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


    MENDY TRIGG, INDIVIDUALLY AND                :   No. 3 WAP 2019
    SMITHFIELD TRUST, INC., AS THE               :
    GUARDIAN OF THE ESTATE OF J. T., A           :   Appeal from the Order of the
    MINOR,                                       :   Superior Court dated May 14, 2018
                                                 :   at No. 1041 WDA 2017, vacating the
                      Appellees                  :   Judgment of the Court of Common
                                                 :   Pleas of Allegheny County entered
                                                 :   June 28, 2017 at No. GD 13-002322
               v.                                :   and remanding
                                                 :
                                                 :   ARGUED: October 15, 2019
    CHILDREN'S HOSPITAL OF PITTSBURGH            :
    OF UPMC,                                     :
                                                 :
                      Appellant                  :


                                  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 During that process,

Appellees asserted for-cause challenges to particular jurors, including Juror 29, but did

not request the presence of, or object to the absence of, a judge for the questioning of

the potential veniremen. The record confirms that at no point prior to the commencement

of voir dire or during voir dire did Appellees sound an objection to the absence of a judge


1 The Allegheny County Local Rules 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).
from the process. Subsequently, in 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 venireman exhibited extreme bias. Post-Trial

Motion, 4/3/2017, ¶ 36. Even if we are to assume 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 order 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.

       Pursuant to our issue preservation requirements, Appellees should have objected

to the judge’s absence at the outset of voir dire even though, as the local rule provided

that the judge would not be present for questioning of the jury pool, an objection at that

point would likely have been futile. Moreover, as Appellees explained, they had 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 yielded responses that differed in

demeanor, if not content, from her initial responses. The prospective juror would have

been singled out, removed from the jury assignment room, and taken to a courtroom to




                               [J-85-2019] [MO: Todd, J.] - 2
appear before a judge (who, it must be remembered, has not appeared at any point in

the proceedings) for examination. Given the gravity of these circumstances, even the

most forthcoming prospective juror would second guess her initial answers. At 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 the 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 procedures 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. PA. CONST. art.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 heretofore, and the right thereof remain inviolate.’”). This constitutional right extends

to both criminal and civil trials, and accordingly, the fairness 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 juries

required by our Constitution. See, e.g., Shinal v. Toms, 162 A.3d 429, 438 (Pa. 2017);




                                 [J-85-2019] [MO: Todd, J.] - 3
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 matters 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,
              ‘indifferent’ 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 judge 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-85-2019] [MO: Todd, J.] - 4
prejudice in a civil case.2 Where 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 441-42.3 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 in the seating of such juries, it cannot be contested that

the empaneling of a jury is critical to assuring 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 voir dire is no less crucial in a civil case than in a criminal case.

Inexplicably, this is not duly reflected in our rules. In the criminal context, the judge’s

presence is required. See Pa.R.Crim.P. 631(A) (“Voir 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-85-2019] [MO: Todd, J.] - 5
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 right 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 disparity should be referred to our Civil Procedural Rules

Committee.

       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.


                               [J-85-2019] [MO: Todd, J.] - 6
