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finding a request for a jury charge waived even though moving party filed a written point for charge and ultimately did not receive the instruction, because the charging conference with the trial court was not transcribed
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No. 12 WAP 2017
08-21-2018
Helen JONES, Appellant v. Ron OTT and/or Eastern Elevator Service and Sales Company, Appellees
Mark F. Bennett, Esq., Berger and Green, P.C., for Appellant. James Feinen Marrion, Esq., Pietragallo, Gordon, Alfano, Bosick & Raspanti, L.L.P., for Appellees.
Mark F. Bennett, Esq., Berger and Green, P.C., for Appellant.
James Feinen Marrion, Esq., Pietragallo, Gordon, Alfano, Bosick & Raspanti, L.L.P., for Appellees.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
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
This matter was reassigned to this author.
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. I. Facts and Procedural History
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.
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. Prior to trial, Jones filed proposed points for charge with the prothonotary. Of particular relevance to this appeal, Jones filed three proposed instructions related to negligence per se . After trial had commenced, but before the case went to the jury, the trial court held a charge conference. Neither 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. Ultimately, the trial court's charge to the jury did not include an instruction concerning negligence per se . Notably, after charging the jurors, the trial court asked counsel whether there was anything with respect to the charge that either party wanted to put on the record. Jones' lawyer responded: "I have no issues with the charge, Your Honor." Notes of Testimony ("N.T."), 4/29/2015, at 25.
We refer to Ott and Eastern herein collectively as "Ott."
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 . Ott responded that Jones had waived her jury-charge challenge by failing to lodge a timely objection at trial. See Ott's Resp. to Jones' Post-Tr. Mot., 5/12/2015, at ¶ 9. Jones replied that she had preserved her claim by docketing written proposed points for charge and raising the issue in a post-trial motion. Jones' Resp., 5/13/2015, at 2. The trial court denied Jones' motion, and Jones appealed to the Superior Court.
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 , 641 Pa. 416, 168 A.3d 1238 (2017) (per curiam ).
Jones invoked a line of decisions that began with Broxie v. Household Finance Company , 472 Pa. 373, 372 A.2d 741 (1977). In that case, Richard Broxie sued the Household Finance Company ("Household") for damages arising out of Broxie's termination from his position as a United States Postal Service worker. The trial court charged the jury as to intentional interference with contractual relations, including an instruction related to specific intent. Household did not object to this instruction, nor did it offer an alternate point for charge as to specific intent. The jury rendered a verdict in favor of Broxie. Household moved for judgment notwithstanding the verdict ("JNOV") and for a new trial, based upon the trial court's inclusion of what Household averred was an erroneous specific intent instruction. The trial court denied Household's motion and entered judgment in favor of Broxie. On appeal, the Superior Court affirmed, holding that Household waived its request for JNOV or a new trial because it failed to object to the trial court's jury instructions at trial.
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.
Broxie , 372 A.2d at 743 (citing Commonwealth v. Sisak , 436 Pa. 262, 259 A.2d 428, 432 (1969) ; Lobalzo v. Varoli , 422 Pa. 5, 220 A.2d 634, 635 (1966) ; Bell v. Yellow Cab Co ., 399 Pa. 332, 160 A.2d 437, 441 (1960) ). Observing that Household conceded that it had failed to lodge a contemporaneous objection, we concluded:
[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. , 312 Pa.Super. 448, 458 A.2d 1377 (1983), highlighting the disjunctive options that the Broxie Court outlined by which a party may preserve a jury-charge challenge, the Superior Court found that plaintiff Brancato had preserved her jury-charge challenge notwithstanding her failure to lodge a specific objection at trial. The Brancato court concluded that, because plaintiff's trial counsel filed proposed points for charge with the prothonotary, which were explicitly denied by the trial court at the recorded charge conference, and because plaintiff then raised the issue in a post-trial motion, she had preserved her challenge. See Brancato , 458 A.2d at 1379-80 (quoting Broxie , 372 A.2d at 743 ). The Brancato court opined that this finding was consistent with Pa.R.C.P. 227(a), but did not address Pa.R.C.P. 227(b). The Brancato court did not address Pa.R.C.P. 227.1 because that provision was not effective until the following year.
