J-A25021-14

                                2014 PA Super 262

TANYA HELENA TECCE,                        : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellant              :
                                           :
            v.                             :
                                           :
JOHN MICHAEL HALLY,                        :
                                           :
                    Appellee               : No. 495 EDA 2014

                 Appeal from the Order entered January 14, 2014,
                    Court of Common Pleas, Delaware County,
                         Civil Division at No. 2008-008805

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

CONCURRING OPINION BY DONOHUE, J.:               FILED NOVEMBER 21, 2014

      I agree with the learned Majority’s determination that Wife waived the

issue she presents on appeal. I write separately because I do not share the

Majority’s distaste for that result.   The law is eminently clear that we are

required to find waiver both because Wife failed to preserve the issue in the

trial court and because she has filed a grossly deficient appellate brief.

      The Supreme Court of Pennsylvania has discussed the vital importance

of issue preservation as follows:

            Issue preservation is foundational to proper
            appellate review. Our rules of appellate procedure
            mandate that ‘[i]ssues not raised in the lower court
            are waived and cannot be raised for the first time on
            appeal.’ Pa.R.A.P. 302(a). By requiring that an issue
            be considered waived if raised for the first time on
            appeal, our courts ensure that the trial court that
            initially hears a dispute has had an opportunity to
            consider the issue. Lincoln Philadelphia Realty
            Assoc. v. Bd. or Revision of Taxes of



*Retired Senior Judge assigned to the Superior Court.
J-A25021-14


            Philadelphia, [] 758 A.2d 1178, 1186 ([Pa.] 2000).
            This jurisprudential mandate is also grounded upon
            the principle that a trial court, like an administrative
            agency, must be given the opportunity to correct its
            errors as early as possible. Wing v. Com.
            Unemployment Comp. Bd. of Review, [] 436 A.2d
            179, 181 ([Pa.] 1981). Related thereto, we have
            explained in detail the importance of this
            preservation requirement as it advances the orderly
            and efficient use of our judicial resources. See
            generally Dilliplaine v. Lehigh Valley Trust Co.,
            [] 322 A.2d 114, 116–17 ([Pa.] 1974). Finally,
            concepts of fairness and expense to the parties are
            implicated as well.

In re F.C. III, 2 A.3d 1201, 1211-12 (Pa. 2010).

      It is axiomatic that “[i]n order to preserve an issue for appellate

review, a party must make a timely and specific objection at the appropriate

stage of the proceedings before the trial court. Failure to timely object to a

basic and fundamental error will result in waiver of that issue.” Thompson

v. Thompson, 963 A.2d 474, 475-76 (Pa. Super. 2008); see also Mazlo v.

Kaufman, 793 A.2d 968, 969 (Pa. Super. 2002). “On appeal the Superior

Court will not consider a claim which was not called to the trial court’s

attention at a time when any error committed could have been corrected.”

Thompson, 963 A.2d at 476 (emphasis added). As noted in the passage

above, Rule of Appellate Procedure 302, “Requisites for Reviewable Issue,”

provides that “[i]ssues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”    Pa.R.A.P. 302(a).    Moreover, the

Rules of Appellate Procedure provide that an appellant must indicate in both

the statement of the case and argument portions of his or her brief where


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the issue was raised or preserved in the court below.       Pa.R.A.P. 2117(c);

Pa.R.A.P. 2119(e). The law and our Rules could not be more clear: Mother

failed to preserve her issues in the trial court, and so this Court is precluded

from considering them.

      Secondly, Wife’s appellate brief contains precisely zero citation to

relevant authority. Rule of Appellate Procedure 2119(a) provides as follows:

            The argument shall be divided into as many parts as
            there are questions to be argued; and shall have at
            the head of each part--in distinctive type or in type
            distinctively displayed--the particular point treated
            therein, followed by such discussion and citation
            of authorities as are deemed pertinent.

      Pa.R.A.P. 2119(a) (emphasis added). The failure to provide discussion

of and citation to relevant authority is a substantial impediment to our

review; for that reason, it results in waiver of the issue.        Giant Food

Stores, L.L.C. v. THF Silver Spring Dev., L.P., 959 A.2d 438, 444 (Pa.

