                              [J-87-2019] [MO: Wecht, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                 WESTERN DISTRICT


    JAMES TEMPLE, ADMINISTRATOR FOR                  :   No. 21 WAP 2019
    THE ESTATE OF ELMA B. TEMPLE,                    :
    DECEASED,                                        :   Appeal from the Order of the
                                                     :   Superior Court entered July 10,
                       Appellant                     :   2018, at No. 87 WDA 2017,
                                                     :   affirming in part and reversing in
                                                     :   part the Order of the Court of
                v.                                   :   Common Pleas of Beaver County,
                                                     :   Civil Division, entered December 14,
                                                     :   2016, at No. 11726-2012 and
    PROVIDENCE CARE CENTER, LLC D/B/A                :   remanding.
    PROVIDENCE CARE CENTER,                          :
                                                     :   ARGUED: October 15, 2019
                       Appellee                      :


                       CONCURRING AND DISSENTING OPINION


JUSTICE TODD                                         DECIDED: JULY 21, 2020
        I join Sections I and II of the Majority Opinion and its thorough discussion of the

history and import of our waiver and issue preservation jurisprudence, as well as its

conclusion that Providence Care Center, LLC (“Providence”) did not preserve a request

for a mistrial at any point during the trial.1 I also join that part of Section III of the Majority

Opinion that recognizes a trial court’s sua sponte authority to order a new trial. Majority

Opinion at 15, 24 n.16. Finally, I agree with the majority that the use by a trial court of its

sua sponte authority to grant a new trial should be “limited and restrained,” id. at 1, and

only invoked in “rare circumstances,” id. at 24.




1 While counsel for Providence did lodge objections and requested a cautionary
instruction to the jury, he did not ask for a mistrial.
       I respectfully dissent, however, to the majority’s unprecedented and newly created,

but virtually unattainable, standard governing a trial court’s sua sponte power to grant a

new trial, and to the majority’s conclusion that the trial court abused its discretion in

granting a new trial in this case.

       First, with respect to the appropriate standard, in my view, the majority’s “severe

deprivation of a party’s liberty interest” standard, Majority Opinion at 25, is a bridge too

far, which will effectively strip trial courts of their inherent and immemorial authority to

grant a new trial sua sponte, and undermine their duty to ensure justice and fairness.

Specifically, the majority traces decisions employing language that highlights the limited

circumstances in which a trial court may grant a new trial on its own motion. However,

the majority then interprets long-used references to “exceedingly clear error,” resulting in

“manifest injustice,” to mean only constitutional or structural error, of such a magnitude

as to amount to a “severe deprivation of a party’s liberty interest.” Majority Opinion at 25.

       While I whole heartedly agree that the bar for invoking the sua sponte power should

be high, in my view, the majority has set the bar out of reach. For example, in a civil case,

such as this one only involving money damages, the severe deprivation of a liberty

interest standard could never be met.

       Furthermore, the majority’s newly-minted standard is both inconsistent with our

jurisprudence and with the traditional deference we accord trial courts. While the majority

begins its discussion 1808, it fast-forwards almost 200 years to our decision in

Commonwealth v. Powell, 590 A.2d 1240 (Pa. 1991), in support of its standard. Yet, as

detailed below, in the 200 years in between, and after, our Court, and our intermediate

courts, have adroitly reviewed instances when a trial court has sua sponte granted a new

trial, all without the onerous standard imposed today.




                              [J-87-2019] [MO: Wecht, J.] - 2
        Indeed, tracing the rich history of the sua sponte power, beginning with its English

common law roots, reveals a much broader basis on which to permit such action, with a

consistent focus on justice and fairness. Beginning with the English common law, in Rex

v. Atkinson, 5 Term Rep. 437, note (1783), Lord Mansfield is quoted as indicating that,

even without motion, “if it came out incidentally by the report that [a new trial] was proper,

the court might grant one,” and, further, “if the court conceive a doubt that justice is not

done, it is never too late to grant a new trial, but not on the application of the party.”2

        Our Court’s early decision in Ewing v. Tees, 1 Binn 450 (1808), further sharpens

the point. In that decision, we spoke to this sua sponte power. Chief Justice Tilghman

offered, “All that I shall say at present is, that it must be an exceedingly clear error indeed

that should induce me to interfere, after the four days have expired without a motion for

a new trial. . . . It is enough that in the present case, I am by no means satisfied that any

injustice has been done to the defendant.” Id. at 455-56. Justice Yeates found no new

trial warranted, as “no injustice had been done by the verdict.” Id. Justice Smith added

that there was little evidence that “manifest injustice” had been done, but that if he had

discovered that “injustice” had been done, he would have the ability to order a new trial.

