                             [J-68-2017] [MO: Wecht, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


 HELEN JONES,                                  :   No. 12 WAP 2017
                                               :
                      Appellant                :   Appeal from the Order of Superior
                                               :   Court entered September 27, 2016 at
                                               :   No. 930 WDA 2015, affirming the
               v.                              :   Order of the Court of Common Pleas
                                               :   of Cambria County entered May 27,
                                               :   2015 at No. 2010-2490.
 RON OTT AND/OR EASTERN                        :
 ELEVATOR SERVICE AND SALES                    :   ARGUED: October 17, 2017
 COMPANY,                                      :
                                               :
                      Appellees                :


                                  DISSENTING OPINION


JUSTICE DOUGHERTY                                  DECIDED: AUGUST 21, 2018
       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., 106 A.3d 48, 73 (Pa. 2014). Rule 127

provides, in pertinent part, as follows:

          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 upon cause shown to specify additional grounds.


Pa.R.C.P. 227.1(b).1



1   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



                                 [J-68-2017] [MO: Wecht, J.] - 2
       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


          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 tht 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.



                               [J-68-2017] [MO: Wecht, J.] - 3
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,2 and then filing a post-trial

motion. See Pa.R.C.P. 226 (requested point for charge becomes part of record when

read into record or filed in office of prothonotary); 227.1(b)(1) (manner of preserving error

on post-trial motion includes raising in point for charge and specifying in motion).

       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 of 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., 458 A.2d 1377 (Pa. Super. 1983),

and Meyer v. Union R.R. Co., 865 A.2d 857 (Pa. Super. 2004), for this proposition to be

misplaced. See Majority Opinion, slip op. at 13.

       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, 458 A.2d at 1379-80. Brancato then challenged the trial court’s

denial of points for charge #1, #3, #6 and #7 via post-trial motions. Id. at 1380. In

response to the post-trial motions and appeal, opposing counsel challenged whether


2 The Cambria County common pleas docket reflects appellant filed her requested points
for charge with the prothonotary on April 20, 2015.


                              [J-68-2017] [MO: Wecht, J.] - 4
Brancato preserved the points for charge as they were not raised or challenged at the

time of trial. Id. In finding Brancato did not waive the appellate challenge to points for

charge #1, #3, #6 and #7, the Superior Court specifically noted “[i]t 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.” Id., quoting Broxie v. Household Finance Co, 372 A.2d 741 (Pa.

1977) (emphasis in original).

       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, 865

A.2d at 861, citing Brancato, 458 A.2d 1377.

       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




                                [J-68-2017] [MO: Wecht, J.] - 5
court ruling upon the challenged instruction” to preserve error which is already preserved

by the submission and filing of those points. Majority Opinion, slip op. at 11. 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

to 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.3 In this

respect, I share Chief Justice Saylor’s concerns that, if a new requirement to preserve

challenges to a jury charge is to be applied, at a minimum, such additional requirement

should be “interpose[d] . . . on a prospective basis only.” See Concurring Opinion (Saylor,

C.J.) slip op. at 2.

       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 Opinion slip op. at

15 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

3 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.


                              [J-68-2017] [MO: Wecht, J.] - 6
reasoning. See Newman Dev. Group of Pottstown, LLC v. Genuardi’s Family Mkts. Inc.,

52 A.3d 1233, 1248 & n.7 (Pa. 2012), citing Chalkey v. Roush, 805 A.2d 491, 494, n.9

(Pa. 2002) (purpose of Rule 227.1 “is to provide the trial court with an opportunity to

correct errors in its ruling and avert the need for appellate review.”). Accordingly, in my

view, the concerns raised by the majority in this respect are resolved in existing post-trial

motion practice.4

       Justice Donohue joins this dissenting opinion.




4 Similarly, I recognize the force in the majority’s view that “the best practice is to ensure
the charge conference is transcribed.” see Majority Opinion slip op. at 15 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.




                              [J-68-2017] [MO: Wecht, J.] - 7
