Jones, H., Aplt. v. Ott, R.
Jones, H., Aplt. v. Ott, R.
Opinion of the Court
Justice Wecht delivers the Opinion of the Court with respect to Parts I and II(b) and announces the Judgment of the Court. Justices Baer and Todd join the opinion in full, and Chief Justice Saylor joins Parts I and II(b).
OPINION
JUSTICE WECHT
We granted review in this case in order to clarify the methods by which one may preserve a challenge to a trial court's jury instructions in accordance with Pennsylvania Rule of Civil Procedure 227.1.
*784I. Facts and Procedural History
In this negligence case, Helen Jones sought recovery for injuries sustained when a vehicle driven by Ron Ott rear-ended Jones' car while Ott was working for Eastern Elevator Service and Sales Company.
On April 29, 2015, the jury returned a verdict in favor of Ott. On May 8, 2015, Jones filed a post-trial motion contending that the trial court erred in failing to instruct the jury as to negligence per se .
Jones invoked a line of decisions that began with Broxie v. Household Finance Company ,
This Court affirmed. We began by reciting the prevailing rule:
It has long been the law in this Commonwealth that in order to preserve for appellate review an issue concerning the correctness of a trial court's charge to the jury, the complaining party must submit a specific point for charge or make a timely, specific objection to the charge as given.
*785Broxie ,
[T]o allow a party to escape the consequences of failing to object timely and specifically to a trial court's charge simply because of the nature of the relief sought would elevate form over substance.... We therefore conclude that a party who neither specifically objects to a charge on a particular subject nor offers a specific point for charge waives its right to [JNOV] (or to appellate review of a trial court's denial of a motion for [JNOV] ) where the basis of the motion is that the law against which the sufficiency of the evidence is to be measured was not the law as given to the jury.
Id. at 744.
In Brancato v. Kroger Co. ,
In Meyer v. Union Railroad Company ,
In the instant case, the trial court ruled that Jones had failed to preserve her jury-charge issue:
[A]t no point in time did [Jones] object to the [c]ourt's omission of said charges, nor did [Jones'] counsel request the opportunity to place a formal objection on *786record. In fact, the parties agreed in chambers that the [c]ourt's preference to charge the jury pursuant to Pennsylvania's Standard Civil Jury Instructions was acceptable.
Trial Court Opinion at 3. The trial court rejected Jones' argument that, as in Meyer , she had preserved her claim by filing a proposed point for charge and raising the issue in a post-trial motion. The trial court explained that the Meyer court relied upon a recorded charge conference concerning the proposed points for charge, as well as upon an explicit trial court ruling. "Here, [however,] the record is devoid of any discussion relative to the proposed charge" and, thus, Jones' failure to preserve the claim waived her right to appellate review. Id. at 5.
The Superior Court affirmed. Jones v. Ott , 930 WDA 2015,
In Wapner and Faherty , the Superior Court held that, in order to preserve a jury-instruction challenge for appeal-absent a specific contemporaneous objection-a litigant must file a proposed point for charge, and the trial court must explicitly accept or reject the proposed instruction. Wapner ,
In addition, in the instant case, the Superior Court questioned Brancato 's reliance upon Pa.R.C.P. 227(a)"without mention or analysis of subsection (b)." Jones ,
We granted allowance of appeal in order to address whether a litigant preserves a jury-charge challenge pursuant to Pennsylvania Rule of Civil Procedure 227.1 when, notwithstanding her failure to object to the charge at trial, she previously filed *787proposed points for charge and later filed a post-trial motion challenging the trial court's failure to include specific points.
Before this Court, Jones reiterates her position that she preserved her jury-charge challenge pursuant to Meyer by filing proposed points for charge with the prothonotary and raising her challenge by post-trial motion. Jones urges this Court not to impose the "heavy consequence of waiver," and she asserts good-faith reliance upon precedent.
Ott also echoes the lower courts' finding that Meyer is distinguishable. In Meyer , the Superior Court relied upon the recorded charge conference and the trial court's explicit refusal to instruct the jury despite a request by the objecting party. These circumstances provided the trial court with an opportunity to correct any alleged error. Moreover, unlike Jones, the Meyer defendant did not abandon its objection to an alternative charge and then seek later to overturn that accommodation on appeal. Here, Ott maintains, without a transcript of the charge conference, and without an explicit trial court ruling upon the proposed instructions, and with Jones' on-the-record abandonment of any potential jury-charge challenge, Dilliplaine's well-settled preservation requirements apply.
