J. A03014/16

                                 2016 PA Super 142

THOMAS WILLIAMS, ADMINISTRATOR OF:                  IN THE SUPERIOR COURT OF
THE ESTATE OF GARDENIA WILLIAMS, :                       PENNSYLVANIA
DECEASED,                        :
                                 :
                    Appellant    :
                                 :
               v.                :
                                 :
PENN CENTER FOR REHABILITATION   :
AND CARE AND HOSPITAL OF THE     :
UNIVERSITY OF PENNSYLVANIA AND   :
TRUSTEES OF THE UNIVERSITY OF    :
PENNSYLVANIA AND MANOR CARE OF   :
YEADON, LLC AND MANOR CARE INC.  :
D/B/A MANOR CARE HEALTH SERVICES :                  No. 1167 EDA 2014

                Appeal from the Judgment Entered March 19, 2014
               In the Court of Common Pleas of Philadelphia County
                   Civil Division No(s): May Term, 2011 No. 3790


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

OPINION BY DUBOW, J.:                                     FILED JULY 05, 2016

      Appellant, Thomas Williams, Administrator of the Estate of Gardenia

Williams, appeals from the judgment entered in favor of Appellees, Penn

Center   for    Rehabilitation   and   Care   and    Hospital   of   University   of

Pennsylvania, following a jury trial. We conclude that the trial court acted

within its discretion when it dismissed Appellant’s Post-Trial Motion because

Appellant failed to comply with its order to obtain the Notes of Testimony

prior to filing his Post-Trial Motion. Accordingly, we affirm.

      On June 2, 2011, Appellant filed a Complaint alleging negligence and

corporate negligence against Appellees, and a claim for breach of an oral
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contract against Appellee Penn Center and Manor Care of Yeadon, LLC and

Manor Care, Inc., d/b/a Manor Care Health Services (“Manor Care”). In an

Amended Complaint filed on July 8, 2011, Appellant added wrongful death

and survival actions against Manor Care.    On February 27, 2012, the trial

court sustained Manor Care’s Preliminary Objections resulting in the transfer

of the wrongful death and survival actions against them to arbitration.

      After a fourteen-day trial, the jury entered a verdict for Appellees on

December 12, 2013.       Appellant filed a Motion for Post-Trial Relief on

December 18, 2013. The next day, the trial court ordered Appellant to file

his Post-Trial Brief within thirty days of receipt of the Notes of Testimony,

but no later than February 2, 2014. The court ordered Appellees to file a

response by March 3, 2014.

      On January 30, 2014, Appellant, without having obtained the Notes of

Testimony, filed a Brief in Support of his Motion for Post-Trial Relief,

asserting 16 claims of error, and attaching over 500 pages of exhibits. On

February 28, Appellees filed their responses, alerting the trial court to

Appellant’s failure to obtain and cite to the Notes of Testimony. Appellees

argued in their briefs that Appellant’s neglect prevented them from being

able to conduct meaningful substantive review of Appellant’s claims of error.

      The trial court agreed, finding that Appellant had neither obtained the

Notes of Testimony for significant dates nor cited to them in his Post-Trial

Brief. Consequently, the trial court dismissed Appellant’s Post-Trial Motion



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on March 14, 2014. The court noted that, “[Appellant] failed to make

financial arrangements for preparation of the Notes of Testimony.” Trial Ct.

Order, 3/14/14, n.1.     On March 17, 2014, Appellant filed a Motion for

Reconsideration, even though Appellant still had not obtained the Notes of

Testimony. The trial court denied the Motion on April 9, 2014. Meanwhile,

on March 19, 2014, Appellees filed a Praecipe to Enter Judgment on the

jury’s verdict pursuant to Pa.R.C.P. 227.4(2).

      On April 9, 2014, Appellant filed a timely Notice of Appeal.        Both

Appellant and the trial court complied with Pa.R.A.P. 1925. On October 6,

2014, the trial court ordered Appellant to file an addendum to his Rule

1925(b) Statement with page citations to the trial record demonstrating

where in the record the alleged errors had been raised and ruled upon.

Appellant complied with this order on November 17, 2014.

      Appellant raises the following issues on appeal:

         Whether the trial court erred as a matter of law, abused its
         discretion, and committed reversible error in dismissing
         Appellant’s post-trial [motion] for failure to obtain notes of
         testimony?

         Whether the trial court erred as a matter of law, abused its
         discretion, and committed reversible error in excluding
         Appellant’s claims of corporate negligence per se against
         Appellees and entered [sic] a non-suit?

         Whether the trial court erred, abused its discretion, and
         committed reversible error in prohibiting Appellant from
         the use [sic] applicable laws, regulations, and rules at
         trial?




