J-A30037-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 FRANCIS G. GRAHAM,                     :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                    Appellant           :
                                        :
              v.                        :
                                        :
 LARRY CHECK,                           :
                                        :
                   Appellee             :   No. 909 WDA 2018


               Appeal from the Judgment Entered June 13, 2018
              in the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD16-020645

BEFORE:   SHOGAN, J., KUNSELMAN, J., and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED MARCH 19, 2019

     Francis G. Graham appeals from a judgment entered against him and in

favor of Larry Check. We affirm.

     This case stems from a motor vehicle accident, which occurred slightly

before six o’clock in the morning on March 8, 2016. A vehicle operated by

Check struck Graham as Graham attempted to cross Route 30, which is a four-

lane roadway in the Borough of East Pittsburgh. At the intersection Graham

was attempting to cross, Route 30 and Center Street form a “T,” with Route

30 at the top and Center Street at the stem.    There is a bus stop on the

westbound side of Route 30 near the intersection. Graham intended to catch

a bus traveling westbound, which was scheduled to arrive at six o’clock a.m.

After realizing he did not have correct change for the bus, Graham began

crossing Route 30 to get change from a nearby gas station. Graham entered


*Retired Senior Judge assigned to the Superior Court.
J-A30037-18

the crosswalk on Route 30 while the traffic light was red. He did not know

how long the light had been red when he started crossing and he did not check

the pedestrian crossing signals.    It was dark, Graham was wearing dark-

colored clothing, and there was little ambient lighting at the intersection.

      Meanwhile, Check was driving a vehicle traveling on Route 30

eastbound. The headlights of Check’s vehicle were on, Check was not on his

cell phone or otherwise being unattentive, and he was traveling below the

speed limit.1 Check testified he was approaching the intersection when the

light turned to green, but he could not see Graham because it was dark and

another vehicle driven by Joseph Millach obstructed his view.

      The light on Route 30 changed to green when Graham was

approximately three-quarters of the way across the road. Seeing he had a

green light, Check accelerated his vehicle until he saw Graham just feet in

front of his vehicle.   According to Check’s testimony at trial, he braked

immediately, but he could not determine whether any actual braking occurred

prior to impact. Check’s vehicle hit Graham causing injury to him. Graham

testified he did not see Check’s vehicle until moments before it hit him.

      Graham filed a complaint against Check on October 27, 2016. Check

filed an answer and new matter. Following discovery, the case proceeded to

a jury trial, which was held April 2 through April 5, 2018. On April 5, 2018,




1 The parties dispute the exact rate of speed, but all agree it was well below
the speed limit.

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the jury returned a verdict in favor of Check and against Graham, having found

no negligence on the part of Check.

      Graham timely filed a motion for post-trial relief. Following briefing and

argument, the trial court denied Graham’s motion on June 5, 2018. Judgment

was entered against Graham on June 20, 2018. Graham timely filed a notice

of appeal. Both Graham and the trial court complied with Pa.R.A.P. 1925.

      Graham raises two issues on appeal: (1) whether the trial court erred

by instructing the jury on the sudden emergency doctrine and (2) whether the

trial court erred by refusing to provide the jury with a custom instruction

requested by Graham. See Graham’s Brief at 4.

      Our standard of review regarding jury instructions is limited to
      determining whether the trial court committed a clear abuse of
      discretion or error of law[,] which controlled the outcome of the
      case. Error in a charge occurs when the charge as a whole is
      inadequate or not clear or has a tendency to mislead or confuse
      rather than clarify a material issue. Conversely, a jury instruction
      will be upheld if it accurately reflects the law and is sufficient to
      guide the jury in its deliberations.

      The proper test is not whether certain portions or isolated excerpts
      taken out of context appear erroneous. We look to the charge in
      its entirety, against the background of the evidence in the
      particular case, to determine whether or not error was committed
      and whether that error was prejudicial to the complaining party.

      In other words, there is no right to have any particular form of
      instruction given; it is enough that the charge clearly and
      accurately explains the relevant law.

Pledger by Pledger v. Janssen Pharm., Inc., 198 A.3d 1126, 1146 (Pa.

Super. 2018). “[W]e are mindful that a trial court is bound to charge only on




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that law for which there is some factual support in the record.” Levey v.

DeNardo, 725 A.2d 733, 735 (Pa. 1999) (citation omitted).