II. Analysis
In order to preserve an issue for appellate review, a litigant must place a timely, specific objection on the record. See Samuel-Bassett v. Kia Motors Am., Inc. ,
(1) a timely objection made to the trial court gives that court the opportunity to take immediate corrective action, which promotes efficiency in the judicial process by allowing litigants to avoid incurring unnecessary expense and delay by being forced to resort to the appellate process; and (2) it offers a predictable and neutral standard for appellate review of claims of trial court error which *788is applicable to all cases, unlike the [plain error] standard which was inconsistently applied by appellate courts on a case by case basis.
SugarHouse HSP Gaming, L.P. v. Pa. Gaming Control Bd. ,
Against this backdrop, this Court promulgated Pa.R.C.P. 227.1 in 1983. In pertinent part, that rule provides:
[P]ost-trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and
(2) are specified in the [post-trial] motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.
Pa.R.C.P. 227.1(b). The Note to this section specifies that: "[i]f no objection is made, error which could have been corrected in pre-trial proceedings or during trial by timely objection may not constitute a ground for post-trial relief." Pa.R.C.P. 227.1(b), note. The Explanatory Comment to Rule 227.1 cites Dilliplaine , and observes that grounds for a new trial or JNOV "must be raised timely in pre-trial proceedings or during the trial, thus affording the court the opportunity to correct the error." Pa.R.C.P. 227.1, cmt. "[S]ubdivision (b)(1) [dictates] that there be a timely objection in pre-trial proceedings or at the trial."
The record in this case reflects no objection to the trial court's jury instructions. Assuming, arguendo , that Jones asserted some objection at the unrecorded charge conference, it is well-settled that we may not consider any such objection. See Commonwealth v. Killen ,
a. Preservation under Pa.R.C.P. 227.1
We are unpersuaded by Jones' claim that she preserved her jury-charge challenge by filing a proposed instruction with the prothonotary before trial and by later raising the issue by post-trial motion. Taken together, our rules of civil and appellate procedure, and our longstanding principles of preservation and waiver, dictate that, while a jury-charge challenge can be preserved under Pa.R.C.P. 227.1 by making proposed instructions part of the record and by raising the issue in a post-trial motion, the challenge is waived when the appellant fails to secure a record ruling from the trial court upon the proposed charge. The record in this case is devoid of *789any such trial court ruling.
In order to preserve a jury-charge challenge for appellate review, a party must either: (1) lodge a contemporaneous objection on the record, Dilliplaine ,
Pa.R.C.P. 226, entitled "Points for Charge," states:
Points upon which the trial judge is requested to charge the jury shall be so framed that each may be completely answered by a simple affirmation or negation. Attorneys shall hand copies of requested points for charge to the trial judge and to the opposing attorneys before the closing addresses to the jury are begun. A requested point for charge that was presented to the trial judge becomes part of the record when the point is read into the record, or filed in the office of the prothonotary prior to filing a motion for post-trial relief regarding the requested point for charge.
Pa.R.C.P. 226(a). The mere filing of a requested point for charge, standing alone, does not preserve an assertion of trial court error. The Note to Rule 226(a) provides:
An appellate court will not review an objection to a ruling of a trial court regarding a point for charge unless the point for charge was (1) presented to the court and (2) made a part of the record by either reading the point into the record or filing it in the office of the prothonotary prior to filing a motion for post-trial relief.
Pa.R.C.P. 226(a), note (emphasis added). While inclusion of the proposed points in the record is necessary for preservation, it is not sufficient. Pa.R.C.P. 227 states that "[a]n exception in favor of the party against whom the adverse ruling was made shall be deemed to have been taken with the same force and effect as if it had been requested, noted by the official stenographer and thereafter written out, signed and sealed by the trial judge." Pa.R.C.P. 227(a) (emphasis added). Under Rules 226 and 227, preservation of a jury-charge challenge requires that the trial court has issued a ruling upon the matter.