Id. at 456-57. Finally, Justice Brackenridge offered that he was not prepared to “say that

this verdict was so palpably against the evidence as to make it clear that a new trial ought

to be granted.” Id. at 457. Thus, even when we first recognized a trial court’s sua sponte

authority to grant a new trial, this Court has articulated various standards.

        Indeed, 100 years later, in Commonwealth v. Gabor, 58 A. 278, 279-80 (Pa. 1904),

we held that “[t]here is no reason why a court, finding that it has committed an error,

should not be able to correct it by an order for a new trial, rather than be compelled to

wait to reach the same result by a reversal upon writ of error.” Gabor, 58 A. at 279-80


2   As discussed in Commonwealth v. Gabor, 58 A. 278, 279 (Pa. 1904).


                               [J-87-2019] [MO: Wecht, J.] - 3
(citing Ewing). Of course, the mere committing of “an error” is a low bar. Thus, in the oft-

cited decision of March v. Philadelphia & West Chester Traction Co., 132 A. 355, 356

(Pa. 1926), we articulated a slightly higher standard, in reaffirming the “immemorable right

to grant a new trial, whenever, in [the court’s] opinion, the justice of the particular case so

requires.” A quarter century later, in Potanko v. Sears, Roebuck & Co., 84 A.2d 522, 525

(Pa. 1951), we reaffirmed that a trial court may “grant a new trial ‘sua sponte’ whenever

in its opinion the justice of the particular case so requires.” At the same time, our Court

also utilized the term “miscarriage of justice.” See Clewell v. Pummer, 131 A.2d 375, 378

(Pa. 1957) (“Where a trial Judge or Court sees and hears the witnesses, it has not only

an inherent fundamental and salutary power, but it is its duty, to grant a new trial when it

believes the verdict was capricious or was against the weight of the evidence and resulted

in a miscarriage of justice”).

       To be sure, we have used the phrase “interest of justice,” the springboard for the

majority’s “severe deprivation of a party’s liberty interest” standard.        However, the

majority’s heavy reliance upon our Court’s decision in Powell for its standard is misplaced;

indeed, Powell supports a much broader standard.

       Specifically, at issue in Powell was the Commonwealth’s appeal of the trial court’s

granting of the defendant’s motion for a new trial “in the interest of justice” after the trial

judge persuaded the defendant to waive his right to a jury trial. Powell, 590 A.2d at 1241.

Writing for the Court, Chief Justice Nix began with an extensive discussion of the “in the

interest of justice” concept, which, in the Court’s view, was focused on basic fairness:

“The rationale ‘in the interest of justice,” employed to rectify errors which would otherwise

result in unfairness, is deeply rooted in both federal jurisprudence and the common law

of Pennsylvania.” Id. at 1242. The Court continued by setting forth various iterations of

the “interest of justice” concept, first noting that, under Rule 33 of the federal Rules of




                                 [J-87-2019] [MO: Wecht, J.] - 4
Criminal Procedure, “application of this discretionary provision has been held to apply

broadly and its use may only be reviewed if there is evidence of manifest abuse.” Id. The

Court continued, “‘the very words of the rule ― ‘interest of justice’ ― mandate the

broadest inquiry into the nature of the challenged proceeding.” Id. (quoting United States

v. Narciso, 446 F.Supp. 252, 304 (E.D. Mich. 1977)). Moreover, the Court explained that

a judge granting a new trial under the federal rule need assign no reason other than it is

required in the interest of justice.

        Turning to Pennsylvania law, the Powell Court offered that the “interest of justice”

allows a trial court to act “whenever, in its opinion, the justice of the particular case so

requires.” Id. (quoting March, supra). Indeed, the Court approved invocation of the sua

sponte power “for the promotion of justice,” and where “it will result in the attainment of

justice.” Id. at 1242-43. The Court reasoned: “It is the trial judge’s review of the

conditions and activity surrounding the trial which leaves him or her in the best position

to make determinations regarding the fairness of the process and its outcome.” Id. at

1243.    Finally, and perhaps best articulating the appropriate standard, the Court

concluded that “[i]t is apparent, therefore, if a trial court determines that the process has

been unfair or prejudicial, even where the prejudice arises from actions of the court, it

may, in the exercise of its discretionary powers, grant a new trial ‘in the interest of justice.’”

Id.