Brancato , 458 A.2d at 1380. Rule 227(a) provides:
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).
In Meyer v. Union Railroad Company , 865 A.2d 857 (Pa. Super. 2004), the Superior Court relied upon Brancato and Broxie to conclude that, because trial counsel filed proposed points for charge with the prothonotary, and because the court refused "to instruct the jury on [the] proposed point," the defendant Union Railroad had preserved its challenge despite failing to object to the instruction at trial. Meyer , 865 A.2d at 862. The Meyer court highlighted the fact that Union Railroad had submitted its proposed point for charge prior to the trial court's charge conference, that the charge conference revealed attempts to reach agreement as to the appropriate instruction, and that the trial court refused to instruct the jury as Union requested. Id. The Meyer court did not mention Pa.R.C.P. 227.1.
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
record. 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, 2016 WL 5418827 (Pa. Super. 2016) (memorandum). The Superior Court reasoned that, in the absence of a clear objection on the record, Jones' counsel waived any future jury-charge challenge when counsel told the trial court that Jones "ha[d] no issues with the charge." Id. at *4. The Superior Court also observed that, because "there is no record of the in camera proceedings before the trial court, we are unable to review what transpired at the charge conference and, therefore, we do not know whether the trial court denied the proposed points of charge or if [Jones] acquiesced in their exclusion." Id. at *4 n.2. Thus, the Superior Court agreed with the trial court that Meyer was distinguishable in light of the Meyer court's reliance upon the existence there of a transcribed charge conference and a trial court ruling. The Superior Court also questioned the continued vitality of Meyer in light of Meyer's reliance upon Brancato , a case which was later qualified by Thomas Jefferson University v. Wapner , 903 A.2d 565 (Pa. Super. 2006), and Faherty v. Gracias , 874 A.2d 1239 (Pa. Super. 2005).
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 , 903 A.2d at 571 (finding failure to preserve a jury-charge challenge when requesting party acquiesced in an alternate jury instruction which made it "unnecessary for the court to rule"); Faherty , 874 A.2d at 1249 ("[A] trial judge's ruling against a proposed charge will indeed preserve the issue for review. Yet, a ruling must be made.") (internal citations omitted). Here, the Superior Court found that, because the charge conference was not transcribed, and because there is no record of any trial court ruling upon the parties' proposed points for charge, Jones had failed to preserve her claim.
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 , 2016 WL 5418827 at *4 n.2. Pennsylvania Rule of Civil Procedure 227(b) mandates that, "[u]nless 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). According to the Superior Court, "a plain reading of Pa.R.C.P. 227(b) does not make clear whether an objection in chambers suffices to preserve a jury instruction claim for appeal or whether objections must be renewed again before the jury retires." Jones , 2016 WL 5418827 at *4 n.2.
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 proposed points for charge and later filed a post-trial motion challenging the trial court's failure to include specific points.
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. , 638 Pa. 323, 155 A.3d 39, 44 (2017).
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 responds that this Court's well-settled waiver principles outlined in Dilliplaine v. Lehigh Valley Trust Co. , 457 Pa. 255, 322 A.2d 114 (1974), and its progeny make clear that, in order to preserve an issue for appellate review, a litigant must raise a contemporaneous objection at trial. This ensures that the trial court has the chance to correct errors in real time, thus avoiding the need for appellate review. Accordingly, Ott reasons, mere filing of a proposed point for charge with the prothonotary, without more, fails to preserve a jury-charge challenge for appellate review because it provides no opportunity for the trial court to correct any alleged error.