Pa.R.C.P. 227.1 itself presupposes the requirement for a ruling that is outlined in Rules 226 and 227. Citing Dilliplaine , the Explanatory Comment to Rule 227.1 points out that grounds for a new trial or JNOV "must be raised timely in pre-trial proceedings or during the trial, thus affording the court the opportunity to correct the error." Pa.R.C.P. 227.1, cmt. Moreover, "[i]f no objection is made, error which could have been corrected in pre-trial proceedings or during trial by timely objection may not constitute a ground for post-trial relief."
We agree with the Superior Court as well that Jones' reliance upon Brancato and Meyer is misplaced. In both cases, the Superior Court relied upon the recorded charge conference and, in both cases, the record reflected clearly that the trial court denied the objecting party's requested instruction. See Meyer ,
Without an on-the-record ruling upon a proposed point for charge, an appellate court cannot know whether the trial court denied the point for charge, whether counsel withdrew the point for charge, or whether the parties agreed upon a compromise charge. Trials are dynamic, and it is not unusual for lawyers to modify or withdraw points for charge that were previously drafted and submitted but that end up at variance with the record developed during the trial. Moreover, parties sometimes compromise as to certain instructions. Consequently, the mere filing of proposed points for charge cannot assure a record sufficient to allow meaningful appellate review. Indeed, today's case exemplifies this problem: the trial court's recollection of the charge conference differs from the recollection of Jones' counsel.
*791It is for this reason that the Superior Court held in Wapner and Faherty that, in order to preserve a jury-instruction challenge for appeal-absent a specific contemporaneous objection-a litigant must file a proposed point for charge, the trial court must rule upon that instruction, and the litigant must challenge the ruling in its post-trial motion. Wapner ,
b. Affirmative Waiver
Even were we disinclined to impose "the heavy consequence of waiver" based upon Jones' asserted good-faith reliance upon her reading of Meyer , the express waiver she made in open court would preclude relief. In the instant case, after charging the jury, the trial court specifically asked the lawyers whether they wished to raise any issues with the charge. Jones' counsel expressly replied, "I have no issues with the charge, Your Honor." N.T., 4/29/2015, at 25. Trial lawyers waive claims, objections, and issues all the time, and do so upon all sorts of rationales.
As a general matter, we do not suggest that our rules of civil and appellate procedure require counsel to state some additional objection on the record if (unlike in this case) there already is a record of the ruling upon the proposed point for charge. But, when the trial court specifically asks whether a party objects to a given charge, it is reasonable to expect that counsel will in fact object or remind the court of a previously offered instruction rather than abandon the point. This is unexceptional. See Passarello v. Grumbine ,
Moreover, an issue preserved at one stage (as in a submitted and ruled-upon point for charge) can be waived at another stage (such as by denying that there are any objections or by failing to include the issue in subsequent briefing). See Commonwealth v. Cash ,
III. Conclusion
Because Jones failed to lodge a contemporaneous objection to the trial court's instructions at trial or to interpose any objection when invited by the trial court to do so, her challenge is waived. Accordingly, we affirm the order of the Superior Court.
Justices Baer and Todd join the opinion.
Chief Justice Saylor joins Parts I and II(b) of the opinion and files a concurring opinion.
Justice Dougherty files a dissenting opinion in which Justice Donohue joins.
Justice Mundy files a dissenting opinion in which Justice Donohue joins.
CHIEF JUSTICE SAYLOR, concurring *793I join the majority's alternate rationale, namely, that Appellant's counsel affirmatively waived any objections to the jury instructions issued by the trial court, when he replied as follows to the court's inquiry: "I have no issues with the charge, Your Honor," N.T., Apr. 29, 2015, at 25. See Majority Opinion, Part II(b). From my point of view, the court was then justified in proceeding on the basis that no further issues would be raised relative to the jury instructions. Accord Bodine v. Boyd ,
I find the present law to be less clear concerning whether submission of proposed points for charge, in a civil case, suffices to preserve subsequent challenges to a jury charge. Accordingly, and while I ultimately agree with the majority's policy-based rationale that something more should be required, I would interpose further requirements on a prospective basis only.
This matter was reassigned to this author.
Rule 227.1(b) provides:
Except as otherwise provided by Pa.R.E. 103(a), post-trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and
Note: If no objection is made, error which could have been corrected in pre-trial proceedings or during trial by timely objection may not constitute a ground for post-trial relief.