        Making this standard concrete, the Court ultimately held that “the trial court, in

assessing its own conduct and in arriving at the conclusion that the totality of

circumstances was unfair to the appellee and compromised his right to adequate legal

representation, was strongly supported by the record. As such, the granting of a new trial

to the appellee was a proper exercise of the court’s discretionary power in order to

preserve the fairness of the process.” Id. at 1245.




                               [J-87-2019] [MO: Wecht, J.] - 5
       This broad understanding of the “interest of justice” standard, and its focus on

basic justice and fairness, stands in stark contrast to the standard articulated by the

majority today. Each judicial decision must be read against its facts. Oliver v. City of

Pittsburgh, 11 A.3d 960 (Pa. 2011). While Powell dealt with the deprivation of the right

to a trial by jury, and, thus, concerned an error of constitutional magnitude, there is no

indication in Powell that the sua sponte power is limited to such contexts; rather, a review

of the entire decision suggests, as set forth above, the exact opposite ― a broad standard

based upon justice and fairness.3

       Indeed, subsequent to Powell, our Court has employed the “interest of justice”

standard in contexts that do not implicate a severe deprivation of a liberty interest. See,

e.g., Joseph v. Scranton Times LP, 987 A.2d 633, 635 (Pa. 2009) (adopting

recommendation of a new trial in the “interest of justice” to remedy appearance of

impropriety); Armbruster v. Horowitz, 813 A.2d 698, 704 n.6 (Pa. 2002) (in context of

granting new trial where judge becomes unavailable to rule on post-trial motions,

recognizing right of trial court to sua sponte grant a new trial in the interest of justice,

citing Powell and March).      As conceded by the majority, varied articulations of the

standard continue to the present. See, e.g., Commonwealth v. Dorm, 971 A.2d 1284,

1288-89 (Pa. Super. 2009) (“interest of justice” standard applied in context of incorrect

verdict slip and confusing jury instructions).

       Fundamentally, the majority’s standard is in tension with the great deference we

traditionally give to our trial judges. Trial judges are charged with superintending trials.

In numerous and diverse circumstances, we grant trial courts discretion over the conduct

3 Moreover, the majority’s use of our decision in Dilliplaine v. Lehigh Valley Trust Co., 322
A.2d 114, 116 (Pa. 1974), and its rejection of the “basic and fundamental error” doctrine
to give new and restrained meaning to Powell’s broad “interest of justice” standard,
Majority Opinion at 24-25, is particularly troubling, as Powell postdated Dilliplaine by
almost 20 years.


                              [J-87-2019] [MO: Wecht, J.] - 6
of trials. Trial courts have a “front row seat” to the proceedings, observing firsthand the

conduct of counsel, the testimony of witnesses, and the actions of the jury. It is why we

have bestowed upon them the immemorial right and duty to order a new trial in the interest

of justice. Trial judges should not be stripped of their discretion to order a new trial in the

interest of justice. In my view, the majority’s standard essentially does that.

        Based upon our precedent and the traditional deference we accord to trial courts,

and in contrast to the majority, I favor the standard that has been largely followed for over

200 years: “if a trial court determines that the process has been unfair or prejudicial, even

where the prejudice arises from actions of the court, it may, in the exercise of its

discretionary powers, grant a new trial ‘in the interest of justice.’” Powell, 590 A.2d at

1243.

        Nevertheless, the circumstances in which a trial court may sua sponte grant a new

trial should be limited. However, instead of the majority’s virtual elimination of the sua

sponte power, I would emphasize a rigorous application of the appropriate appellate

standard of review ― abuse of discretion. Again, as insightfully explained by our Court

in Powell:

              This concept of “in the interest of justice” is merely a
              recognition of the trial court's discretionary power to ensure
              the fairness of the proceedings during the adjudicatory stage.
              An arbitrary and unsupported use of this power by a trial court
              to avoid justifying its ruling would be clearly inappropriate. As
              this Court stated in Beal v. Reading Company, 370 Pa. 45, 87
              A.2d 214 (1952), “mere conclusions such as ‘interest of
              justice’ are insufficient. All judicial process necessarily is in the
              interest of justice. Such conclusion, in the absence of
              amplification, could well serve as a cloak or shield for abused
              judicial discretion.” 370 Pa. at 49, 87 A.2d at 216 (Emphasis
              added.)


Powell, 590 A.2d at 1243.




                               [J-87-2019] [MO: Wecht, J.] - 7
       Thus, the traditional abuse of discretion standard is appropriate when reviewing a

trial court’s sua sponte granting of a new trial. As echoed by our Court in Coker v. S.M.