See Brief for Jones at 19 (citing Newman Dev. Grp. of Pottstown, LLC v. Genuardi's Family Mkts., Inc. , 617 Pa. 265, 52 A.3d 1233, 1247 (2012) ("To warrant the heavy consequence of waiver, in a rules schemata designed to ‘secure the just, speedy and inexpensive determination’ of disputes, the applicability of [Pa.R.C.P. 227.1 ] should be apparent upon its face or, failing that, in clear decisional law construing the Rule.") ). In Newman , this Court refused to find waiver when a litigant failed to file a post-trial motion upon remand of its case to the trial court because the remand proceeding did not constitute a "trial" requiring post-trial motions under Pa.R.C.P. 227.1.
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. , 613 Pa. 371, 34 A.3d 1, 45 (2011) ; Straub v. Cherne Indus. , 583 Pa. 608, 880 A.2d 561, 566 (2005) ; Dilliplaine , 322 A.2d at 116-17. Issues that are not preserved by specific objection in the lower court are waived. Pa.R.A.P. 302(a) ; Straub , 880 A.2d at 617-18. We have long noted two benefits of timely preservation:
(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
is 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. , 640 Pa. 169, 162 A.3d 353, 365 (2017) (citing Dilliplaine , 322 A.2d at 117 ). Requiring a specific objection on the record "remove[s] the advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate court to compensate for his trial omissions." Dilliplaine , 322 A.2d at 116-17. This requirement prevents a trial from turning into "merely a dress rehearsal." Id.
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." Id. In accord with this requirement that the trial court be afforded the opportunity to correct potential errors, Pa.R.A.P. 302 mandates as well that "[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." Pa.R.A.P. 302.
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 , 545 Pa. 127, 680 A.2d 851, 852 n.5 (1996) ("[M]atters not part of the record will not be considered on appeal."). Thus, under Dilliplaine , its progeny, and our rules of civil and appellate procedure, Jones failed to preserve her jury-charge challenge.
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 any such trial court ruling.
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.
In order to preserve a jury-charge challenge for appellate review, a party must either: (1) lodge a contemporaneous objection on the record, Dilliplaine , 322 A.2d at 116-17 ; Pa.R.A.P. 302 ; Pa.R.C.P. 227, 227.1, cmt.; or (2) 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.
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." Id. Because pretrial filing of proposed points for charge provides no opportunity for correction of trial error, it does not suffice—without more—to preserve an issue for appellate review. See Chwatek v. Parks , 450 Pa. 62, 299 A.2d 631, 633 (1972) ("We have consistently held that issues not raised or passed upon in the court of original jurisdiction should not be considered on appeal.") (emphasis added); Troxell v. Anderson Coal Min. Co. , 213 Pa. 475, 62 A. 1083, 1084 (1906) ("We do not sit as an advisory board for lower courts, but to correct errors alleged to have been committed by them when brought up to us by proper assignments."). To the extent that Jones suggests that the trial court ruled by implication upon the proposed instructions by failing to include them within the charge, we are unconvinced. As the Superior Court observed, because the record is silent, "we do not know whether the trial court denied the proposed points of charge or [whether Jones] acquiesced in their exclusion." Jones , 2016 WL 5418827 at *4 n.2. Absent any record, we may infer neither the fact of any ruling nor its substance.
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 , 865 A.2d at 860 ("The trial court indicated that it would deny the proposed point unless Union fashioned acceptable language. As Union failed to submit a revised point No. 19, the proposed point was not included in the trial court's instructions."); Brancato , 458 A.2d at 1379-80 ("[O]ur examination of the record reveals that appellants' trial counsel submitted 12 hand-written points for charge. Of these, Points # 1, # 3, # 6 and # 7 were specifically denied."). Likewise, this Court's suggestion in Broxie 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," presupposes that the complaining party may complain only if the trial court denies her request. Broxie , 372 A.2d at 743. Grounds for post-trial relief predicated upon assertedly flawed jury instructions ripen only once the trial court rules upon the matter. To suggest otherwise would introduce ambiguity into the record, confound appellate review (as indeed has happened in this case), and turn a trial into "merely a dress rehearsal." Dilliplaine , 322 A.2d at 116-17.