Pa.R.E. 103(a) provides that the specific ground for an overruled objection, or the substance of excluded evidence, need not be stated at or prior to trial, or without having made an offer of proof, if the ground of the objection, or the substance of the evidence sought to be introduced, was apparent from the context.
(2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.
We refer to Ott and Eastern herein collectively as "Ott."
Jones also asserted that the verdict was against the weight of the evidence. The weight claim is not before us in this appeal. Jones v. Ott ,
Brancato ,
It shall not be necessary on the trial of any action or proceeding to take exception to any ruling of the trial judge. An exception in favor of the party against whom the adverse ruling was made shall be deemed to have been taken with the same force and effect as if it had been requested, noted by the official stenographer and thereafter written out, signed and sealed by the trial judge.
"Unless specially allowed by the court, all exceptions to the charge to the jury shall be taken before the jury retires." Pa.R.C.P. 227(b).
Whether Jones has preserved or waived her challenge is a question of law, for which our standard of review is de novo and our scope of review is plenary. See Bd. of Supervisors of Willistown Twp. v. Main Line Gardens, Inc. ,
See Brief for Jones at 19 (citing Newman Dev. Grp. of Pottstown, LLC v. Genuardi's Family Mkts., Inc. ,
As will be discussed infra , Jones also affirmatively abandoned her jury-charge challenge when the trial court offered her the opportunity to place an objection on the record.
See Jones v. Montefiore Hosp. ,
See Trial Court Opinion at 3; Brief for Jones at 18.
Of course, the best practice is to ensure that the charge conference is transcribed. This preserves any objections and creates the optimal record for appellate review. Although ensuring the presence of a court reporter may generally fall within the trial judge's control, counsel can (and should) make a record, either at sidebar or in open court when the jury is not present. Counsel also may file a written request for a ruling upon the proposed points for charge. While the trial judge should ensure that the charge conference (or at least the portion of that conference identifying the judge's rulings) is recorded, the trial lawyers' hands are not tied in the event that the judge fails to do so. We recognize that resources may not always be available for transcription. At a minimum, the trial court should make a written record of its decision to accept, deny, or modify proposed instructions, and the court or the parties should memorialize any instructions negotiated or agreed upon through discussion and compromise. In turn, counsel should ensure by whatever means are available that any contested rulings are documented in the record.
Although Chief Justice Saylor "ultimately agree[s] with [our] policy-based rationale that something more [than filing proposed points for charge with the prothonotary] should be required [to preserve a jury-charge challenge pursuant to Pa.R.C.P. 227.1 ], [he] would interpose further requirements on a prospective basis only." Concurring Opinion at 793. Accordingly, four Justices agree that, moving forward, in order to preserve a jury-charge challenge under Pa.R.C.P. 227.1 by filing proposed points for charge with the prothonotary, a party must make requested points for charge part of the record pursuant to Pa.R.C.P. 226(a), obtain an explicit trial court ruling upon the challenged instruction, and raise the issue in a post-trial motion. See Pa.R.A.P. 302(a) ; Pa.R.C.P. 226(a), 227, 227.1.
For illustrative purposes, a few examples (among many) will suffice: a party may waive a challenge to improper venue by failing to file preliminary objections, see Zappala v. Brandolini Prop. Mgmt., Inc. ,
Dissenting Opinion
I respectfully dissent. The learned majority's holding subjects appellant to the harsh penalty of waiver for failing to meet a previously unrecognized and unarticulated prerequisite to place specific objections to proposed points of charge on a transcribed record. In my view, appellant adhered to the explicit requirements of our Rules of Civil Procedure, and nothing more was required of her to preserve her claim.
The question we accepted for review focuses on Rules of Civil Procedure 226 and 227.1 pertaining to preservation of challenges to jury instructions. "When interpreting the language of our rules of civil procedure, we are guided by the fundamental precepts set forth in Pa.R.C.P. 127." Bruno v. Erie Ins. Co. ,
Rule 127. Construction of Rules. Intent of Supreme Court Controls
(a) The object of all interpretation and construction of rules is to ascertain and effectuate the intention of the Supreme Court.
(b) Every rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
* * *
Pa.R.C.P. 127(a), (b).
