to question her impartiality. Although they were offered the option of calling Juror 29 before Judge Folino to recreate the voir dire questioning, see Maj. Op. at 6, Appellees elected to resolve their dispute on the basis of a transcript instead

. In my opinion, it cannot be disputed by anyone who has ever picked a jury that summoning Juror 29 to Judge Folino’ s courtroom for questioning would have yield ed r esponses that differ ed in
demeanor , if not content , from her initial responses. T he prospective juro r would have
been singled out, removed from the jury assignment room, and taken to a courtroom to[J

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appear before a judge (who, it must be remembered, has not appeared at any point in the proceedings) for examination . Given th e gravity of these circumstances, even the most forthcoming prospective jur or w ould second guess her initial answers . A t the very least, her comportment when responding, for a second time, to the same questions would
be altered

. In my view, being afforded the option to have Juror 29 appear before Judge Folino at that point in t he proceedings is not functionally equivalent to the judge’s presence during the initial questioning. This problem strikes at the heart of my reservations about voir dire procedure s that permit questioning potential jurors outside of the presence of a trial judge

. Voir dire is an essential component of our constitutional right to trial by jury. Article 1, Section 6 of the Pennsylvania Constitution provides the citizens of this Commonwealth with the right to a trial by an impartial jury. P A

. C ONST . ar t.1, § 6 ; see also Bruckshaw v. Frankford Hosp. of City of Philadelphia , 58 A.3d 102, 108

– 09 ( Pa. 2012) (( “[T] he right to a trial by an impartial jury is enshrined in the Pennsylvania Constitution, which guarantees that ‘ trial by jury shall be as heretofor e, and the right thereof remain inviolate. ’ ” ). This constitutional right extends
to both criminal and civil trials , and accordingly, t he fai rness and impartiality requirements for juries “ are as scrupulously protected in a civil case as in a criminal case. ” Bruckshaw , 58 A.3d at 109

. Indeed, we have recognized the fair and impartial jury as the “keystone” of our legal system

. Colosimo v. Pennsylvania Elec. Co. , 518 A.2d 1206, 1209 ( Pa. 1986) ; see also Bruckshaw , 58 A.3d at 109 (“ One of the most essential elements of a successful jury trial is an impartial jury.” ). Voir dire is the process by which trial courts secure the fair and impartial ju ries required by our Constitution. See, e.g., Shinal v. Toms, 162 A.3d 429, 438 (Pa. 2017) ;[J

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Commonwealth v. Smith , 131 A.3d 467, 477 (Pa. 2015); Commonwealth v. Paolello , 665 A.2d 439, 450 ( Pa. 1995 ); Bentivoglio v. Ralston , 288 A.2d 745, 749 (Pa. 1972). Through questioning, trial courts screen potential jurors for “ bias or relationships to the parties, lawyers, or m atters involved. Importantly, it is not simply the fact of partiality, but also the appearance of partiality or bias , that the trial court must consider.” Shinal , 162 A.3d at
438

. As we have explained in the context of criminal proceedings:

[t] he role of the trial judge during voir dire is as arbiter of a mixed question of fact and law, and that the canvassing of prospective jurors for the possibility of a hardened opinion in derogation of the constitutional imperative of trial by “impartial, ‘indiffere nt’ jurors,” Irvin v. Dowd , [] 366 U.S. 717[,] 722 [1961] , is to be performed before the trial judge is not an empty requirement. The opportunity to observe the demeanor of the prospective juror and the tenor of the juror's answers is indispensable to the j udge in determining whether a fair trial can be had in the community. Claims of impartiality by prospective jurors are subject to scrutiny for credibility and reliability as is any testimony and the judgment of the trial court is necessarily accorded great weight. As stated in United States v. Wood : “ Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula. ” [ United States v. Wood , 299 U.S. 133, 145

- 46 (1936) .] Commonwealth v. Bachert , 453 A.2d 931, 936

– 37 ( Pa. 1982)

. Trial judges enforce the right to an impartial jury, as it is they who determine whether a prospective juror must be disqualified or whether she is able to put aside biases or prejudices upon proper instruction from the court

. Shinal , 162 A.3d at 440. We recently expounded on the importance of the trial judge’s ability to observe a prospective juror for the purposes of making these critical credibility determinations in situations involving allegations of actual[J

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prejudice in a civil case

. 2 W here a potential juror's conduct or answers to questions reveal a likelihood of prejudice, we explained that “much depends upon the answers and demeanor of the potential juror as observed by the trial judge [,]” as it is the trial judge who

sees [the potential juror] and hears what is said; and is able to form his opinion as much from the proposed juror's conduct as from the words which he utters, printed in the record. Hesitation, doubt, and nervousness indicating an unsettled frame of mind, with other matters, within the judge's view and hearing, but which it is impossible to place in the record, must be considered. Id. at 44 1

- 4 2

. 3 In recognition of the significance of the trial judge’s contemporaneous observations, appellate courts defer to the trial judge’s determination absent palpable

error when reviewing rulings involving claims of actual prejudice. Id. Considering the great importance placed on the requirement for a fair and impartial jury, and the role of the trial judge i n the seating of such juries, it cannot be contested th at the empaneling of a jury is critical to a ssuring a fair and impartial jury. Because the right to an impartial jury is guaranteed for both criminal and civil jury trials, Bruckshaw , 58 A.3d at 109, a judge ’s role in v oir dire is no less crucial in a civil case than in a criminal case

. Inexplicably, this is not duly reflecte d in our rules. In the criminal context, the judge’ s presence is required. See Pa.R.Crim.P. 631(A ) ( “ V oir dire of prospective trial jurors and prospective alternate jurors shall be conducted ... in the presence of a judge” unless the

2 “Actual prejudice” in the context of voir dire refers to situations in which “a juror's prejudice is revealed through his or her conduct or answers.” Shinal v. Toms , 162 A.3d 429, 441 (Pa. 2017).

3 This kind of conduct that is not capable of capture on a cold record is the same conduct that cannot be replicated when a juror is summoned to the calendar control judge’s courtroom after initial questioning, pursuant to the Allegheny County civil voir dire procedure.[J

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parties and the judge agree to waive the judge’s presence ). The analogous rule in the civil context “does not dictate the mechanics of voir dire , but leaves the method ... to the local courts of common pleas.” Pa.R.C.P. 220.3, Explanatory Comment

- 1997. As the
constitutional r ight to a fair and impartial jury extends to civil and criminal matters, see Bruckshaw

, 58 A.3d at 109 , I see no principled reason for this disparate treatment and I believe that rectification of this dis parity should be referred to our Civil Procedural Rules Committe e

. As we can see from the case presently before us, this unequal treatment in our procedural rules can, and has, led to the promulgation of local rules for voir dire in civil cases that operate without the express oversight of a trial judge

. These procedures, in my view, improperly ignore the critical function performed by a trial judge in voir dire proceedings

. 4 Justices Baer, Dougherty, Wecht and Mundy join this concurring opinion.

4 Thus, I am encouraged by Allegheny County’s recent revision of its local rule to permit parties in civil cases to request the participation of a trial judge in voir dire, see note 1, supra , which works to eliminate the unequal treatment that has been given to voir dire, the mechanism by which we ensure the constitutional right to trial by an impartial jury, in civil and criminal cases.