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The issue of whether telephone calls made by Philadelphia Court of Common Pleas Judge Marvin R. Halbert during a trial equalled judicial abandonment in a motor vehicle case will now be decided by the Pennsylvania Supreme Court. Pennsylvania’s highest court granted allocatur in Kopcha v. Sallidino to decide if the Superior Court erred in its memorandum opinion when it ruled that the claim of judicial abandonment had been waived. The high court will also decide whether the judge’s trial conduct constituted such judicial abandonment as to warrant a new trial. The unpublished decision in Kopcha was issued on Jan. 6, more than three months before the Superior Court in a per curiam opinion remanded a premises liability case Halbert presided over to decide whether the judge’s alleged telephone calls and other activities interfered with that trial. The appeals court in DiMonte v. Neumann Medical Center ruled on April 19 that the distracting effect of the judge’s phone calls at the bench and alleged fixing of a heating vent during trial could not be discounted. “When the actions of a judge indicate that he or she has better things to do than listen to a party’s testimony or argument, this may infect the jury with a sense that the proffered evidence or argument is not worth its attention,” the DiMonte court wrote. But the three-judge panel in DiMonte consisting of Judges James R. Cavanaugh, John T.J. Kelly and Phyllis W. Beck, was not in line with the with the earlier panel in Kopcha. The Kopcha panel, consisting of Judges Kate Ford Elliott, Correale F. Stevens and Joan Orie Melvin, said that it could not order a new trial. “While we would agree that the trial judge’s conduct sends the wrong message and, therefore, encourage the trial court to cease such practice, we can find no reversible error as this claim has not been preserved by a timely specific objection,” the Kopcha court wrote. But when it ruled in the published DiMonte case, the Superior Court did not find the failure to make a timely objection an issue and ruled that the case fell into the “limited exception” to the waiver rule provided in Supreme Court case law. “We recognize that our jurisprudence requires finding a waiver in the vast majority of circumstances where a party fails to make a timely, specific objection,” the DiMonte panel wrote. “However, we do not believe that waiver should be necessary when the appropriate objection would require a party to directly confront the trial court with a claim as to its own governance of the proceedings.” The DiMonte case was remanded to the common pleas court where an evidentiary hearing is set for next month. Halbert is no longer actively hearing cases after Administrative Judge John W. Herron recommended that Halbert not be certified pending resolution of the DiMonte case. The state Supreme Court will now hear the Kopcha case, and in its per curiam order granting allocatur, the court noted that it would examine whether the Superior Court erred “especially in light of DiMonte v. Newmann Medical Center …” Kopcha filed the underlying action for injuries she sustained in an auto accident with a truck owned by Scaramuzza’s Pasta. Employee Nicholas Sallidino was driving at the time of the accident. After trial, the jury returned a verdict finding Kopcha 70 percent negligent and Sallidino 30 percent negligent. Kopcha filed a motion for post-conviction relief, which was denied. Kopcha appealed to the Superior Court alleging Halbert failed to instruct the jury on the laws concerning passing on double lines and that Halbert talked on the phone during crucial testimony. The petition for allocatur says Halbert specifically took phone calls during the cross-examination of Sallidino. “It is impossible for a curative charge to repair the damage done by the distracting and unjudicial conduct of talking on the telephone by the trial judge during such a crucial phase,” attorney Peter J. McNamara wrote in the allocatur petition. “Imagine a jury attempting to follow the cross-examination of defendant’s main witness, while the trial judge is sitting next to the witness talking on the telephone.” “This would be an obvious distraction, causing the jury to wonder what the judge was talking about and directing their attention away from the questioning of the witness,” the petition says. The petition for allocatur also asked the high court to determine whether Halbert erred in his lack of a jury charge, but the high court declined to accept that part of the petition for review. There is a third Halbert case under review. In a motion for post-trial relief in a personal injury case, plaintiff Sandy Mitchell alleged Halbert was distracted during her non-jury trial held in the judge’s chambers. Mitchell said Halbert was talking on the phone and eating his lunch during her trial, which ultimately ended in a defense verdict. That motion is still pending.

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