See Jones v. Montefiore Hosp. , 494 Pa. 410, 431 A.2d 920, 924 n.5 (1981) ("Although no specific objection was made at trial to the charge given, appellants' exception to the trial court's refusal to charge as requested on causation was sufficient to put that charge before us for appellate review.") (emphasis added); Gradel v. Inouye , 491 Pa. 534, 421 A.2d 674, 677 n.6 (1980) ("Appellee argues, on the other hand, that his exceptions to the trial court's refusal to charge as requested on causation and on jury consideration of the possibility of future metastasis of the cancer were sufficient to preserve those issues for appellate review. We agree, and proceed to address those matters directly.") (emphasis added).
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. A transcript or explicit written ruling upon the contested instructions would obviate the dispute and enable merits review. It 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 , 903 A.2d at 571 (finding failure to preserve a jury-charge challenge when requesting party acquiesced to an alternate jury instruction which made it "unnecessary for the court to rule"); Faherty , 874 A.2d at 1249 ("[A] trial judge's ruling against a proposed charge will indeed preserve the issue for review. Yet, a ruling must be made.") (internal citations omitted). We agree with the Superior Court. Absent an explicit trial court ruling upon the matter, Jones' proposed points for charge failed to preserve her jury-charge challenge for appellate review. ,
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.
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. These waivers may occur for countless strategic or tactical reasons, or may be based upon intervening developments in the trial record, or may reflect simple inadvertence or error. Our trial courts must be free to accept such unequivocal statements of counsel as consequential and binding. Thus, even if Jones had preserved her jury-charge issue in the first instance, her affirmative statement on the record that she no longer had any "issues with the charge" waived any available post-trial claim. When a trial judge directly asks for any objections, counsel must directly state them, explicitly or by reference to prior recorded objections, on pain of waiver.
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. , 589 Pa. 516, 909 A.2d 1272, 1281 (2006) ; a party may waive certain affirmative defenses by not filing new matter, see Pa.R.C.P. 1030 ; a party may waive any preserved trial objections by not including them in an ordered concise statement, see Pa.R.A.P. 1925(b).
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 , 624 Pa. 564, 87 A.3d 285, 292 (2014) (holding that appellee preserved his jury-charge challenge by objecting to the relevant proposed jury instructions at the recorded charge conference, objecting on the record on the day of trial, and responding to "the court before the jury commenced deliberating that he wanted to preserve both the objections he had made during the charging conference ... and the objection to the ... charge he had raised that morning").
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 , 635 Pa. 451, 137 A.3d 1262, 1281-82 (2016) (finding that trial counsel waived his fair-trial challenge predicated upon being shackled during proceedings under Pa.R.C.P. 302(a) when, after initially objecting, counsel stated, "[i]f the sheriff's office feels [the shackling] has to be done, I don't feel I have a position one way or the other," and stating that he had "no objection" to the shackling at a subsequent hearing); Commonwealth v. Manigault , 501 Pa. 506, 462 A.2d 239, 240 (1983) (finding that issues which are neither argued nor briefed are abandoned and waived); Bodine v. Boyd , 383 Pa. 525, 119 A.2d 274, 276-77 (1956) (finding "actual affirmative waiver" of jury-charge challenge when the trial court asked counsel "[i]s there anything else you want me to say" and counsel responded "I have nothing, sir"). The parties, their lawyers, and the court must be able to trust that a point for charge, once affirmatively abandoned on the record, cannot, at whim and in contradiction of that waiver, be resuscitated, dusted off, and re-asserted in a post-trial motion and an appeal. To hold otherwise would unwittingly deprive trial lawyers of their agency as professionals, and, in doing so, unnecessarily inject confusion and uncertainty into civil practice.