Super. 2008) (“The Rules of Appellate Procedure state unequivocally that

each question an appellant raises is to be supported by discussion and

analysis of pertinent authority. … Failure to do so constitutes waiver of the

claim.”); see also Coulter v. Ramsden, 94 A.3d 1080, 1089 (Pa. Super.

2014) (finding appellant’s issue waived due to lack of “any meaningful

discussion of relevant legal authority”).




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      Wife cites only one “authority”: an unpublished memorandum decision

from this Court.1 The Majority correctly points out that our Rules prohibit its

citation and the memorandum has no precedential value. See Maj. Mem. at

4 n.2. Thus, Wife’s complete and utter failure to provide citation to relevant

authority is another basis for this Court to find that Wife has waived the

issues presented for review.

      Before eventually properly applying the principles of issue preservation

and waiver, the Majority dissects the lax procedure employed by the trial

court; specifically, its failure to swear witnesses and allow the parties the

opportunity for cross-examination. I do not dispute that witnesses are to be

sworn before testifying.   Section 5901 of the Judicial Code provides that

“[e]very witness, before giving any testimony shall take an oath in the usual

or common form[.]” 42 Pa.C.S.A. § 5901(a).2 However, I do not agree with

the Majority’s broad conclusion that the failure to administer an oath

necessarily renders testimony a “nullity.” Maj. Op. at 5.

      In this regard, the Majority quotes Commonwealth ex. rel. Freeman

v. Superintendent of State Corr. Inst. at Camp Hill, 242 A.2d 903 (Pa.

Super. 1968), for the proposition that the taking of testimony is meaningless

1
   Wife’s counsel on appeal was not her trial counsel. Wife’s counsel on
appeal was counsel to one of the parties on appeal in the unpublished
memorandum decision upon which she relies in the case before us.
2
   Pennsylvania Rule of Evidence 603 mirrors this requirement, providing
that “[b]efore testifying, a witness must give an oath or affirmation to testify
truthfully. It must be in a form designed to impress that duty on the
witness’s conscience.” Pa.R.E. 603.


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without the administration of an oath.       Maj. Mem. at 4-5.       Freeman,

however, dealt specifically with the effects of the United States Supreme

Court decision of In re Gault, 387 U.S. 1 (1967), a landmark case that “set

forth several procedural requirements which must be met in juvenile

proceedings” and altered the informal manner in which juvenile delinquency

proceedings had been routinely held in Pennsylvania.        In that case, this

Court held that in the wake of Gault, “a determination of delinquency …

cannot be sustained in the absence of [s]worn testimony subjected to the

opportunity to cross-examination” where such requisites were not previously

required.   Freeman, 242 A.2d at 908.       It is clear that the quasi-criminal

nature of the delinquency proceedings spurred these changes to those

informal proceedings, and that the discussion regarding the impact of

routinely accepting unsworn testimony was made specifically in connection

with these considerations. See id. at 907-08.

      There is scant case law discussing the failure to swear a witness.3

However, this Court has considered waiver in connection with the failure to

object when no oath is administered prior to testimony taken by deposition.


3
  In addition to the Freeman case cited by the Majority, in Dunsmore v.
Dunsmore, 455 A.2d 723 (Pa. Super. 1983), this Court remanded a case
“with instructions to start over again” because of various procedural errors,
including the trial court’s decision to allow the father in that case to testify
without being sworn because he was a practicing attorney. Unlike in the
present case, however, there is absolutely no indication that the appellant-
mother in Dunsmore failed to lodge a proper objection at the time of the
hearing, and so Dunsmore provides no guidance on the issue of whether a
party may waive the failure to swear a witness as an issue for appeal.