      We begin with Graham’s claim regarding the sudden emergency

doctrine. Our Supreme Court has explained the sudden emergency doctrine

as follows.

             The sudden emergency doctrine … is available as a
      defense[2] to a party who suddenly and unexpectedly finds him or
      herself confronted with a perilous situation which permits little or
      no opportunity to apprehend the situation and act accordingly.
      The sudden emergency doctrine is frequently employed in motor
      vehicle accident cases wherein a driver was confronted with a
      perilous situation requiring a quick response in order to avoid a
      collision. The rule provides generally, that an individual will not
      be held to the “usual degree of care” or be required to exercise
      his or her “best judgment” when confronted with a sudden and
      unexpected position of peril created in whole or in part by
      someone other than the person claiming protection under the
      doctrine. The rule recognizes that a driver who, although driving
      in a prudent manner, is confronted with a sudden or unexpected
      event which leaves little or no time to apprehend a situation and
      act accordingly should not be subject to liability simply because
      another perhaps more prudent course of action was available.
      Rather, under such circumstances, a person is required to exhibit
      only an honest exercise of judgment. The purpose behind the rule
      is clear: a person confronted with a sudden and unforeseeable
      occurrence, because of the shortness of time in which to react,
      should not be held to the same standard of care as someone
      confronted with a foreseeable occurrence. It is important to
      recognize, however, that a person cannot avail himself of the
      protection of this doctrine if that person was himself driving
      carelessly or recklessly.




2 The sudden emergency doctrine is often referred to as a defense. However,
our Supreme Court has made clear that the doctrine is not an affirmative
defense, but instead a standard of conduct to be applied under specific
circumstances. Leahy v. McClain, 732 A.2d 619, 622 (Pa. 1999).

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Lockhart v. List, 665 A.2d 1176, 1179-80 (Pa. 1995) (footnotes and citations

omitted).

     At trial, Graham objected to the trial court’s instructing the jury

regarding the sudden emergency doctrine, arguing Graham was more like a

stationary object and not a sudden, moving emergency. N.T., 4/2-5/2018, at

313-14, 396. The court rejected Graham’s argument, and instructed the jury

in the following manner.

     In this case, Check claims he is not liable for Graham’s harm
     because he faced a sudden emergency and responded reasonably
     according to the circumstances. In order to establish this defense,
     Check must prove to you all of the following:

     1. Check faced a sudden emergency requiring immediate
        responsive action.

     2. Check did not create the sudden emergency.

     3. Check’s response to the sudden emergency was reasonable
        under the circumstances.

     4. Check must prove that defense by a preponderance of the
        evidence.

N.T., 4/2-5/2018, at 382-83 (first names omitted).

     On appeal, Graham argues that the sudden emergency doctrine was

inappropriate under the facts of the case, namely that Graham was in a

crosswalk, Check was familiar with the road, and Graham should have been

visible to Check if he was paying attention. Graham’s Brief at 11-16. Graham

contends that because Check had the duty to anticipate the presence of a

pedestrian at an intersection in a crosswalk, and Check should have been



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J-A30037-18

capable of seeing Graham before he did, Graham’s presence in the crosswalk

was foreseeable and therefore was not a sudden emergency. Id.

      In a case involving whether a motorist was negligent in striking a

pedestrian with his car, the test is not whether a motorist saw the pedestrian

before impact, but whether the motorist should have seen the pedestrian

before impact. Forsythe v. Wohlfarth, 209 A.2d 868, 870-71 (Pa. Super.

1965). Thus, while a motorist has a duty to look out for a pedestrian who

may be crossing at an intersection, he also may benefit from the sudden

emergency doctrine if the pedestrian appears in a crosswalk in such a fashion

that it presents an emergency to the motorist. Id. (holding the jury should

decide whether motorist should have seen pedestrian in the crosswalk before

impact or whether motorist was presented with a sudden emergency).

      In the instant case, both Check and Millach, who was the only

eyewitness to the accident, testified that it was very dark, the intersection was

not well lit, Graham was wearing dark-colored clothing, and he was still

crossing the road when the light turned green. N.T., 4/2-5/2018, at 50-72,

94-124. Check, who was traveling in the fourth lane eastbound, testified that

as he approached the intersection, his view of the crosswalk was partially

obstructed by Millach’s vehicle, which was stopped in the third lane eastbound

at the light. Id. at 99, 110. Check had travelled the same route for over 30

years going to and from work, and he rarely saw anyone traversing from the

direction Graham was that morning. Id. at 88-91. Neither Check nor Graham



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J-A30037-18

saw each other until shortly before impact. Id. at 99, 124, 153, 300. As soon

as he saw Graham, who by then was approaching his lane, Check slammed

on his brakes. Id. at 95. Graham was clearly not stationary in the cross walk.