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, concurringI 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 , 383 Pa. 525, 119 A.2d 274, 276-77 (1956) (determining, via adoption of a trial court's opinion, that counsel's reply of "I have nothing, sir" to a similar post-charge inquiry by a trial court constituted an "actual affirmative waiver" of any objection).
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.
JUSTICE DOUGHERTY, dissenting
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. , 630 Pa. 79, 106 A.3d 48, 73 (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.
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.
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 , 322 A.2d at 115.
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, 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).
The Cambria County common pleas docket reflects appellant filed her requested points for charge with the prothonotary on April 20, 2015.
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 , 372 A.2d at 743. Similar to Dilliplaine , the appellant's failure to request the jury instruction be included distinguishes the Broxie Court's holding. Nevertheless, without specifically stating so, the Broxie Court suggested that if the appellant had filed a specific point for charge with the trial court, the issue might have been preserved.
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.
Id. (some citations omitted; emphasis added).
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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., 312 Pa.Super. 448, 458 A.2d 1377 (1983), and Meyer v. Union R.R. Co. , 865 A.2d 857 (Pa. Super. 2004), for this proposition to be misplaced. See Majority Op. at 790.
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 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 , 472 Pa. 373, 372 A.2d 741 (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 at 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 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 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. 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.) Op. at 793.
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.
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. , 617 Pa. 265, 52 A.3d 1233, 1248 & n.7 (2012), citing Chalkey v. Roush , 569 Pa. 462, 805 A.2d 491, 494, n.9 (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.
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.
Justice Donohue joins this dissenting opinion.
JUSTICE MUNDY, dissenting
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 made 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[.]" Id. Despite the Rule being framed in terms of when post-trial relief is not available, it unambiguously states one method of issue preservation is the filing of a point for charge. Importantly, preservation by "point for charge" is included in the list directly after "objection." If the intent of the Rule was to require an objection despite the filing of a point for charge, both would not be listed as equally viable options for preservation. Because the language is clear and free from all ambiguity that a challenge may be raised by either an objection or a point for charge, it was not necessary for preservation to do both. A finding of waiver is unacceptable where Appellant adhered to the express requirements for preservation of error pursuant to the Pennsylvania Rules of Civil Procedure.
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. 302.1
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 , 422 Pa. 5, 220 A.2d 634, 635 (Pa. 1966). Ultimately, this rule was unworkable and this Court in Dilliplaine explicitly held that fundamental error will not preserve a challenge to a jury instruction, and that a specific exception must be taken.
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 the 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. , 865 A.2d 857 (Pa. Super. 2004), was grounded in the principles discussed herein, and correctly held that the filing of a proposed point for charge, coupled with a post-trial motion challenging the omission of a requested proposed point for charge, preserves a challenge to the omitted instructions for purposes of appellate review. In Meyer , the defendant raised an identical claim to Petitioner's in the instant matter, arguing that "because it requested the point for charge during the charg[ing] conference and raised the issue in its post-trial motion, the issue was preserved despite its failure to make a specific objection following the charge." Meyer , 865 A.2d at 861. The Meyer Court held, "[a]lthough the general principle reiterated in Bezerra [v. National Railroad Passenger Corp., 760 A.2d 56 (Pa. Super. 2000),] 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. Notably, in Meyer , the court did not rely on the record of the charging conference as the Majority asserts it did, but in reaching its decision, found the issue was preserved absent an express objection on the record.
In Commonwealth v. Pressley , 584 Pa. 624, 887 A.2d 220 (2005), this Court noted that in the criminal context, "Criminal Procedural Rule 647(B) states that, to preserve an issue as to a portion of a charge, a party must make a specific objection before the jury retires to deliberate[.]" Id. at 222. Nevertheless, we cautioned
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.,
Broxie v. Household Fin. Co., 472 Pa. 373, 372 A.2d 741, 743 ( [Pa.] 1977).
Id. at 225 n.10 (parallel citation omitted).2
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.