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         Whether the trial court [ ] erred in permitting novel
         scientific evidence offered by Appellees in contravention of
         Frye v. United States, [293 F. 1013 (D.C. Cir. 1923)],
         and in contravention of Pa.R.E. 702, 703, and 705?

Appellant’s Brief at 6.

      In his first issue, Appellant argues that the trial court erred as a matter

of law in dismissing his Post-Trial Motion for failure to obtain and cite to the

Notes of Testimony. Appellant claims that he timely ordered transcription of

the Notes of Testimony, but never received a request for deposit or payment

from the court reporters.    Id. at 16.     Appellant also claims that the trial

court’s order did not actually require him to “‘secure’ the Notes of Testimony

on or before February 2, 2013, or by any date, but to file the [b]rief by

February 2, 2013, with or without the transcript.” Id. at 15.

      We review the trial court’s enforcement of a local procedural rule for

an abuse of discretion. Guttman v. Rissinger, 482 A.2d 1324, 1324 (Pa.

Super. 1984).

      Philadelphia County Local Rule of Civil Procedure 227(d)(2) provides

that the court reporter shall deliver a copy of the notes of testimony to any

party who has requested and paid for them.

      The trial court’s order directing Appellant to obtain the Notes of

Testimony reads, in relevant part, that, “[Appellant’s] Brief in Support of the

Post Trial Motion must be filed within thirty (30) days of receipt of the Notes

of Testimony, but no later than February 2, 201[4].”            Trial Ct. Order,

12/19/2013.


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      Although the record is clear that Appellant ordered the Notes of

Testimony on December 13 and December 18, 2013, there is no evidence in

the record substantiating Appellant’s claim that he paid the court reporter to

obtain them. In fact, the trial court specifically found that “[Appellant] failed

to   make     financial   arrangements    for   preparation   of   the   [n]otes    of

[t]estimony.” Trial Ct. Order, 3/14/14, n.1.

      In Roski v. Halfway House, Inc., 579 A.2d 392 (1990), this Court

affirmed the trial court's dismissal of the defendant's post-trial motion,

under a former version of Phila.Civ.R. 227, because there was no evidence

that the defendant’s counsel ever made a deposit on the transcript.                The

Superior Court concluded, therefore, that the defendant failed to “order” the

transcript and to exercise “due diligence” in having the transcript prepared.

Id. at 394.

      In this case, notwithstanding that Appellant requested the Notes of

Testimony, Appellant did not pay for the Notes of Testimony.             Therefore,

Appellant did not exercise “due diligence” to ensure prompt receipt of the

Notes of Testimony. See id. This neglect prevented both Appellees and the

trial court from being able to conduct meaningful and timely substantive

review of the Appellant’s claims of error.1 Accordingly, the trial court did not

abuse its discretion in dismissing Appellant’s Post-Trial Motion.


1
  This Court also observes that Appellant could have filed a Motion for
Extension of Time to obtain the Notes of Testimony if Appellant needed



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      Appellant’s remaining issues challenge the trial court’s decision to

enter a non-suit on Appellant’s corporate negligence claim and the court’s

ruling on evidentiary issues. Appellant raised those issues in his Post-Trial

Motion and in his Rule 1925(b) Statement. Notwithstanding, we find those

issues waived.

      When a party fails to comply with the rules governing Post-Trial Motion

practice, the trial court may refuse to address the issues raised therein, and

this Court has held that those issues are not preserved for appeal.       See

Kennel v. Thomas, 804 A.2d 667, 668 (Pa. Super. 2002).           Similarly, we

hold that when a party fails to comply with an order to obtain the Notes of

Testimony, and as a result of the party’s own non-compliance the trial court

is unable to address the issues raised in the Post-Trial Motion, those issues

are waived.

      In this case, the trial court properly dismissed Appellant’s Post-Trial

Motion as a result of Appellant’s failure to exercise due diligence to pay for

the Notes of Testimony. Since the Appellant failed to pay for the Notes of

Testimony, he could not obtain them and the trial court could not address

the merits of the issues Appellant raised in his Post-trial Motion. See Roski,



additional time to obtain the funds to pay for the Notes of Testimony to
comply with the court’s December 19, 2013 Order.              Alternatively, if
Appellant was, in fact, confused by the language of the court’s Order, he
could have filed a Motion for Clarification. Appellant chose to do neither,
resulting in an incomplete Post-Trial Motion on which the trial court could not
properly rule.



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579 A.2d at 394. Therefore, those issues are waived.       See id.; see also

Diamond REO Truck Co. v. Mid-Pacific Indus., Inc., 806 A.2d 423 (Pa.

Super. 2002) (issues waived for failure to file post-trial motions or for other

reasons cannot be revived or saved simply by raising those issues in a

1925(b) statement).

      Judgment affirmed. Jurisdiction relinquished.

      President Judge Gantman joins the opinion.

      Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/5/2016




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