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As with judicial proceedings, the witness in a deposition must be sworn prior

to giving testimony. Id.; Pa.R.C.P. 4017(a). This Court has held that the

lack of objection to a witness’s failure to be sworn at the time of a deposition

results in the waiver of this error.4      Wenham Transp., Inc. v. Radio

Const. Co., 154 A.2d 301, 303 (Pa. Super. 1959). Indeed, the Rules of Civil

Procedure    governing   discovery   now    mandate   this   result:   objections

regarding the administration of the judicial oath are waived if not raised at

the time of the deposition. Pa.R.C.P. 4016(c). There is, to me, no reasoned

differentiation in this context between deposition testimony and testimony

offered at a hearing. If the objection to the error is raised at the deposition,

it can be corrected; if it is raised at the hearing, the error can be corrected.

In either context, the failure to object prevents the opportunity to correct

the error.

      I disagree, too, with the Majority’s broad statement that a judicial

proceeding must involve the presentation of evidence.          Maj. Mem. at 6

(“When we speak of a judicial proceeding, we speak of a hearing, not a

conversation.”). There are myriad judicial proceedings that do not require

the taking of testimony or reception of evidence; for instance, proceedings

to resolve preliminary objections, motions for judgment on the pleadings,

and motions for summary judgment.          See Pa.R.C.P. 1028, 1034, 1035.2.


4
   The unsworn deposition testimony was offered for use at trial. The
purpose for which the deposition testimony was offered is not clear from the
Wenham opinion.


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Moreover, even in a proceeding where evidence is received, by testimony or

otherwise, a party may always waive his or her right to present evidence or

cross-examine witnesses; indeed, a party may choose to do so for tactical

reasons.   As these facets of a judicial proceeding may be waived, they

cannot be, as the Majority contends, indispensable for a valid judicial

proceeding.

      It is of little wonder that no objection was made to the trial court’s

failure to administer the oath.   The transcript of the hearing leads to the

inevitable conclusion that the parties were satisfied with the manner in

which the trial court proceeded.      The Majority correctly describes what

occurred in the proceeding in question as argument by the parties’ counsel

interspersed with statements by the parties themselves.      After addressing

the issues raised by Wife in her petition, the trial court said, “All right, I

believe I understand the parties’ positions on all three issues, so I thank you

and I will take this under advisement … .” N.T., 1/9/14, at 46. At no time

did either party’s counsel inquire of the trial court when testimony would be

taken or seek to cross-examine the adverse party as to any statement he or

she made during the course of the proceeding.          Of importance, Wife’s

counsel voiced no concern that the proceeding was adjourned without the

formal introduction or reception of evidence. The obvious conclusion is that

the parties had no problem with the manner in which the proceedings

occurred or that the presiding judge would decide the case on the



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information presented.     It is only now, after receiving an unfavorable

decision, that Wife takes issue with the manner in which the proceedings

were conducted and seeks an impermissible second bite at the apple. 5

      Simply, this Court is prohibited from addressing an issue not raised

and preserved in the trial court. There should be no hesitance by our Court

to recognize that prohibition and abide by it. I wholeheartedly agree with

the Majority that family law attorneys and the courts before whom they

appear should abide by formal rules and procedure.         See Maj. Mem. at 6

n.3. And so must we. As an intermediate appellate court, we are required

by rule or Supreme Court edict to find waiver in a myriad of circumstances.

I am struck by the injustice I perceive as a result of the mandatory

application   of   mandatory   waiver   principles   in   many   circumstances.

However, I do not share the Majority’s distaste for finding waiver in this

case. Both parties were represented by counsel. No objections were lodged

in the trial court.    While it is troubling that trained lawyers and an

experienced trial judge would allow the hearing to proceed as it did, waiver

is the only possible outcome in this case.

      For these reasons, I concur in the outcome reached by the Majority.

5
   In a footnote, the Majority chides the lax practice of family law attorneys
and courts and encourages them to adopt formality in their practice by
abiding by the Rules of Civil Procedure. Maj. Mem. at 6 n.3. I agree that to
the extent some counsel and trial courts are lax, the legal profession,
litigants, and the judicial system require adherence to the rules of procedure
and evidence to preserve confidence in the outcome of cases. Trial courts
should be diligent and trial counsel should insist, by objection to laxity, that
the appropriate procedures are followed.


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