Pursuant to this directive, our analysis should begin with an examination of the language of Rule 227.1(b), which provides in pertinent part:
Rule 227.1 Post-Trial Relief
* * *
(b) Except as otherwise provided by Pa.R.E. 103(a), post-trial relief may not be granted unless the grounds therefor,
(1) If then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and
* * *
(2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted *794upon cause shown to specify additional grounds.
Pa.R.C.P. 227.1(b).
In addition, Rule 226(a) provides the requirements for proposing points for charge and creating a record.
Rule 226. Points for Charge. Motion for Directed Verdict
(a) Points upon which the trial judge is requested to charge the jury shall be so framed that each may be completely answered by a simple affirmation or negation. Attorneys shall hand copies of requested points for charge to the trial judge and to the opposing attorneys before the closing addresses to the jury are begun. A requested point for charge that was presented to the trial judge becomes part of the record when the point is read into the record, or filed in the office of the prothonotary prior to filing a motion for post-trial relief regarding the requested point for charge.
Note: An appellate court will not review an objection to a ruling of a trial court regarding a point for charge unless the point for charge was (1) presented to the court and (2) made part of the record by either reading the point into the record or filing it in the office of the prothonotary prior to filing a motion for post-trial relief.
Pa.R.C.P. 226(a) (emphasis added).
Rule 226 unambiguously provides a proposed point of charge is made part of the record when it is "filed in the office of the prothonotary." Additionally, Rule 227.1(b)(1) provides post-trial relief is permitted if the grounds for such relief were raised in "pre-trial proceedings or by motion, objection, point for charge ...." Significantly, the plain language of Rules 226 and 227.1 specifies the means of preserving grounds for post-trial relief in the disjunctive, thereby unquestionably denoting several, distinct methods to preserve issues for appellate review. In this case, appellant preserved a challenge to the trial court's jury instructions by submitting requested points for charge to the trial court, filing the requested points for charge with the prothonotary,
As the procedure followed by appellant in this case is expressly authorized by our rules as sufficient to preserve error for post-trial and appellate review, I therefore must disagree with the majority's finding *795of waiver. Contrary to the majority's pronouncement, in my view, there is no support for the holding that a lack of a formal objection on a court transcript results in exclusion of the points for charge from the trial court record, and thus rendering them unavailable for post-trial or appellate review. Respectfully, I find the majority's reliance upon Brancato v. Kroger Co., Inc.,
Specifically, Brancato submitted twelve hand-written points for charge, four of which (# 1, # 3, # 6 and # 7) were denied and not presented to the jury. Brancato's trial counsel, however, only took exception to the trial court's failure to read point for charge # 2 to the jury. Brancato ,
Similarly, in Meyer , the trial court found the Union Railroad Company, waived a challenge to the denial of a jury instruction when it failed to raise a specific objection to the charge that was read to the jury. In reversing the trial court's finding of waiver, the Superior Court noted "[a]lthough the general principle ... applies to bar appellate review where a trial counsel fails to object to a trial court instruction specifically, it does not extend to situations where, as here, a party previously submitted a proposed point for charge and, in a post-trial motion, raised the trial court's refusal to give the charge." Meyer ,
Contrary to the majority's use of them, these decisions, together with the express provisions of the relevant rules, make crystal clear a requested point for charge is "made part of the record by either reading the point into the record or filing it in the office of the prothonotary ..." Pa.R.C.P 226(a), note (emphasis added). It is undisputed that appellant filed the proposed point for charge with the prothonotary, which clearly sufficed to make a record and preserve the issue for appellate review. Despite these explicit instructions in the rules and echoed in relevant case law, the majority now imposes brand new burdens on litigants, including requesting transcripts be made at the charging conference, placing formal objections on the record, and/or "obtain[ing] an explicit trial court ruling upon the challenged instruction" to preserve error which is already preserved by the submission and filing of those points. Majority Op. at 788-89. The majority thus announces a new rule where the specific objection to the charge is not an alternate method of preservation, but the mandatory method of preservation. Counsel's failure to predict this new requirement has resulted in waiver, and is especially egregious here where counsel satisfied the rules' express requirements
In my view, if a specific contemporaneous objection to a jury charge is necessary *796to preserve error, such a requirement should be expressly reflected in the civil rules, as it is in the criminal context. See Pa.R.Crim.P. 647(C) ("No portions of the charge nor omissions from the charge may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate...."). We may not ignore the fact that the Civil Rules do not include a corresponding provision expressing the requirement, and simply import it from the criminal context into the civil sphere. Rule amendments should not be accomplished in an ad hoc manner through common law channels.
