EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, April 23, 2015

No Contact: Superior Court of Pennsylvania Reacts to Violation of Sequestration Order by...Lifting the Order

Similar to its federal counterpartPennsylvania Rule of Evidence 615 reads as follows:

At a party’s request the court may order witnesses sequestered so that they cannot learn of other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize sequestering:

(a)  a party who is a natural person;

(b)  an officer or employee of a party that is not a natural person (including the Commonwealth) after being designated as the party’s representative by its attorney;

(c)  a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d)  a person authorized by statute or rule to be present.

So, assume that a judge orders a witness sequestered and tells him not to discuss the case with prior witnesses. Further, assume that the witness violates this sequestration order by talking to a prior witness. You'd expect there to be severe consequences for that witness, right? So why wasn't that the case in Koller Concrete, Inc. v. Tube City IMS, LLC, 2015 WL 1788772 (Pa.Super. 2015)?

In Tube City

Koller filed a complaint against Tube City raising claims of breach of contract, unjust enrichment, detrimental reliance, breach of express warranties, breach of the implied warranty of merchantability, breach of the implied warranty of fitness for particular purpose, fraud, negligent misrepresentation, violations of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), and sought attorneys' fees and punitive damages.

This lawsuit came after "Koller began to receive complaints on a number of projects, all of which used concrete" sold to it by Tube City "that contained Waycem." These complaints were investigated by William Lambert, a long-time employee and technician for Koller. Thereafter, at trial,

prior to the testimony of Koller's owner, Dale Koller..., Tube City moved for Lambert's sequestration because they were both fact witness....Koller's counsel opposed the motion, arguing that Lambert, although not the corporate designee, was important to Koller's trial strategy and he needed to be present....The trial court granted Tube City's motion and ordered Lambert to leave the courtroom for Mr. Koller's testimony....Following a break in Mr. Koller's testimony, counsel for Tube City stated that he had observed Mr. Koller speaking with Lambert during the break and requested that the trial court exclude Lambert from testifying or give the jury an instruction indicating that he violated the sequestration order....At that point, counsel for Koller asked the trial court to reconsider its sequestration ruling....After argument from the parties and testimony from Lambert about what he and Koller discussed, the trial court ruled that although there was a technical violation of the sequestration order, there was no "specific prejudice" to Tube City....It lifted the sequestration order and further ruled that Lambert could testify "unimpeded" and that it would not give a curative instruction regarding a sequestration violation to the jury

After the jury awarded damages to Koller in the amount of $347,138.19, Tube City appealed, claiming, inter alia, that the trial judge acted improperly. The Superior Court of Pennsylvania disagreed, concluding that

Counsel for Koller informed the trial court that Lambert was his "number one connection to the client" and that Lambert was "integral to [his] ability to present the case."...In light of this representation by Koller's counsel, we find no abuse of discretion in the trial court's determination that sequestration was not authorized by Rule 615[c]."

This ruling boggles the mind. On the one hand, I kind of agree with the appellate court that Lambert shouldn't have been sequestered because he seemed essential to Koller's case. But that's not what the trial court found. Instead, it sequestered him and only reversed its ruling after opposing counsel caught him violating its sequestration order. Then, rather than sanction Lambert/Koller, it reversed itself and actually lifted the sequestration order based on...what? All that changed between the court's ruling and the lifting or its order was that order's violation. How can a court expect people to respect its rulings when it confers a benefit on those who breach them?



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