Waiver of Challenge to Jury Instructions; Pa. R.C.P. 227.1(b)
The Pennsylvania Supreme Court will consider whether:
Absent an express request by the trial court to place any objections on the record, is a challenge to a trial court’s jury instructions preserved pursuant to Pennsylvania Rule of Civil Procedure 227.1, if a party submits specific proposed points for charge to the trial court at the time of charging conference, and challenges the trial court’s failure to include the specific points in a post-trial motion?
Plaintiff in a personal injury case involving an auto accident filed points for charge. There was an off the record charging conference in chambers, so that no record was made and plaintiff did not use the procedure of Pa. R.A.P 1923 to memorialize what transpired, including whether the plaintiff’s counsel objected to the trial judge’s rejection of his proposed points. However, the transcript revealed that after the trial judge charged the jury plaintiff’s counsel affirmatively stated that he had no objection to the charge. Plaintiff then raised trial court’s failure to give the proposed points for charge in post-trial motions. Trial court’s Pa. R.A.P. 1925 opinion stated that the challenge to the charge was waived for failure of plaintiff to make a specific objection to the charge when given.
Superior Court agreed that the challenge to the charge was waived for failure to object to the charge on the record before the jury retired. The court cited Pa. R.C.P 227.1(b), which provides that “[u]nless specially allowed by the court, all exceptions to the charge to the jury shall be taken before the jury retires.” Slip op. n. 2. The court conceded that the rule “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. Regardless, as there is no record of the in camera proceedings before the trial court, we are unable to review what transpired at the charging conference and, therefore, we do not know whether the trial court denied the proposed points of charge or if Appellant acquiesced in their exclusion.” The court rejected Plaintiff’s reliance on Meyer v. Union R. Co., 865 A.2d 857, 861 (Pa. Super. 2004) for the proposition that:
when a written proposed point for charge is submitted to the court and the proposed charge is not included in the trial court’s charge, if a post-trial motion is filed raising the court’s refusal to instruct the jury on the proposed charge, the issue is preserved despite a failure to make a specific objection following the charge.
The court reasoned, in that case, the charging conference was on the record and it was clear that counsel objected to the trial judge’s rejection of the proposed point for charge, whereas no such record existed in this case.
Of note, though not mentioned in the Superior Court unpublished opinion, Supreme Court had occasion to observe in 2005 that the criminal rules expressly require that a party object specifically to the charge, including any omissions from requested instructions, before the jury retires, in order to preserve the issue for appeal, Pa.R.Crim.P. 647(C), but that the civil rules are not so clear:
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, 377, 372 A.2d 741, 743 (1977).” Com. v. Pressley, 887 A.2d 220, 225 n.10 (2005).