Finally, I recognize the benefit of an objection on the record to permit the lower court to correct error and to aid in appellate review, see, e.g., Majority Op. at 791 n.12. However, we cannot ignore that appellant followed the rules by filing post-trial motions and thus engaged in a proper alternative practice. The rules are obviously intended to provide the trial court with the opportunity to correct any error and explain its reasoning. See Newman Dev. Group of Pottstown, LLC v. Genuardi's Family Mkts. Inc. ,
Justice Donohue joins this dissenting opinion.
Of central importance to this case is the concession at the beginning in Dilliplaine that the appellant "frankly concedes that he neither offered a point for charge nor took specific exception to the due care instruction actually given. In his motion for a new trial and again on appeal, he argued that in giving the presumption of due care instruction the trial judge committed basic and fundamental error." Dilliplaine ,
In Broxie , this Court held that the appellant waived a challenge to the trial court's jury instructions by failing to object to the instruction given or file a specific point for charge. Broxie ,
It has long been the law in this Commonwealth that in order to preserve for appellate review an issue concerning the correctness of a trial court's charge to the jury, the complaining party must submit a specific point for charge or make a timely, specific objection to the charge as given. The only exception to this general rule was where a trial court's charge involved basic and fundamental error, but this exception was formally abrogated in Dilliplaine v. Lehigh Valley Trust Co. ,457 Pa. 255 ,322 A.2d 114 (1974). See also Commonwealth v. Clair ,458 Pa. 418 ,326 A.2d 272 (1974). Thus there can be no doubt, and appellant apparently concedes, that its failure to object to the trial court's charge concerning specific intent precludes it from assigning, on appeal, error in that charge as a reason for the grant of a new trial.
Indeed, amendments to our civil rules are most properly promulgated via formal recommendations from the Civil Procedural Rules Committee, which is designed to study such matters and solicit input from the bench and bar where appropriate.
Similarly, I recognize the force in the majority's view that "the best practice is to ensure the charge conference is transcribed." see Majority Op. at 791 n.12. However, the decision to transcribe the charging conference is often the trial court's to make. I cannot agree that circumstances outside the parties' control should carry the severe consequence of waiver.
Dissenting Opinion
Under the plain text of Pennsylvania Rule of Civil Procedure 227.1, a challenge to a jury instruction is preserved as long as the challenging party has filed a proposed point for charge and a post-sentence motion. The trial court is not required to rule on proposed points for charge on the record, nor is an additional on-the-record objection to an omitted charge required. Further, if proposed points for charge have been filed prior to trial, a party is not required to make an on the record objection, even if the trial court inquires generally if there are any further objections to the charge given. For these reasons, I dissent.
The Rules of Civil Procedure direct that "[e]very rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." Pa.R.C.P. 127(b). Rule 227(b) states, "Unless specially allowed by the court, all exceptions to the charge to the jury shall be taken before the jury retires. On request of any party all such exceptions and arguments thereon shall be *797made out of hearing of the jury." Pa.R.C.P. 227(b). Rule 227.1 states the following:
Rule 227.1. Post-Trial Relief
...
(b) Except as otherwise provided by Pa.R.E. 103(a), post-trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial[.]
Pa.R.C.P. 227.1(b). As the Rule explicitly states, "post-trial relief may not be granted unless the grounds ... were raised ... by ... point for charge[.]"
It is also necessary to reconcile Rule 227.1 with Pennsylvania Rule of Appellate Procedure 302(b), which states the following:
Rule 302. Requisites for Reviewable Issue
(a) General rule. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.
(b) Charge to jury. A general exception to the charge to the jury will not preserve an issue for appeal. Specific exception shall be taken to the language or omission complained of.