Flickinger Co., Inc., 625 A.2d 1181 (Pa. 1993):


              The term “discretion” imports the exercise of judgement,
              wisdom and skill so as to reach a dispassionate conclusion,
              and discretionary power can only exist within the framework
              of the law, and is not exercised for the purpose of giving effect
              to the will of the judge. Discretion must be exercised on the
              foundation of reason, as opposed to prejudice, personal
              motivations, caprice or arbitrary actions. Discretion is abused
              when the course pursued represents not merely an error of
              judgement, but where the judgement is manifestly
              unreasonable or where the law is not applied or where the
              record shows that the action is a result of partiality, prejudice,
              bias or ill will.

Coker, 625 A.2d at 1184-85 (citation omitted).

       Consistent with our prior precedent, the traditional deference we accord our trial

judges, and the ultimate goal of a fair and just trial, I would continue to utilize the standard

articulated in Powell, reviewed for an abuse of discretion.

       Turning to the instant case and the majority’s analysis of whether the trial court

invoked its sua sponte authority, I would find, as did the Superior Court, that the trial court

did, indeed, invoke its authority to declare a new trial sua sponte. The majority initially

asserts that the trial court did not “explicitly invoke that authority,” Majority Opinion at 25,

but continues that the trial court did not “justify its decision to grant a new trial in the

‘interest of justice,’” and submits that the trial court ordered a new trial “only in the context

of responding to Providence’s post-trial motions,” id. at 25-26.           Thus, the majority

concludes “there is no indication that the trial court intended to grant a new trial sua

sponte.” Id. at 26. On the contrary, and as observed by the Superior Court, I believe that




                               [J-87-2019] [MO: Wecht, J.] - 8
there is a sufficient basis for concluding that the trial court intended to grant a new trial on

its own authority.

       While perhaps not as explicitly as might be desired, the trial court nevertheless

stressed that there were multiple, cumulative reasons for granting a new trial in the

interest of justice and fairness. First, while the trial court did not explicitly voice that it was

using its own authority to grant a new trial, it did explain that “when a trial judge believes

that the trial was not fair, that judge is obligated to correct it.” Trial Court Opinion,

3/8/2017, at 3. Second, as noted above, the trial court conveyed that the cumulative

impact of the errors was the basis for its award of a new trial. The trial court explained

that “[t]he main problem in this case was [Temple’s] counsel’s failure to follow the rules,

and his co-mingling of arguments regarding compensatory and punitive damages, despite

the court’s admonition against this.” Id. at 2 (emphasis added). The trial court continued,

highlighting the discussion in its December 13, 2016 opinion on Providence’s post-trial

motions, that Temple repeatedly violated the court’s “pre-trial orders and rulings during

the trial, as well as its instructions prior to closing argument. For example, counsel sought

to introduce the star-rating of the nursing home, after being told such evidence was

inadmissible.” Id. (emphasis added).

       Critically, we rarely, if ever, require “magic words” to be used in legal discourse.

See Boggavarapu v. Ponist, 542 A.2d 516, 519 (Pa. 1988) (“We do not mean to imply

that there are magic, invocatory words that of themselves will justify a new trial. What we

expect is that, along with the evidence, a trial judge’s impression and analysis of that

evidence will be fully articulated, leaving no doubt, at least to his mind, that the evidence

and the verdict on that evidence represent an injustice.”). Here, while the trial court did

not use the phrases “manifest injustice” or “interest of justice,” as explained above, our

courts have not settled on agreed verbiage in this context. Fundamentally, however, the




                                [J-87-2019] [MO: Wecht, J.] - 9
trial court expressed its conclusion that the cumulative effect of the trial errors resulted in

an unjust and unfair trial, Trial Court Opinion, 12/13/2016, at 37, that the trial was “not

fair,” Trial Court Opinion, 3/8/2017, at 3. Again, the trial court concluded it was its duty to

remedy an unjust and unfair trial, offering that, “when a trial judge believes that the trial

was not fair, that judge is obligated to correct it.” Id.

       Finally, I respectfully disagree with the majority that the trial court abused its

discretion in sua sponte granting a new trial. The trial court concluded it had witnessed

a trial run amok. In its view, repeated failures to abide by the court’s directives with

respect to crucial aspects of the litigation, including staffing, star rating, and closing

arguments, resulted in extreme prejudice. In my view, the trial court amply justified its

conclusion that the trial was unjust and unfair. Thus, applying our traditional Powell

standard, and reviewing for an abuse of discretion, I would conclude that the trial court

properly granted a new trial in this matter.

       Justice Baer joins this concurring and dissenting opinion.




                              [J-87-2019] [MO: Wecht, J.] - 10
