Dilliplaine v. Lehigh Valley Trust Co.

322 A.2d 114, 457 Pa. 255, 1974 Pa. LEXIS 838

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1974
• Docket: Appeal, 341
• Status: Published

Opinions

Opinion by

Mr. Justice Roberts,

On April 23, 1966, automobiles driven by Wayne P. Dilliplaine and James A. Burdette collided. Subsequently Burdette died of causes unrelated to the accident. Dilliplaine then brought this trespass action against the executor of Burdette’s estate, Lehigh Valley Trust Company, for injuries suffered in the accident.

The jury found for defendant and Dilliplaine’s motion for a new trial was denied. The Superior Court affirmed.¹ We granted the petition for allowance of appeal.² The sole issue is whether the trial court erred by instructing the jury that the deceased was presumed to have exercised due care at the time the accident occurred.

Appellant Dilliplaine frankly concedes that he neither offered a point for charge nor took specific exception to the due care instruction actually given.³ In his motion for a new tidal and again on appeal, he argued that in giving the presumption of due care instruction the trial judge committed basic and fundamental error.

Appellant espouses the theory that an appellate court must consider trial errors claimed to be basic and fundamental despite the absence of any objection or specific exception at trial. Millili v. Alan Wood Steel Co., 418 Pa. 154, 156-57, 209 A.2d 817, 818 (1965); Patterson v. Pittsburgh Rys., 322 Pa. 125, 128, 185 A. 283, 284 (1936). This theory has been applied primarily to asserted infirmities in a trial court’s instructions to the jury.

We believe that two practical problems with basic and fundamental error make it an unworkable appellate procedure. Initially, appellate court recognition of alleged errors not called to the trial court’s attention has a deleterious effect on the trial and appellate process. Also, despite its repeated articulation, the theory has never developed into a principled test, but has remained essentially a vehicle for reversal when the predilections of a majority of an appellate court are offended.

Appellate court consideration of issues not raised in the trial court results in the trial becoming merely a dress rehearsal. This process removes the professional necessity for trial counsel to be prepared to litigate the case fully at trial and to create a record adequate for appellate review. The ill-prepared advocate’s hope is that an appellate court will come to his aid after the fact and afford him relief despite his failure at trial to object to an alleged error. The diligent and prepared trial lawyer — and his client — are penalized when an entire case is retried because an appellate court reverses on the basis of an error opposing counsel failed to call to the trial court’s attention. Failure to interpose a timely objection at trial denies the trial court the chance to hear argument on the issue and an opportunity to correct error. It also tends to postpone unnecessarily disposition of other cases not yet tried for the first time. See Pa. R. C. P. 214(d).

The notion of basic and fundamental error not only erodes the finality of trial court holdings, but also encourages unnecessary appeals and thereby further burdens the decisional capacity of our appellate courts.⁴ Trial counsel, though he may not have claimed error at trial, is inspired after trial and an adverse verdict by the thought that an appellate court may seize upon a previously unclaimed error and afford relief on a ground not called to the trial court’s attention.

Perhaps at an earlier stage of our jurisprudential development this practice could be justified. Today, however, there is no excuse for and appellate courts should not encourage less than alert professional representation at trial. Virtually all active practitioners at our bar have had a formal legal education at a law school accredited by the American Bar Association.⁵ The Pennsylvania Bar Institute,⁶ Pennsylvania Trial Lawyers Association, and local bar associations as well as the American Bar Association and the American Law Institute provide programs of continuing legal education for members of the bar.⁷

Requiring a timely specific objection to be taken in the trial court will ensure that the trial judge has a chance to correct alleged trial errors. This opportunity to correct alleged errors at trial advances the orderly and efficient use of our judicial resources. First, appellate courts will not be required to expend time and energy reviewing points on which no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the trial court without subjecting both the litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal.⁸ Finally, the exception requirement will remove the advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate court to compensate for his trial omissions.⁹

The other major weakness of the basic and fundamental error theory is its ad hoc nature. The theory has been formulated in terms of what a particular majority of an appellate court considers basic or fundamental.¹⁰ Such a test is unworkable when neither the test itself nor the case law applying it develop a predictable, neutrally-applied standard.

We conclude that basic and fundamental error has no place in our modem system of jurisprudence. This doctrine, which may in the past have been acceptable, has become an impediment to the efficient administration of our judicial system. Basic and fundamental error will therefore no longer be recognized as a ground for consideration on appeal of allegedly erroneous jury instructions; a specific exception must be taken.

Because appellant failed to specifically object to the trial court’s instruction on presumption of due care, we will not consider this allegation of error. The order of the Superior Court is affirmed.

Mr. Justice Manderino joins the opinion of the Court. Mr. Justice O’Brien concurs in the result.

1 Dilliplaine v. Lehigh Valley Trust Co., 223 Pa. Superior Ct. 245, 297 A.2d 826 (1972) (per curiam). Judge Hoffman filed a concurring opinion in which Judges Spaulding and Cercone joined. Id. at 246, 297 A.2d at 826. Judge Packel filed a separate concurring opinion. Id. at 249, 297 A.2d at 828.

2 See Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 204(a), 17 P.S. § 211.204(a) (Supp. 1973).

3 A general exception to the entire charge to the jury was taken, Appellant did specifically except to four instructions none of which are involved in this appeal.

4 See Pa. R. C. P. 227(b).

5 See Pa. Sup. Ct. R. 8, Subd. C(2); See Spiegelberg, Forward to A. Levin & H. Cramer Trial Advocacy, Problems and Materials at xiii (1968).

“A hundred years ago over eighty-five per cent of the lawyers in this country became lawyers by reading law in an office. Today the figure is less than ten per cent and in some of the more populous states practically negligible.”

6 The Institute is the continuing legal education arm of the Pennsylvania Bar Association.

7 See, e.g., Joint Committee on Continuing Legal Education of the ALI and the ABA, in American Law Institute, 1973 Annual Report.

8 When only properly preserved issues are considered on appeal, a full transcript of the trial will often be unnecessary. The trial court on post-trial motions (and the appellate court) will require transcripts of only those portions of the trial which are in issue. Reduction of the number of complete transcripts required for appeal will minimize both the expense and delay which now make an appeal so costly.

9 See ABA Code of Professional Responsibility, DR 6-101 (A) (2) (1971).

“(A) A lawyer shall not: ... (2) Handle a legal matter without preparation adequate in the circumstances.”

10 See Leech v. Jones, 421 Pa. 1, 218 A.2d 722 (1966); Millili v. Alan Wood Steel Co., 418 Pa. 154, 209 A.2d 817 (1965); Enfield v. Stout, 400 Pa. 6, 161 A.2d 22 (1960); Patterson v. Pittsburgh Rys., 322 Pa. 125, 185 A. 283 (1936).