Note: This rule sets forth a frequently overlooked requirement. See, e.g., Commonwealth v. Piper ,458 Pa. 307 ,328 A.2d 845 (1974), as to Subdivision (a). See, e.g., Dilliplaine v. Lehigh Valley Trust Co .,457 Pa. 255 ,322 A.2d 114 (1974) ; Commonwealth v. Light ,458 Pa. 328 ,326 A.2d 288 (1974) as to Subdivision (b).
Pa.R.A.P. 302.
The issue of preservation of a challenge to a jury instruction has developed over time in this Commonwealth. Previously, absent the filing of a proposed point for charge or an on the record objection, an issue could be deemed preserved if the trial court had made a fundamental error. See Lobalzo v. Varoli ,
However, the Court in Dilliplaine did not say the submission of a proposed point for charge would not satisfy as a specific exception. On the contrary, it acknowledged that no proposed point for charge was submitted to the trial court requesting *798the due care instruction be given using the language subsequently requested on appeal and no objection to the charge was made. The submission of a proposed point for charge as a means of preserving a challenge to a jury instruction is not at odds with our holding in Dilliplaine .
Nor is it at odds with Rule 227(b) which states that an objection to the trial court's jury instructions must be made before the jury retires. There is a difference in degree and kind between: (a) actual proposed points for charge that a party wants the trial court to give; and (b) errors that the trial court makes in its actual instructions to the jury. It is logical that a mistake in the actual jury instructions requires a contemporaneous objection like any other trial court error, because this can only arise once the parties hear the final instructions as given to the jury. Indeed, there are numerous bases on which a party would need to place an objection to the trial court's instructions on the record. However, it would be superfluous to require a party to place an objection on the record to the omission of an instruction the trial court has previously ruled, whether expressly on the record or not, that it will not be including.
The Superior Court's holding in Meyer v. Union Railroad Co. ,
In Commonwealth v. Pressley ,
Our holding does not address the essential procedure for preserving a claim of error relative to a court's charge in the civil context. Notably, the governing rules in that arena are framed differently; for example, a specific objection requirement is not included in the rule addressing points for charge, see Pa.R.C.P. No. 226(a), and the rule eliminating the need for exceptions is not as explicit as its criminal counterpart in excluding jury instruction issues. See Pa.R.C.P. No. 227(b). Furthermore, a number of decisions have indicated that the submission of a point for charge is sufficient to preserve a civil instruction issue. See, e.g., *799Broxie v. Household Fin. Co.,472 Pa. 373 ,372 A.2d 741 , 743 ( [Pa.] 1977).
For the foregoing reasons, I would conclude that Appellant preserved her challenge to the trial court's failure to include certain jury instructions in its charge by including the instructions in her proposed points for charge filed with the prothonotary, and by filing a timely post-trial motion noting her objection. The plain text of the Rules of Civil Procedure discussed herein is unambiguous and does not support adding additional requirements as expressed by the Majority. See Majority Op. at 784 (finding fault that "[n]either the trial court nor the parties arranged for a court stenographer to transcribe the conference, and the trial court did not issue a ruling upon the parties' proposed instructions."). The rules as currently drafted provide for two essential steps to ensure issue preservation, (1) the issue was "raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial[,]" and (2) the filing of a post-trial motion. Pa.R.C.P. 227.1(b). In the instant matter, Appellant complied with the rules and was nevertheless penalized by a finding of waiver. Accordingly, I dissent.
Justice Donohue joins this dissenting opinion.
The 1983 Explanatory Comments to Rule 227.1 provide additional insight and guidance.
Subdivision (b) states two requirements for the granting of post-trial relief. First, the grounds for the relief requested must have been raised in pre-trial proceedings or at trial and, second, they must be stated in the motion.
Subdivision (b)(1) incorporates into the rule the principle of Dilliplaine v. Lehigh Valley Trust Co. ,457 Pa. 255 ,322 A.2d 114 (1974), that basic and fundamental error is not a ground for a new trial in the absence of a timely objection at the trial. The rule extends the principle to all post-trial relief. A ground for a new trial or a judgment notwithstanding the verdict may not be raised for the first time in the Motion for Post-Trial Relief. It must be raised timely in pre-trial proceedings or during the trial, thus affording the court the opportunity to correct the error.
The Cambria County common pleas docket reflects appellant filed her requested points for charge with the prothonotary on April 20, 2015.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.