Although Graham      argues Check was inattentive,         Check’s unrebutted

testimony established that the headlights of his vehicle were on, and he was

not on his cell phone or otherwise preoccupied. Id. at 115. Even Graham’s

own testimony indicated that Check was traveling well below the speed limit.

Id. at 289. Thus, there were sufficient facts in the record to support the trial

court’s decision to instruct the jury regarding the sudden emergency doctrine,

leaving it to the jury to decide whether or not Graham’s presence in the

crosswalk presented a sudden emergency to Check. See Forsythe, 209 A.2d

at 870-71.

      In his second issue, Graham argues the trial court’s instruction

regarding a driver’s duty to yield did not provide enough guidance to the jury

on other duties he claims a motorist owes a pedestrian, such as the duty of

vigilance and attentiveness. Graham’s Brief at 16-19. Graham asserts he

requested specific instructions regarding such duties in his points for charge.

Id. at 17.

      Despite Graham’s contention that the trial court erred by not providing

a particular jury instruction, Graham “failed to ensure that the certified record

contain[ed] a copy of the instruction.” Bennyhoff v. Pappert, 790 A.2d 313,

318–19 (Pa. Super. 2001). The docket sheet indicates that Graham did not



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J-A30037-18

file his proposed points for charge in the trial court. This is fatal to his claim.

The failure to include such charge in the certified record means we are “unable

to compare the charge [Graham] … requested to the charge actually given in

order to determine if the trial court did, in fact, err. As such, [Graham has]

waived this claim.” Id.

      Additionally, Graham did not place a specific objection on the record

regarding the trial court’s failure to include his requested charge. The trial

court never had a chance to rule specifically on the propriety of including the

specific charge Graham argues should have been included prior to the jury’s

verdict.   Prior to the in-chambers charging conference, the trial court

submitted its proposed charge to the parties, which apparently did not include

the charge at issue. At the charging conference, Check’s counsel informed

the trial court that both Check and Graham were “objecting, excepting as to

every point in our proposed points…that was not granted.” N.T., 4/2-5/2018,

at 319-20. However, the specific charge at issue was never discussed. At

trial, the trial court reiterated its statement at the charging conference that

all objections made at the charging conference were preserved as if restated

at trial. Id. at 396. The trial court asked counsel if they had anything else to

say, and both counsel responded no. Id.

      Thus, Graham never specifically objected to the trial court’s failure to

include the particular charge at issue or even the nature of the charge the trial

court did provide regarding a driver’s duties. Our rules are clear that “[a]



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J-A30037-18

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.” Pa.R.A.P. 302(b); see also Coffey v. Minwax Co., Inc.,

764 A.2d 616, 622 (Pa. Super. 2000) (holding that objection to “all of the jury

instructions read by the [c]ourt proposed by defense, which were not standard

jury instructions,” was not specific enough to comply with Pa.R.A.P. 302(b)).

Accord Jones v. Ott, 191 A.3d 782, 791 (Pa. 2018) (plurality) (“[I]n 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.”). Accordingly, for all of the reasons stated,

Graham failed to preserve this issue for appellate review.3

      After reviewing the trial court’s jury charge in its entirety, while taking

into consideration all of the evidence of record, we conclude that the charge

did not contain prejudicial error as to Graham. Consequently, the trial court




3 Even if we were to rule upon Graham’s issue, we would conclude that the
trial court did not abuse its wide discretion in concluding that this case did not
warrant a deviation from the standard jury instructions. See Harman ex rel.
Harman v. Borah, 756 A.2d 1116, 1127 (Pa. 2000) (“A trial court has wide
discretion in phrasing jury instructions, and absent an abuse of discretion or
an inaccurate statement of law, there is no reversible error.”). We have
reviewed the trial court’s charge to the jury as a whole, and conclude that the
trial court accurately stated the law regarding negligence, the general duty of
care, and a driver’s responsibility to pedestrians when the driver is proceeding
through a green light. N.T., 4/2-5/2018, at 368-96.

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did not err by denying Graham’s post-trial motion for a new trial. For these

reasons, we affirm the judgment.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




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